No Easy Answers

Saturday, September 22, 2007

Vance v. Rumsfeld: Order denying Transfer [Doc 63]

CASE #: 1:06-cv-06964
Date Filed: 12/18/2006

The government moved to delay the deadline for filing an answer to the civil complaint, to 30 days post the decision on venue. This venue decision is dated September 19, 2007.

                                 EASTERN DIVISION

 DANIEL VANCE and NATHAN                          )
 ERTEL,                                           )
                 Plaintiffs,                      )
                                                  ) No. 06 C 6964
                 v.                               )
                                                  ) Wayne R. Andersen
 DONALD RUMSFELD, UNITED                          ) District Judge
 STATES OF AMERICA and                            )
 UNIDENTIFIED AGENTS,                             )
                 Defendants.                      )

                          MEMORANDUM, OPINION AND ORDER

       Plaintiffs Donald Vance and Nathan Ertel filed a fifteen-count complaint in this Court

against Defendants Donald Rumsfeld, the United States of America, and Unidentified Agents,

alleging violation of their constitutional rights. This matter is before the Court on Defendants'

motion to transfer venue to the United States District Court for the District of Columbia pursuant

to 28 U.S.C. §1404(a). For the foregoing reasons, Defendants' motion is denied.


       According to the Complaint, Plaintiffs Donald Vance and Nathan Ertel, both American

citizens, traveled to Iraq in the fall of 2005 to work for a private Iraqi security firm, Shield

Group Security ("SGS"). In the course of their employment, Plaintiffs allegedly observed

payments made by SGS agents to certain Iraqi sheikhs. They also claim to have seen mass

acquisitions of weapons by the company and sales in increased quantities. Questioning the

legality of these transactions, Vance claims to have contacted the FBI during a return visit to his

native town of Chicago to report what he had observed. Vance asserts that he was put in contact

with Travis Carlisle, a Chicago FBI agent, who arranged for Vance to continue to report

suspicious activity at the SGS compound after his return to Iraq. Vance alleges to have complied

with Carlisle's request and continued to report to him daily. Several weeks later, Vance claims

Carlisle put him in contact with Maya Dietz, a United States government official working in

Iraq. Dietz allegedly requested that Vance copy SGS's computer documents and forward them

to her. Vance contends that he complied with that request.

       Plaintiff Ertel claims to have been aware of Vance's communications with the FBI and

alleges to have contributed information to that end. Ertel asserts that both he and Vance

communicated their concerns with SGS to Deborah Nagel and Douglas Treadwell, two other

government officials working in Iraq.

       Plaintiffs contend that suspicions within SGS grew as to Vance and Ertel's loyalty to the

firm. On April 14, 2006, armed SGS agents allegedly confiscated plaintiffs' access cards which

permitted them freedom of movement into the "Green Zone" and other United States

compounds. This action effectively trapped plaintiffs in the "Red Zone" and within the SGS

compound. Plaintiffs claim to have contacted Nagel and Treadwell who instructed them to

barricade themselves in a room in the SGS compound until United States forces could come

rescue them. Plaintiffs were later successfully removed from the SGS compound by United

States forces.

       Plaintiffs were then taken to the United States Embassy. Military personnel allegedly

seized all of plaintiffs' personal property, including their laptop computers, cellular phones, and

cameras. At the Embassy, Plaintiffs claim they were separated and then questioned by an FBI

agent and two other persons from United States Air Force Intelligence. Plaintiffs contend that

they disclosed all their knowledge of the transactions of SGS and directed the officials to their

laptops where most of the information had been documented. Plaintiffs also assert that they


informed the officials of their contacts with agent Carlisle in Chicago, and agents Nagel and

Treadwell in Iraq. Following these interviews, Plaintiffs claim they were escorted to a trailer to

sleep for two to three hours.

       Plaintiffs claim they were awoken by several armed guards who then placed them under

arrest, handcuffing and blindfolding Vance and Ertel and pushing them into a humvee. Plaintiffs

contend that they were labeled as "security internees" affiliated with SGS, some of whose

members were suspected of supplying weapons to insurgents. According to Plaintiffs, that

information alone was sufficient, according to the policies enacted by defendant Rumsfeld and

others, for the indefinite, incommunicado detention of Plaintiffs without due process or access to

an attorney. Plaintiffs claim to have been taken to Camp Prosperity, a United States military

compound in Baghdad. There they allege they were placed in a cage, strip searched, and

fingerprinted. Plaintiffs assert that they were taken to separate cells and held in solitary

confinement 24 hours per day.

       After approximately two days, Plaintiffs claim they were shackled, blindfolded, and

placed in separate humvees which took them to Camp Cropper. Again, Plaintiffs allegedly were

strip searched and placed in solitary confinement. During this detention, Plaintiffs contend that

they were interrogated repeatedly by military personnel who refused to identify themselves and

used physically and mentally coercive tactics during questioning. All requests for an attorney

allegedly were denied.

       On or about April 20, 2006, Plaintiffs each received letters from the Detainee Status

Board indicating that a proceeding would be held April 23rd to determine their legal status as

"enemy combatants," "security internees," or "innocent civilians." The letter informed Plaintiffs

they did not have a right to legal counsel at that proceeding. The letter also informed Plaintiffs


they would only be permitted to present evidence or witnesses for their defense if they were

reasonably available at Camp Cropper. On April 22nd, Vance and Ertel allegedly each received a

notice stating that they were "security internees." The letter informed Plaintiffs they had the

right to appeal by submitting a written statement to camp officials. Both Vance and Ertel

appealed, requesting each other as witnesses and their seized personal property as evidence.

       On April 26, 2006, Plaintiffs allegedly were taken before the Detainee Status Board.

Ertel and Vance claim they were not provided with the evidence requested, nor were they

permitted to testify on the other person's behalf. Plaintiffs assert that they were not permitted to

see the evidence against them or confront any adverse witnesses.

       On May 17, 2006, Major General John Gardner authorized the release of Ertel, allegedly

18 days after the Board officially acknowledged that he was an innocent civilian. Vance's

detention continued an additional two months, where he was continuously interrogated. On July

20, 2006, several days after Major General Gardner authorized his release, Vance was permitted

to leave Camp Cropper. Neither Plaintiff was ever charged with any crime.

       On December 18, 2006, Plaintiffs initiated this lawsuit against Defendants for the alleged

constitutional violations that occurred in Iraq by the unidentified agents of the United States as

well as for the practices and policies enacted by Rumsfeld which allegedly authorized such

actions by those agents. Both Plaintiffs are residents of the State of Illinois. Although there

appears to be some uncertainty regarding Defendant Rumsfeld's place of residence, he has

recently filed an affidavit stating that his current permanent place of residence is the State of

Maryland. Prior to that, he was domiciled in Illinois.

       Defendants have filed a motion to transfer venue to the District Court for the District of

Columbia ("D.C."), alleging that the District of Columbia would be a more convenient forum in


which to litigate this claim.


        Pursuant to Section 1404(a), "[f]or the convenience of the parties and witnesses, in the

interests of justice, a district court may transfer any civil action to any other district or division

where it might have been brought." To succeed on a motion to transfer venue, the defendant

must demonstrate that: (1) venue is proper in the transferor district;(2) venue and jurisdiction are

proper in the transferee district; and (3) the transfer will serve the convenience of the parties, the

convenience of the witnesses, and the interest of justice. See, e.g., Auston v. State, 116 F.3d

1482, n.3 (7th Cir. 1997); Vandeveld v. Christoph, 877 F. Supp. 1160, 1166 (N.D. Ill. 1995).

        In evaluating the third prong, courts consider both the private interests of the parties and

the public interest of the court. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947). The

party seeking transfer bears the burden of showing that "the transferee forum is clearly more

convenient than the transferor forum." Coffey v. Van Dorn Iron Works, 796 F.2d 217, 220 (7th

Cir. 1986) (emphasis added). Because "the Court may consider only undisputed facts presented

to the Court by affidavit, deposition, stipulation or other relevant documents," the moving party

must present more than "mere allegations" to support its claim. Midwest Precision Servs., Inc. v.

PTM Indus. Corp., 574 F. Supp. 657, 659 (N.D. Ill. 1983). Transfer is not appropriate if it will

merely transform an inconvenience for one party into an inconvenience for another. See Coffey,

796 F.2d at 220.

        In this case, venue and jurisdiction are proper in both this Court and the District of

Columbia. Thus, our analysis will focus on the third factor­the convenience of the parties and

witnesses and the interests of justice.


        I. The District of Columbia Is Not A More Convenient Forum

        In this case, Defendants have failed to meet their burden under the third 1404(a) prong.

Evaluation of the private and public factors that comprise a Section 1404(a) analysis

demonstrates that a transfer of this case to the District of Columbia will not make this litigation

"clearly more convenient."

        A.      The Private Interest Factors Weigh Against Transfer

        There are five private interest factors that courts typically evaluate: (1) Plaintiffs' choice

of forum; (2) the convenience of the forum for the parties; (3) the convenience of the forum for

the witnesses; (4) the situs of material events; and (5) the ease of access to sources of proof. See

Schwartz v. Nat'l Van Lines, Inc., 317 F. Supp.2d 829, 833 (N.D. Ill. 2004). Here, each of these

factors either weighs against transfer or is, at best, neutral.

                1. Plaintiffs' Forum Choice

        It has long been held that "the plaintiff's choice of forum should rarely be disturbed."

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947). This is particularly true if plaintiff's choice

of forum is also the plaintiff's home. See Vandeveld v. Christoph, 877 F. Supp. 1160, 1167

(N.D. Ill. 1995). Here, Plaintiffs' choice to file in the Northern District of Illinois is entitled to

deference. Both Plaintiffs reside in Chicago. Mr. Vance has resided in Chicago his entire life.

Mr. Ertel, recently returned from living abroad, and chose to make his home here.

        Moreover, Plaintiffs' choice to file suit here is a reasonable one. Many of the material

events leading up to the events alleged occurred right here in Chicago. In addition, Travis

Carlisle and other agents or supervisors in the Chicago FBI are key witnesses. While these

connections alone make Plaintiffs' choice to file here reasonable, we note that Defendant

Rumsfeld also has substantial connections to Chicago.


        Thus, Plaintiffs here are entitled to the same deference usually afforded a plaintiff's

choice of forum, and that presumption weighs against transfer in this case. See, e.g, Vandeveld,

877 F. Supp. at 1167.

                2. Convenience Of The Parties

        Similarly, an evaluation of the convenience of the parties makes plain that this case

should not be transferred to the District of Columbia. Plaintiffs are residents of Illinois, and it is

clear from the public record that the only identified Defendant, Mr. Rumsfeld, maintains very

strong ties to Illinois, and to Chicago, in particular. Mr. Rumsfeld's corporation, D.H.R.

Foundation, is in Illinois. Mr. Rumsfeld's wife made political contributions in 2006 from a

Wacker Drive address in Chicago, and Mr. and Mrs. Rumsfeld have several other Chicago

addresses. While Rumsfeld's current permanent place of residence is Maryland, the

inconvenience to him by having to defend a case in Illinois is less than usual due to his

connections to this area.

        For these reasons, the convenience of the parties factor, therefore, does not militate in

favor of a transfer of this case.

                3. Convenience Of The Witnesses

        In addition to the convenience of the parties, courts evaluate the convenience of the

witnesses when resolving a motion to transfer. To be sure, "the convenience of the witnesses is

one of the most important factors to be considered." First Nat'l Bank v. El Camino Resources

Ltd., 447 F. Supp. 2d 902, 913 (N.D. Ill. 2006). In addition to consideration of the number of

potential witnesses located in any one district, courts also consider the nature and quality of their

testimony on the issues that are actually in dispute in the case. Id. Thus, the more significant the

witness is to the issues which will have to be decided, the greater the weight given to that


witness' convenience.

        Courts cannot weigh these factors in a vacuum. Thus, to satisfy their burden, moving

parties must "clearly specify the key witnesses to be called" and describe their testimony in a

manner that goes beyond vague generalizations. See Heller Fin. Inc., 883 F.2d at 1293.

        In this case, this factor appears to be a draw. While Defendants make the valid point that

many of the witnesses with regard to the policies implemented by the government likely will be

located in the District of Columbia, Plaintiffs have also identified several witnesses who reside

in Illinois or another Midwest state whose testimony apparently will be relevant to the material

issues. In addition, Plaintiffs found three other important witnesses who are closer to Illinois

than D.C.-- one in California, one in Texas, and one in South America. As such, and as this

Court has found previously, when witnesses are scattered across the country, "Illinois is a

centrally located forum in which to adjudicate this dispute." See Avery Dennison Corp., 1997

WL 106252, at *3.

        For these reasons, Defendants have not met their burden of proving that the District of

Columbia is clearly a more convenient forum for the witnesses.

                        4. Situs of Material Events

        Another factor that courts consider in making their Section 1404(a) determination is the

situs of material events. See Schwartz v. Nat'l Van Lines, Inc., 317 F. Supp.2d 829, 835 (N.D.

Ill. 2004). There is no doubt that the events giving rise to this case occurred in multiple

jurisdictions, notably Iraq, the District of Columbia and Chicago. Iraq was a locus of numerous

events, but it is not a fit place to litigate, and it is also not a venue to which 1404(a) applies.

        Between the District of Columbia and Chicago then, Chicago has an edge as the locus of

material events. Chicago is where Mr. Vance and Mr. Carlisle began the relationship by which


Plaintiffs became alleged informants to the Chicago FBI office. The reports that resulted in the

alleged retaliation against Plaintiffs occurred in Chicago. To the extent Agent Carlisle's alleged

misrepresentations to Ms. Schwarz prevented Plaintiffs from receiving help to end their

detentions, that too occurred in Chicago. Finally, although Defendants are correct that many of

the policies and practices Plaintiffs allege violated their constitutional rights may have emanated

from the District of Columbia, it is certainly possible that at least some of the acts or failures to

act that caused or extended Plaintiffs' detentions occurred in Chicago. We do not yet know who

was involved in the decision making process regarding Plaintiffs' detentions.

        Given this substantial connection to Illinois, it is simply not the case that it would be

"clearly more convenient" to litigate in the District of Columbia.

               5. Access to Sources of Proof

        The final private interest consideration is the parties' access to sources of proof.

Defendants argue that all of their evidence is located in either Iraq or various government offices

in Washington, D.C., and the surrounding area. Although Defendants did not specify in their

motion to transfer what that evidence is, much of it is almost certain to be documentary in nature

and, therefore, subject to compulsory process for production in this jurisdiction. Such evidence

is not a weighty concern in the transfer analysis. See In re Automotive Refinishing Paint

Antitrust Litigation, 229 F.R.D. 482, 494 (E.D. Pa. 2005). Moreover, there is no doubt that

"each party can efficiently transport to this district those documents necessary for trial." Avery

Dennison Corp.,1997 WL 106252, at *2; see also Midwest Precision Servs., Inc., 574 F. Supp. at

661 n. 6.

        Therefore, analysis of the access to sources of proof factor does not weigh in favor of a



         B.     Public Factors Also Weigh Against Transfer

         Like the private interest factors enumerated above, the public interest factors also weigh

against transfer. Factors traditionally considered in this "interest of justice" analysis relate to the

efficient administration of justice, the court's familiarity with the relevant law, as well as whether

the jurors in a particular district have a stake in the outcome of the litigation. See Coffe, 796

F.2d at 221 & n.4; The Northwestern Corp., 1996 WL 73622, at *4.

         In this case, the "interest of justice" factors favor neither district because both courts are

familiar with the law and, presumably, will adminster justice efficiently. Moreover, citizens of

both judicial districts have the same, strong interests in seeing to it that the Constitution is


         While Defendants argue that this case should be transferred to the District of Columbia in

anticipation of possible multi-district litigation, that is not the current posture of the case.

Plaintiffs are the "master[s] of the complaint, and this includes the choice of where to bring suit"

and who to sue. Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 718 (7thº Cir. 2002). Conjecture as to

what may or may not happen in the future is not relevant to the decision we must make today.

At present, Plaintiffs have chosen to bring only one suit and that is the case currently before this


         For these reasons, Defendants have not carried their burden of proving that the public

factors militate in favor of transferring this case to the District of Columbia, and their motion to

transfer venue is denied.



       For the foregoing reasons, Defendants' Motion for transfer of venue [#31] is denied.

This case is set for status on October 11, 2007 at 9:00 a.m.

       It is so ordered.
                                                       Wayne R. Andersen
                                                    United States District Court

Dated: September 19, 2007



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