The opinion of the court was delivered by: RICARDO URBINA, District Judge
MEMORANDUM OPINION GRANTING THE PLAINTIFFS LEAVE TO
FILE A SUR-REPLY; DENYING THE DEFENDANTS'MOTION TO DISMISS OR, IN
THE ALTERNATIVE, TO TRANSFER
This case comes before the court on the plaintiffs' motion for leave to
file a sur-reply and on the defendants' motion to dismiss or, in the
alternative, to transfer. The plaintiffs seek to recover delinquent
contributions under the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. § 1001 et seq. First, because the
defendants raise arguments for the first time in their reply, the court
grants the plaintiffs' motion for leave to file a sur-reply. Second,
because the plaintiffs have asserted fiduciary status, claims for
delinquent contributions are not benefits under ERISA, and venue is
proper in this district, the court denies the defendants' motion to
dismiss. Finally, because the convenience of the parties and the
witnesses and the interest of justice do not favor transfer, the court
denies the motion to transfer.
The plaintiffs are trustees of the Bricklayers and Trowel Trades
International Pension Fund ("IPF"), which is a multi-employer employee
benefit plan under ERISA. Compl. ¶¶ 1, 3. The plaintiffs allege that
they are authorized to effect collections on behalf of the IPF as well as
on behalf of the Bricklayers & Allied Craftworkers International
Health Fund ("IHF"), the International Masonry Institute ("IMI"), and the
Bricklayers & Allied Craftworkers International Union ("BAC").
Id. ¶ 4. In addition, the plaintiffs claim that they are
authorized, pursuant to an assignment of claims, to effect collections
for Bricklayers Local 1 Texas, Louisiana & New Mexico. funds, the
Bricklayers Gulf Coast Pension Fund, the Bricklayers Apprenticeship and
Training Fund of Houston-Galveston and BAC Processing Office
(collectively, "the Local Unions"). Id.
The plaintiffs assert that the defendants executed a
collective-bargaining agreement with the International Union of
Bricklayers and Allied Craftsmen and its affiliated Local Unions, which
obligated the defendants to make certain payments to the BAC, IPF, IHF,
IMI, and the Local Unions on behalf of their covered employees.
Id. ¶ 8, 11. Despite their obligations under the
collective-bargaining agreement, the plaintiffs contend that the
defendants failed to make all required contributions. Id. ¶
On March 24, 2003, the plaintiffs filed their complaint pursuant to
section 502(a)(3) of ERISA. 29 U.S.C. § 1132(a)(3), and section 301
of the National Labor Relations Act, 29 U.S.C. § 185. In response, on
May 21, 2003, the defendants filed a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(1) for lack of subject-matter
jurisdiction and under Rule 12(b)(3) for improper venue. In the
alternative, the defendants ask the court to transfer venue pursuant to
28 U.S.C. § 1404(a) and 1406(a). On July 2, 2003, the plaintiffs
filed a motion for leave to file a sur-reply. The court now turns to
A. Legal Standard for Leave to File a Sur-Reply
The decision to grant or deny leave to file a sur-reply is committed to
the sound discretion of the court. Am. Forest & Paper Ass'n,
Inc. v. Envtl. Prot. Agency, 1996 WL 509601, at *3 (D.D.C. Sept. 4,
1996). If the movant raises arguments for the first time in his reply to
the non-movant's opposition, the court will either ignore those arguments
in resolving the motion or provide the non-movant an opportunity to
respond to those arguments by granting leave to file a sur-reply.
Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C. Cir. 2003);
Natural Res. Def. Council, Inc. v. Envtl. Prot. Agency,
25 F.3d 1063, 1072 n.4 (D.C. Cir. 1994); Pa. Elec. Co. v. Fed. Energy
Regulatory Comm'n, 11 F.3d 207, 209 (D.C. Cir. 1993); see also
Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 195 (D.C. Cir. 1992)
(acknowledging that consideration of arguments raised for the first time
in a reply would be "manifestly unfair" to the respondent); Corson
& Gruman Co. v. Nat'l Labor Relations Bd., 899 F.2d 47, 50 n.4
(D.C. Cir. 1990) (requiring parties to raise all of their arguments in
their opening briefs "to prevent sandbagging"); Robinson v. Detroit
News, Inc., 211 F. Supp.2d 101, 113 (D.D.C. 2002) (denying leave to
file a sur-reply where the proposed sur-reply merely reiterated prior
arguments); Lewis v. Rumsfeld, 154 F. Supp.2d 56, 61 (D.D.C.
2001) (denying leave to file a sur-reply where the plaintiff failed
to demonstrate that the defendant's reply presented any new
B. Legal Standard for a Motion to Dismiss Pursuant
to Rule 12(b)(1)
Federal courts are courts of limited jurisdiction and the law presumes
that "a cause lies outside this limited jurisdiction." Kokkonen v.
Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994); St.
Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283
, 288-89 (1938).
Because "subject-matter jurisdiction is an `Art. III as well as a
statutory requirement[,] no action of the parties can confer
subject-matter jurisdiction upon a federal court.'" Akinseye v.
District of Columbia, 339 F.3d 970, 971 (D.C. Cir. 2003) (quoting
Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxite de Guinea,
456 U.S. 694
, 702 (1982)). On a motion to dismiss for lack of subject-matter
jurisdiction pursuant to Rule 12(b)(1), the plaintiff bears the burden of
establishing that the court has subject-matter jurisdiction. Evans v.
B.F. Perkins Co., 166 F.3d 642
, 647 (4th Cir. 1999); Rasul v.
Bush, 215 F. Supp.2d 55, 61 (D.D.C. 2002) (citing McNutt v.
Gen. Motors Acceptance Corp., 298 U.S. 178
, 182-83 (1936)). The
court may dismiss a complaint for lack of subject-matter jurisdiction
only if'"it appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to relief"
Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338
(D.C. Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41
Because subject-matter jurisdiction focuses on the court's power to
hear the claim, however, the court must give the plaintiff's factual
allegations closer scrutiny when resolving a Rule 12(b)(1) motion than
would be required for a Rule 12(b)(6) motion for failure to state a
claim. Macharia v. United States, 334 F.3d 61, 64, 69 (D.C. Cir.
2003); Grand Lodge of Fraternal Order of Police v. Ashcroft,
185 F. Supp.2d 9, 13 (D.D.C. 2001). Moreover, the court is not limited to
the allegations contained in the complaint. Hohri v. United
States, 782 F.2d 227,
241 (D.C. Cir. 1986), vacated on other grounds,
482 U.S. 64 (1987). Instead, to determine whether it has jurisdiction over the
claim, the court may consider materials outside the pleadings.
Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir.
C. Legal Standard for a Motion to Dismiss Pursuant
to Rule 12(b)(3)
To prevail on a motion to dismiss for improper venue, the defendant
must present facts that will defeat the plaintiff's assertion of venue.
2215 Fifth St. Assocs. v. U-Haul Int'l, Inc., 148 F. Supp.2d 50,
54 (D.D.C. 2001) (citing 5A FED. PRAC. & PROC.2d § 1352).
In this circuit, there is "little case law on the question of where the
burden of persuasion lies when a plaintiffs choice of venue is
challenged." Johnson v. Wash. Gas Light Co., 89 F. Supp.2d 45,
47 (D.D.C. 2000). Courts in the Fourth Circuit, however, have held that
the plaintiff usually bears the burden of establishing that venue is
proper. Gov't of Egypt Procurement Office v. M/V ROBERT E. LEE,
216 F. Supp.2d 468, 471 (D. Md. 2002); Dunham v. Hotelera Canco. S.A.
de C. V., 933 F. Supp. 543
, 550 (E.D. Va. 1996); see also