author: JUNE L. GREEN, District Judge.

text:
    Anthony R. MARTIN-TRIGONA, Plaintiff, v. Philip SHIFF, et al., Defendants.
    Civ. A. No. 82-425.
    United States District Court, District of Columbia.
    Dec. 13, 1984.

      Martin-Trigona plaintiff, pro se.
    John T. Coyne, David P. Durbin, Robert F. Condon, Nathan Dodell, Asst. U.S. Atty., Washington, D.C., for defendants.
   MEMORANDUM OPINION

JUNE L. GREEN, District Judge.

On February 12, 1982, pro se plaintiff Anthony R. Martin-Trigona filed this action seeking damages and injunctive relief against Philip Shiff, Jason Shrinsky, Irving Perlmutter, Daniel Meister, and the Federal Communications Commission (“FCC”), contesting the loss of his radio station, WNHC, and its broadcast license from the FCC. Mr. Martin-Trigona alleges that defendants conspired to take away the FCC license from the radio station through involuntary bankruptcy proceedings and, therefore, violated the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq., and the Hobbs Act, 18 U.S.C. § 1951; obstructed justice in contravention of 18 U.S.C. § 1503 and 18 U.S.C. § 1505, and violated his civil rights under 42 U.S.C. § 1985(2). He asserts a number of other miscellaneous federal and state law claims which need not be addressed at this juncture.

In February 1982, this Court, sua sponte, dismissed plaintiffs complaint, finding that under the doctrine of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976), “this forum is inconvenient for litigation concerning an out-of-state radio station; jurisdiction was first exercised in another forum; and dismissal would avoid piecemeal litigation.” Martin-Trigona v. Shiff, No. 82-425, slip op. at 1 (D.D.C. Feb. 26, 1982).

On appeal, the Court of Appeals for this Circuit reversed the Court’s determination, requesting the Court to examine the effects of Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50, 102 S.Ct. 2858, 73 L.Ed.2d 598 (1982), a decision rendered by the Supreme Court subsequent to this Court’s initial memorandum of dismissal. See Martin-Trigona v. Smith, 712 F.2d 1421, 1426 (D.C.Cir.1983).

In September 1983, after the case was remanded to the district court, defendant Shiff moved to dismiss this action for lack of personal jurisdiction and failure to state a claim upon which relief can be granted. Plaintiff failed to oppose that motion until November 9, 1983. On November 17, 1983, defendant Shiff replied to Mr. Martin-Trigona’s opposition to the motion to dismiss. On October 24, 1983, defendant FCC also moved to dismiss for lack of subject-matter jurisdiction. Plaintiff failed to file an initial opposition to this motion until May 14, 1984.

In January 1984, this Court granted plaintiff’s motion for leave to charge costs of re-service, after having made service in accordance with Rule 4(c)(2)(C)(ii) on defendants Meister and Perlmutter. The Court sees nothing on the record which indicates that plaintiff effected re-service, nor has he ever submitted proof of costs for said re-service of defendants.

The Court stayed all discovery in this matter until it had the opportunity to hear argument on the motions or at least until all defendants which Mr. Martin-Trigona intended to serve had been brought before this Court. The Court, in the interest of judicial economy, also temporarily delayed consideration of the motions to dismiss until they all had become ripe.

Further, the Court scheduled argument dates for the motions to dismiss, but because of Mr. Martin-Trigona’s incarceration for contempt, the Court cancelled indefinitely argument on the motions.

In May 1984, Mr. Martin-Trigona filed numerous motions before the Court. He filed a motion for leave to proceed in for-ma pauperis, which was denied without prejudice. The Court in that order indicated that if Mr. Martin-Trigona provided the Court, in some detail, the facts of his poverty, the Court would reconsider his motion.

The Court also denied plaintiff’s motion to file an amended complaint. The Court denied plaintiff’s motion at that time at least until he was able to provide the Court, in detail, the basis of his new complaint, or submit a copy of his proposed amended complaint.

Plaintiff also filed a petition for writ of habeas corpus ad testificandum. This Court, however, did not act on this motion immediately. Because the Court determined that it would not hold oral argument on the motions, action on Mr. Martin-Trigona’s petition was unnecessary at that time.

On June 21, 1984, the Court granted the FCC’s motion to dismiss, finding that exclusive jurisdiction for judicial supervision of the FCC is vested with the United States Court of Appeals for the District of Columbia (“D.C. Circuit”).

Presently before this Court are a number of motions that must be decided. They include plaintiff’s “Motion to Recuse Judge;” plaintiff’s petition for »vrit of habeas corpus ad testificandum, defendants’ oppositions thereto; defendant Shift’s motion to dismiss for lack of personal jurisdiction, plaintiff’s opposition thereto, defendant’s reply to plaintiff’s opposition; defendant Shrinsky’s motion for partial summary judgment, plaintiff’s opposition thereto; plaintiff’s renewed motion to proceed in forma pauperis; and plaintiff’s renewed motion to amend complaint. In addition, on October 24, 1984, the Court, sua sponte, ordered the parties to submit, by November 15, 1984, briefing as to the issue of whether this action should be transferred to the District of Connecticut pursuant to the provisions of 28 U.S.C. § 1404. The Court will address each of these issues seriatim.

A. Plaintiff’s Motion to Recuse Judge

On November 19, 1984, plaintiff filed a motion to recuse me from this action. The basis of Mr.. Martin-Trigona’s motion appears to be that he is unhappy with the pace that this action has taken and disagrees with this Court’s determinations of issues that it has been asked to resolve. Mr. Martin-Trigona states in his motion:

There comes a time when the court’s antipathy for a litigant, and when a continuing pattern of sua sponte delays, can amount to denial of a “neutral and detached judge” as required by the Constitution. This court is seemingly incapable of approaching or deciding the issues with an “unjade eye.”

Motion to Recuse Judge at 1 (citation omitted).

Mandatory disqualification of a district court judge may be premised on either 28 U.S.C. § 144 or 28 U.S.C. § 455. Under section 144:

Whenever a party to any proceeding in a district court makes and files a timely and sufficient affidavit that the judge ... has a personal bias or prejudice against him in favor of any adverse party, such judge shall proceed no further therein....
******
The affidavit shall state the facts and the reasons for the belief that bias or prejudice exists.... A party may file one such affidavit in any case. It shall be accompanied by a certificate of counsel of record stating that it is made in good faith.

28 U.S.C. § 144. It is plain that, in determining whether recusal shall be granted, the facts in the affidavit shall be taken as true. Therefore, the only issue for this Court to determine is whether the allegations made are legally sufficient to establish personal bias or prejudice. Berger v. United States, 255 U.S. 22, 35-36, 41 S.Ct. 230, 233-34, 65 L.Ed. 481 (1921); Mitchell v. Sirica, 502 F.2d 375, 379 (D.C.Cir.1974); Tynan v. United States, 376 F.2d 761, 764 (D.C.Cir.), cert. denied, 389 U.S. 845, 88 S.Ct. 95, 19 L.Ed.2d 111 (1967).

In reviewing plaintiff’s motion, the Court first notes that plaintiff has failed to comply with the requirements of section 144 which demands, inter alia, that a timely and sufficient affidavit outlining the personal bias or prejudice be submitted along with detailed facts and reasons supporting that affidavit. Failure to submit such an affidavit shall defeat the charge of bias. See, e.g., United States v. Azhocar, 581 F.2d 735, 738 (9th Cir.1978), cert. denied, 440 U.S. 907, 99 S.Ct. 1213, 59 L.Ed.2d 454 (1979). Further, Mr. Martin-Trigona has failed to accompany his motion with the good faith certification as expressly required by section 144. It is plain that failure to provide these documents amounts to a significant defect and shall defeat a motion for disqualification. E.g., Walters v. United States, 404 F.Supp. 996, 998 (S.D.N.Y.1975), aff'd mem. 542 F.2d 1166 (2d Cir.1976). The Court takes this position, particularly in light of Mr. Martin-Trigona’s past efforts to recuse judges upon receiving adverse rulings in his cases. See, e.g., In re Martin-Trigona, 573 F.Supp. 1237 (D.Conn.1983); In re Martin-Trigona, In re New Haven Radio, Inc., Misc.Civ. H 83-62 (D.Conn. Apr. 25, 1984).

Even assuming that plaintiff satisfied the express requirements of section 144, the claims made by Mr. Martin-Trigona cannot serve as a basis for recusal. Adverse rulings alone do not amount to a claim of personal bias or prejudice as outlined in section 144. Berger v. United States, 255 U.S. at 34, 41 S.Ct. at 233. United States v. Azhocar, 581 F.2d at 739. Disagreement with a court’s rulings in an action cannot serve as a basis for recusal. E.g., Hanger v. United States, 398 F.2d 91, 101 (8th Cir.1968), cert. denied, 393 U.S. 1119, 89 S.Ct. 995, 22 L.Ed.2d 124 (1969). Further, conclusory allegations of personal bias because of sua sponte delays by this Court cannot amount to a justification for a recusal without some facts submitted pursuant to section 144. Plaintiff must assert more, and must do it pursuant to the strict provisions of the recusal statute. Failure to comply with the terms of section 144 permits this Court to deny plaintiff’s motion.

As the Court in Simonson v. General Motors Corp., 425 F.Supp. 574 (E.D.Pa.1976) noted:

Recusal and reassignment is not a matter to be lightly undertaken by a district judge. While, in proper cases, we have a duty to recuse ourselves, in cases such as the one before us, we have concomitant obligations not to recuse ourselves; absent a valid reason for recusal, there remains what has sometimes been termed a “duty to sit.”

Id. at 578 (citation omitted) (emphasis in original); see also Laird, Secretary of Welfare v. Tatum, 409 U.S. 823, 837, 93 S.Ct. 7, 14, 34 L.Ed.2d 50 (1972) (“a Federal judge has a duty to sit where not disqualified which is equally as strong as the duty to not sit where disqualified.”) (emphasis in original). Accordingly, plaintiffs Motion to Recuse Judge is denied.

B. Plaintiffs Petition for Habeas Corpus Ad Testificandum

As noted, supra, the Court to date has not acted on plaintiffs .petition for habeas corpus ad testificandum in this case because it was not prepared to act on defendant Shiff’s motion to dismiss. Because of recent developments in the law and because it is evident that Mr. MartinTrigona is most likely going to remain incarcerated, for at least the foreseeable future, at the Danbury Federal Correctional Facility for civil contempt, the Court must, in the interest of all the parties, now act on the dispositive motions that are before it.

Mr. Martin-Trigona’s petition states that if the Court is to hold a hearing on the dispositive motions in this case, the Court cannot conduct a fair hearing without his presence. The Court has been cognizant of Mr. Martin-Trigona’s concerns and, therefore, has not rescheduled a hearing date upon receiving notice that plaintiff is to remain incarcerated indefinitely. Therefore, the remaining issue that confronts this Court concerning plaintiff’s petition is whether a hearing is required before it may act on dispositive motions that affect this case.

To the Court’s knowledge, there are no requirements that the Court must grant a party the opportunity for a hearing. In fact, the local rules state that “[a] party may in his motion or his opposition specifically request an oral hearing, but the allowance of an oral hearing shall be within the sole discretion of the court.” Local Rule 1-9(g) (emphasis added). Further, the Court notes that there are no disputed elements of fact that are at issue here. What is at stake in these remaining motions are questions of law. Finally, as noted, supra, plaintiff has had every opportunity to oppose or pursue motions and submit written memorandum in support of his position without restrictions as to timeliness. This has been true, even to the potential prejudice of defendants.

Because the Court finds that plaintiff’s presence for argument is not necessary in order for it to determine the merits of the motions that are before it, and because plaintiff has failed to make a strong showing that such a writ should be granted, the Court denies plaintiff’s petition.

C. The Court’s Inquiry of Transferring this Case to the District of Connecticut

On October 23, 1984, the Court, sua sponte, inquired from the parties whether this case should be transferred to the District of Connecticut. After receiving briefing from the parties on this proposal, the Court has determined that transfer at this juncture may not be in the best interests of the parties. Because all the litigants in this action are in agreement with this conclusion, the Court need not elaborate on this decision. Therefore, the Court finds that, in the interests of justice, the case shall not be transferred to the District of Connecticut and shall remain in this jurisdiction.

D. Defendant Shiff’s Motion to Dismiss

Defendant Philip Shiff has moved for an entry of an order dismissing the complaint against him for lack of personal jurisdiction and for its failure to state any claim upon which relief may be granted. After reviewing the entire record in this case and the pleadings submitted with this motion, the Court grants defendant’s motion.

Defendant Philip Shiff is a resident of the State of Connecticut. Motion to Dismiss, Affidavit of Philip Shiff, at ¶ 1. He is not now nor has he ever been a resident of the District of Columbia. Id. Mr. Shiff has never maintained an office for the practice of law in the District of Columbia, nor did he carry on any legal activities within the District. Id. at ¶¶ 2, 3, 4. The injuries asserted by plaintiff did not occur within the District of Columbia.

The Court must dismiss the complaint against defendant Shiff because there exists no in personam jurisdiction over him. As noted above, plaintiff has no contact with the District of Columbia. Any basis for the exercise of personal jurisdiction over defendant Shiff must be pursuant to the District of Columbia “long-arm statute,” D.C.Code § 13-423 (1981), consistent with due process limitations contained in the United States Constitution.

Plaintiff cannot begin to meet these requirements because it is plain from the unrefuted affidavit submitted in defendant’s motion to dismiss that Mr. Shiff has had virtually no contact with the District of Columbia. Therefore, the Court lacks in personam jurisdiction over defendant Shiff.

Plaintiff asserts, however, that this Court does have in personam jurisdiction over defendant Shiff pursuant to 18 U.S.C. § 1965. Section 1965 of Title 18, United States Code is the venue and process provision of the RICO statute. Section 1965 provides in pertinent part:

(a) Any civil action or proceeding under this chapter against any person may be instituted in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs.
(b) In any action under section 1964 of this chapter in any district court of the United States in which it is shown that the ends of justice require that other parties residing in any other district be brought before the court, the court may cause such parties to be summoned, and process for that purpose may be served in any judicial district of the United States by the marshal thereof.

18 U.S.C. § 1965(a), (b) (emphasis added).

Plaintiff asserts that it is in the “interests of justice” to invoke personal jurisdiction pursuant to section 1965 in order to bring defendant Shiff in this action. See Response to Motion to Dismiss at 2.

The Court finds plaintiff’s argument to be without merit. Pursuant to the well-reasoned decision in Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482 (2nd Cir.1984), there must be a prior criminal conviction for the predicate acts which form the basis of the civil RICO claims. Id. at 496. Failure to have an underlying criminal conviction against the named defendant bars a plaintiff from pursuing RICO claims. Id.; see also Berg v. First American Bankshares, Inc., 599 F.Supp. 500, 505-07 (D.D.C.1984). For further analysis, see infra at 1190. Therefore, because the Court finds that there exists no basis upon which it can exercise personal jurisdiction over defendant Shiff, it must dismiss the complaint as to him.

E. Defendant Shrinsky’s Motion for Partial Summary Judgment

Defendant Shrinsky, on December 15, 1984, moved for summary judgment on all RICO claims brought against him. Although his motion is captioned as a partial summary judgment motion pursuant to Rule 56 of the Federal Rules of Civil Procedure, the Court finds that his motion can be more accurately characterized as a partial motion to dismiss.

Defendant Shrinsky seeks dismissal of all RICO claims asserted against him. The basis of his motion, pursuant to the holdings in Sedima and Berg, is that where the named defendant has not been convicted of any underlying predicate offense alleged by a plaintiff in the complaint in support of a RICO claim, that claim may not survive a motion to dismiss. See Sedima, S.P.R.L. v. Imrex Co., 741 F.2d at 496-503; Berg v. First American Bankshares, Inc., 599 F.Supp. 500, 505-07.

In reviewing the cases cited by defendant Shrinsky and examining those courts’ analyses, it is quite plain that defendant’s argument has merit. As the Second Circuit has noted:

[I]f Congress had intended to permit defendants in every “garden-variety” fraud or securities violation case to be stigmatized as “racketeers,” on the basis of the preponderance of the evidence, it would have said so in plainer language than it did.

Sedima, S.P.R.L. v. Imrex Co., 741 F.2d at 503. Accordingly, this Court must dismiss all RICO claims brought against defendant Shrinsky.

F. Plaintiff’s Motion to Reconsider Order of June 21, 1984, Denying Leave to Add Additional Defendants

On August 15, 1984, plaintiff moved to reconsider this Court’s order denying leave te add additional defendants. In its June 21, 1984 order, the Court denied without prejudice plaintiff’s motion to add additional defendants.- The Court noted that plaintiff failed to provide it with either a proposed amended complaint or statement of any particularized relationship between the proposed new defendants and the present defendants and without such a presentation, the Court denied his motion.

In plaintiff’s motion for reconsideration, he states that the particularized relationships between the parties are that:

[T]he new defendants are co-conspirators of the instant or present defendants. At the time the original complaint was filed, plaintiff was not aware of the relationship between the prospective defendants and the present defendants, and is still not certain when and how the relationship arose.

Plaintiff’s Motion to Reconsider Order of June 21, 1984 Denying Leave to Add Additional Defendants at 2.

The Court is not satisfied with Mr. Martin-Trigona’s artfully vague explanation. It neither outlines in detail the relationships which exist between the parties nor explains what “conspiracy” has actually occurred. If plaintiff seeks to attain leave to file an amended complaint, he must specifically satisfy the requirements and the general intent of Rule 15(a) of the Federal Rules of Civil Procedure. See also Wright & Miller, Federal Practice and Procedure: Civil § 1485 (1971) (“A motion to amend under Rule 15(a), as is true of motions generally, is subject to the requirements of Rule (7)(b), and must set forth with particularity the relief or order requested and the grounds supporting the application.”)

The Court notes further that the District Court for the District of Connecticut imposed a permanent injunction upon Mr. Martin-Trigona enjoining him from instituting any action in a federal court without first obtaining the permission from the court where the action is brought. See In re Martin-Trigona, 573 F.Supp. 1245 (D.Conn.1983). That district court’s order states in pertinent part:

[i]t is further ORDERED:
That Anthony R. Martin-Trigona is hereby permanently enjoined from the filing of any action, in any court (state or federal) of the United States, arising out of (1) the acts of any person or entity involved in any capacity with either the litigation of any bankruptcy proceeding involving Anthony R. Martin-Trigona or any of the properties in which he claims or seeks to assert an interest filed on or before the date of this order or (2) the litigation of any civil action relating to such bankruptcy proceedings and filed by him. Upon the conclusion of any bankruptcy proceeding in which Anthony Martin-Trigona claims an interest and upon certification by the bankruptcy judge before whom the proceeding was held and to whom a copy of this order has been provided by Anthony R. MartinTrigona, together with an application for such certification, Anthony R. Martin-Trigona may file a consolidated appeal from such bankruptcy proceedings, contingent upon the granting of leave by the court in which the appeal is sought to be filed (and pursuant to the terms of the following paragraph of this order). And it is further ORDERED:
That Anthony Martin-Trigona is hereby permanently enjoined from filing any new action or proceeding in any court (state or federal) of the United States, without first obtaining leave of that court. In seeking such leave to file Anthony R. Martin-Trigona must comply with each of the following requirements. First, he must file with the complaint a motion captioned, “Motion Pursuant to Court Order Seeking Leave to File.” Second, as Exhibit 1 to that motion he must attach a copy of this order. Third, and as Exhibit 2 to that motion, he must attach either a declaration prepared pursuant to 28 U.S.C. § 1746 or a sworn affidavit certifying that the claim he wishes to present is a new claim never before raised by him .in any court. Fourth, and as Exhibit 3 to that motion, he must identify by listing the full caption of each and every suit previously filed by him or on his behalf in any court against each and every defendant to the suit he wishes to file. Fifth, and as Exhibits) 4 (and continuing as necessary) to that motion he must provide a copy of each such complaint and a certified record of its disposition. Sixth, he must serve a copy of this order on each defendant if and when leave to serve the complaint in the new case is granted. Failure to comply with the terms of this order may be sufficient grounds for a court to deny any motion for leave to file made by Anthony R. Martin-Trigona. Further, the failure by Anthony R. Martin-Trigona to advise a court in which he has filed a lawsuit of this order or to comply with this order may be considered by such court a sufficient defense to sustain a motion to dismiss such a lawsuit.

Id. at 1266-67. This order by United States District Judge Cabranes has been upheld by the United States Court of Appeals for the Second Circuit in In re Martin-Trigona, 737 F.2d 1254 (2d Cir.1984), but was remanded in part, stating that the order need “not necessarily require extension of each provision of the injunction to activities brought in state court.” Id. at 1262. The Second Circuit, however, upheld the injunction as it relates to all federal courts.

Because Mr. Martin-Trigona has failed to outline, in specific detail, the scope of his proposed amended complaint, which would add numerous new defendants, and given Judge Cabranes’ order enjoining plaintiff from commencing a new action without prior approval, the Court cannot, at this time, grant plaintiff’s motion for reconsideration. If plaintiff submits the detailed explanation or the proposed amended complaint to the Court, and the Court determines that this amended complaint does not, in fact, amount to a new complaint within the meaning of Rule 15(c) of the Federal Rules of Civil Procedure, leave will be granted to plaintiff to file his amended complaint. Until that time, however, plaintiffs motion is denied.

G. Renewed Motion to Proceed In Forma Pauperis

On June 21, 1984, the Court denied without prejudice plaintiffs motion to proceed in forma pauperis for failure to state specific facts as to his poverty.

Plaintiff has renewed his motion to proceed in forma pauperis pursuant to 28 U.S.C. § 1915 with what he states to be an “affidavit.” In examining the original “affidavit” filed with the Clerk, the Court notes that this “affidavit” is not taken before a person having authority to witness the affirmation, such as a notary public. Failure to comply with the requirements of 28 U.S.C. § 1915(a) generally prevents a court from granting a plaintiffs motion to proceed in forma pauperis. See Atkins v. Sullivan, 387 F.2d 140, 141 (10th Cir.1967), cert. denied, 391 U.S. 927, 88 S.Ct. 1826, 20 L.Ed.2d 666 (1968) (where affidavits are not notarized trial court correct in not granting leave to file in forma pauperis). Because the Court is cognizant that Mr. Martin-Trigona has refused to testify in bankruptcy proceedings taking place in the District of Connecticut concerning the extent of his assets, see, e.g., In re Anthony R. Martin-Trigona, In Re New Haven Radio, Inc., 742 F.2d 1434 (2d Cir.1984) (unpublished decision), it must require that Mr. Martin-Trigona submit his “affidavit” under oath. Upon plaintiffs filing of an affidavit affirmed before a notary public or another such person having authority to witness the affirmation, the Court shall act on his motion to proceed in forma pauper-is.

H. Discovery

The Court stayed all discovery in this case until it could act on the dispositive motions before it. Because the Court now has resolved numerous questions dispositive of certain issues, as well as of certain parties, discovery may proceed.

An order consistent with this memorandum opinion is attached.

ORDER

Upon consideration of plaintiffs “Motion to Recuse Judge,” defendants’ oppositions thereto; plaintiff’s petition for writ of habeas corpus ad testificandum, defendants’ oppositions thereto; defendant Shift’s motion to dismiss, plaintiff’s opposition thereto, defendant’s reply to plaintiff’s opposition; defendant Shrinsky’s motion for partial summary judgment, plaintiff’s opposition thereto; plaintiff’s renewed motion to amend complaint, the entire record herein, and for the reasons set forth in detail in the accompanying memorandum opinion, it is by the Court this 12th day of December 1984,

ORDERED that plaintiff’s “Motion to Recuse Judge” is denied; it is further

ORDERED that plaintiff’s petition for writ of habeas corpus ad testificandum is denied without prejudice; it is further

ORDERED that defendant Shiff’s motion to dismiss is granted; it is further

ORDERED that the plaintiff’s claims alleging violations of the Racketeer Influenced Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq., against defendant Shrinsky are dismissed; it is further

ORDERED that plaintiff's renewed motion to amend complaint is denied without prejudice; and it is further

ORDERED that discovery is no longer stayed.

      . In examining plaintiffs motion, it appears that he does not seek recusal via section 455 because that section relates to a judge’s interest because of prior involvement with the case, the parties, or the attorney in the action.

      . Prior to the Court’s apprisal of Mr. Martin-Trigona’s incarceration, the Court planned to hold a hearing on the various motions that were before the Court in order to expedite matters in this case.

      . Pursuant to D.C.Code § 13-423, personal jurisdiction may be exercised over a nonresident defendant only under the following circumstances:
      (a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s—
      (1) transacting any business in the District of Columbia;
      (2) contracting to supply services in the District of Columbia;
      (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;
      (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia;
      (5) having an interest in, using, or possessing real property in the District of Columbia;
      ******
      (b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him.
      D.C.Code § 13-423 (1981 ed. and 1984 Supp.).

      . Plaintiff failed to respond to this motion until December 10, 1984, twelve days after an opposition or motion for extension of time was due.


source: Caselaw Access Project

license: Public Domain

text:
    Anthony R. MARTIN-TRIGONA, Plaintiff, v. ACTON CORPORATION, et al., Defendants.
    Civ. A. No. 81-3065.
    United States District Court, District of Columbia.
    Dec. 13, 1984.

      Martin-Trigona plaintiff, pro se.
    John H. Tracy, Lynda Troutman O’Sullivan, Gadsby & Hannah, Washington, D.C., for defendants.
   MEMORANDUM OPINION

JUNE L. GREEN, District Judge.

This matter is before the Court on defendants Acton Corporation (“Acton”), Acton Communications of Massachusetts (“ACM”), Acton Foodservices Corporation (“AFC”), and Gadsby & Hannah’s (“G & H”) motion to “Dismiss the Complaint as to' them and for Sanctions Against Plaintiff,” plaintiffs opposition thereto, and supplemental briefing on the motion; the Federal Communications Commission’s (“FCC” or the “Commission”) motion to dismiss, and the entire record herein. For the reasons outlined below, the Court grants defendants’ motions and dismisses this action as to all parties.

I.

Defendants Acton, ACM, AFC seek to dismiss this action because this Court lacks in personam jurisdiction over them. Defendants AFC and G & H assert that the action must be dismissed because the amended complaint adding them to the action was filed in violation of an order which permanently enjoined plaintiff from commencing an action without prior approval from the district court where the action is filed. Acton, ACM, AFC, and G & H request that this Court impose sanctions against plaintiff in the form of reasonable attorneys’ fees and costs. Defendant FCC seeks to dismiss this matter as against it because the Court lacks subject matter jurisdiction over the FCC.

This action was brought by pro se plaintiff Anthony Martin-Trigona on December 16, 1981. In his sixteen-page complaint, plaintiff asserts an array of confusing and complex claims that all seem to center around a dispute between plaintiff and defendants over the license for the radio station, WDLM, in Waltham, Massachusetts. Plaintiff contests the loss of the radio station through involuntary bankruptcy proceedings. He asserts claims arising under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961 et seq. (“RICO”), and the Hobbs Act, 18 U.S.C. § 1951. Plaintiff also asserts claims of obstruction of justice in contravention of 18 U.S.C. § 1503 and 18 U.S.C. § 1506, and claims violation of his civil rights pursuant to 42 U.S.C. § 1985(2).

In February 1982, this Court sua sponte dismissed this action before service of process was effected on any defendants. The principal basis for dismissal was that under the doctrine of Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976); it would be inconvenient to determine matters relating to a Massachusetts radio station; further, jurisdiction was first exercised by a federal district court in Massachusetts; and finally, dismissal of this action would avoid piecemeal litigation. See Martin-Trigona v. Acton Corp., No. 81-3065, slip op. at 2 (D.D.C. Feb. 26, 1982). Mr. Martin-Trigona appealed that decision, and on June 30, 1983, the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”) vacated and remanded this Court’s decision with instructions to determine whether there was any basis for the claims asserted and, if so, to determine whether these claims could be raised in the concurrent bankruptcy proceeding.

After the mandate from the D.C. Circuit was issued, plaintiff, on October 31, 1983, filed an amended complaint, adding AFC, G & H, and the Federal Deposit Insurance Corporation (“F.D.I.C.”) to this action. This amended complaint seems to allege that the additional defendants conducted a scheme to defraud plaintiff of certain assets, including the radio station, WDLM.

On April 16, 1984, defendants Acton, ACM, AFC, and G & H filed a joint motion to dismiss. Plaintiff failed to respond to this motion in a timely fashion so on May 9, 1984, defendants submitted a memorandum suggesting that their motion to dismiss be granted. On May 18, 1984, plaintiff filed a “Notice of Temporary Inability to Respond to Motion to Dismiss” and “Motion for Extension of Time Pending Plaintiff’s Release from Custody for Civil Contempt.” In the Notice, plaintiff requested that the Court withhold decision on this matter until he is released from custody for civil contempt.

The Court, in an order signed June 21, 1984, denied Mr. Martin-Trigona’s request for an indefinite continuance and instructed him to respond to defendants’ motion within 30 days from the date of the order. The Court also ordered that failure to submit a response to defendants’ motion within that time period, “shall permit this Court to treat the motion as conceded pursuant to Rule l-9(d) of the Local Rules of this Court.”

On July 17, 1984, plaintiff wrote a letter to Chambers, stating that he would be unable to comply with the Court’s order. That letter was immediately returned to the plaintiff and he was informed that “any correspondence to the Court must be done through formal motion filed with the Clerk of the Court with proper service to counsel opposite.” Letter from Chambers (July 20, 1984). No motion for an extension of time was received by this Court.

On July 31, 1984, plaintiff filed a motion “For Leave to File Instanter.” The Court granted plaintiff’s motion and accepted his opposition to the motion to dismiss for filing. Replies and supplemental responses to defendants’ motion have been filed by the parties.

On October 23, 1984, this Court notified the parties that it would consider, sua sponte, the question of whether this case should be transferred to the District of Massachusetts pursuant to 28 U.S.C. § 1404(a). The Court ordered briefing on that issue to be submitted by November 15, 1984. It further ordered that the briefing period would not be extended. Defendants Acton, AFC, ACM, and G & H have submitted the requested briefing. The FCC has also submitted briefing. These defendants do not support a transfer of chis action and contend that the action should be dismissed. Mr. Martin-Trigona has failed to respond to this request for briefing, but the Court is aware that he opposes a similar proposal to transfer that was suggested by this Court in Martin-Trigona v. Skiff No. 82-425. Because the parties do not support a transfer of this action pursuant to 28 U.S.C. § 1404, the Court will not effect such a transfer.

On November 15, 1984, defendant FCC filed a motion to dismiss, arguing that this Court does not have jurisdiction over the Commission for judicial supervision. Plaintiff has failed to respond to this motion. During the course of this litigation, the Court has indulged Mr. Martin-Trigona and has freely permitted him to file oppositions to motions on an untimely basis without seeking leave to file late. Fourteen days have lapsed since an opposition or a motion for extension of time was due. The Court will no longer wait for Mr. Martin-Trigona’s tardy responses to arrive and shall act on the motions as they become ripe.

II.

A. Necessity of Plaintiffs Presence for the Court to Act on the Dispositive Motions

Although plaintiff has not filed, in this action, a petition for writ of habeas corpus ad testificandum so that he may argue the motions that are before this Court, he has filed similar petitions in other actions that have been before this Court. See Martin-Trigona v. Smith, No. 84-510; Martin-Trigona v. Smith, 600 F.Supp. 1202; MartinTrigona v. Skiff, 600 F.Supp. 1184. Therefore, this Court should, in anticipation of any argument that may be brought on appeal, address plaintiffs right to a hearing before a court may act on any dispositive motions.

Plaintiff is presently incarcerated at the Federal Correctional Institution, Danbury, Connecticut. He is being held there on civil contempt charges. He is to remain there until he answers questions put to him by the trustee of his personal bankruptcy estate concerning the extent of his assets.

Plaintiff has argued in similar cases that he must be released from the facility and brought to this Court in order to argue numerous motions that are ripe for determination. He asserts that failure to permit him to argue these motions amounts to a deprivation of his constitutional rights. Plaintiff’s argument is without merit. There is no requirement that the Court grant a party the opportunity to a hearing. In fact, the local rules state that “[a] party may in his motion or his opposition specifically request an oral argument, but the allowance of an oral hearing shall be within the sole discretion of the Court.” Local Rule 1-9(g) (emphasis added). Accordingly, the Court is free to decide these motions without the benefit of oral argument and will do so in this case.

B. In Personam Jurisdiction Over Defendants Acton, ACM, and AFC

Defendants first argue that this Court does not have jurisdiction over defendants Acton, ACM, and AFC because all three corporations are nonresident defendants. Defendants assert that no business has been transacted in the District of Columbia by these three corporations and so they, therefore, do not have the requisite “minimum contacts” in this forum for the Court to exercise personal jurisdiction over them.

A review of defendant corporations’ principal place of business, place of incorporation, and contacts with the District of Columbia will be helpful in resolving defendants’ motion.

Defendant Acton is incorporated in the State of Delaware. See Plaintiff’s Supplement to Response to Motion to Dismiss, Exhibit C — 1. As a corporation it has never transacted business in the District of Columbia. Defendant’s Supplemental Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, Affidavit of Michael B. Milsom at 113. ACM, as a wholly owned subsidiary of Acton, also has never transacted business in the District of Columbia. Id.

AFC is a subsidiary of Beltran Corporation (“Beltran”). Motion of Defendants’ Acton Corporation, Acton Communications of Massachusetts, Acton Foodservices Corporation, and Gadsby & Hannah to Dismiss the Complaint as to Them and For Sanctions, Affidavit of Arthur Lincoln at ¶ 1 (“Lincoln Affidavit”). Both AFC and Beltran are incorporated in the State of Delaware and have never transacted business in the District of Columbia. Id. at II2, 3. Until January 4, 1982, AFC was a wholly owned subsidiary of Acton, whereupon on that date it was transferred to Beltran and became a second-tier subsidiary of that corporation. Id. at II 4.

Beltran has never had any legal relationship with Acton. Id. at ¶ 4.

Acton Company, Inc. of Washington, doing business as Mann’s Potato Chip Company, was a subsidiary of Acton until it was transferred to Beltran on January 4, 1982.

Neither AFC or Acton Company, Inc. of Washington has had any legal relationship with Acton since the date of the transfer effective January 4, 1982.

From a review of these facts, it is plain to the Court that Acton, AFC, and ACM do not have the requisite contacts necessary for this Court to attach in personam jurisdiction over them. Any basis for the exercise of personal jurisdiction over defendants Acton, AFC and ACM must be because of either the defendants’ relationship to the District of Columbia under D.C.Code § 13-422 (1981) or pursuant to the District of Columbia’s “long-arm” statute, D.C.Code § 13-423 (1981 & 1984 Supp.), consistent with the due process limitation contained in the United States Constitution.

Defendants Acton, AFC, and ACM all have no contacts with the District of Columbia, nor have they transacted business within the meaning of section 423. Further, plaintiff has not alleged any cause of action which might arise from the acts enumerated in section 423. Plaintiff argues principally, that at the time he filed suit, Acton owned Acton Company, Inc. of Washington, doing business as Mann’s Potato Chip Company, a District of Columbia corporation, and, therefore, is subject to this Court’s exercise of personal jurisdiction.

Plaintiff’s argument is without merit. Sections 422 and 423 do not provide that personal jurisdiction may attach on a parent corporation merely because one of its subsidiaries is authorized to do business in the District. Cf. Naartex Consulting Corp. v. Watt, 542 F.Supp. 1196, 1199 (D.D.C.1982), aff'd, 722 F.2d 779 (D.C.Cir. 1983), cert. denied sub nom. Naartex Consulting Corp. v. Clark, — U.S. -, 104 S.Ct. 2399, 81 L.Ed.2d 355 (1984) (in order to demonstrate a basis for the exercise of in personam jurisdiction, the plaintiff must demonstrate not only that defendant has transacted business in the District, but also that the claims asserted relate to that business transacted in the District); LaBri er v. A.H. Robins, Co., 551 F.Supp. 53, 55 (D.D.C.1982) (id.). As Professors Wright and Miller note:

When a subsidiary of a foreign corporation is carrying on business in a particular jurisdiction, the parent is not automatically subject to jurisdiction in the state. Thus, if a subsidiary’s presence in the state is primarily for the purpose of carrying on its own business and the subsidiary has preserved some semblance of independence from the parent, jurisdiction over the parent may not be acquired on the basis of the local activities of the subsidiary.

Wright & Miller, Federal Practice and Procedure: Jurisdiction § 1069 (1984) (footnotes omitted). Merely because Acton and AFC may have had a subsidiary which was authorized to conduct business in the District of Columbia, the presence of that subsidiary alone would not provide this Court a sufficient basis to attain jurisdiction over the defendant corporations.

Any assertion that this Court has in personam jurisdiction over defendant corporations pursuant to the Racketeer Influenced Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961 et seq. is also without merit. Plaintiff has asserted that this Court may attain in personam jurisdiction over the corporate defendants pursuant to section 1965 of Title 18, United States Code because the “ends of justice” require that this Court attain such jurisdiction.

The Court need not address this argument because as Judge Norma Johnson has ruled in Berg v. First American Bankshares, Inc., 599 F.Supp. 500 (D.D.C.1984), “there is a requirement of prior criminal conviction for the predicate acts forming the pattern of racketeering activity for all civil RICO claims.” Id. at 506; see also Sedima, S.P.R.L. v. Imrex Co., 741 F.2d 482, 496 (2d Cir.1984). There has been no prior criminal convictions as to the defendants in this case so, accordingly, plaintiff cannot use section 1965 as a basis for personal jurisdiction to attach over them. The Court, finding that there is no in person-am jurisdiction over corporate defendants, must dismiss them from this action.

C. District Court of Connecticut’s Permanent Injunction and Plaintiffs Amended Complaint Adding Defendants AFC, G & H, and F.D.I. C.

Presently, the United States District Court for the District of Connecticut has imposed a permanent injunction upon Mr. Martin-Trigona from instituting any action in any federal court of the United States without first obtaining the permission from that court. See In re Martin-Trigona, 573 F.Supp. 1245 (D.Conn.1983). The district court order states in pertinent part:

[i]t is further ORDERED:
That Anthony R. Martin-Trigona is hereby permanently enjoined from the filing of any action, in any court (state or federal) of the United States, arising out of (1) the acts of any person or entity involved in any capacity with either the litigation of any bankruptcy proceeding involving Anthony R. Martin-Trigona or any of the properties in which he claims or seeks to assert an interest filed on or before the date of this order or (2) the litigation of any civil action relating to such bankruptcy proceedings and filed by him. Upon the conclusion of any bankruptcy proceeding in which Anthony R. Martin-Trigona claims an interest and upon certification by the bankruptcy judge before whom the proceeding was held and to whom a copy of this order has been provided by Anthony R. MartinTrigona, together with an application for such certification, Anthony R. Martin-Trigona may file a consolidated appeal from such bankruptcy proceedings, contingent upon the granting of leave by the court in which the appeal is sought to be filed (and pursuant to the terms of the following paragraph of this order). And it is further ORDERED:
That Anthony R. Martin-Trigona is hereby permanently enjoined from filing any new action or proceeding in any court (state or federal) of the United States, without first obtaining leave of that court. In seeking such leave to file Anthony R. Martin-Trigona must comply with each of the following requirements. First, he must file with the complaint a motion captioned, “Motion Pursuant to Court Order Seeking Leave to File.” Second, as Exhibit 1 to that motion he must attach a copy of this order. Third, and as Exhibit 2 to that motion, he must attach either a declaration prepared pursuant to 28 U.S.C. § 1746 or a sworn affidavit certifying that the claim he wishes to present is a new claim never before raised by him in any court. Fourth, and as Exhibit 3 to that motion, he must identify by listing the full caption of each and every suit previously filed by him or on his behalf in any court against each and every defendant to the suit he wishes to file. Fifth, and as Exhibit(s) 4 (and continuing as necessary) to that motion he must provide a copy of each such complaint and a certified record of its disposition. Sixth, he must serve a copy of this order on each defendant if and when leave to serve the complaint in the new case is granted. Failure to comply with the terms of this order may be sufficient grounds for a court to deny any motion for leave to file made by Anthony R. Martin-Trigona. Further, the failure by Anthony R. Martin-Trigona to advise a court in which he has filed a lawsuit of this order or to comply with this order may be considered by such court a sufficient defense to sustain a motion to dismiss such a lawsuit.

Id. at 1266-67. This order by United States District Court Judge Cabranes was upheld by the United States Court of Appeals for the Second Circuit (“Second Circuit”), see In Re Martin-Trigona, 737 F.2d 1254 (2d Cir.1984), but was remanded in part, stating that this order need “not necessarily require extension of each provision of the injunction to activities brought in state court.” Id. at 1262. The Second Circuit, however, upheld the injunction as it relates to all federal courts.

Defendants AFC and G & H argue that because the amended complaint constitutes a new action against against them, Judge Cabranes’ order enjoining Mr. Martin-Trigona from filing new actions applies. They further state that because Mr. Martin-Trigona failed to seek leave before filing this amended complaint it must be dismissed automatically pursuant to the terms of the order.

The Court finds that the amended complaint adding AFC, G & H, and F.D.I.C. as additional defendants constitutes a new action within the meaning of Rule 15(c) of the Federal Rules of Civil Procedure. In order for an amendment to be considered not a new action it must “relate back” to the filing of the original complaint. Rule 15(c) of the Federal Rules of Civil Procedure provides in part:

Whenever the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment relates back to the date of the original pleading. An amendment charging the party against whom a claim is asserted relates back if the foregoing provision is satisfied and, within the period provided by law for commencing the action against him, the party to be brought in by amendment (1) has received such notice of the institution of the action that he will not be prejudiced in maintaining his defense on the merits, and (2) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against him.

Fed.R.Civ.P. 15(c).

In applying this rule to the present case, the Court notes that the added defendants have little, if any, connection with the original defendants. AFC, a Delaware corporation, formally a subsidiary of Acton, has, since January 4, 1982, been a second-tier subsidiary of Beltran Corporation. “From that date to the present, neither AFC nor Beltran have had any legal relationship with Acton Corporation or Acton Communications of Massachusetts.” Lincoln Affidavit at ¶ 4. G & H’s only connection with defendants is that it represented both Acton and AFC in the bankruptcy proceeding in Massachusetts. The F.D.I.C. has had no relationship with the original defendants. Additionally, none of the added defendants could have received any notice that Mr. Martin-Trigona might include them in this action. The claims asserted in the original complaint could not have reasonably put the additional defendants on notice that they too might be named in an amended complaint. Many of the claims alleged in the amended complaint are distinctly new and different from those alleged in the original complaint, adding support to the conclusion that the additional defendants could not have anticipated becoming defendants in this action. Finally, the Court believes that the failure to include these additional defendants in the original complaint was for no other reason than plaintiffs own neglect.

Because this amendment adding AFC, G & H, and F.D.I.C. as defendants amounts to the assertion of a new cause of action, the Court is obliged to comply with Judge Cabranes’ order. If plaintiff wished to include the added defendants to this action, he was bound to comply with the terms of the District of Connecticut court’s order. See In re Martin-Trigona, 573 F.Supp. at 1266-67. Failure to comply with the terms of this order is sufficient grounds to dismiss this action. Accordingly, the Court dismisses these added defendants from this action.

D. Motion to Dismiss Federal Communications Commission

Defendant FCC has moved to dismiss this complaint as to it because exclusive jurisdiction for judicial supervision of Commission decision making is vested in the United States Court of Appeals for the District of Columbia Circuit. See F.C.C. v. ITT World Communications, Inc., — U.S. -, 104 S.Ct. 1936, 80 L.Ed.2d 480 (1984); City of Rochester v. Bond, 603 F.2d 927, 934-35 (D.C.Cir.1979); Magnavox Government and Industrial Electronics Co. v. F.C.C., No. 82-316 (D.D.C. Feb. 23, 1982). Plaintiff argues that the Court of Appeals for this Circuit mandated that this Court review an alleged conspiracy between the FCC and other defendants. This claim is completely without merit. As the Court of Appeals determined in Martin-Trigona v. Shiff 712 F.2d 1421:

Because different charges in each complaint were dismissed for different reasons, we analyze each part of the dismissals separately. First, in both Shiff and Acton, the district court found that, to the extent that Martin-Trigona sought review of any FCC action that caused him to lose his radio station license, dismissal was proper because appellate courts have exclusive jurisdiction to review final orders of the FCC.... Martin-Trigona did not contest this clearly correct ruling.

Id. at 1424 (citation omitted) (emphasis added).

Plaintiff also argues that the D.C. Circuit’s opinion in ITT World Communications Inc. v. FCC, 699 F.2d 1219, 1229-30 (D.C.Cir.1983) permits plaintiff to join the Commission as a defendant. ITT World Communications, however, was reversed by the Supreme Court in April of this year, see F.C.C. v. ITT World Communications, Inc., — U.S. -, 104 S.Ct. 1936, 80 L.Ed.2d 480. In that decision the Court determined that ultra vires claims against the Commission are subject to exclusive judicial review by the Court of Appeals. Id. at 1939-40. Accordingly, this Court must dismiss plaintiff’s claims against the FCC.

E. Plaintiff Fails to Allege a Claim Against Individual Defendants Upon Which Relief Can Be Granted

In his complaint, plaintiff lists numerous individuals as defendants in this action. The thorough examination of the sixteen-page complaint reveals that at no time does plaintiff make any allegation or claim against these individual defendants.

Pursuant to Rule 12(b)(6) this Court, sua sponte, or upon the motion of a party, may dismiss defendants for plaintiff’s failure to state a claim upon which relief can be granted. See, e.g., Martin-Trigona v. Stewart, 691 F.2d 856, 858 (8th Cir.1982); Leonhard v. United States, 633 F.2d 599, 609 n. 11 (2d Cir.1980), cert. denied, 451 U.S. 908, 101 S.Ct. 1975, 68 L.Ed.2d 295 (1981). Where a plaintiff fails to even allege claims against certain defendants, the action must be dismissed as to them. See Frank v. Mracek, 58 F.R.D. 365, 367 (M.D.Ala.1973) (Rule 12b(6) “requires, at least, a statement of circumstances ‘showing that the pleader is entitled to relief.’ Otherwise, it would appear that a motion to dismiss would lie.”) (footnote omitted); Shapiro v. Royal Indemnity Co., 100 F.Supp. 801, 802 (W.D.Pa.1951) (“the complaint must give the defendant notice of a claim upon which relief can be granted or be subject to dismissal”).

Mr. Martin-Trigona, in his long and complex pleading, fails to state why these individuals are part of this action, what harm these individuals caused, or how these individuals are related to the “conspiracy” that plaintiff alleges. The mere allegation that these individuals are directors of Acton does not, by itself, amount to a claim for relief as against these individual defendants. As far as this Court can determine, Mr. Martin-Trigona alleges no claim against these individual defendants and, therefore, the action must be dismissed as to them.

F. Defendants’Motion for Sanctions

Defendants Acton, ACM, AFC, and G & H have moved for sanctions against Mr. Martin-Trigona in the form of reasonable attorneys’ fees and costs. They argue that this action was brought in bad faith in contravention of Judge Cabranes’ order.

The Court is not prepared to impose sanctions at this juncture. If defendants wish to pursue their motion, they may seek leave to renew the motion for sanctions within 20 days from the date of this opinion, and provide further briefing on the merits of such a motion.

CONCLUSION

Because the Court has found that there is no in personam jurisdiction over defendants Acton, ACM, and AFC; that plaintiff is barred from pursuing new claims against AFC, G & H, and the F.D.I.C. because of his failure to comply with the District of Connecticut’s injunction order; that the Court does not have jurisdiction over defendant FCC; and that plaintiff has failed to state a claim for relief as to the individual defendants, this action must be dismissed.

      . Although Mr. Martin-Trigona is proceeding pro se in this action, he “is no stranger to the courts. He has filed [at least] 22 separate appeals [in the United States Court of Appeals for the District of Columbia Circuit] since 1971 and undoubtedly has initiated additional actions in the district court.” Martin-Trigona v. Smith, 712 F.2d 1421, 1423 n. 1 (D.C.Cir.1983).

      . Plaintiffs complaint, as well as the amended complaint, do not conform to the requirements or tenets of Rule 8 of the Federal Rules of Civil Procedure which requires that "[a] pleading which sets forth a claim for relief, ... shall contain ... a short and plain statement of the grounds upon which the court's jurisdiction depends ... [and] a short plain statement of the claim showing that the pleader is entitled to relief----” Fed.R.Civ.P. 8(a). Further, "[e]ach averment of a pleading shall be simple, concise or direct.” Fed.R.Civ.P. 8(e).

      . There is no indication in the Court jacket whether the F.D.I.C. was ever served by plaintiff. F.D.I.C. has not submitted any briefing in this case.

      . Although failure to file an opposition to a motion "may be treat[ed] ... as conceded”, Local Rule l-9(d), this Court will examine defendant FCC's motion as if it were opposed by plaintiff to determine if said motion has merit. In another case that is before this Court, Martin-Trigona v. Shiff, 600 F.Supp. 1184, the defendant FCC filed a motion to dismiss. That motion was opposed by plaintiff. The Court presumes that plaintiff would assert the same arguments pursued in that action and has examined them accordingly. The merits of defendant FCC’s motion is discussed infra at 1200-1201.

      . Under D.C.Code § 13-422 “[a] District of Columbia court may exercise personal jurisdiction over a person domiciled in, organized under the laws of, or maintaining his office or its principal place of business in, the District of Columbia as to any claim for relief.” D.C.Code § 13-422 (1981).

      . Pursuant to D.C.Code § 13-423, personal jurisdiction may be exercised over a nonresident defendant only under the following circumstances:
      (a) A District of Columbia court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a claim for relief arising from the person’s—
      (1) transacting any business in the District of Columbia;
      (2) contracting to supply services in the District of Columbia;
      (3) causing tortious injury in the District of Columbia by an act or omission in the District of Columbia;
      (4) causing tortious injury in the District of Columbia by an act or omission outside the District of Columbia if he regularly does or solicits business, engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia;
      (5) having an interest in, using, or possessing real property in the District of Columbia;
      * * * * * *
      (b) When jurisdiction over a person is based solely upon this section, only a claim for relief arising from acts enumerated in this section may be asserted against him.
      D.C.Code § 13-423 (1981 ed. and 1984 Supp.).

      . Title 18, United States Code, section 1965 provides in pertinent part:
      (a) Any civil action or proceeding under this chapter against any person may be instituted in the district court of the United States for any district in which such person resides, is found, has an agent, or transacts his affairs.
      (b) In any action under section 1964 of this chapter in any district court of the United States in which it is shown that the ends of justice require that other parties residing in any other district be brought before the court, the court may cause such parties to be summoned, and process for that purpose may be served in any judicial district of the United States by the marshal thereof.
      18 U.S.C. § 1965(a), (b) (emphasis added).

      . The Court notes that plaintiff is presently pursuing claims against the Commission for its decision regarding the WDLM license before the United States Court of Appeals for the District of Columbia Circuit. See Martin-Trigona v. FCC, 84-1244; Martin-Trigona v. FCC, 83-1733; Martin-Trigona v. FCC, 83-1579 (D.C.Cir.).

      . Those individuals included the following: Samuel J. Phillips, George M. Phillips, Philip M. St. Germain, Robert C. Fink, William E. Berman, Peter W. Clegg, I. Ira Goldenberg, Gabriel Phillips, John Rigas, Albert Phillips, Frederick Avery, Arthur Lincoln, Clifton F. von Kann, Alfred Strogoff, Frank A. Germack, Gerald Rush, and Leonard Ross.


text:
    Anthony R. MARTIN-TRIGONA, Plaintiff, v. William F. SMITH, Attorney General of the United States, Defendant.
    Civ. A. No. 83-2901.
    United States District Court, District of Columbia.
    Sept. 18, 1984.
    Martin-Trigona plaintiff, pro se.
    Nathan Dodell, Asst. U.S. Atty., Washington, D.C., for defendant.
   MEMORANDUM OPINION

JUNE L. GREEN, District Judge.

This matter is before the Court on defendant’s motion to dismiss, plaintiff’s opposition thereto, defendant’s reply to plaintiff’s opposition; plaintiff's motion for writ of habeas corpus ad testificandum; motion to order petitioner to be released on bail pendente lite and, if necessary, pending appeal; motion for leave to proceed in forma pauperis; oppositions thereto; plaintiffs amended petition for writ of habeas corpus, and the entire record herein. The parties also have submitted extensive additional briefing on all of the above motions. For the reasons outlined below, the Court grants defendant’s motion to dismiss and denies plaintiff’s motion for writ of habeas corpus ad testificandum and motion for order to be released on bail. Because of the disposition of this case, the Court does not address plaintiff’s motion to proceed in forma pauperis.

I.

The Court adopts the following facts as outlined by the United States Court of Appeals for the Second Circuit (“Second Circuit”) in In re Martin-Trigona, 732 F.2d 170 (2d Cir.1984):

[Mr. Martin-Trigona] is a debtor whose personal bankrupt estate presently is before Judge Cabranes [of the United States District Court for the District of Connecticut],
* * * * * *
On June 23, 1983, shortly after Judge Cabranes transferred to the district court all matters concerning [Mr. Martin-Trigona’s] estate in bankruptcy pending before the United States Bankruptcy Court for the District of Connecticut, counsel for the trustee sought to question [plaintiff] pursuant to Bkrtcy R. 205. [Mr. Martin-Trigona] refused to answer several questions, claiming his Fifth Amendment privilege against self-incrimination. The examination was continued until July 1, 1983. On that date, [plaintiffs] prior counsel, M. Hatcher Norris, invited opposing counsel to apply for a grant of immunity and strongly implied that appellant would testify if immunity were forthcoming.
The United States Attorney subsequently applied for immunity under 18 U.S.C. § 6003, stating that [Mr. Martin-Trigona’s] testimony was “necessary to the public interest.” On November 3, 1983 Judge Cabranes granted the application for immunity. Examination of [plaintiff] was continued until January 3, 1984. [Mr. Martin-Trigona] again refused to testify at the hearing held on January 3 on the basis of the privilege of self-incrimination. Judge Cabranes ordered appellant to answer the questions put to him by [the trustee’s counsel]. [Mr. Martin-Trigona] refused. As a result Judge Cabranes held [plaintiff] in civil contempt and ordered him incarcerated until he was prepared to testify in full.

Id. at 171. That order was affirmed on appeal by the Second Circuit. Id. at 176. Plaintiff presently is incarcerated at the Federal Correctional Institution (“FCI”) in Danbury, Connecticut.

II.

On September 30, 1983, plaintiff filed this present action in the form of a petition for writ of mandamus against defendant William F. Smith, Attorney General of the United States. Plaintiff seeks to have this Court issue a writ of mandamus directed to the Attorney General, barring any action on an immunity request pursuant to 18 U.S.C. § 6003, or if such immunity has been approved, “declaring said immunity null and void ab initio and mandating that said grant be rendered nugatory.” Petition for Writ of Mandamus at 7. Plaintiff asserts as a basis for this action that the Attorney General lacks the authority to grant immunity in a civil matter where no officer of the Federal Government seeks the information. He further states that there has been “no showing of a public purpose.” On November 29, 1983, defendant filed a motion to dismiss.

Before addressing the merits of this action and defendant’s motion to dismiss, the Court will address some of plaintiff’s other motions.

A.

On March 21, 1984, this Court issued an order requiring plaintiff to respond to defendant’s motion to dismiss by March 30, 1984. It further ordered that oral argument on the motion would be held on April 6, 1984. This order was issued by the Court without its knowledge of plaintiff’s incarceration. A hearing was initially ordered merely out of an abundance of caution by this Court and with the belief that the parties might easily be able to address these issues in court without undue burden. On April 4, 1984, the Court granted plaintiff an additional extension of time and ordered that he respond to the motion to dismiss no later than May 11,1984. Another date for the hearing was set for May 18, 1984.

In apparent response to the Court’s order setting forth the date of argument, plaintiff filed a number of motions. On May 18, 1984, Mr. Martin-Trigona filed a petition for writ of habeas corpus ad testificandum. The basis for that motion was that he

“is in federal custody at FCI Danbury. A hearing is set before this court for May 18,1984. Unless this Court issues a writ of habeas corpus ad testificandum commanding the U.S. Marshal to produce the petitioner in court, the court will be precluded from conducting a fair hearing in that the petitioner will be excluded from the courtroom and no one will be present to present petitioner’s cause or to argue in opposition to the U.S. Attorney’s position.”

Petition for Writ of Habeas Corpus Ad Testificandum. The initial response, by this Court, was to postpone the scheduled hearing indefinitely.

Mr. Martin-Trigona also filed a motion to order petitioner released on bail pendente lite, and if necessary, pending appeal. Mr. Martin-Trigona stated that the basis for this motion was that he must be present to argue his case.

The Court will decline to either release Mr. Martin-Trigona on bail or have him brought to this jurisdiction to argue before this Court at this time. The matters that are at issue before the Court involve purely questions of law. As plaintiff has noted, “there do not appear to be any disputed facts.” See Memorandum in Support of the Motion to Dismiss [sic] and In Support of Petitioner’s Amended Petition for Writ of Habeas Corpus at 1. Mr. MartinTrigona has had every opportunity to present his arguments in opposition to defendant’s motion to dismiss. To require that plaintiff be present, at the Government’s expense, to argue matters that involve purely legal questions, would place an undue burden on the Government. The Court in its discretion may decline to hold a hearing. See Local Rule 1 — 9(f). Further, to release Mr. Martin-Trigona on bail when he is being held under the authority of an order of a coordinate federal court upheld by a court of appeals, cannot serve the ends of justice. This Court will not interfere with the process that is taking place in the Second Circuit. For these reasons, the Court denies both plaintiff’s motion for writ of habeas corpus ad testificandum and motion to order petitioner to be released on bail pendente lite.

B.

On May 18, 1984, plaintiff also filed an “Amended Petition,” seeking a release from custody on application for writ of habeas corpus. It is plain that venue for a habeas corpus petition lies where petitioner’s custodian may be found. E.g., Braden v. 30th Judicial Circuit Court, 410 U.S. 484, 494-95, 93 S.Ct. 1123, 1129, 35 L.Ed.2d 443 (1973); see also Starnes v. McGuire, 512 F.2d 918, 932 (D.C.Cir.1974) (“there is no reason ... for the Court to deviate from the traditional rule that the residence of the custodian (and thus the place of confinement) is the correct forum”). Although Mr. Martin-Trigona asserts that he is a resident of Virginia and has business activity centered around the District of Columbia, those assertions are irrelevant for determining where venue lies. Accordingly, any habeas corpus petition brought by Mr. Martin-Trigona in this jurisdiction must be dismissed.

C.

In addressing defendant’s motion to dismiss, defendant claims that this action must be dismissed on the basis of res judicata. He states that the Second Circuit opinion in In re Martin-Trigona, 732 F.2d 170, is dispositive of this action. A careful review of that opinion confirms that plaintiff’s claims have been litigated and that he is barred from pursuing them again under the doctrine of res judicata.

In the Court of Appeals decision, the Second Circuit expressly ruled on the validity of the grant of immunity. Id. at 171-176. Since it is that grant of immunity that plaintiff challenges, he is bound by the decision under res judicata principles.

Plaintiff argues that this Court acquired jurisdiction over this matter before it was addressed in the Second Circuit. That argument is simply not true. The Connecticut District Court has had jurisdiction over Mr. Martin-Trigona’s bankruptcy proceeding for a number of years. The question of immunity was raised in the context of that proceeding. Plaintiff cannot be permitted to file a suit in another jurisdiction in an effort to thwart the proceedings taking place in the Connecticut District Court.

Because plaintiffs claim is barred by res judicata, this action must be dismissed.

      . In opposition to this motion, plaintiff states that any discussion by the Second Circuit about the grant of immunity was dicta, that that court was asked solely to determine whether his incarceration was legal. Plaintiffs argument is without merit. The Second Circuit could not have made a determination as to the legality of plaintiff's incarceration without finding that the grant of immunity was proper in civil proceedings. Plaintiff had the opportunity to address these questions on his appeal with appointed counsel before the Second Circuit; he, therefore, is now barred from bringing these claims before this Court.