United States District Court, District of Columbia
ROSEMARY M. COLLYER UNITED STATES DISTRICT JUDGE
Construction Company, Inc. (Grunley) was awarded the prime
construction contract (Contract) in 2014 for work related to
restoration of the Historic Center Building at St.
Elizabeth's West Campus for future occupation by the U.S.
Department of Homeland Security (DHS). Compl. [Dkt. 1] ¶
6. Grunley executed a payment bond with sureties Continental
Casualty Company and Liberty Mutual Insurance Company.
Id. ¶ 7. On or about November 23, 2015, Grunley
and Telligent Masonry, LLC (Telligent) agreed to a
subcontract by which Telligent was to perform masonry and
related work for compensation of $1, 725, 000.00.
Id. ¶ 8. At some point, Grunley directed
Telligent to perform additional work which raised the total
value of the subcontract to $2, 273, 984.83. Id.
date, Grunley has paid Telligent a total of $2, 159, 533.33,
which is $114, 451.50 short of the total subcontract value.
Id. ¶ 10. On April 17, 2019, Telligent filed
suit pursuant to the Miller Act, 40 U.S.C. §§
3131-34,  against the two sureties to recover monies
allegedly due. Compl. ¶¶ 20-26. Grunley filed a
motion to intervene as of right or by permission pursuant to
Federal Rule of Civil Procedure 24; the Court granted the
motion to intervene as of right, but permitted Telligent to
file a motion to dismiss Grunley's counterclaims. See
Order [Dkt. 13]. On July 17, 2019, Telligent moved to dismiss
Grunley's counterclaims for lack of subject-matter
jurisdiction, or, in the alternative, under the theory of
forum non conveniens. The motion is ripe for
to Federal Rule of Civil Procedure 12(b)(1), a defendant may
move to dismiss a complaint, or any portion thereof, for lack
of subject-matter jurisdiction. Fed.R.Civ.P. 12(b)(1). When
reviewing a motion to dismiss for lack of jurisdiction under
Rule 12(b)(1), a court must “assume the truth of all
material factual allegations in the complaint and
‘construe the complaint liberally, granting plaintiff
the benefit of all inferences that can be derived from the
facts alleged.'” Am. Nat'l Ins. Co. v.
FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting
Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir.
2005)). Nevertheless, “the Court need not accept
factual inferences drawn by plaintiff[ ] if those inferences
are not supported by facts alleged in the complaint, nor must
the Court accept plaintiff['s] legal conclusions.”
Speelman v. United States, 461 F.Supp.2d 71, 73
(D.D.C. 2006). The same logic and analysis are required when
evaluating a defendant-intervenor's counterclaim. See
United States v. Intrados/Int'l Mgmt. Grp., 277
F.Supp.2d 55, 59 (D.D.C. 2003) (summarizing legal standard
for motion to dismiss counterclaim).
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.” Modaressi v. Vedadi, 441
F.Supp.2d 51, 53 (D.D.C. 2006). “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.” Id. (citing 28
U.S.C. § 1406 (providing for dismissal or transfer when
venue is defective) and 28 U.S.C. § 1404 (allowing venue
transfer for the convenience of the parties and witnesses)).
parties have agreed to a forum selection clause, the
traditional analysis is altered and the clause should control
absent a strong showing it should be set aside.”
Gipson v. Wells Fargo & Co., 563 F.Supp.2d 149,
154 (D.D.C. 2008) (quoting 2215 Fifth St. Assoc. v.
U-Haul Int'l, Inc., 148 F.Supp.2d 50, 58 (D.D.C.
2001) (internal quotations omitted)); see also M/S Bremen
v. Zapata Off-Shore Co., 407 U.S. 1, 10, 12 (1972)
(“[Forum-selection] clauses are prima facie
valid” and “should be honored by the parties and
enforced by the courts.”). Forum selection clauses are
to be enforced unless the party resisting enforcement shows
that one of the exceptions set forth in Bremen applies. The
opponent of enforcement must make a “strong
(1) enforcement would be unreasonable and unjust; (2) the
clause was invalid for such reasons as fraud or overreaching;
(3) enforcement would contravene a strong public policy of
the forum in which suit is brought, whether declared by
statute or judicial decision; or (4) trial in the contractual
forum would be so gravely difficult and inconvenient that the
plaintiff will for all practical purposes be deprived of his
day in court.
Cheney v. IPD Analytics, LLC, 583 F.Supp.2d 108, 118
(D.D.C. 2008) (quoting Bremen, 407 U.S. at 15) (internal
Court granted Grunley's motion to intervene as of right
pursuant to Federal Rule of Civil Procedure 24(a), which does
not include the requirement that the intervenor demonstrate
an “independent basis for jurisdiction.” EEOC
v. Nat'l Children's Ctr., Inc., 146 F.3d 1042,
1046 (D.C. Cir. 1998). Had the Court granted Grunley's
motion to intervene through permissive intervention, under
Federal Rule of Civil Procedure 24(b), Grunley would have had
to establish how its contract claims against Telligent
presented the Court with subject-matter jurisdiction
independent from the Miller Act claims raised by Telligent.
See Id. (“The first requirement for permissive
intervention-an independent basis for jurisdiction-stems not
from any explicit language in Rule 24(b), but rather from the
basic principle that a court may not adjudicate claims over
which it lacks subject matter jurisdiction.”). With
intervention as of right, Grunley's counterclaims may be
considered by the Court via its supplemental jurisdiction to
hear “claims that are so related to claims in the
action within such original jurisdiction that they form part
of the same case or controversy.” 28 U.S.C. §
argues it is challenging the Court's jurisdiction to
address Grunley's claims, but the arguments are properly
understood as challenging venue. Telligent cites the dispute
resolution section of the Subcontract Agreement between
itself and Grunley for the proposition that the proper venue
for challenges to the agreement or either party's
performance is the Maryland state court located in Montgomery
County, Maryland. See Mot., Ex. A, ...