UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
CHARLES SIMON, :
:
Plaintiff, : Civil Action No.: 20-580 (RC)
:
v. : Re Document No.: 2, 3, 5, 6, 7
:
UNITED STATES DEPARTMENT :
OF JUSTICE, et al., :
:
Defendants. :
MEMORANDUM OPINION
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS;
DENYING PLAINTIFF’S MOTION FOR DISQUALIFICATION;
DENYING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT;
DENYING PLAINTIFF’S MOTION FOR JUDGMENT ON THE PLEADINGS
I. INTRODUCTION
Pro se Plaintiff Charles Simon has filed a complaint against the United States
Department of Justice (“DOJ”); Federal Prison Industries, Inc. (“FPI”); Steve Schwalb, in his
official capacity as Chief Operating Officer of FPI; and T. Speights, Coordinator of FPI
(collectively “Defendants”). Mr. Simon attempts to re-litigate the amount of a monthly
compensation award he received in 1994 pursuant to the Inmate Accident Compensation Act
(“IACA”), 18 U.S.C. § 4126 et seq., for a back injury he sustained while incarcerated in 1987.
See Compl. at 1–6, ECF No. 1; Mot. to Dismiss at 6, ECF No. 3. Mr. Simon also challenges the
termination of his compensatory award under IACA and its implementing regulations. Compl. at
1. Though his Complaint is not drafted with perfect clarity, he appears to bring his charges under
Title VII and the Administrative Procedure Act (“APA”). Id. The instant action follows a string
of materially identical lawsuits filed by Mr. Simon in various courts.
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Defendants have moved to dismiss Mr. Simon’s latest suit, and Mr. Simon has moved to
disqualify the undersigned Judge, for default judgment, and for judgment on the pleadings. As an
initial matter, the Court denies Plaintiff’s motions. The Court dismisses Mr. Simon’s benefits
termination claim without prejudice because he has failed to demonstrate that he has exhausted
his administrative remedies. Finally, the Court concludes that the doctrines of claim preclusion
(res judicata) and collateral estoppel bar Mr. Simon’s claims pertaining to the calculation of his
compensatory payment under the IACA. In the alternative, the Court finds that the time period in
which Mr. Simon could have litigated the compensation amount he received for his back injury
has lapsed and that his claims are thus time-barred.
II. FACTUAL BACKGROUND
Plaintiff suffered a back injury while incarcerated in a federal facility in Wisconsin in
1987. See Mot. to Dismiss at 4. In 1994, as compensation for this inmate work injury, he was
awarded $73.57 per month, an amount that would be adjusted in line with increases in the federal
minimum wage. See Defs.’ Mot. to Dismiss & Opp’n to Pl.’s Mot. for Prelim. Inj., Simon v. U.S.
Dep’t of Justice, No. 15-cv-1310 (RC), 2016 WL 427061, (D.D.C. Feb. 3, 2016), aff’d No. 16-
5031, 2016 WL 3545484 (D.C. Cir. June 10, 2016), ECF No. 4-1 at 2. Following an
administrative appeal to Defendant Steve Schwalb, at that time FPI’s Chief Operating Officer,
Mr. Simon acknowledged and accepted the award as a “full and final settlement.” Id.
In 1997 Mr. Simon filed a petition for a writ of mandamus “arising from the November
1987 injury and subsequent compensation award,” which was dismissed and a motion for a
preliminary injunction, which was denied. See Simon v. Fed. Prison Indus., Inc., No. 09-cv-
0692, 2009 WL 2618349, at *1 (D.D.C. Aug. 24, 2009) (describing Simon v. Fed. Prison Indus.,
Inc., No. 97-cv-0757 (D.D.C. Oct. 30, 1997) (Mem. Op.)). In 1998, the D.C. Circuit affirmed the
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District Court’s denial of Mr. Simon’s petition for a writ of mandamus, holding that his “award
of compensation was properly calculated under the Inmate Accident Compensation Act and its
implementing regulations,” that there was “no merit to [his] challenge to the validity of the
inmate compensation system,” and that he “ha[d] not shown that he [was] entitled to medical
treatment after his release.” Simon v. Fed. Prison Indus., Inc., 159 F.3d 637 (D.C. Cir. 1998) (per
curiam) (unpublished table decision).
In recent years, Mr. Simon has continued to file similar actions in this district against FPI,
Schwalb, and various other defendants. Those actions have been dismissed as barred by the
doctrines of claim preclusion and collateral estoppel. See Simon, 2016 WL 427061, at *1; Simon
v. Bickell, 737 F. Supp. 2d 10, 14–15 (D.D.C. 2010); Simon, 2009 WL 2618349, at *1.
Additionally, Mr. Simon has filed similar cases against FPI and other agencies or
instrumentalities of the United States around the country. See, e.g., Simon v. U.S. Dep’t of
Justice, No. 18-cv-11431, 2018 WL 6045254, at *2 (D. Mass. Nov. 19, 2018), aff’d, No. 18-
2206, 2019 WL 6124881 (1st Cir. June 26, 2019), cert. denied, 140 S. Ct. 539 (2019), reh’g
denied, 140 S. Ct. 950 (2020); Simon v. Fed. Prison Indus., Inc., No. 03-cv-10792, 2003 WL
26128191, at *1 (D. Mass. Jul. 15, 2003); see also Simon v. Robinson, 196 F. App’x 54, 55 n.1
(3d Cir. 2006) (noting that Mr. Simon has “filed suit and lost in the United States District Courts
for the District of Wisconsin, the District of Massachusetts, the Southern District of New York,
the District of Columbia, and the District of New Jersey” and providing additional citations).
III. PLAINTIFF’S MOTIONS
A. Motion for Disqualification
Plaintiff moves to disqualify the undersigned Judge pursuant to 28 U.S.C. § 455(a)–(b).
See Pl’s Mot. for Disqualification, ECF No. 7. Plaintiff claims that this Court displayed “deep-
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seated favoritism” by “disregarding” his Complaint and Motion for Default Judgment. Id.
Plaintiff also alleges that this Court “impermissibly” advised Plaintiff to file a response to
Defendants’ Motion to Dismiss. Id.; see Order, ECF No. 4 (advising Plaintiff to file a response to
Defendants’ Motion to Dismiss in accordance with the Federal Rule of Civil Procedure and
D.D.C. Civ. R. 7(b)).
Under Section 455(b)(1), a judge must recuse “[w]here he has a personal bias or
prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the
proceeding.” 28 U.S.C. § 455(b)(1). A movant must “demonstrate actual bias or prejudice based
upon an extrajudicial source . . . by providing evidence of the judge’s extrajudicial conduct . . .
that are plainly inconsistent with his responsibilities as an impartial decisionmaker.” Osei v.
Standard Chartered Bank, No. 18-cv-1503, 2019 WL 917998, at *4 (D.D.C. Feb. 25,
2019), aff’d, No. 19-7018, 2019 WL 2563460 (D.C. Cir. June 4, 2019) (quoting Cobell v.
Norton, 237 F. Supp. 2d 71, 98 (D.D.C. 2003) and Cobell v. Norton, 310 F. Supp. 2d 102, 120–
21 (D.D.C. 2004)) (internal quotation marks omitted). “Unfavorable judicial rulings alone almost
never constitute a valid basis for reassignment.” United States v. Hite, 769 F.3d 1154, 1172 (D.C.
Cir. 2014).
In advising Plaintiff to respond to Defendants’ dispositive motion, the Court was merely
fulfilling its obligations under Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988). The Court did
not ignore Plaintiff’s complaint or his motion, but had simply not issued any rulings yet. This
Court’s dismissal of Plaintiff’s Motion for Default Judgment is likewise not grounds for
disqualification. See discussion infra Part III.B. Accordingly, this Court finds that Plaintiff’s
allegations fail to establish a basis for recusal under § 455(a) and the motion to disqualify is
denied.
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B. Motion for Default Judgment
Plaintiff moves for default judgment on the basis that Defendants failed to respond to his
Complaint. See Pl.’s Mot. for Default J. at 1. Federal Rule of Civil Procedure 55 “sets forth a
two-step process for a party seeking default judgment: entry of default, followed by entry of
default judgment.” Farris v. Rice, No. CV 05-1975 (RMU), 2006 WL 8435181, at *1 (D.D.C.
Jan. 17, 2006). If a defendant has failed to plead or otherwise defend against an action, the
plaintiff may request that the clerk of the court enter default against that defendant. Fed. R. Civ.
P. 55(a). After the clerk’s entry of default, the plaintiff may move for default judgment. Id.
55(b)(2). However, under Rule 55(b)(2), the “determination of whether default judgment is
appropriate is committed to the discretion of the trial court.” Flynn v. JMP Restoration Corp.,
No. CIV. A. 10-0102 (ESH), 2010 WL 1687950, at *1 (D.D.C. Apr. 23, 2010) (citing Jackson v.
Beech, 636 F.2d 831, 836 (D.C. Cir. 1980)). For default judgment to occur, a “defendant must be
considered a ‘totally unresponsive’ party and its default plainly willful, reflected by its failure to
respond to the summons and complaint, the entry of default, or the motion for default judgment.”
Id. (quoting Gutierrez v. Berg Contracting Inc., No. 99-cv-3044, 2000 WL 331721, at *1
(D.D.C. Mar. 20, 2000)).
Here, Plaintiff has filed a Motion for Default Judgment against Defendants without
providing proof of service. See Ibiza Bus. Ltd. v. United States, No. 10-296 (RCL), 2010 WL
2788169, at *1 (D.D.C. July 8, 2010) (“The Court will only enter a default judgment against a
defendant when there is proof that plaintiffs properly served the defendant.”). Equally important,
Defendants are no longer unresponsive as they have moved to dismiss the complaint and have
opposed the Motion for Default Judgment. See Mot. to Dismiss at 8. The Court therefore cannot
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find that Defendants willfully disregarded their legal responsibilities. Accordingly, the Court
denies Plaintiff’s Motion for Default Judgment. 1
C. Motion for Judgment on the Pleadings
Mr. Simon moves for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). See Mot. J. Pleadings, ECF No. 6. Rule 12(c) provides that “[a]fter the
pleadings are closed—but early enough not to delay trial—a party may move for judgment on
the pleadings.” Fed. R. Civ. P. 12(c). The “moving party [must] demonstrate[ ] that no material
fact is in dispute and that it is entitled to judgment as a matter of law.” Schuler v.
PricewaterhouseCoopers, LLP, 514 F.3d 1365, 1370 (D.C. Cir. 2008) (quoting Peters v. Nat’l
R.R. Passenger Corp., 966 F.2d 1483, 1485 (D.C. Cir. 1992)). Here, Plaintiff’s motion for
judgment on the pleadings is procedurally premature because Defendants have yet to file an
answer. See Black v. LaHood, 882 F. Supp. 2d 98, 107 (D.D.C. 2012) (stating that a party may
seek judgment on the pleadings, which include a complaint and an answer, only after pleadings
are closed). Accordingly, Mr. Simon’s motion for judgment on the pleadings is denied.
IV. DEFENDANTS’ MOTION TO DISMISS
A. Legal Standard
“Under the doctrine of res judicata, ‘a final judgment on the merits of an action precludes
the parties or their privies from relitigating issues that were or could have been raised in that
action.’” Ashbourne v. Hansberry, 245 F. Supp. 3d 99, 103 (D.D.C. 2017) (quoting Drake v.
Fed. Aviation Admin., 291 F.3d 59, 66 (D.C. Cir. 2002)). The doctrine applies if a previous
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Plaintiff also moves to “negotiate settlement upon the Default Fed. R. Civ. Pro. 55
judgment in absentia” under an unspecified rule. See Mot. Settlement, ECF No. 5. The Court
denies Plaintiff’s motion for default judgment and, correspondingly, denies Plaintiff’s contingent
motion as moot.
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action “(1) involv[ed] the same claims or cause of action [as the current action], (2) between the
same parties or their privies, and (3) [resulted in] a final, valid judgment on the merits, (4) by a
court of competent jurisdiction.” Smalls v. United States, 471 F.3d 186, 192 (D.C. Cir. 2006)
(first citing Blonder-Tongue Labs, Inc. v. Univ. of Ill. Found., 402 U.S. 313, 323–24 (1971); then
citing Comm’r of Internal Revenue v. Sunnen, 333 U.S. 591, 597 (1948)). Whether two cases
involve the same cause of action is determined by “whether they share the same ‘nucleus of
facts.’” Ashbourne, 245 F. Supp. 3d at 103 (quoting Drake, 291 F.3d at 66). And whether two
cases share the same nucleus of facts depends on “the facts surrounding the transaction or
occurrence which operate to constitute the cause of action, not the legal theory upon which a
litigant relies.” Page v. United States, 729 F.2d 818, 820 (D.C. Cir. 1984) (quoting Expert Elec.,
Inc. v. Levine, 554 F.2d 1227, 1234 (2d Cir. 1977)).
“Res judicata may be raised in a 12(b)(6) motion to dismiss for failure to state a claim
when the defense appears on the face of the complaint and any materials of which the court may
take judicial notice.” Middleton v. U.S. Dep’t of Labor, 318 F. Supp. 3d 81, 86 (D.D.C. 2018)
(quoting Sheppard v. District of Columbia, 791 F. Supp. 2d 1, 5 n.3 (D.D.C. 2011)); see
also Hemphill v. Kimberly-Clark Corp., 530 F. Supp. 2d 108, 111 (D.D.C. 2008). And as noted
above, the Court may take judicial notice of opinions and orders from other proceedings. Covad
Commc’ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005); Does I through III v.
District of Columbia, 238 F. Supp. 2d 212, 216–17 (D.D.C. 2002).
B. Analysis
There are two general aspects to Mr. Simon’s claims: the calculation of his benefits
award and the termination of his benefits award. Mr. Simon first argues that his award of
compensation was unlawfully terminated in 2018 and that such termination deprived him of his
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property interest in violation of the First, Fifth, and Eighth Amendments. See Compl. at 1. Mr.
Simon subsequently asserts claims under the Administrative Procedure Act, Title VII, and the
Constitution regarding the amount of compensation he received for a back injury he sustained
while incarcerated. See id. at 6–8. Defendants fail to distinguish between these claims, arguing
that Plaintiff’s action should be dismissed on the basis of claim preclusion, collateral estoppel,
because it is time-barred, and for improper venue. The Court will address Mr. Simon’s claims
separately because they are all properly dismissed but on different grounds.
1. Calculation of Benefits
Two of Mr. Simon’s claims pertain to the calculation of his compensatory payments
under the IACA and its implementing regulations. See 28 C.F.R. § 301, et seq. This Court finds
that these claims are barred by the doctrines of claim preclusion and collateral estoppel. Mr.
Simon’s claims against FPI and Mr. Schwalb concerning the calculation of his monthly
compensation award are substantially the same as those he has asserted in prior suits. See Simon,
2016 WL 427061, at *4 (finding that Mr. Simon’s complaint against FPI and Mr. Schwalb
involved the same claim or cause of action as his complaint against the same defendants in a
previous suit lodged in this Court); Simon, 2009 WL 2618349, at *1 (summarizing previous
cases in this district and dismissing Mr. Simon’s complaint against FPI and Mr. Schwalb as
“plainly barred by the doctrine of res judicata”); accord Simon, 2003 WL 26128191, at *1
(noting that the case constituted “at least the seventh attempt” to bring claims against FPI and the
fifth attempt to bring claims against Mr. Schwalb). Moreover, Mr. Simon’s complaint is nearly
identical to one that he filed with the United States District Court for the District of
Massachusetts in 2018. See Simon, 2018 WL 6045254, at *2 (determining that “[a]ny claim
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concerning the calculation of Simon’s monthly compensation award is barred by the doctrine of
res judicata.”).
As noted in this Court’s 2016 opinion, a court in this district previously entered, and the
D.C. Circuit affirmed, a merit-based ruling for Defendants on the same issue. See Simon, 2016
WL 427061, at *4; Simon, 159 F.3d at 637. Accordingly, the adverse judgment was a final and
valid judgment on the merits. See Simon, 159 F.3d at 637. A United States District Court is a
court of competent jurisdiction for the purposes of claim preclusion. See id.; Thunder v. U.S.
Parole Comm’n, 133 F. Supp. 3d 5, 9 (D.D.C. 2015).
Mr. Simon’s claims against DOJ and T. Speights are barred by collateral estoppel, even
though Mr. Simon’s claims are asserted against new defendants. As previously noted, Mr.
Simon’s claims regarding the validity of his inmate work injury award have been litigated prior
to the present case. Those courts have held that his compensation award was calculated correctly.
See Simon, 159 F.3d at 637; Simon, 2016 WL 427061, at *4. Even if the instant claims are
asserted against new defendants, Mr. Simon has had a full and fair opportunity to challenge his
inmate work injury compensation in earlier cases.
In the alternative, and to the extent that Mr. Simon attempts to assert a cause of action
relating to the calculation of his benefits based on new theories under the Constitution, Title VII,
or any of the various legal provisions listed in his complaint, his claims are time-barred. See 28
U.S.C. § 2401(a) (providing a six-year statute of limitations for civil actions against the United
States).
2. Termination of Benefits
Mr. Simon also asserts that the compensation payments he had received under the IACA
were terminated in 2018 “without notice or cause” and that such termination deprived him of his
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property interest in violation of the First, Fifth, and Eighth Amendments. See Compl. at 1. Mr.
Simon brought a near identical claim in United States District Court for the District of
Massachusetts in 2018. See Simon, 2018 WL 6045254, at *2. That court found that he had failed
to exhaust his administrative remedies and dismissed his claim without prejudice. Id. Defendants
now move to dismiss Mr. Simon’s claim on the bases of claim preclusion, collateral estoppel,
because it is time-barred, and, alternatively, for improper venue. See Mot. to Dismiss at 5, 9.
None of Defendants’ arguments for dismissal succeed when it comes to these claims.
Mr. Simon commenced this action in February 2020. For his claim relating to the
termination of his benefits in 2018, this is well within the six-year requirement set forth in 28
U.S.C. § 2401(a). See 28 U.S.C. § 2401(a) (“every civil action commenced against the United
States shall be barred unless the complaint is filed within six years after the right of action first
accrues”). Accordingly, Mr. Simon’s complaint was timely with regard to the termination of his
benefits. Moreover, Mr. Simon’s claim concerning the termination of his benefits is not barred
by collateral estoppel. Under the doctrine of collateral estoppel, “once a court has decided an
issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue
in a suit on a different cause of action involving a party to the first case.” Allen v. McCurry, 449
U.S. 90, 94 (1980). But the termination of Mr. Simon’s compensation payments in 2018—and
any accompanying issues—have never been litigated prior to this case. See Simon, 2018 WL
6045254, at *3 (“Simon must attempt to address the reason for the termination of his
compensation payments with the DOJ before seeking a judicial remedy.”)
Likewise, Mr. Simon’s claim that his compensation award was wrongfully terminated in
2018 was not nor could have been raised prior to that date, and is thus not barred by claim
preclusion. See Drake, 291 F.3d at 66 (“[A] final judgment on the merits of an action precludes
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the parties or their privies from relitigating issues that were or could have been raised in that
action.”) (quoting Allen, 449 U.S. at 94). While Mr. Simon indeed attempted to litigate the claim
in the United States District Court for the District of Massachusetts in 2018, it was dismissed
without prejudice. See Simon, 2018 WL 6045254, at *2. The court found that Mr. Simon had
failed to exhaust his administrative remedies under the common law doctrine of administrative
exhaustion. Id. Accordingly, Mr. Simon was instructed to “address the reason for the termination
of his compensation payments with the DOJ before seeking a judicial remedy.” Id. The First
Circuit upheld this dismissal “primarily based on improper venue.” Simon, 2019 WL 6124881, at
*1. Neither outcome—dismissal for failure to exhaust or for improper venue—would be a
judgment on the merits.
In the alternative, Defendants assert that venue is improper here. Under Section 1391(b),
a civil action may generally be brought in “a judicial district in which any defendant resides, if
all defendants are residents of the State in which the district is located,” or “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.” 28 U.S.C. § 1391(b). This
provision governs Mr. Simon’s claim under the APA. Title VII has its own venue provision
which provides four alternatives for where an action can be brought:
[1] in any judicial district in the State in which the unlawful employment practice
is alleged to have been committed, [2] in the judicial district in which the
employment records relevant to such practice are maintained and administered, or
[3] in the judicial district in which the aggrieved person would have worked but for
the alleged unlawful employment practice, [4] but if the respondent is not found
within any such district, such an action may be brought within the judicial district
in which the respondent has his principal office.
42 U.S.C. § 2000e-5(f)(3). When an objection to venue has been raised, the plaintiff has the
burden of establishing that the action was instituted in the proper forum. Williams v. GEICO
Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011).
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Defendants argue that because Mr. Simon does not reside in Washington, D.C. and “none
of the events giving rise to his claims occurred here,” he has not established that venue is proper
under Section 1391(b).2 Mot. to Dismiss at 9. Defendants do not, however, dispute Mr. Simon’s
assertion that all named Defendants reside in the District of Columbia. See Compl. at 2 (Mr.
Simon names DOJ, FPI, and two employees of FPI as parties in the action and provides a
Washington, D.C. address for each). Even if Mr. Simon were incorrect about the residence of
FPI and the individual defendants, he has also sued the Department of Justice. Under 28 U.S.C.
§ 1391(e), a civil action “in which a defendant is . . . an agency of the United States” may be
brought “in any judicial district in which . . . a defendant in the action resides.” 28 U.S.C.
§ 1391(e). Accordingly, because Mr. Simon brings this action against a federal agency located in
Washington, D.C., venue is proper under § 1391(b).
As for Title VII, Defendants have advanced no argument explaining why venue is
improper under Title VII’s venue provision, they have simply quoted the statute and asserted that
venue is not proper. While it is the plaintiff’s burden to establish that venue is proper, “the
defendant must present facts that will defeat the plaintiff’s assertion of venue” in order to win
dismissal on that basis. Crowley v. Napolitano, 925 F. Supp. 2d 89, 91 (D.D.C. 2013) (quoting
Khalil v. L-3 Commc’ns Titan Grp., 656 F. Supp. 2d 134, 135 (D.D.C. 2009)). Defendants
provide only a conclusory assertion and a citation to 42 U.S.C. § 2000e-5(f)(3). Mot. Dismiss at
9 n.1. While Mr. Simon’s complaint does not articulate the basis for venue he has given a
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Defendants’ reliance on Massachusetts case law is misplaced and their argument does
not account for the fact that the Department of Justice is a defendant properly sued here. See
Mot. to Dismiss at 9. Indeed, Defendants appear to have recycled language from a motion
against Mr. Simon filed in the United States District Court for the District of Massachusetts in
2018. See Motion to Dismiss, Simon v. U.S. Dep’t of Justice, No. 18-cv-11431 at 6 (D. Mass.
Oct. 2, 2018), ECF No. 7.
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Washington, D.C. address for each defendant, and it stands to reason that the termination of his
benefits may have occurred in the district or that relevant records may be maintained here.
Without any contrary facts from Defendants, the Court will not assume venue is improper based
on a bare conclusory statement, especially given that it seems plausible that venue is proper.
Because they fail to identify any proper basis for dismissal of Mr. Simon’s claims regarding the
termination of his benefits, Defendants’ Motion to Dismiss is denied with regard to those claims.
V. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Disqualification (ECF No. 7), Motion
for Default Judgment (ECF No. 2), and Motion for Judgment on the Pleadings (ECF No. 6) are
all DENIED. Plaintiff’s Motion to Negotiate Settlement Upon Default (ECF No. 5), is DENIED
AS MOOT. Defendants’ Motion to Dismiss (ECF No. 3) Mr. Simon’s complaint is GRANTED
IN PART AND DENIED IN PART.
An order consistent with this Memorandum Opinion is separately and contemporaneously
issued.
Dated: August 7, 2020 RUDOLPH CONTRERAS
United States District Judge
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