United States District Court, District of Columbia
MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION TO
DISMISS FOR IMPROPER VENUE OR, IN THE ALTERNATIVE, TO
TRANSFER THIS MATTER TO THE EASTERN DISTRICT OF
RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.
Marco Aguilar, individually and on behalf of others similarly
situated, filed this action against his former employer,
Michael & Son Services, Inc. ("M&S"),
seeking unpaid overtime compensation under the Fair Labor
Standards Act ("FLSA"), 29 U.S.C. § 216(b).
M&S moves to dismiss for improper venue or,
alternatively, to transfer to the Eastern District of
Virginia, Norfolk Division. Mr. Aguilar argues that venue is
proper in this District, but proposes that if this Court
finds otherwise, it should transfer this case to the Eastern
District of Virginia, Alexandria Division. Finding that
considerations of convenience and justice favor transfer to
the Eastern District of Virginia, Norfolk Division, this
Court grants M&S's alternative motion to transfer.
is organized under Virginia law and headquartered in
Alexandria, Virginia-provides home improvement and repair
services in Virginia, Maryland, and the District of Columbia.
Compl. ¶ 11, 13, ECF No. 1; Def.'s Mem. Supp. Mot.
Dismiss ("M&S Mem.") at 2, ECF No. 5-1.
Although it advertises to the "DC Metro Area" and
has a District of Columbia home improvement contractor
license, M&S asserts that it conducts only approximately
6-7% of its business in the District of Columbia.
See Compl. ¶4, 53, 62; M&S Mem. at 2;
Schlekau Aff. ¶ 6, ECF No. 5-2.
October 2016, M&S hired Mr. Aguilar-a resident of
Yorktown, Virginia-as a heating, ventilation, and air
conditioning ("HVAC") technician. See
Compl. ¶ 2; M&S Mem. at 2-3. Mr. Aguilar worked in
this capacity out of M&S's Norfolk, Virginia office
until his resignation in March 2017. M&S Mem. at 2. As
part of his duties, he traveled to customers' homes in a
company vehicle to perform services and repairs. Id.
During his tenure with M&S, he serviced seventy-seven
customers, all of whom were reportedly assigned to him by
supervisors and managers from M&S's Norfolk office.
Id. GPS records purportedly show that Mr. Aguilar
never worked outside of the area surrounding Norfolk,
Virginia. See id.; Schlekau Aff. ¶ 17.
Additionally, according to M&S, Mr. Aguilar's
supervisors and the records pertaining to his work history at
M&S are all located in the Norfolk office. M&S Mem.
at 3. Decisions regarding payment of M&S employees,
however, are made and processed in Alexandria, Virginia.
See Pl.'s Resp. Mot. Dismiss at 4, ECF No. 8.
Aguilar alleges that he and other HVAC technicians sometimes
worked more than forty hours per week and that, per company
policy, M&S did not compensate them for this overtime
work. Compl. ¶ 24-26. Mr. Aguilar commenced this action
against M&S, seeking unpaid overtime under the FLSA.
See Compl. ¶ 26. Presently before the Court is
M&S's motion to dismiss for improper venue or, in the
alternative, to transfer this case to the Eastern District of
Virginia, Norfolk Division. See Def.'s Mot. Dismiss, ECF
Motion to Dismiss for Improper Venue
Rule of Civil Procedure 12(b)(3) instructs a district court
to dismiss or transfer a case when venue is improper.
Fed.R.Civ.P. 12(b)(3); see also 28 U.S.C. §
1406(a) ("The district court of a district in which is
filed a case laying venue in the wrong division or district
shall dismiss, or if it be in the interest of justice,
transfer such case to any district or division in which it
could have been brought."). Venue is proper in a
district where (1) a defendant resides, if all defendants are
residents of the State in which the district is located; (2)
a substantial part of the events giving rise to the claim
occurred; or (3) if there is no district in which the action
may otherwise be brought, wherever the defendants are subject
to personal jurisdiction. 28 U.S.C. § 1391(b).
Generally, a defendant corporation is deemed a resident of
"any judicial district in which such defendant is
subject to the court's personal jurisdiction with respect
to the civil action in question." Id. §
1391(c)(2). But see Id. § 1391(d) (specifying
district rules for residency of corporations in States with
prevail on a motion to dismiss for improper venue, . ..
'the defendant must present facts that will defeat the
plaintiff s assertion of venue.'" Ananievv.
Wells Fargo Bank, N. A., 968 F.Supp.2d 123, 129 (D.D.C.
2013) (quoting Slabyv. Holder, 901 F.Supp.2d 129,
132 (D.D.C. 2012)). The burden, however, remains on the
plaintiff to prove that venue is proper when an objection is
raised, since "it is the plaintiffs obligation to
institute the action in a permissible forum."
Williams v. GEICO Corp., 192 F.Supp.2d 58, 62
(D.D.C. 2011). In determining whether venue is proper, courts
must accept the plaintiff s well-pled allegations as true,
resolve any factual conflicts in the plaintiffs favor, and
draw all reasonable inferences in favor of the plaintiff.
Hunter v. Johanns, 517 F.Supp.2d 340, 343 (D.D.C.
2007). However, "the court need not accept the
plaintiff's legal conclusions as true." Darby v.
U.S. Dep 't of Energy, 231 F.Supp.2d 274, 277
Motion to Transfer Pursuant to § 1404(a)
28 U.S.C. § 1404(a), any civil action may be transferred
to another district or division "[f]or the convenience
of parties and witnesses, in the interest of justice."
§ 1404(a). Unlike Rule 12(b)(3) and § 1406(a),
which contemplate dismissal or transfer when venue is
improper, "§ 1404(a) does not condition transfer on
the initial forum's being 'wrong.'" Ail.
Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of
Tex., 134 S.Ct. 568, 579 (2013). Instead, § 1404(a)
"is intended to place discretion in the district court
to adjudicate motions for transfer according to an
'individualized, case-by-case consideration of
convenience and fairness.'" Stewart Org., Inc.
v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van
Dusen v. Barrack, 376 U.S. 612, 622 (1964)). If the
district court finds transfer merited, it may send the case
to any district or division "where venue is also proper
(i.e., 'where [the case] might have been
brought') or to any other district to which the parties
have agreed." Atl. Marine Constr. Co., 134
S.Ct. at 579 (alteration in original) (quoting 28 U.S.C.
§ 1404(a)). The burden is on the moving party to
establish that transfer is proper. SEC v. Savoy Indus.,
Inc., 587 F.2d 1149, 1154 (D.C. Cir. 1978).
amotion for transfer under § 1404(a) involves a two-step
process. First, the movant must show that the proposed
transferee district is one where the plaintiff originally
could have brought the case. See Ctr. For Envtl. Sci. v.
Nat'l Park Serv.,75 F.Supp.3d 353, 356 (D.D.C.
2014). That is, a district where subject matter jurisdiction,
personal jurisdiction, and venue are proper. See Dean v.
Eli Lilly & Co.,515 F.Supp.2d 18, 21 (D.D.C. 2007).
Second, the movant must show that "considerations of
convenience and the interest of justice weigh in favor of
transfer." Sierra Club v. Flowers, 276
F.Supp.2d 62, 65 (D.D.C. 2003). This inquiry into whether
considerations of convenience and the interest of justice
weigh in favor of transfer '"calls on the district
court to weigh in the balance a number of ...