                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA



KAL ROSS, et al.,

        Plaintiffs,
                 v.                                          Civil Action No. 14-1360 (JEB)
VERNON DAVIS, et al.,

        Defendants.


                                   MEMORANDUM OPINION

        Although Defendant Vernon Davis has forged a successful career as an all-pro tight end

for the San Francisco 49ers, he has not been able to elude the grasp of Plaintiffs Kal Ross and his

eponymous sports agency. Plaintiffs filed the instant Complaint in the Superior Court of the

District of Columbia on July 15, 2014, alleging breach of contract by Davis and his financial

advisor, co-Defendant Amadou Tall. Ross asserts that he and Davis entered into an agreement

pursuant to which Ross, for a 15% cut, would have the exclusive right to negotiate an advertising

and promotion deal between Davis and Jamba Juice, a popular restaurant retailer. Ross claims

that after he negotiated a preliminary arrangement with Jamba Juice, Tall stepped in and usurped the

deal, depriving Ross of his percentage. Plaintiffs seek to recover compensatory and punitive

damages in an amount in excess of $250,000. Noting the amount in controversy and the complete

diversity of citizenship among the parties, Davis removed the case to this court pursuant to 28

U.S.C. § 1332.

        This is not the first time Plaintiffs have brought these claims against these Defendants. On

the contrary, they filed a substantively identical suit in the Northern District of California in March

2013. Only after several months of litigation, and after Defendants filed two dispositive motions, did


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Plaintiffs voluntarily dismiss the action and re-file it in the District of Columbia. Noting the costs

that such maneuvers impose, as well as the contradictions apparent on the face of Plaintiffs’

various pleadings, Defendant Davis now seeks transfer of this case to the Northern District of

California. As the Court agrees that such transfer is in the interest of justice, it will grant his

Motion.

I.      Background

        The following factual account is derived, in the main, from the Complaint that Plaintiffs

Ross and his agency filed in the Superior Court of the District of Columbia, which now, post-

removal, serves as the basis for this suit. Where relevant, certain filings from Plaintiffs’ prior

lawsuit in the Northern District of California are also cited.

        Plaintiff The Kal Ross Agency is a limited liability company organized under the laws of

the District of Columbia that characterizes itself as an “Agent and Manager for Artists, Athletes,

Entertainers, and Other Public Figures.” D.C. Compl., ¶ 2. Plaintiff Ross, a resident of the

District of Columbia, is the Agency’s sole member. See id., ¶ 3. Defendant Davis plays football

for the San Francisco 49ers, a National Football League franchise. See id., ¶ 4. Defendant Tall,

an employee of Invictus Executive Management Services, LLC, is Davis’s current financial

advisor. See id., ¶ 5. Both are residents of California. See id., ¶¶ 4, 5.

        According to Plaintiffs, Ross and Davis conversed on numerous occasions in October

2011 via both telephone and e-mail. See id., ¶ 6. Those conversations eventually resulted in

Ross’s “offering his services in negotiating advertising and promotion deals for Davis,

particularly with the Jamba Juice Company,” a restaurant chain incorporated and headquartered

in California.   See id. Plaintiffs claim that, with Davis’s knowledge, Ross entered into “a 50/50




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partnership” with a “Marketing Agent,” Andrew Stroth, for the “sole purpose of identifying,

vetting and negotiating advertising and promotion deals for Davis.” Id., ¶¶ 7, 10.

        Ross and Stroth proceeded to make contact with Jamba Juice via its representative in the

District of Columbia, Jarvis Stewart. See id., ¶ 11. “After multiple discussions and

negotiation[s] in Washington, D.C.[,] between . . . Ross, Stroth, and Stewart, . . . Ross and Stroth

informed Davis that an advertising and promotion deal for him with Jamba Juice looked

promising.” Id. As a result, on February 6, 2012, Ross “executed an agreement between himself

and Davis to provide Ross the exclusive right to negotiate a business deal with Davis and Jamba

Juice.” Id., ¶ 14; Exh. 1 (Contract between Ross and Davis). As consideration for his services,

Ross would cull 15% “of any and all compensation received by Davis as a result of the deal.” Id.

        Over the next several months, Ross and Stroth, acting pursuant to the purported contract,

“continued and intensified” their negotiations with Stewart in the District. Id., ¶ 17. Those

negotiations “culminat[ed]” in their arrangement of face-to-face meetings among Davis, the CEO

of Jamba Juice, and the Vice President of Jamba Juice. See id., ¶ 20. Defendant Tall was also

present at those meetings. See id.

        Plaintiffs claim that shortly after these meetings, Tall orchestrated Ross’s removal from

the role of “exclusive negotiator[] of the marketing and promotion deal with Jamba Juice” and

further instructed Jamba Juice to “cease all contact” with Ross and Stroth. See id., ¶ 23. Several

months after that termination, Plaintiffs became aware – from a Jamba Juice press release – that

Davis had independently entered into an advertising and promotion agreement with Jamba Juice.

See id., ¶ 25.

        Motivated by the belief that Defendants had capitalized on Ross’s earlier efforts while

robbing him of the profits, Plaintiffs sought compensation from Davis for the services rendered



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in connection with the Jamba Juice deal. See id., ¶ 26. When Davis refused, Plaintiffs filed suit

in the Northern District of California, alleging breach of contract, tortious interference with

contract, and breach of the covenant of good faith and fair dealing. See Ross v. Davis, No. 13-

1380 (N.D. Cal.), ECF No. 1 (Initial California Complaint). On August 6, 2013, responding to a

motion to dismiss, the court there dismissed Plaintiffs’ complaint as barred under California law,

but granted leave to amend. See id., ECF No. 23. Taking the court up on its offer, Plaintiffs

filed an amended complaint on August 20, 2013. See id., ECF No. 26 (Amended California

Complaint). Defendants again moved to dismiss, arguing that California law still barred

Plaintiffs’ claims. See id., ECF No. 27. On September 23, 2013, before the court had an

opportunity to rule on this second motion, Plaintiffs voluntarily dismissed the suit pursuant to

Federal Rule of Civil Procedure 41(a)(1). See id., ECF No. 29. The game, however, was far

from over.

           Approximately ten months later, on July 15, 2014, Plaintiffs Ross and his agency filed a

nearly identical complaint in the Superior Court of the District of Columbia. Defendant Davis

removed the action to this Court, asserting diversity of citizenship as the basis for removal. See

Ross v. Davis, No. 14-1360 (D.D.C.), ECF No. 1.1 He now moves to dismiss under Rule

12(b)(6) for failure to state a claim. In so doing, he argues that this Court should apply

California law to the alleged transaction between Plaintiffs and Davis, and that Ross’s failure to

register as an athlete agent in California in accordance with that state’s law, see Miller-Ayala

Athlete Agents Act, Cal. B. & P. Code §§ 18895-97 (West Supp. 1997), expressly prohibits

Plaintiffs’ recovery in this action. In the alternative, Davis asserts that this Court should transfer

the suit back to the Northern District of California. Because the Court agrees that a venue



1
    It appears that Plaintiffs have yet to serve process on Defendant Tall. See MTD at 2.

                                                           4
transfer is appropriate, it need not delve into the choice-of-law quagmire presented by

Defendant’s first contention.

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). Motions for improper venue are governed by

Federal Rule of Civil Procedure 12(b)(3). Although Defendant failed to cite this specific rule,

his request for transfer of venue is crystal clear, see Opp. at 1, 7, 11, and the Court will not

penalize him for his omission.

        In considering a motion for improper venue, 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.”

Pendleton v. Mukasey, 552 F. Supp. 2d 14, 17 (D.D.C. 2008) (citing Darby v. U.S. Dep’t of

Energy, 231 F. Supp. 2d 274, 276 (D.D.C. 2002)). The Court need not, however, accept the

plaintiff’s legal conclusions as true, see Darby, 231 F. Supp. 2d at 277, and may consider

material outside of the pleadings. See 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 15 Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 3826, at 258 (2d ed. 1986 & Supp. 2006). 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



                                                    5
(D.D.C. 2009). Unless there are “pertinent factual disputes to resolve, a challenge to venue

presents a pure question of law.” Williams v. GEICO Corp., 2011 WL 2441306, at *2 (D.D.C.

June 20, 2011).

        Even if a plaintiff has brought his case in a proper venue, a district court may, “[f]or the

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

district or division where [the case] might have been brought.” 28 U.S.C. § 1404(a). District

courts have “discretion . . . to adjudicate [such] 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)).

To warrant transfer under § 1404(a), 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).

III.    Analysis

        Davis does not clarify whether his request to transfer this suit to the Northern District of

California is premised on § 1406 or § 1404. As noted above, the former statute authorizes

transfer of a case when the plaintiff’s initially selected venue is improper, while the latter permits

transfer even if the original forum is appropriate. The Court will analyze each section in turn,

ultimately concluding that certain ambiguities in Plaintiffs’ various pleadings make it difficult to

determine whether or not the District of Columbia – their chosen forum – is a proper venue for

their suit. As the Court believes that transfer to the Northern District of California is warranted

regardless of whether venue is also appropriate here, it will rely on § 1404 rather than § 1406 in

sending the case back to the Bay Area.




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       A. Section 1406

       Under 28 U.S.C. § 1391(b), venue in a diversity case such as this one will generally lie

either in a district where one of the defendants resides – if all defendants are residents of the

same state – or where a substantial part of the events giving rise to the claim occurred. See 28

U.S.C. § 1391(b)(1)-(2). Here, because both Defendants live in California, see D.C. Compl., ¶¶

4-5, the propriety of venue in the District of Columbia turns on whether Plaintiffs have

established a sufficient connection between this forum and their suit. As a court in this district

has noted,

               Nothing in section 1391(b)(2) mandates that a plaintiff bring suit in
               the district where the most substantial portion of the relevant
               events occurred, nor does it require a plaintiff to establish that
               every event that supports an element of a claim occurred in the
               district where venue is sought. To the contrary, a plaintiff need
               only show that “a substantial part of the events or omissions giving
               rise to the claim occurred” in that district. 28 U.S.C. § 1391(b)(2)
               (emphasis supplied).

Modaressi v. Vedadi, 441 F. Supp. 2d 51, 57 (D.D.C. 2006). The question of whether Plaintiffs

have carried that burden is complicated by their ill-pled and inconsistent allegations.

       In their Opposition, Plaintiffs assert that the contract between Ross and Davis was

“negotiated, signed, and substantially performed” in the District. Opp. at 8. Had those factual

allegations been adequately pled in Plaintiffs’ Complaint – the operative document for purposes

of establishing venue – the Court would take no issue with the District as a proper forum.

Muddying the waters, however, is the fact that the Complaint does not actually specify exactly

where the contract was negotiated or signed, and it is “axiomatic” that a plaintiff “may not

amend [his] complaint through facts first alleged in an opposition brief.” Miles v. Univ. of the

District of Columbia, 2013 WL 5817657, at *9 n.4 (D.D.C. Oct. 30, 2013). The only events that

Plaintiffs’ Complaint specifically moors to the District – namely, some discussions between Ross

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and Stewart, Jamba Juice’s D.C. representative, see D.C. Compl., ¶¶ 11, 17 – relate to

performance of the contract alone. The Court is uncertain whether such limited contacts with the

District suffice to establish the propriety of venue here, particularly given that Plaintiffs readily

admit that face-to-face meetings among Jamba Juice executives, Ross, and Davis, which took

place in California, constituted the “culmination of their efforts” to perform the contract.

Compl., ¶ 20; Opp. at 8.

       Even if the Court were to read Plaintiffs’ D.C. Complaint and Opposition in tandem, it

cannot turn a blind eye to statements made by Plaintiffs in the prior proceedings in the Northern

District of California. In both their initial and amended complaints there, Plaintiffs made the

following allegations:

               6. Venue in this district is proper pursuant to 28 U.S.C. §1391
               because a substantial part of the events on which the claim is based
               occurred in the Northern District of California.

                               INTRADISTRICT ASSIGNMENT

               7. This lawsuit should be assigned to the San Francisco/Oakland
               Division of this Court because the principal defendant resides in
               San Francisco County, California, the contract alleged in this
               complaint was formed in San Francisco County, California and
               substantially all the conduct of the parties alleged in this complaint
               occurred in San Francisco County, California and Alameda
               County, California.

Initial CA Compl., ¶¶ 6-7 (emphasis added); Amended CA Compl., ¶¶ 6-7 (emphasis added).

       Plaintiffs urge the Court to disregard their prior pleadings and the statements contained

therein. This it cannot do. As a general matter, courts “may take judicial notice of public

records from other proceedings.” Hemphill v. Kimberly-Clark Corp., 605 F. Supp. 2d 183, 186

(D.D.C. 2009) (citing Covad Comms. Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir.

2005)). Here, where Defendant asks the Court to note Plaintiffs’ own pleadings from a prior



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judicial proceeding centered on the same set of operative facts, the Court would be remiss to

permit Plaintiffs to disavow their prior statements. See Jankovic v. Int’l Crisis Grp., 494 F.3d

1080, 1088 (D.C. Cir. 2007) (“[The plaintiff] opposes consideration of what he himself filed in

[a separate action]. However, such materials may properly be considered on a motion to

dismiss.”).

       At first glance, Plaintiffs’ California pleadings appear to flatly contradict their

representations in this court. Compare, e.g., Initial CA Compl., ¶ 7 (alleging that contract was

“formed” in California) and Amended CA Compl., ¶ 7 (same), with Opp. at 8 (stating that

contract was “negotiated” and “signed” in the District). Notwithstanding this facial tension, the

Court recognizes that Plaintiffs’ pleadings may be inartfully phrased yet still reflective of certain

underlying truths. It is perhaps the case that the contract was negotiated and signed bi-coastally

– that Ross negotiated with Davis and signed the contract from his place of residence, the

District of Columbia, and that Davis negotiated with Ross and signed the contract from his place

of residence, San Francisco. See D.C. Compl, ¶¶ 6, 13 (referring to negotiations via telephone

and e-mail); id., ¶ 16 (stating that the contract was transmitted via e-mail). If this hypothesized

series of events indeed reflects what actually occurred, then venue in the District of Columbia

may well be proper.

       In any event, the Court need not decide whether to rely on such guesswork here.

Regardless of whether venue in the District is proper, the Court believes that transfer of this case

to the Northern District of California pursuant to the Court’s discretionary authority under §

1404 is warranted.

       B. Section 1404




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       As an initial matter, to demonstrate eligibility for transfer under § 1404(a), a movant must

show that the plaintiff could have originally brought the case in the transferee district. See

Treppel v. Reason, 793 F. Supp. 2d 429, 435 (D.D.C. 2011). The movant must then 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). This second inquiry “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. Stewart Org., 487 U.S. at 29. The burden is on the moving

party to establish that transfer is proper. See Trout Unlimited v. U.S. Dep’t of Agric., 944 F.

Supp. 13, 16 (D.D.C. 1996).

       Defendant handily satisfies § 1404(a)’s threshold requirement. Not only could this case

have been brought in the Northern District of California, it was in fact previously filed and

litigated there. In addition, both Defendants are from California, and Davis resides in San

Francisco, making venue proper in the Northern District of California under 28 U.S.C. §

1391(b)(1). See id. (“A civil action may be brought in . . . a judicial district in which any

defendant resides, if all defendants are residents of the State in which the district is located.”).

And, of course, the Court notes Plaintiffs’ own prior statements from their California pleadings

asserting the propriety of venue in the Northern District under 28 U.S.C. § 1391(b)(2). To

repeat, Plaintiffs alleged that “a substantial part of the events on which the claim is based

occurred” there, that the disputed contract “was formed” there, and that “substantially all the

conduct of the parties alleged in this complaint occurred in . . . California.” Initial CA Compl.,

¶¶ 6-7; Amended CA Compl., ¶¶ 6-7.

       Having cleared this preliminary hurdle, the Court must next determine whether the

interests of justice and convenience warrant transfer. In such a consideration, a court ordinarily



                                                  10
balances the following private-interest factors: (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

Trout Unlimited, 944 F. Supp. at 16. A court may also weigh public-interest considerations such

as (1) the transferee’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. Ultimately, however, “[t]he decision whether or not to

transfer the case to another judicial district pursuant to 28 U.S.C. § 1404(a) is discretionary.” In

re DRC, Inc., 358 Fed. App’x 193, 194 (D.C. Cir. 2009). Therefore, “the proper technique to be

employed is a factually analytical, case-by-case determination of convenience and fairness.”

SEC v. Savoy Indust., 587 F.2d 1149, 1154 (D.C. Cir. 1978); see also Stewart, 487 U.S. at 29

(noting that courts “adjudicate motions for transfer according to an individual case-by-case

consideration of convenience and fairness”) (internal quotation marks omitted).

       In this case, neither the private-interest nor public-interest factors tip the scales decisively

in favor of either venue. Considering the first and second private-interest factors, Plaintiffs

clearly prefer the District of Columbia, and Defendant Davis just as clearly desires the Northern

District of California. Normally, where parties disagree, the plaintiff’s chosen forum is entitled

to deference. See Thayer/Patricof Educ. Funding, LLC v. Pryor Res., 196 F. Supp. 2d 21, 31

(D.D.C. 2002) (plaintiff’s choice of forum is a “paramount consideration in any determination of

a transfer request”). Here, however, where Plaintiffs originally filed the suit elsewhere, and

Defendant seeks merely to return the case to that jurisdiction, the Court is less inclined to give

deference to Plaintiffs’ flavor-of-the-month preference.




                                                 11
       Where Plaintiffs’ claim arose – the third factor – is a matter of dispute. If, as the most

generous reconciliation of the three complaints suggests, see supra Part III.A, some of the

underlying developments giving rise to the instant dispute occurred in both the District and

California, this factor does little to move the needle in either direction. See Bederson v. United

States, 756 F. Supp. 2d 38, 48 (D.D.C. 2010) (where claim arises from actions in several fora,

“this factor does not weigh in favor or against transfer”). The convenience of the parties

likewise splits down the middle, and, assuming that relevant events occurred in both locales, so

does the convenience of the witnesses and ease of access to sources of proof. See id.

       Turning to the first public-interest consideration – the transferee’s familiarity with the

governing laws – the parties spill much ink on the question of whether D.C. or California law

governs this suit. Although it is often the case that the interest of justice is “served by having a

case decided by the federal court in the state whose laws govern the interests at stake,” Trout

Unlimited, 944 F. Supp. at 19, and thus the outcome of a choice-of-law analysis can potentially

affect questions of venue, the present suit deals with basic principles of contract interpretation

and the application of straightforward state law governing athlete agents. The Court is confident

that either venue could readily and competently adjudicate this non-technical dispute, regardless

of which state’s law applies.

       With regard to the relative congestion of the courts, the parties have not briefed this issue,

but given that courts in both districts have now engaged with the issues presented by this dispute

in a reasonably timely fashion, it appears that this factor does not favor either venue. Finally, the

interest in having local controversies decided locally does little to tilt the balance here, where the

controversy cannot be deemed purely “local” to either jurisdiction: California’s interest in

resolving its athletes’ claims there is largely “neutralize[d]” by the District’s analogous interest



                                                  12
in resolving its agents’ claims here. See Douglas v. Chariots for Hire, 918 F. Supp. 2d 24, 34

(D.D.C. 2013).

        Application of the conventional factors, then, might leave the Court in equipoise, or

nearly so. But § 1404(a) inquiries are case specific, and this case arises in a highly unusual

posture. The forum to which Defendant seeks transfer – the Northern District of California – is

not foreign to Plaintiffs; on the contrary, they initially filed suit against Defendants in that

district. That suit, which involved the same operative set of facts and issues, imposed

considerable costs on Defendants and consumed significant judicial resources. Although

Plaintiffs point out that they voluntarily dismissed their California suit, see Opp. at 3, they did so

only after: (1) Defendants had filed a Rule 12(b)(6) motion in response to Plaintiffs’ initial

complaint; (2) the court had granted the motion and dismissed the case without prejudice; and (3)

Defendants had filed a second Rule 12(b)(6) motion in response to Plaintiffs’ subsequent

amended complaint, again explaining that California law barred the suit. The underlying

purpose of § 1404(a) is “to prevent the waste of time, energy[,] and money and to protect

litigants, witnesses and the public against unnecessary inconvenience and expense.” Van Dusen

v. Barrack, 376 U.S. 612, 616 (1964) (internal quotation marks omitted). That objective would

be gravely undermined if Plaintiffs were permitted to voluntarily dismiss after extensive

litigation in one forum simply to bring identical claims in a potentially more favorable locale.

        The Court also notes that although the sundry assertions made by Plaintiffs regarding

venue may be somewhat reconcilable – that is, their suit may have a substantial nexus to both the

District of Columbia and the Northern District of California – the manner in which they phrased

their venue allegations here remains misleading at best and disingenuous at worst. Under such

circumstances, the Court believes it just to hold Plaintiffs to the representations in their first suit



                                                  13
establishing the propriety of venue in the Northern District of California and to return the suit to

that district. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 30 (1988) (the “interest of

justice” encompasses the dual principles of “systemic integrity and fairness”).

IV.    Conclusion

       For the foregoing reasons, the Court will issue a contemporaneous Order transferring the

case to the Northern District of California.

                                                      /s/ James E. Boasberg
                                                      JAMES E. BOASBERG
                                                      United States District Judge

Date: November 21, 2014




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