Freedman v. Suntrust Banks, Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SHANA FREEDMAN,

on behalf of herself and all others similarly
situated,

Plaintiff
Civil Action No. 1:14-cv-01575 (CKK)
v.
SUNTRUST BANKS, INC.
and
SUNTRUST MORTGAGE, INC.,
Defendants

MEMORANDUM OPINION
(September 21, 2015)

Presently before the Court is Defendants’ [14] Motion to Dismiss For Lack of Personal

Jurisdiction and Plaintiff’s [24] Motion for Leave to File Limited Surreply. Upon consideration

of the pleadings, 1 the relevant legal authorities, and the record as a whole, the Court DENIES

Defendants’ Motion to Dismiss and DENIES Plaintiff’s Motion for Leave to File Limited

Surreply. For the reasons described herein, the Court finds that it lacks personal jurisdiction over

Defendants and that jurisdictional discovery is not warranted but that it is in the interest of justice

1
In deciding Defendants’ Motion to Dismiss, the Court’s consideration has focused on the
following pleadings: Pl.’s Complaint (“Compl.”), ECF No. [1]; Defs.’ Mot. to Dismiss (“Defs.’
Mot.”), ECF No. [14]; Pl.’s Mem. in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”), ECF No.
[21]; and Defs.’ Reply Mem. in Further Supp. of its Mot. to Dismiss (“Defs.’ Reply”), ECF No.
[23]. In deciding Plaintiff’s Motion for Leave to File Limited Surreply, the Court also
considered the following pleadings: Pl.’s Mot. for Leave to File Limited Surreply, ECF No. [24],
Defs.’ Mem. in Opp’n to Pl.’s Mot. for Leave to File Limited Surreply, ECF No. [25], and Pl.’s
Reply to Defs.’s Opp’n to Pl.’s Mot. for Leave to File Limited Surreply, ECF No. [26]. In an
exercise of its discretion, the Court finds that holding oral argument in this action would not be
of assistance in rendering a decision. See LCvR 7(f).

1
to transfer the matter to the U.S. District Court for the Middle District of Florida pursuant to 28

U.S.C. § 1406(a) and 28 U.S.C. § 1631.

I. BACKGROUND

For the purposes of the motion before the Court, the Court accepts as true the well-

pleaded allegations in Plaintiff’s Complaint. The Court does “not accept as true, however, the

plaintiff’s legal conclusions or inferences that are unsupported by the facts alleged.” Ralls Corp.

v. Comm. on Foreign Inv. in U.S., 758 F.3d 296, 315 (D.C. Cir. 2014). The Court recites the

principal facts pertaining to the issues raised in the pending motions, reserving further

presentation of the facts for the discussion of the individual issues below.

Plaintiff Shana Freedman (“Plaintiff”) is a Florida resident who unsuccessfully sought a

home loan from SunTrust Mortgage (“SunTrust”) in the fall of 2012. Compl. ¶ 3, 17, 40.

Plaintiff, whose income consists of long-term Social Security Disability Insurance (“SSDI”), was

ultimately unable to submit a loan application for processing due to a SunTrust policy requiring

her to provide firm assurances that her disability benefits would continue. Id. ¶ 37. Plaintiff first

experienced difficulties obtaining a home loan from SunTrust in October 2012 when she

attempted to complete an online loan application that did not permit her to indicate income in the

form of SSDI payments. Id. ¶ 26. Plaintiff contacted a SunTrust loan officer to seek assistance

with the application, explaining that she was disabled and that her income consisted of SSDI

payments. Id. ¶ 26. Plaintiff also faxed the loan officer her most recent SSDI award letter,

which had no expiration date for her long-term disability benefits. Id. ¶ 31. Following

consultation with SunTrust’s underwriting department, the loan officer informed Plaintiff that

SunTrust had a policy requiring loan applicants whose income consisted of long-term disability

benefits to submit documentation “from a Doctor or from Social Security” indicating that “the

2
income is going to continue.” Id. ¶ 33. Plaintiff could not provide the requested documentation

from the Social Security Administration because that agency does not guarantee future benefits.

Id. ¶ 35. Because Plaintiff was unable to obtain the requested documentation, SunTrust refused

to process her loan application. Id. ¶ 37. When Plaintiff contacted SunTrust one month later, the

loan officer confirmed that SunTrust’s income-verification policy continued. Id. In accordance

with this policy, SunTrust again refused to process Plaintiff’s application. Id. ¶ 37. On

September 16, 2014, Plaintiff filed this lawsuit as a putative class action on behalf of herself and

other similarly situated borrowers whose income derives from long-term disability assistance.

Id. ¶ 41. Plaintiff alleges that SunTrust’s policy of requesting sensitive medical information

regarding an applicant’s disability violates the Fair Housing Act, 42 U.S.C. § 3601 et seq., and

the Equal Credit Opportunity Act (“ECOA”), 15 U.S.C. § 1691 et seq. Id. ¶ 42-43.

The defendants in this action are SunTrust Banks Inc. and SunTrust Mortgage, Inc.

(“Defendants”). SunTrust Banks, Inc. is an American bank holding company. Compl. ¶ 12. It is

a Georgia corporation with its principal place of business at 303 Peachtree Street NE, Atlanta,

Georgia, 30308. Defs.’ Mot. Exhibit A. 2 SunTrust Banks, Inc. is one of the largest financial

services organization in the United States, operating 1,700 banks throughout the United States,

including in the District of Columbia. Compl. ¶ 12. SunTrust Banks, Inc. operates a number of

retail bank branches in the District of Columbia and maintains a mortgage office in the District.

Id. Defs.’ Mot. Exhibit B. SunTrust Bank, Inc.’s website advertises that SunTrust Bank and its

2
The Court considers Defendants’ and Plaintiff’s Exhibits as matters of public record. See Covad
Commc’ns. Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir. 2005). In addition, “unlike a motion to
dismiss for failure to state a claim, the Court need not confine itself to only the allegations in the
complaint, but ‘may consider materials outside the pleadings in deciding whether to grant a motion to
dismiss for lack of jurisdiction.’ ” Frost v. Catholic Univ. of Am., 960 F. Supp. 2d 226, 231 (D.D.C. 2013)
aff'd, 555 F. App'x 6 (D.C. Cir. 2014) (quoting Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249,
1253 (D.C. Cir. 2005)).

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affiliates offer retail and mortgage banking services “primarily in Florida, Georgia, Maryland,

North Carolina, South Carolina, Tennessee, Virginia, and the District of Columbia.” Pl.’s Opp’n

Exhibit A.

SunTrust Mortgage, Inc. is a wholly-owned subsidiary of Defendant SunTrust Banks,

Inc.. Id. ¶ 13. SunTrust Mortgage, Inc. is a Virginia Corporation with its principal place of

business at 901 Semmes Avenue, Richmond, Virginia 23224. Defs.’ Mot. Exhibit B. SunTrust

Mortgage, Inc. operates loans in SunTrust markets throughout the South and mid-Atlantic

regions of the Unites States, including the District of Columbia. Compl. ¶ 13. It services loans

in approximately 48 states and the District of Columbia. Id. In 2013, SunTrust Mortgage was

ranked number eight in mortgage originations in the United States. Id. Plaintiff alleges that

SunTrust Mortgage, Inc. “is and at all relevant times has been a subsidiary of, controlled by, a

mere instrumentality of, and an agent of SunTrust Banks such that SunTrust Banks is liable for

its acts alleged herein.” Id. ¶ 13.

On February 17, 2015, Defendants filed a Motion to Dismiss for Lack of Personal

Jurisdiction. On April 2, 2015, Plaintiff filed her Opposition to Defendant’s Motion, requesting

in the alternative that the Court transfer the case to the Middle District of Florida. After

Defendants filed their Reply brief on April 27, 2015, Plaintiff filed a motion on May 6, 2015 for

leave to file a surreply to bolster arguments in support of the transfer request previously made in

her Opposition brief. Defendants’ Reply brief did nothing more than respond to Plaintiff’s

arguments in support of her transfer request. Because Defendants did not raise any new

arguments in their Reply brief, the Court denies Plaintiff’s motion for leave to file a surreply.

Crummey v. Soc. Sec. Admin., 794 F. Supp. 2d 46, 63 (D.D.C. 2011) aff'd, No. 11-5231, 2012 WL

4
556317 (D.C. Cir. Feb. 6, 2012) (“[A] surreply is not a vehicle for rehashing arguments that have

already been raised and briefed by the parties.”).

II. LEGAL STANDARD

When personal jurisdiction is challenged under Rule 12(b)(2), the plaintiff bears the

burden of establishing a factual basis for asserting personal jurisdiction over a defendant. See

Crane v. N.Y. Zoological Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990). At this stage, the plaintiff

“can satisfy that burden with a prima facie showing.” Mwani v. bin Laden, 417 F.3d 1, 7 (D.C.

Cir. 2005) (quoting Edmond v. United States Postal Serv. Gen. Counsel, 949 F.2d 415, 424 (D.C.

Cir. 1991)) (emphasis in original). To do so, the plaintiff cannot rest on bare allegations or

conclusory statements but “must allege specific acts connecting [the] defendant with the forum.”

Second Amendment Found. v. U.S. Conference of Mayors, 274 F.3d 521, 524 (D.C. Cir. 2001)

(internal quotation marks omitted). “To make such a showing, the plaintiff is not required to

adduce evidence that meets the standards of admissibility reserved for summary judgment and

trial[;]” but rather, the plaintiff may “rest her arguments on the pleadings, ‘bolstered by such

affidavits and other written materials as [she] can otherwise obtain.’ ” Urban Inst. v. FINCON

Servs., 681 F.Supp.2d 41, 44 (D.D.C. 2010) (quoting Mwani, 417 F.3d at 7).

In order to obtain jurisdictional discovery a “plaintiff must have at least a good faith

belief that such discovery will enable it to show that the court has personal jurisdiction over the

defendant.” Caribbean Broad. Sys. Ltd. v. Cable & Wireless PLC, 148 F.3d 1080, 1090 (D.C.

Cir. 1998); see also Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F. Supp. 2d 1,

11 (D.D.C. 2009) (holding that [j]urisdictional discovery ... is justified only if the plaintiff

reasonably ‘demonstrates that it can supplement its jurisdictional allegations through discovery.’

”) (quoting Kopff v. Battaglia, 425 F. Supp. 2d 76, 89 (D.D.C. 2006)). “Mere conjecture or

5
speculation” is not enough to justify jurisdictional discovery. FC Investment Group LC v. IFX

Markets Ltd., 529 F.3d 1087, 1094 (D.C. Cir. 2008).

Pursuant to 28 U.S.C. § 1406, courts have authority to transfer a case “laying venue in the

wrong division or district” to “any district or division in which it could have been brought,” if

such a transfer would be “in the interest of justice.” The decision whether a transfer under

Section 1406 is in the “interest of justice” rests “within the sound discretion of the district court.”

Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C. Cir. 1983). Transfer is appropriate

“when procedural obstacles [such as lack of personal jurisdiction, improper venue, and statute-

of-limitations bars] impede an expeditious and orderly adjudication on the merits.” Sinclair v.

Kleindienst, 711 F.2d 291, 293–94 (D.C. Cir. 1983). Generally, the interests of justice require

transferring a case to the appropriate judicial district rather than dismissing it. See Goldlawr, Inc.

v. Heiman, 369 U.S. 463, 466–67 (1962).

Courts also have authority under 28 U.S.C. § 1631 to transfer a case filed in the wrong

jurisdiction, “if it is in the interest of justice” to do so. When a case is transferred pursuant to 28

U.S.C. § 1631, it “proceed[s] as if it had been filed in . . . the court to which it is transferred on

the date upon which it was actually filed in ... the court from which it is transferred.” Id. “There

are three elements to a section 1631 transfer: (1) there must be a lack of jurisdiction in the district

court; (2) the transfer must be in the interest of justice; and (3) the transfer can be made only to a

court in which the action could have been brought at the time it was filed or noticed.” Fasolyak

v. The Cradle Soc'y, Inc., No. 06–1126, 2007 WL 2071644, at *11 (D.D.C. July 19, 2007)

(quoting Ukiah Adventist Hosp. v. FTC, 981 F.2d 543, 549 (D.C. Cir. 1992)). As the party

requesting transfer, Plaintiff bears the burden of establishing that the elements of a § 1631

6
transfer have been met. See Osage Tribe of Indians of Okla. v. U.S., No. 04–283, 2005 WL

578171, at *2 (D.D.C. Mar. 9, 2005).

III. DISCUSSION

Defendants move to dismiss this action under Rule 12(b)(2) for lack of personal

jurisdiction, arguing that it has insufficient contacts with the District of Columbia to support

jurisdiction. Plaintiff opposes Defendants’ motion and requests in the alternative that the Court

permit jurisdictional discovery or transfer the case to the U.S. District Court for the Middle

District of Florida pursuant to 28 U.S.C. § 1406, or in the alternative, to 28 U.S.C. § 1631.

The Court finds that there is not jurisdiction over Defendants and that jurisdictional

discovery is not warranted. The Court further finds that it is in the interest of justice to transfer

the matter to the U.S. District Court for the Middle District of Florida, which is a competent

jurisdiction to hear Plaintiff’s claims, pursuant to either 28 U.S.C. § 1406 or 28 U.S.C. § 1631.

A. The Court Lacks Personal Jurisdiction over Defendants
Defendant moves to dismiss this action under Rule 12(b)(2) for lack of personal

jurisdiction, arguing that they have insufficient contacts with the District of Columbia to support

jurisdiction. See Defs.’ Mot. at 7-9. Plaintiff argues that the District of Columbia has general

personal jurisdiction over Defendants because of their “continuous and systematic affiliations

with the forum state.” Pl.’s Mot. at 9. Plaintiff is “not aware of facts indicating that her claims

arose in the District of Columbia, and she therefore does not attempt to establish specific

jurisdiction.” Pl.’s Mot. at 1.

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 a. The Court’s Analysis is Governed by the Supreme Court’s decision in Daimler
AG v. Bauman
Under District of Columbia law, courts may exercise general jurisdiction over foreign

corporations such as Defendants when they are “doing business” in the District of Columbia.

D.C. Code § 13–334(a). 3 The scope of the phrase “doing business” as used in the D.C. Code is

“coextensive with the reach of constitutional due process.” Gorman v. Ameritrade Holding

Corp., 293 F.3d 506, 510 (D.C. Cir. 2002). Constitutional due process permits a court to

exercise general jurisdiction over a foreign corporation only “when the corporation’s affiliations

with the State in which suit is brought are so constant and pervasive ‘as to render [it] essentially

at home in the forum state.’ ” Daimler AG v. Bauman, ––– U.S. ––––, 134 S. Ct. 746, 751, 187

L.Ed.2d 624 (2014) (quoting Goodyear Dunlop Tire Operations, S.A. v. Brown, ––– U.S. ––––,

131 S.Ct. 2846, 2851, 180 L.Ed.2d 796 (2011)); see also Goodyear, 131 S. Ct. at 2853 (quoting

International Shoe v. Washington, 326 U.S. 310, 318 (1945) (General jurisdiction consists of

“instances in which the continuous corporate operations within a state [are] so substantial and of

such a nature as to justify suit against it on causes of action arising from dealings entirely distinct

from those activities.”).

In Daimler, the Court addressed whether the contacts of Mercedes Benz USA, Inc.

(“MBUSA”) within the state of California were sufficient to allow a California federal court to

exercise personal jurisdiction over MBUSA’s parent company. 134 S. Ct. at 746. MBUSA had

multiple California-based facilities, including a regional office, a vehicle preparation center, and

a “classic car” center. Id. at 752. MBUSA was also the largest supplier of luxury vehicles to

3
Defendants are considered “foreign” corporations because they are not “domiciled in, organized
under the laws of, or maintaining . . . [their] principal place of business in, the District of
Columbia.” D.C. Code § 13–422.

8
the California market. Id. MBUSA’s extensive contacts, however, were not sufficient to

conclude that California could exercise general jurisdiction over MBUSA’s parent company. 4

The Court emphasized that a corporation is not “at home” in “every state in which it engages in a

substantial, continuous, and systematic course of business[.]” Id. at 760-61. The Court

characterized such an approach as “unacceptably grasping.” Id. at 761. Rather, general

jurisdiction “calls for an appraisal of a corporation’s activities in their entirety, nationwide and

worldwide.” Id. at 762. n.20. “A corporation that operates in many places,” observed the

Supreme Court, “can scarcely be deemed at home in all of them.” Id. “With respect to a

corporation, the place of incorporation and principal place of business are ‘paradig[m] . . . bases

for general jurisdiction.’ ” Id. at 761 (quoting Goodyear, 131 S. Ct. at 2856). The Supreme

Court also noted that “in an exceptional case, a corporation's operations in a forum other than its

formal place of incorporation or principal place of business may be so substantial and of such a

nature as to render the corporation at home in that State.” Id. at 761 n.19 (citing Perkins v.

Benguet Consol. Mining Co., 342 U.S. 437 (1952) (holding that general jurisdiction over a

Philippines corporation was proper in Ohio after it moved its headquarters to the state after the

Japanese occupied the Philippines in World War II)).

4
In Daimler, the Supreme Court imputed MBUSA’s contacts to its parent company, Daimler,
and concluded that there “would still be no basis to subject Daimler to general jurisdiction in
California.” 134 S. Ct. at 760. The Court was unable to make a similar holding as to MBUSA
because Daimler “failed to object below to plaintiffs’ assertion that the California courts could
exercise all-purpose jurisdiction over MBUSA.” Id. at 758. Because Daimler procedurally
waived the argument, the Supreme Court assumed for the purposes of that decision that MBUSA
was “at home” in California. Id. That assumption did not alter the rest of the Court’s analysis.

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 b. The Court Cannot Exercise General Personal Jurisdiction over Defendants
Plaintiff argues that Defendants’ contacts with the District of Columbia are “so

continuous and systematic” as to render them “essentially at home” in the District of Columbia.

Pl.’s Mot. at 9. 5 Plaintiff argues that Defendants have established a “robust and permanent

presence in the District,” maintaining a physical business office, as well as mortgage branches at

which they originate loans and carry out other mortgage lender functions. Id. at 15. Defendants

are also registered to do business in the District and maintain an agent for service of process

here. Id. Plaintiff argues that Defendants’ “brick-and-mortar presence” in the District is

sufficient under Goodyear and Daimler. Id. at 1. Goodyear and Daimler, according to Plaintiff,

“simply clarify that general jurisdiction requires actual ‘presence’ within the forum.” Id. at 14.

The Court disagrees with Plaintiff’s reading of these cases, and concludes that Defendants are

not “essentially at home” in the District of Columbia.

In Daimler, the Supreme Court held that “[w]ith respect to a corporation, the place of

incorporation and principal place of business are ‘paradig[m] . . . bases for general jurisdiction.’ ”

134 S. Ct. at 760 (quoting Goodyear, 131 S. Ct. at 2856). Here, SunTrust Banks, Inc. is a

Georgia corporation with its principal place of business in Georgia, and SunTrust Mortgage, Inc.

is a Virginia corporation with its principal place of business in Virginia. Defs.’ Mot. Exhibits A

& B. Therefore, the “paradigm bases for general jurisdiction” over Defendants would be

Georgia and Virginia. Defendants could also be subject to general jurisdiction in a forum other

than Georgia and Virginia, but Defendants’ contacts with that forum must be “so substantial and

5
The Court finds it unnecessary to treat separately the contacts of SunTrust Mortgage, Inc. and
the contacts of its parent company, SunTrust Bank, Inc. Even if the Court were to assume an
“agency” relationship between SunTrust Mortgage, Inc. and SunTrust Bank, Inc., their collective
contacts would not be “so constant and pervasive” ‘as to render the Defendants “essentially at
home” in the District of Columbia. See Daimler, 134 S. Ct. at 751.

10
of such a nature as to render the corporation at home in that State.” Daimler, 134 S. Ct. at 760

n.19 (emphasis added). Plaintiff, however, has not shown, nor argued, that Defendants are any

more “at home” in the District of Columbia than they are “at home” in the other states where

Defendants maintain “substantial, continuous, and extensive business contacts.” By Plaintiff’s

own admission, Plaintiff’s argument “potentially subjects” Defendants to general jurisdiction in

each of Defendants’ eight “primary bases of operation.” See Pl.’s Reply at 3, 16. In each of

these eight “primary bases”—the District of Columbia, Florida, Georgia, Maryland, North

Carolina, South Carolina, Tennessee, and Virginia—Defendants operate numerous retail

branches and ATMs, and maintain a significant “brick-and-mortar” presence. See Pl. Exhibit A.

Plaintiff’s argument for general personal jurisdiction in the District of Columbia would therefore

render Defendants “at home” in eight different jurisdictions encompassing much of the eastern

seaboard. See id. The Supreme Court’s decision in Daimler explicitly forecloses such an

outcome. See 134 S. Ct. at 761-62. In Daimler, the Supreme Court held that if the defendant’s

California activities—which included extensive retail sales and a substantial “brick-and-mortar”

presence—“sufficed to allow adjudication of” claims unrelated to the state of California, the

same reach would “presumably be available in every State in which [the Defendant’s] sales are

sizeable.” Id. at 761. As the Court observed, a “corporation that operates in many places can

scarcely be deemed at home in all of them.” Id. at 762 n.10.

Plaintiff argues that there is general jurisdiction over Defendants under Gorman. See

Pl.’s Reply at 22. Gorman, however, was decided prior to Goodyear and Daimler, and the

applicable test for jurisdiction under the Due Process Clause was whether the defendant’s

contacts with the District were merely “continuous and systematic.” See 293 F.3d at 512 (“[T]he

test that we will apply to determine whether the District has general jurisdiction in this case is the

11
traditional one: Were [defendant]’s contacts with the District ‘continuous and systematic.’ ”).

After Goodyear and Daimler, the appropriate inquiry is “not whether a foreign corporation’s in-

forum contacts can be said to be in some sense ‘continuous and systematic,’ it is whether that

corporation’s affiliations with the State are so ‘continuous and systematic’ as to render [it]

essentially at home in the forum State.” 134 S. Ct. at 762 (internal quotations omitted). Even the

cases cited by Plaintiff apply the “essentially at home” test under Daimler/Goodyear, rather than

the “continuous and systematic” test under Gorman. See, e.g., Alkanani v. Aegis Def. Servs.,

LLC, 976 F. Supp. 2d 13, 29 (D.D.C. 2014) appeal dismissed, No. 14-7056, 2014 WL 4628907

(D.C. Cir. Aug. 11, 2014). In Alkanani, decided two months after Daimler, the court observed,

“[m]oreover, and perhaps even more significant, the Supreme Court recently emphasized that

‘engaging in a substantial, continuous, and systematic course of business’ in the forum is not, in

and of itself, enough for general jurisdiction to comport with due process.” Id. at 29 (quoting

Daimler, 134 S. Ct. at 757-58). Citing Daimler, the court concluded that the defendant

corporation’s activities in the District of Columbia—which included (1) contract negotiations

and meetings with the U.S. government; (2) a website; (3) tax filings; and (4) contacts with non-

government clients—“did not render the company ‘essentially at home’ ” in the District. Id. at

35. Therefore, even if Defendants’ contacts with the District of Columbia are “continuous and

systematic,” the Court must consider whether these contacts render Defendants “essentially at

home” in the District in light of Defendants’ activities “in their entirety, nationwide and

worldwide.” Daimler, 134 S. Ct. at 762 n.20. When the Court views Defendants’ contacts with

the District of Columbia in light of Defendants’ contacts with their seven other “primary bases of

operation,” the Court cannot conclude that Defendants are “essentially at home” in the District of

Columbia. See id. Accordingly, the Court lacks general jurisdiction over Defendants. See id.

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 c. Jurisdictional Discovery is Not Warranted
Plaintiff argues that, if the Court does not find sufficient support for general jurisdiction

in the record, the Court should permit jurisdictional discovery rather than dismissing for lack of

personal jurisdiction. See Pl.’s Opp'n at 23. The Court, however, concludes that jurisdictional

discovery is not warranted. To be granted jurisdictional discovery, “a plaintiff must have at least

a good faith belief that such discovery will enable it to show that the court has personal

jurisdiction over the defendant.” Caribbean Broad. Sys., Ltd., 148 F.3d at 1090. “Mere

conjecture or speculation” is not enough to justify such discovery. FC Investment Group LC,

529 F.3d at 1094.

Plaintiff seeks to conduct discovery relating to “the frequency and volume of Defendants’

banking and mortgage transactions with individuals located in the District of Columbia, the

number of employees Defendants employ in the District of Columbia, and the physical property

Defendants occupy and use here and whether Defendants own or have long-term leases for these

buildings.” See Pl.’s Opp'n at 24. But the Court cannot “see what facts additional discovery

could produce that would affect our jurisdictional analysis.” Mwani, 417 F.3d at 17. At best, the

additional discovery sought by Plaintiff would demonstrate that Defendants engage in a

“substantial, continuous, and systematic course of business” in the District of Columbia, which is

explicitly insufficient under Daimler to establish general jurisdiction. 134. S. Ct. at 760-61

(rejecting plaintiffs’ argument that general jurisdiction over a corporate defendant exists in

“every state in which it engages in a substantial, continuous, and systematic course of business”).

Plaintiff has suggested no way in which additional discovery would yield information enabling

them to show that Defendants are “essentially at home” in the District of Columbia, such as a

situation where Defendants are running a de facto base of operations through the District. See

Perkins, 342 U.S. at 447-49 (finding general jurisdiction over corporation which had moved its

13
headquarters, including its president’s office, to Ohio as part of a principal, if temporary, place of

business); In re Hellas Telecommunications (Luxembourg) II SCA, 524 B.R. 488, 507-08 (Bankr.

S.D.N.Y.) adhered to, 526 B.R. 499 (Bankr. S.D.N.Y. 2015) (finding nationwide jurisdiction

over corporation whose principal location in New York served as its North American Regional

Headquarters, spanned 1.6 million square feet, and employed 1,600 personnel, including 1,000

executives). Because Plaintiff has not “reasonably demonstrated” that jurisdictional discovery

would alter the Court’s conclusions regarding jurisdiction, jurisdictional discovery is not

justified. Exponential Biotherapies, Inc., 638 F.Supp.2d at 11.

B. The Court Shall Transfer this Action to the United States District Court for the Middle
District of Florida in the Interest of Justice
Plaintiff requests that the Court, in lieu of dismissal, transfer the case to the United States

District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1406, or in the

alternative, 28 U.S.C. § 1631. See Pl.’s Opp'n at 26. The Court concludes that it is “in the

interest of justice” under either provision to transfer this case to the Middle District of Florida.

a. Transferring this Action to the United States District Court for the Middle
District of Florida is in the “Interest of Justice” Pursuant to 28 U.S.C. § 1406
Plaintiff requests that the Court, in lieu of dismissal, transfer the case to the United States

District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1406. See Pl.’s Opp'n at

26. Section 1406(a) provides that, “[t]he district court of a district in which is filed a case laying

venue in the wrong division or district 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.

As a preliminary matter, the parties disagree as to whether a court may transfer a case

under Section 1406 in the situation where a defendant has filed a motion to dismiss for lack of

personal jurisdiction, but not a motion to dismiss for improper venue. Plaintiff argues that

14
Section 1406 broadly permits transfer to cure a number of procedural obstacles including the

lack of personal jurisdiction. Pl.’s Opp’n at 26-27. Defendants argue that Section 1406 permits

a transfer only where the defendant has objected to venue. Defs.’ Reply at 15-16. The Court

concludes that Section 1406 permits a transfer where, as here, a defendant has moved to dismiss

for lack of personal jurisdiction—but not for improper venue—and the plaintiff has responded

with a request to transfer, in lieu of dismissal.

1. Section 1406 Permits Transfer, in Lieu of Dismissal, where a Defendant
Has Challenged Personal Jurisdiction, but not Venue
The Supreme Court and the D.C. Circuit have broadly interpreted 28 U.S.C. §1406 to

hold that a district court may transfer a case to a proper venue when transfer would further the

interests of justice by removing procedural obstacles that would otherwise prevent a prompt

adjudication on the merits. In Goldlawr, the Supreme Court held that the language of Section

1406 “is amply broad enough to authorize the transfer of cases, however wrong the plaintiff may

have been in filing his case as to venue, whether the court in which it was filed has personal

jurisdiction over the defendant or not.” 369 U.S. at 466. Section 1406(a) achieves the “general

purpose” of “removing whatever obstacles may impede an expeditious and orderly adjudication

of cases and controversies.” Id. at 466-67. A transfer under Section 1406(a) may remove

“procedural obstacles” such as “the lack of personal jurisdiction, improper venue and statute of

limitations bars.” Sinclair, 711 F.2d at 294 (citing Dubin v. United States, 380 F.2d 813, 816 (5th

Cir. 1967).

Defendants argue that these cases “stand for the proposition that, when a defendant

moves to dismiss for lack of venue, and the court also lacks personal jurisdiction over the

defendant, the court may invoke 28 U.S.C. § 1406 and transfer venue.” Defs.’ Reply at 13

(emphasis in original). The cases, according to Defendants, “do not stand for the idea that a

15
motion to dismiss for lack of personal jurisdiction alone may be met with a venue transfer.”

Defs.’ Reply at 13. Defendants’ position is at odds with the plain reading of the D.C. Circuit’s

opinion in Sinclair and its progeny. In Sinclair, the court did not discuss whether the defendants

filed a motion to dismiss for lack of venue, and it does not state that such a motion is a

prerequisite for a court to invoke 28 U.S.C. § 1406(a). See 711 F.2d. at 292. The case simply

says that the defendants “moved to dismiss the action on various grounds” and that the “plaintiffs

opposed the motions for dismissal and, pursuant to 28 U.S.C. § 1406(a) (1976), moved to have

all three cases transferred. . . .” Id. Several cases, each citing Sinclair, have held that a venue

transfer under 28 U.S.C. § 1406(a) is squarely within the court’s “sound discretion” in the

precise circumstances at issue here—where the defendant is challenging personal jurisdiction,

but not venue. See Atwal v. Myer, 841 F. Supp. 2d 364, 368 (D.D.C. 2012) (transferring case

under 28 U.S.C. § 1406(a) to the Northern District of Texas after resolving defendants’ motion to

dismiss for lack of personal jurisdiction); Capital Bank Int'l Ltd. v. Citigroup, Inc., 276 F. Supp.

2d 72, 78 (D.D.C. 2003) (transferring case under 28 U.S.C. § 1406(a) to the District of Delaware

after plaintiffs requested a transfer, in lieu of dismissal, in their opposition to defendants’ motion

to dismiss for lack of personal jurisdiction). Accordingly, a court may transfer a case under

Section 1406(a) where, as here, the defendant has moved to dismiss for lack of personal

jurisdiction, and the plaintiff has responded with a request to transfer, in lieu of dismissal. See

Sinclair, 711 F.2d. at 292; Citigroup, 276 F. Supp. 2d at 72.

2. It is in the “Interest of Justice” under 28 U.S.C. § 1406(a) to Transfer this
Case to a Proper Venue
Section 1406(a) provides that, “[t]he district court of a district in which is filed a case

laying venue in the wrong division or district 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.

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§ 1406. Accordingly, in order to transfer an action under Section 1406, the transferor court must

find that (1) the transferor court is a “wrong” venue, (2) the case “could have been brought” in

the transferee court, and (3) transfer to the transferee court would be “in the interest of justice.”

See id. The Court finds that all three elements are met in this case.

i. The District of Columbia is a “Wrong” Venue
Defendants argue that venue cannot be “wrong” in this case because Defendants have not

moved to dismiss for lack of venue, and thereby, they have waived any objections to venue. See

Defs.’ Reply at 14. Whether venue is “wrong” under Section 1406(a), however, “depends

exclusively on whether the court in which the case was brought satisfies the requirements of

federal venue laws.” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct.

568, 577 (2013). The applicable “federal venue law” in this case, 28 U.S.C. § 1391(b), 6 states

that “[a] civil action 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; (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) 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). A corporate defendant is deemed to reside in “any district in which it is

subject to personal jurisdiction at the time the action is commenced.” 28 U.S.C. § 1391(c).

Here, Defendants do not “reside” in the District of Colombia for purposes of § 1391(b)(1)

because they are corporations that are not subject to personal jurisdiction in the District of

6
Section 1391 governs “venue generally,” that is, in cases where a more specific venue provision
does not apply. Cf., e.g., 28 U.S.C. § 1400 (identifying proper venue for copyright and patent
suits).

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Columbia. See Part III.A, supra. A “substantial part of the events” giving rise to the claims in

this action did not occur in the District of Columbia under § 1391(b)(2). See Compl. ¶ 18-41.

As to 1391(b)(3), there is another district in which the action may be brought, i.e., the Middle

District of Florida. See Part III.B.a.2.ii, infra. Therefore, the District of Columbia is a “wrong”

venue under 28 U.S.C. § 1391.

ii. This Case Could Have Been Brought in the Middle District of
Florida
Plaintiff alleges, and Defendants do not dispute, that venue and personal jurisdiction

would lie in the Middle District of Florida. Florida Statutes Section 48.193 provides for specific

personal jurisdiction—i.e., based on claims arising in Florida—over defendants “operating,

conducting, engaging in, or carrying on a business . . . in this state or having an office or agency

in this state” or “committing a tortious act within this state.” Fla. Stat. Ann. § 48.193(1)(a)(1)-

(2). Defendants are registered to conduct business in Florida, and they are alleged to have

committed a tortious act in the Middle District of Florida by allegedly subjecting Plaintiff to

discriminatory lending policies. Pl.’s Opp’n at 27. For the same reasons, venue lies in the

Middle District of Florida, Orlando Division. See 28 U.S.C. § 1391(a), 1391(b)(2). 7

iii. A Transfer to the Middle District of Florida Would be in the
“Interest of Justice”
Plaintiff argues that transfer would further the “interest of justice” because Plaintiff’s

claims under the Fair Housing Act, 42 U.S.C. § 3604(c), 3604(f)(1), 3604(f)(2), and 3605 would

be time barred if Plaintiff is required to refile their case in a new jurisdiction. See Pl.’s Opp’n at

7
Plaintiff’s property is located in Volusia County, and the SunTrust Mortgage officer with whom
she interacted is based in Seminole County. Both Counties fall in the Middle District, Orlando
Division. Pl.’s Opp’n at 27 n. 12.

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27-28. Plaintiff’s claims under the Fair Housing Act are subject to a two-year limitations period,

which, without equitable tolling or the application of the continuing violations doctrine, would

be time barred if Plaintiff had to refile. See 42 U.S.C. § 3613(a). Defendants do not dispute that

Plaintiff’s Fair Housing Act claims would be time barred. Rather, Defendants argue that transfer

would not be in the “interest of justice” because Plaintiff “knew, or should have known, that

[she] filed suit in the wrong jurisdiction.” Defs.’ Reply at 16.

According to the D.C. Circuit, transfer is in the “interest of justice” where “without a

transfer the cause of action would be barred by the running of the applicable statute of

limitations.” Sinclair, 711 F.2d at 294 (citing Burnett v. New York Central Railroad Co., 380

U.S. 424, 430 (1965)); see also Ebron v. Dep’t of the Army, 766 F. Supp. 2d 54, 58-59 (D.D.C.

2011) (transferring case under § 1406 where dismissal would preclude plaintiff from refiling);

Williams v. GEICO Corp., 792 F. Supp. 2d 58, 64 (D.D.C. 2011) (same). Transfer is also in the

“interest of justice” where transfer would save the parties the time and expense associated with

refiling, see, e.g., Capital Bank, 276 F. Supp. 2d at 78, and where transfer would not prejudice

the defendant, see, e.g., Delta Sigma Theta Sorority Inc. v. Bivins, 20 F. Supp. 3d 207, 219

(D.D.C. 2014).

Defendants, who concede that Plaintiff’s claims may be time barred if the case is not

transferred, argue that transfer is not “in the interest of justice” because Plaintiff “knew or should

have known that [she] filed suit in the wrong jurisdiction.” See Defs.’ Reply at 16. Defendants

cite McFarlane v. Esquire Magazine, 74 F.3d 1296, 1301 (D.C. Cir. 1996), in which the D.C.

Circuit held that the district court did not abuse its discretion by denying a motion to transfer

where the statute of limitations governing the claim had expired. Id. In McFarlane, the district

court found that it lacked personal jurisdiction over a co-defendant who was a resident of New

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York. Id. The district court denied the plaintiffs’ motion to transfer, in lieu of dismissal, holding

that the plaintiffs were “put on notice” by the defendant’s answer that the District of Columbia

lacked personal jurisdiction over the defendant. Id. The district court concluded that plaintiffs

would not be prejudiced by the denial because they could still seek recovery against the

remaining defendants in the District of Columbia. Id. The court also found that a transfer was

not “in the interest of justice” because the District of Columbia was “the nexus of the alleged

injury and activities described in the statements at issue.” McFarlane v. Esquire Magazine, No.

CIV. 92-0711 TAF, 1994 WL 510088, at *7 (D.D.C. June 8, 1994) aff'd, 74 F.3d 1296 (D.C. Cir.

1996).

The circumstances of this case are distinguishable from the facts of McFarlane. First,

Plaintiff, unlike the plaintiff in McFarlane, would be prejudiced if the case is not transferred

because she would no longer be able to seek any recovery on her Fair Housing Act claims. See

Sinclair, 711 F.2d at 294; Ebron, 766 F. Supp. 2d at 58-59; Williams, 792 F. Supp. 2d at 64.

Second, unlike the plaintiff in McFarlane, Plaintiff here is suing corporate defendants.

Plaintiff’s situation is similar to that of the plaintiff in Goldlawr, who filed suit against corporate

defendants in a state where the plaintiff believed the corporation “transact[ed] business” and

therefore was subject to the court’s jurisdiction. 369 U.S. at 466. In Goldlawr, the statute of

limitations governing the plaintiff’s claim expired, and the Supreme Court concluded that a

transfer was in the “interest of justice,” recognizing the “difficulties which may arise in

determining where corporations can be found or transact business.” Id. at 466 n.11 (citing

International Shoe, 326 U.S. at 310). Accordingly, it is in the interest of justice to transfer this

case, so that Plaintiff’s Fair Housing Act claims are not barred by the running of the applicable

statute of limitations. See id. at 466.

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 A transfer would also be in the “interest of justice” because a transfer would save the

parties the time and expense associated with refiling. Capital Bank, 276 F. Supp. 2d at 78.

Transferring the case to the Middle District of Florida would provide the parties with an

appropriate forum to “efficiently litigat[e]” the matter. See Sinclair, 711 F.2d at 294. Defendants

would not be prejudiced by a transfer to the Middle District of Florida in light of the fact that the

events at issue took place in that district, and they have raised no arguments regarding any such

prejudice. See Delta Sigma Theta Sorority Inc., 20 F. Supp. 3d at 219. Accordingly, the Court

finds that it is in the “interest of justice” to transfer the case to the Middle District of Florida

pursuant to 28 U.S.C. § 1406.

b. Alternatively, Transferring this Action is in the “Interest of Justice” Pursuant to
28 U.S.C. § 1631
Plaintiff alternatively requests that the Court transfer the case to the Middle District of

Florida pursuant to 28 U.S.C. § 1631. Pl.’s Opp’n at 26 n.10. Under Section 1631, courts have

the authority to transfer a civil action filed in the wrong jurisdiction, “if it is in the interest of

justice” to do so. When a case is transferred pursuant to 28 U.S.C. § 1631, it “proceed[s] as if it

had been filed in ... the court to which it is transferred on the date upon which it was actually

filed in ... the court from which it is transferred.” Id. “There are three elements to a section 1631

transfer: (1) there must be a lack of jurisdiction in the district court; (2) the transfer must be in

the interest of justice; and (3) the transfer can be made only to a court in which the action could

have been brought at the time it was filed or noticed.” Fasolyak, 2007 WL 2071644, at *11

(quoting Ukiah Adventist Hosp., 981 F.2d at 549). All three requirements are met in this case.

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 1. This Court Lacks Jurisdiction
A district court may transfer an action pursuant to Section 1631 if “that court finds that

there is a want of jurisdiction.” 28 U.S.C. § 1631. Defendants argue that Section 1631 permits

transfer only where a court lacks subject matter jurisdiction, not where the court lacks personal

jurisdiction. See Defs.’ Reply at 14. Defendants’ position has been embraced only by a minority

of district courts outside of this circuit. See, e.g., Pedzewick v. Foe, 963 F. Supp. 48, 50 (D.

Mass. 1997) (citing a Senate Report issued when Congress enacted Section 1631). Most courts,

including the D.C. Circuit, have interpreted Section 1631 according to its plain meaning,

concluding that a court may transfer an action where there is a want of any jurisdiction, whether

it be subject matter jurisdiction or personal jurisdiction. Cf. Hill v. U.S. Air Force, 795 F.2d

1067, 1068–1070 (D.C. Cir. 1986) (considering whether a district court abused its discretion by

failing to transfer a case under 28 U.S.C. § 1631 where the court lacked personal jurisdiction);

see also Trujillo v. Williams, 465 F.3d 1210, 1223 (10th Cir. 2006); Cimon v. Gaffney, 401 F.3d

1, 7 n.21 (1st Cir. 2005); Roman v. Ashcroft, 340 F.3d 314, 328 (6th Cir. 2003); Island Insteel

Systems, Inc. v. Waters, 44 V.I. 389, 296 F.3d 200, 218 n.9 (3d Cir. 2002); Wade v. Farmers Ins.

Group, 96 F.3d 1450 (7th Cir. 1996); Miller v. Hambrick, 905 F.2d 259, 262 (9th Cir. 1990);

Gower v. Lehman, 799 F.2d 925 (4th Cir. 1986); Slatick v. Director, Office of Workers'

Compensation Programs, U.S. Dept. of Labor, 698 F.2d 433, 434 (11th Cir. 1983). Accordingly,

the first requirement of a Section 1631 transfer—that the district court in which the action was

originally filed lacks jurisdiction—is met in this case because the Court lacks personal

jurisdiction over defendants. See Part B, supra.

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 2. Transfer is in the Interest of Justice
A district court may transfer an action pursuant to Section 1631 if that court finds that

transfer is in in “interest of justice.” The Court concludes that transfer is in in the “interest of

justice” under Section 1631 for the reasons stated in the Court’s analysis of this prong in its

discussion concerning Section 1406(a). See Part III.B.a.2.iii, supra.

3. This Action Could Have Been Brought in the Middle District of Florida
Finally, a district court may transfer an action pursuant to Section 1631 only to a court in

which the action “could have been brought at the time it was filed or noticed.” 28 U.S.C. § 1631.

Defendants do not dispute that venue and personal jurisdiction would lie in the Middle District of

Florida. See Defs.’ Reply at 13-18. The Court concludes that the case could have been brought

in the Middle District of Florida for the reasons stated in the Court’s analysis of this prong in its

discussion concerning Section 1406(a). See Part III.B.a.2.ii, supra.

Accordingly, the Court finds that it is in the “interest of justice” to transfer the case to the

Middle District of Florida pursuant to 28 U.S.C. § 1631.

IV. CONCLUSION

For the foregoing reasons, the Court DENIES Defendants’ [14] Motion to Dismiss for

Lack of Personal Jurisdiction and DENIES Plaintiff’s [24] Motion for Leave to File Limited

Surreply. The Court shall transfer this matter to the U.S. District Court for the Middle District of

Florida pursuant to 28 U.S.C. § 1406(a) and 28 U.S.C. § 1631.

An appropriate Order accompanies this Memorandum Opinion.

Dated: September 21, 2015
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge

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