Cohen v. Waxman , 421 F. App'x 801 ( 2010 )

FILED
United States Court of Appeals
Tenth Circuit
December 1, 2010
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
SOLOMON BEN-TOV COHEN,
Plaintiff - Appellant, No. 10-1283
v. (D. Colorado)
REPRESENTATIVE HENRY (D.C. No. 1:08-CV-02188-LTB-CBS)
WAXMAN, United States Congress;
U.S. CAPITOL POLICE; FRED
BUSCH, Agent, U.S. Capitol Police,
Defendants - Appellees.
ORDER AND JUDGMENT *
Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.
I. INTRODUCTION
On October 9, 2008, Solomon Ben-Tov Cohen brought a pro se Bivens
action in the United States District Court for the District of Colorado seeking
money damages from United States Representative Henry Waxman, the United
*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
States Capitol Police, and former United States Capitol Police Special Agent Fred
Busch. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388 (1971). He alleged various constitutional and statutory violations
arising out of his November 2003 arrest at the office of Congressman Waxman at
the Capitol. The district court dismissed without prejudice the claims against all
three defendants, and denied Mr. Cohen’s motion to change venue to Washington,
D.C. Mr. Cohen appeals only the court’s denial of his motion to change venue.
Finding no abuse of discretion in the court’s ruling, we affirm.
II. BACKGROUND
Mr. Cohen alleges that on November 25, 2003, he traveled to United States
Congressman Henry Waxman’s Washington, D.C., office to complain to the
Congressman about how local officials had treated him while evicting him from
his apartment in West Hollywood, California. A citizen of the United Kingdom,
he intended to hand-deliver a letter to the Congressman “asking for [his] support
in becoming a US Citizen after 10+ years in the United States.” R., Vol. 1 pt. 1 at
108. According to Mr. Cohen, Special Agent Busch “wrongfully and maliciously
arrested” him in Congressman Waxman’s office “on a fabricated and false charge
of ‘making threats against a Congressman’ which he later dropped.” Id.Mr. Cohen filed suit about five years later, eventually amending his
complaint to include nine claims: (1) violation of the First, Fourth, Fifth, Sixth,
and Fourteenth Amendments; (2) deprivation of constitutional rights, privileges,
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and immunities resulting in psychological harm; (3) extreme mental distress
caused by the defendants’ actions; (4) violation of the First and Sixth Amendment
privilege to communicate with Congressman Waxman; (5) intentional arrest
without probable cause; (6) damage in the form of loss of personal freedom, pain
and suffering, and loss of reputation; (7) conspiracy to prevent Mr. Cohen from
meeting with Congressman Waxman and to charge him with a crime he did not
commit; (8) improper refusal by Special Agent Busch to disclose his badge
number; and (9) bad faith or, alternatively, negligent investigation.
On April 21, 2009, the Capitol Police moved to dismiss for failure to state a
claim, and on May 4, 2009, Congressman Waxman moved to dismiss on a variety
of grounds, including lack of personal jurisdiction. The magistrate judge issued a
report and recommendation on September 21, 2009, recommending that the claims
against Congressman Waxman be dismissed for lack of personal jurisdiction
because he did not have minimum contacts with Colorado, and that the claims
against the Capitol Police be dismissed because “a damages claim under Bivens
cannot be stated against a federal agency.” Id., Vol. 1 pt. 2 at 273. The
magistrate judge also recommended denial of Mr. Cohen’s request to change
venue, noting that neither Congressman Waxman nor the Capitol Police requested
a transfer of venue, that Mr. Cohen improperly moved for transfer of venue in his
response to the motions to dismiss rather than in a separate motion, and that the
decision to transfer is within the district court’s discretion. On October 21, 2009,
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the district court adopted the magistrate judge’s recommendations and dismissed
the claims against Congressman Waxman and the Capitol Police without
prejudice.
Meanwhile, on October 5, 2009, Special Agent Busch had moved to dismiss
the claims against him, arguing, among other things, that the court lacked
personal jurisdiction over him. And two months after the dismissal of
Congressman Waxman and the Capitol Police, Mr. Cohen moved for a change of
venue to Washington, D.C., because “if the case is not transferred,” a newly filed
action “will be time-barred.” Id. at 337. The magistrate judge addressed both
motions in a single report and recommendation, recommending dismissal of
Special Agent Busch and not transferring venue. Adopting the recommendations,
the district court dismissed Special Agent Busch and denied Mr. Cohen’s motion
for change of venue on June 23, 2010. Mr. Cohen timely appealed.
III. DISCUSSION
Mr. Cohen's only argument on appeal is that “[t]he District Court erred in
refusing to transfer the case to DC.” Aplt. Br. at 3. He notes that the court’s lack
of personal jurisdiction over a defendant can be cured by transferring venue. And
because a newly filed case would be time-barred by the District of Columbia’s
applicable one-year statute of limitations, he asserts that the court erred by “NOT
ruling that transfer IS in the interests of justice.” Id.
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Under 28 U.S.C. § 1404(a), a district court may transfer a case to another
venue in which it might have been brought “[f]or the convenience of parties and
witnesses, in the interest of justice.” “The party moving to transfer a case
pursuant to § 1404(a) bears the burden of establishing that the existing forum is
inconvenient.” Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509,
1515 (10th Cir. 1991). In deciding whether the movant has met that burden, a
district court should consider:
the plaintiff’s choice of forum; the accessibility of witnesses and
other sources of proof, including the availability of compulsory
process to insure attendance of witnesses; the cost of making the
necessary proof; questions as to the enforceability of a judgment if
one is obtained; relative advantages and obstacles to a fair trial;
difficulties that may arise from congested dockets; the possibility of
the existence of questions arising in the area of conflict of laws; the
advantage of having a local court determine questions of local law;
and, all other considerations of a practical nature that make a trial
easy, expeditious and economical.
Id. at 1516 (internal quotation marks omitted). Unless weighing these factors
demonstrates that “the balance is strongly in favor of the movant, the plaintiff’s
choice of forum should rarely be disturbed.” Employers Mut. Cas. Co. v. Bartile
Roofs, Inc., 618 F.3d 1153, 1167 (10th Cir. 2010) (brackets and internal quotation
marks omitted).
Ironically, in this case it is the plaintiff who desires a transfer from the
forum he originally selected. Only now that he knows that he will lose in that
forum does he seek another. But the law rarely favors two bites at the apple.
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Only a neutral reason—one not designed to favor one party over another—can
justify a transfer. As the district court reasonably found, however, none of the
considerations listed in Chrysler Credit Corp. argue for venue in Washington,
D.C., over Colorado. Mr. Cohen’s sole argument for the transfer is to avoid a
statute-of-limitations bar. But the Washington, D.C., statute of limitations would
easily bar Mr. Cohen’s claim even if this case were transferred, unless he can
show that the limitations period was tolled by his mental disability—a showing
that would necessarily rely on witnesses from Colorado, where he has resided
during the relevant period. See Chrysler Credit Corp., 928 F.2d at 1516
(accessibility of witnesses is factor to weigh under § 1404(a)). All in all, we
cannot say that denial of the motion to transfer was an abuse of discretion.
IV. CONCLUSION
We AFFIRM the district court’s denial of Mr. Cohen’s motion to change
venue and DENY his motion for leave to proceed in forma pauperis.
ENTERED FOR THE COURT
Harris L Hartz
Circuit Judge
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