Doe v. Anderson et al

Filing 26

ORDER denying 16 Motion to Sever, to Change Venue, and to Reassign Case. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JOHN DOE 1; JOHN DOE 2; JOHN DOE
3; JOHN DOE 4; JOHN DOE 5; JOHN
DOE 8; JOHN DOE 9; JOHN DOE 10 AND
JOHN DOE 12,

Case No. 15-13852
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

Plaintiff,
U.S. MAGISTRATE JUDGE
MONA K. MAJZOUB

v.
ANDERSON ET. AL.,
Defendant.
/

ORDER DENYING DEFENDANTS’ MOTION TO SEVER, TO CHANGE VENUE, AND TO
REASSIGN CASE [16]
Defendants filed a Motion to Sever, to Change Venue and to Reassign the
Case on January 15, 2016 [16]. Plaintiffs responded on January 29, 2016 [18] and
Defendants replied on February 5, 2016 [20]. For the reasons stated below, this
Motion is DENIED.
1. STATEMENT OF FACTS
Plaintiffs are nine John Doe prisoners who allege retaliation in the form of,
inter alia, retaliatory transfers, prolonged isolation, destruction of legal and other
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property, denial of visits, false misconduct tickets, verbal harassment and threats,
and intentional disclosures of Plaintiffs’ identities. These retaliatory acts took place
at various Michigan Department of Corrections (MDOC) facilities within both the
Western and Eastern District of Michigan. Plaintiffs experienced these acts of
retaliation after their identities were disclosed as participants in a pending suit
challenging the MDOC policy and practice of holding youths with adult prisoners,
following sexual and physical assaults at the hands of adult prisoners and custodial
staff while they were minors.
Plaintiffs allege that the incidents of retaliation are not separate, isolated
incidents against the Plaintiffs but were rather a concerted and widespread effort to
disclose Plaintiffs’ identities, which had been protected under Court order, to deter
Plaintiffs and other class members from participating in pending litigation in State
and Federal Court against the MDOC, supervisory officials and Wardens.
2. ANALYSIS
a. REQUEST TO SEVER
Defendants are seeking to sever the claims that deal with instances of
retaliation at facilities located within the Western District, which includes 24 of the
27 Defendants, pursuant to Federal Rule of Civil Procedure 21 (Fed. R. Civ. Pro.).
For the reasons stated below, this request is denied.
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Persons may be joined as Defendants if:
Any right to relief is asserted against them jointly, severally, or
in the alternative with respect to or arising out of the same
transactions, occurrence, or series of transactions or
occurrences;
and any question of law or fact common to all defendants will
arise in the action.
Fed. R. Civ. Pro. 20(a)(2). When considering whether parties have been
improperly joined, Courts are to give the words “transaction or occurrence” a
“broad and liberal interpretation” to “avoid a multiplicity of suits.” Lasa Per
L'Industria Del Maro Society Pero Azioni v. Alexander, 414 F.2d 143, 147 (6th
Cir.1969). Accordingly, the term transaction has been held to “comprehend a
series of many occurrences, depending not so much upon the immediateness of
their connection as upon their logical relationship.” Id at 147.
There is no mention of geography as a factor in a joiner analysis. Therefore,
the fact that some claims pertain to incidents that occurred in another judicial
district alone does not warrant severance of these claims. In considering whether
severance is appropriate, the Court will look to the factors of Fed. R. Civ. Pro.
20(a)(2).
Defendants argue that retaliation claims are, by their very nature factually
unique and individual, since they are not based on a theory of respondent superior
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liability. They assert the claims that arose out of events that took place in the
Western District should be severed since they did not arise out of the same
transaction or occurrence and do not share a common question of fact and law with
those that arose in the Eastern District.
Plaintiffs direct the Court’s attention to the Supreme Court decision in
United States v. Mississippi to support proper joinder of Defendants. 380 U.S. 128
(1965). In United States v. Mississippi, the Court reversed a District Court’s
decision severing claims because “the complaint improperly attempted to hold the
six county registrars jointly liable for what amounted to nothing more than
individual torts committed by them separately.” Id at 142. The Supreme Court held
that the claims against the various Defendants, who were from diverse
geographical locations, were properly joined because Plaintiffs alleged in their
complaint that, while acting individually, Defendants were acting pursuant to a
common plan that was seeking inevitably to deprive minorities of the right to vote,
meeting the requirements of Fed. R. Civ. Pro. 20(a). Id.
Courts within the Sixth Circuit have cited this case, and held that parties are
properly joined in cases where Defendants are “from different geographical areas,
acted independently of each other, and perhaps had never met one another” and are
alleged to have individually committed torts so long as Plaintiffs allege that the
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unlawful acts complained of satisfy the requirements of transactional relatedness
and commonality in fact or law. Patrick Collins, Inc. v. John Does 1-21, 282
F.R.D. 161, 166 (E.D. Mich.) report and recommendation adopted, 286 F.R.D. 319
(E.D. Mich. 2012). This can be satisfied by having an overarching policy or plan
that is alleged which necessarily results in unlawful activity. See Kunin v. Costco
Wholesale Corp., No. 10-11456, 2011 WL 6090132, at *4 (E.D. Mich. Dec. 7,
2011).
In the case at bar, Defendants are alleged to have retaliated against Plaintiffs
in a concerted effort to deter them from seeking relief. Similar to the policy at issue
in United States v. Mississippi, Defendants in this case are accused of committing
individual acts of retaliation in service of an overarching, unlawful purpose, to
deter Plaintiffs from seeking legal redress of their injuries. Moreover, the claims
share factual similarities since the general policies of MDOC are the same for all
of the facilities in which Defendants were housed. Thus, the allegations of
retaliation are “part of a series of transactions or occurrences the validity of which
depended to a large extent upon ‘question(s) of law or fact common to all of
them.’” United States v. Mississippi, 380 U.S. at 143.
Because the individual claims are alleged to be part and parcel of a broader
practice to punish Plaintiffs for speaking out about their sexual and physical
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assault, these claims satisfy the requirements of Fed. R. Civ. Pro. 20 and Defendant
Motion to Sever is, accordingly, denied.
b. REQUEST TO CHANGE VENUE
In civil actions, venue is appropriate in:
(1) a judicial district in which any defendant resides, if all defendants
are residents of the State in which the district is located;
(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) if there is no district in which an action may otherwise be brought
as provided in this section, any judicial district in which any defendant
is subject to the court's personal jurisdiction with respect to such
action.

28 U.S.C.A. § 1391(b). In the case at bar, three of the Defendants reside in the
Eastern District, so venue is proper and this Court owes Plaintiffs’ choice of venue
the deference required under Koster v. American Lumbermens Mutual Casualty
Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). Duha v. Agrium, Inc.,
448 F.3d 867, 873 (6th Cir. 2006).
For the convenience of the parties and witness, “a district court may transfer
any civil action to any other district or division where it might have been brought
or to any district or division to which all parties have consented.” 28 U.S.C.A.
§1404(a). When deciding whether to transfer a case or not, the Court considers the
following factors:
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(1) the convenience of the parties; (2) the convenience of the
witnesses; (3) the relative ease of access to sources of proof; (4) the
availability of process to compel attendance of unwilling witnesses;
(5) the cost of obtaining unwilling witnesses; (6) the practical
problems associated with trying the case most expeditiously and
inexpensively; and (7) the interest of justice.
Sullivan v. Tribley, 602 F. Supp. 2d 795, 800 (E.D. Mich. 2009).
Defendants’ argument rests on the proposition that transferring the severed
parties to the Western District is appropriate since all the severed parties reside in
the Western District. However, the Court has declined to sever the Defendants who
reside in the Western District, or those Defendants whose claims arose in the
Western District, therefore this argument is moot. Therefore, the Court must
consider the seven factors above with respect to all Defendants.
When considering these factors, it becomes clear that the Court should not
grant Defendants’ request to change of venue or transfer to the Western District
because substantial deference must be given to Plaintiff’s choice of forum. Four of
the nine Plaintiffs currently are incarcerated at facilities in the Eastern District. It is
therefore not more convenient for all parties to have the venue transferred to the
Western District. Because prison populations are inherently transient, it is simply
not possible to predict how this might change during the course of this litigation.
Indeed, there may well ultimately be even more Plaintiffs incarcerated in facilities
in the Eastern District in the future. Additionally, while it might be convenient for
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the Defendants who reside in the Western District, there are additional Defendants
residing in the Eastern District and there is no reason provided for why the burden
on inconvenience should be shifted and the deference for Plaintiffs’ choice of
forum should be disturbed. Similarly, the convenience of the witnesses and the
cost of obtaining willing witnesses do not require transfer since potential witnesses
reside in both districts.
The relative ease of access to sources to proof does not weigh in favor of
transfer either, since this concern “is a less significant factor in this era of
electronic communication” and depositions can be taken in locations convenient to
the witnesses residing in the Western District. Real Prop., 2015 U.S. Dist. LEXIS
118254 at *15; See also Barnett v. MCI Serv. Parts, Inc., 2005 U.S. Dist. LEXIS
8850, *6 (E.D. Mich. 2005). Defendants have not argued that compulsory process
will be an issue and therefore the Court does not attach any weight to this factor.
Duha, 448 F.3d at 877.
Finally, trial efficiency and the interests of justice do not require transfer.
Per the Plaintiff’s response, “[d]epositions will be held at the MDOC facility in
which each Defendant is employed.” [18 at 16]. Moreover, the Court has denied
the Motion to Sever. It is, therefore, not apparent that a transfer would serve the

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interests of justice since several of the Plaintiffs and three of the Defendants reside
in the Eastern District.
When all factors are appropriately considered, there is absolutely no
compelling reason to override Plaintiffs’ choice of forum. Considering the
deference that must be granted to Plaintiff’s choice, and the lack of adequate proof
of inconvenience, Defendant’s Motion for Transfer is denied.
c. REQUEST TO REASSIGN CASE
Defendants request that the case before the Court be reassigned to Judge
Cleland as either a companion case to the matter of Doe v. MDOC, et. al., No. 13cv-14356, or, alternatively, be reassigned to promote “docket efficiency” and
“judicial economy” under Local Rule 83.11(2) and (3).
Local Rule 83.11(b)(7)(A) defines a companion case as one “in which it
appears that: (i) substantially similar evidence will be offered at trial or (ii) the
same or related parties are present, and the cases arise out of the same transactions
or occurrences.” The case currently before Judge Cleland raises claims under the
Fourth, Eighth, and Fourteenth Amendments, as well as statutory violations of 18.
U.S.C. §§1591 and 1594, predicated upon the sexual and physical assault of the
Plaintiffs as minors while incarcerated in MDOC facilities. The instant case raises
retaliation claims. The only connection between these two cases is that Plaintiffs in
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this case allege that they were retaliated for the filing of a state class action and the
federal case pending before Judge Cleland.
The facts relevant to Doe v. MDOC, et. al., No. 13-cv-14356 are distinct
from the legally significant facts here. While acts of sexual and physical abuse are
referred to in Plaintiff’s amended complaint, they do not underpin the retaliation
claims at issue herein, which necessarily rest upon wholly distinct factual
allegations.
The only common parties in the two cases are the Director of the MDOC,
one warden, and four Plaintiffs. However, the claims do not overlap and these
shared parties alone do not require this Court to reassign the case at bar. The acts
alleged here concern retaliation, and thus do not share common facts, occurrences
and evidence with Judge Cleland’s case. Thaddeus-c v. Blatter, 175 F. 3d 378 (6th
Cir. 1999).
In this case, the Plaintiffs’ retaliation claims do not arise out of the alleged
occurrences of sexual and physical assault at issue in the case before Judge
Cleland. Rather, the retaliation claims arise out of the filing of that case (as well as

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currently pending state actions). See Jones v. City of Allen Park, 167 F. App'x 398,
409 (6th Cir. 2006).1
Defendants argue that, since the claims all stem from actions occurring
within the facilities in which Plaintiffs were or are incarcerated, there exists a
similar transaction or occurrence supporting the conclusion that this matter is a
companion case. However, as shown above, the facts required to prove the claims
in each case are wholly distinct, and the fact that the transactions relevant to both
cases occurred in the same place is not determinative. There is no showing that
substantially similar evidence will be presented or that the cases arise out of the
same transactions and occurrences.
In the alternative, Defendants seek reassignment under Local Rule 83.11(2)
and (3) for judicial and docket efficiency. However, for the reasons stated above,
reassignment is also inappropriate under these rules because there is no common

1

In Jones, the Court concluded that the retaliation case (Jones) was not companion
to discrimination case (Madrigal), notwithstanding the fact that there was an
overlap of some of the individuals involved in both suits. The Court reasoned that
the focus of the testimony was different, since the Jones case would present
witnesses to provide proof of unlawful retaliation, while the possible companion
case Madrigal would present witnesses to establish discrimination on the basis of
race and national origin. Therefore, Jones arose out of the litigation of Madrigal,
but did not share a common occurrence or transaction.

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question of law or fact. Thus, efficiency would be significantly served by a
reassignment since the claims are wholly distinct.
Accordingly, Defendants’ Motion for Reassignment is denied.
IT IS ORDERED that Defendants’ Motion to Sever, to Change Venue, And
to Reassign Case [16] is DENIED.
SO ORDERED.

Dated: March 4, 2016

s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

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