FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                December 1, 2010
                    UNITED STATES COURT OF APPEALS
                                                 Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT



 SOLOMON BEN-TOV COHEN,

               Plaintiff - Appellant,                   No. 10-1283
          v.                                            (D. Colorado)
 REPRESENTATIVE HENRY                       (D.C. No. 1:08-CV-02188-LTB-CBS)
 WAXMAN, United States Congress;
 U.S. CAPITOL POLICE; FRED
 BUSCH, Agent, U.S. Capitol Police,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before HARTZ, ANDERSON, and TYMKOVICH, Circuit Judges.


I.    INTRODUCTION

      On October 9, 2008, Solomon Ben-Tov Cohen brought a pro se Bivens

action in the United States District Court for the District of Colorado seeking

money damages from United States Representative Henry Waxman, the United



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
States Capitol Police, and former United States Capitol Police Special Agent Fred

Busch. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics,

(1971). He alleged various constitutional and statutory violations

arising out of his November 2003 arrest at the office of Congressman Waxman at

the Capitol. The district court dismissed without prejudice the claims against all

three defendants, and denied Mr. Cohen’s motion to change venue to Washington,

D.C. Mr. Cohen appeals only the court’s denial of his motion to change venue.

Finding no abuse of discretion in the court’s ruling, we affirm.

II.   BACKGROUND

      Mr. Cohen alleges that on November 25, 2003, he traveled to United States

Congressman Henry Waxman’s Washington, D.C., office to complain to the

Congressman about how local officials had treated him while evicting him from

his apartment in West Hollywood, California. A citizen of the United Kingdom,

he intended to hand-deliver a letter to the Congressman “asking for [his] support

in becoming a US Citizen after 10+ years in the United States.” R., Vol. 1 pt. 1 at

108. According to Mr. Cohen, Special Agent Busch “wrongfully and maliciously

arrested” him in Congressman Waxman’s office “on a fabricated and false charge

of ‘making threats against a Congressman’ which he later dropped.” 

filed suit about five years later, eventually amending his

complaint to include nine claims: (1) violation of the First, Fourth, Fifth, Sixth,

and Fourteenth Amendments; (2) deprivation of constitutional rights, privileges,

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and immunities resulting in psychological harm; (3) extreme mental distress

caused by the defendants’ actions; (4) violation of the First and Sixth Amendment

privilege to communicate with Congressman Waxman; (5) intentional arrest

without probable cause; (6) damage in the form of loss of personal freedom, pain

and suffering, and loss of reputation; (7) conspiracy to prevent Mr. Cohen from

meeting with Congressman Waxman and to charge him with a crime he did not

commit; (8) improper refusal by Special Agent Busch to disclose his badge

number; and (9) bad faith or, alternatively, negligent investigation.

      On April 21, 2009, the Capitol Police moved to dismiss for failure to state a

claim, and on May 4, 2009, Congressman Waxman moved to dismiss on a variety

of grounds, including lack of personal jurisdiction. The magistrate judge issued a

report and recommendation on September 21, 2009, recommending that the claims

against Congressman Waxman be dismissed for lack of personal jurisdiction

because he did not have minimum contacts with Colorado, and that the claims

against the Capitol Police be dismissed because “a damages claim under Bivens

cannot be stated against a federal agency.” 

pt. 2 at 273. The

magistrate judge also recommended denial of Mr. Cohen’s request to change

venue, noting that neither Congressman Waxman nor the Capitol Police requested

a transfer of venue, that Mr. Cohen improperly moved for transfer of venue in his

response to the motions to dismiss rather than in a separate motion, and that the

decision to transfer is within the district court’s discretion. On October 21, 2009,

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the district court adopted the magistrate judge’s recommendations and dismissed

the claims against Congressman Waxman and the Capitol Police without

prejudice.

       Meanwhile, on October 5, 2009, Special Agent Busch had moved to dismiss

the claims against him, arguing, among other things, that the court lacked

personal jurisdiction over him. And two months after the dismissal of

Congressman Waxman and the Capitol Police, Mr. Cohen moved for a change of

venue to Washington, D.C., because “if the case is not transferred,” a newly filed

action “will be time-barred.” 

The magistrate judge addressed both

motions in a single report and recommendation, recommending dismissal of

Special Agent Busch and not transferring venue. Adopting the recommendations,

the district court dismissed Special Agent Busch and denied Mr. Cohen’s motion

for change of venue on June 23, 2010. Mr. Cohen timely appealed.

III.   DISCUSSION

       Mr. Cohen's only argument on appeal is that “[t]he District Court erred in

refusing to transfer the case to DC.” Aplt. Br. at 3. He notes that the court’s lack

of personal jurisdiction over a defendant can be cured by transferring venue. And

because a newly filed case would be time-barred by the District of Columbia’s

applicable one-year statute of limitations, he asserts that the court erred by “NOT

ruling that transfer IS in the interests of justice.” 

28 U.S.C. § 1404(a), a district court may transfer a case to another

venue in which it might have been brought “[f]or the convenience of parties and

witnesses, in the interest of justice.” “The party moving to transfer a case

pursuant to § 1404(a) bears the burden of establishing that the existing forum is

inconvenient.” Chrysler Credit Corp. v. Country Chrysler, Inc., 

,

1515 (10th Cir. 1991). In deciding whether the movant has met that burden, a

district court should consider:

      the plaintiff’s choice of forum; the accessibility of witnesses and
      other sources of proof, including the availability of compulsory
      process to insure attendance of witnesses; the cost of making the
      necessary proof; questions as to the enforceability of a judgment if
      one is obtained; relative advantages and obstacles to a fair trial;
      difficulties that may arise from congested dockets; the possibility of
      the existence of questions arising in the area of conflict of laws; the
      advantage of having a local court determine questions of local law;
      and, all other considerations of a practical nature that make a trial
      easy, expeditious and economical.

(internal quotation marks omitted). Unless weighing these factors

demonstrates that “the balance is strongly in favor of the movant, the plaintiff’s

choice of forum should rarely be disturbed.” Employers Mut. Cas. Co. v. Bartile

Roofs, Inc., 

, 1167 (10th Cir. 2010) (brackets and internal quotation

marks omitted).

      Ironically, in this case it is the plaintiff who desires a transfer from the

forum he originally selected. Only now that he knows that he will lose in that

forum does he seek another. But the law rarely favors two bites at the apple.


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Only a neutral reason—one not designed to favor one party over another—can

justify a transfer. As the district court reasonably found, however, none of the

considerations listed in Chrysler Credit Corp. argue for venue in Washington,

D.C., over Colorado. Mr. Cohen’s sole argument for the transfer is to avoid a

statute-of-limitations bar. But the Washington, D.C., statute of limitations would

easily bar Mr. Cohen’s claim even if this case were transferred, unless he can

show that the limitations period was tolled by his mental disability—a showing

that would necessarily rely on witnesses from Colorado, where he has resided

during the relevant period. See Chrysler Credit 

(accessibility of witnesses is factor to weigh under § 1404(a)). All in all, we

cannot say that denial of the motion to transfer was an abuse of discretion.

IV.   CONCLUSION

      We AFFIRM the district court’s denial of Mr. Cohen’s motion to change

venue and DENY his motion for leave to proceed in forma pauperis.

                                       ENTERED FOR THE COURT


                                       Harris L Hartz
                                       Circuit Judge




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