Haysbert v. Word ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
STANLEY BARRAL HAYSBERT,
Plaintiff,
v. Civil Action No. 20-2152 (JDB)
REGINALD WORD,
Defendant.
MEMORANDUM OPINION
On November 19, 2017, plaintiff Stanley Barral Haysbert agreed to lend $15,000 to
defendant Reginald Word. In exchange, Word agreed to repay Haysbert $33,000 by December
23, 2017 and to pay fifteen percent monthly interest on any amount not paid within six business
days of the due date. As agreed, Haysbert gave Word a $15,000 loan, but Word never repaid any
amount. Nearly two years later, Haysbert brought suit against Word for breach of contract,
seeking $181,500 in compensatory damages. Word now moves to dismiss the suit for improper
venue or “remove” it to state court in Virginia on forum non conveniens grounds, to dismiss for
failure to state a claim, or in the alternative, to grant summary judgment in favor of Haysbert for
only $20,400. For the reasons stated below, the Court will grant defendant’s motion and dismiss
this case for forum non conveniens.
BACKGROUND
I. Factual Background
At the pleading stage, district courts accept as true a plaintiff’s factual allegations, see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and thus the Court recites the facts as presented in
plaintiff’s complaint. Haysbert is a resident of Hampton, Virginia. Compl. [ECF No. 1] ¶ 3. Word
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is a resident of Washington, D.C. Id. ¶ 4. On November 19, 2017, after discussing a potential
loan by telephone and text message, Haysbert and Word executed a written loan agreement
(“Agreement”). See id. ¶ 6; Promissory Note [ECF No. 10-2]. The terms of the Agreement were
as follows. Haysbert would lend Word $15,000. Compl. ¶ 7. In exchange, Word would pay
Haysbert a principal sum of $33,000 by December 23, 2017. Id. ¶ 8; Promissory Note at 1. Any
payment not received within six business days of that due date would be considered a late payment,
subjecting Word to a late fee of fifteen percent interest per month applied to the sum then due and
payable. Compl. ¶ 10; Promissory Note at 1. If the interest rate payable due to late fees were to
exceed the maximum interest rate permitted by law, the interest rate would be automatically
reduced to the maximum legal rate. Compl. ¶ 10; Promissory Note at 1. Finally, the parties agreed
that the Agreement would be “governed by the laws of the Commonwealth of Virginia excluding
its conflict of law rules” and that “[t]he exclusive jurisdiction and venue of any legal action
instituted by any party to this [Agreement] shall be Hampton, Virginia.” Promissory Note at 2.
Both parties signed the Agreement, and Word initialed each page. Compl. ¶¶ 13, 15;
Promissory Note. Word received $15,000 from Haysbert, but “has made no payments whatsoever
to [Haysbert] in partial or full satisfaction of [Word’s] obligations under the Agreement.” Compl.
¶¶ 9, 16. Haysbert alleges that Word has breached the Agreement and owes late payment interest
of fifteen percent monthly since January 1, 2018, which amounts to $181,500. Compl. ¶¶ 19–21.
II. Procedural History
Haysbert filed this breach of contract action on August 7, 2020, seeking $181,500 in
compensatory damages. Id. at 6. “In the alternative, if [Word] does not enter an appearance or is
unable to satisfy his financial obligation under the Agreement,” Haysbert asks the Court to enter
an order preventing Word from receiving property as a gift, “staying the sale of the property
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located at 808 Nicholson Street, NE, Washington D.C. 20011 until the resolution of this litigation,”
otherwise preventing “concealment of funds which may be needed to satisfy” a judgment, or else
requiring Word to “turn over his interest in Starpoint Global Investments Limited” to Haysbert.
Id. at 6–7. Haysbert also seeks attorneys’ fees. Id. at 7. Two weeks after filing the Complaint,
Haysbert filed a motion for attachment before judgment, seeking a writ of attachment against the
property at 808 Nicholson Street, which Word allegedly inherited. Appl. for Attach. Before J.
[ECF No. 6]. Appearing pro se, Word answered the Complaint on August 20, 2020, see Answer
[ECF No. 7], but later filed a motion to dismiss, see Mot. to Dismiss [ECF No. 9]. Word seeks to
dismiss the action for improper venue under Federal Rule of Civil Procedure 12(b)(3) and forum
non conveniens or to “remov[e] this matter to the Virginia Circuit Court located in Hampton,
Virginia.” Id. at 1. Word also moves to dismiss the action for failure to state a claim under Rule
12(b)(6), or alternatively, for summary judgment in favor of Haysbert for $20,400. 1 Id. The
motion is fully briefed and ripe for consideration.
LEGAL STANDARD
Under Rule 12(b)(3) and 28 U.S.C. § 1406(a), a case may be dismissed “when venue is
‘wrong’ or ‘improper’ in the forum in which it was brought.” Atl. Marine Const. Co. v. U.S. Dist.
Ct. for the W. Dist. of Tex., 571 U.S. 49, 55 (2013). When venue is challenged, the court must
determine whether the case satisfies the requirements of federal venue laws. Id. If venue is
improper, the court “shall dismiss” the case, “or if it be in the interest of justice, transfer [the] case
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Haysbert also moved for leave to file a surreply to Word’s reply in support of his motion to dismiss. See
Pl.’s Mot. for Leave to File Surreply to Def.’s Mot. to Dismiss (“Mot. for Leave to File Surreply”) [ECF No. 12]. The
Court never received a reply from Word and no reply ever appeared on the docket, but Haysbert attached a reply that
his attorneys had received by mail. See Ex. B, Mot. for Leave to File Surreply [ECF No. 12-3]. That document, titled
“Reply Affidavit in Further Support of Motion to Dismiss,” is formatted as a court filing and signed by Word. Id.The Court believes that Word likely intended to file this reply. The Court will grant leave to file the surreply, but it
does not alter the result here because it concerns issues that the Court need not reach. See Pl.’s Surreply to Def.’s
Mot. to Dismiss [ECF No. 12-2].
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to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). If venue is
proper, a district court nonetheless “may transfer” a case “[f]or the convenience of parties and
witnesses, in the interest of justice” to “any other district or division where it might have been
brought or to any district or division to which all parties have consented.” Id. § 1404(a). And
“[s]ection 1404(a) is merely a codification of the doctrine of forum non conveniens for the subset
of cases in which the transferee forum is within the federal court system . . . . For the remaining
set of cases calling for a nonfederal forum, § 1404(a) has no application, but the residual doctrine
of forum non conveniens ‘has continuing application in federal courts.’” Atl. Marine, 571 U.S. at
60–61 (quoting Sinochem Int’l Co. v. Malaysia Int’l Shipping Corp., 549 U.S. 422, 430 (2007)).
Forum non conveniens is “ a common-law doctrine that requires dismissal if the plaintiff files suit
in ‘an unsuitable court.’” Azima v. RAK Inv. Auth., 926 F.3d 870, 873 (D.C. Cir. 2019) (quoting
Forum non conveniens, Black’s Law Dictionary (10th ed. 2014)).
ANALYSIS
Word first argues that because the Agreement designates “exclusive jurisdiction and
venue” as Hampton, Virginia, this case should be dismissed for improper venue under Rule
12(b)(3). See Mot. to Dismiss at 2–3. However, as Word acknowledges, the Supreme Court has
held that a forum-selection clause may not be enforced by a motion to dismiss under Rule 12(b)(3)
or 28 U.S.C. § 1406(a) unless venue is otherwise improper. See id. at 3 (citing Atl. Marine, 571
U.S. at 59–61). Instead, “the appropriate way to enforce a forum-selection clause pointing to a
state or foreign forum is through the doctrine of forum non conveniens,” while a forum-selection
clause pointing to a federal forum “may be enforced through a motion to transfer under § 1404(a).”
Atl. Marine, 571 U.S. at 59–60.
Here, venue is proper because the sole defendant is a resident of Washington, D.C. See 28
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U.S.C. § 1391 (providing that venue is proper, inter alia, in a district where a defendant is a
resident, if all defendants reside in the same state). Thus, the only question is whether this action
should remain in this Court, be dismissed pursuant to the doctrine of forum non conveniens and
re-filed in Hampton Circuit Court (a Virginia state court), or be transferred to the United States
District Court for the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a). 2
“In the typical case not involving a forum-selection clause, a district court considering a
§ 1404(a) motion (or a forum non conveniens motion) must evaluate both the convenience of the
parties and various public-interest considerations” and then “decide whether, on balance, a transfer
[or dismissal] would serve ‘the convenience of parties and witnesses’ and otherwise promote ‘the
interest of justice.’” Atl. Marine, 571 U.S. at 62–63 (quoting 28 U.S.C. §1404(a)). However,
“[t]he calculus changes” if the parties’ contract contains a forum-selection clause. Id. at 63.
“When the parties have agreed to a valid forum-selection clause, a district court should ordinarily
transfer the case to the forum specified in that clause”—or, if the clause specifies a nonfederal
forum, dismiss for forum non conveniens. Id. at 62, 66 n.8. In this context, “the plaintiff’s choice
of forum merits no weight” because “when a plaintiff agrees by contract to bring suit only in a
specified forum—presumably in exchange for other binding promises by the defendant—the
plaintiff has effectively exercised its ‘venue privilege’ before a dispute arises.” Id. at 63. Further,
courts “should not consider arguments about the parties’ private interests” because “[w]hen parties
2
Although Word’s motion is styled as a motion to dismiss under Rule 12(b)(3), the Court will also construe
it as a motion to dismiss for forum non conveniens or transfer pursuant to 28 U.S.C. §1404(a). The motion requests,
as an alternative to dismissal under Rule 12(b)(3), an order “REMOVING this matter to the Virginia Circuit Court
located in Hampton, Virginia” and the venue section is titled “Dismissal or Removal Forum Non Convieniens” (sic).
See Mot. to Dismiss at 1–2. And, as explained above, Word cites the Supreme Court’s holding in Atlantic Marine
that a forum-selection clause should be enforced by a motion to dismiss for forum non conveniens or transfer under
§ 1404(a). See id. at 3 (citing Atl. Marine, 571 U.S. at 59–61). This will not prejudice Haysbert, who acknowledges
that Word’s “sole remedy” is “to transfer the case to another federal district pursuant to 28 U.S.C. §1404(a), or to a
state court pursuant to the doctrine of forum non conveniens,” and argues why this case should nonetheless remain in
this Court. See Pl.’s Mem. in Opp’n to Mot. to Dismiss by Reginald Word (“Pl.’s Opp’n”) [ECF No. 10] at 4–6.
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agree to a forum-selection clause, they waive the right to challenge the preselected forum as
inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the
litigation.” Id. at 64. Hence, “a valid forum-selection clause [should be] given controlling weight
in all but the most exceptional cases.” Id. at 63 (citation omitted). Motions to enforce a forum-
selection clause should be denied “[o]nly under extraordinary circumstances unrelated to the
convenience of the parties,” and the non-movant bears the burden of proof. Id. at 62–63; see also
Azima, 926 F.3d at 874 (“[I]f the plaintiff has entered into a contract to litigate his claims in a
specific forum, the defendant may enforce that agreement by moving to dismiss for forum non
conveniens. As long as the forum-selection clause is applicable, mandatory, valid, and
enforceable, the court must almost always grant the motion to dismiss.”).
Haysbert does not challenge the validity, enforceability, or applicability of the forum-
selection clause contained in the parties’ contract, which provides that “[t]he exclusive jurisdiction
and venue of any legal action instituted by any party to this [Agreement] shall be Hampton,
Virginia.” Promissory Note at 2. Nor does Haysbert deny that the clause is mandatory, meaning
it requires litigation to proceed in a specific forum, rather than merely permitting suit in that forum.
See Azima, 926 F.3d at 876 (finding forum-selection clause “mandatory because it provides for
‘exclusive jurisdiction’ in England and Wales.”). Therefore, this Court should grant Word’s
motion unless Haysbert carries his “burden of showing that public-interest factors overwhelmingly
disfavor a transfer” or dismissal. Atl. Marine, 571 U.S. at 67.
Haysbert has not met that burden. His only argument is that “[p]reserving venue in
Washington D.C. would allow Plaintiff to seek an attachment” of a house located here that Word
inherited, “thereby preventing Defendant from . . . disposing of such property until such time as
this Court can rule on the underlying matter.” Pl.’s Opp’n at 5. Haysbert contends that “attachment
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of such property is the only way to provide Plaintiff with security that a judgment against
Defendant can be collected” and “[e]nforcement of the forum selection clause would substantially
deprive Plaintiff of this remedy.” Id. at 5–6. This argument fails for two reasons.
First, Haysbert never explains why his own interest in the remedy of prejudgment
attachment qualifies as a public-interest consideration. Because “private-interest factors . . . weigh
entirely in favor of the preselected forum” a court faced with a forum-selection clause “may
consider arguments about public-interest factors only.” Atl. Marine, 571 U.S. at 64. Public-
interest factors include considerations like court congestion, a forum’s familiarity with the
applicable law, and its interest in hearing a localized controversy. Id. at 62 n.6. And since “those
factors will rarely defeat a transfer motion, the practical result is that forum-selection clauses
should control except in unusual cases.” Id. at 64. This is not such a case. Attaching Word’s
property might make it easier and more convenient for Haysbert to collect a judgment, but that is
a quintessentially private-interest consideration. See id. at 62 n.6 (noting that private interest
factors include “availability of compulsory process for attendance of unwilling [witnesses],”
“relative ease of access to sources of proof,” and “other practical problems that make trial of a case
easy, expeditious and inexpensive” (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6
(1981))). This Court need not consider whether the agreed-upon forum affords plaintiff adequate
remedies. Rather, “because the clause ‘represents the parties’ agreement as to the most proper
forum,’ [the Court] can assume that they selected one adequate to litigate their claims and to protect
their private interests.” Azima, 926 F.3d at 875 (quoting Atl. Marine, 571 U.S. at 63). 3
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To be sure, “[i]f the preselected forum is substantially deficient—for instance, because it is effectively
inaccessible or unable to afford the plaintiff any relief—then the [forum-selection] clause is not enforceable.” Azima,
926 F.3d at 875. But Haysbert has not shown that a Virginia state court is inaccessible or unable to provide any relief,
and courts routinely dismiss for forum non conveniens even where the remedies provided by the alternative forum are
far inferior. See Piper Aircraft Co., 454 U.S. at 254 (alternative forum is substantially deficient only where remedy
provided “is so clearly inadequate or unsatisfactory that it is no remedy at all”).
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Second, Haysbert fails to explain both why prejudgment attachment is the only way to
ensure that any judgment can be collected, and why enforcement of the forum-selection clause
would prevent him from seeking such attachment. Although Haysbert asserts that Word avoided
communications in this case until he was served at the inherited property, Pl.’s Opp’n at 5,
Haysbert does not claim that Word lacks financial means—besides that property—to pay a
judgment. Moreover, Haysbert provides no reason why litigating this case in Virginia would
foreclose prejudgment attachment. Courts have recognized and enforced prejudgment writs of
attachment issued by courts in other states. See, e.g., Union Underwear Co. v. GI Apparel, Inc.,
Civ. A. No. 08-00124 (WHW), 2008 WL 3833475, at *1 (D.N.J. Aug. 13, 2008) (recognizing and
enforcing “a pre-judgement writ of attachment issued by the United States District Court for the
Western District of Kentucky against the real and personal property of Defendant” located in New
Jersey “pursuant to Federal Rule of Civil Procedure 64 and the Full Faith and Credit clause.”).
Although this Court is not aware whether Virginia’s prejudgment attachment statute has
extraterritorial application, Haysbert has not denied that it does—or offered any support
whatsoever for his bare assertion that enforcement of the forum selection clause would
substantially deprive him of the attachment mechanism. See id. at *6 (“[W]hether a state’s
attachment statute applies beyond its borders is an individual inquiry into the controlling state’s
laws and precedent.”).
Because Haysbert has failed to carry his burden of showing that public-interest
considerations overwhelmingly counsel against enforcing the forum-selection clause, this case
should be litigated in the forum to which the parties agreed: a court in Hampton, Virginia. Word
argues that because “[t]here is no Federal District Courthouse in the agreed forum of Hampton,
Virginia,” this Court should dismiss the case for forum non conveniens instead of transferring to
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a federal court in Virginia pursuant to §1404(a). See Mot. to Dismiss at 3. The Court agrees. The
forum-selection clause states that “[t]he exclusive jurisdiction and venue of any legal action
instituted by any party to this [Agreement] shall be Hampton, Virginia,” Promissory Note at 2,
which unambiguously requires this case to be resolved in Hampton, Virginia. There is a state court
in Hampton: Hampton Circuit Court, the sole court of general jurisdiction for Virginia’s eighth
judicial circuit. See Hampton Circuit Court, Virginia’s Judicial System
http://www.courts.state.va.us/courts/circuit/hampton/home.html (last visited Jan. 25, 2021); The
Circuit Court, http://www.courts.state.va.us/courts/circuit/circuitinfo.pdf (last visited Jan. 25,
2021). But although Hampton is located within the Eastern District of Virginia and there is a
federal courthouse in nearby Newport News, there is no federal courthouse in Hampton. See Court
Locations, United States District Court for the Eastern District of Virginia,
https://www.vaed.uscourts.gov/court-info/court-locations (last visited Jan. 25, 2021). Therefore,
transferring this case to federal court would cause the dispute to be resolved in a place other than
the one designated by contract.
Every Circuit to address the issue has held that a forum selection clause limiting venue for
litigation to a particular county prohibits litigation in federal court when there is no federal
courthouse located in that county. See City of Albany v. CH2M Hill, Inc., 924 F.3d 1306, 1308
(9th Cir. 2019) (“An agreement limiting venue for litigation to a particular county unambiguously
prohibits litigation in federal court when there is no federal courthouse located in the designated
county.”); Bartels by & through Bartels v. Saber Healthcare Grp., LLC, 880 F.3d 668, 676 (4th
Cir. 2018) (“[T]his case is properly filed with and resolved by any court that is located in Franklin
County. Because there is no federal court in Franklin County, the plain language of the forum-
selection clause precludes removal.”); Yakin v. Tyler Hill Corp., 566 F.3d 72, 76 (2d Cir. 2009)
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(“[W]e will effectuate the parties’ commitment to trial in Nassau County[;] . . . no reasonable
reading of the clause permits the interpretation that the parties had agreed to trial in Suffolk County
or Brooklyn because those courthouses were within the Eastern District of New York, which spans
an area including Nassau County.”).4 Here, the forum-selection clause limits venue not to a
county, but to the city of Hampton, Virginia. However, Hampton is a “city”—meaning an
“independent incorporated community” that is not in the territory of any county and operates as a
county-equivalent with its own court. See Va. Const. art. VII, § 1. Thus, it is appropriate to
consider case law concerning forum-selection clauses that specify a county, and this Court agrees
with the Ninth, Fourth, and Second Circuits’ approach. The forum-selection clause at issue here
precludes litigation in federal court because no federal courthouse is located in Hampton, Virginia.
Accordingly, the only way to effectuate the parties’ agreement is to limit litigation to Hampton
Circuit Court and dismiss this case for forum non conveniens.
Although Haysbert does not raise this point, the Court recognizes that in cases not
controlled by a forum-selection clause, courts may have discretion to stay attachment actions
pending resolution of substantive disputes in a more convenient forum instead of dismissing
simply because the merits of the complaint should be tried elsewhere. See Barclays Bank, S.A. v.
Tsakos, 543 A.2d 802, 808 (D.C. 1988) (remanding, after the trial court quashed prejudgment writs
of attachment plaintiff had obtained, because the trial court wrongly “assumed that having
determined that the merits of the complaint should not be tried in our court under the doctrine
4
Accord Alliance Health Grp., LLC v. Bridging Health Options, LLC, 553 F.3d 397, 400 (5th Cir. 2008)
(“[T]he clause at hand, providing for venue in a specific county, permits venue in either federal or state court, because
a federal courthouse is located in that county.” (emphasis added)); Glob. Satellite Commc’n Co. v. Starmill U.K. Ltd.,
378 F.3d 1269, 1272 (11th Cir. 2004) (“The contract provision, ‘Venue shall be in Broward County,’ . . . is most
reasonably interpreted to mandate venue in Broward County, and Broward County alone. The provision, however,
does not designate any particular forum, such that a suit either in the Seventeenth Judicial District of Florida, or in the
Fort Lauderdale Division of the Southern District of Florida, both of which are located in Broward County, would
satisfy the venue requirement.” (emphasis added)).
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of forum non conveniens, it had no power or discretion to maintain the pretrial attachment pending
the outcome of the foreign litigation.”); see also NML Capital, Ltd. v. Republic of Argentina, Civ.
A. No. 04-0197 (CKK), 2005 WL 8161968, at *2–3, *15 (D.D.C. Aug. 3, 2005) (quashing
prejudgment writs of attachment only on sovereign immunity grounds where the parties “agreed
that the substance of the breach of contract claims must appropriately be decided in New York”
and plaintiff had filed a complaint in D.C. “not to create duplicate litigation, but to allow for
Plaintiff to file an ex parte motion for pre-judgment attachment on several of [defendant’s]
properties in the District of Columbia pursuant to D.C. Code Ann. § 16-50 and 28 U.S.C. §
1610(d).”).
However, it is not clear whether, given the forum-selection clause, this Court may keep the
attachment portion of the case while the substance of the breach of contract claims are decided in
Hampton Circuit Court. After all, the parties agreed that the “exclusive jurisdiction and venue of
any legal action instituted by any party to this [Agreement] shall be Hampton, Virginia”—not
Hampton, Virginia along with another forum. Promissory Note at 2 (emphasis added). Moreover,
the courts in Barclays and NML Capital had already issued prejudgment writs of attachment, so
the question was merely whether those attachments should be maintained. This Court has not yet
granted plaintiff’s motion for attachment before judgment and is not sure that it would, since
plaintiff merely speculates—with no supporting facts—that defendant is about to dispose of or
hide his property with intent to hinder, delay, or defraud his creditors. See Appl. for Attach. Before
J. at 2–3. Therefore, even if this Court has discretion to entertain the motion for prejudgment
attachment while the merits of the complaint proceed in Hampton Circuit Court, it declines to do
so, and will dismiss the entirety of the case.
Hence, the Court dismisses this case for forum non conveniens. When, as here, a forum-
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selection clause points to a state court, the appropriate remedy is “outright dismissal” rather than
transfer. Atl. Marine, 571 U.S. at 60. The Court need not reach either the question whether the
complaint fails to state a claim under Rule 12(b)(6) or Word’s request in the alternative to grant
summary judgment in favor of Haysbert for only $20,400. 5
CONCLUSION
For the foregoing reasons, Word’s motion to dismiss will be granted. A separate order will
issue on this date.
/s/
JOHN D. BATES
United States District Judge
Dated: January 25, 2021
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The reply that Word sent to Haysbert’s attorneys, and likely intended to file, argues that Word’s motion to
dismiss should be treated as a motion for summary judgment because Haysbert presented facts outside the pleadings
to support his argument that the loan was for investment in a business opportunity, and thus not subject to Virginia’s
prohibitions against usury. See Ex. B, Mot. for Leave to File Surreply at 3–5. The reply also states that Word would
“conditionally waive the forum non conveniens defense should the Court chose [sic] to grant Summary Judgment in
favor of Plaintiff for the amount owed as limited by Virginia’s personal usury laws”—$20,400. See id. at 6. But the
Court would not, in any event, grant summary judgment because there is a genuine dispute of material fact as to
whether the loan was a personal loan or for investment in a business opportunity. Compare Ex. A, Pl.’s Request for
Judicial Notice Pursuant to Fed. R. Evid. 201 [ECF No. 11-1] (showing that, the day before Haysbert gave Word the
loan, Word emailed Haysbert’s family member incorporation records of Starpoint Global Investments Limited, a firm
he owned in Uganda, Ghana, and Sierra Leone), with Ex. B, Mot. for Leave to File Surreply at 3 (claiming that Word
asked Haysbert for” a personal loan because [Word] had overspent while traveling” and “agreed to a quick (and usury)
repayment because [he] expected to receive a lucrative payment from [his] own business ventures within that six (6)
business day timeframe”).
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