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Modaressi v. Vedadi

July 24, 2006

BIJAN MODARESSI, PLAINTIFF,
v.
MOLOOK VEDADI, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM OPINION

Plaintiff Bijan Modaressi brings this civil action against his mother and brother (as well as three companies that his brother controls) on the theory that they engaged in a two-decades-long criminal enterprise to pilfer money from a restaurant that plaintiff owned in the Georgetown section of Washington, D.C. Defendants, who are Maryland citizens, have moved to dismiss the complaint for improper venue, asserting that the specific venue provisions of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1965, as well as the requirements of the general federal venue statute, 28 U.S.C. § 1391, make the District of Maryland the only appropriate forum for this suit. Because the Court concludes that RICO's venue provisions need not be satisfied if venue is properly established pursuant to section 1391, and that enough of the relevant events in this case occurred in the District of Columbia to support venue under section 1391, it will deny defendants' motion to dismiss. In short, plaintiff cannot choose his relatives, but he may choose where to sue them -- and the Court must respect that choice when, as here, it is consistent with the statutory limitations on venue.

BACKGROUND

From 1982 to 2000, plaintiff owned Chelsea's, a restaurant and nightclub in the District of Columbia. Compl. ¶ 18. From 1986 to 1988, defendant Morteza Modaressi, plaintiff's brother, worked as the head bartender at Chelsea's. Id. at ¶ 19. During those two years, the complaint alleges, Morteza Modaressi (who then was living in the District of Columbia, id. at ¶ 7) "defraud[ed] plaintiff of revenues generated from the sale of liquor at Chelsea's by offering 'free' drinks to [patrons] in exchange for large tips (in the range of $50 per person)," totaling thousands of dollars. Id. at ¶ 19. According to the allegations of the complaint, plaintiff's mother, defendant Molook Vedadi, also stole from the restaurant -- embezzling more than $225,000 over a period of three years (from 1997 to 2000) from the cash receipts that Chelsea's employees delivered in envelopes to plaintiff's Maryland home, where his mother lived. Id. at ¶¶ 22, 25-26. Plaintiff alleges that his mother, whom he had appointed "as his trustee for the purpose of collecting and depositing in trust profits generated from Chelsea's for plaintiff's benefit," id. at ¶ 23, transferred "tens of thousands of dollars" of the stolen funds to a bank in Iran using a D.C.-based money carrier between 1997 and 2003, id. at ¶¶ 29-30. The complaint asserts that plaintiff's brother facilitated the embezzlement by putting their mother in contact with the money carrier, bringing her to the money carrier, making telephone calls and sending faxes to aid the transfer, and preparing false tax returns to disguise the theft. Id. at ¶ 32. Defendants used the remainder of the embezzled funds, plaintiff contends, to purchase three rental properties as well as a townhouse and a hair salon -- all in the Maryland suburbs of Washington, D.C. See id. at ¶¶ 38-40, 43-44. As a result of defendants' alleged embezzlement, plaintiff contends that he was unable to pay sales taxes owed to the District of Columbia and was forced to close Chelsea's in 2000. See id. at ¶ 52.

On December 16, 2005, plaintiff filed this civil action against defendants seeking treble damages for various violations of RICO as well as compensatory and punitive damages for conversion, fraudulent misrepresentation, breach of fiduciary duty, unjust enrichment, fraudulent conveyance and/or transfer of real property, constructive trust, interference with contractual relations, and intentional infliction of emotional distress. Defendants responded with a motion to dismiss for improper venue, pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure.

STANDARD OF REVIEW

Venue statutes serve "the purpose of protecting a defendant from the inconvenience of having to defend an action in a trial court that is either remote from the defendant's residence or from the place where the acts underlying the controversy occurred." VE Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1576 (Fed. Cir. 1990). Rule 12(b)(3) permits a defendant at the outset of litigation to test whether plaintiff has brought the case in a venue that the law deems appropriate. Fed. R. Civ. P. 12(b)(3). If the plaintiff's chosen forum is an improper venue under applicable statutes, or is otherwise inconvenient, the Court may dismiss the action or transfer the case to a district where venue would be proper or more convenient. See 28 U.S.C. § 1406 (providing for dismissal or transfer of a case where there is a venue defect); 28 U.S.C. § 1404 (providing for change of venue "[f]or the convenience of parties and witnesses, in the interest of justice"). "Because it is the plaintiff's obligation to institute the action in a permissible forum, the plaintiff usually bears the burden of establishing that venue is proper." Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C. 2003); 15 Charles Alan Wright et al., Federal Practice & Procedure § 3826, at 258 (2d ed. 1986 & Supp. 2006) ("[W]hen [an] objection has been raised, the burden is on the plaintiff to establish that the district he chose is a proper venue."). Furthermore, plaintiff must establish venue for each cause of action when a defendant objects. City of New York v. Cyco.net, Inc., 383 F. Supp. 2d 526, 543 (S.D.N.Y. 2005). Unless there are pertinent factual disputes to resolve,*fn1 a challenge to venue presents a pure question of law for the Court.

ANALYSIS

Defendants' venue challenge proceeds on two fronts.*fn2 First, because the general federal venue statute applies "except as otherwise provided by law," 28 U.S.C. § 1391(b), defendants argue that plaintiff must satisfy the specific venue provision of RICO and that the facts alleged in the complaint fail to do so. Second, defendants assert that plaintiff also must satisfy the general federal venue statute, section 1391, with respect to all claims and that he has not done so. The Court will address each argument in turn.

I. RICO Venue

RICO contains a special venue provision that permits any civil action brought thereunder to "be instituted in the district court of the United States for any district in which [a defendant] resides, is found, has an agent, or transacts his affairs." 18 U.S.C. § 1965(a) (emphasis supplied). In this case, the allegations of the complaint (which are the only facts properly before the Court) do not support a finding that any defendant resides, is found, has an agent, or transacts affairs in the District of Columbia.*fn3 Thus, if plaintiff were required to satisfy section 1965(a) in order to overcome defendant's venue objection, the case could not proceed in this Court and instead would have to proceed in the District of Maryland, where all the defendants reside and/or transact business. Section 1965, however, is not a venue requirement; rather, it is a substitute venue provision that a plaintiff may utilize if venue is not otherwise available. See Cyco.Net, Inc., 383 F. Supp. 2d at 543-44 ("The RICO venue provision is supplemental to the general federal venue provision found in 28 U.S.C. § 1391. This means Plaintiff may properly lay venue in accordance with either 18 U.S.C. § 1965 or 28 U.S.C. § 1391.") (internal citations omitted); Monarch Normandy Square Partners v. Normandy Square Assocs. Ltd. P'ship, 817 F. Supp. 899, 904 (D. Kan. 1993) ("The venue provisions of RICO supplement the provisions of § 1391(b)"); Van Schaick v. Church of Scientology of Calif., Inc., 535 F. Supp. 1125, 1133 n.6 (D. Mass. 1982) ("The special venue provision found in 18 U.S.C. § 1965 ... is intended to liberalize the existing venue provisions.").

In other words, section 1965 is not the exclusive source of venue for a RICO claim. A RICO plaintiff, if he chooses, still may rely on the general venue provisions of 28 U.S.C. § 1391 to establish venue. See Van Schaick, 535 F. Supp. at 1133 n.6 ("[W]here venue is improper under [section] 1965(a), it is appropriate to inquire whether the action can be maintained under the general venue statute, 28 U.S.C. § 1391(b)."). Because it appears in this case that venue would not be proper in this district under section 1965(a), the Court will consider whether plaintiff nonetheless has satisfied the requirements of the general federal venue statute.*fn4

II. General Federal Venue

The general requirements for venue in federal court are provided by 28 U.S.C. § 1391. When, as here, subject-matter jurisdiction is not premised solely on diversity of citizenship,*fn5 section 1391(b) specifies ...


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