                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

MARCO AGUILAR,                                      :
                                                    :
        Plaintiff,                                  :       Civil Action No.:       17-728 (RC)
                                                    :
        v.                                          :       Re Document No.:        5
                                                    :
MICHAEL & SON SERVICES, INC.,                       :
                                                    :
        Defendant.                                  :

                                   MEMORANDUM OPINION

      GRANTING DEFENDANT’S M OTION TO DIS MIS S FOR IMPROPER VENUE OR, IN THE
     ALTERNATIVE, TO TRANS FER THIS M ATTER TO THE EAS TERN DIS TRICT OF VIRGINIA

                                       I. INTRODUCTION

        Plaintiff Marco Aguilar, individually and on behalf of others similarly situated, filed this

action against his former employer, Michael & Son Services, Inc. (“M&S”), seeking unpaid

overtime compensation under the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 216(b).

M&S moves to dismiss for improper venue or, alternatively, to transfer to the Eastern District of

Virginia, Norfolk Division. Mr. Aguilar argues that venue is proper in this District, but proposes

that if this Court finds otherwise, it should transfer this case to the Eastern District of Virginia,

Alexandria Division. Finding that considerations of convenience and justice favor transfer to the

Eastern District of Virginia, Norfolk Division, this Court grants M&S’s alternative motion to

transfer.


                                        II. BACKGROUND

        M&S—which is organized under Virginia law and headquartered in Alexandria,

Virginia—provides home improvement and repair services in Virginia, Maryland, and the
District of Columbia. Compl. ¶ 11, 13, ECF No. 1; Def.’s Mem. Supp. Mot. Dismiss (“M&S

Mem.”) at 2, ECF No. 5-1. Although it advertises to the “DC Metro Area” and has a District of

Columbia home improvement contractor license, M&S asserts that it conducts only

approximately 6–7% of its business in the District of Columbia. See Compl. ¶ 4, 53, 62; M&S

Mem. at 2; Schlekau Aff. ¶ 6, ECF No. 5-2.

       In October 2016, M&S hired Mr. Aguilar—a resident of Yorktown, Virginia—as a

heating, ventilation, and air conditioning (“HVAC”) technician. See Compl. ¶ 2; M&S Mem. at

2–3. Mr. Aguilar worked in this capacity out of M&S’s Norfolk, Virginia office until his

resignation in March 2017. M&S Mem. at 2. As part of his duties, he traveled to customers’

homes in a company vehicle to perform services and repairs. Id. During his tenure with M&S,

he serviced seventy-seven customers, all of whom were reportedly assigned to him by

supervisors and managers from M&S’s Norfolk office. Id. GPS records purportedly show that

Mr. Aguilar never worked outside of the area surrounding Norfolk, Virginia. See id.; Schlekau

Aff. ¶ 17. Additionally, according to M&S, Mr. Aguilar’s supervisors and the records pertaining

to his work history at M&S are all located in the Norfolk office. M&S Mem. at 3. Decisions

regarding payment of M&S employees, however, are made and processed in Alexandria,

Virginia. See Pl.’s Resp. Mot. Dismiss at 4, ECF No. 8.

       Mr. Aguilar alleges that he and other HVAC technicians sometimes worked more than

forty hours per week and that, per company policy, M&S did not compensate them for this

overtime work. Compl. ¶ 24–26. Mr. Aguilar commenced this action against M&S, seeking

unpaid overtime under the FLSA. See Compl. ¶ 26. Presently before the Court is M&S’s

motion to dismiss for improper venue or, in the alternative, to transfer this case to the Eastern

District of Virginia, Norfolk Division. See Def.’s Mot. Dismiss, ECF No. 5.
                                      III. LEGAL STANDARD

                            A. Motion to Dismiss for Improper Venue

        Federal Rule of Civil Procedure 12(b)(3) instructs a district court to dismiss or transfer a

case when venue is improper. Fed. R. Civ. P. 12(b)(3); see also 28 U.S.C. §1406(a) (“The

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.”). Venue is proper in a district where (1) a defendant resides,

if all defendants are residents of the State in which the district is located; (2) a substantial part of

the events giving rise to the claim occurred; or (3) if there is no district in which the action may

otherwise be brought, wherever the defendants are subject to personal jurisdiction. 28 U.S.C.

§1391(b). Generally, a defendant corporation is deemed a resident of “any judicial district in

which such defendant is subject to the court’s personal jurisdiction with respect to the civil

action in question.” Id. §1391(c)(2). But see id. §1391(d) (specifying district rules for residency

of corporations in States with multiple districts).

        “To prevail on a motion to dismiss for improper venue, . . . ‘the defendant must present

facts that will defeat the plaintiff’s assertion of venue.’” Ananiev v. Wells Fargo Bank, N.A., 968

F. Supp. 2d 123, 129 (D.D.C. 2013) (quoting Slaby v. Holder, 901 F. Supp. 2d 129, 132 (D.D.C.

2012)). The burden, however, remains on the plaintiff to prove that venue is proper when an

objection is raised, since “it is the plaintiff’s obligation to institute the action in a permissible

forum.” Williams v. GEICO Corp., 792 F. Supp. 2d 58, 62 (D.D.C. 2011). In determining

whether venue is proper, courts must accept the plaintiff’s well-pled allegations as true, resolve

any factual conflicts in the plaintiff’s favor, and draw all reasonable inferences in favor of the

plaintiff. Hunter v. Johanns, 517 F. Supp. 2d 340, 343 (D.D.C. 2007). However, “the court need
not accept the plaintiff’s legal conclusions as true.” Darby v. U.S. Dep’t of Energy, 231 F. Supp.

2d 274, 277 (D.D.C. 2002).

                          B. Motion to Transfer Pursuant to § 1404(a)

         Under 28 U.S.C. §1404(a), any civil action may be transferred to another district or

division “[f]or the convenience of parties and witnesses, in the interest of justice.” §1404(a).

Unlike Rule 12(b)(3) and §1406(a), which contemplate dismissal or transfer when venue is

improper, “§1404(a) does not condition transfer on the initial forum’s being ‘wrong.’” Atl.

Marine Constr. Co. v. U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct. 568, 579 (2013). Instead,

§1404(a) “is intended to place discretion in the district court 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)). If the district court finds transfer merited, it may send the case to any

district or division “where venue is also proper (i.e., ‘where [the case] might have been brought’)

or to any other district to which the parties have agreed.” Atl. Marine Constr. Co., 134 S. Ct. at

579 (alteration in original) (quoting 28 U.S.C. § 1404(a)). The burden is on the moving party to

establish that transfer is proper. SEC v. Savoy Indus., Inc., 587 F.2d 1149, 1154 (D.C. Cir.

1978).

         Resolving a motion for transfer under §1404(a) involves a two-step process. First, the

movant must show that the proposed transferee district is one where the plaintiff originally could

have brought the case. See Ctr. for Envtl. Sci. v. Nat’l Park Serv., 75 F. Supp. 3d 353, 356

(D.D.C. 2014). That is, a district where subject matter jurisdiction, personal jurisdiction, and

venue are proper. See Dean v. Eli Lilly & Co., 515 F. Supp. 2d 18, 21 (D.D.C. 2007). Second,

the movant must show 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). This inquiry

into whether considerations of convenience and the interest of justice weigh in favor of transfer

“‘calls on the district court to weigh in the balance a number of case-specific factors,’ related to

both the public and private interests at stake.” Douglas v. Chariots for Hire, 918 F. Supp. 2d 24,

31 (D.D.C. 2013) (quoting Stewart Org., 487 U.S. at 29).


                                          IV. ANALYSIS

       M&S moves to dismiss Mr. Aguilar’s complaint for improper venue pursuant to Rule

12(b)(3) of the Federal Rules of Civil Procedure. M&S Mem. at 3. In the alternative, M&S

requests that the Court transfer this case to the Eastern District of Virginia, Norfolk Division. Id.

Mr. Aguilar argues that venue is proper in this District, but proposes that if this Court finds

otherwise, it should transfer this case to the Eastern District of Virginia, Alexandria Division.

Pl.’s Opp. Mot. Dismiss at 4.

                          A. Motion to Dismiss for Improper Venue

       Focusing on the second of three alterative tests for venue, M&S first argues that venue is

improper under 28 U.S.C. §1391(a)(2) because Mr. Aguilar has not asserted facts to suggest that

a substantial part of the events or omissions giving rise to his claim occurred in the District of

Columbia. M&S Mem. at 4–6. The Court agrees that venue is improper under this subsection.

Mr. Aguilar’s claim stems from overtime work that he performed while employed by M&S. He

does not allege that any of this work took place in the District of Columbia. Nor does he dispute

M&S’s contentions that all of his tasks were assigned by supervisors from M&S’s Norfolk office

and that he never left the Norfolk, Virginia region while providing services for M&S. Mr.

Aguilar’s assertions that M&S advertises and conducts some of its business in the District of

Columbia are not sufficiently material to whether a substantial part of the events giving rise to
this particular claim occurred in the District. See Caluyo v. DaVita, Inc., 938 F. Supp. 2d 67, 71

(D.D.C. 2013) (finding that owning several dialysis centers in the District of Columbia and

advertising online to District of Columbia residents did not constitute a substantial part of the

events giving rise to a claim of negligence that arose from events at a dialysis center in

Arlington, Virginia). The second basis for venue under §1391 is therefore inapplicable. See

Fam v. Bank of Am. NA (USA), 236 F. Supp. 3d 397, 406 (D.D.C. 2017) (finding the second

basis for venue inapplicable in a home foreclosure case initially brought in the District of

Columbia because connections to that forum were minor while “the property in question [was]

located in Virginia, the loan rescission was recorded in Virginia, and cancelled foreclosure sales

of the plaintiff’s home [had] been in Virginia”).

       But the Court’s inquiry does not end there. Section 1391(a)(1) provides that venue is

proper in “a judicial district in which any defendant resides.” The provision further specifies that

in a single-district State—like this judicial district—a defendant corporation resides where the

corporation “is subject to the court’s personal jurisdiction with respect to the civil action in

question.” 28 U.S.C. §1391(c)(2). M&S has not raised any affirmative objections to personal

jurisdiction, and thus there is no basis for this Court to conclude that M&S does not reside in the

District of Columbia for venue purposes. Cf. Cooper v. Farmers New Century Ins. Co., 593 F.

Supp. 2d 14, 21 (D.D.C. 2008) (rejecting a defendant corporation’s motion to dismiss for

improper venue because the corporation had failed to affirmatively object to personal jurisdiction

and thus did not meet its burden of showing that it did not reside in the District of Columbia).

But see DSMC, Inc. v. Convera Corp., 273 F. Supp. 2d 14, 19 (D.D.C. 2002) (finding that failure
to contest personal jurisdiction does not mean that venue is conceded). 1 Accordingly, M&S has

not met its burden of showing that venue is improper under 28 U.S.C. §1391(a)(1).

                         B. Motion to Transfer Pursuant to § 1404(a)

       The Court next considers whether, even though M&S has not shown that venue is

improper in this judicial district, transfer is nonetheless warranted pursuant to §1404(a). Section

1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a

district court may transfer any civil action to any other district or division where it might have

been brought or to any district or division to which all parties have consented.” 28 U.S.C.

§1404(a). After evaluating whether the transferee district is one in which the action could have

originally been brought, the Court must then “‘weigh in the balance a number of case-specific

factors’ related to both the public and private interests” to determine whether transfer is

warranted. Chariots for Hire, 918 F. Supp. 2d at 31 (quoting Stewart Org., 487 U.S. at 29). The

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



       1   Of note, however, is that DSMC was decided before amendments to the venue statute.
Before 2011, a corporate defendant, if not in a multi-district State, was “deemed to reside in any
judicial district in which it is subject to personal jurisdiction at the time the action is
commenced.” 28 U.S.C. §1391(c) (2006) (amended 2011) (emphasis added). The Court in
DSMC reasoned that because the statute included “at the time the action commenced,” the Court
had to assess whether personal jurisdiction “was appropriate at the time the plaintiff filed the
lawsuit, not as of the time defendant failed to object to personal jurisdiction.” 273 F. Supp. 2d at
19. Therefore, the Court found that a defendant corporation could not be deemed to reside in a
State for venue purposes solely by failing to object to personal jurisdiction. Id.

         The Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63,
125 Stat. 758 (2011), removed the language “at the time the action commenced” from the
general, non-multi-district State, corporate residency provision, 28 U.S.C. §1391(c)(2). Given
this change in the statute, it appears that defendant corporations in single-district States must
contest personal jurisdiction in order to dispute residency under 28 U.S.C. §1391(b)(1). Other
district courts in single-district States have come to this same conclusion. See, e.g., Dakota
Provisions, LLC v. Hillshire Brands Co., 226 F. Supp. 3d 945, 960 (D.S.D. 2016); Colombo
Candy & Tobacco Wholesale Co. v. Ameristar Casino Council Bluffs, Inc., 972 F. Supp. 2d
1103, 1107 (D. Neb. 2013).
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. Trout Unlimited v.

U.S. Dep’t of Agric., 944 F. Supp. 13, 16 (D.D.C. 1996). The public-interest factors include: (1)

the transferee forum’s familiarity with the governing laws; (2) the congestion of the transferee

court compared to the transferor court; and (3) the local interest in having local controversies

decided in the home forum. Id.

   i.      Convenience and Fairness Favor Transfer to the Eastern District of Virginia

        The parties effectively concede that this case could have been brought in the Eastern

District of Virginia. See M&S Mem. at 1 (requesting transfer to the “Eastern District of

Virginia, . . . where venue is proper.”); Pl.’s Opp. Mot. Dismiss at 4 (requesting transfer to the

Eastern District of Virginia if this Court finds venue inappropriate in the District of Columbia).

They dispute only to which division within that judicial district the Court should transfer this

case. Both parties reside in the Eastern District of Virginia. Both parties assert that at least some

of the events giving rise to this case happened in that district. And it appears that there are no

defects in subject matter jurisdiction and personal jurisdiction in the Eastern District of Virginia.

Accordingly, the Court agrees that the Eastern District of Virginia is a proper venue for this case.

        The Court next considers whether the balancing of the relevant factors counsels in favor

of transfer to the Eastern District of Virginia—the forum preferred by the defendant in this

matter. Generally, a plaintiff’s choice of forum is a “paramount consideration” in determining a

transfer request. Thayer/Patricof Educ. Funding, LLC v. Pryor Res., 196 F. Supp. 2d 21, 31

(D.D.C. 2002) (quoting Sheraton Operating Corp. v. Just Corporate Travel, 984 F. Supp. 22, 25

(D.D.C. 1997)). That deference is substantially weakened, however, when the action is not

brought in the plaintiff’s home forum. See Blackhawk Consulting, LLC v. Fed. Nat’l Mortg.
Ass’n, 975 F. Supp. 2d 57, 61 (D.D.C. 2013) (finding deference given to plaintiff limited liability

company’s choice of forum weakened because it was organized under the laws of another State

and did not maintain any permanent offices in the chosen forum). In addition, the deference

owed a plaintiff’s chosen forum is lessened even further when the chosen forum has “no

meaningful ties to the controversy” and the proposed transferee forum has “substantial ties” to

the controversy. Trout Unlimited, 944 F. Supp. at 17.

       Here, Mr. Aguilar is a resident of Virginia but has chosen the District of Columbia as his

choice of forum. By contrast, M&S’s chosen forum—the Eastern District of Virginia—is the

home forum for Mr. Aguilar. See M&S Mem. at 3. Furthermore, although M&S does some

business in the District of Columbia, Mr. Aguilar never performed any work for M&S outside of

the Eastern District of Virginia, and all decisions about his compensation were made and

processed in the Eastern District of Virginia. See M&S Mem. at 2–3. Therefore, the controversy

over Mr. Aguilar’s unpaid overtime compensation has substantial ties to the Eastern District of

Virginia—M&S’s chosen forum—and has no meaningful ties to the District of Columbia.

Accordingly, Mr. Aguilar’s chosen forum is entitled to little deference.

       In evaluating the next consideration—where the claims arose—courts in this district

examine “where most of the significant events giving rise to the claims occurred.” Treppel v.

Reason, 793 F. Supp. 2d 429, 434 (D.D.C. 2011). Here, the only relationship this suit has with

the District of Columbia is that M&S does a small portion of its business in the District of

Columbia. See M&S Mem. at 2. By contrast, as noted above, Mr. Aguilar never performed any

work for M&S outside of Eastern District of Virginia, his tasks were assigned by supervisors in

the Eastern District of Virginia, and all decisions made about his compensation were made and

processed in the Eastern District of Virginia. See M&S Mem. at 2–3. Therefore, because the
significant events giving rise to the claim occurred in the Eastern District of Virginia, the third

factor weighs heavily in favor of transfer.

       The three remaining private-interest factors—the convenience of parties, witnesses, and

ease of access to sources of proof—weigh slightly in favor of transfer to the Eastern District of

Virginia. Many of the likely witnesses—including Mr. Aguilar’s supervisors, who work in the

Norfolk office—and records pertaining to Mr. Aguilar’s work are located in the Eastern District

of Virginia. Indeed, Mr. Aguilar himself lives in the Eastern District of Virginia. And while

parts of the Eastern District of Virginia neighbor this judicial district, most sources of proof in

this case can be found in Norfolk, Virginia, which is approximately 200 miles from the District

of Columbia. See LaFleur v. Dollar Tree Stores, Inc., 189 F. Supp. 3d 588, 598 (E.D. Va. 2016)

(noting that the Norfolk Division is 200 miles from the District of Columbia metropolitan area).

The Court recognizes, though, that the District of Columbia’s relative proximity to the Eastern

District of Virginia and advances in technology may minimize potential inconveniences to the

parties and may reduce the significance of the ease-of-access-to-proof factor. Accordingly, the

Court will not give this factor overwhelming weight. Cf. In re Volkswagen of Am., Inc., 545 F.3d

304, 317 (5th Cir. 2008) (en banc) (finding that the 150 miles the witnesses would have to travel

from the Northern District of Texas, Dallas Division to the Eastern District of Texas, Marshall

Division was a sufficient inconvenience to weigh in favor of transfer). 2

       Turning to the public-interest factors, the Court finds that the first (familiarity with the

governing law) and second (congestion of the court) factors are neutral. The transferee forum’s




       2   Mr. Aguilar’s statement that he expects to move to New York prior to the conclusion of
this case, see Pl.’s Opp. Mot. Dismiss at 4, does not significantly alter the analysis. It is not
apparent why, in the event he moves to New York, either of the forums discussed might become
more or less convenient than the other.
familiarity with the governing law—here, the Fair Labor Standards Act—is neutral because

“where the heart of the case involves violation of federal law, this factor is less significant.”

Chariots for Hire, 918 F. Supp. 2d at 33. This is so because federal courts are all equally

familiar with issues of federal law. See Oceana v. Bureau of Ocean Energy, 962 F. Supp. 2d 70,

78 (D.D.C. 2013). The second factor is similarly neutral because there is no evidence in the

record to support a finding, one way or the other, that transfer would result in a faster or slower

resolution of the case. See Montgomery v. STG Int’l, Inc., 532 F. Supp. 2d 29, 34 (D.D.C. 2008)

(stating that because the defendant presented no evidence to support a finding that resolution of

the case would be faster in one district than another, the congestion factor is neutral);

Shenandoah Assoc. Ltd. P’ship v. Tirana, 182 F. Supp. 2d 14, 26 (D.D.C. 2001) (finding

unpersuasive the argument that one court is more meaningfully congested than the other absent

evidence).

        The third public-interest factor (the interest in deciding local controversies at home)

favors transfer to the Eastern District of Virginia. In evaluating this factor, courts in this

jurisdiction look at where the claim arose and where a “clear majority of the operative events

took place.” Maysaroh v. Am. Arab Commc’ns & Translation Ctr., LLC, 51 F. Supp. 3d 88, 97

(D.D.C. 2014) (quoting Treppel, 793 F. Supp. at 439–40). As previously discussed, Mr. Aguilar

never left the Eastern District of Virginia for his work with M&S, his supervisors and records

were all located in the Eastern District of Virginia, and the pay policy decisions were made at

M&S headquarters in the Eastern District of Virginia. Therefore, the Eastern District of Virginia

has a strong interest in deciding this controversy. In sum, six of the nine private- and public-

interest factors weigh in favor of transfer from the District of Columbia to the Eastern District of

Virginia.
 ii.     The Norfolk Division is a More Convenient Forum than the Alexandria Division

       The Court next considers to which division within the Eastern District of Virginia it

should transfer this action. Mr. Aguilar proposes that, if this Court finds venue improper or

inconvenient in the District of Columbia, it should transfer this case to the Eastern District of

Virginia, Alexandria Division. Pl.’s Opp. Mot. Dismiss. at 4. M&S, on the other hand, asks the

Court to transfer the case to the Eastern District of Virginia, Norfolk Division. Where, as here,

both parties seek to transfer a case, “each party bears the burden of establishing that the relevant

factors favor transfer to their chosen district.” Est. of Matthews v. Novartis Pharm. Corp., 77 F.

Supp. 3d 1, 4 (D.D.C. 2014); see also Weiner v. Novartis Pharm. Corp., 991 F. Supp. 2d 217,

220 (D.D.C. 2013) (assessing plaintiff’s transfer request under 28 U.S.C. §1404(a) and noting

that the “moving party bears the initial burden of establishing that transfer is proper”);

Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F. Supp. 2d 1, 12 (D.D.C. 2009)

(denying plaintiff’s motion to transfer because the plaintiff did not allege facts sufficient to

support jurisdiction over the defendant in the transferee forum).

       The Court has already thoroughly discussed M&S’s arguments and evidence for why

Norfolk is a convenient forum for this action. This claim arose from events that happened in

Norfolk, Virginia (which is where all tasks were assigned to Mr. Aguilar and where he

performed all of his worked-related duties); the parties, witnesses, and most of the relevant

evidence is located in Norfolk, Virginia; and the Norfolk Division has an interest in deciding the

case since the claim arose within that division. M&S has supported its request for transfer to the

Norfolk Division.

       By contrast, Mr. Aguilar’s entire argument in support of transfer to the Alexandria

Division is that “the pay policy decision was made in Alexandria, payroll utilized an Alexandria
address and the named Plaintiff is expected to move to New York prior to the conclusion of this

case.” Pl.’s Opp. Mot. Dismiss at 4. He does not address why these factors are important or

whether they outweigh the factors in favor of transfer to the Norfolk Division. See id.

Moreover, it is unclear how Mr. Aguilar’s plans to move to New York weigh in favor of transfer

to the Alexandria Division. It appears that the only connection Alexandria has with the case is

that M&S headquarters are located there. See M&S Mem. at 2. Given the substantial support for

M&S’s transfer request and the relative lack of support for Mr. Aguilar’s, the Court will grant

M&S’s alterative motion and transfer this case to the Eastern District of Virginia, Norfolk

Division.


                                       V. CONCLUSION

       For the foregoing reasons, the Court grants Defendant’s motion to transfer this case to the

United States District Court for the Eastern District of Virginia, Norfolk Division pursuant to 28

U.S.C. §1404(a). An order consistent with this Memorandum Opinion is separately and

contemporaneously issued.




Dated: November 9, 2017                                           RUDOLPH CONTRERAS
                                                                  United States District Judge
