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Schwamborn v. Federal Courts Eastern Dist. of New York

July 21, 2008

FRANK SCHWAMBORN, AND OTHERS WHO ARE SIMILARLY SITUATED, PLAINTIFF,
v.
FEDERAL COURTS EASTERN DISTRICT OF NEW YORK, CHIEF JUDGE RAYMOND DEARIE, SENIOR JUDGE I. LEO GLASSER, DISTRICT JUDGE SANDRA J. FEUERSTEIN, ROBERT HEINEMANN, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK, BENTON J. CAMPBELL UNITED STATES ATTORNEY EASTERN DISTRICT OF NEW YORK, BURTON T. RYAN JR., ASSISTANT UNITED STATES ATTORNEY, DEFENDANTS.



The opinion of the court was delivered by: Seybert, District Judge

MEMORANDUM AND ORDER

Pro se Plaintiff Frank Schwamborn ("Plaintiff") commenced this action in the Brooklyn Division of the Eastern District of New York on June 5, 2008 against Chief Judge Raymond Dearie, Senior Judge I. Leo Glasser, District Judge Sandra J. Feuerstein, Robert Heinemann, Clerk of the Court, United States Attorney Benton J. Campbell, and Assistant United States Attorney Burton T. Ryan. Plaintiff's self-styled class action complaint, brought pursuant to 42 U.S.C. § 1985 ("Section 1985") and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed. 2d 619 (1971)("Bivens"), is brought "on behalf of himself and others who are similarly situated." On June 25, 2008 Plaintiff's Complaint was transferred to the Central Islip Division of the Eastern District of New York. Presently before the Court is Plaintiff's motion for change of venue to the Southern District of New York and an application to proceed in forma pauperis.

BACKGROUND

In his Complaint and four supporting exhibits, Plaintiff alleges that Chief Judge Raymond Dearie, Senior Judge I. Leo Glasser, District Judge Sandra J. Feuerstein, Clerk of Court Robert Heinemann, United States Attorney Benton J. Campbell, and Assistant United States Attorney Burton T. Ryan (collectively "Defendants") conspired against him in an effort to "judge shop." Plaintiff alleges that the "judge shopping" occurred when an indictment was issued against him on May 19, 2006, and the case, U.S. v. Frank Schwamborn, 06-CR-328, was assigned to Judge Feuerstein.

Plaintiff alleges that Defendants incorrectly applied the Eastern District Guidelines for the Division of Business Among District Judges. Plaintiff was named as a defendant in a 2001 case, United State v. Aparo, 01-CR-416, which was assigned to Senior Judge Glasser. Thereafter, Plaintiff was named as a defendant in United States v. Schwamborn, 06-CR-328, assigned to Judge Feuerstein. Plaintiff claims that the latter case should have been assigned to Judge Glasser, because Judge Glasser is presiding over the earlier case. Plaintiff alleges that the decision to assign the later case to Judge Feuerstein was a conspiracy by Defendants to violate Plaintiff's due process rights, and a failure by Defendants to "safeguard the rights of individual defendants guaranteed by the United States Constitution that these Defendants are sworn by oath to safeguard and uphold." Complaint at ¶ 23. Plaintiff seeks class action certification "for all others who are similarly situated," as well as declaratory and injunctive relief.

DISCUSSION

I. Motion For Change Of Venue

Plaintiff requests a change of venue to the Southern District of New York because of "a conflict of interest between the Defendants and the subject matter of this Complaint." The decision to grant a motion to transfer under 28 U.S.C. § 1404 is within the broad discretion of the district court. See Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed. 2d 945 (1964); Filmline (Cross Country) Productions, Inc., v. United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989).

Section 1404(a) directs the court to conduct an "individualized, case-by-case consideration of convenience and fairness." Van Dusen, 376 U.S. at 622. Pursuant to 28 U.S.C. 1404(a) "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

The court must consider a variety of factors in determining whether the balance of conveniences and interests weighs in favor of a trial in the proposed transferee forum, including: (1) convenience of the parties; (2) convenience of the witnesses; (3) availability of process to compel the presence of unwilling witnesses; (4) access to sources of proof; (5) where the events at issue took place; (6) where the case can be more expeditiously and inexpensively tried; (7) remoteness of the forum from the situs of the event; and (8) the forum court's need to rely on foreign law. Blanco v. Banco Industrial de Venezuela, S.A., 997 F.2d 974, 980 (2d Cir. 1993) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)).

Here, Plaintiff does not provide facts supporting the required finding that venue would be proper in the Southern District of New York. Rather Plaintiff's Complaint explicitly states that "venue is properly seated within the Eastern District of New York, as the district where all parties reside and which the claims arose." Complaint at ¶ 3. Because Defendants reside in the Eastern District of New York and the events giving rise to the claim occurred in the Eastern District of New York, there is no legal basis for venue in the Southern District of New York.

Accordingly, Plaintiff's motion is DENIED.

II. Pro Se Petitioner May Not Represent Others

Plaintiff asserts that his claims are brought "on behalf of himself and others who are similarly situated." Complaint at ¶¶ 11-18. It is well settled that non-attorneys cannot represent anyone other than themselves and cannot prosecute class actions on behalf of others. See 28 U.S.C. § 1654; see also Iannaccone v. Law, 142 F.3d 553, 558 (2d Cir. 1998) (citing Pridgen v. Andersen, 113 F.3d 391, 393 (2d Cir. 1997)) ("because pro se means to appear for one's self, a person may not appear on another person's behalf in the other's cause. A person must be litigating an interest ...


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