UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA

) DETROIT I NTERNATIONAL BRIDGE COM P ANY, et al ., ) ) ) P laintif fs, )

) v. ) Civil Action No. 10-476 (RMC) ) GOVERN MENT OF CANAD A, et al ., ) ) Defendan ts. ) )

MEMORAN DUM OP INION Pending befor e the Court is U.S. Def endants’ motion to transfe r venue to the United States District Court for the Easter n District of Mi chig an. The complaint, inter alia, alleg es U.S

. 1 Def endants and Canada viola t ed P laintiffs’ constitutional, statutory , trea ty , and contra ctual rig hts throug h actions aff

ecting Plaintiffs’ interests in the Ambassador Br idge , and violations o f the Administrative Procedur e Act, 5 U.S.C. § 551. Def endant Canada does not oppose the reque st, but Plaintiffs contest transfe r. The Court will deny U.S. Defe ndants’ motion to transfer venue. Plaintiffs a

re the owner s and operators of the Ambassador Br idge , a toll bridg e and international cause way betwee n the United States and Canada , which spans from Detroit, Michig an
to Winds or, Canada

. Plaintiffs own the exclusive rig ht, protec ted by trea ty , statute, and contra ct, to collect tolls on the Ambassador Br idge —one of the busiest links betw ee n the U.S. and

Collectively , the “U.S. De fenda nts” consist of the F eder al Hig hway Administration and 1 its Admini strator, the Coast Gua rd and its Commandant, the Secr etar ies of the De partment of Homeland Sec urity

and the De partment of T ranspor tation, and the United States of A merica

. The sole r emaining defe ndant is the Gover nment of Canada

.Canada

—which car

ries over one quarte r of commerc ial truck traff ic and substantial car t ra ff i c betwee n the two nations. Plaintiffs believe Canada has long wanted to expropriate their profitable toll-collection rig hts, and lacking any means to do so, has beg un a campa ign with the complicity of U.S. Def endants to undermine the value of Plaintif fs’ rig hts in the Ambassador Br idge

. Among other things, Plaintiffs complai n that the U.S. Coast Guar d’s delay and ultimate denial of their
reque sts for environmenta l clea ranc e and a nav i gat i o n permit to build a second span on the Ambassador Br idge to offe r more driving lanes wer e unlawful and prete x tual. The prete x t to slow
any upg rade s to the Ambassador Br idge, P l ai n t i ff s argue, arises from a joint eff ort by the United States and Canada to promote and construct a new jointly -owne d, international crossing , the DRI C
Br idge , which would lie within the immediate vicinity of th e Ambassador Br idge

. Plaintiffs also challeng e actions by the Fe dera l Hig hway Administration in promoting the construction of the DRI C
Br idge

. The Ambassador Br idge connec ts to Canada from the Easter n District of Michig an, which would also be true of the propose d DRI C Bridg e.

U.S. Def endants argue transfe r is war rante d under the discretio n a r y tr a n s f e r p r o v is ion of 28 U.S.C. § 1404(a)

. Section 1404(a) autho ri z es a co u rt to transfe r a civil action to any other district wher e it could have been broug ht “for the convenie nce of parties and witness es , i n t he interest of justice.” 28 U.S.C. § 1404(a)

. Section 1404(a) vests “discre tion in the dist rict cour t to adjudicate motions to transfe r acc ording to individualiz ed , case-by -ca se consideration of convenie nce and fairne ss.” Stewart Org., Inc. v. Ricoh Corp ., 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack

, 376 U.S. 612, 622 (1964))

. U.S. Def endants bear the burden of establishing that (a) Plaintiffs c ould ha

ve orig inally broug ht the action in the Ea stern District of Michig an, and that (b) considerations of convenie nce and the interest of justice weig h in favor of transfe r to that court.

2See Van Dusen , 376 U.S

. at 622–23; Trout Unlimited v. Dep’ t. of Agric ., 944 F. Supp. 13, 16

(D.D.C. 1996). U.S. Def

endants do not di spute that venue is properly befor e this Court; neither do Plaintiffs contest that they could have orig inally broug ht suit ag ainst U.S. Def endants in the Easter

n District of Michig an. Howeve r, Plaintiffs contend that C an ad a co uld only have been sued in the District, and not the transfe ree forum, per 28 U.S.C. § 1391(f) (4). U.S. Def endants respond that 2 Canada could have been proper ly sued in the Easter n District of Michig an, wher e the Ambassador
Br idge is located, beca

use that is wher e “a substantial part of proper ty that is the subject of the action is situated.” 28 U.S.C. § 1391(f) (1). Howeve r, Plaintiffs’ claims ag ainst Canada alleg e violations of trea ty , statute, and contra ct, s ee C o m p l

. [ Dk t

. # 1] Counts I –VI ; the claims do not seek to adjudicate title, o b t ai n p o s s essi on of a particula r piece of proper

ty , or vindicate interests in rea l
proper ty in a manner that would make the Easter n District of Michig an a proper v en u e fo r suit
ag ainst Canada under 28 U.S.C. § 1391(f) (1). Acc ording ly , U.S. Def endants have not m et t h ei r 2

“As a prer equisite to transfe r under § 1404(a) venue must be pr oper in the tra nsfer ee 2 district with respec t to every defe ndant and e ach c laim for re lief, and a ll defenda nts must have been a menable to pr ocess e manating from the tra nsfer ee district a t the time the action wa s initially filed.” Lamont v. Haig , 590 F.2d 1124, 1131 n.45 ( D.C. Cir. 1978) (citations omitted). Canada does not oppose the motion and make s no arg ument either in fa vor or a g ainst transfe r. Whil e venue objections may be wa ived by

a def endant, “ the power

of a D istrict Court under § 1404 (a) to transfe r an a ction to another district is made to de pend not upon the wish or wa iver of the de fenda

nt but, rather, upon w hether the transf

ere e district was one in which the ac tion ‘mig ht have be en broug ht’ by the plaintiff.” Hoffman v. Blaski , 363 U.S. 335, 343–44 (1960) (quoting 28 U.S.C. § 1404(a)). See, e .g., Spain v. Eagleburger Law Group , Civ. No. 4-1817, 2006 U.S. Dist. L EXI S 2 14369, *7–8 (D. Colo. Mar. 9, 2006) (holding in a RI CO matter foc using on a lleg ations that defe ndants made f

alse stateme nts about the owner ship of land, that althoug h the claims re fer ence the prope rty , it was not the “subjec t” of the a ction beca use plaintiff “ does not sue to re cover the proper ty or cle ar title to it, nor does he a sk me to decla re r ightf ul ownership of the proper ty ”); Monarch Normandy Square Partners v. Normandy SquareAssocs. Ltd. Partnership , 817 F. 3burden of showing that Plaintiffs could have orig inally filed suit in the Easter n District of Michig an on all claims and a s to all defenda nts. Assuming arguendo that the matter could have been orig inally broug ht in the Easter n District of Michig an, the Court finds transfe r is not war rante d for “the convenie nce of the parties and witnesses, in the intere st of justice.” 28 U.S.C. § 1404(a). Unde r § 1404(a ), a c ourt must balance

a number of case -spec ific private and public interest fac tors which collectively fall under the rubric of “inter est of justice.” See Ste wart Org ., 487 U.S. at 30. Specifica lly :

The private interest considerations include: (1) the plaintiffs’ choice of forum, unless the balanc e of convenie nce is strong ly in favor of the defe ndan t s; (2) the defe ndants’ choice of forum; (3) whether the claim ar o s e el s ewhe re; (4) the convenie nce of the parties; (5) the convenie nce of the witnesses ..., but only to the ex t en t t hat the witnesses may actua lly be unavailable for trial in one of the fora ; and (6) the ease of acc ess to source s of proof. The public interest considerations in cl u de: (1) the transfe ree ’s familiarity with the g o verning laws; (2) the rela tive cong estion of the cale ndars of the potential transfe ree and transfe ror courts; and (3) the local interest in deciding local contr oversies at home.

Supp. 899, 904 (D. Kan. 1993) (“The plaintiffs argue the se cond cla use of [28 U.S.C. § 1391(b)( 2)] supports venue bec ause the proper ty that is the subject of the a ction, namely the apar tment complex, i s located in the D istrict of Kansa s. This arg ument misconceive s the nature of this lawsuit. I t is not a suit centering on any rig hts, tit le or intere st in real prope rty . Rather, it is a fra ud and neg lige nt misreprese ntation case . Although the fac ts giving rise to plaintiffs’ alleg ations flow from the sa le of the a partment c omplex , the apa rtment complex it self is not the subject of the a ction. The ‘pr operty ’ at issue is the money the def endants a lleg edly

obtained as a result of their f

raudule nt conduct. The court re jects the notion that [§ 1391(b)(2)] applies whene ver r eal pr operty

is tang entially

involved in a dispute.”); Stockbridge- Munsee Cmty. v. United States , 593 F. Supp. 2d 44, 46 (D.D .C. 2009) (noting that venue w as prope r in transfe ree court be cause land that was subjec t of an Administrative Proce dure A ct cha lleng e of the Depa rtment of I nterior’ s decision to take c erta in lands into trust for an I ndian Tribe w as loca ted there ); but see Ve rizon Online Servs. v. R alsky , 203 F. Supp. 2d 601, 623 (E.D. V a. 2002) ( noting that venue w as prope r in forum unde r 28 U.S.C. § 1391(b)(2) beca use a substantial pa

rt of the actions g iving r ise to the claim occ urre d there and bec ause a “substantial par

t of the prope rty [Verizon’s computer e- mail server s] harmed by these a ctions occur

red in Virg inia”). 4Trout Unli mited , 944 F. Supp. a t 16. “A court has broa d discretion to deter mine wher e the pr oper balanc e lies and whether a case should be transfe rre d.” See Thayer/Patricof Educ. Funding, L.L.C

. v. Pryor Re

s. , 196 F. Supp. 2d 21, 31 (D.D .C. 2002). The majority of the private interest fac tors are either neutra l or indicate that transfe r is not just ified. Tra

nsfer is not ne cessa

ry for the convenie nce of the parties and/or witnesses. I t is hardly inconvenient for U.S. Def endants to litigate in the District, wher e they are headqua rtere d, and the convenie nce of witn es s es is not at issue as U.S. Def endants acknow ledg e that the matter will li kely be decide d on the administrative rec ord and not likely nece ssitate the live testimony of witnesses. Acc ess to proof is not implicated here as, ag ain, the matter will be d ecided on an administrative rec ord. L astly , there is no indication that this for um is inconvenient to Canada as it has not chosen to c ontest venue he re or offe r how its private inter ests are aff ecte d by the motion. U.S. Def endants also argue that the claims arose elsewhe re—in the Easter n District of Michig an. The complaint focuse s heavily on alleg ed actions by the U.S. Coast Guar d, the Fe dera l Hig hway Administration, and C anada , and col l u s i o n among the t hree , to interfe re with Plaintiffs’
trea ty , statutory , contr actua l and constitutional rig hts by , inter alia, impeding Plaintiffs’ ability to expand upon the Ambassador Br idge , promoting the DRI C Br idge at the expense of the Ambassador
Br idge , and deciding to build the DRI C B ridg e within c lose proxi mity to the Ambassador Br idge

. U.S. Def endants argue that t h e u n d erly ing proper ty interests at issue are located in the Easter n District of Michig an, and that the overw helming sequenc e o f events and g overnme ntal decisions underlying Plaintiffs’ claims occur red there

. Plaintiffs have rebutted these arguments by ref ere ncing

a substantial amount of meeting s, communications, and decision-making by the Coast Guar d and the Fe dera l Highw ay

Administration occurr ing in the D istrict.

5The Court does not doubt that a substantial part of the events leading to these claims

occur red in the Easter

n District of Michig an, but it is clea r that the same can be said of the District. A claim may arise in more than one forum, just as proper venue may exis t in more than one judicial district. See Lamont v. Haig , 590 F.2d 1124, 1134 (D.C. Cir. 1978) ; W einberge r v. Tucker , 391 F. Supp. 2d 241, 244 (D.D.C. 2005). Ultimately , “althoug h substantial, the connec tions to [t he Easter n District of Michig an] are no more signific ant than those to the District of Columbi a.” Shapiro, Lifs chitz & Schram, P.C. v. R.E. Hazard, Jr. Ltd. Pshp., 24 F. Supp. 2d 66, 71 (D

. D. C. 1998). Acc ording ly , while it may be said that the claims also arose in the Easter n District of Michig an, the Court cannot find that the claims only arose elsewhe re. This simply is not a case in which the fac ts underlying the claims hav e only a tang ential or minimal connec tion to the District; the fac tor of wher e the c laims arose is neutr al and doe s not support transfer

.

Fur thermore , in considering the private interest factors, the Court beg ins with the
p re s u m p t i o n that Plaintiffs’ forum choice should be left undisturbed. See Sinochem Int’l Co. v. Malay. Int’l Shipping Corp. , 549 U.S. 422, 430 (2007) (noting that the movant “ordina rily bear s a heavy burden in opposing the plaintiff’s chosen forum,” but “[w]hen the plaintiff’s choice is not its home forum, howeve r, the presumption in the plaintiff’s fa vor ‘a pplies with less f

orce ’”) (quoting Piper Aircraft Co. v. Reyno , 454 U.S. 235, 255–56 (1981)); see also W einberge r , 391 F. Supp. 2d

at 245. Thus, even when two potentially proper venues exis t, a plaintiff’s choice should be acc orded

3 d ef er en ce . Deme ry v. Montgomery Cnty. , 602 F. Supp. 2d 206, 210 (D.D.C. 2009). As U.S

.

Plaintiff Detroit I nterna tional Bridg e Company is a corpor ation incorporated under the 3 laws of the State of

Michig an, and ha s its principal place of business in that State, wher eas plaintiff The Cana dian Tra nsit Com pany

is a Canadian Spec ial Act cor poration having its principal plac e of business in Ontar io, Canada. See Compl. [ Dkt. # 1] ¶¶ 11–14. 6Def

endants bear the burden, the Court finds an absenc e of evidenc e that the convenie nce of the parties a nd/or witnesses, or a

ny private inter ests, outweig h Plaintiffs’ choice of for um. The applicable publi c int ere st fac tors also favor denying the motion. The first two public interest fac tors do not favor either the District or the Easter n District of Michig an beca use the court in both venue s would be equally competent and familiar with the gover ning f eder al law a

nd beca use bot h courts are e qually cong ested. U.S. Def endants assert, however, that the t hird public interest fac tor—the local interest in deciding local controve rsies at home—weig hs heavily in favor of transf er. To deter

mine whether a controve rsy is local in nature , the Court must consider a number of fac tors, includin g w h e r e the challeng ed decision was made , whether the decision direc tly aff ecte d the citizens of the transfe ree state, the location of the controve rsy , whether the issue involved fede ral constitutional issues rathe r than local proper ty laws or statutes, wheth er t he controve rsy involved issues of state law, whether the controve rsy has some national signific ance , and whether there was pe rsonal involvement by a DC off icial. Nat’l W ildlif e Fe d’n v. H

arvey , 437 F. Supp. 2d 42, 49 (D.D .C. 2006). One side of t he Ambassador Bridg e a n d t h e p ro posed DRI C Br idge fall wit hin the jurisdiction o f t h e E astern District of Michig an. Whether Plaintiffs are permitted to expand or modify the Ambassador Br idge , and whether the DRI C Br idge is built and its exact location, would
g reatly aff

ect the citizens of the Easter n District of Michig an g iven their immediacy to the bridg es, and the likelihood that they may enjoy the us e of such bridges more than citizens of other judicia l districts. Whil e the outcome of this matter could have substantial consequence s for the people of Michig an, this case nonetheless implicates both national and international conce rns, and cannot be said to be a loc al controve rsy .

7T h e gra v amen of the complaint is that fede ral ag encie s unlawfully interfe red wit h

Plaintiffs’ rig hts in the Ambassador Br idge

. As noted above, it appea rs that a substantial part of the decision -m ak i n g challeng ed by Plaintiffs occur red in the District, althoug h some aspec ts undoubtedly occur

red in the Easter

n District of Michig an as well; it can be said that the challeng ed decision and controve rsy occur re d i n b o t h venues. Also, this matter does not qualify as a local
controve rsy beca

use fede ral laws rathe r than State or local proper ty laws are direc tly implicated, and beca use off icials in the District of Columbia were persona lly involved in the controve rsy . M o s t importantly , this case has national signific ance rathe r than a mere “nati o n al
aspec t.” See Sierra Club v. Flowers , 276 F. Supp. 2d 62, 71 (D.D.C. 2003). The ca s e i n v olves important questions reg arding an inte rnational border crossing , also part of the national transporta tion infrastructur e; a pr oposed interna tional project with Canada ; a nd, to a lesser e x tent, rela tions betwee n the United States and Canada , including Plaintiffs’ alleg ations that the two nations colluded to injure Plaintiffs’ interests. A matter which could have drama tic eff ects on international crossing s, directly

implicating Cana da’s involvement in such ma tters, ca n hardly be ca lled local. The strong est argument in U.S. Def endant s ’ fa v or is that judicial economy favor s transfe r as simil ar litigation alre ady proce eds befor e the Easter n District of Michig an. I t is clea r that “par allel litigation of fa ct u ally rela ted case s in separ ate fora is ineffic ient” and is rec og nized as a judicial inconvenienc e. Handy v. Shaw, Bransford, Veilleux & Roth , 325 F.3d 346, 349 (D.C. Cir. 2003). “The pendenc y of a rela ted action in the transfe re e fo ru m weig hs in favor of a transfe r.” Fanning v. CAPCO Contrs., Inc. , 711 F. Supp. 2d 65, 71 (D.D.C. 2010). “Howe ver, the Court must also consider the extent to which the case s are truly rela ted and the possibili ty that the defe ndant is forum shopping .” Id

.
8Plaintiff D etroit I nterna tional B ridg e Company is c urre ntly challeng ing the Fe dera l Hig hway Administration’s approva l of the environmenta l impact statement for t h e DR I C Br idge projec t in the Easter

n District of Mich i gan under the Administrative Procedur e Act; the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321; Section 4(f) of the De p ar t m en t of Transpor tation Act, 49 U.S.C. § 303 and 23 U.S.C. § 138; and Section 106 of the National Historic Preser vation Act, 16 U.S.C. § 470f. Plaintiffs note that the Michig an suit does no t include defe ndants Coast Guar d and Cana da (a g ainst whom suit would not be proper in Michig an), that it involves Michig an state officia ls as defe ndants, and that the two lawsuits raise differ ent leg al claims, issues, and fac ts. Plaintiffs also maintain they do not challeng e any environmenta l or social impacts of the DRI C Br idge in this matter. U.S. Def endants aptly note that the Fe dera l Hig hway Administration’s Record of Dec ision approving the DRI C would be consider ed in both case s. To be sure, there will be some fac tual overla p betwee n the two case s. Howeve r the matters are sufficiently distinct in t erms of r eleva nt parties, fa cts, and the nature of the claims and relief , that the pendenc y of the suit in the Eastern District of Michig an does not outwe igh all other considerations which indicate that venue is proper in the District of Columbi a. U.S. Def endants have failed to sustain their bur den under 28 U.S.C. § 1404(a) to demonstra te otherw ise. Acc ording ly , U.S. Def

endants’ motion to transfe r venue to the U.S. District Court for the Easter n District of Michig an will be denie d.

Date: Ma y 31, 2011 /s/ ROSEMARY M. COL L YER United States District J udg e

9