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Thomas v. Dep't of Defense

July 7, 2006

HENRY THOMAS, JR., PLAINTIFF,
v.
DEPARTMENT OF DEFENSE, ET AL., DEFENDANT.



The opinion of the court was delivered by: Reggie B. Walton United States District Judge

MEMORANDUM OPINION

Plaintiff Henry Thomas brings this action against the United States Department of Defense ("DOD"), the Defense Contract Management Agency ("DCMA"), the Defense Logistics Agency ("DLA"),*fn1 and several individuals in their personal and official capacities (collectively "the defendants"),*fn2 alleging various violations of 42 U.S.C. §§ 1981, 1983, and 1985 (2000) and the Fifth, Thirteenth, and Fourteenth Amendments, as well as common law fraud and conspiracy. See generally Complaint ("Compl."). The claims are based broadly on the plaintiff's participation in, and termination from, the federal Meals Ready to Eat ("MRE") Industrial Preparedness Program ("IPP" or "the Program") in the 1980s.*fn3 Id. Specifically, the plaintiff alleges, inter alia, (1) that he was wrongfully refused a procurement contract in the early 1980s as a result of the DOD's desire "to keep the MRE program free of blacks," id. ¶ 17(a); (2) that, following a 1984 settlement agreement in which the plaintiff was awarded an MRE contract, "the [d]efendants allowed the use of hostile and discriminatory practices to force [him] from the MRE IPP program," id. ¶ 17(f); (3) that he was wrongfully terminated from the MRE program in June 1987, id. ¶¶ (o)-(q); and (4) that the defendants in 2002 wrongfully refused to reinstate him into the MRE program, id. ¶ (w). The plaintiff seeks $150 million in compensatory damages, $5 billion in punitive damages, and an array of equitable and injunctive relief. Id. at 22.

Currently before the Court is the defendants' motion to dismiss this case pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(3), 12(b)(4), 12(b)(5), and 12(b)(6) ("Defs.' Mot."). For the reasons stated below, the Court concludes that it cannot exercise personal jurisdiction over the individual defendants and that venue in this case is improper in the District of Columbia. Accordingly, the Court denies the defendants' motion to dismiss and transfers the plaintiff's claims to the United States District Court for the Southern District of New York.

I. Background

The plaintiff is a New York state resident and the sole owner of Freedom NY, Inc., a business incorporated in New York. Compl. ¶ 6. The named individual defendants are residents of New York or Pennsylvania. Id. ¶¶ 7-9; Memorandum of Points and Authorities in Support of Defendants' Motion to Dismiss ("Defs.' Mem.") at 2-3. Neither the DCMA nor the DLA are located in Washington, D.C. Compl. at 1; Defs.' Mem. at 2, 14 n. 3. The DOD is located in the Pentagon in Arlington, Virginia.*fn4 Defs.' Mem. at 14 n.3; see also Monk v. Sec'y of the Navy, 793 F.2d 364, 369 n.1 (D.C. Cir. 1986). Finally, it is undisputed "that the present cause of action arose in New York." Plaintiff's Opposition to Defendant[s'] Motion to Dismiss ("Pl.'s Opp.") at 30.

The plaintiff alleges the following facts in support of his complaint. In November 1980, Freedom NY filed a proposal with the DLA to participate in a procurement program to supply MREs, or combat rations, to the DOD. Compl. ¶ 11. At the time the plaintiff made this proposal, "competition was open and contracts were awarded simply to the lowest bidder." Id. ¶ 17(a). Shortly after the plaintiff's application was submitted, however, the MRE program was withdrawn from open competition "and placed under the [IPP], a special set aside exception program . . . where negotiations and awards are restricted to a selected handful of contractors that met very specific requirements that [the plaintiff] could not then meet." Id. The plaintiff further alleges that even "after borrowing and investing millions of dollars to meet all the requirements" of the IPP, Freedom NY was not awarded an MRE contract. Id. ¶ 17(c).

In September 1983, the plaintiff brought an action in the United States District Court for the District of Columbia challenging the DLA's refusal to award Freedom NY a procurement contract. Id. ¶ 17(d). The DOD purportedly intervened and settled this lawsuit, issuing a written determination in February 1984 instructing the DLA to allow the plaintiff to participate in the IPP. Id. In compliance with the DOD's instruction, the DLA then awarded Freedom NY an MRE contract. Id. ¶ 17(d)-(e).

The contractual relationship between the plaintiff and the government did not run smoothly, however. The plaintiff alleges that the defendants engaged in, or condoned, a number of "hostile and discriminatory practices . . . designed to force [him] to give up, quit, fail and get out of the MRE program." Id. ¶ 17(f), (g). The plaintiff further alleges that, despite his own good faith performance in the IPP, the defendants "moved to replace him in the program with a less qualified white contractor ("CINPAC") [who] had no experience in food processing [and who] did not have the necessary facilities or equipment." Id. ¶ 17(h). "In order to block this [allegedly] illegal replacement," in February 1986 the plaintiff filed a second lawsuit in the United States District Court for the Southern District of New York, seeking immediate injunctive relief and a declaration "that CINPAC did not meet the Walsh-Healey contract prerequisite and threshold requirements" to be awarded an MRE contract. Id. ¶ 17(j), (l); see also Complaint for Injunctive and Declaratory Relief, Freedom NY, Inc. v. United States, Civ. No. 86-1363 (CBM) (S.D.N.Y. February 14, 1986). The New York District Court dismissed the plaintiff's lawsuit on May 27, 1986, see Pl.'s Opp., Ex. 1 (February 24, 2006 Amended Memorandum in Support of Plaintiff's Motion to Correct or, in the Alternative, to Vacate Judgment Pursuant to Rule 60(b)(6), Freedom NY, Inc. v. United States, Civ. No. 86-1363 (CBM)) at 4, and in June 1987 the defendants terminated Freedom NY's MRE contract, claiming that the plaintiff had breached the contract and was therefore in default, Compl. ¶¶ 17(p)-(q), Pl.'s Opp. at 10.

The plaintiff appealed the termination of his MRE contract to the Armed Services Board of Contract Appeals ("ASBCA"), alleging that the defendants had wrongly classified his removal as a default termination and had "targeted [him] for economic destruction." Compl. ¶ 17(r). In 1991, the plaintiff brought a second action before the ASBCA, appealing the denial of his claim for $21 million in damages for various alleged contractual breaches on the part of the defendants. Id. ¶ 17(s). In May 1996, the ASBCA granted the plaintiff's first appeal and converted the default termination to a termination at the convenience of the government. Id. ¶ 17(t); Freedom NY, Inc., ASBCA No. 35671, 96-2 BCA ¶ 28,328 (May 7, 1996), partially vacated on other grounds, 96-2 BCA ¶ 28,502 (Aug. 15, 1996). In August 2001, the ASBCA held that the defendants had breached the plaintiff's MRE contract in multiple respects. Complaint ¶ 17(v); Freedom NY, Inc., ASBCA No. 43965, 01-2 BCA ¶ 31,585 (Aug. 28, 2001), reconsideration denied, 02-1 BCA ¶ 31,676 (Dec. 7, 2001).*fn5 The ASBCA also held that the defendants had no contractual duty, whether express or implied, "to maintain [Freedom NY] as an IPP planned producer" or to award future MRE contracts to the plaintiff. ASBCA No. 43965, 01-2 BCA ¶ 31,585 at 38.

In 2002, the plaintiff requested reinstatement into the MRE procurement program. Compl. ¶ 17(w). The DLA denied his reinstatement request, allegedly "using the same old charges already dismissed and declared 'meritless' by the [ASBCA]." Id. The pro se plaintiff then brought this action on December 1, 2003, alleging that the "[d]efendants have prevented and refused to allow [him] to participate as an equal participant in the [MRE] program" from 1980 through 2003, id. ¶ 12, and charging them with "continuing discriminatory conduct," which is "intentional, willful, [and] motivated by an animus towards blacks," id. ¶¶ 20, 22.*fn6

The defendants moved to dismiss the complaint on February 10, 2005, arguing in part that (1) the Court lacks personal jurisdiction over the individual defendants, Defs.' Mem. at 11-14; and (2) venue is improper in the District of Columbia, id. at 14-16.*fn7 The plaintiff then retained counsel and, on November 2, 2005, moved to voluntarily dismiss all claims in this action without prejudice. Motion to Dismiss Without Prejudice Plaintiff's Complaint and Jury Demand On All Counts [Voluntarily] at 1-2. The defendants opposed the plaintiff's motion, arguing that the plaintiff was "attempting to avoid an adverse decision on the merits." Defendants' Opposition to Plaintiff's Motion to Voluntarily Dismiss the Complaint Without Prejudice at 1. After a status hearing, the Court denied the plaintiff's motion and directed the plaintiff to respond to the defendants' motion to dismiss. January 23, 2006 Order.

On February 27, 2006, the plaintiff filed an opposition to the defendants' motion. Pl.'s Opp. Notably, the plaintiff does not contest the defendants' assertions regarding personal jurisdiction and venue. Id. at 30. Rather, the plaintiff states that the individual defendants "are subject to personal jurisdiction in the Southern District of New York and venue would be proper in that [C]court."*fn8 Id.

II. Standards of ...


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