Maysaroh v. American Arab Communications & Translations Center, LLC , 51 F. Supp. 3d 88 ( 2014 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
____________________________________
)
MAYSAROH, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-1743 (ABJ)
)
AMERICAN ARAB COMMUNICATIONS )
& TRANSLATION CENTER, LLC, et al., )
)
Defendants. )
)
MEMORANDUM OPINION
Plaintiff Maysaroh brings this action against defendants American Arab Communications
& Translations Center, LLC t/a/ Zenobia Lounge, Farah Atassi, Charif Khanji, and Ahmad
Atassi,1 claiming that defendants violated 18 U.S.C. §§ 1589, 1590, 1592 (2012) when they
allegedly isolated and imprisoned plaintiff in their Virginia residence, subjected her to forced
labor in Virginia and in the District of Columbia, and threatened and mistreated her. Compl.
¶¶ 1–5, 140–52 [Dkt. # 1]. Plaintiff also alleges that defendants violated the Fair Labor
Standards Act (“FLSA”), 29 U.S.C. § 201 et seq. (2012), and the District of Columbia Minimum
Wage Act, D.C. Code § 32-1001 et seq. (2012), when they refused to pay her wages, and she
asserts that defendants committed the state-law tort of false imprisonment. Id. ¶¶ 153–79.
Defendants filed a motion to dismiss plaintiff’s complaint for improper venue pursuant to
Federal Rule of Civil Procedure 12(b)(3) or, in the alternative, to transfer venue under 28 U.S.C.
§ 1404(a) (2012). Defs.’ Mot. to Dismiss (“Defs.’ Mot.”) at 1 [Dkt. # 13]. Because the Court
1 Defendants notified the Court of the correct spelling of defendant Ahmad Atassi’s name.
Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss at 1 n.1 [Dkt. # 13] (noting that it is Atassi,
not Attassi).
finds the District of Columbia is an improper venue, the Court will grant defendants’ motion and
transfer the action to the Eastern District of Virginia.
BACKGROUND
Up until 2011, plaintiff Maysaroh lived in Indonesia. Compl. ¶¶ 28, 40. She was offered
an employment opportunity working in the United States for General Muhammed Al-Karsi, who
promised to pay plaintiff $1,000 monthly. See id. ¶ 36. As a result, plaintiff arrived in this
country on June 7, 2011, and was met at the airport by defendant Farah Atassi and an individual
introduced as General Al-Karsi. Id. ¶¶ 41–42. But plaintiff did not go to work for General Al-
Karsi as originally planned; instead, defendant Farah Atassi took plaintiff to defendants’
residence in Vienna, Virginia,2 where defendants allegedly isolated and imprisoned her,
subjected her to forced labor, threatened and mistreated her, and refused to pay her wages from
June 2011 until plaintiff escaped in January 2012. Id. ¶¶ 1–5, 44–46, 49, 131.
Plaintiff filed the six-count complaint in this case on November 5, 2013, seeking redress
for her alleged mistreatment. Defendants moved to dismiss plaintiff’s complaint for improper
venue or, in the alternative, to transfer the case to the Eastern District of Virginia. Defs.’ Mot. at
1; Mem. of P. & A. in Supp. of Defs.’ Mot. to Dismiss (“Defs.’ Mem.”) [Dkt. # 13]. Plaintiff
opposed defendants’ motion, arguing that a substantial part of the events underlying the claims in
the complaint occurred in the District of Columbia. Pl.’s Opp. to Defs.’ Mot. to Dismiss (“Pl.’s
Opp.”) [Dkt. # 15].
2 When plaintiff first arrived at defendants’ residence in Vienna, Virginia, three adults –
defendants Farah Atassi, Charif Khanji, and Ahmad Atassi – and two children lived there.
Compl. ¶ 47. The parents of defendants Farah and Ahmad Atassi – Grandmother Atassi and
Grandfather Atassi – arrived a few weeks after plaintiff and resided in the home through the
remainder of plaintiff’s alleged forced employment. Id.
2
I. Events underlying plaintiff’s claims that allegedly occurred in Virginia.
In the complaint, plaintiff alleges that defendants forced her to perform household tasks
“[s]even days a week, from approximately 7:00 a.m. to 12:00 a.m.” in their Virginia home from
June 2011 to January 2012. Compl. ¶¶ 45, 59. These tasks included cleaning the home, doing
laundry for defendants and their extended family, and preparing meals for defendants and their
extended family. Id. ¶¶ 59–62. According to plaintiff, defendants required plaintiff “to work
every day, including holidays and weekends,” and they also required her to prepare food in
Virginia for use at defendants’ restaurant in the District of Columbia. Id. ¶¶ 67–68, 83;
Maysaroh Sworn Statement, Ex. 1 to Pl.’s Opp. to Defs.’ Mot. to Dismiss ¶ 16 [Dkt. # 15-1].
The complaint further alleges that defendants mistreated and imprisoned plaintiff in their
home. For example, plaintiff states that defendants confiscated her belongings, including her
passport; prohibited her from contacting anyone outside defendants’ family, aside from four
supervised phone calls to her husband and son; and failed to show her how to use their home
security system. Compl. ¶¶ 50, 52–55. She asserts that defendants housed her in a tiny room in
their basement without windows, heat, air conditioning, or ventilation; failed to provide her with
appropriate medical care; did not permit her to eat regular meals; and permitted a family member
to sexually assault her in their Virginia home and to threaten that she would be shot and raped if
she attempted to escape. Id. ¶¶ 75, 77–82, 84. Finally, plaintiff claims that defendants never
paid her for the work she performed. Id. ¶¶ 85, 87.
II. Events underlying plaintiff’s claims that allegedly occurred in the District of
Columbia.
The complaint also alleges that some events took place in the District of Columbia. For
example, plaintiff contends that defendants forced her to accompany them to their restaurant in
the District approximately once a week from June 2011 to January 2012. Id. ¶¶ 73–74;
3
Maysaroh Sworn Statement ¶ 4. During these weekly visits, which ranged from twenty minutes
to two hours, defendants confined plaintiff to an upstairs office area and sometimes required her
to perform work, such as dusting off shelves. Compl ¶¶ 73–74; Maysaroh Sworn Statement
¶¶ 11, 13, 15. They did not permit plaintiff to wait outside or leave the restaurant unless
accompanied by a member of their household, and they forced plaintiff to clean the restaurant for
approximately two hours on four separate occasions after the month of Ramadan in 2011.
Compl. ¶¶ 69–70; Maysaroh Sworn Statement ¶¶ 12, 17–18. Defendant Farah Atassi’s mother
allegedly supervised plaintiff’s work and ensured that she did not leave the restaurant. Maysaroh
Sworn Statement ¶¶ 20–21. Plaintiff claims that defendants never paid her for the work
performed in the District of Columbia. Compl. ¶¶ 85, 87.
STANDARD OF REVIEW
“In considering a Rule 12(b)(3) motion, the court accepts the plaintiff's well-pled factual
allegations regarding venue as true, draws all reasonable inferences from those allegations in the
plaintiff’s favor, and resolves any factual conflicts in the plaintiff’s favor.” Pendleton v.
Mukasey, 552 F. Supp. 2d 14, 17 (D.D.C. 2008), quoting Darby v. U.S. Dep’t of Energy, 231 F.
Supp. 2d 274, 276-77 (D.D.C. 2002). The court may consider material outside of the pleadings.
Artis v. Greenspan, 223 F. Supp. 2d 149, 152 (D.D.C. 2002). “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).
“Unless there are pertinent factual disputes to resolve, a challenge to venue presents a pure
question of law.” Williams v. GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011).
4
ANALYSIS
I. The Court will grant defendants’ motion because venue is not proper in the
District of Columbia.
Defendants move to dismiss the complaint on the grounds that the complaint does not
support venue in the District of Columbia under any of the three bases listed in 28 U.S.C.
§ 1391(b) (2012). Defs.’ Mem. at 3. Plaintiff objects and argues that venue is proper in the
District under section 1391(b)(2). Pl.’s Opp. at 1.
Section 1391(b)(2) provides that venue is proper in “a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C.
§ 1391(b)(2). This section does not require a plaintiff to bring suit in a district where every event
that supports an element of the claim occurred; rather, it merely requires a plaintiff to show that
some considerable portion of the events occurred in their chosen forum. See Modaressi v.
Vedadi, 441 F. Supp. 2d 51, 57 (D.D.C. 2006) (“Nothing in section 1391(b)(2) mandates that a
plaintiff bring suit in the district where the most substantial portion of the relevant events
occurred . . . .”). In applying that analysis, courts should undertake a “commonsense appraisal”
of the “events having operative significance in the case.” Lamont v. Haig, 590 F.2d 1124, 1134
n.62 (D.C. Cir. 1978) (noting that in certain situations “the forum court should not oppose the
plaintiff's choice of venue if the activities that transpired in the forum district were not
insubstantial in relation to the totality of events giving rise to the plaintiff's grievance”).
Here, the events that occurred in the District of Columbia are not a substantial part of the
events that give rise to plaintiff’s claims of human trafficking for forced labor, unpaid minimum
and overtime wages, and false imprisonment. Compl. ¶ 5. It was in Virginia that defendants
allegedly forced plaintiff to work “[s]even days a week, from approximately 7:00 a.m. to 12:00
a.m.” for approximately seven months, amounting to 5,232 working hours. Id. ¶¶ 45, 59, 131.
5
Defendants allegedly forced plaintiff to accompany them to their restaurant in the District of
Columbia once a week, but that was for twenty minutes to two hours, and they allegedly required
her to clean it four separate times. Id. ¶¶ 73–74, Maysaroh Sworn Statement ¶ 18. This adds up
to about 62 working hours or 1.3% of the total duration of the alleged forced employment.3
Maysaroh Sworn Statement ¶¶ 4, 11, 17–18, 20. Thus, the Court cannot find that the allegations
related to the District make up a substantial part of the events giving rise to plaintiff’s claims.
See, e.g., Noxell Corp. v. Firehouse No. 1 Bar-B-Que Rest., 760 F.2d 312, 314, 317 (D.C. Cir.
1985) (finding venue improper when 1.5% of defendant’s overall sales occurred in the District of
Columbia); Delta Sigma Theta Sorority Inc. v. Bivins, No. 13-252, 2014 WL 700019, at *4, *9
(D.D.C. Feb. 19, 2014) (finding venue improper when 1.3% of defendants’ overall sales
occurred in the District of Columbia); Shay v. Sight & Sound Sys., Inc., 668 F. Supp. 2d 80, 84–
85 (D.D.C. 2009) (finding venue improper when defendants showed three out of five plaintiffs
worked on three projects in the District of Columbia).4 Venue is therefore improper in the
District of Columbia.
3 Plaintiff contends that defendants confined her to their Virginia home for approximately
seven months, or 5,232 total hours. Compl. ¶¶ 45, 131. The complaint and plaintiff’s sworn
statement account for time defendants forced plaintiff to work in Virginia (69.8%) and the
District of Columbia (1.3%). Compl. ¶ 59; Maysaroh Sworn Statement ¶¶ 4, 11, 17–18, 20. It
does not, however, account for the other 28.9% of plaintiff’s time, some of which the Court
presumes was spent sleeping at defendants’ home in Virginia.
4 Plaintiff argues that her weekly visits and four additional trips to defendants’ restaurant in
the District of Columbia distinguish her case from Shay v. Sight & Sound Systems, Inc. Pl.’s
Opp. at 7. In Shay, the court granted defendants’ motion to dismiss plaintiffs’ claims for
improper venue when one plaintiff worked on one project in the District of Columbia and two
plaintiffs worked on one project there out of 150 assigned to them collectively. 668 F. Supp. 2d
at 85. The Court recognizes that plaintiff presents a stronger case than the Shay plaintiffs, but
only so far as plaintiff, unlike the plaintiffs in Shay, spent more than three occasions in the
District. The fact that 1.3% of plaintiff’s alleged forced employment took place in the District
simply does not support a conclusion that a substantial part of the events or omissions giving rise
to her claims occurred there and therefore does not support a finding that venue is proper.
6
The cases plaintiff relies on do not support a contrary conclusion. Pl.’s Opp. at 5–7. In
Douglas v. Chariots for Hire, the court denied defendants’ motion to dismiss for improper venue
because more than one-third of the events underlying the plaintiff’s claims occurred in the
District of Columbia. 918 F. Supp. 2d 24, 29–31 (D.D.C. 2013). And in Modaressi v. Vedadi,
the court denied the defendants’ motion to dismiss for improper venue because the main acts
giving rise to the defendants’ liability for fraud occurred at the plaintiff’s restaurant in the
District. 441 F. Supp. 2d at 56–57. In that case, one defendant, a restaurant employee, offered
free drinks in exchange for excessive tips, and the other defendant instructed restaurant
employees to deliver her cash receipts. Id. at 53. Although the defendants felt some of the
benefits of their scheme in Maryland, the operative events that made those benefits possible
occurred in the District of Columbia. Id. Here, the events that occurred in the District do not
have the same operative significance as the events in Modaressi, and they occurred much less
frequently than those in Douglas. The District of Columbia is therefore not a proper venue for
plaintiff’s action under section 1391(b).
But instead of dismissing the case for improper venue, the Court will exercise its
discretion and transfer the case to the Eastern District of Virginia in the interests of justice. See
28 U.S.C. 1406(a) (2012) (“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.”); Ellis–Smith v. Sec’y of the
Army, 793 F. Supp. 2d 173, 177 (D.D.C. 2011), citing Goldlawr, Inc. v. Heiman, 369 U.S. 463,
466–67 (1962) (“Although the decision to transfer or dismiss is committed to the sound
discretion of the district court, the interest of justice generally requires transferring a case to the
appropriate judicial district in lieu of dismissal.”). Transfer based on improper venue is preferred
7
over dismissal because “procedural obstacles ‘impede an expeditious and orderly adjudication
. . . on the merits,’” and “[r]efusal to transfer spells the end to the action, while transfer would
not prejudice the defendants’ position on merits.” Sinclair v. Kleindienst, 711 F.2d 291, 293–94
(D.C. Cir. 1983), quoting Goldlawr, 369 U.S. at 466–67. As the above discussion demonstrates,
the overwhelming majority of events giving rise to plaintiff’s claims occurred at defendants’
home in Vienna, Virginia. Compl. ¶ 59. Thus, the Eastern District of Virginia is the appropriate
venue in this case.
II. Even if venue was proper in the District of Columbia, the Court would grant
defendants’ motion to transfer the case under 28 U.S.C. § 1404(a).
Section 1404(a) provides “for the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any other district or division where it
might have been brought.” 28 U.S.C. § 1404(a). The moving party bears the burden of
demonstrating that transfer is proper, see SEC v. Savoy Indus., Inc., 587 F.2d 1149, 1154 (D.C.
Cir. 1978), and the court must determine that transfer is necessary for the convenience of the
parties and witnesses and in the interest of justice. See Fine v. McGuire, 433 F.2d 499, 501
(D.C. Cir. 1970). To do so, the Court looks at a combination of private and public interest
factors. The private interest factors to be considered are:
(1) The plaintiff’s choice of forum, unless the balance of convenience is strongly in favor
of the defendants;
(2) The defendants’ choice of forum;
(3) Whether the claim arose elsewhere;
(4) The convenience of the parties;
(5) The convenience of the witnesses of the plaintiff and defendant, but only to the extent
that the witnesses may actually be unavailable for trial in one of the fora; and
(6) The ease of access to sources of proof.
8
Trout Unlimited v. U.S. Dep’t of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996). The public interest
factors to be considered are:
(1) The transferee’s familiarity with the governing laws;
(2) The relative congestion of the calendars of the potential transferee and transferor
courts; and
(3) The local interest in deciding local controversies at home.
Id.
Ultimately, “[t]he decision whether or not to transfer the case to another judicial district
pursuant to 28 U.S.C. § 1404(a) is discretionary.” In re DRC, Inc., 358 F. App’x 193, 194 (D.C.
Cir. 2009). Therefore, “the proper technique to be employed is a factually analytical, case-by-
case determination of convenience and fairness.” Savoy Indust., 587 F.2d at 1154; see also
Treppel v. Reason, 793 F. Supp. 2d 429, 436 (D.D.C. 2011), quoting Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29 (1988) (noting that courts “adjudicate motions to transfer according to an
‘individual case-by-case consideration of convenience and fairness’”).
Here, the parties do not dispute that the Eastern District of Virginia is an appropriate
forum where this case could be brought. Instead, plaintiff argues that transfer is improper
because the private and public interest factors do not weigh in favor of it. Pl.’s Opp. at 10–15.
The Court disagrees.
A. Three of the six private interest factors favor transfer, and the other three
are neutral.
The first private interest factor, plaintiff’s choice of forum, receives considerable
deference in evaluating whether to transfer an action. See Savoy Indust., 587 F.2d at 1154–55;
see also Gross v. Owen, 221 F.2d 94, 95 (D.C. Cir. 1955) (“It is almost a truism that a plaintiff’s
choice of a forum will rarely be disturbed . . . .”). Deference is diminished, however, when
9
plaintiff’s choice of forum has ‘“no meaningful ties to the controversy and no particular interest
in the parties or subject matter.”’ Trout Unlimited, 944 F. Supp. at 17, quoting Chung v.
Chrysler Corp., 903 F. Supp. 160, 165 (D.D.C. 1995). Here, plaintiff’s choice of forum is owed
little deference. She is not a resident of the District of Columbia, the defendants are not residents
of the District of Columbia, and the District of Columbia does not have meaningful ties to the
controversy, as the majority of alleged events – such as the imprisonment, unpaid labor, and
sexual assault – occurred in Virginia. This factor therefore favors transfer.
The second private interest factor also favors transfer. It instructs the Court to look at
defendant’s choice of forum. Trout Unlimited, 944 F. Supp. at 16. Although that choice
generally does not receive deference and the defendant “must establish that the added
convenience and justice of litigating in [its] chosen forum overcomes the deference ordinarily
given to [p]laintiff’s choice,” Douglas, 918 F. Supp. 2d at 32, defendants’ burden in this case is
lower because the Court already found that plaintiff’s choice of forum is entitled to limited
deference. At the same time, however, the proximity of the Eastern District of Virginia reduces
defendants’ ability to establish the added convenience or justice of litigating in their chosen
forum. Accordingly, this factor only slightly favors transfer.
In assessing the third private interest factor, where the claim arose, “[c]ourts in this
district have held that claims ‘arise’ under 28 U.S.C. 1404(a) in the location . . . where most of
the significant events giving rise to the claims occurred.” Treppel, 793 F. Supp. 2d at 436–437
(citation omitted). And “[c]ourts frequently grant transfer motions where the circumstances
giving rise to the controversy occurred in the transferee forum.” Parkridge 6, LLC v. U.S. Dep’t
of Transp., 772 F. Supp. 2d 5, 10 (D.D.C. 2009). This factor therefore strongly weighs in favor
10
of transfer here because, as discussed above, most of the significant events in this case occurred
at defendants’ home in Vienna, Virginia. Compl. ¶ 59.
The remaining three private interest factors – the convenience of the parties; the
convenience of plaintiff’s and defendant’s witnesses; and the ease of access to sources of proof –
however, are neutral because of the proximity of the District of Columbia to the Eastern District
of Virginia. See Treppel, 793 F. Supp. 2d at 437; see also Parkridge 6, LLC, 772 F. Supp. 2d at
9 (noting “[c]onvenience of the parties would not be greatly affected by transfer,” given the
proximity of the District of Columbia and the Eastern District of Virginia).
B. Two out of three public interest factors favor transfer, and the other is
neutral.
The first public interest factor, the transferee court’s familiarity with governing laws, is
neutral in this case. On the one hand, the interests of justice are “best served by having a case
decided by the federal court in the state whose laws govern the interests at stake.” Trout
Unlimited, 944 F. Supp. at 19. But on the other hand, plaintiff brings six claims, four of which
arise under federal statutes. Compl. ¶ 5. “[W]here the heart of the case involves violations of
federal law, this factor is less significant.” Douglas, 918 F. Supp. 2d at 33. Thus, the Court
finds this factor is neutral.
The remaining two public interest factors, however, weigh in favor of transfer. The
second public interest factor considers the relative congestion of each court: “While ‘congestion
alone is not sufficient reason for transfer, relative docket congestion and potential speed of
resolution is an appropriate factor to [consider].’” Parkridge 6, LLC, 772 F. Supp. 2d at 8,
quoting Starnes v. McGuire, 512 F.2d 918, 932 (D.C. Cir. 1974). But see United States v. H & R
Block, Inc., 789 F. Supp. 2d 74, 84 (D.D.C. 2011) (“Any disparities between the lengths of time
from filing to trial may also reflect differences other than congestion.”). In March 2013, the
11
median time from filing to disposition for civil cases was 8.9 months in the District of Columbia
as compared to 5 months in the Eastern District of Virginia. See United States Courts, Table C-
5. U.S. District Courts – Median Time Intervals From Filing to Disposition of Civil Cases
Terminated, by District and Method of Disposition During the 12-Month Period Ending Mar. 31,
2013 1, http://www.uscourts.gov/Viewer.aspx?doc=/uscourts/Statistics/FederalJudicialCaseload
Statistics /2013/tables/C05Mar13.pdf (last visited June 25, 2014). Therefore, this factor slightly
favors transfer.
And the third public interest factor, the local interest in deciding local controversies at
home, strongly favors transfer to the Eastern District of Virginia. Trout Unlimited, 944 F. Supp.
at 19 (“Controversies should be resolved in the locale where they arise.”). “Other courts in this
district have looked at where ‘[a] clear majority of the operative events took place’ in order to
determine where a case should be adjudicated.” Treppel, 793 F. Supp. at 439–40 (alteration in
original), quoting Trout Unlimited, 944 F. Supp. at 19. Here, the overwhelming majority of
defendants’ alleged conduct took place in Virginia. Compl. ¶ 59.
In sum, five of the nine public and private interest factors weigh in favor of transfer under
section 1404(a). Thus, even if venue were proper in this case, the Court would nonetheless grant
defendants’ motion to transfer it to the Eastern District of Virginia.
12