UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
)
MARY SOUTHERLAND, )
)
Plaintiff, )
)
v. ) Civil No. 15-cv-0443 (KBJ)
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SOC, LLC, et al., )
)
Defendants. )
)
MEMORANDUM OPINION AND ORDER
Before this Court at present is Defendants’ Motion to Dismiss Plaintiff Mary
Southerland’s First Amended Complaint. (Defs.’ Mot. to Dismiss (“Defs.’ Mot.”), ECF
No. 33.) 1 For the reasons that follow, this Court has concluded that venue is improper
in this district for three of the five interrelated claims that appear in Southerland’s
amended pleading. Thus, Defendants’ motion will be GRANTED IN PART (to the
extent that it seeks a transfer), and the Court will TRANSFER the entire case to the
Eastern District of Virginia, where venue is proper for all of the claims that Southerland
has brought against Defendants.
I.
In September of 2011, Defendant SOC, LLC, a corporation that contracts with
the Department of State, hired Southerland as an Administrative Logistics Security
1
Southerland filed the initial complaint in this case on March 26, 2015. (See Complaint for Damages,
ECF No. 1.) On July 18, 2017, she filed an amended complaint but did not title it as such. (See
Complaint for Damages, ECF No. 22.) On January 21, 2018, Southerland filed the operative complaint,
which she titled “First Amended Complaint for Damages[,]” and which appears to be identical to the
July 18, 2017 filing. (See First Am. Compl. (“FAC”), ECF No. 26.)
Specialist to work at the Baghdad Diplomatic Support Center and the United States
embassy compound. (See First Am. Compl. (“FAC”), ECF No. 26, at ¶ 4, 14.) 2 SOC
sent Southerland to Iraq in December of 2011. (See id. at ¶ 15.) Although the
complaint lacks a clear chronology of events, Southerland alleges that, throughout her
tenure abroad, she repeatedly expressed concerns about SOC’s hiring and about its
management of security personnel under its contract with the Department of State.
(See, e.g., id. at ¶¶ 21, 26–27, 30.) Southerland further alleges that when she reported
to SOC these concerns about contract compliance, and also complained about alleged
sexual harassment, management retaliated against her by changing her position more
than eight times, sexually harassing her, and creating a hostile work environment. (See,
e.g., id. at ¶¶ 22, 30, 54–56, 58, 60, 65, 68–69)
SOC purportedly sent Southerland back to the United States for medical care
sometime around the end of May of 2012. (See id. at ¶ 70.) A doctor cleared her for
return to work about a month later (see id. at ¶ 71), but SOC did not return her to work
in Baghdad until December of 2012 (see id. at ¶¶ 73–74). Southerland claims that
SOC’s harassment and retaliation continued upon her return to Iraq, until she had a
mental breakdown in January of 2013, and flew back to the United States for further
medical care. (See id. at ¶¶ 74–81, 85–87, 93.) Southerland contends that SOC
constructively terminated her on February 10, 2013, and formally ended her
employment on September 23, 2013. (See id. at ¶ 94.)
2
Defendant Day & Zimmerman, Incorporated is the parent company of Defendant SOC. (See id. at
¶¶ 5, 66, 111.) Plaintiff alleges that Day & Zimmerman participated in the investigation of her claims
against SOC. (See id. at ¶ 66.)
2
Southerland’s complaint alleges five interrelated claims arising out of her time
working for SOC in Baghdad. (See id. at 30–42.) 3 The first two claims allege gender
discrimination, sexual harassment, hostile work environment, and retaliation under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”). (See id. at
30–36.) The third claim asserts that Defendants’ conduct on Southerland’s first trip to
Iraq gave her Post-Traumatic Stress Disorder and Major Depressive Disorder,
disabilities that SOC then failed to accommodate in violation of the Americans with
Disabilities Act of 1990, 42 U.S.C. § 12111, et seq. (“ADA”). (See id. at 36–39.) The
fourth claim accuses Defendants of intentional infliction of mental and emotional
distress (“IIED”) “under state law of Nevada and Pennsylvania and/or the District of
Columbia[.]” (See id. at 2, 39–41.) Southerland’s fifth and final claim alleges that
SOC retaliated against her for raising her concerns about contract compliance, in
violation of the False Claims Act, 31 U.S.C. § 3729, et seq. (“FCA”). (See id. at
41–42.)
Defendants moved to dismiss Southerland’s first three claims under Title VII and
the ADA, pursuant to Federal Rule of Civil Procedure 12(b)(3) due to improper venue
(see Defs.’ Mem. in Support of Mot. to Dismiss (“Defs.’ Mem.”), ECF No. 33-1, at
8–11), or, in the alternative, to transfer the case to the Eastern District of Virginia (see
id. at 11; Defs.’ Reply in Support of Defs.’ Mot. (“Defs.’ Reply”), ECF No. 36, at 13).
Notably, Southerland concedes that venue is improper in this district for three of her
five claims, but has asked the Court either to exercise pendent venue over these claims
3
Page-number citations to the documents that the parties have filed refer to the page numbers that the
Court’s electronic filing system automatically assigns.
3
or to transfer the case to the Eastern District of Virginia. (See Pl.’s Mem. in Opp’n to
Defs.’ Mot. (“Pl.’s Mem.”), ECF No. 35-1, at 25–29.)
II.
Congress passed a specific venue provision governing the jurisdictions in which
plaintiffs may bring Title VII and ADA claims. Such claims can be brought:
[1] in any judicial district in the State in which the unlawful employment
practice is alleged to have been committed, [2] in the judicial district in
which the employment records relevant to such practice are maintained and
administered, [] [3] in the judicial district in which the aggrieved person
would have worked but for the alleged unlawful employment practice [or]
. . . [4] within the judicial district in which the respondent has his principal
office.
42 U.S.C. § 2000e-5(f)(3) (Title VII); id. at § 12117(a) (incorporating § 2000e-5(f)(3)
for ADA claims). Southerland cannot and does not dispute that, under this provision,
venue is improper in this district. (See Pl.’s Mem. at 25–29 (“Venue is Proper in this
District Court for the FCA claims and IIED, but not for Title VII and ADA [claims]”)
(emphasis added)).)
Instead, Southerland asks the Court to exercise pendent venue. (See id. at
25–29.) “The pendent venue doctrine is an exception to the general rule that ‘a plaintiff
must demonstrate proper venue with respect to each cause of action and each
defendant.’” Martin v. EEOC, 19 F. Supp. 3d 291, 309 (D.D.C. 2014) (quoting
Coltrane v. Lappin, 885 F. Supp. 2d 228, 234 (D.D.C. 2012)). When at least some of a
plaintiff’s claims are properly venued, a court may exercise venue over other,
improperly venued claims that arise out of a common nucleus of operative fact. See id.
However, “courts will not apply the pendent venue doctrine to defeat Congress’s
intention that certain types of claims be heard in specific places.” Id. at 310.
4
Accordingly, judges in this district have considered pendent venue to be inappropriate
for claims governed by the specific venue provision at issue here. See id.; see also
Dehaemers v. Wynne, 522 F. Supp. 2d 240, 249 (D.D.C. 2007) (collecting cases). In
other words, “regardless of any common nucleus of facts or considerations of judicial
economy,” it is well established that “pendent venue cannot be applied to [a plaintiff’s]
Title VII [and ADA] claim[s]; rather, th[ose] claim[s] must satisfy the conditions of the
Title VII [and ADA] venue provision.” Martin, 19 F. Supp. 3d at 310.
III.
“When venue is improper, the Court must dismiss the claim or, ‘if it be in the
interest of justice, transfer [it] to any district or division in which it could have been
brought.’” Ellis-Smith v. Sec’y of Army, 793 F. Supp. 2d 173, 177 (D.D.C. 2011)
(quoting 28 U.S.C. § 1406(a) (alteration in original)). The interest of justice often
requires the transfer of a case in lieu of its dismissal, see Johnson v. Deloitte Servs.,
LLP, 939 F. Supp. 2d 1, 6 (D.D.C. 2013), especially where, as here, a plaintiff requests
transfer in response to a motion to dismiss for lack of venue (see Pl.’s Mem. at 28–29).
Moreover, and importantly, “[w]hen venue is improper for a Title VII [or ADA] claim,
courts have consistently transferred the entire case, pursuant to 28 U.S.C. § 1406(a), to
a judicial district where venue is appropriate for all claims, rather than split a case
apart.” Saran v. Harvey, No. 04-1847, 2005 WL 1106347, at *4 (D.D.C. May 9, 2005). 4
4
Plaintiff’s memorandum in opposition to Defendants’ motion asks for transfer under section 1404(a)
of Title 28 of the United States Code, under the doctrine of forum non conveniens, and also cites cases
transferring matters pursuant to section 1406(a). (See Pl.’s Mem. at 28–29.) Section 1404 and the
related doctrine of forum non conveniens are applicable when there are multiple jurisdictions in which a
case could be properly heard, unlike the case here. The applicable analysis in the instant case arises
under Section 1406(a), which directs courts to dismiss or transfer a case when it is improperly venued.
5
Before transferring the case, this Court must ensure that the transferee court has
personal jurisdiction over Defendants. See James v. Verizon Servs. Corp., 639 F. Supp.
2d 9, 15 (D.D.C. 2009). Here, Defendants have conceded as much. (See Defs.’ Reply
at 8 (noting that “both Defendants SOC and Day & Zimmerman are subject to personal
jurisdiction in . . . the Eastern District of Virginia”).) Moreover, Defendants have
represented that such transfer will not prejudice them. (See id.) See also James, 639
F. Supp. 2d at 15 (explaining that courts may consider prejudice to defendants in
determining whether or not to transfer).
Finally, it appears that all of Southerland’s claims would be properly venued in
the Eastern District of Virginia. Defendants agree that venue is proper in that district
for Southerland’s Title VII, ADA, and IIED claims. (See Defs.’ Reply at 8, 13.) And
while Defendants do not address proper venue for Southerland’s FCA claim—they
argue solely that this claim should be dismissed (see id. at 8–12)—it appears that the
FCA claim can be venued properly in the Eastern District of Virginia as well, pursuant
to the generally applicable venue statute. See 28 U.S.C. § 1391(b)(2).
IV.
For the reasons explained above, this Court concludes that venue is improper in
this Court for three of Southerland’s five claims, and because all five claims rely on
complicated, interrelated factual allegations, it is in the interest of justice to transfer the
entire case to a jurisdiction where all claims may be heard jointly. See 28 U.S.C.
§ 1406(a). Accordingly, it is hereby
6
ORDERED that Defendants’ Motion to Dismiss is GRANTED IN PART, and
only to the extent that it requests that the instant case be transferred to the Eastern
District of Virginia. It is
FURTHER ORDERED that the entire case shall be so TRANSFERRED. This
Court will leave the remaining substantive issues in Defendants’ Motion to Dismiss
pending, to be resolved by the Eastern District of Virginia (the transferee court).
Date: January 16, 2019 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge
7