Amr v. Commonwealth of Virginia

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
SALAME M. AMR, )
)
Plaintiff, )
)
v. ) Civil Action No. 13-707 (RWR)
)
COMMONWEALTH OF VIRGINIA, )
et al., )
)
Defendants. )
______________________________)
MEMORANDUM OPINION
Pro se plaintiff Salame M. Amr was terminated from the
faculty of Virginia State University (“VSU”) and unsuccessfully
sued in federal district court in Richmond. He now brings
claims against the Commonwealth of Virginia, the federal
district judge who dismissed his suits, and an engineering
education society under 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42
U.S.C. § 1985, and 42 U.S.C. § 1986, as well as common law
claims of negligence, fraud, conspiracy, tortious interference
with contract, and intentional infliction of emotional distress
alleging that the defendants conspired to injure Amr’s
reputation, colluded to deny Amr his rights, and acted
individually to prevent Amr from successfully pursuing his
previous litigation. The defendants have each moved variously
under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2),
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12(b)(3), 12(b)(5), and 12(b)(6) to dismiss the complaint for
lack of subject matter or personal jurisdiction, for improper
venue, for insufficient service of process, and for failure to
state a claim. United States District Judge Robert Payne has
also moved to set aside the Clerk’s entry of default.
Because the District of Columbia is an improper venue for
Amr’s claims, the complaint will be dismissed as to all
defendants. Additionally, because Amr has made no showing that
this court has personal jurisdiction over the Commonwealth of
Virginia or Judge Payne, and because the court lacks subject
matter jurisdiction over Amr’s claims against the Commonwealth
of Virginia, their motions to dismiss will also be granted on
those grounds. Because Judge Payne has a meritorious defense,
he did not willfully default, and there is no prejudice to Amr,
Judge Payne’s motion to set aside the default judgment will also
be granted.
BACKGROUND
Salame Amr was an employee at VSU from 2002 to 2008 where
he served as Vice-Chair and Secretary of the Faculty Senate.
Compl. ¶ 17. VSU alleged that Amr engaged in academic
misconduct related to a paper he submitted to the American
Society for Engineering Education (“ASEE”), Compl. ¶ 18-20, and
he was eventually terminated, id. ¶ 84. Amr filed a number of
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lawsuits against VSU and other parties, over which Judge Payne
presided. Id. ¶ 26.
Amr’s instant complaint makes the following factual
allegations. 1 Throughout the first litigation, Amr’s counsel,
Scott Crowley, 2 conspired with Attorney General Ronald Regnery
“for perfecting VSU’s decision to terminate [Amr.]” Id. ¶ 28.
Crowley fraudulently advised Amr with respect to his case and
failed to diligently and properly pursue Amr’s case, which
resulted in Amr’s case being dismissed with prejudice. Id.
¶¶ 30-52, 54-55, 57, 59-62, 65, 69, 71-74. The defendants
falsely promised to compromise with Amr, which prevented him
from trying his case. Id. ¶ 76. Sometime later, Judge Payne
granted ASEE’s motion for sanctions against the plaintiff to
“intimidat[e] him from exercising an opinion and detained him
1
Amr’s complaint also asserts a number of legal
conclusions, but courts “are not bound to accept as true a legal
conclusion couched as a factual allegation.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (internal quotation marks omitted).
2
It appears that Amr refers to his former counsel, Crowley
and Carolyn Carpenter, as “defendants,” see e.g., Compl. ¶ 63
(“Defendants performed in a manner to ensure the Plaintiff’s
expressed interests were not achieved, as is described of
conduct already performed by Counsel Carpenter.”), but Amr lists
neither as a party. See id. ¶¶ 2-5. At parts throughout the
complaint, it is unclear who the relevant actors are for Amr’s
claims and allegations. Nevertheless, because all defendants
will be dismissed, it is unnecessary to untangle the specifics
of each particular alleged claim.
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from seeking available remedies to clear his name out of
unfounded charge of academic misconduct.” Id. ¶¶ 80, 83.
Amr also alleges that several of the actors discriminated
against him on the basis of race, religion, and national origin,
e.g., id. ¶ 77, conspired against him, e.g., id. ¶ 75, and
engaged in fraud, e.g., id. He also contends that Judge Payne
acted to “protect the interests of the other parties in
Plaintiff’s lawsuits that had been filed there.” Id. ¶ 79.
The defendants now each move to dismiss the case under Rule
12(b)(1) for lack of subject matter jurisdiction, 12(b)(2) for
lack of personal jurisdiction, 12(b)(3) for improper venue,
12(b)(5) for insufficient service of process, and/or 12(b)(6)
for failure to state a claim. The Commonwealth also contends
that the Eleventh Amendment bars suit because the Commonwealth
has not waived immunity, and that res judicata bars suit because
these facts have already been litigated. Commonwealth of
Virginia Mot. to Dismiss Mem. of P & A (“Def.’s Mem.”) at 1-9.
ASEE also argues that the complaint is untimely because Amr’s
claims stem from acts committed six years ago and that the
judicial proceedings privilege bars suit. ASEE’s Supp. Mot. to
Dismiss at 2-3.
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DISCUSSION
I. VENUE
Venue is appropriate in the district (1) where any
defendant resides if all defendants reside in the same state,
(2) where “a substantial part of the events or omissions giving
rise to the claim occurred,” or (3) where any defendant may be
found if there is no district in which the action may otherwise
be brought. 28 U.S.C. § 1391(b).
Not all of the defendants are domiciled in the District of
Columbia, so venue is not appropriate under § 1391(b)(1).
Further, Amr has not alleged that any of the pertinent acts
occurred in the District of Columbia, see Compl., thus venue is
not appropriate under § 1391(b)(2). Amr seems to rest on
§ 1391(b)(3) because he argues that the case could not have been
brought in the Eastern District of Virginia because of bias.
See Compl. ¶ 6; Reply at 1. However, the text of § 1391(b)(3)
states, “if there is no district in which an action may
otherwise be brought as provided in this section,” then the case
may be brought in “any judicial district in which any defendant
is subject to the court’s personal jurisdiction.” 28 U.S.C.
§ 1391(b)(3). Here, there is another district in which the
action “may otherwise be brought as provided in this section”:
the Eastern District of Virginia. E.g., Ananiev v. Wells Fargo
Bank, N.A., 968 F. Supp. 2d 125, 131 (D.D.C. 2013) (dismissing a
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case for improper venue because “the predicate requirement” was
not met to apply 1391(b)(3) since the action would be
appropriately brought in another district); Corbett v. Jennifer,
888 F. Supp. 2d 42, 46 (D.D.C. 2012) (finding venue under
1391(b)(3) inappropriate “because there is another district in
which the action may be brought”); Smith v. U.S. Investigations
Servs., Inc., Civil Action No. 04-0711 (RMU), 2004 WL 2663143,
*4 (D.D.C. Nov. 18, 2004) (finding that § 1391(b)(3) “is only
applicable if there is no district in which venue is proper
under one of the venue statute’s first two provisions”).
Accordingly, venue is not appropriate in the District of
Columbia under any part of § 1391(b).
Upon a showing that venue in this district is improper, a
court “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.” 28 U.S.C. § 1406. While a transfer is
favored, particularly when the plaintiff is pro se, James v.
Verizon Servs. Corp., 639 F. Supp. 2d 9, 15 (D.D.C. 2009),
transfer to the proper venue of the Eastern District of Virginia
is not in the interests of justice here. That court found Amr’s
allegations in his multiple law suits about his termination to
be meritless and vexatious, and barred him from filing there any
further actions that in any way relate to or involve his
termination or the subsequent litigation that arose out of his
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denial of tenure and termination from VSU. Commonwealth of
Virginia Mot. to Dismiss Ex. A; see also Amr v. Attorney Gen. of
Va., Civil Action No. 3:11cv423, 2011 WL 10621803, *1 (E.D. Va.
Sept. 22, 2011) (entering an order “prohibiting the plaintiff
from filing in this Court any action involving the subject
matter of this action and the three cases mentioned herein
previously filed by the plaintiff”). The allegations in the
subsequent cases and this case both involve his employment
relationship with VSU and the subsequent litigation. Compare
Compl. with Amr v. Attorney Gen. of Va., Civil Action No.
3:11cv423, 2013 WL 1499066 (E.D. Va. Feb. 25, 2013), Amr. v. Va.
State Univ., Civil Action No 3:10cv787, 2011 WL 4407429 (E.D.
Va. Sept. 21, 2011), Amr v. Eddie N. Moore, Civil Action No.
3:09cv667, 2010 WL 3154567 (E.D. Va. Aug. 9, 2010), and Amr v.
Va. State Univ., Civil Action No. 3:07cv628, 2009 WL 112829
(E.D. Va. Jan. 14, 2009). Providing Amr an end-run around the
barring order would be inappropriate. Accordingly, Amr’s case
will be dismissed, rather than transferred.
II. CLAIMS AGAINST THE COMMONWEALTH OF VIRGINIA AND JUDGE PAYNE
A. Subject Matter Jurisdiction
Federal Rule of Civil Procedure 12(b)(1) provides that a
federal court must dismiss a case when it lacks subject matter
jurisdiction. Fed. R. Civ. P. 12(b)(1). “‘Before a court may
address the merits of a complaint, it must assure that it has
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jurisdiction to entertain the claims.’” Cornish v. Dudas, 715
F. Supp. 2d 56, 60 (D.D.C. 2010) (quoting Marshall v. Honeywell
Tech. Solutions, Inc., 675 F. Supp. 2d 22, 24 (D.D.C. 2009)).
Thus, a court must even raise on its own any questions it
perceives about its subject matter jurisdiction. Douglass v.
District of Columbia, 605 F. Supp. 2d 156, 168-69 (D.D.C. 2009).
It is the plaintiff’s burden to demonstrate subject matter
jurisdiction. Shuler v. United States, 531 F.3d 930, 932 (D.C.
Cir. 2008). If the plaintiff cannot meet that burden, the court
must dismiss the action. Steel Co. v. Citizens for a Better
Env’t, 523 U.S. 83, 94 (1998) (citing Ex parte McCardle, 74 U.S.
506, 514 (1968)).
In considering a motion to dismiss for lack of subject
matter jurisdiction, a court “treat[s] the complaint’s factual
allegations as true” and “grant[s] plaintiff ‘the benefit of all
inferences that can be derived from the facts alleged.’”
Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.
Cir. 2000) (quoting Schuler v. United States, 671 F.2d 605, 608
(D.C. Cir. 1979)). However, “[b]ecause subject matter
jurisdiction focuses on the court’s power to hear the
claim, . . . the court must give the plaintiff’s factual
allegations closer scrutiny when resolving a Rule 12(b)(1)
motion than would be required for a Rule 12(b)(6) motion[.]”
Aref v. Holder, 774 F. Supp. 2d 147, 159 (D.D.C. 2011).
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The Commonwealth argues that Amr’s claims against it are
barred by the Eleventh Amendment to the constitution. That
amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States
by Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. When the amendment was passed, however, the ability
to sue a state without its consent “was a thing unknown to the
law.” Hans v. Louisiana, 134 U.S. 1, 16 (1890). Despite its
literal language, the amendment was intended not to create a new
right in a state’s citizens to sue their state, but rather to
make clear that an unconsenting state could not be sued by
citizens of other states. The amendment was a reaction against
a Supreme Court decision, Chisholm v. Georgia, 2 U.S. 419
(1793), that allowed the opposite. The Supreme Court has since
“consistently held that an unconsenting State is immune from
suits brought in federal courts by her own citizens as well as
by citizens of another State.” Edelman v. Jordan, 415 U.S. 651,
662-63 (1974).
Amr’s claims against the Commonwealth are barred by the
Eleventh Amendment because Amr failed to sufficiently plead that
the Commonwealth either consented to a suit or waived immunity. 3
3
Moreover, the Commonwealth asserts that it has not waived
its immunity for any of Amr’s claims. Def.’s Mem. at 8, 8 n.1.
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See Alabama v. Pugh, 438 U.S. 781, 781-82 (1978); Morris v.
Wash. Metro. Area Transit Auth., 583 F. Supp. 1522, 1524 (D.D.C.
1984) (“[The Eleventh Amendment] poses a bar to suits against a
state agency as well as the state itself and applies to claims
of constitutional dimension.”). Amr presents no factual
allegations in his complaint dispelling the Commonwealth’s
immunity, see generally Compl., and offers only a cursory
assertion that his claims “are not barred by the Eleventh
Amendment of the United States Constitution,” Am. Response to
Def.s’ Mots. to Dismiss at 2, ECF No. 27. Thus, because Amr has
not established subject matter jurisdiction since his claims
against Virginia are barred by sovereign immunity, the
Commonwealth’s motion to dismiss will be granted also on that
ground.
B. Personal Jurisdiction
Under Rule 12(b)(2), a defendant may move to dismiss a
complaint for lack of personal jurisdiction. Fed. R. Civ. P.
12(b)(2). The plaintiff bears the burden of making a prima
facie showing that the court has personal jurisdiction over the
defendants. First Chi. Int’l v. United Exch. Co., 836 F.2d
1375, 1378 (D.C. Cir. 1988). To meet his burden, “[a] plaintiff
must plead specific facts providing a basis for personal
jurisdiction.” Gomez v. Aragon, 705 F. Supp. 2d 21, 23 (D.D.C.
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2010). Even pro se plaintiffs must plead adequate
jurisdictional facts for their claims. Id.
A District of Columbia court has personal jurisdiction over
a defendant “domiciled in, . . . or maintaining . . . it’s
principal place of business in, the District of Columbia as to
any claim for relief.” D.C. Code § 13-422. If the plaintiff
does not allege that the defendant is domiciled in or maintains
his principal place of business in the District of Columbia, a
court employs a two-part test to determine whether it has
personal jurisdiction. First, the District of Columbia’s long-
arm statute must reach the defendant. See GTE New Media Servs.
Inc. v. BellSouth Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000).
Under the District of Columbia’s long-arm statute, a court in
the District of Columbia has personal jurisdiction over a non-
resident defendant for a claim arising from the defendant’s
conduct in:
(1) transacting any business in the District of
Columbia;
(2) contracting to supply services in the District of
Columbia;
(3) causing tortious injury in the District of
Columbia by an act or omission in the District of
Columbia;
(4) causing tortious injury in the District of
Columbia by an act or omission outside the
District of Columbia if he regularly does or
solicits business, engages in any other
persistent course of conduct, or derives
substantial revenue from goods used or consumed,
or services rendered, in the District of
Columbia[.]
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D.C. Code § 13-423.
Second, the exercise of personal jurisdiction must be
consistent with the requirements of due process. GTE New Media
Servs., 199 F.3d at 1347. The Due Process Clause requires that
the plaintiff show that the defendant has sufficient “minimum
contacts” with the District of Columbia such that “the
maintenance of the suit does not offend traditional notions of
fair play and substantial justice.” Int’l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945) (internal quotation marks
omitted). Under this principle, personal jurisdiction is proper
where “the defendant’s conduct and connection with the forum
State are such that he should reasonably anticipate being haled
into court there.” World-Wide Volkswagen Corp. v. Woodson, 444
U.S. 286, 297 (1980). The defendant’s minimum contacts with the
District of Columbia must arise from “‘some act by which the
defendant purposefully avails [himself] of the privilege of
conducting activities within the forum State, thus invoking the
benefits and protections of its laws.’” Asahi Metal Indus. Co.
v. Super. Ct. of Cal., Solano Cnty., 480 U.S. 102, 109 (1987)
(plurality opinion) (quoting Burger King Corp. v. Rudzewicz, 471
U.S. 462, 474 (1985)).
Amr has not alleged an adequate basis for asserting
personal jurisdiction over the Commonwealth of Virginia or Judge
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Payne under D.C. Code § 13-422. Amr has not alleged that either
is domiciled in the District of Columbia since all Amr provides
for Judge Payne and the Commonwealth of Virginia are Virginia
addresses. Compl. ¶¶ 3-4. Nor has Amr pled an adequate basis
to assert personal jurisdiction over either the Commonwealth of
Virginia or Judge Payne under the District of Columbia long-arm
statute. There is no allegation that either committed any act
or caused any harm in the District of Columbia. Amr does not
allege that his claim against either arose from their conduct in
transacting business in the District of Columbia, contracting to
supply services in the District of Columbia, or causing a
tortious injury in the District of Columbia. Instead, Amr
claims that they conspired against him throughout his previous
litigation in Virginia. E.g., Compl. ¶¶ 20-21, 37-71. Because
Amr has not alleged an adequate basis for asserting personal
jurisdiction over the Commonwealth of Virginia or Judge Payne,
their motions to dismiss will be granted also on that ground. 4
III. JUDGE PAYNE’S MOTION TO SET ASIDE DEFAULT
Under Rule 55(c), a court has discretion to “set aside an
entry of default for good cause.” Fed. R. Civ. Pro. 55(c).
4
The parties also raise a number of other arguments to
support their motion to dismiss. Because the motions to dismiss
will be granted because of improper venue, and lack of personal
jurisdiction and subject matter jurisdiction, the other
arguments raised are not addressed.
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Default judgments are generally disfavored by courts “perhaps
because it seems inherently unfair to use the court’s power to
enter and enforce judgments as a penalty for delays in filing.”
Jackson v. Beech, 636 F.2d 831, 835 (D.C. Cir. 1980); see Webb
v. District of Columbia, 146 F.3d 964, 971 (D.C. Cir. 1998)
(“[A] default judgment must be a sanction of last resort, to be
used only when less onerous methods . . . will be ineffective or
obviously futile.” (internal quotation marks omitted)). A court
considering whether to set aside an entry of default must
balance three factors: “‘whether (1) the default was willful,
(2) a set-aside would prejudice the plaintiff, and (3) the
alleged defense was meritorious.’” Jackson, 636 F.2d at 836
(quoting Keegel v. Key West & Caribbean Trading Co, 627 F.2d
372, 373 (D.C. Cir. 1980). When balancing these factors, “all
doubts are resolved in favor of the party seeking relief.”
Jackson, 636 F.2d at 836.
Balancing the Jackson factors favors setting aside the
entry of default. First, Judge Payne has raised a meritorious
defense that favors setting aside the entry of default. 5 See
Jackson, 636 F.2d at 836; Canales v. A.H.R.E., Inc., 254 F.R.D.
1, 11 (D.D.C. 2008) (requiring that the asserted defense be one
5
Additionally, Judge Payne has other meritorious defenses,
as is discussed above, because Amr has failed to show personal
jurisdiction over Judge Payne and because the District of
Columbia is an improper venue.
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that “may be proven at trial,” but not mandating that the
defendant prove the defense in a motion to set aside default).
Judge Payne asserts that Amr has failed to effect proper proof
of service. This defense is meritorious because Amr has failed
to provide proof of service required for a case filed in this
district. To properly serve Judge Payne, who is an employee of
the United States, Amr must also have served the United States
Attorney for the District of Columbia. Fed. R. Civ. P.
4(i)(1)(A)(i). He has offered no evidence that he has done so.
Nor is it clear that Amr properly served Judge Payne in his
individual capacity. See Fed. R. Civ. P. 4(i)(3) (explaining
that United States employees sued individually must also be
served under Rule 4(e)). The summons and complaint were not
delivered to Judge Payne personally, or left at his dwelling or
usual place of abode with a person of suitable age and
discretion who resides there. Fed. R. Civ. P. 4(e)(2)(A)-(B).
Moreover, it is unclear whether the person who was served --
Sharon Cooke, denominated as a division manager 6 at 701 East
Broad Street, 7th Floor, Richmond, VA -- is “an agent authorized
by appointment or by law to receive service of process,” Fed. R.
6
Indeed, the first summons was returned as unexecuted
because Sharon Cooke refused service of process. See ECF No.
18.
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Civ. P. 4(e)(2)(C), or if the service otherwise followed state
law for serving a summons in Virginia, Fed. R. Civ. P. 4(e)(1).
There is also no evidence of a willful default. “The
boundary of willfulness lies somewhere between a case involving
a negligent filing error, which is normally considered an
excusable failure to respond, and a deliberate decision to
default, which is generally not excusable.” Int’l Painters &
Allied Trades Union & Indus. Pension Fund v. H.W. Ellis Painting
Co., 288 F. Supp. 2d 22, 26 (D.D.C. 2003). Here, as is
discussed above, Judge Payne may not have been properly served
and his obligation to respond therefore may not have yet begun.
E.g. Scott v. District of Columbia, 598 F. Supp. 2d 30, 36
(D.D.C. 2009) (“Although default may be entered upon a
defendant’s failure to plead or otherwise defend, a defendant’s
obligation to respond to a complaint arises only upon service of
the summons and complaint.” (internal citation omitted)).
Without an obligation to respond, there can be no willful
default.
Amr also has not shown that he would be prejudiced by
setting aside the entry of default. In his opposition to Judge
Payne’s motion to set aside entry of default, Amr failed to
allege any prejudice. In any event, it is unclear that Amr
could make such a showing. A plaintiff can be prejudiced
because of the “accompanying dangers” of delay, Capital Yacht
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Club v. Vessel AVIVA, 228 F.R.D. 389, 393–94 (D.D.C. 2005)
(quoting KPS & Assocs., Inc. v. Designs by FMC, Inc., 318 F.3d
1, 15 (1st Cir. 2003)), or because setting aside default would
require the plaintiffs “to try their . . . claim a second time.”
Whelan v. Abell, 48 F.3d 1247, 1259 (D.C. Cir. 1995). There is
no apparent danger from the delay since the case is still in the
preliminary stage. E.g., Acree v. Republic of Iraq, 658 F.
Supp. 2d 124, 129 (D.D.C. 2009). Additionally, though Amr filed
for entry of default judgment, he did not provide any
substantive proof along with that motion, see Mot. for Default
Judgment, to show that he has a viable claim. See Fed. R. Civ.
Pro. 55(d) (“A default judgment may be entered against the
United States, its officers, or its agencies only if the
claimant establishes a claim or right to relief by evidence that
satisfies the court.”).
Accordingly, on balance, the Jackson factors favor setting
aside default. Judge Payne’s motion to set aside entry of
default will be granted and Amr’s motion for default judgment
will be denied as moot.
CONCLUSION
Amr’s claims against all the defendants will be dismissed
for improper venue. Amr’s claims against the Commonwealth of
Virginia must also be dismissed for lack of subject matter
jurisdiction. Amr’s claims against Judge Payne and the
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Commonwealth of Virginia must also be dismissed for lack of
personal jurisdiction. Judge Payne’s motion to set aside entry
of default will be granted and Amr’s motion for default judgment
will be denied. A final Order accompanies this Memorandum
Opinion.
SIGNED this 15th day of July, 2014.
/s/
RICHARD W. ROBERTS
Chief Judge