an injured party may recover from the District in an automobile accident case where the plaintiff alleges negligence on the part of a District employee. Therefore, this Court resolves the choice of law issue before it just as the Arlington County panel resolved its choice of law issue: Application of . . . [the non-forum state's] policy of immunity would clearly frustrate District policies in favor of deterrence and compensation . . . ." 738 F.2d at 1358. The Court refuses to recognize Section 1013 of P.G. County's Charter. Accordingly, P.G. County's motion to dismiss this case, under Rules 12(b)(1), (3), and (6), shall be denied.
Finally, because the individual officer defendants, Taaffe and Bauer, failed to raise the defense of lack of personal jurisdiction in their answer to the complaint, see infra Part C, P.G. County, their employer, cannot seek dismissal on the ground that Taaffe and Bauer may not have been present in the District of Columbia at the precise moment the Vanfield-Skipper collision occurred. Therefore, P.G. County's motion to dismiss under Rule 12(b)(2) shall be denied.
B. The Police Department's Motion to Dismiss
The Police Department contends that, because it is a subdivision of P.G. County, and, therefore, not an entity subject to suit, the Court must dismiss the complaint for lack of personal jurisdiction under Rule 12(b)(2). The plaintiffs have failed to oppose this motion; and, at a Rule 16(b) scheduling conference,
plaintiffs' counsel conceded that the Police Department's contention was correct. Thus, the Court shall grant the defendant Police Department's motion to dismiss the complaint as to it.
C. The Individual Officers' Motion for a Change of Venue
In their joint answer to the complaint, defendants Taaffe and Bauer denied "that their alleged negligent acts occurred in the District of Columbia. . . ." para. 3. Upon this ground, the individuals challenged venue here. These defendants failed, however, to raise in their answer the defense of lack of personal jurisdiction. They are, therefore, precluded from raising this defense for the duration of this litigation. See Fed. R. Civ. P. 12(h)(1) (personal jurisdiction defense waived unless raised in responsive pleading or Rule 12 motion). See also supra Part A (P.G. County precluded from seeking dismissal on ground that Court lacks personal jurisdiction over individual defendants).
Taaffe and Bauer filed a motion for a change of venue, pursuant to 28 U.S.C. § 1404(a). The defendants argue that a change is needed for the convenience of parties and witnesses and in the interest of justice, despite the facts that P.G. County is adjacent to the District of Columbia, the individual defendants both work in P.G. County for the defendant Police Department, and the plaintiffs -- and presumably several of the witnesses -- live in the District. The officers assert that, because their alleged negligent acts occurred in Maryland, sufficient contacts to this forum are lacking and the Court should therefore transfer this action to the United States District Court for the District of Maryland in Baltimore. In support of this request, the individual defendants have furnished the Court with their own affidavits. The sworn statements of both policemen reflect that, although their cruiser was about 150 yards behind Vanfield's vehicle when it collided with that of Sandra Skipper, and each officer witnessed the collision, the individual defendants were physically located in P.G. County more than 100 yards from the District of Columbia line at the precise moment of impact.
These self-serving remarks do not, however, directly contradict the plaintiffs' allegations concerning the sequence of events of the Vanfield accident and subsequent arrest. In the complaint, the Skippers contended that the officers chased Vanfield into the District, where Vanfield's vehicle struck that of Sandra Skipper. The complaint contends further that Vanfield's vehicle did not stop after the collision, "but continued and was finally stopped by defendants Taaffe and Bauer . . ." inside the District's boundary line. Complaint para. 9. Thus, in the context of defendants' motion for a change of venue, construing all of the allegations of the complaint in the light most favorable to the plaintiffs, the Court cannot conclude that the uninterrupted acts of Taaffe and Bauer did not Proximately cause the Vanfield-Skipper collision to occur "in" the District of Columbia -- even though these defendants may not have been physically present within the District at the precise moment of the accident.
Therefore, at this juncture, the Court determines that there is a sufficient connection between these defendants and this forum to make it fair to require defense of the action here as opposed to in Baltimore, Maryland. Accordingly, the defendants' motion for a change of venue shall be denied.
In accordance with this opinion, it is by the Court, this 29th day of May, 1986, hereby
ORDERED that defendant Prince George's County's motion to dismiss is DENIED; and it is
FURTHER ORDERED that defendant Prince George's County Police Department's motion to dismiss is GRANTED; and it is
FURTHER ORDERED that the motion of defendants Taaffe and Bauer for a change of venue is DENIED.