Murdoch v. Rosenberg & Associates, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
JULIETTE MURDOCH, )
)
Plaintiff, )
)
v. ) Civil Action No. 12-36 (RWR)
)
ROSENBERG & ASSOCIATES, LLC, )
et al., )
)
Defendants. )
______________________________)

MEMORANDUM OPINION AND ORDER

Plaintiff Juliette Murdoch brings claims against defendants

Rosenberg & Associates, LLC (“the Firm”) and its managing member

and named partner Diane Rosenberg (“the named partner”) alleging

that the defendants sent her and other consumers form debt

collection notices threatening legal action before properly

verifying the creditors’ claims, in violation of the federal

Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq.,

the Maryland Consumer Protection Act, Md. Code Ann., Com. Law

§ 13-301 et seq., the Maryland Consumer Debt Collection Act, Md.

Code Ann., Com. Law § 14-201 et seq., and the District of

Columbia Consumer Protection and Procedures Act, D.C. Code § 28-

3901 et seq. Both defendants have moved to dismiss for improper

venue and failure to state a claim. The District of Columbia is

not an appropriate venue for Murdoch’s claims. However, because

the District of Maryland is an appropriate venue and a transfer
 - 2 -

is in the interest of justice, the case will be transferred to

that district.

BACKGROUND

Murdoch owns properties in Maryland and resided in Maryland

at all times relevant to this suit. (Compl. ¶¶ 2-3.) Murdoch

entered into mortgage debts secured by her properties and later

defaulted on one of those debts. (Id. ¶¶ 12-13, 15.) The

defaulted debt was referred to the defendants for collection and

foreclosure (id. ¶ 15), and they sent Murdoch a form debt

collection letter (id., ¶ 16 & Ex. A). Murdoch alleges that the

letter fails to comply with applicable debt collection and

consumer protection law. (Id. ¶¶ 17-44.) She alleges that the

defendants sent the form notice to “thousands of protected

consumers in the District of Columbia, Maryland, and Virginia”

(id. ¶ 17), and “seeks to represent two subclasses of consumers

under state consumer protection laws in Maryland and the

District of Columbia” (id. ¶ 1; see also id. ¶¶ 45-57 (“Class

Allegations”)).

The Firm has its principal place of business in Maryland

and is organized under Maryland law. (Rosenberg & Associates,

LLC’s Mot. to Dismiss, Ex. 1, Declaration of Diane S. Rosenberg,

Esq. (“Rosenberg Decl.”) ¶ 3; see also Compl., Ex. A, Debt

collection letter listing firm address in Maryland.) In the

District of Columbia, the Firm is a foreign entity authorized to
 - 3 -

do business and has a registered agent. (Pl.’s Mem. of P. & A.

in Opp’n to Rosenberg & Associates, LLC’s Mot. to Dismiss

(“Pl.’s Opp’n”), Ex. I.) The named partner resides solely in

Maryland. (Rosenberg Decl. ¶ 5.)

The Firm and the named partner have each moved to dismiss

under Federal Rule of Civil Procedure 12(b)(3) for improper

venue.1 The Firm argues that “Murdoch’s claims have no

connection whatsoever to the District of Columbia,” pointing to

the facts that the named parties are all Maryland residents, the

property at issue is located in Maryland, the notice regarding

Murdoch’s property and debt was sent in connection with a

foreclosure proceeding under Maryland law, and the notice was

sent directly to Murdoch in Maryland. (Rosenberg & Associates,

LLC’s Mem. of P. & A. in Supp. of Mot. to Dismiss (“Rosenberg &

Associates’ Mem.”) at 1.) Although Murdoch seeks to certify a

class that includes District of Columbia residents, the Firm

maintains that “only . . . the events giving rise to the named

plaintiff’s claims” are relevant “in determining whether venue

for a putative class action is proper.” (Id. at 6.) The Firm

further argues that Murdoch’s assertion that venue is proper in

1
The Firm argues at length that venue is improper
(Rosenberg & Associates, LLC’s Mem. of P. & A. in Supp. of Mot.
to Dismiss at 5-8), while the named partner incorporates those
arguments by reference and joins in the Firm’s request that the
complaint be dismissed for improper venue (Diane Rosenberg’s
Mem. of P. & A. in Supp. of Mot. to Dismiss at 2).
 - 4 -

this district conflates personal jurisdiction with venue by

relying on the Firm’s general business connections and contacts

rather than the events giving rise to Murdoch’s claim.

(Rosenberg & Associates, LLC’s Reply at 2.)

Murdoch alleges that venue is proper because “a substantial

part of the events and omissions giving rise to the claims

occurred in this judicial district,” and because the defendants

are subject to personal jurisdiction in the District of Columbia

since they “regularly conduct[] business in this judicial

district.” (Compl. ¶ 11.) Although all of the correspondence

related to Murdoch’s claims was sent to her at an address in

Maryland, she alleges that debt collection notices and

threatening letters were also sent to potential class members in

the District of Columbia. (Id. ¶ 17.) Murdoch provides further

evidence of the defendants’ business activities in the District

of Columbia, submitting records of their involvement in over

1,000 foreclosure proceedings and their limited power of

attorney in real property matters in the District. (Pl.’s

Opp’n, Exs. A-D, F-H.)

DISCUSSION

A court may dismiss a case where it finds venue to be

improper. Fed. R. Civ. P. 12(b)(3); see also Darby v. U.S.

Dep’t of Energy, 231 F. Supp. 2d 274, 276 (D.D.C. 2002).

Although courts must accept the plaintiff’s “well-pled factual
 - 5 -

allegations” as true, drawing all reasonable inferences from the

allegations in the plaintiff’s favor and resolving all factual

conflicts in the plaintiff’s favor, they need not treat the

plaintiff’s legal conclusions with similar deference. Id. at

276-77 (citing 2215 Fifth St. Assocs. v. U-Haul Int’l, Inc., 148

F. Supp. 2d 50, 54 (D.D.C. 2001)). In this circuit, courts

carefully examine challenges to venue to protect against

plaintiffs manufacturing venue in the District of Columbia, Baez

v. Connelly, 734 F. Supp. 2d 54, 57 (D.D.C. 2010) (citing

Cameron v. Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993)), and

may consider materials beyond the pleadings, Haley v. Astrue,

667 F. Supp. 2d 138, 140 (D.D.C. 2009). The plaintiff bears the

burden to establish that venue is proper. Hill v. Napolitano,

Civil Action No. 11-34 (RWR), 2012 WL 892633, at *2 (D.D.C.

Mar. 16, 2012). If a court finds proper venue lacking, the

court “shall dismiss, or if it be in the interest of justice,

transfer” the case to a proper venue. 28 U.S.C. § 1406(a).

“The decision to transfer an action [under § 1406(a)] is left to

the discretion of the Court.” Baez, 734 F. Supp. 2d at 58.

A civil action that may be brought in the district courts

of the United States may be brought in:

(1) a judicial district in which any defendant
resides, if all defendants are residents of the State
in which the district is located;
 - 6 -

(2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim
occurred . . . or
(3) if there is no district in which an action may
otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to
the court’s personal jurisdiction with respect to such
action.

28 U.S.C. § 1391(b).2 Murdoch does not argue that the first or

third alternative for establishing venue applies here, and

indeed neither of these options is available. Venue is not

proper under § 1391(b)(1) because not all of the defendants

reside in the District of Columbia -- the named partner resides

solely in Maryland (Rosenberg Decl. ¶ 5), a fact that Murdoch

does not contest. In addition, venue is not proper under

§ 1391(b)(3) because Murdoch “has not shown that there is no

other district in which the action could have been brought,”

Atwal v. Lawrence Livermore Nat’l Sec., LLC, 786 F. Supp. 2d

323, 327 (D.D.C. 2011). As is discussed below, the District of

Maryland is a proper district where this federal question action

could have been brought.

The parties’ dispute centers on whether “a substantial part

of the events or omissions giving rise to [Murdoch’s] claim

occurred” in the District of Columbia, so as to render venue

2
This section of the United States Code was recently
amended. The amendments eliminate distinctions between cases
brought solely under diversity jurisdiction and those brought
under federal question jurisdiction and make certain stylistic
changes. Subsection (b)(2), which governs the parties’ dispute
regarding venue, has not been altered.
 - 7 -

proper under § 1391(b)(2). With regard to this provision, the

district in which the plaintiff brings suit need not be “the

district where the most substantial portion of the relevant

events occurred,” but the plaintiff must “show that ‘a

substantial part of the events or omissions giving rise to the

claim occurred’ in that district.” Modaressi v. Vedadi, 441 F.

Supp. 2d 51, 57 (D.D.C. 2006) (emphasis in original) (quoting

§ 1391(b)(2)). In the D.C. Circuit, “the measure of the

contacts giving rise to where the claim arose is ‘ascertained by

advertence to events having operative significance in the case,

and a commonsense appraisal of the implications of those

events[.]’” Great Socialist People’s Libyan Arab Jamahiriya v.

Miski, 496 F. Supp. 2d 137, 142 (D.D.C. 2007) (quoting Sharp

Elec. Corp. v. Hayman Cash Register Co., 655 F.2d 1228, 1229

(D.C. Cir. 1981)).

Murdoch does not dispute that the events relating to her

individual claims occurred entirely in Maryland. Murdoch was a

resident of Maryland when she received the debt collection

notice regarding her Maryland property from a Maryland firm.

(Compl. ¶¶ 2-3, 12-13, 15-16.) Notwithstanding that her own

claims arose in Maryland, Murdoch’s argues that the defendants’

business activities in the District of Columbia, and the facts

of the prospective claims of potential class members residing in
 - 8 -

the District of Columbia, make venue proper here. (Pl.’s Opp’n

at 13-15.)

Defendants’ general business connections to the District of

Columbia do not suffice to show that this district is where a

substantial part of the events or omissions giving rise to the

claim occurred. Although the defendants may have conducted

business transactions within this district, Murdoch still “must

demonstrate that these transactions are the ones out of which

[her] claim[s] arise[].” Inter-Direct, Inc. v. Shoppers

Express, Inc., Civil Action No. 90-0603 (SSH), 1990 WL 95635, at

*2 (D.D.C. June 28, 1990). The Firm is a foreign corporation

authorized to do business in the District of Columbia and has a

registered agent in the District, but no part of the present

dispute as to Murdoch’s individual claims “finds any source in

[the Firm’s] business transacted in the District.” Id.

Defendants’ general business activities would be relevant to the

venue determination only if there were no other district in

which this action might properly be brought. 28 U.S.C.

§ 1391(b)(3). In that event, venue would be proper in any

district where any defendant is determined to be subject to the

court’s personal jurisdiction, an inquiry that looks to the

minimum contacts that a business maintains with the forum.

However, § 1391(b)(3) does not apply here since the District of

Maryland, where all events relevant to Murdoch’s individual
 - 9 -

claims occurred, is a district where this action properly could

have been brought. Analysis of the relevant facts under

§ 1391(b)(2) conforms to the general rule that “questions of

personal jurisdiction and venue are distinct,” Day v. Cornèr

Bank (Overseas) Ltd., 789 F. Supp. 2d 150, 160 (D.D.C. 2011).

Because all of the defendants’ activities having operative

significance in Murdoch’s case took place in Maryland, venue is

not proper in the District of Columbia.

Moreover, the facts giving rise to the prospective claims

of potential class members residing in the District of Columbia

are not relevant to determining whether venue is proper under

§ 1391(b)(2). Murdoch brought her action individually and on

behalf of a class that has not yet been certified. Regardless

of the status of class certification, “[t]he law is clear that

in determining whether venue for a putative class action is

proper, courts are to look only at the allegations pertaining to

the named representatives.” Cook v. UBS Fin. Srvcs., Inc., No.

05 Civ. 8842 (SHS), 2006 WL 760284, at *6 n.2 (S.D.N.Y. Mar. 21,

2006) (citing 7A Charles Alan Wright, Arthur R. Miller & Mary

Kay Kane, Federal Practice and Procedure § 1757 (3d ed.) and

United States ex rel. Sero v. Preiser, 506 F.2d 1115, 1129 (2d

Cir. 1974)); see also Quarles v. Gen. Inv. & Dev. Co., 260 F.

Supp. 2d 1, 13 (D.D.C. 2003) (requiring named plaintiff to

satisfy venue provision since “[i]t is . . . logical that
 - 10 -

plaintiffs who are named as representatives of a class action be

required to satisfy the venue requirements of the statute

because they are the parties who have brought themselves before

the court and are the persons over whom the court must have

jurisdiction”). Courts accordingly focus on facts relevant to a

named plaintiff’s claim in determining venue and reject attempts

to venture into the facts as may be relevant to prospective

class members. See, e.g., Childs v. Unified Life Ins. Co., No.

CIV-09-978-M, 2010 WL 200057, at *2 (W.D. Okla. Jan. 13, 2010)

(rejecting plaintiff’s contention “that the putative class

members reside all over the state of Oklahoma such that the case

should be tried here,” because “[i]t is well-settled . . . that

in such situations, courts look to the allegation pertaining to

the named class representative.”); Turnley v. Banc of Am. Inv.

Srvcs., Inc., 576 F. Supp. 2d 204, 212 (D. Mass. 2008) (finding

in a putative class action suit that “each individual named

plaintiff must satisfy the venue provision”); Smith v.

Burlington N. Santa Fe Ry. Co., Inc., No. 06-2151-CM, 2006 WL

3192545, at *2 (D. Kan. Nov. 1, 2006) (finding venue improper

where substantial part of acts giving rise to named plaintiff’s

claim did not occur in district and concluding that the

“allegation that many of the potential members of the putative

class [took relevant actions] in Kansas does not change that

fact or make venue appropriate here”). Murdoch does not purport
 - 11 -

to distinguish the preceding authority, nor does she cite

contrary case law to support her position that courts may

consider events giving rise to potential class members’ claims

to determine venue. The operative facts of Murdoch’s claims

alone provide no basis for venue under § 1391(b)(2).

In sum, venue is not proper in this district. Although the

defendants’ motions to dismiss for improper venue could be

granted, the interest of justice militates in favor of

transferring this case to the District of Maryland, where venue

is proper under 28 U.S.C. § 1391(b)(2). “As a general matter, a

transfer of the case is favored over a dismissal.” Jones v.

United States, 820 F. Supp. 2d 58, 61 (D.D.C. 2011); see also

Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C. Cir. 1983)

(“The Supreme Court has inferred a congressional purpose

underlying section 1406(a) favoring the transfer of cases when

procedural obstacles [such as improper venue] ‘impede an

expeditious and orderly adjudication . . . on the merits.’”)

(quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962)).

There is no indication in the record that Murdoch would rather

have her case dismissed than pursued in the transferee district.

CONCLUSION AND ORDER

Murdoch has not shown that venue is proper here under any

of the provisions of 28 U.S.C. § 1391(b). However, the

defendants’ motions to dismiss for improper venue will be denied
 - 12 -

in part because the District of Maryland would be a proper venue

for Murdoch’s claims, and the case will be transferred there in

the interest of justice under 28 U.S.C. § 1406(a). Accordingly,

it is hereby

ORDERED that the defendants’ motions [9, 14] be, and hereby

are, DENIED IN PART. The Clerk is directed to transfer this

case to the District of Maryland. All remaining motions are

left for decision by the transferee district court.

SIGNED this 11th day of July, 2012.

__________/s/_______________
RICHARD W. ROBERTS
United States District Judge