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),
 - 2 -

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
 - 3 -

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.
 - 4 -

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.
 - 5 -

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
 - 6 -

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
 - 7 -

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
 - 8 -

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).
 - 9 -

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.
 - 10 -

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.
 - 11 -

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[.]
 - 12 -

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
 - 13 -

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.
 - 14 -

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.
 - 15 -

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.
 - 16 -

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
 - 17 -

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
 - 18 -

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