                       UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF COLUMBIA


                                    )
WINMAR CONSTRUCTION, INC.           )
                                    )
                 Plaintiff,         )
                                    )
            v.                      ) Civil Action No. 17-2164 (EGS)
                                    )
JK MOVING & STORAGE, INC.           )
                                    )
                 Defendant.         )
                                    )


                       MEMORANDUM OPINION AND ORDER

       Pending before the Court is defendant JK Moving & Storage,

Inc.’s (“JK Moving”) motion to dismiss plaintiff Winmar

Construction, Inc.’s (“Winmar”) complaint, or, in the

alternative, transfer venue to the United States District Court

for the Eastern District of Virginia. See Def.’s Mot., ECF No.

6. Upon consideration of the motion, the response and reply, the

applicable law, and the entire record, JK Moving’s motion shall

be GRANTED IN PART and this proceeding shall be TRANSFERRED to

the United States District Court for the Eastern District of

Virginia (“Eastern District”).

  I.      Background

       Winmar, a District of Columbia (“D.C.”) commercial

construction corporation, brings this complaint against JK

Moving, a Virginia moving and storage corporation. See generally


                                    1
Compl., ECF No. 1. In 2016, Winmar was hired to renovate the

Hilton Crystal City at Washington Reagan National Airport Hotel

(“the Hilton”). Id. ¶ 2. To accomplish the renovations, Winmar

entered into five contracts with JK Moving to move and store the

Hilton’s furniture. Id. ¶ 3. The relevant contracts were

negotiated and signed in D.C. between February and December

2016. Id. The furniture was moved from the Hilton, located in

Arlington, Virginia, and stored in JK Moving’s warehouse,

located in Sterling, Virginia. Exhibit 1 to Def.’s Mot., ECF No.

6-1 at 12. To date, Winmar has paid JK Moving nearly $115,000

for its services. Compl., ECF No. 1 ¶ 5. JK Moving has demanded

that that Winmar pay the additional $50,000 allegedly owed

pursuant to the contracts. Id. ¶ 6. Winmar alleges that JK

Moving damaged sixteen pieces of furniture and converted

thirteen pieces of furniture. Id. Winmar also alleges that the

contracts are void because JK Moving does not have a moving and

storage license, as required by D.C. law. Id. ¶¶ 13-17.

     Seeking to collect the entire sum allegedly owed, JK Moving

sued Winmar and its President, Edwin Villegas, for breach of

contract and fraud in Loudoun County Circuit Court on October

12, 2017. See Eastern District Compl., ECF No. 6-1. Winmar then

removed the case to the Eastern District. Notice of Removal, ECF

No. 6-3. Winmar answered JK Moving’s complaint on November 7,

2017, denying the allegations and asserting the affirmative

                                2
defenses “set forth in Winmar’s Complaint filed against JK

Moving in the United States District Court for the District of

Columbia.” Eastern District Answer, ECF No. 6-2 ¶¶ 1, 2.

     On October 18, 2017, Winmar filed its Complaint against JK

Moving in this Court. See generally Compl., ECF No. 1. Winmar’s

three count complaint seeks: (1) a declaratory judgment that the

contracts are void under D.C. law; (2) damages resulting from JK

Moving’s alleged conversion of thirteen pieces of furniture; and

(3) damages resulting from JK Moving’s alleged negligence in

moving and/or storing the furniture. Id. ¶¶ 13-27. Winmar’s

complaint concerns the same contracts at issue in the Eastern

District case. Compare D.C. Compl., ECF No. 1 with Eastern

District Compl., ECF No. 6-1.

  II.   Standard of Review

  As stated by this Court:

          Pursuant to 28 U.S.C. § 1404(a), “[f]or the
          convenience of the parties and witnesses, in
          the interest of justice, a district court may
          transfer any civil action to any other
          district where it might have been brought.”
          In so doing, the district court has discretion
          to    transfer    a   case    based    on   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)); see also Demery v. Montgomery
          County, 602 F. Supp. 2d 206, 210 (D.D.C. 2009)
          (“Because it is perhaps impossible to develop
          any fixed general rules on when cases should
          be transferred[,] . . . the proper technique

                                3
          to be employed is a factually analytical,
          case-by-case determination of convenience and
          fairness.”)     (internal   quotation    marks
          omitted). The moving party bears the burden
          of establishing that transfer of the action is
          proper.   Devaughn v. Inphonic, Inc., 403 F.
          Supp. 2d 68, 71 (D.D.C. 2005); see also SEC v.
          Savoy Indus., Inc., 587 F.2d 1149, 1154 (D.C.
          Cir. 1978) (noting that the district court’s
          denial   of   a   motion  to   transfer   “was
          effectively a ruling that [the appellant] had
          failed to shoulder his burden”).

          In order to justify a transfer, defendants
          must make two showings.     First, they must
          establish that the plaintiff could have
          brought suit in the proposed transferee
          district.   Devaughn, 403 F. Supp. 2d at 71-
          72; Trout Unlimited v. United States Dep’t of
          Agric., 944 F. Supp. 13, 16 (D.D.C. 1996).
          Second, defendants must demonstrate that
          considerations    of  convenience    and  the
          interests of justice weigh in favor of a
          transfer.   Devaughn, 403 F. Supp. 2d at 72;
          Trout Unlimited, 944 F. Supp. at 16.

Berry v. United States Dept. of Justice, 49 F. Supp. 3d

71, 74-75 (D.D.C. 2014).

     To determine whether “considerations of convenience and the

interests of justice weigh in favor of a transfer,” the Court

considers private-interest factors including: “(1) the

plaintiff's choice of forum, unless the balance of convenience

is strongly in favor of the defendant; (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, but only to the extent that witnesses may be

unavailable in one fora; and (6) the ease of access to sources

                                4
of proof.” Id. at 75 (citations omitted). Finally, the Court

considers whether certain public-interest factors weigh in favor

of transfer, including “(1) the transferee's familiarity with

the governing laws, (2) the relative congestion of each court,

and (3) the local interest in deciding local controversies at

home.” Id. at 77 (quoting Montgomery v. STG Int'l, Inc., 532 F.

Supp. 2d 29, 34 (D.D.C. 2008)(additional citations omitted).

  III. Discussion

     A. Winmar Could Have Brought this Suit in the Eastern
        District
     Pursuant to 28 U.S.C. § 1391(b), a lawsuit “may be brought

in” a judicial district (1) where “any defendant resides, if all

defendants are residents of the State in which the district is

located”; (2) where “a substantial part of the events or

omissions giving rise to the claim occurred”; or (3) if there is

no judicial district where the case may be brought as provided

by the first two categories, where “any defendant is subject to

the court’s personal jurisdiction.” 28 U.S.C. § 1391(b). “When

venue is challenged, the court must determine whether the case

falls within one of the three categories set out in § 1391(b).”

Atl. Marine Const. Co. v. U.S. District Court for the W.

District of Tex., 134 S. Ct. 568, 577 (2013).

     It is undisputed that Winmar’s case could have been brought

in the Eastern District. See Pl.’s Opp’n, ECF No. 8 at 7-9;


                                5
Def.’s Mot., ECF No. 6 at 8. The Court agrees—“a substantial

part of the events or omissions giving rise to [Winmar’s] claim

occurred” in Virginia. 28 U.S.C. § 1391(b)(2). Although the

contracts were negotiated and entered into in D.C. and payments

were made in D.C., the contracts were performed in Virginia and

this performance gave rise to Winmar’s claims. See Compl., ECF

No. 1 ¶¶ 2-6, 19-21, 23-27. The Court additionally notes that

Winmar answered the Complaint in the Eastern District—rather

than challenging venue—and asserted as affirmative defenses its

claims pending before this Court. Eastern District Answer, ECF

No. 6-2, ¶¶ 1-2 (citing the Complaint in this case

specifically). Therefore, the lawsuit before this Court could

have been brought in the Eastern District.

     B. Considerations of Convenience and the Interests of
        Justice Weigh in Favor of a Transfer

       1. Private Interest Factors

          a. Plaintiff’s Choice of Forum

     “Absent specific facts that would cause a district court to

question plaintiffs' choice of forum, plaintiffs' choice is

afforded substantial deference.” Wilderness Society v.

Babbitt, 104 F. Supp. 2d 10, 12 (D.D.C. 2000)(citations

omitted). Winmar argues that the Court should defer to its

chosen forum because this Court is the only venue where personal

jurisdiction exists over all parties. Pl.’s Opp’n, ECF No. 8 at

                                6
7. Not necessarily. As discussed above, Winmar and Mr. Villegas

are defendants in the earlier-filed Eastern District case. See

Eastern District Answer, ECF No. 6-2. Rather than contesting

that court’s jurisdiction, Winmar consented to the Court’s

personal jurisdiction by filing an Answer to JK Moving’s

complaint. Id. To the extent Winmar asserts that the Eastern

District does not have jurisdiction over Mr. Villegas, its

argument is irrelevant because Mr. Villegas is not a party

before this Court. See generally Compl., ECF No. 1. Moreover, as

previously discussed, see supra Section III (A), Winmar has

asserted the very issues before this Court as affirmative

defenses in the Eastern District. Eastern District Answer, ECF

No. 6-2 ¶¶ 1-2. This choice undermines Winmar’s choice of forum.

Ultimately, the Court is not persuaded that Winmar’s choice of

forum should be given substantial deference.

          b. Defendant’s Choice of Forum

     A defendant's choice of forum is a consideration when

deciding a transfer motion, but it is not ordinarily entitled to

deference. Douglas v. Chariots for Hire, 918 F. Supp. 2d 24, 32

(D.D.C. 2013) (citations omitted). “[W]here Defendants move to

transfer over Plaintiff's opposition, they must establish that

the added convenience and justice of litigating in their chosen

forum overcomes the deference ordinarily given to Plaintiff's


                                7
choice.” Id. JK Moving has done so here by seeking to have both

complaints efficiently adjudicated by a single court. Def.’s

Mot., ECF No. 6 at 9.   Because both complaints concern the same

subject matter and will likely involve the same evidence and

witnesses, such reasoning is legitimate and therefore entitled

to some weight. Compare D.C. Compl., ECF No. 1 with Eastern

District Compl., ECF No. 6-1.

          c. Whether the Claim Arose Elsewhere

     The claims before this Court arose in both D.C. and

Virginia. See Compl., ECF No. 1 ¶¶ 1-7. JK Moving argues that

“[a]ll of the material events in the dispute took place in

Virginia, including the moving and storage services provided by

JK Moving, and the witnesses in this action are located in

Virginia.” Def.’s Mot., ECF No 6 at 8-9. Winmar responds by

arguing that the contracts were solicited, negotiated, entered

into in D.C. and all payments were made in D.C. Pl.’s Opp’n, ECF

No. 8 at 8.

     “Courts in this district have held that claims ‘arise’

under 28 U.S.C. § 1404(a) in the location where the corporate

decisions underlying those claims were made or where most of the

significant events giving rise to the claims occurred.” Treppel

v. Reason, 793 F. Supp. 2d 429, 436-437 (D.D.C. 2011) (citations

omitted). As discussed, the Court has determined that the claims

                                 8
could have been brought in the Eastern District pursuant to

section 1391(b)(2) because “a substantial part of the events or

omissions giving rise to the claim occurred” in Virginia. 28

U.S.C. § 1391(b)(2). The question now before the Court, then, is

whether the claim “arose” in Virginia, meaning “most of the

significant events giving rise to the claims occurred” there.

Treppel, 793 F. Supp. 2d at 436-37. Two of Winmar’s three claims

pertain to JK Moving’s performance of the contracts in Virginia—

namely, whether JK Moving was negligent when it moved the

furniture and whether JK Moving wrongfully converted the

furniture. Compl., ECF No. 1 ¶¶ 18-27. This factor therefore

weighs in favor of transfer to the Eastern District because most

of Winmar’s claims arose in Virginia.

          d. The Convenience of Parties and the Convenience of
             Witnesses

     Winmar argues that a witness’ convenience warrants

retaining jurisdiction over its case. Pl.’s Opp’n, ECF No. 8 at

8-9. It contends that a senior D.C. government official is a key

witness for its declaratory judgment count and that it would be

inconvenient, a waste of government resources, and unjust to

require that D.C. official to hire Virginia counsel and appear

in an unfamiliar Virginia court. Id. at 9. JK Moving responds

that “the bulk of the evidence and witnesses in the matter are

located in Virginia (and [Winmar] failed to show how potential


                                9
witnesses who work in the District would be ‘inconvenienced’ by

travelling across the river to attend trial in nearby

Alexandria).” Def.’s Reply, ECF No. 10 at 9.

     The convenience of witnesses is to be considered by the

Court, “but only to the extent that witnesses may be unavailable

in one fora.” Berry, 49 F. Supp. 3d at 75. Winmar does not

contend that the D.C. government official would be unavailable

in the Eastern District. See Pl. Opp’n, ECF No. 8. Furthermore,

courts in this Circuit have found that the convenience of

witnesses does not weigh heavily against transfer “given the

close proximity of the District of Columbia and the Eastern

District of Virginia.” Treppel, 793 F. Supp. 2d at 437. This

factor therefore weighs in favor of transfer because Winmar does

not allege that its anticipated witness would be unavailable in

the Eastern District.

          e. Ease of Access to Sources of Proof

     JK Moving argues that “the bulk of the evidence . . . [is]

located in Virginia.” Def.’s Reply, ECF No. 10 at 9. Winmar

provides no information regarding this factor. See Pl.’s Opp’n,

ECF No. 8. “The importance of this factor is . . . lessened

where, as here, the two potential districts are in close

proximity.” Treppel, 793 F. Supp. 2d at 438 (transferring from

D.C. to Eastern District). That said, because JK Moving provides


                               10
information concerning the location of evidence, whereas Winmar

does not, this factor weighs in favor of transfer.

       2. Public Interest Factors

          a. The Transferee's Familiarity with the Governing Laws

     JK Moving asserts that the Eastern District is “more than

capable” of adjudicating all of the claims in Winmar’s

complaint. Def.’s Reply, ECF No. 10 at 9. Winmar does not allege

that the Eastern District is unfamiliar with the laws governing

its complaint. See Pl.’s Opp’n, ECF No. 8 at 7-9. The public

interest is “best 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 (citations omitted).

While the declaratory relief determination will be made pursuant

to D.C. law, the other two counts in the complaint are common

law claims that will most likely be governed by Virginia law.

See Compl., ECF No. 1 ¶¶ 18-27. “Under the District of

Columbia’s choice of law rules, the law governing the

plaintiff’s claims is the law of the state with the most

significant relationship to the matters at issue.” Id. Because

the contract was performed in Virginia and it was that

performance that gave rise to Winmar’s claims, the common law

claims will likely be governed by Virginia law. This is

especially true because the contracts at issue do not include a


                               11
choice of law provision. See Exhibit 1 to Def.’s Mot., ECF No.

6-1 at 12-34. Moreover, it is reasonable to assume that Virginia

courts are familiar with D.C. law, given the close proximity of

the jurisdictions. See Jimenez v. R&D Masonry, Inc., Civ. No.

15-1255 (JEB), 2015 WL 7428533 at *4 (D.D.C. November 20,

2015)(finding it reasonable to assume that Maryland courts will

be familiar with District of Columbia law for transfer

purposes). Therefore, this factor weighs in favor of transfer.

          b. The Relative Congestion of Each Court

     Neither party argues that the congestion of either court

will cause undue delay, nor do they argue that they will receive

a speedier resolution in either court. See Def.’s Mot., ECF No.

6; Pl.’s Opp’n, ECF No. 8. Therefore, the Court gives this

factor no weight. Babbitt, 104 F. Supp. 2d at 16.

          c. The Local Interest in Deciding Local Controversies
             at Home
     Finally, although courts in both jurisdictions may have an

interest resolving Winmar’s claims, courts in this Circuit “have

looked at where a clear majority of the operative events took

place in order to determine where a case should be adjudicated.”

Treppel, 793 F. Supp. 2d at 439-40 (quoting Trout Unlimited, 944

F. Supp. at 19). As previously discussed, the contracts were

performed in Virginia and JK Moving’s performance gave rise to




                               12
most of Winmar’s claims. See Compl, ECF No. 1 ¶¶ 2-6, 19-21, 23-

27. This factor therefore weighs in favor of transfer.

  IV.   Conclusion and Order

     Having considered all of the relevant factors, the Court

concludes that JK Moving has made the necessary showing that

“considerations of convenience and the interests of justice

weigh in favor of a transfer.” Berry, 49 F. Supp. 3d at 75

(citations omitted). The Court is persuaded that the parties and

their witnesses will be inconvenienced and judicial resources

will be wasted if the two inextricably linked cases are

litigated in two different forums. See id. at 76-77

(transferring in part because the plaintiff filed four civil

actions “arising out of the same set of facts” in the other

district). Both cases likely involve the same witnesses, who

will no doubt be inconvenienced by having to participate in two

similar cases in two different forums.

     While the burden remains with the movant JK Moving, it is

significant that Winmar does not allege that it will be

prejudiced if its case is transferred to the Eastern District.

See generally Pl.’s Opp’n, ECF No. 8. Indeed, Winmar anticipated

litigating these claims in the Eastern District when it asserted

them as affirmative defenses in its answer. Eastern District

Answer, ECF No. 6-2 ¶¶ 1-2. As such, the Court is not persuaded

that Winmar will be prejudiced by transfer. See Berry, 49 F.
                               13
Supp. 3d at 75-76 (finding that the fact that the plaintiff

filed four actions in the other district “belie[s]” his

“conclusory allegations of prejudice”).

     Because the Court has determined that this proceeding will

be transferred, the Court does not reach the JK Moving’s

remaining arguments that (1) Winmar’s complaint should be

dismissed pursuant to the “first-to-file” rule as duplicative of

JK Moving’s first-filed complaint in the Eastern District, and

(2) Winmar’s declaratory judgment claim should be dismissed for

failure to state a claim. Accordingly, it is hereby

     ORDERED that JK Moving’s motion to dismiss the Complaint,

or, in the alternative, transfer venue to the U.S. District

Court for the Eastern District of Virginia is GRANTED IN PART;

and it is

     FURTHER ORDERED that, pursuant to 28 U.S.C. § 1404(a), the

Clerk’s Office is directed to TRANSFER this case to the United

States District Court for the Eastern District of Virginia.

SO ORDERED.

Signed:     Emmet G. Sullivan
            United States District Judge
            March 7, 2018




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