                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 DAVID JIMENEZ, et al.,

         Plaintiffs,
                v.                                          Civil Action No. 15-1255 (JEB)
 R&D MASONRY, INC., et al.,

         Defendants.


                                  MEMORANDUM OPINON

       This is a Fair Labor Standards Act case brought by three laborers who claim that their

employers – stone and masonry companies – have failed to pay both overtime and full wages for

the number of hours worked. Plaintiffs are David Jimenez, Jaime Garcia, and Luis Alberto

Abarca, and Defendants are R&D Masonry, Inc. and Vedras Stone, Inc., as well as Diogo

Manuel Francisco and Vera G. Francisco, the owners of both businesses. Arguing that nearly all

of the events underlying Plaintiffs’ claim arose in Maryland, Defendants now move to dismiss

the Amended Complaint for improper venue or, in the alternative, to transfer the case to the

District of Maryland. Although it appears that venue may be proper in the District of Columbia,

the Court will grant Defendant’s Motion to transfer in the interest of justice and for the

convenience of all involved.

I.     Background

       According to the facts presented in the Amended Complaint, which must at this stage be

presumed true, Plaintiffs Jimenez, Garcia, and Abarca began working as masons for Defendants

in February 2015, approximately 2011, and approximately 2010, respectively. See Am. Compl.,

¶¶ 20-22. Jimenez worked on job sites in the District of Columbia for approximately 10% of his

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time, Garcia for approximately 35%, and Abarca for approximately 60%. See id., ¶¶ 26-28. For

nearly all of their remaining periods of employment by Defendants, Plaintiffs worked at job sites

in Maryland. See id. Defendants aver that 90% of their operations occur in Maryland, with the

remaining 10% occurring in the District of Columbia and Virginia combined. See Mot. Exh. A

(Affidavit of Vera Francisco), ¶ 3. Defendant companies, moreover, are incorporated in

Maryland, and their principal places of business are located there. See Am. Compl., ¶¶ 6-7; Mot.

at 2.

        Plaintiffs allege that Defendants typically paid them with two checks per workweek; the

first check, usually issued by R&D, covered the first forty hours of the workweek, and the

second check, usually issued by Vedras, covered any hours worked beyond that number. See

Am. Compl., ¶ 34. Although Plaintiffs usually worked more than forty hours per week for

Defendants, both checks Plaintiffs received allegedly paid them at their base hourly rate. See id.,

¶¶ 33, 35-36. By this method, Plaintiffs allege, Defendants avoided paying them required

overtime wages. See id., ¶¶ 37-43.

        Plaintiffs also allege that Defendants did not pay them for all hours worked. See id.,

¶ 44. Although Defendants required them to load machinery and materials into vehicles at the

companies’ central storage site before traveling to job sites, Plaintiffs did not receive payment

for those hours worked, nor for time spent traveling to and from job sites or for unloading the

vehicles at the storage site at the end of the work day. See id., ¶¶ 44-53.

        Plaintiffs filed suit on August 5, 2015, and their Amended Complaint sets forth five

counts. Three assert failure to pay overtime wages: one count each under the Fair Labor

Standards Act, 29 U.S.C. § 201 et seq., the Maryland Wage and Hour Law, Md. Code, Lab. &

Empl. Art., § 3-401 et seq., and the District of Columbia Minimum Wage Act, D.C. Code § 32-



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1001 et seq. Two counts allege failure to pay regular wages: one each under the Maryland Wage

Payment and Collection Law, Md. Code, Lab. & Empl. Art., § 3-501 et seq., and the District of

Columbia Wage Payment and Collection Law, D.C. Code § 32-1301 et seq. Defendants now

move to dismiss or, in the alternative, to transfer the case to Maryland, which Plaintiffs oppose.

II.     Legal Standard

        When a plaintiff brings suit in an improper venue, the district court “shall dismiss [the

case], 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); see also Fed. R. Civ. P. 12(b)(3) (defendant

may assert improper venue via motion). In considering a Rule 12(b)(3) motion to dismiss, the

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.” Darby v. U.S. Dep’t of Energy, 231 F. Supp. 2d 274, 276-77

(D.D.C. 2002). The Court need not, however, accept the plaintiff’s legal conclusions as true, see

id., and may consider material outside of the pleadings. Artis v. Greenspan, 223 F. Supp. 2d

149, 152 (D.D.C. 2002) (citing Land v. Dollar, 330 U.S. 731, 735 n.4 (1947)). “Because it is the

plaintiff’s obligation to institute the action in a permissible forum, the plaintiff usually bears the

burden of establishing that venue is proper.” Freeman v. Fallin, 254 F. Supp. 2d 52, 56 (D.D.C.

2003); see also 14D Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 3826 (3d

ed. 2007) (noting that most federal courts place burden of establishing venue as proper on

plaintiff when defendant has made proper objection). To prevail on a motion to dismiss for

improper venue, however, “the defendant must present facts that will defeat the plaintiff’s

assertion of venue.” Khalil v. L-3 Commc’ns Titan Grp., 656 F. Supp. 2d 134, 135 (D.D.C.




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2009). Unless there are “pertinent factual disputes to resolve, a challenge to venue presents a

pure question of law.” Williams v. GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011).

        Even where a plaintiff has brought its case in a proper venue, a district court may, “for

the convenience of parties and witnesses, in the interests of justice . . . transfer [it] . . . to any

other district . . . where it might have been brought.” 28 U.S.C. § 1404(a). District courts have

“discretion . . . to adjudicate motions for transfer according to an ‘individualized, case-by-case

consideration of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29

(1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)).

III.    Analysis

        In their Motion, Defendants ask the Court to dismiss the case for improper venue or, in

the alternative, to transfer it to a more convenient forum – namely, the District of Maryland.

Without engaging in a detailed analysis, the Court assumes that venue is proper in the District of

Columbia. Under 28 U.S.C. § 1391(b)(2), a civil case may be brought in “a judicial district in

which a substantial part of the events or omissions giving rise to the claim occurred.” In other

words, Plaintiffs are not required to bring suit in the district where the most substantial part of

the events happened. See, e.g., Modaressi v. Vedadi, 441 F. Supp. 2d 51, 57 (D.D.C. 2006)

(“[E]ven if a substantial part of the events in this case took place in Maryland, that does not

preclude plaintiff from filing suit in the District of Columbia if a substantial part of the events

took place [there], as well.”); see also City of New York v. Cyco.Net, Inc., 383 F. Supp. 2d 526,

543 (S.D.N.Y. 2005) (“Venue may be proper even if a greater part of the events giving rise to a

claim happened in another forum.”). The Court will thus not dismiss the case under § 1406 for

improper venue.




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       Even if venue is proper in the District of Columbia, however, the Court still analyzes

whether transfer is warranted under § 1404 “for the convenience of parties and witnesses, [and]

in the interests of justice.” In order to warrant such a transfer, the movant must first show that

the case could have been brought initially in the transferee district. See Treppel v. Reason, 793

F. Supp. 2d 429, 435 (D.D.C. 2011). Plaintiffs certainly could have brought suit initially in

Maryland, given that all Defendants are residents of that state. See 28 U.S.C. § 1391(b)(1)

(venue is proper in a judicial district where any defendant resides, if all defendants are residents

of the same state).

       In addition, Defendants must demonstrate that “considerations of convenience and the

interest of justice weigh in favor of transfer . . . .” Sierra Club v. Flowers, 276 F. Supp. 2d 62, 65

(D.D.C. 2003). To make such a determination, courts examine a series of private- and public-

interest factors. See Trout Unlimited v. U.S. Dep't of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996).

Private-interest factors include (1) the plaintiff’s choice of forum; (2) the defendant’s choice of

forum; (3) whether the claim arose elsewhere; (4) the convenience of the parties; (5) the

convenience of the witnesses; and (6) the ease of access to sources of proof. See id. Public-

interest factors include (1) the transferee district’s familiarity with the governing laws; (2) the

relative congestion of the calendars of the transferor and transferee courts; and (3) the local

interest in having local controversies decided at home. See id. The Court will look at both sets

of factors, keeping in mind that Defendants bear the burden of demonstrating decisively that the

balance of factors favors transfer. See Thayer/Patricof Educ. Funding, LLC v. Pryor Res., 196 F.

Supp. 2d 21, 31 (D.D.C. 2002) (citing Gross v. Owen, 221 F.2d 94, 95 (D.C. Cir. 1955)).




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       A.      Private-Interest Factors

       Although there are technically six private-interest factors, the Court combines them into

three categories for ease of analysis.

               1. Parties’ Choice of Forum

       Courts generally defer to plaintiffs’ choice of forum, see Thayer, 196 F. Supp. 2d at 31,

although that deference is not always warranted “where the plaintiff’s choice of forum has no

meaningful ties to the controversy,” and where transfer is sought “to [a] forum with which

plaintiffs have substantial ties and where the subject matter of the lawsuit is connected . . . .”

Trout Unlimited, 944 F. Supp. at 17 (citation and internal quotation marks omitted). Indeed,

when “the forum preferred by the plaintiff is not his home forum,” and the defendant prefers the

plaintiff’s home forum, then there is little reason to defer to the plaintiff’s preference. See

Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 52 (D.D.C. 2000); accord Oudes v. Block, 516 F.

Supp. 13, 14 (D.D.C. 1981) (finding “negligible or non-existent” inconvenience for plaintiff in

transferring case to plaintiff’s home forum).

       This is so in the present case. Like the individual Defendants, Plaintiffs are Maryland

residents, as are all potential witnesses. See Am. Compl., ¶¶ 5-13; Def. Reply at 5. Defendants’

preferred forum is thus also Plaintiffs’ home forum, which argues in favor of transfer. See 15

Charles Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 3849 (3d ed. 2007) (noting

the “strong inclination” of courts to favor transfer “when all of the parties are residents of the

proposed transferee district”).

               2. Whether the Claim Arose Elsewhere

       When evaluating a motion to transfer, the Court examines the nexus between the

underlying events from which a plaintiff’s claim arose and his choice of forum. Transfer is



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favored when “the material events that form the factual predicate of a plaintiff’s claim did not

occur in his chosen forum . . . .” Douglas v. Chariots for Hire, 918 F. Supp. 2d 24, 32 (D.D.C.

2013) (citation omitted). For § 1404 transfer analysis, “[c]ourts in this district have held that

claims ‘arise’ . . . in the location where the corporate decisions underlying those claims were

made, . . . or where most of the significant events giving rise to the claim occurred . . . .”

Treppel, 793 F. Supp. 2d at 436-37 (internal citation omitted).

       As noted above, Defendant companies are incorporated and headquartered in Maryland,

and Plaintiffs concede that this factor favors transfer to that district, noting that the employee-

payment decisions that form the basis of their claim were likely made by individual Defendants

there. See Opp. at 7. Defendants also conduct 90% of their business in Maryland, further

demonstrating that most of the significant events from which Plaintiffs’ claim arises likely

occurred there. This factor thus weighs in favor of transfer.

               3. Convenience of Parties, Convenience of Witnesses, and Ease of Access to
                  Sources of Proof

       To the extent the remaining factors weigh at all, they weigh slightly in favor of transfer.

As noted numerous times above, all parties to the case are Maryland residents. Although some

may reside closer to the District of Columbia than the federal courthouse in Baltimore, See Opp.

at 7, Plaintiffs have not demonstrated that the case would be assigned to that division upon

transfer to Maryland. If the case were assigned to the Greenbelt courthouse, moreover, it would

be closer to the residences of both Plaintiffs and Defendants than the federal courthouse in the

District of Columbia. See Rep. at 5. Transferring the case to Maryland is therefore more

convenient for everyone involved.

       Finally, questions of ease of access to sources of proof are negligible because the relevant

documents in the case – Defendants’ employee time-and-pay records and any documents


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prepared by Plaintiffs’ counsel – must be exchanged in the discovery process, regardless of

which district ultimately hears the case.

        Defendants have, accordingly, shown that the balance of private-interest factors weighs

in favor of transferring this case to Maryland.

        B.      Public-Interest Factors

                1. Transferee Court’s Familiarity with Governing Laws

        On the first public-interest factor, the Court assumes that federal courts in both the

District of Columbia and Maryland will be equally familiar with the FLSA statute. See Nat’l

Wildlife Fed’n v. Harvey, 437 F. Supp. 2d 42, 49 (D.D.C. 2006) (noting that where “both courts

are competent to interpret the federal statutes involved[,] . . . there is no reason to transfer or not

transfer based on this factor”). While Plaintiffs bring claims under the wage laws of both the

District of Columbia and Maryland, this Court has yet to determine which state laws apply in this

case. Given the proximity of the two jurisdictions, it is not unreasonable to assume that

Maryland courts will be familiar with District of Columbia law and vice versa. Since choice-of-

law analysis has not yet been completed, at this point the Court cannot conclude that the

familiarity factor favors or disfavors transfer.

                2. Relative Congestion of Courts

        Courts in this district have found that relevant docket congestion and potential speed of

resolution are factors that may favor transfer. See, e.g., Treppel, 793 F. Supp. 2d at 439;

Parkridge 6, LLC v. U.S. Dep’t of Trans., 772 F. Supp. 2d 5, 8-9 (D.D.C. 2009). Yet, neither

Plaintiffs nor Defendants argue that one jurisdiction’s courts are any more clogged than the

other’s. Indeed, Plaintiffs agree that “[b]oth proposed venues are ready and able to handle this

case.” Opp. at 8. This factor is a wash.



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               3. Local Interest in Controversies

       When a defendant has substantial business engagements in a particular district, that

district has a strong local interest in resolving that controversy. See Douglas, 918 F. Supp. 2d at

34. Although Defendants may have business engagements in both the District of Columbia and

Maryland, the vast majority of their activities occur in Maryland, suggesting that state has a

greater interest in resolving the controversy. This factor, if it leans at all, favors Maryland.

       In sum, Defendants have shown that the balance of public-interest factors favors, if only

slightly, transfer to Maryland. Yet, given the clear tipping of the scales on private interests, the

Court will transfer the case.

IV.    Conclusion

       Since Defendants have met their burden of demonstrating that the balance of both the

private- and public-interest factors collectively weighs in favor of transfer to Maryland, the Court

will grant Defendants’ Motion. A contemporaneous Order so stating will issue this day.




                                                       /s/ James E. Boasberg
                                                       JAMES E. BOASBERG
                                                       United States District Judge
Date: November 20, 2015




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