Miller v. Insulation Contractors, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
VAN MILLER, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1556 (RWR)
)
INSULATION CONTRACTORS, INC. )
et al., )
)
Defendants. )
______________________________)

MEMORANDUM OPINION AND ORDER

Van Miller brings claims of racial discrimination in

employment under the District of Columbia Human Rights Act

(“DCHRA”) and 42 U.S.C. § 1981 against defendants Insulation

Contractors, Inc., doing business as Capitol Insulation Services

of Maryland (“Capitol”), and Gregory Mauk. The defendants have

moved to dismiss Miller’s DCHRA claim for lack of subject matter

jurisdiction and to transfer venue. Because the complaint

alleges discriminatory acts within the District of Columbia, the

allegations pled do not clearly indicate that the DCHRA claim is

barred by the statute of limitations, and the defendants have not

shown that transferring venue to the District of Maryland is in

the interest of justice, the defendants’ motion to transfer and

for partial dismissal will be denied.
 -2-

BACKGROUND

Miller worked as a carpenter for Capitol on projects in

Virginia, Washington, D.C., and Maryland from 1993 to 2008.

(Compl. ¶ 3.) Mauk became his supervisor in 2001 when Miller was

working in Virginia. From 2004 to late 2007, Miller worked on

job sites mostly in the District of Columbia. (Pl.’s Opp’n to

Defs.’ Mot. to Partially Dismiss Pl.’s Compl. & Transfer Venue

(“Pl.’s Opp’n”), Decl. of Van Miller (“Miller Decl.”) ¶ 3.) In

2008, Miller worked for several weeks on projects in Maryland

until he was laid off in February of 2008. (Id. ¶¶ 3, 4.)

Beginning in 2001 and continuing throughout Miller’s employment,

Mauk allegedly threatened to fire Miller and made racist comments

and death threats to Miller in person when visiting job sites or

communicating over Capitol’s radio system. (Id. ¶¶ 1, 3, 7;

Compl. ¶¶ 7-9.) Paul Adams, an operations manager at Capitol’s

Maryland office, decided to lay Miller off based on input from

Mauk. (Defs.’ Errata to Defs.’ Mot. to Partially Dismiss Pl.’s

Compl. & Transfer Venue, Ex. A, Decl. of Paul Adams (“Adams

Decl.”) ¶ 4.) Mauk informed Miller of his termination while

Miller was working on a project in Maryland. (Defs.’ Mem. of P.

& A. in Supp. of Defs.’ Mot. to Partially Dismiss Pl.’s Compl. &

Transfer Venue (“Defs.’ Mem.”), Ex. B, Decl. of Gregory Mauk

(“Mauk Decl.”) ¶ 6.) Miller and Mauk reside in Maryland and
 -3-

Capitol’s only office is located in Maryland. (Id. ¶ 2; Adams

Decl. ¶ 5; Compl. ¶ 3.)

On July 10, 2008, Miller filed his complaint in the Superior

Court of the District of Columbia bringing DCHRA and § 1981

claims alleging that the defendants harassed him, removed him

from his position as a foreman, and laid him off because of his

race. (Compl. ¶¶ 8, 11, 12.) The defendants removed the action

to this court, and have moved under Federal Rule of Civil

Procedure 12(b)(1) to dismiss Miller’s DCHRA claim and to

transfer the action to the District of Maryland under 28 U.S.C.

§ 1404(a).

DISCUSSION

I. VENUE

A case may be transferred to another venue under 28 U.S.C.

§ 1404(a) “[f]or the convenience of parties and witnesses, in the

interest of justice[.]”1 28 U.S.C. § 1404(a); see Piper Aircraft

Co. v. Reyno, 454 U.S. 235, 253 (1981). The moving party has the

1
Although the defendants have moved to dismiss Miller’s
DCHRA claim for lack of subject matter jurisdiction, a court has
discretion to resolve the venue issue before addressing whether
subject matter jurisdiction exists over a claim. Aftab v.
Gonzalez, Civil Action No. 07-2080 (RWR), 2009 WL 368660, at *2
(D.D.C. Feb. 17, 2009); see also Pub. Citizen v. U.S. Dist. Court
for the District of Columbia, 486 F.3d 1342, 1348 (D.C. Cir.
2007) (noting that Sinochem Int’l Co. v. Malaysia Int’l Shipping
Corp, 549 U.S. 422 (2007) “firmly establishes that certain
non-merits, nonjurisdictional issues may be addressed
preliminarily, because jurisdiction is vital only if the court
proposes to issue a judgment on the merits” (internal quotation
marks and brackets omitted)).
 -4-

burden of establishing that a transfer is proper, Onyeneho v.

Allstate Ins. Co., 466 F. Supp. 2d 1, 3 (D.D.C. 2006), “and the

motion must not be lightly granted.” 15 Charles Alan Wright et

al., Federal Practice & Procedure: Jurisdiction § 3848 at 163 (3d

ed. 2007). As a threshold requirement, the transferee court must

be in a district where the action “might have been brought.” See

28 U.S.C. § 1404(a). If it is, then a court has broad discretion

to balance case-specific factors related to the public interest

of justice and the private interests of the parties and

witnesses. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29-30

(1988); Demery v. Montgomery County, MD, Civil Action No. 08-1304

(RWR), 2009 WL 692604, at *3 (D.D.C. Mar. 18, 2009). Ultimately,

if the balance of private and public interests favors a transfer

of venue, then a court may order a transfer.

A. Venue in the District of Maryland

A civil action such as this one in which jurisdiction is not

founded solely on diversity of citizenship may be brought

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

28 U.S.C. § 1391(b). Capitol has its only office in Maryland

(Adams Decl. ¶ 5), and Mauk resides in Maryland. (Mauk Decl.
 -5-

¶ 2.) Moreover, Capitol made the decision to terminate Miller’s

employment in Maryland and Mauk worked out of Capitol’s office in

Maryland. (Id. ¶¶ 4, 5.) Miller also learned of his termination

while working on a construction site in Maryland. (Id. ¶ 6.)

Because all defendants reside in Maryland and a substantial

adverse employment action complained of occurred in Maryland,

this action could have been brought, then, in the transferee

district.

B. Private interests

The private interest factors typically considered include:

1) the plaintiff’s choice of forum, 2) the defendant’s choice of

forum, 3) where the claim arose, 4) the convenience of the

parties, 5) the convenience of the witnesses, particularly if

important witnesses may actually be unavailable to give live

trial testimony in one of the districts, and 6) the ease of

access to sources of proof. Montgomery v. STG Int’l, Inc., 532

F. Supp. 2d 29, 32-33 (D.D.C. 2008).

In the balance of private and public interests, a

“‘plaintiff’s choice of forum is ordinarily accorded deference.’”

Demery, 2009 WL 692604, at *3 (citing Aftab v. Gonzalez, Civil

Action No. 07-2080 (RWR), 2009 WL 368660, at *3 (D.D.C. Feb. 17,

2009)). “When two potentially proper venues are involved, the

plaintiff’s choice of forum is often accorded substantial

deference, particularly where the plaintiffs have chosen their
 -6-

home forum and many of the relevant events occurred there.”

Demery, 2009 WL 692604, at *3. However, if a plaintiff is not a

resident of the forum and “most of the relevant events occurred

elsewhere,” this deference is weakened. Hunter v. Johanns, 517

F. Supp. 2d 340, 344 (D.D.C. 2007).2 Transfer is supported when

“the material events that constitute the factual predicate for

the plaintiff’s claims occurred” in the transferee district.

Kafack v. Primerica Life Ins. Co., 934 F. Supp. 3, 6-7 (D.D.C.

1996). When the events occur in more than one district, a court

can consider which jurisdiction has the stronger factual nexus to

the claims. See O’Shea v. Int’l Bhd. of Teamsters, Civil Action

No. 04-207 (RBW), 2005 WL 486143, at *3 (D.D.C. Mar. 2, 2005).

The defendants assert alternately that “all” or “the

majority of the [material] events giving rise to this matter

occurred outside of the District.” (Cf. Defs.’ Mem. at 9, with

Defs.’ Reply at 4.) Maryland was where Adams consulted with Mauk

about Miller’s status, Adams decided to fire Miller, and Mauk

told Miller of the decision. (Adams Decl. ¶¶ 4, 5; Mauk Decl.

2
While Hunter referred to “‘a strong presumption against
disturbing [a] plaintiff[’s] initial choice of forum[,]’” 517 F.
Supp. 2d at 344 (quoting Pain v. United Techs. Corp., 637 F.2d
775, 784 (D.C. Cir. 1980)), it may be that that formulation had
greater applicability to motions to dismiss for forum non
conveniens before § 1404(a) was enacted allowing transfers more
freely than the forum non conveniens doctrine allowed dismissals.
See 15 Charles Alan Wright et al., Federal Practice & Procedure:
Jurisdiction § 3848 at 160-61 (3d ed. 2007) (tracing the
formulation to Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508 (1947),
a forum non conveniens case).
 -7-

¶¶ 5, 6.) Miller does not dispute Mauk’s claim that Miller’s

removal as a foreman occurred in Maryland. The material events,

though, involved more than just the demotion and the firing; they

also involved the years of discriminatory harassment. While

Miller concedes that some acts of discrimination occurred in

Maryland, he claims that “[t]he majority of the racial harassment

during the last four years occurred in the District of

Columbia[.]” (Pl.’s Opp’n at 6.) Miller’s declaration clearly

alleges that throughout the period between 2004 and 2007 when

Miller worked mostly in D.C., Mauk visited D.C. job sites

regularly and racially demeaned and threatened Miller each time.

(Miller Decl. ¶¶ 3, 7.) These facts do not establish either

quantitatively or qualitatively that Maryland is the more

significant locus of material events underlying Miller’s claims.

And although Miller and Mauk are both Maryland residents and

Capitol’s only office is there, that diminishes but does not

destroy deference shown to Miller’s choice of forum. The

defendants, then, have not shown that the first three private

interest factors on balance tilt toward transfer.

Regarding the remaining three private interest factors,

neither party asserts that either district would be inconvenient

to the parties, witnesses, and sources of proof. Capitol’s

personnel files, the parties, and one identified witness, Adams,

are all located in Maryland. However, the geographic distance
 -8-

between the District of Maryland’s courthouses and the District

of Columbia is small and it is unlikely that a transfer would

materially affect the convenience of the parties or witnesses, or

the ability to obtain sources of proof. Barham v. UBS Fin.

Servs., 496 F. Supp. 2d 174, 179 (D.D.C. 2007); Great Socialist

People’s Libyan Arab Jamahiriya v. Miski, 496 F. Supp. 2d 137,

144-45 (D.D.C. 2007). On balance, these final three private

interest factors favor neither side.

C. Public interests

The public interest factors usually weighed in considering a

motion to transfer include: 1) the transferee’s familiarity with

the governing laws; 2) the relative congestion of each court; and

3) the local interest in deciding local controversies at home.

Liban v. Churchey Group II, L.L.C., 305 F. Supp. 2d 136, 143

(D.D.C. 2004).

Since all federal courts are presumed to be equally familiar

with the law governing federal statutory claims, see id. (citing

In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171,

1175 (D.C. Cir. 1987)), neither venue is favored for adjudicating

Miller’s § 1981 claim. A court in the District of Columbia,

though, may be more familiar with the law governing Miller’s

DCHRA claim. See Trout Unlimited v. U.S. Dep’t of Agric., 944

F. Supp. 13, 19 (D.D.C. 1996); Armco Steel Co. v. CSX Corp., 790
 -9-

F. Supp. 311, 324 (D.D.C. 1991). This factor tilts slightly

toward venue in this district.

The defendants argue that cases are resolved more quickly in

the District of Maryland than in the District of Columbia.

(Defs.’ Mem. at 12.) In comparison to the District of Columbia,

the transferee district in 2007 had lower median times from

filing to disposition and from filing to trial, but had a

slightly larger total case load. (Defs.’ Mem., Ex. E, U.S.

District Court - Median Time Intervals from Filing to Disposition

of Civil Cases Terminated, by District and Method of Disposition,

During the 12-Month Period Ending March 31, 2007 at 1.) This

factor weighs in favor of transfer.

Finally, each district shares some local interest in

deciding this case. Interest in the duration and depth of the

alleged harassment is centered more in the District of Columbia,

while the interest in the more discreet but equally significant

acts of demotion and termination is centered more in Maryland.

Thus, a quantitative measure of the material events that make up

the claims’ factual predicate may be more connected to this

district, but a qualitative measure would tilt this factor toward

neither district. In any event, the defendants have not shown

that this factor favors transfer.

Accordingly, venue is proper in the District of Columbia,

and the scales balancing the public and private interests either
 -10-

tilt slightly toward venue in this district or are at equipoise.

In a tie, a plaintiff prevails. The defendant’s motion to

transfer will be denied.

II. MOTION TO DISMISS DCHRA CLAIM

A. Jurisdiction

The defendants also move to dismiss Miller’s DCHRA claim for

lack of subject matter jurisdiction arguing that the alleged

discriminatory acts did not occur in the District of Columbia.

“On a motion to dismiss for lack of subject-matter jurisdiction

pursuant to Rule 12(b)(1), the plaintiff bears the burden of

establishing that the court has subject-matter jurisdiction.”

Larsen v. U.S. Navy, 486 F. Supp. 2d 11, 18 (D.D.C. 2007).

“Because subject-matter jurisdiction focuses on the court’s power

to hear the claim, however, the court must give the plaintiff’s

factual allegations closer scrutiny when resolving a Rule

12(b)(1) motion.” Jin v. Ministry of State Sec., 475 F. Supp. 2d

54, 60 (D.D.C. 2007). The court may look beyond the complaint,

but “must accept as true the allegations in the complaint and

consider the factual allegations of the complaint in the light

most favorable to the non-moving party.” Short v. Chertoff, 526

F. Supp. 2d 37, 41 (D.D.C. 2007).

“The purpose of the [DCHRA] is ‘to secure an end in the

District of Columbia to discrimination for any reason other than

that of individual merit. . . .’” Matthews v. Automated Bus.
 -11-

Sys. & Servs., Inc., 558 A.2d 1175, 1180 (D.C. 1989) (quoting

D.C. Code § 1-2501). The DCHRA makes discriminatory practices in

employment unlawful. Id. “[T]he most important factor in

determining whether a court has subject matter jurisdiction over

a claim filed pursuant to the DCHRA is not whether the plaintiff

was actually employed in the District of Columbia but whether the

alleged discriminatory acts occurred in the District.” Quarles

v. Gen. Inv. & Dev. Co., 260 F. Supp. 2d 1, 20 (D.D.C. 2003).

The DCHRA’s broad language has been interpreted to “cover all

discrimination concerning jobs located in the District of

Columbia[.]” Peterson v. Archstone, Civil Action No. 08-1326

(RWR), 2009 WL 511145, at *4 (D.D.C. Feb. 27, 2009). For

example, the DCHRA covers a claim where a plaintiff applied for a

job that was located within the District of Columbia even though

the decision to discriminate was made outside the District.

Quarles, 260 F. Supp. 2d at 20. The fact that the job was to be

performed in the District of Columbia is a sufficient connection

to assert that “discrimination occurred in the District of

Columbia.” Id.; see also Peterson, 2009 WL 511145, at *4

(stating that the plaintiff pled a viable DCHRA claim where she

alleged that the defendant discriminated against her by not

hiring her for any position in the District of Columbia).

The defendants argue that Miller’s DCHRA claim should be

dismissed because no actionable events occurred in the District
 -12-

of Columbia. However, Miller asserts that Mauk made racist

threats and comments “on a regular basis and that these acts of

race discrimination largely occurred in the District of Columbia

for a period of almost four years.” (Pl.’s Opp’n at 3.) While

the complaint does allege that discriminatory actions occurred in

Maryland, such as Miller’s demotion and termination, the

complaint alleges that Miller had worked on projects for Capitol

in the District of Columbia and that Mauk made discriminatory

remarks and threatened to fire Miller “on a daily basis.”

(Compl. ¶ 8.) Moreover, Miller contends that he worked at

several job sites within the District of Columbia from 2004 to

2007 and that “Mr. Mauk supervised all of these jobs and visited

the D.C. job sites regularly.” (Miller Decl. ¶ 7.) During these

visits, Miller claims, Mauk made racist comments and threats to

him. Id. These allegations of Mauk’s discriminatory conduct

toward Miller establish a sufficient connection to the District

of Columbia and provide subject matter jurisdiction over Miller’s

DCHRA claim.

B. Statute of limitations

The defendants argue that even if acts occurred within the

District of Columbia, the complaint has specified none as

occurring on a date within the statute of limitations, thus

depriving the court of subject matter jurisdiction over the DCHRA

claim. However, “time prescriptions ‘are not properly typed
 -13-

“jurisdictional”’” and a motion to dismiss a DCHRA claim as time-

barred does not involve the court’s jurisdiction. Ibrahim v.

Unisys Corp., 582 F. Supp. 2d 41, 45 n.3 (D.D.C. 2008) (quoting

Scarborough v. Principi, 541 U.S. 401, 413-14 (2004)) (stating

that a statute of limitations is not jurisdictional because

jurisdiction focuses on the classes of cases and persons falling

within the court’s adjudicatory authority). Rather, “‘[a]

defendant may raise the affirmative defense of statute of

limitations via a Rule 12(b)(6) motion when the facts that give

rise to the defense are clear from the face of the complaint.’”

Turner v. Afro-Am. Newspaper Co., 572 F. Supp. 2d 71, 72 (D.D.C.

2008) (quoting DePippo v. Chertoff, 453 F. Supp. 2d 30, 33

(D.D.C. 2006)) (analyzing a motion to dismiss an age

discrimination claim for failure to file within the ninety-day

limit under Rule 12(b)(6)). Thus, the defendants’ argument that

a statute of limitations violation deprives the court of subject

matter jurisdiction fails. The defendants would fare no better,

though, bringing their motion under Rule 12(b)(6).

In order to survive a motion to dismiss under Rule 12(b)(6),

the plaintiff’s allegations in the complaint “must be enough to

raise a right to relief above the speculative level[.]” Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The complaint

must be construed in the light most favorable to the plaintiff

and “the court must assume the truth of all well-pleaded
 -14-

allegations.” Warren v. District of Columbia, 353 F.3d 36, 39

(D.C. Cir. 2004). If a plaintiff fails to allege sufficient

facts to support a claim, that claim must be dismissed. See

Twombly, 550 U.S. at 555-56. “A court should grant a

pre-discovery motion to dismiss on limitations grounds ‘only if

the complaint on its face is conclusively time-barred,’ and the

parties do not dispute when the limitations period began.”

Turner, 572 F. Supp 2d. at 72 (quoting DePippo, 453 F. Supp. 2d

at 33) (noting that a plaintiff must be given the benefit of all

legitimate inferences derived from the facts alleged).

Under D.C. Code § 2-1403.16, the statute of limitations for

DCHRA claims is one year and starts running from the occurrence

or the discovery of the discriminatory act. While Miller does

not provide specific dates for the discriminatory acts that

allegedly occurred in the District of Columbia, a complaint need

not contain detailed factual allegations “because simplified

notice pleading is made possible by the liberal opportunity for

discovery and the other pre-trial procedures established by the

Rules to disclose more precisely the basis of both claim and

defense [and] to define more narrowly the disputed facts and

issues.” Lewis v. District of Columbia, 535 F. Supp. 2d 1, 11

(D.D.C. 2008) (internal quotation marks omitted). A plaintiff is

not required to plead all elements of the prima facie case nor

“plead law or match facts to every element of a legal theory.”
 -15-

Id. at 9 (quoting Krieger v. Fadely, 211 F.3d 134, 136 (D.C. Cir.

2000) and citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 511

(2002)). “‘Because racial discrimination in employment is a

claim upon which relief can be granted, . . . “I was turned down

for a job because of my race” is all a complaint has to state to

survive a motion to dismiss under [Rule] 12(b)(6).’” Potts v.

Howard Univ. Hosp., 258 F. App’x 346, 347 (D.C. Cir. 2007)

(quoting Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1115

(D.C. Cir. 2000) and Bennett v. Schmidt, 153 F.3d 516, 518 (7th

Cir. 1998)) (reversing the district court’s dismissal because “it

was not clear from the face of the complaint that [plaintiff] in

fact acted outside the relevant statute of limitations”).

Construed in the light most favorable to Miller, this

complaint on its face does not establish that Miller brought his

DCHRA claim too late. The complaint alleges that Miller worked

for Capitol in Virginia, the District of Columbia, and Maryland

from 1993 to February 2008 and that Mauk racially harassed and

threatened Miller on numerous occasions. (Compl. ¶¶ 3, 7.)

After being promoted, Mauk allegedly “intensified his harassment

by threatening to fire [Miller] on a daily basis.” (Id. ¶ 8.)

While the complaint does not provide specific dates of all

discriminatory acts, nothing in the complaint forecloses proof

that discriminatory acts occurred in this district during the

one-year period before Miller filed this action on July 10,
 -16-

2008.3 Whether that happened must be developed once the parties

undertake discovery.

CONCLUSION AND ORDER

The balance of public and private interest factors does not

favor transfer of this case to the District of Maryland. Miller

has established a sufficient connection to the District of

Columbia for subject matter jurisdiction over his DCHRA claim and

the complaint does not conclusively show that his DCHRA claim is

barred by the statute of limitations. Accordingly, it is hereby

3
Even if the complaint alleges a “hostile work
environment,” see Portis v. First Nat’l Bank of New Albany,
Miss., 34 F.3d 325, 332 n.14 (5th Cir. 1994) (stating that “[a]
plaintiff need not use the magic words ‘hostile work environment’
[in her pleadings] to raise this claim”), the result would be no
different. In the District of Columbia, “[a] hostile work
environment claim is comprised of a series of separate acts that
collectively constitute one ‘unlawful employment practice.’”
Lively v. Flexible Packaging Ass’n., 830 A.2d 874, 891 (D.C.
2003) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 124 (2002)). “All of the component acts comprising the
hostile work environment claim need not have taken place within
the one-year period, but at least one act contributing to the
claim must occur within that period in order for the filing to be
timely.” Lively, 830 A.2d at 891-92 (internal citation and
quotation marks omitted). A hostile work environment claim “is
treated as an indivisible whole for purposes of the limitations
period, even if an initial portion of that claim accrued outside
the limitations period.” Id. at 892.
 -17-

ORDERED that the defendants’ motion [5] to partially dismiss

the plaintiff’s complaint and transfer venue be, and hereby is,

DENIED.

SIGNED this 21st day of April, 2009.

/s/
RICHARD W. ROBERTS
United States District Judge