Davis v. American Society of Civil Engineers

290 F.Supp.2d 116

James DAVIS, Plaintiff, v. AMERICAN SOCIETY OF CIVIL ENGINEERS et al., Defendants.

Civ.A. No. 03-0908(RMU).

United States District Court, District of Columbia.

November 4, 2003.

COPYRIGHT MATERIAL OMITTED

Barry Coburn, Coburn & Schertler, Lisa A. Fishberg, Coburn & Schertler, L.L.P., Washington, DC, for Plaintiff.

Thomas L. McCally, Carr Maloney, P.C., Washington, DC, for Defendant.

MEMORANDUM OPINION

URBINA, District Judge.

DENYING THE PLAINTIFF'S MOTION FOR LEAVE TO FILE A SUR-REPLY AND TRANSFERRING THE ACTION TO THE EASTERN DISTRICT OF VIRGINIA

I. INTRODUCTION

After more than 13 years of employment with defendant American Society of Civil Engineers ("ASCE"), the plaintiff lost his job. Contending that various ASCE officers ("individual defendants"), motivated by "racial animus," strategically interfered with his employment contract and secured his termination, the plaintiff brings federal discrimination claims along with various non-federal claims. In response, the defendants filed a motion to dismiss or to transfer venue, asserting, inter alia, that venue is improper in this district under 28 U.S.C. § 1391(b) and that the court therefore should transfer the matter to the Eastern District of Virginia. After the parties completed briefing on the question of venue, the plaintiff sought leave to file a sur-reply. While the defendants' reply contains a new argument, the court denies the plaintiff's motion because that new argument does not affect the court's resolution of the defendants' venue motion. With respect to venue, the plaintiff fails to establish the necessary nexus between this district and the facts giving rise to his claims. Because venue indeed is improper in this district with respect to the plaintiff's federal claims, the court transfers those claims to the Eastern District of Virginia with the pendent non-federal claims in tow.

II. BACKGROUND

A. Factual Background

Defendant ASCE is a non-profit New York corporation with its headquarters and principal place of business in Reston Virginia and offices in New York City and Washington, D.C. Pl.'s Am. Compl. ("Compl.") ¶ 3; Defs.' Mot. at 1 & Ex. A (Natale Aff.). In March 1989, the plaintiff, an African American male, began working for defendant ASCE as its Assistant Executive Director and Chief Operating Officer. Compl. ¶ 9. In 1994, the plaintiff achieved the position of Executive Director and Chief Executive Officer ("CEO"). Id. ¶ 10. Defendant ASCE's corporate structure includes a "Board of Direction" ("the Board"), to which the CEO reports, and an Executive Committee ("the Committee") that exercises the Board's delegated authority. Id. ¶ 8.

The plaintiff's written employment contract provided him an initial term as CEO that would automatically renew for one-year terms subject to annual review by the Board. Id. ¶ 11. In 1996, the Committee unanimously extended the plaintiff's employment for two years, through October 31, 1998. Id. ¶ 12. In July 1997, the Committee again extended his employment, this time until October 31, 2000, and modified his contract to provide for automatic renewals every two years. Id. ¶ 13. On November 1, 1999, absent notice of non-renewal, the plaintiff's contract automatically extended through October 31, 2002. Id. ¶ 14.

The plaintiff alleges that beginning in 1999, "racial animus" motivated the three individual defendants and other ASCE officers to orchestrate the plaintiff's termination. Id. ¶ 19. The plaintiff claims that the individual defendants made false public statements about the plaintiff. Id. ¶ 25. On April 27, 2000 in Reston, Virginia, this alleged "defamatory campaign" materialized in a Committee vote by the individual defendants not to renew the plaintiff's contract. Id. ¶¶ 34-39, 49; Defs.' Mot. at 8. After the vote, one of the individual defendants attempted to deliver a termination notice to the plaintiff at an international conference in Edinburgh, Scotland. Compl. ¶¶ 58-59. After the plaintiff refused to accept the letter, it was later sent to him at defendant ASCE's headquarters in Reston. Id. ¶ 59.

In October 2000, the Board met in Seattle, Washington to consider the Committee's decision against renewal of the plaintiff's contract. Id. ¶ 60. At this meeting, the Board voted 15 to 10 in support of the Committee's non-renewal of the plaintiff's contract. Id. ¶ 72. In February 2002, while at defendant ASCE's Washington, D.C. office, one of the individual defendants presented the plaintiff with a severance offer requiring him to forego any claims against defendant ASCE. Id. ¶ 82. The plaintiff refused the offer. Id. Later that fall in Washington, D.C., allegedly without notice, defendant ASCE declined to provide the plaintiff with severance and other alleged contractually-guaranteed benefits. Id. In October 2002, defendant ASCE officially terminated the plaintiff at a meeting in Houston, Texas. Id. ¶ 83.

B. Procedural Background

On May 6, 2003, the plaintiff filed his original complaint. On June 9, 2003, the plaintiff filed an amended complaint asserting federal discrimination and civil-rights claims under 42 U.S.C. §§ 1981 and 1985(3) against all the defendants, a non-federal breach-of-contract claim against defendant ASCE, and non-federal claims of tortious interference with business and contractual relations against certain individual defendants. Id. at 23-29.

On June 30, 2003, the defendants filed a motion to dismiss or, in the alternative, to transfer venue. They argue, inter alia, that venue is improper in this district under 28 U.S.C. § 1391(b) and that the court therefore should transfer the action to the Eastern District of Virginia. See generally Defs.' Mot. On July 28, 2003, after the plaintiff filed his opposition and the defendants filed their reply, the plaintiff sought leave to file a sur-reply. See generally Pl.'s Mot. The court now addresses these motions.

III. ANALYSIS

A. Legal Standards

1. Leave to File a Sur-reply

The decision to grant or deny leave to file a sur-reply is committed to the sound discretion of the court. Am. Forest & Paper Ass'n, Inc. v. Envtl. Prot. Agency, 1996 WL 509601, at *3 (D.D.C. Sept. 4, 1996). If the movant raises arguments for the first time in his reply to the non-movant's opposition, the court will either ignore those arguments in resolving the motion or provide the non-movant an opportunity to respond to those arguments by granting leave to file a sur-reply. Ben-Kotel v. Howard Univ., 319 F.3d 532, 536 (D.C.Cir.2003); Natural Res. Def. Council, Inc. v. Envtl. Prot. Agency, 25 F.3d 1063, 1072 n. 4 (D.C.Cir.1994); Pa. Elec. Co. v. Fed. Energy Regulatory Comm'n, 11 F.3d 207, 209 (D.C.Cir.1993); see also Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 195 (D.C.Cir.1992) (acknowledging that consideration of arguments raised for the first time in a reply would be "manifestly unfair" to the respondent); Corson & Gruman Co. v. Nat'l Labor Relations Bd., 899 F.2d 47, 50 n. 4 (D.C.Cir.1990) (requiring parties to raise all of their arguments in their opening briefs "to prevent sandbagging"); Robinson v. Detroit News, Inc., 211 F.Supp.2d 101, 113 (D.D.C.2002) (denying leave to file a sur-reply where the proposed sur-reply merely reiterated prior arguments); Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C.2001) (denying leave to file a sur-reply where the plaintiff failed to demonstrate that the defendant's reply presented any new matters).

2. Venue Pursuant to 28 U.S.C. § 1391(b)

When federal jurisdiction is premised on a federal question, 28 U.S.C. § 1391(b) controls venue, establishing three places where venue is proper:

(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.

28 U.S.C. § 1391(b).

If the district in which the action is brought does not meet the requirements of section 1391(b), that district court may either 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." 28 U.S.C. § 1406(a). The decision of whether dismissal or transfer is "in the interest of justice" rests in the sound discretion of the district court. Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C.Cir.1983). The interest of justice, however, generally requires transferring such cases to the appropriate judicial district rather than dismissing them. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962); James v. Booz-Allen, 227 F.Supp.2d 16, 20 (D.D.C.2002).

To transfer the action, the court must ensure as a preliminary matter that venue is proper and that the defendants are subject to personal jurisdiction in the transferee forum. Sharp Elecs. Corp. v. Hayman Cash Register Co., 655 F.2d 1228, 1230 (D.C.Cir.1981) (per curiam); Crisler v. Schmeltzer, 1990 WL 113887, at *2 (D.D.C. July 24, 1990) (Green, J.). The D.C. Circuit favors transfer under section 1406(a) "when procedural obstacles [such as lack of personal jurisdiction, improper venue, and statute-of-limitations bars] impede an expeditious and orderly adjudication on the merits." Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C.Cir. 1983).

Although the D.C. Circuit has not identified the party who bears the burden in a challenge to venue, the majority of courts appear to place the burden on the plaintiff. 5A FED. PRAC. & PROC.2d § 1352 (noting that placing the burden on the plaintiff is consistent with the "plaintiff's obligation to institute his action in a permissible forum, both in terms of jurisdiction and venue"); see also Bartholomew v. Va. Chiropractors Ass'n, 612 F.2d 812, 816 (4th Cir.1979) (placing the...