United States Ex Rel. Westrick v. Second Chance Body Armor, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

______________________________
)
UNITED STATES, ex rel. )
WESTRICK, )
)
Plaintiffs, )
)
v. ) Civil Action No. 04-280 (RWR)
)
SECOND CHANCE BODY ARMOR, )
INC., et al., )
)
Defendants. )
______________________________)

MEMORANDUM OPINION AND ORDER

The United States brought this action against defendants

Toyobo Co., Ltd. and Toyobo America, Inc. (collectively

“Toyobo”), individual defendants Thomas Bachner, Jr. and Richard

Davis, and others1 alleging violations of the False Claims Act

(“FCA”), 31 U.S.C. §§ 3729-3733, as well as common law claims, in

connection with the sale of allegedly defective body armor.

Bachner has moved for several forms of relief. He seeks to file

a counterclaim against the United States asserting malicious

prosecution, tortious interference with contracts, unlawful

investigatory and litigation tactics, invasion of privacy, and

submission of false statements and documents by the Department of

Justice attorneys in federal courts; the appointment of an

1
The government has settled its claims against Second Chance
Body Armor, Inc. and related entities (collectively “Second
Chance”), Karen McCraney and James McCraney.
 - 2 -

independent investigator; suspension of the current scheduling

order; sanctions against the government; and reconsideration of

the order denying his motion to transfer venue to the Western

District of Michigan. The government opposes and moves to strike

or dismiss the counterclaim under Federal Rule of Civil Procedure

12(b)(1) for lack of subject matter jurisdiction and Rule

12(b)(6) for failure to state a claim for which relief can be

granted, and to strike the counterclaim under Rule 12(f).

Because the counterclaim is barred by sovereign immunity,

leave to add the counterclaim will be denied and the government’s

motion to dismiss or strike it will be granted. Because

appointing an independent investigator is neither authorized nor

warranted, there is no good cause to suspend the scheduling

order, there has been no sanctionable conduct by the government,

and Bachner has not demonstrated that justice requires

reconsidering a change of venue, Bachner’s remaining requests for

relief will be denied.

BACKGROUND

The background of this case is set forth fully in United

States ex rel. Westrick v. Second Chance Body Armor, Inc., 685 F.

Supp. 2d 129, 132-33 (D.D.C. 2010). Briefly, the government’s

amended complaint filed on September 19, 2005 alleges that Second

Chance and Toyobo contracted for Toyobo to supply Second Chance

with the synthetic fiber “Zylon” for use in manufacturing Second
 - 3 -

Chance bulletproof vests. Id. at 132-33. The government

purchased the vests both through the General Service

Administration’s Multiple Award Schedule contracting program and

directly from Second Chance or from Second Chance distributors.

(Am. Compl. ¶¶ 28-31.) Zylon deteriorated more quickly than

expected, and the government alleges that Second Chance and

Toyobo knew about the prospect of accelerated degradation while

continuing to sell the vests and concealed that information from

the government. Westrick, 685 F. Supp. 2d at 132.

In February 2006, Bachner through counsel filed an answer to

the government’s amended complaint stating no counterclaims.

(Def. Bachner’s Answer to Am. Compl.) Years later, individual

defendants Bachner, Davis, and the McCraneys, by then pro se,

moved to transfer venue, arguing that continuing to defend the

suit in this district would impose on them financial hardship and

inconvenience. The motion to transfer venue was denied because

the defendants failed to show that the transfer was in the

interests of justice. United States ex rel. Westrick v. Second

Chance Body Armor, Inc., 771 F. Supp. 2d 42, 44 (D.D.C. 2011).

In September 2011, Bachner docketed a filing stating a

counterclaim against the United States alleging prosecutorial

misconduct during the ongoing investigation of Second Chance and

the individual defendants under the FCA and moving for various

forms of relief. (Mem. Facts in Support of Def. Bachner Jr.’s
 - 4 -

Counterclaim (“Def.’s Mem.”) at 2.) In particular, Bachner moves

for the appointment of an independent investigator to examine the

government’s alleged misconduct, suspension of the scheduling

order to allow the investigator to proceed, and sanctions against

the government for lack of disclosure, misrepresentations, and

unfair settlement practices. (Id. at 1-3, 29-30.) Bachner seeks

$2.75 million dollars in damages for lost employment, $700,000

for legal fees, punitive damages, and summary dismissal. (Id. at

30.) Finally, Bachner asks that the order denying transfer of

venue to the Western District of Michigan be reconsidered “in the

interests of justice.” (Id. at 31.)

The government argues that leave to add the counterclaim

should be denied or the counterclaim should be stricken or

dismissed because it is untimely filed, is not compulsory, is

futile as barred by sovereign immunity, fails to state a claim

upon which relief can be granted, and is insufficient as a matter

of law. (Gov’t Mem. in Supp. of Their Mot. to Strike and/or

Dismiss the Counterclaim (“Gov’t Mem.”) at 3, 15.) In addition,

the government opposes appointing an independent investigator for

lack of statutory authority (id. at 28-29), imposing sanctions as

barred by sovereign immunity and unwarranted in any event (id. at

29-42), and reconsidering transferring venue because it is

untimely and Bachner alleges no new grounds to consider. (Id. at

42.)
 - 5 -

DISCUSSION

I. LEAVE TO ADD COUNTERCLAIM

Generally, “[a] pleading must state as a counterclaim any

claim that -- at the time of its service -- the pleader has

against an opposing party[.]” Fed. R. Civ. P. 13(a). Two rules

govern adding a counterclaim after the initial pleadings have

been filed. Rule 15(a) grants discretion to the court to grant

leave to file a counterclaim to a party who omitted the

counterclaim from the original responsive pleading when the

opposing party does not consent. Rule 13(e) vests discretion in

the court to allow the counterclaim if the claim accrued to a

party after the earlier pleading was filed.2 See Montecatini

Edison, S.P.A. v. Ziegler, 486 F.2d 1279, 1282 n.9 (D.C. Cir.

1973); Fed. R. Civ. P. 13(e), 15(a)(2).

Bachner filed his initial pleading -- his answer -- through

counsel in February 2006. Portions of Bachner’s pro se

counterclaim, filed in September 2011, pertain to events which

occurred before he filed his answer in February 2006 and could be

2
Omitted counterclaims which should have been filed in
responsive pleadings were formerly considered under Federal Rule
of Civil Procedure 13(f), as is reflected in the Montecatini
Edison case. However, since the 2009 Rules amendments, “the
decision whether to allow an amendment to add an omitted
counterclaim is governed exclusively by Rule 15.” 6 Charles A.
Wright, et al., Federal Practice and Procedure § 1430 (3d ed.
2012) (referring to Fed. R. Civ. P. 13 advisory committee’s note
(2009 Amendments)). Since Bachner filed his counterclaim in
2011, Rule 15 governs.
 - 6 -

construed under Rule 15 as omitted claims. Bachner’s pre-answer

claims allege malicious prosecution (see Def.’s Mem. at 9-11

(citing the government’s choice to prosecute the Second Chance

executives in September 2005)), and tortious interference with

contract (see Def.’s Mem. at 12-13 (alleging interference with

Bachner’s employment in July and September 2005)). Bachner’s

other claims allege events from 2006 to 2010 during the FCA

investigation and litigation: unlawful litigation tactics (see

Def.’s Mem. at 14 (citing placing Bachner and other defendants on

the General Services Administration’s (“GSA’s”) Excluded Parties

Listing System in August 2006)); invasion of privacy (see Def.’s

Mem. at 20-22 (citing investigations in September 2008)) and

malicious prosecution (see Def.’s Mem. at 15-16, 26-29 (citing

vindictive “persecution” in April 2008, intimidation and threats

in June 2008, improper settlement tactics in April 2009, failure

to supervise in May 2010 and bad faith litigation tactics in July

2010)). They could be construed under Rule 13(e) as claims which

accrued during this litigation.

A. Omitted counterclaims

Under Rule 15(a), Bachner can add an omitted counterclaim

now “only with the opposing party’s written consent or the

court’s leave. The court should freely give leave when justice

so requires.” Fed. R. Civ. P. 15(a)(2). The decision to grant

or deny leave to amend is within the court’s discretion. Garnes-
 - 7 -

El v. District of Columbia, 841 F. Supp. 2d 116, 123 (D.D.C.

2012) (citing Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.

Cir. 1996)). A court should “determine the propriety of

amendment on a case by case basis, using a generous standard[,]”

Harris v. Sec’y, U.S. Dep’t of Veterans Affairs, 126 F.3d 339,

344 (D.C. Cir. 1997), and pro se complaints should be construed

with “special liberality.” Kaemmerling v. Lappin, 553 F.3d 669,

677 (D.C. Cir. 2008).

Undue delay, undue prejudice to the defendant or futility of

the proposed amendment are factors that may warrant denying leave

to amend. Richardson v. United States, 193 F.3d 545, 548-49

(D.C. Cir. 1999) (holding that the motion to amend should be

granted “in the absence of undue delay, bad faith, undue

prejudice to the opposing party, repeated failure to cure

deficiencies, or futility”); Smith v. Café Asia, 598 F. Supp. 2d

45, 47 (D.D.C. 2009) (citing Atchinson v. District of Columbia,

73 F.3d 418, 425 (D.C. Cir. 1996)).

A district court may deny a motion to amend a pleading as

futile if the amended pleading would not survive a motion to

dismiss. In re Interbank Funding Corp. Sec. Litig., 629 F.3d

213, 218 (D.C. Cir. 2010); see also Truesdale v. United States

Dep’t of Justice, No. 12-5012, 2012 WL 3791281, at *1 (D.C. Cir.

Aug. 15, 2012). In a motion to dismiss for lack of subject

matter jurisdiction under Rule 12(b)(1), the counterclaimant
 - 8 -

bears the burden to establish that the court has jurisdiction.

United States v. Intrados/Int’l Mgmt. Grp., 277 F. Supp. 2d 55,

59 (D.D.C. 2003); Felter v. Norton, 412 F. Supp. 2d 118, 122

(D.D.C. 2006). In reviewing the motion, a court accepts as true

all of the factual allegations contained in the pleading, Hill v.

United States, 562 F. Supp. 2d 131, 134 (D.D.C. 2008) (citing

Artis v. Greenspan, 158 F.3d 1301, 1306 (D.C. Cir. 1998)), and

may also consider “‘undisputed facts evidenced in the record.’”

Hill, 562 F. Supp. 2d at 134 (quoting Coal. for Underground

Expansion v. Mineta, 333 F.3d 193, 198 (D.C. Cir. 2003)). The

“‘nonmoving party is entitled to all reasonable inferences that

can be drawn in her favor.’” Hill, 562 F. Supp. 2d at 134

(quoting Artis, 158 F.3d at 1306).

“The United States, as sovereign, is immune from suit absent

its explicit consent to be sued.” Escarria-Montano v. United

States, 797 F. Supp. 2d 21, 24 (D.D.C. 2011) (citing Lehman v.

Nakshian, 453 U.S. 156, 160 (1981)). “A waiver of ‘sovereign

immunity must be unequivocally expressed in statutory text’ and

will be ‘strictly construed, in terms of its scope, in favor of

the sovereign.’” El–Shifa Pharm. Indus. Co. v. United States,

402 F. Supp. 2d 267, 270 (D.D.C. 2005) (quoting Lane v. Pena, 518

U.S. 187, 192 (1996)). The text of Rule 13(d) carefully

preserves the application of sovereign immunity in stating that

“[t]hese rules do not expand the right to assert a
 - 9 -

counterclaim . . . against the United States[.]” Fed. R. Civ. P.

13(d).

Bachner’s tort claims suggest an examination of the Federal

Tort Claims Act (“FTCA”) for any applicable waiver of the

government’s immunity here. The FTCA provides a waiver of

sovereign immunity in civil actions based on “injury or loss of

property, or personal injury or death caused by the negligent or

wrongful act or omission of any employee of the Government while

acting within the scope of his office or employment[.]” 28

U.S.C. § 1346(b)(1); see also Hayes v. United States, 539 F.

Supp. 2d 393, 397 (D.D.C. 2008). The burden of proof lies on the

party bringing suit to show that the government has unequivocally

waived its immunity. Tri-State Hosp. Supply Corp. v. United

States, 341 F.3d 571, 575 (D.C. Cir. 2003).

The D.C. Circuit has affirmed that “suits for damages

against the United Statues under the . . . Constitution and . . .

under the common law must be brought pursuant to the limited

waiver of sovereign immunity in the FTCA, which requires that the

claimant have exhausted his administrative remedies before filing

suit.” Benoit v. U.S. Dep’t Agric., 608 F.3d 17, 20 (D.C. Cir.

2010) (citing McNeil v. United States, 508 U.S. 106, 113 (1993),

and citing other sources). The district court “‘lacks subject

matter jurisdiction over common law tort claims against the

United States for which a plaintiff has not exhausted his
 - 10 -

administrative remedies.’” Hill, 562 F. Supp. 2d at 134 (quoting

Hayes, 539 F. Supp. 2d at 398-99). To satisfy the administrative

exhaustion requirements, a claimant must first file “(1) a

written statement sufficiently describing the injury to enable

the agency to begin its own investigation, and (2) a sum-certain

damages claim.” GAF Corp. v. United States, 818 F.2d 901, 919

(D.C. Cir. 1987) (referring to 28 U.S.C. § 2675); see also Bowden

v. United States, 106 F.3d 433, 441 (D.C. Cir. 1997) (applying

the same requirements). After presentment of the claim, the

claim must be finally denied in writing by the relevant federal

agency. Simpkins v. District of Columbia Gov’t, 108 F.3d 366,

370 (D.C. Cir. 1997) (citing 28 U.S.C. § 2675(a)). The FTCA has

a two-year statute of limitations by which the claimant must have

formally brought the claim to the agency. 28 U.S.C. § 2401(b).

Furthermore, the waiver of sovereign immunity specifically does

not apply to claims for interference with contract rights. See

28 U.S.C. § 2680(h); Art Metal-U.S.A., Inc., v. United States,

753 F.2d 1151, 1154-55 (D.C. Cir. 1985).

In this case, Bachner’s claims for tortious interference

with employment contracts cannot be sustained under the FTCA due

to the explicit exception in 28 U.S.C. § 2680(h). With regard to

his remaining pre-answer claim of malicious prosecution3, Bachner

3
Courts have generally barred malicious prosecution
counterclaims against the United States on sovereign immunity
grounds. United States v. Chilstead Bldg. Co., Inc., 18 F. Supp.
 - 11 -

has not carried his burden of showing that he complied with the

FTCA’s exhaustion requirements. Bachner asserts that all of his

complaints were initially filed with the Department of Justice

Office of Professional Responsibility in a letter on February 14,

2011. (Def.’s Mem. at 2.) However, Bachner provides neither a

copy of the letter nor any evidence that this letter satisfied

the “sum-certain” administrative presentment requirement of

informing the Justice Department of the amount of damages he

sought.

Even assuming that his letter on February 14, 2011 satisfied

the administrative presentment requirement, both the alleged

interference with Bachner’s employment in 2005 and malicious

prosecution of the individual defendants in 2005 occurred before

February 14, 2009, beyond the two-year FTCA statute of

limitations. Because Bachner did not complain of these actions

within the two-year period after they arose, he has lost the

opportunity to allege them in a counterclaim.

Because Bachner has failed timely to assert and exhaust

under the FTCA claims for events occurring before he filed his

answer, the court lacks subject matter jurisdiction over those

claims and will deny leave to file them in a counterclaim.

2d 210, 213 (N.D.N.Y. 1998); United States ex rel. Lazar v.
Worldwide Fin. Servs., Inc., 2007 WL 4180718, at *3 (E.D. Mich.
Nov. 26, 2007).
 - 12 -

B. Matured or after-acquired counterclaims

Under Rule 13(e), counterclaims which matured or were

acquired after the pleading may be asserted through supplemental

pleading in the court’s discretion. Fed. R. Civ. P. 13(e); see

Law Offices of Jerris Leonard, P.C. v. Mideast Sys., Ltd., 111

F.R.D. 359, 362 (D.D.C. 1986) (stating that “Rule 13(a) does not

bar a party from later raising a compulsory counterclaim that

matured after the original pleading”). In deciding whether to

allow a counterclaim under this rule, a court typically considers

whether the case has proceeded to the point that allowing the

counterclaim would cause confusion, delay, complication, or

hardship. 6 Wright et al., Federal Practice and Procedure § 1428

(3d ed. 2012); see also Index Fund, Inc. v. Hagopian, 91 F.R.D.

599, 606 (S.D.N.Y. 1981).

Bachner’s post-answer claims include invasion of privacy and

malicious prosecution. Bachner’s privacy claim arises from a

Treasury agent’s alleged harassment and intimidation of Bachner

and his family in September 2008. Bachner’s claims of malicious

prosecution are based on alleged events occurring before

February 14, 2009, including placing him on GSA’s excluded

parties list in August 2006, vindictive “persecution” in April

2008, and intimidation and threats in June 2008. All are barred

by sovereign immunity as beyond the FTCA statute of limitations.
 - 13 -

Because Bachner’s claims are based on actions before February 14,

2009 and he has not satisfied administrative exhaustion

requirements, he may not allege them in a counterclaim.

Bachner’s malicious prosecution claims based on allegations

after February 14, 2009, including improper settlement tactics in

April 2009, failure to supervise in May 2010 and bad faith

litigation tactics in July 2010, are not similarly time-barred.

Allowing the claims nevertheless would be futile. Sovereign

immunity bars them since Bachner has not shown that he has

satisfied his exhaustion requirement of making a sum-certain

demand. Moreover, the claims would not survive a motion to

dismiss. Under District of Columbia law, a plaintiff must prove

four elements of malicious prosecution: “(1) that the underlying

suit terminated in plaintiff's favor; (2) malice on the part of

the defendant; (3) lack of probable cause for the underlying

suit; and (4) special injury occasioned by the plaintiff as the

result of the original action.” Nader v. Democratic Nat’l Comm.,

567 F.3d 692, 697 (D.C. Cir. 2009) (citing Morowitz v. Marvel,

423 A.2d 196, 198 (D.C. 1980)). Since this suit has not

terminated in his favor, these remaining malicious prosecution

claims are premature and cannot be added under Rule 13(e). See

United States ex rel. Head v. Kane Co., 668 F. Supp. 2d 146, 156

(D.D.C. 2009) (finding that a counterclaim for malicious

prosecution is premature when the current FCA action has not yet
 - 14 -

been decided); Harris v. Steinem, 571 F.2d 119, 124 (2d Cir.

1978) (noting that it is well settled that a claim for malicious

prosecution, “which arises out of the bringing of the main

action, generally cannot be asserted either as a compulsory or a

permissive counterclaim, since such a claim is premature prior to

the determination of the main action”).

II. MOTION FOR THE APPOINTMENT OF AN INDEPENDENT INVESTIGATOR

Bachner asks the court to have an independent investigation

launched into the Department of Justice’s Second Chance FCA

investigation. (Def.’s Mem. at 29.) To do so while Justice’s

investigation is ongoing and this litigation is pending would

risk judicial imprudence. But even if it did not, Bachner has

provided no authority in law for the court to even be able to do

what he asks. If Bachner’s request for the appointment of an

independent investigator is intended as a request to appoint an

independent counsel or special prosecutor under the Ethics in

Government Act, 28 U.S.C. §§ 591-599, it is unavailing. Although

the “central purpose of the special prosecutor provisions of the

Ethics Act is to permit the effective investigation and

prosecution of high level government and campaign officials[,]”

United States v. Wilson, 26 F.3d 142, 148 (D.C. Cir. 1994), it is

well settled that a private citizen lacks standing to seek

appointment of a special prosecutor under this Act. See Sargeant

v. Dixon, 130 F.3d 1067, 1069 (D.C. Cir. 1997) (citing In re
 - 15 -

Kaminski, 960 F.2d 1062 (D.C. Cir. 1992)); see also In re Visser,

968 F.2d 1319, 1324 (D.C. Cir. 1992) (finding that a private

citizen does not have the power to compel the Attorney General to

investigate allegations and apply for appointment of independent

counsel). The Act provides that it is the “‘Attorney General

[who] shall apply to the division of the court for the

appointment of an independent counsel[.]’” Kaminski, 960 F.2d at

1062 (quoting 28 U.S.C. § 592(c)(1)).

Because granting Bachner’s request would be inappropriate,

and Bachner presents no authority to grant it in any event, his

motion for an independent investigator will be denied.

III. MOTION FOR SANCTIONS

Bachner seeks sanctions against the government based on

“prosecutorial misconduct” and “vexatious, malicious conduct and

malfeasance.” (Def.’s Mem. at 31.) There are three relevant

sources of the court’s sanction power -- Rule 11, Rule 37, and

the court’s inherent power. Rule 11 sanctions are appropriate

where a party files a pleading, motion or other paper with the

court for an improper purpose, that is unwarranted by existing

law, or that is lacking in evidentiary support. Fed. R. Civ. P.

11(b)(1)-(4); see Westmoreland v. CBS, Inc., 770 F.2d 1168, 1174

(D.C. Cir. 1985); Ali v. Tolbert, 636 F.3d 622, 626 (D.C. Cir.

2011). The court is accorded broad discretion to impose

sanctions under Rule 11. Westmoreland, 770 F.2d at 1174.
 - 16 -

Discovery sanctions are appropriate under Rule 37(b)(2)(A)

where a party fails to obey a discovery order. Fed. R. Civ. P.

37(b)(2)(A). Rule 37 sanctions are committed to the discretion

of the district court. Bond v. District of Columbia, 93 F.3d

801, 807 (D.C. Cir. 1996). “The central requirement of Rule 37

is that ‘any sanction must be just.’” Id. (quoting Insurance

Corp. V. Compagnie des Bauxites de Guinée, 456 U.S. 694, 707

(1982)).

Finally, the district court is afforded inherent power to

sanction parties for bad faith conduct. Chambers v. NASCO, Inc.,

501 U.S. 32, 44, 50 (1991). In order to sanction conduct under

this authority, the court must find, by clear and convincing

evidence, that a party “committed sanctionable misconduct that is

tantamount to bad faith.” Ali, 636 F.3d 622, 627; see also

United States v. Wallace, 964 F.2d 1214, 1219 (D.C. Cir. 1992)

(stating that “it is settled that a finding of bad faith is

required for sanctions under the court's inherent powers”).

While Bachner argues numerous grounds for sanctions against

the government, he asserts only two claims which could be

potentially redressed by sanctions under the law. He alleges

that the government lawyers made false statements to this court

in August 2010 concerning the settlement between Second Chance

and the United States. (Def.’s Mem. at 23-24.) He also argues

that, despite the unsealing of grand jury investigation materials
 - 17 -

involving this case, the government has failed to “release all

the federal agent investigatory notes[.]” (Def.’s Mem. at 19.)

The government responds that the statements were true and that

the notes are protected from disclosure under the work product

privilege. (Gov’t Mem. at 30, 39-40.)

Bachner’s allegations do not warrant imposing sanctions

against the government. Rule 11 reaches written representations

in a “pleading, written motion or other paper[,]” Fed. R. Civ.

P. 11(b), not the oral representations of which Bachner

complains. Bachner has shown no violation by the government of

any discovery order compelling production of agents’ notes, nor

has he shown any basis for disregarding the asserted work product

privilege. Finally, Bachner has not established sanctionable bad

faith government conduct. Bachner’s motion for sanctions will be

denied.

IV. MOTION FOR RECONSIDERATION

Bachner moves for reconsideration of this court’s order

denying the defendants’ motion to transfer venue to the Western

District of Michigan. Federal Rule 54(b) governs motions for

reconsideration of interlocutory decisions. Scott v. District of

Columbia, 246 F.R.D. 49, 51 (D.D.C. 2007) (citing Cobell v.

Norton, 224 F.R.D. 266, 271 (D.D.C. 2004)). Interlocutory orders

may be revised “at any time before the entry of a judgment

adjudicating all the claims and all the parties’ rights and
 - 18 -

liabilities.” Fed. R. Civ. P. 54(b). Under Rule 54, a court may

reconsider an interlocutory decision “as justice requires.”

Capitol Sprinkler Inspection, Inc. v. Guest Servs., Inc., 630

F.3d 217, 227 (D.C. Cir. 2011) (internal citation and quotation

marks omitted). Under this standard, reconsideration may be

warranted where the court has “‘patently misunderstood the

parties, made a decision beyond the adversarial issues presented,

made an error in failing to consider controlling decisions or

data, or [where] a controlling or significant change in the law

has occurred.’” Arias v. DynCorp, 856 F. Supp. 2d 46, 52 (D.D.C.

2012) (quoting Negley v. F.B.I., 825 F. Supp. 2d 58, 60 (D.D.C.

2011)). The burden is on the moving party to show that

reconsideration is appropriate and that harm or injustice would

result if reconsideration were denied. Husayn v. Gates, 588 F.

Supp. 2d 7, 10 (D.D.C. 2008). A court may deny a motion for

reconsideration when it raises “‘arguments for reconsideration

the court ha[s] . . . already rejected on the merits.’”

McLaughlin v. Holder, Civil Action No. 11-1868 (RWR), 2012 WL

1893627, at *6 (D.D.C. May 25, 2012) (quoting Capitol Sprinkler

Inspection, Inc., 630 F.3d at 227).

Bachner does not assert that the order denying transfer of

venue is based on a misunderstanding, reached an issue not

presented by the parties, failed to consider controlling law or

facts, or has been affected by a fundamental change in the law.
 - 19 -

His makes a bare, unsupported request for a “re-evaluation of the

Change of Venue Motion, to the Western District of Michigan, in

the interests of justice.” (Def.’s Mem. at 31.) There being no

good cause shown for the request, it will be denied.

CONCLUSION AND ORDER

Allowing Bachner’s counterclaim would be futile. Suspending

the scheduling order to permit an unauthorized appointment of an

independent investigator is not warranted. No basis for

sanctions against the government or reconsideration of the order

denying a venue transfer has been presented. Accordingly, it is

hereby

ORDERED that leave for Bachner to file a counterclaim be and

hereby is, DENIED. It is further

ORDERED that Bachner’s motion [254] for appointment of an

independent investigator, for suspension of the current

scheduling order, for sanctions, and for reconsideration of the

order denying a transfer of venue be, and hereby is, DENIED. It

is further

ORDERED that the government’s motion [257] to dismiss and/or

strike Bachner’s counterclaim be, and hereby is, GRANTED.

SIGNED this 30th day of September, 2012.

/s/
RICHARD W. ROBERTS
United States District Judge