UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
JOHNATHAN MANUEL DEMERY, )
et al., )
Plaintiffs, )
)
v. ) Civil Action No. 08-1304 (RWR)
)
MONTGOMERY COUNTY, MARYLAND, )
et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiffs Jonathan Demery, Tijuana1 Demery, and Wayne Mabry
bring this action against Detective Katherine Fumagalli and
Montgomery County, Maryland, alleging federal and state
constitutional violations and several common law torts arising
out of Johnathan Demery’s arrest and confinement. The defendants
have moved to dismiss certain counts for failure to state a
claim, or to transfer this case to the United States District
Court for the District of Maryland. Because the defendants have
not shown that transfer is proper, their motion to transfer will
be denied. Because the plaintiffs have adequately pled causes of
action for a federal constitutional violation, and governmental
immunity does not bar plaintiffs’ claims of false arrest and
negligence, but plaintiffs have conceded dismissal of the claim
1
Plaintiff’s name is spelled “Tijuana” in the caption of
the complaint, but spelled “Pijuana” in the body of the
complaint.
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under Article 24 of the Maryland Constitution and Montgomery
County is immune from the plaintiffs’ claim of malicious
prosecution under Maryland law, the defendants’ motion for
partial dismissal will be granted in part and denied in part.
BACKGROUND
On June 21, 2007, three men assaulted Mark Tobias in
Bethesda, Maryland, and stole his car. (Compl. ¶ 6.) Tobias
described one of the three men who assaulted him as being 5'10"
to 5'11" in height, black, weighing 200 pounds, and wearing dark
knee-length shorts, a dark hooded sweatshirt and Adidas brand
tennis shoes. (Compl. ¶ 7.) Fumagalli, a Montgomery County
police detective, was assigned to be the lead detective on the
case. On June 22, 2007, Montgomery County detectives recovered
Tobias’ car parked in an alley located at 10th and Monroe Streets
N.W., in Washington D.C. (Compl. ¶¶ 8-9.) On June 26, 2007,
Fumagalli and Detective David Davis saw Johnathan Demery
(“Johnathan”) standing near the intersection of 10th Street and
Spring Road N.W. The detectives photographed Johnathan, and
asked him for his name, address, date of birth, social security
number, and the name of the high school he attended. Johnathan
provided the officers with the information they requested.
(Compl. ¶¶ 10-11.)
On June 27, 2007, Detective Fumagalli applied to the
Montgomery County District Court for an arrest warrant charging
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Johnathan with the felony of carjacking. In the affidavit
supporting the application, Fumagalli alleged that:
On Tuesday June 26, 2007, detectives from the
Montgomery County Police, Robbery Section responded to
the area of 10th and Monroe where the vehicle was
recovered. Located nearby at the Raymond Rec Center
was a group of males matching the above suspect [sic]
description. Specifically, one male in the group was
observed to closely match the surveillance video image
of suspect #1. Metropolitan Police was [sic] contacted
and the group was Field Interviewed. [Johnathan]
Demery was identified by his District of Columbia
driver’s license. Demery can be identified as the
suspect in the surveillance images, was wearing tennis
shoes identical to the ones in the surveillance images,
and was located only a few blocks from the location
where the stolen vehicle was recovered, and provided an
address which was only one block from the rec center
where he was identified. Demery’s physical description
matches that provided by the victim and when viewed, he
matches the images on the surveillance tape.
(Compl. ¶ 11.) Johnathan was arrested and questioned in a
recorded interview on June 27, 2007, and said he was at home with
his parents and siblings at the time of the carjacking. He was
held at a jail in the District of Columbia until July 3, 2007,
when Fumagalli transported him to Montgomery County, Maryland.
She questioned him and he again maintained his innocence. On
July 4, 2007, Johnathan was released on a bond for which Tijuana
Demery and Wayne Demery paid a bondsman $1,500. (Compl. ¶¶ 15-
18.) On July 27, 2007, the county prosecutor declined to
prosecute Johnathan for the carjacking. (Compl. ¶ 18.)
The plaintiffs allege that several of Fumagalli’s assertions
in her affidavit were knowingly false and misleading or
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demonstrated a reckless disregard for the truth, that Fumagalli
lacked probable cause to believe that Johnathan participated in
the carjacking and assault of Tobias, and that she failed to
determine before and after his arrest whether Johnathan had a
legitimate alibi. (Compl. ¶¶ 13-14.) The complaint alleges
seven counts against the defendants: unlawful arrest and
detention in violation of the Fourth Amendment under 42 U.S.C.
§ 1983 (Count 1); malicious prosecution under 42 U.S.C. § 1983
(Count 2); unconstitutional search and seizure of the plaintiffs’
home and cell phones in violation of the Fourth Amendment under
42 U.S.C. § 1983 (Count 3); common law malicious prosecution
(Count 4); common law false arrest and imprisonment (Count 5);
unreasonable arrest and search in violation of Articles 24 and 26
of Maryland’s Constitution (Count 6); and negligence under the
common law of the District of Columbia (Count 7). (Compl. ¶¶ 23-
33.)
The defendants move to transfer this case to the United
States District Court for the District of Maryland. (See Defs.’
Mot. to Change Venue.) Alternatively, the defendants move to
dismiss Count 2 of the complaint, Counts 4, 5, and 7 against
Montgomery County, and all claims in Count 6 that arise under
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Article 24 of the Maryland Constitution.2 (See Defs.’ Mot. for
Partial Dismissal at 1-2.)
DISCUSSION
I. TRANSFER
A case may be transferred to another venue under 28 U.S.C.
§ 1404(a) “[f]or the convenience of parties and witnesses, in the
interest of justice[.]” 28 U.S.C. § 1404(a). See also Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981). The moving
party carries the burden of demonstrating that a transfer is
warranted. Montgomery v. SGT Int’l, Inc., 532 F. Supp. 2d 29, 32
(D.D.C. 2008); Onyeneho v. Allstate Ins. Co., 466 F. Supp. 2d 1,
3 (D.D.C. 2006). Because “it is perhaps impossible to develop
any fixed general rules on when cases should be transferred[,]
. . . the proper technique to be employed is a factually
analytical, case-by-case determination of convenience and
fairness.” SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C.
Cir. 1978) (quoting Starnes v. McGuire, 512 F.2d 918, 925
(1974)).
“Any transfer under § 1404(a) is restricted to a venue where
the action ‘might have been brought.’” See 28 U.S.C. § 1404(a);
Robinson v. Eli Lilly Co., 535 F. Supp. 2d 49, 51 (D.D.C. 2008).
2
Plaintiffs concede that they have not pled a cause of
action under Article 24 of the Maryland Constitution. Therefore,
the defendants’ motion to dismiss this portion of the claim will
be granted.
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When, as here, jurisdiction is not based solely on diversity of
citizenship,
[a] civil action . . . may, except as otherwise
provided by law, be brought only in (1) a judicial
district where any defendant resides, if all defendants
reside in the same State, (2) a judicial district in
which a substantial part of the events or omissions
giving rise to the claim occurred, or a substantial
part of property that is the subject of the action is
situated, or (3) a judicial district in which any
defendant may be found, if there is no district in
which the action may otherwise be brought.
28 U.S.C. § 1391(b). Here, Montgomery County is a chartered
county of the State of Maryland and Fumagalli resides in
Maryland. (See Defs.’ Mem. in Supp. of Defs.’ Mot. to Change
Venue at 4.) Therefore, this action could have been brought in
the potential transferee district.
After determining that venue in the proposed transferee
district would be proper, a court then “must weigh in the balance
the convenience of the witnesses and those public-interest
factors of systemic integrity and fairness that, in addition to
[the] private concerns [of the parties], come under the heading
of ‘the interest of justice.’” Stewart Org. Inc. v. Ricoh Corp.,
487 U.S. 22, 30 (1988). The private interest factors that are
typically considered include 1) the plaintiff’s choice of forum,
2) the defendant’s choice of forum, 3) where the claim arose,
4) the convenience of the parties, 5) the convenience of the
witnesses, particularly if important witnesses may actually be
unavailable to give live trial testimony in one of the districts,
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and 6) the ease of access to sources of proof. Montgomery, 532
F. Supp. 2d at 32-33. Public interest factors include 1) the
local interest in making local decisions about local
controversies, 2) the potential transferee court’s familiarity
with the applicable law, and 3) the congestion of the transferee
court compared to that of the transferor court. Akiachak Native
Community v. Dep’t of the Interior, 502 F. Supp. 2d 64, 67
(D.D.C. 2007). When a court balances private and public
interests, a “plaintiff’s choice of forum is ordinarily accorded
deference.” Aftab v. Gonzalez, Civil Action No. 07-2080 (RWR),
2009 WL 368660, at *3 (D.D.C. February 17, 2009); see also
DeLoach v. Phillip Morris Cos., 132 F. Supp. 2d 22, 24 (D.D.C.
2000). When two potentially proper venues are involved, the
plaintiffs’ choice of forum is often accorded substantial
deference, particularly where the plaintiffs have chosen their
home forum and many of the relevant events occurred there. Great
Socialist People’s Libyan Arab Jamahiriya v. Miski, 496 F. Supp.
2d 137, 144-145 (D.D.C. 2007) (citing Reiffin v. Microsoft Corp.,
104 F. Supp. 2d 48, 52 (D.D.C. 2000) (internal citations
omitted)); cf. Hunter v. Johanns, 517 F. Supp. 2d 340, 344
(D.D.C. 2007) (noting that “the strong presumption against
disturbing plaintiff[’s] initial forum choice . . . is weakened
. . . when the forum is not plaintiff’s home forum and most of
the relevant events occurred elsewhere”) (internal quotations and
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citations omitted). Ultimately, if the balance of private and
public interests favors a transfer of venue, then a court may
order a transfer.
A. Private interests
The plaintiffs reside in this forum and have chosen to file
their action here. The defendants have presented no reason to
disturb the substantial deference due to the plaintiffs’ choice
of their home forum. While the defendants argue that the conduct
that gave rise to the action was Fumagalli swearing out a warrant
in Maryland to lead to a prosecution in Maryland,3 the gravamen
of the complaint’s allegations is the actual Fourth Amendment
deprivations which occurred in this district. The search of the
plaintiffs’ house and Johnathan’s arrest and detention took place
in the District of Columbia based upon investigation conducted by
Fumagalli in the District of Columbia. Had Fumagalli stopped at
swearing out the warrant affidavit and not caused the arrest and
search warrants to be executed, this lawsuit would have been
unlikely. And although both of the defendants reside in Maryland
3
The defendants’ reliance on Clark v. Harp, 737 F. Supp.
676 (D.D.C. 1990) is misplaced. In Clark, the court determined
that venue was improper in the District of Columbia because the
plaintiff’s claim did not arise in the District. Here, however,
the plaintiffs have alleged that a substantial part of the events
giving rise to the claim occurred in the District of Columbia,
such as Johnathan’s arrest, his initial confinement in jail, and
the searches and seizure of the plaintiffs’ dwelling. Unlike
Clark, this case is not one where one venue is improper and the
other is proper; venue is proper in the District of Columbia.
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and the evidence of the carjacking is in Maryland, the close
proximity of the district courts in Maryland and the District of
Columbia hardly poses any obstacle to the parties’ appearance
here, the defendants’ ability to present witnesses, or their
access to sources of proof. See Modaressi v. Vedadi, 441 F.
Supp. 2d 51, 57 (D.D.C. 2006) (“the geographic distance between
this Court and . . . the District of Maryland is far too small to
present anything more than minor practical difficulties for the
parties or their witnesses.”) The plaintiffs point out that all
of the witnesses to this action are within the 100-mile
geographical area to which subpoena power extends. The balance
of private interests favors this district.
B. Public interests
The facts here may strain the notion that there are two
disparate localities with disparate interests in making decisions
about this controversy, since the events occurred in contiguous
local jurisdictions which enjoy seamless and constant cross-
border interactions. It may be true that the conduct of a
Maryland detective investigating a Maryland carjacking may carry
greater interest in Maryland, but her triggering an arrest and
detention in this district of a resident of this district and a
search of plaintiffs’ home here would carry no less interest
here. Some claims will be governed by Maryland law, while others
will be governed by D.C. law. The rest will be governed by
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federal law, with which both districts’ federal courts are
presumed to be equally familiar. Al-Ahmed v. Chertoff, 564 F.
Supp. 2d 16, 20 (D.D.C. 2008) (stating that both federal courts
are “equally familiar” with federal law). The defendants did not
present evidence regarding the relative congestion of the
different courts. The balance of public interests does not tilt
in favor of transfer.
The defendants have not carried their burden of
demonstrating that the public and private interests favor
transfer. At most, the defendants have shown why they believe
that the District of Maryland is a slightly more convenient forum
for them, a showing that is insufficient to nullify the deference
due to the plaintiffs’ choice of forum. See Miski, 496 F. Supp.
2d at 145. The defendants’ motion to transfer venue will be
denied.
II. MOTION FOR PARTIAL DISMISSAL
The defendants move under Fed. R. Civ. P. 12(b)(6) to
dismiss Count 2 of plaintiffs’ complaint, as well as claims
against Montgomery County in Counts 4, 5, and 7. Rule 12(b)(6)
authorizes dismissal of a complaint when a plaintiff fails to
state a claim upon which relief can be granted. See Fed. R. Civ.
P. 12(b)(6). In order to survive a motion to dismiss under Rule
12(b)(6), the allegations stated in the contested portion of the
plaintiff’s complaint “must be enough to raise a right to relief
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above the speculative level[.]” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). The complaint must be construed in the
light most favorable to the plaintiff and “the court must assume
the truth of all well-pleaded allegations.” Warren v. District
of Columbia, 353 F.3d 36, 39 (D.C. Cir. 2004). If a plaintiff
fails to allege sufficient facts to support a claim, that claim
must be dismissed. See Twombly, 550 U.S. at 555-556.
A. Count 2: malicious prosecution under 42 U.S.C. § 1983
The defendants argue that Count 2 should be dismissed
because there is no “independent” cause of action for malicious
prosecution under 42 U.S.C. § 1983. To state a proper claim
under § 1983, a plaintiff must allege (1) that the defendant was
acting under color of state law when the defendant committed the
actions the plaintiff complains of, and (2) that the defendant
deprived the plaintiff of a right, privilege, or immunity
protected by the Constitution or laws of the United States. See
LaRouche v. Fowler, 152 F.3d 974, 988 (D.C. Cir. 1998); Ennis v.
Lott, 589 F. Supp. 2d 33, 37 (D.D.C. 2008); Johnson v. Lewis,
Civil Action No. 06-22 (RWR), 2006 WL 2687017, at *3 (D.D.C.
September 19, 2006). According to the defendants, there is no
federal right to be free from malicious prosecution, so
plaintiffs fail to allege the second element of the two elements
necessary to state a claim under § 1983. However, contrary to
the defendants’ assertion, the D.C. Circuit recently “join[ed]
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the large majority of circuits in holding that malicious
prosecution is actionable under 42 U.S.C. § 1983 to the extent
that the defendant’s actions cause the plaintiff to be
unreasonably ‘seized’ without probable cause, in violation of the
Fourth Amendment.” Pitt v. Dist. of Columbia, 491 F.3d 494, 510
(D.C. Cir. 2007). Here, plaintiffs allege that the defendants’
malicious prosecution of Johnathan led to the unreasonable
seizure of his person (see Compl. ¶ 20), thereby alleging a
cognizable claim under Pitt. The defendants’ motion to dismiss
Count 2 will be denied.4
B. Counts 4, 5, and 7: state tort claims
The defendants move to dismiss plaintiffs’ state law claims
of false arrest and imprisonment, malicious prosecution, and
negligence brought against Montgomery County in Counts 4, 5,
and 7 based upon the argument that Montgomery County would be
entitled to governmental immunity from these claims under
4
In their reply brief, the defendants also argue that Count
2 should be dismissed because it is “duplicative” of Count 1 of
the complaint. Because this argument was raised for the first
time in their reply brief, it will not be considered. See
Presbyterian Med. Ctr. of the Univ. of Pa. Health Sys. v.
Shalala, 170 F.3d 1146, 1152 (D.C. Cir. 1999) (stating that a
court need not consider an argument first raised in a reply
brief); D.L. v. District of Columbia, 450 F. Supp. 2d 11, 20 n.6
(D.D.C. 2006) (“Defendants should have included this argument in
their motion to dismiss, rather than waiting to raise it in their
Reply.”).
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Maryland law. Plaintiffs oppose and argue that District of
Columbia law would apply and would not afford immunity.5
Both parties agree that the District of Columbia’s choice of
law rules will apply. See Robinson, 535 F. Supp. at 53; Mastro
v. Potomac Elec. Power Co., 447 F.3d 843, 857 (D.C. Cir. 2006)
(applying District of Columbia choice of law rules to plaintiff’s
claims because “[w]hen deciding state-law claims under . . .
supplemental jurisdiction, federal courts apply the choice-of-law
rules of the jurisdiction in which they sit”) (internal citations
omitted). The District of Columbia’s highest court has explained
that
[i]n determining which jurisdiction’s law to apply in a
tort case, we use the “governmental interests”
analysis, under which we evaluate the governmental
policies underlying the applicable laws and determine
which jurisdiction’s policy would be more advanced by
the application of its law to the facts of the case
under review. [In order to determine which
government’s interest is strongest] we also consider
the four factors enumerated in the Restatement (Second)
of Conflict of Laws § 145 [1971]: (a) the place where
the injury occurred; (b) the place where the conduct
causing the injury occurred; (c) the domicile,
residence, nationality, place of incorporation and
5
The defendants appear to concede that under District of
Columbia law, Montgomery County would not be entitled to
dismissal based upon governmental immunity. (See Defs.’ Mem. in
Supp. of Mot. for Partial Dismissal at 8 n.3.) In addition,
plaintiffs concede that Montgomery County would be entitled to
dismissal of the state common law tort claims under Maryland law.
(See Pls.’ Mem. in Supp. of Pls.’ Opp’n to Mot. for Partial
Dismissal at 7.) A court may base its analysis upon such
concessions by parties. Jacobsen v. Oliver, 555 F. Supp. 2d 72,
77 (D.D.C. 2007), citing CSX Transp., Inc. v. Commercial Union
Ins. Co., 82 F.3d 478, 482-83 (D.C. Cir. 1996).
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place of business of the parties; and (d) the place
where the relationship is centered. . . . When both
jurisdictions have an interest in applying their own
laws to the facts of the case, the forum law will be
applied unless the foreign jurisdiction has a greater
interest in the controversy.
Drs. Groover, Christie & Merritt v. Burke, 917 A.2d 1110, 1117
(D.C. 2007) (quotation marks and brackets in the original;
citations omitted). Under the District of Columbia’s choice of
law rules, courts are allowed to apply the law of one
jurisdiction to one claim in a case while determining that the
law of another jurisdiction should control another claim in the
same case, a practice known as dépeçage. See Hercules & Co. v.
Shama Restaurant, 566 A.2d 31, 40 (D.C. 1989); Stutsman v. Kaiser
Found. Health Plan, 546 A.2d 367, 373 (D.C. 1988).
1. False arrest and negligence claims
The defendants fail to meet their burden to show that
Maryland’s interests exceed the interests of the District of
Columbia regarding the false arrest and imprisonment and
negligence claims. The locations of the injuries, the location
of the conduct causing the injuries, the parties’ domiciles, and
the center of the relationship between the parties lie no better
for defendants than equally in both jurisdictions. Regarding the
false arrest and imprisonment claim, Johnathan was arrested in
the District of Columbia and spent six days in jail in the
District of Columbia, while he spent only one day detained in
Maryland after a bail hearing there. These facts reflect no
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greater injury in Maryland. While Fumagalli prepared the
allegedly faulty affidavit and secured the arrest warrant in
Maryland, the chain of events causing the injury of arrest and
imprisonment began with the allegedly negligent investigation in
this district that produced the affidavit’s contents. With the
locus of the parties’ domiciles and relationships split between
the District of Columbia and Maryland, these factors in the
aggregate present no greater governmental interest in Maryland
applying its laws to the arrest and detention in the District of
Columbia of a domiciliary here. Similarly, plaintiffs’
negligence claim pertains to Fumagalli’s purported failure to
exercise appropriate care and diligence with exculpatory leads
before charging the defendant with felonious carjacking and
causing his arrest and detention and a search of plaintiffs’
home. While some aspects of the investigation occurred in
Maryland, some also occurred in the District of Columbia. Much
of the injury occurred in this district, while some occurred in
Maryland. The defendants simply have not demonstrated that
Maryland has a greater interest in applying its laws to the
plaintiffs’ negligence claim. The defendants’ motion to dismiss
Counts 5 and 7 against Montgomery County will be denied.
2. Malicious prosecution
The defendants have met their burden to show that Maryland
law would apply to the plaintiffs’ claim of malicious prosecution
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in Count 4. The genesis of the claim of malicious prosecution
was Fumagalli’s swearing to a purported false affidavit about
Johnathan, conduct that occurred in Maryland by an employee of a
Maryland jurisdiction’s police department which led to a
prosecution that was initiated and centered in Maryland.
Maryland law would apply to this claim, and Montgomery County
will be afforded immunity from suit on the plaintiffs’ claim of
malicious prosecution under Maryland law. Defendants’ motion to
dismiss Count 4 against Montgomery County will be granted.
CONCLUSION AND ORDER
The defendants have not shown that transfer is proper, the
plaintiffs have adequately pleaded causes of action for malicious
prosecution under 42 U.S.C. § 1983 and Montgomery County is not
immune from the plaintiffs’ state law claims of false arrest and
negligence. The plaintiffs have conceded that they have not pled
a cognizable claim under Article 24 of the Maryland Constitution,
and Montgomery County is immune from the plaintiffs’ state law
claim of malicious prosecution. Accordingly, it is hereby
ORDERED that defendant’s motion [4] to change venue be, and
hereby is, DENIED. It is further
ORDERED that defendant’s motion [5] for partial dismissal
be, and hereby is, GRANTED in part and DENIED in part.
Plaintiffs’ claim under Article 24 of the Maryland Constitution
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in Count 6 and plaintiffs’ claim of malicious prosecution against
Montgomery County in Count 4 are DISMISSED. The motion is
otherwise denied.
SIGNED this 18th day of March, 2009.
/s/
RICHARD W. ROBERTS
United States District Judge