United States District Court, District of Columbia
RANDOLPH D. MOSS United States District Judge
Lazina and Ria King (“the Kings”) filed this suit
against defendant Caliber Home Loans, Inc.
(“Caliber”) on November 25, 2015, alleging a
series of claims arising out of Caliber's efforts to
foreclose on their home in Oxon Hill, Maryland. See
Dkt. 1 (Compl.). Now before the Court is Caliber's motion
to dismiss the Kings' complaint on numerous grounds,
including for lack of venue under 28 U.S.C. §
1391(b). Dkt. 4-1 at 7-8. Also before the Court is
the Kings' motion to strike Caliber's motion to
dismiss under Federal Rule of Civil Procedure 12(f). Dkt. 5.
reasons explained below, the Court concludes that venue is
improper in this district and that it will, in the interest
of justice, transfer the case to the United States District
Court for the District of Maryland for further proceedings.
Because venue is not proper in this Court, the Court will not
reach the remaining issues raised in Caliber's motion to
dismiss. Finally, the Court will deny the Kings' motion
to strike Caliber's motion to dismiss and will, instead,
treat the motion to strike as an opposition.
Lazina and Ria King purchased a home in Oxon Hill, Maryland,
in April of 1996. Dkt. 1 at 9. In January of 2014, they
received notification that the “servicing of [their]
mortgage loan” would be transferred from Beneficial
Financial I Inc. to Caliber Home Loans, Inc. Id. at
first, the Kings “never really had an issue paying the
mortgage.” Id. at 9. Lazina King “fell
sick” in 2013, however, and she twice required
“emergency surger[ies]” that necessitated
repeated trips to the hospital. Id. at 15. In an
effort to “get [their] bills . . . back in order,
” the Kings “reached out” to Caliber in
April 2014 for a “little help by way of a loan
modification, ” and they faxed “a list of
documents” to Caliber to “start the loan
modification process.” Id. at 3, 15. After
calling Caliber to “inquire [about] the status of their
modification application, ” the Kings were informed
that “their file was closed because [Caliber] could not
contact the [Kings] because there was a cease and desist
order listed on [their] account.” Id. at 3.
The Kings allege that they “never issued a cease and
desist order” and that Caliber has never
“provided proof that such [an] order exists.”
Kings' “file was re-opened” in May 2014 and,
after submitting “additional documentation” to
Caliber, they received a “Final Loss Mitigation
Affidavit” from Caliber on June 11, 2014. Id.
at 4, 16. The affidavit notes that the Kings “ha[d] not
been solicited due to [a] cease and desist listed on [their]
file, ” but that they had “call[ed] in to follow
up on modification” and “submitted documents to
be considered for review.” Id. at 16. Although
the affidavit mentions that the Kings were “still
missing” several documents necessary to consider the
modification request, it also explains that the Kings were
still “able to apply for in-house modification”
and other “repayment plan options.” Id.
After another telephone call to Caliber on July 15, 2014, the
Kings were “able to get the file open again, ”
and Caliber followed-up the same day with a letter listing
the “specific documents” from the Kings that were
still needed. Id. at 6, 17. The Kings allege that
they “faxed over the required documents” on July
30, 2014, id. at 6, 9-10, 18-20, but, instead of
receiving “news” from Caliber “regarding
the modification, ” they “received a
letter” on August 22, 2014, announcing an
“impending sale” of their home at a “public
auction on September 9, 2014, ” id. at 6, 21.
The Kings' complaint does not describe the events that
occurred after they received the August 22 letter in much
detail. It does, however, allege that Caliber instituted a
“foreclosure case” and that “Plaintiff [is]
currently petition[ing] the Maryland Court of Special Appeals
in regards” to that case. Id. at 9.
Kings filed suit in this Court on November 25, 2015. Dkt. 1.
Their complaint alleges eight causes of action, including:
(1) Failure to Provide Honest Services as a Mortgage
Servicer; (2) Violation of the Dodd-Frank Act of 2014; (3)
Violation of the Real Estate Settlement Procedures Act (Reg.
X); (4) Violation of the Truth in Lending Act (Reg. Z); (5)
Negligence; 6) Emotional Distress; 7) Violation of the Fair
Debt Collection Practices Act; and, 8) Mental Anguish. Dkt. 1
at 7-9. Caliber filed a timely motion to dismiss, Dkt. 4, to
which the Kings responded with a “Motion to Strike
Defendants' Motion to Dismiss” “pursuant to
Rule 12(f), ” Dkt. 5 at 1. The next day, the Court
issued an Order noting that it “may construe” the
Kings' Motion to Strike as “a response to
Caliber's Motion, ” and permitting the Kings to
“supplement their Motion to Strike or to file a
separate opposition to Caliber's motion.” Dkt. 6 at
1-2. The Kings filed a timely opposition brief, Dkt. 7, and
Caliber replied, Dkt. 8.
law requires that plaintiffs bring suit “in the proper
venue” to “ensure that a district with some
interest in the dispute or nexus to the parties adjudicates
the plaintiff's claims.” Hamilton v. JPMorgan
Chase Bank, 118 F.Supp.3d 328, 333 (D.D.C. 2015).
“Venue is proper in the district where (1) a defendant
resides; (2) the events giving rise to the suit occurred; or
(3) if venue would not be proper in any district for those
reasons, wherever the defendants are subject to personal
jurisdiction.” Hamilton, 118 F.Supp.3d at 333
(citing 28 U.S.C. § 1391(b)).
to Federal Rule of Civil Procedure 12(b)(3), “a
defendant may, at the lawsuit's outset, test whether the
plaintiff ‘has brought the case in a venue that the law
deems appropriate.'” Johns v. Newsmax Media,
Inc., 887 F.Supp.2d 90, 96 (D.D.C. 2012) (quoting
Modaressi v. Vedadi, 441 F.Supp.2d 51, 53 (D.D.C.
2006)). In order to “prevail on a motion to dismiss for
improper venue, ” a “defendant must present facts
that will defeat the plaintiff's assertion of venue,
” but the “burden . . . remains on the plaintiff
to prove that venue is proper when an objection is raised,
since it is the plaintiff's obligation to institute the
action in a permissible forum.” Roland v. Branch
Banking & Trust Corp., 149 F.Supp.3d 61, 67 (D.D.C.
2015) (internal quotation marks omitted). In considering a
motion to dismiss for improper venue, the Court must accept
the factual allegations of the complaint regarding
venue as true and must draw all reasonable inferences in
favor of the plaintiff. See James v. Verizon Servs.
Corp., 639 F.Supp.2d 9, 11 (D.D.C. 2009). Moreover,
“[t]he [C]ourt may resolve the motion on the basis of
the complaint alone, or, as necessary, [it may] examine facts
outside the complaint that are presented by the parties,
while drawing reasonable inferences in favor of the
plaintiff.” McCain v. Bank of America, 13
F.Supp.3d 45, 51 (D.D.C. 2014).
Court concludes that venue is improper, it must then decide
whether to dismiss the action or to transfer the case to a
district where it could initially have been instituted.
See Hamilton, 118 F.Supp.3d at 333 (citing 28 U.S.C.
§ 1406(a)). As the D.C. Circuit has observed,
“[r]efusal to transfer spells the end to the action,
while transfer would not prejudice the defendants'
position on [the] merits, ” and “[t]he Supreme
Court has inferred a congressional purpose underlying section
1406(a) favoring the transfer of cases when procedural
obstacles ‘impede an expeditious and orderly
adjudication . . . on the merits.'” Sinclair v.
Kleindienst, 711 F.2d 291, 293-94 (D.C. Cir. 1983)
(quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463,
466-67 (1962)). “Included among these ‘procedural
obstacles' is ‘lack of personal
jurisdiction.'” Katopothis v. Windsor-Mount Joy
Mut. Ins. Co., Civ. No. 14-380 at 39 (D.D.C. Sept. 26,
2016) (quoting Sinclair, 711 F.2d at 294).
“Dismissal, instead of transfer, is appropriate when
the plaintiff's claims suffer from significant
substantive deficiencies, ” but ultimately,
“[w]hether to dismiss or transfer the case is committed
to the sound discretion of the district court.”
Hamilton, 118 F.Supp.3d at 333.
Caliber raises various challenges to the Kings'
complaint, the Court starts with the threshold question of
whether venue is proper in this district. In addressing this
issue, the Court is mindful of the fact that the Kings are
proceeding pro se and that, accordingly, it must
construe their “filings liberally.”
Richardson v. United States, 193 F.3d 545, 548 (D.C.
Cir. 1999). At the same time, however, it is the
plaintiff's burden to establish venue, see
McCain, 13 F.Supp.3d at 51, and the Court cannot relieve
the Kings of this burden merely because they are acting
without the benefit of counsel. The Court will, accordingly,
first consider the basis for venue alleged in the complaint
and will then consider ...