Tomasello v. Greenzweig

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUM BIA

)
PATRICIA TOMASELLO, et al., )
)
Plaintiffs, )
)
v. ) No. 19- cv- 0384 (KBJ)
)
JAMIE GREENZWEIG, et al., )
)
Defendants. )
)

M EM ORANDUM OPINION

The claims in the instant lawsuit arise out of the disposition of a prior legal

action that Plaintiff Patricia Tomasello filed in a state court in Virginia in 2016. (See

Compl., ECF No. 1, at 1–2.) In that prior lawsuit (hereinafter referred to as the “2016

Lawsuit”), Tomasello was represented by attorney Martin McMahon. (See Compl. ¶¶ 1,

2.) The state court dismissed Tomasello’s case, and shortly thereafter, Tomasello and

McMahon (collectively, “Plaintiffs ”) filed the instant tort action against three

individua ls who had been involved with the state- court litigatio n, seeking damages for,

in essence, an alleged unlawful conspiracy to have the 2016 Lawsuit dismissed. (See

id. ¶¶ 15–17.)

Before this Court at present are two motions to dismiss that Defendants Jamie

Greenzweig, Michael Reilly, and Hasina Lewis have filed with respect to this matter.

(See Defs. Greenzweig and Reilly’s Mem. in Support of Mot. to Dismiss (“Defs.

Greenzweig & Reilly’s Mem.”), ECF No. 4- 1; Def. Lewis’s Mem. in Support of Mot. to

Dismiss (“Def. Lewis’s Mem.”), ECF No. 10.) In addition to asserting that Plaintiffs’
complaint fails to state a claim upon which relief can be granted (see Defs. Greenzweig

& Reilly’s Mem. at 25–43; Def. Lewis’s Mem. at 12–17), Defendants argue that this

Court lacks both subject matter jurisdiction over Plaintiffs’ claims (see Defs.

Greenzweig & Reilly’s Mem. at 23–25; Def. Lewis’s Mem. at 9–10), and personal

jurisdiction over Greenzweig and Reilly (see Defs. Greenzweig & Reilly’s Mem. at 12–

20). 1 Defendants further maintain that Plaintiffs have selected the wrong venue for this

litigation. (See Defs. Greenzweig & Reilly’s Mem. at 21–23; Def. Lewis’s Mem. at 10–

12).

For the reasons explained below, this Court agrees that venue is improper in the

District of Columbia, and the Court further concludes that transferring this case to the

United States District Court for the Eastern District of Virginia (“EDVA”) is warranted,

in lieu of outright dismissal. Consequently, the Defendants’ motions to dismiss will be

GRANTED IN PART and DENIED IN PART, and the instant case will be

TRANSFERRED forthwith to the EDVA. A separate Order consistent with this

Memorandum Opinion will follow.

I.

Tomasello has been a firefighter with the Fairfax County Fire Department

(“FCFD”) for over 20 years. (See Compl. ¶ 1.) Tomasello claims that she was

subjected to “severe work place harassment” at the hands of her FCFD co- workers and

supervisors throughout her tenure with the FCFD. (Id.; see also Amended Compl., Ex.

1Pag e n u mb er cit at io n s t o t h e d ocumen ts t h at t h e p art ies h av e filed refer t o t h o se t h at t he Co u rt ’s
elect ro n ic case filin g s y stem au t omat ically assig ns.

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12 to Defs. Greenzweig and Reilly’s Mot. to Dismiss (“2016 Lawsuit Compl.”), ECF

No. 4- 14, at 7–16.) In the 2016 Lawsuit, Tomasello filed suit against fifteen FCFD-

related defendants, who allegedly engaged in a civil conspiracy to transfer her out of

the FCFD’s Investigations Unit, and thereby intentionally interfered with Tomasello’s

employment contract with the FCFD in a manner that inflicted emotional distress. 2 (See

2016 Lawsuit Compl. at 23–46.) Tomasello retained McMahon to represent her in the

2016 Lawsuit (see Compl. ¶ 2); the FCFD defendants—including Michael Reilly, who

was the Deputy Chief of the FCFD—were represented by Jamie Greenzweig, an

assistant county attorney for Fairfax County (see id. ¶¶ 3, 19).

Notably, McMahon sought to retain local counsel to assist with the prosecution

of the 2016 Lawsuit because he is not a member of the Virginia bar. (See id. ¶ 20.) In

the instant complaint, Tomasello and McMahon allege that Greenzweig threatened both

the first and second individua ls whom McMahon retained as local counsel and

convinced them to drop the case, and that she did so as part of a conspiracy with Reilly

to secure dismissal of the 2016 Lawsuit. (See id. ¶¶ 24–27.) Plaintiffs further allege

that a third local counsel whom McMahon subsequently hired—Defendant Hasina

Lewis—actually joined Greenzweig and Reilly’s conspiracy after Greenzweig

threatened her. (See id. ¶¶ 28–32.) For her part, in furtherance of the conspiracy,

Lewis allegedly misrepresented to McMahon that McMahon had been admitted to the

2 In cid en t ally , t he 2016 Laws u it fo llo wed t h e d is p osit io n o f an earlier cas e t hat To mas ello b rou ght

ag ain s t Fairfax Co u n t y in t h e Un it ed St at es Dis t rict Co u rt fo r t h e Eas t ern Dis t rict o f Virg in ia. In t h at
p rio r laws u it , To mas ello alleg ed t h at v ariou s memb ers o f t h e FCFD h ad v io lat ed Tit le VII. (S ee
Co mp l. ¶ 2.) Th e co u rt g ran ted Fairfax Co u n t y s u mmary ju d g men t o n all o f To mas ello ’s claims . S ee
To ma sel l o v. Fa i rfax C t y., No . 1:15-CV-95, 2016 W L 165708, at * 27 (E.D. Va. Jan . 13, 2016).

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state court pro hac v ice (see id. ¶¶ 34, 35, 38), and then intentionally failed to attend

two court hearing dates (see id. at ¶¶ 32, 35, 38). Due to Lewis’s alleged

misrepresentations, McMahon mistakenly believed he would be able to present oral

argument in court and was embarrassed when he learned that he had not been admitted

and would not be able to do so. (See id. ¶¶ 35, 76.)

In any event, the state court judge ultimately dismissed the 2016 Lawsuit with

prejudice (see id. ¶ 38), on the grounds that Tomasello had “failed to plead facts

sufficient to sustain her claim[s]” (see Order, Ex. 5 to Defs. Greenzweig and Reilly’s

Mot. to Dismiss, ECF No. 4- 7, at 1–2). Plaintiffs then filed the six- count complaint

that is presently before this Court, which specifically alleges that Reilly, Greenzweig,

and Lewis violated two federal statutes (namely, 42 U.S.C. § 1983 (Count I) and 42

U.S.C. § 1985(2) (Count II)); that Lewis committed breach of contract (Count III),

negligence (Count IV), and legal malpractice (Count VI); and that Greenzweig and

Reilly committed malicious interference with contractual relations (Count V). (See id.

¶¶ 57–96.)

Defendants Greenzweig and Reilly filed a motion to dismiss on March 12, 2019,

in which they argue that this Court lacks both subject matter jurisdiction and personal

jurisdiction. (See Defs. Greenzweig & Reilly’s Mem. at 12–25.) Defendants also

contend that venue is improper in the District of Columbia and that Plaintiffs have

failed to state a claim upon which relief may be granted. (See id. at 25–46.) Defendant

Lewis filed a motion to dismiss on April 11, 2019, in which she, too, argues that this

Court lacks subject matter jurisdiction, that venue is improper in the District of

Columbia, and that Plaintiffs have failed to state a claim upon which relief may be

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granted. (See Def. Lewis’s Mem. at 9–17.) Plaintiffs filed oppositions to each motion

on April 15, 2019, and May 20, 2019, respectively. (See Pls.’ Opp’n to Defs.

Greenzweig & Reilly’s Mot. to Dismiss, ECF No. 12; Pls.’ Opp’n to Def. Lewis’s Mot.

to Dismiss, ECF No. 15.) Defendants Greenzweig and Reilly filed a reply on April 22,

2019. (See Defs.’ Greenzweig & Reilly’s Reply, ECF No. 13.) Defendant Lewis filed

her reply on May 22, 2019. (See Def. Lewis’s Reply, ECF No. 16.)

II.

Federal Rule of Civil Procedure 12(b)(3) allows a defendant to move to dismiss a

case for improper venue. See Fed. R. Civ. P. 12(b)(3); see also 28 U.S.C. § 1406(a)

(instructing a district court to dismiss or transfer a case filed “in the wrong division or

district”). Where, as here, defendants have raised multiple grounds for dismissal,

federal district courts may “choose among threshold grounds for denying audience to a

case on the merits.” Sinochem Int'l Co. v . Malay. Int'l Shipping Corp., 549 U.S. 422,

431 (2007) (quoting Ruhrgas AG v . Marathon Oil Co., 526 U.S. 574, 585 (1999)).

Moreover, “certain non- merits, nonjurisdictiona l issues may be addressed preliminarily,

because ‘[j]urisdiction is vital only if the court proposes to issue a judgment on the

merits.’” Pub. Citizen v . U.S. Dist. Court for D.C., 486 F.3d 1342, 1348 (D.C. Cir.

2007) (quoting Sinochem, 549 U.S. at 431) (alteration in original). Thus, this Court

proceeds first with determining the propriety of venue.

“The Supreme Court [has] explained that ‘[w]hether venue is wrong or improper

depends exclusively on whether the court in which the case was brought satisfies the

requirements of federal venue laws.’” Delta Sigma Theta Sorority Inc. v . Biv ins, 20 F.

Supp. 3d 207, 210 (D.D.C. 2014) (second alteration in original) (quoting Atl. Marine

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Constr. Co. v . U.S. Dist. Court for W. Dist. of Tex as, 571 U.S. 49, 55 (2013)). Federal

law deems venue proper in the district (1) where any defendant resides, if all defendants

reside in the same state, or (2) where “a substantial part of the events or omissions

giving rise to the claim occurred,” or (3) where any defendant “is subject to the court’s

personal jurisdiction with respect to an action” if there is no district in which the action

may otherwise be brought. 28 U.S.C. § 1391(b).

“In reviewing a motion to dismiss for improper venue, the [district] court accepts

the plaintiff’s well- pled factual allegations regarding venue as true, draws all

reasonable inferences from those allegations in the plaintiff’s favor, and resolves any

factual conflicts in the plaintiff’s favor.” Delta Sigma, 20 F. Supp. 3d at 211 (internal

quotation marks and citation omitted). However, “the burden remains on the plaintiff to

establish that venue is proper since it is the plaintiff’s obligation to institute the action

in a permissible forum[.]” Id. (internal quotation marks and citations omitted).

Moreover, “[t]he court may resolve the motion on the basis of the complaint alone, or,

as necessary, examine facts outside the complaint that are presented by the parties,

while drawing reasonable inferences in favor of the plaintiff.” McCain v . Bank of Am.,

13 F. Supp. 3d 45, 51 (D.D.C. 2014), aff'd sub nom. McCain v . Bank of Am. N.A., 602

F. App’x 836 (D.C. Cir. 2015) (citing Herbert v . Sebelius, 925 F. Supp. 2d 13, 17–18

(D.D.C.2013)).

If venue is improper, the 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(a). Dismissal is appropriate when the “plaintiff’s claims suffer from

significant substantive deficiencies, but ultimately, whether to dismiss or transfer is

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committed to the sound discretion of the district court.” See King v . Caliber Home

Loans, Inc., 210 F. Supp. 3d 130, 134 (D.D.C. 2016) (internal quotation marks and

citation omitted).

III.

Plaintiffs concede that the only basis for venue in this district is section

1391(b)(2), which requires that, in order for venue to be proper in the District of

Columbia, a substantial part of the events giving rise to the claim must have occurred in

the District. (See Pls.’ Mem. in Support of Pls.’ Opp’n to Defs. Greenzweig and

Reilly’s Mot. to Dismiss (“Pls.’ Opp’n to Greenzweig & Reilly”), ECF No. 12- 1, at 31.)

In determining whether events are “sufficiently substantial” for the purpose of section

1391(b)(2), a court “should review the entire sequence of events underlying the claim.”

FC Inv . Grp. LC v . Lichtenstein, 441 F. Supp. 2d 3, 11 (D.D.C. 2006) (emphasis added)

(internal quotation marks and citation omitted).

Plaintiffs specifically point to the following to support their contention that there

is a sufficient connection between the events at issue in this case and the District of

Columbia for section 1391(b)(2) purposes: (1) two phone calls Greenzweig made to

McMahon’s office in the District, where the first local counsel worked, allegedly to

intimidate the first local counsel; and (2) twelve faxes Greenzweig sent to McMahon’s

office, allegedly to mislead McMahon into believing that Lewis would be in attendance

at certain court hearings. (See Pls.’ Opp’n to Greenzweig & Reilly at 31, 33.) In

support of their motions to dismiss, Defendants maintain that each of the alleged events

that gives rise to Plaintiffs’ claims actually occurred in Virginia; specifically, the 2016

Lawsuit was pending in a Virginia state court and was eventually dismissed by that

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court; Lewis’s office is located in Virginia; Lewis failed to appear for hearings in a

Virginia court; and any actions or conversations between the three alleged conspirators

occurred in Virginia. (See Defs. Greenzweig & Reilly’s Mem. at 22; Def. Lewis’s

Mem. at 10–11.) Although Plaintiffs correctly argue that a substantial part of the

events giving rise to a claim can occur in more than one forum (see Pls.’ Opp’n to

Greenzweig & Reilly at 32 (citing FC Inv . Grp., 441 F. Supp. 2d at 11)), this Court

concludes that the events that Plaintiffs point to as having occurred in the District are in

themselves insuffic ient to support venue in the District, because they do not constitute a

substantial part of the events that give rise to Plaintiffs’ claims in this case.

With respect to the events that actually comprise Plaintiffs’ claims, Plaintiffs’

complaint details the following allegedly conspiratorial acts of Defendants:

• Greenzweig and Reilly meeting in the Spring of 2016 to formulate their plan

to threaten McMahon’s local counsel (see Compl. ¶¶ 19–20);

• Greenzweig threatening McMahon’s second local counsel causing him to

drop out of the case (see id. ¶ 27);

• Greenzweig and Reilly conferring again after learning McMahon had hired

Lewis, the third local counsel, and agreeing to threaten Lewis (see id. ¶ 29);

• Greenzweig then threatening Lewis (see id. ¶ 31);

• Lewis and Greenzweig engaging in “a series of meetings[,]” after which

Lewis “agreed to obstruct justice and conspired with Greenzweig and Reilly

to secure dismissal of the [2016 Lawsuit]” (id. ¶ 4);

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 • Greenzweig and Lewis exchanging “approximately 80 emails” allegedly “to

coordinate the dismissal of the [2016 Lawsuit]” (id.);

• Lewis providing Greenzweig with dates that she was not available for oral

argument without informing McMahon that she was unavailable to appear on

those dates (id. ¶¶ 32);

• Lewis agreeing to mislead McMahon on the status of his pro hac v ice

admission (see id. ¶ 34);

• Lewis failing to appear in Virginia state court at “a critical hearing for oral

argument on January 20, 2017” (id. ¶ 35);

• Reilly allegedly saying to Greenzweig, after leaving the courtroom in

Virginia, “What are we going to do about that prick?” in reference to

McMahon (id. ¶36); and

• Lewis failing to appear in Virginia state court at a “second crucial hearing”

(id. ¶ 38).

Plaintiffs have not asserted that any of these specific acts occurred in the District

of Columbia. Moreover, based on Plaintiffs’ uncontradicted assertions regarding

Defendants’ domiciles and offices—i.e., both Greenzweig and Reilly are domiciled in

Virginia (see Compl. ¶¶ 3, 5); both are employed in Fairfax County, Virginia (see id.);

and Lewis has a “small litigation practice in Fairfax County” (id. ¶¶ 4, 28)—this Court

also cannot reasonably infer that any of the aforementioned acts occurred in the

District. What is more, it is undisputed that the 2016 Lawsuit was heard in Fairfax

County Circuit Court, and Plaintiffs have conceded that Greenzweig and Reilly entered

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into the alleged conspiracy in the state of Virginia. (See Pls.’ Opp’n to Greenzweig &

Reilly at 32.) And, again, the only events related to their claims that Plaintiffs now say

occurred in the District are two phone calls that Greenzweig made, and twelve faxes

that Greenzweig sent, to McMahon’s D.C. office. (See Pls.’ Opp’n to Greenzweig &

Reilly at 31, 33.) Thus, this Court finds that only a small fraction of the alleged events

that give rise to Plaintiffs’ claims took place in the District, and as a result, the factual

basis for Plaintiffs’ claims did not occur in “substantial part” in the District of

Columbia. 28 U.S.C. § 1391(b)(2); see also Shay v . Sight & Sound Sys., Inc., 668 F.

Supp. 2d 80, 84 (D.D.C. 2009).

Two more points are worth mentioning. First, to the extent that Plaintiffs are

suggesting that the v olume of phone calls and the number of faxes that are expressly

connected to the District are sufficient to support venue in and of themselves, the

complaint’s allegations regarding the remaining activities of Defendants in furtherance

of the conspiracy belie that point. In particular, the complaint alleges that there was “a

series of meetings” in which Defendants allegedly agreed to conspire to secure

dismissal of the 2016 Lawsuit (Compl. ¶ 4), and “approximately 80 emails” were

exchanged between Lewis and Greenzweig (id. ¶ 31)—in fact, it was that “extraordinary

number” of communications on this topic that allegedly convinced McMahon that they

were “conferring . . . to coordinate dismissal of the [2016 Lawsuit]” (id.). Yet, those

interactions in furtherance of the alleged conspiracy occurred outside of the District of

Columbia, which alone demonstrates that two phone calls and twelve faxes to

McMahon’s office do not constitute a substantial portion of events giving rise to

Plaintiffs’ claims. See, e.g., Cock rum v . Donald J. Trump for President, Inc., 319 F.

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Supp. 3d 158, 190 (D.D.C. 2018) (finding insuffic ient for venue purposes “two

meetings and some emails involving a sender or recipient in the District that could

possibly be linked to [the] alleged conspiracies” where plaintiffs had alleged “that

defendants largely orchestrated the alleged conspiracies from New York”).

It is also indisputable that the crux of Plaintiffs’ claims is their contention that

the state court’s dismissal of the 2016 Lawsuit was the cause of their injuries. (See

Compl. ¶ 14.) And Plaintiffs further allege that it was Lewis’s intentional failure to

appear at two hearings in the Virginia state court that caused the dismissal to occur.

(See id. ¶¶ 38, 75, 76, 82.) The emphasis that Plaintiffs place on Lewis’s failure to

appear at these hearings—appearances that Plaintiffs characterize as “important[,]”

“crucial[,]” “critical[,]” and “significant” (Id. ¶¶ 47, 52, 54, 55, 74)—demonstrates that

among the various events that give rise to the Plaintiffs’ legal claims, the truly

substantial ones (and here the Court is considering the weight of the events, not just the

quantifiable number) are the threats that Greenzweig allegedly made to induce Lewis

not to appear and the Virginia state court’s resulting dismissal of the case, neither of

which occurred in the District of Columbia. Moreover, and importantly, to the extent

that these crucial events appear to have occurred in the Eastern District of Virginia,

there is another forum in which this action may be properly brought for venue purposes.

See, e.g., Shay, 668 F. Supp. 2d at 85; Roland v . Branch Bank ing & Trust Corp., 149 F.

Supp. 3d 61, 69 (D.D.C. 2015).

IV.

This Court finds that, because Plaintiffs have failed to meet their burden of

showing that a substantial part of events giving rise to their claims occurred in the

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District of Columbia, venue is improper in this forum. In addition, it is well established

that “the standard remedy for improper venue is to transfer the case to the proper court

rather than dismissing it—thus preserving a petitioner’s ability to obtain review.” Nat’l

Wildlife Fed'n v . Browner, 237 F.3d 670, 674 (D.C. Cir. 2001). Transfer rather than

dismissal is especially warranted where, as here, the plaintiffs are pro se, and “it would

be more efficient and economical to transfer the case . . . rather than force [Plaintiffs] to

re- file and re- serve [their] Complaint in another District.” Roland, 149 F. Supp. 3d at

69 (citing 14D Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal

Practice & Procedure § 3827 (3d ed. 2015)).

Accordingly, this Court concludes that, because venue is improper in the District

of Columbia, it is in the interest of justice to transfer this case to the United States

District Court for the Eastern District of Virginia, where venue is proper, rather than

dismissing the action (as Defendants request). Thus, as set forth in the accompanying

Order, the Defendants’ motions to dismiss will be GRANTED IN PART and DENIED

IN PART, and the instant case will be TRANSFERRED forthwith to the EDVA

pursuant to 28 U.S.C. § 1406(a).

DATE: March 13, 2020 Ketanji Brown Jackson
KETANJI BROWN JACKSON
United States District Judge

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