UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA F I L E D
) SEP - 9 2011
JIMMY LANCE, ) clerk, u.s. nismcr & Bankruptcy
) C0urts for the District of Co|umbia
Plaintiff, )
)
v. ) Civil Action No. l0-l950 (RJL)
)
MICHAEL P. WILSON, )
)
Defendant. )
)

MEMoRAN UMoP1N1oN
(s@premb@r g_, 2011) [Dkr. #4]

This matter is before the Court on defendant Michael P. Wilson’s motion to dismiss. For

the reasons discussed below, the motion will be granted and this action will be dismissed.
I. BACKGROUND

lt appears that William Tate terminated plaintiffs employment at the direction of
defendant, see Compl. 111 3-4, whom plaintiff describes as "the owner of several enterprise
barber/salon services under the laws of Federal Government and having a main office at
Hardinsburg, Kentucky." Notice of Opposition to Defendant[’]s Motion Requesting Dismiss[al]
of Plaintiff’s Complaint ("Pl.’s Opp’n") at 2 (emphasis removed). According to plaintiff,
defendant is responsible for providing "bad references" which prevented plaintiff from securing
employment for the period from July l2, 2009 through December l7, 2009, Compl. 11 5, and thus
has violated 42 U.S.C. §§ 2000e-2 and 2000@-3, id. 11 6. Plaintiff demands judgment in his favor

and an award of $50,000 plus interest and costs. Id. The Court presumes that plaintiff brings

this action under Title VII of the Civil Rights Act of 1964, as amended, see 42 U.S.C. § 2000e et
seq. ("Title VII").
II. DISCUSSION
A. Personal Jurisdz'ctz`on
Defendant moves to dismiss the complaint under Rule l2(b)(2) of the Federal Rules of

Civil Procedure on the ground that this Court cannot exercise personal jurisdiction over him.
Memorandum of Law in Support of Defendant’s Motion to Dismiss Plaintiff`s Complaint
("Def.’s Mem.") at l-2.

Defendant represents that he "resides in Kentucky," Def.’s Mem. at l, and plaintiff
acknowledges that defendant’s main office is in Kentucky. Pl.’s Opp’n at 2. Defendant, then, is
not "a person domiciled in, organized under the laws of, or maintaining [a] principal place of
business in, the District of Columbia" over whom this Court may exercise jurisdiction. D.C.
CODE § 13-422. ln order to determine whether the Court may exercise personal jurisdiction over
this non-resident defendant, the analysis begins by referencing the law of the District of
Columbia, Unz`tea’ States v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995), specifically its long-arm
statute which in relevant part provides:

A District of Columbia court may exercise personal jurisdiction over
a person, who acts directly or by an agent, as to a claim for relief
arising from the person’s -

(l) transacting any business in the District of Columbia;

(2) contracting to supply services in the District of Columbia;

(3) causing tortious injury in the District of Columbia by an act or
omission in the District of Columbia; [or]

(4) causing tortious injury in the District of Columbia by an act or

omission outside the District of Columbia if he regularly does or
solicits business, engages in any other persistent course of conduct,

or derives substantial revenue from goods used or consumed, or
services rendered, in the District of Columbia[.]

D.C. CODE § l3-423(a). Next, the Court must consider "whether the exercise of personal
jurisdiction would comport with the requirements of due process." Kurtz v. Unitea’ States, _ F.
Supp. 2d __, __, 2011 WL 1549216, at *l (D.D.C. Apr. 26, 2011) (citing GTE New Mea’ia Servs.
Inc. v. BellSouth Corp., l99 F. 3d l343, 1347 (D.C. Cir. 2000)). To this end, the Court examines
whether defendant’s "minimum contacts" with the District of Columbia, if any, are such that "the
maintenance of the suit does not offend traditional notions of fair play and substantial justice."
Int’l Shoe C0. v. Washington, 326 U.S. 310, 316 (1945) (intemal quotations and citations
omitted). If, for example, defendant engages in conduct "by which [he] purposefully avails
[himself] of the privilege of conducting activities" in the District of Columbia, "thus invoking the
benefits and protections of its laws," Burger Kz'ng Corp. v. Rudzewicz, 471 U.S. 463, 475 (1985),
this Court may exercise personal jurisdiction over him. See ia’. at 475-76. Plaintiff’s complaint
alleges no facts with respect to defendant’s contacts with the District of Columbia, whether by
transacting business or contracting to supply services here. See generally Compl. Nor does the
complaint reveal any basis from which the Court might conclude that plaintiff suffered an injury
here, whether by act or omission committed inside or outside of the District of Columbia. See id.
In an attempt to meet his "burden of establishing personal jurisdiction," Moore v. Motz,

437 F. Supp. 2d 88, 90-91 (D.D.C. 2006) (citations omitted), plaintiff makes three arguments
First, plaintiff alludes to "varies [sic] govemment contracts . . . govemed by the Department of
Defense" which defendant may have secured. Pl.’s Opp’n at 2. The existence of contracts with

the federal government may be a factor in a court’s decision to exercise personal jurisdiction over

a defendant. See, e.g., Mateer v. Interocean Am. Shz'ppz`ng Corp., No. 06-0l642, 2006 WL
997248, at *5, 9 (N.D .Cal. Apr. 17, 2006) (considering corporation’s contacts with California,
including "voluntary and purposeful execution of a bilateral contract" with the Maritime
Administration which would require it to operate ships in California, as basis for exercising
personal jurisdiction over it). ln this case, plaintiff offers nothing more than an unsupported
assertion as to the contracts’ existence. There are no factual allegations as to the contracts’ terms
or execution which might demonstrate defendant’s minimum contacts with the District of
Columbia, for example. Cf Pam'ot Sys., Inc. v. C-Cubed Corp., 2l F. Supp. 2d l3l8, 1322-23
(D. Utah 1998) ("In the court’s view, defendant’s act of entering into contracts with the federal
government in Washington, D.C. to be performed in Virginia does not indicate defendant has
purposefully availed itself of the benefits and privileges of conducting business in Utah.");
Um'tea’ States ex rel. Alexander v. Dyncorp, Inc., 924 F. Supp. 292, 297-98 (D.D.C. l996) (noting
that the "[s]olicitation which underlies this claim [brought by unsuccessful bidder for a contract
with the Justice Department] was issued in Washington, D.C., the bid proposal [which] was
submitted in Washington, D.C., and Dyncorp’s prior govemment contracts [which] presumably
led the company to transact business regularly in the District" as bases for exercise of personal
jurisdiction).

Next, plaintiff argues that the District’s long-arrn statute "does not apply to this case
because it [is] not D.C. Courts jurisdiction." Memorandum of Law in Support of Plaintiff"s
Motion Requesting Opposition to Defendants[’] Dismissal ("Pl.’s Mem.") at 2. Defendant
neither resides nor maintains a principal place of business in the District of Columbia. As stated

above, this Court determines whether it may exercise personal jurisdiction over a non-resident by

applying the law of the District of Columbia, specifically its long-arrn statute. See Ferrara, 54
F.3d at 828.

Lastly, plaintiff claims that he need not establish personal jurisdiction because the Court
has subject matter jurisdiction under 28 U.S.C. § l33 l. See Pl.’s Mem. at 2. Plaintiff does not
appreciate that "a distinction exists between personal jurisdiction (the question of whether a
particular court has power over a defendant) and subject matter jurisdiction (the question of
whether a particular court can hear a certain kind of lawsuit)." Siegler v. Ohio State Um'v. , No.
2:l0-cv-l72, 20ll WL 34l7790, at *2 (S.D. Ohio Aug. 4, 20l l). The Court must have both
personal jurisdiction over all the parties and subject matter jurisdiction, and "[t]he fact that the
Court would have subject matter jurisdiction is entirely irrelevant to the question of whether the
court has personal jurisdiction over the [d]efendant[]." Sciortino v. Mecum, No. l0-cv-02254,
20ll WL 3512272, at *3 (D. Nev. Aug. ll, 201 l)

Plaintiff establishes no basis for this Court’s exercise of personal jurisdiction over
defendant under the District’s long-arrn statute. Absent any allegations to show defendant’s
purposeful activities sufficient to invoke the benefits or protections of the District of Columbia’s
laws, exercise of personal jurisdiction over defendant does not comport with due process.

B. F ailure to State a Claz'm Upon Which Relz`efCan Be Granted

Defendant argues that the complaint must be dismissed under Rule l2(b)(6) of the
Federal Rules of Civil Procedure because it fails to state a claim under 42 U.S.C. §§ 2000e-2 and
2000e-3 upon which relief can be granted. See Def.’s Mem. at 3-4. These provisions declare it
"an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any

individual, or otherwise to discriminate against any individual with respect to [his]

compensation, terms, conditions, or privileges of employment, because of [his] race, color,
religion, sex, or national origin," 42 U.S.C. § 2000e-2(a)(1), and an employer may not
discriminate against an employee who has opposed an unlawful employment practice by making
a charge of unlawful discrimination. See 42 U.S.C. § 2000e-3(a). According to defendant, he
cannot be held liable in his individual capacity under these provisions, Def.’s Mem. at 3-4, and
the complaint is defective because it "never states that the alleged negative references were
because of any protected status." Ia'. at 4.

Rule l2(b)(6) tests the legal sufficiency of a complaint. See Browning v. Clinton, 292
F.3d 235, 242 (D.C. Cir. 2002). On a Rule l2(b)(6) motion, the Court treats the factual

allegations of a plaintiffs complaint as if they were true, and draws all reasonable inferences

stemming from such factual allegations in the plaintiffs favor. See Erickson v. Pam'us, 551 U.S.

551 U.S. 89, 94 (2007) (per curiam). A complaint must be dismissed under Rule l2(b)(6) if it
consists only of "[t]hreadbare recitals of the elements of a cause of action, supported by mere
conclusory statements." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).

Absent from plaintiff" s complaint are any allegations regarding defendant’s status as an
"employer" who may be held liable under the statutes on which he relies.‘ See 42 U.S.C. §
2000e(b) (defining an "employer" as "a person engaged in an industry affecting commerce who
has fifteen or more employees . . . and any agent of such a person"); see also Gary v. Long, 59

F.3d 1391, 1399 (D.C. Cir. 1995) ("[W]hile a supervisory employee may bejoined as a party

l The defendant named in this action is not the entity against which plaintiff

brought a formal charge of discrimination before the Equal Employment Opportunity
Commission. See Compl. (caption); see z'cl., Ex. at 5 (Letter to plaintiff from Toni Ahl,
lnvestigator, U.S. Equal Employment Opportunity Commission, Louisville Area Office, dated
July 9, 2010).

defendant in a Title Vll action, that employee must be viewed as being sued in his capacity as the
agent of the employer, who is alone liable for a violation of Title VII.") (citations omitted). More
importantly, nothing in the complaint suggests that this defendant provided a negative reference
for plaintiff because of his race, color, religion, sex, or national origin - a fact critical to a
complaint alleging discrimination under Title VlI. See Baz`rd v. Snowbarger, 744 F. Supp. 2d
279, 294 (D.D.C. 2010) (dismissing hostile work environment claim because plaintiff did not
allege that the unlawful acts were due to her race, sex, or protected activity); Soliman v. George
Washz`ngton Um'v., 658 F. Supp. 2d 98, 103 (D.D.C. 2009) (dismissing retaliation claim because
plaintif "merely recounts her repeated informal communications to her department chair
complaining of vague discriminatory conduct" without actually alleging discrimination based on
gender); cf Sparrow v. Unz'tedAir Lines, Inc., 216 F.3d 1111, 1115 (D.C. Cir. 2000) (noting that
a plaintiff must allege the adverse employment action occurred "because of" status as member of
a protected class to survive a motion to dismiss under Rule 12(b)(6)).
lt is not enough that plaintiff refers to portions of Title Vll in his complaint. Absent
allegations that the defendant is an employer who discriminated against plaintiff on the basis of
his race, color, religion, sex or national origin, the complaint fails to state a claim upon which
relief can be granted.
C. ]mproper Venue
Defendant also moves to dismiss under Rule l2(b)(3) because venue in this district is
improper. See Def.’s Mem. at 4-5. The venue provision of Title Vll provides:
Each United States district court and each United States court of a

place subject to the jurisdiction of the United States shall have
jurisdiction of actions brought under this subchapter. Such an action

mav be brought in anv judicial district in the State in which the

unlawful employment practice is alleged to have been committed, in
the judicial district in which the employment records relevant to such

practice are maintained and administered, or in the judicial district in
which the aggrieved person would have worked but for the alleged

unlawful employment practice, but if the respondent is not found

within any such district, such an action may be brought within the

judicial district in which the respondent has his principal office. For

purposes of sections 1404 and 1406 of Title 28 [United States Code],

the judicial district in which the respondent has his principal office

shall in all cases be considered a district in which the action might

have been brought.
42 U.S.C. § 2000e-5 (f)(3) (emphasis added). Plaintiff s allegation that events giving rise to this
action occurred at or with respect to employment at Fort Belvoir, see Compl. 11 3, and venue may
be proper in the Eastern District of Virginia. Or, given the defendant’s Hardinsburg, Kentucky
address, venue may be proper in the Westem District of Kentucky. Neither plaintiff s current
residence in the District of Columbia, see Compl. (caption), nor defendant’s alleged involvement
in interstate commerce, see Pl.’s Mem. at 4, establishes venue in this district under 42 U.S.C. §
2000e-5(f)(3).

III. CONCLUSION
For the reasons stated above, the Court concludes that it lacks personal jurisdiction over

the defendant, that the complaint fails to state a claim upon which relief can be granted, and that

venue in this district is improper. The defendant’s motion to dismiss will be granted. An Order

RICHKR'D J. LEoN
United States District Judge

accompanies this Memorandum Opinion.

