The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District
This action comes before the Court on motions by the Plaintiffs
and motions to dismiss by Defendants the United States and the
State of New Jersey.
This case is brought by Plaintiffs Mr. Edward J. Mierzwa and
his wife, Mrs. Patricia A. Mierzwa, against the United States of
America, the State of New Jersey, the City of Garfield, the City
of Pequannock, the City of Fair Lawn, as well as several other
public and private defendants, pursuant to 42 U.S.C. § 1983.
Plaintiffs filed this Complaint on October 27, 2004.
This case concerns events which occurred after the Plaintiffs
filed an earlier lawsuit entitled Edward Mierzwa, et al. v.
State of New Jersey, et al., Docket No. 2:04-cv-721 ("the '721
case"). On March 5, 2004, this Court entered an Order dismissing
the claims against many of the defendants in the '721 case.
Thereafter, the Court denied the Plaintiffs' motion for
reconsideration. Plaintiff filed an interlocutory appeal of that
Order with the United States Court of Appeals for the Third Circuit. On September 23, 2004, the Court of Appeals dismissed
Plaintiff's appeal for lack of jurisdiction. On December 27,
2004, this Court dismissed the remaining counts in the '721 case.
In this case, the Complaint refers to events beginning on
February 19, 2004, the day after Plaintiffs filed the Complaint
in the '721 case. Plaintiffs allege that defendants Robert,
Saulius and Traci Shikhman "initiated chaotic police activity" on
February 19, 2004. Compl., First Count, ¶ 2. The Shikhman's
allegedly initiated this "chaotic police activity" in conjunction
with Defendants City of Garfield, City of Fair Lawn, City of
Pequannock and the State of New Jersey. See id. On that same
date, the State of New Jersey and others allegedly "committed
acts of gross negligence and outrageous conduct against
Plaintiff(s)." Compl., First Count, ¶ 3.
Plaintiffs further allege that on October 29, 2004, Plaintiff
Edward J. Mierzwa delivered a copy of the pleadings in the
earlier case to the home of Defendant Saulius Shikhman. Compl.,
First Count, ¶ 16. On November 2, 2004, Defendants Shikhman, the
State of New Jersey, and the City of Pequannock allegedly filed a
notice in lieu of complaint citing Plaintiff for trespassing.
Id. at ¶ 17.
In addition to the foregoing allegations, Plaintiffs seemingly
allege misconduct against this Court as well as the Court of
Appeals for the Third Circuit in connection with the disposition of Plaintiffs' Complaint and subsequent appeal in the
earlier case. See Compl., First Count, ¶¶ 1, 5, 7, 9-10, 12-15.
It should be noted that the Second Count of the Amended
Complaint is a common law loss of consortium claim on behalf of
Plaintiff Patricia A. Mierzwa.
On October 29, 2004, Plaintiffs filed a motion for change of
venue. Thereafter, on December 8, 2004, Plaintiffs filed a motion
for default judgment against the Defendants. On December 14,
2004, the State of New Jersey filed a motion to dismiss the
Complaint and all cross claims. On December 28, 2004, the
United States of America filed a motion to dismiss for lack of
jurisdiction. These motions to dismiss will also be addressed.
I. Standard for Motions for transfer of venue pursuant to
28 U.S.C. § 1404(a)
In a motion to transfer venue pursuant to 28 U.S.C. § 1404(a),
the Court is guided by the following:
For the convenience of the parties and witnesses, in
the interest of justice, a district court may
transfer any civil action to any district or division
where it might have been brought.
28 U.S.C. § 1404(a). Thus, the decision whether to transfer a
given action is in the sound discretion of the trial court. Cadapult Graphic Sys. v. Tektronix, Inc., 98 F. Supp. 2d 560
564 (D.N.J. 2000).
In this case, the Plaintiffs have not provided any reason for a
change of venue. Therefore, this Court is not persuaded that a
change of venue is appropriate. ...