UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) SARAH M. GREENE, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1763 (RWR) ) NATIONAL HEAD START ) ASSOCIATION, INC., ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Sarah M. Greene brings this diversity action
against the National Head Start Association (“NHSA”) for damages
based on claims of breach of employment contract, breach of
implied covenant of good faith and fair dealing, promissory
estoppel, retaliatory discharge and defamation, arising out of
the termination of her employment as the President and Chief
Executive Officer of NHSA. NHSA moves to transfer venue.
Because a transfer of venue to the Eastern District of Virginia
is in the interest of justice, the motion to transfer will be
granted.
BACKGROUND
Greene was associated with NHSA from 1968 to 2007. During
that time, she lived in Virginia, although she now lives in
Florida. (Compl. ¶ 1.) She was the President of NHSA’s Board of
Directors (“Board”) between 1982 and 1986. (Compl. ¶¶ 2, 9.) In
1991, NHSA’s Board chose Greene to become NHSA’s executive -2-
director. Her title changed to President and Chief Executive
Officer in 2000. Greene’s written employment agreement with NHSA
was issued and agreed to in Virginia. (Compl. ¶¶ 11, 14; Def.’s
Mem. in Supp. of Mot. to Transfer Venue (“Def.’s Mem.”) at 2.)
NHSA’s sole corporate office is in Alexandria, Virginia. (Def.’s
Mem. at 2.)
In 2007, a member of the Board had his personal accountant
review NHSA’s financial records. That Board member alleged that
NHSA was improperly spending grant money under Greene’s
leadership. (Compl. ¶¶ 43-45.) NHSA’s Board informed Greene
that they hired the law firm of Holland & Knight, LLP to
investigate improper spending of grant money under Greene’s
leadership. (Compl. ¶ 51.) At a meeting held in this district,
Holland & Knight reported its findings to the Board, which then
created an evaluation committee that collected here evaluations
of Greene’s performance as President and Chief Executive Officer.
(Compl. ¶¶ 51-55; Pl.’s Opp’n at 3.) The Board’s Executive
Committee later asked Greene to resign, which she refused to do.
On December 5, 2007, the Board terminated Greene’s employment.
(Compl. ¶¶ 15, 56-63.)
The defendants move to transfer this case to the United
States District Court for the Eastern District of Virginia. (See
Defs.’ Mem. at 1.) Greene opposes the motion to transfer. (See -3-
Pl.’s Opp’n to Def.’s Mot. to Transfer Venue (“Pl.’s Opp’n”) at
1-2.)
DISCUSSION
A case may be transferred to another venue under 28 U.S.C.
§ 1404(a) “[f]or the convenience of parties and witnesses, in the
interest of justice[.]” 28 U.S.C. § 1404(a). See also Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981). The moving
party carries the burden of demonstrating that a transfer is
warranted. Montgomery v. SGT Int’l, Inc., 532 F. Supp. 2d 29, 32
(D.D.C. 2008); Onyeneho v. Allstate Ins. Co., 466 F. Supp. 2d 1,
3 (D.D.C. 2006). Because “it is perhaps impossible to develop
any fixed general rules on when cases should be transferred[,]
. . . the proper technique to be employed is a factually
analytical, case-by-case determination of convenience and
fairness.” SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C.
Cir. 1978) (quoting Starnes v. McGuire, 512 F.2d 918, 925
(1974)).
“Any transfer under § 1404(a) is restricted to a venue where
the action ‘might have been brought.’” See 28 U.S.C. § 1404(a);
Robinson v. Eli Lilly Co., 535 F. Supp. 2d 49, 51 (D.D.C. 2008).
When, as here, jurisdiction is based on diversity of citizenship,
[a] civil action . . . may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial -4-
part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(a). A court must also “weigh in the balance the
convenience of the witnesses and those public-interest factors of
systemic integrity and fairness that, in addition to [the]
private concerns [of the parties], come under the heading of ‘the
interest of justice.’” Stewart Org. Inc. v. Ricoh Corp., 487
U.S. 22, 30 (1988). “The private interest factors that are
typically considered include 1) the plaintiff’s choice of forum,
2) the defendant’s choice of forum, 3) where the claim arose,
4) the convenience of the parties, 5) the convenience of the
witnesses, particularly if important witnesses may actually be
unavailable to give live trial testimony in one of the
districts,1 and 6) the ease of access to sources of proof.”
Demery v. Montgomery County, Civil Action No. 08-1364 (RWR), 2009
WL 692604, at *3 (D.D.C. March 18, 2009). “Public interest
factors include 1) the local interest in making local decisions
about local controversies, 2) the potential transferee court’s
familiarity with the applicable law, and 3) the congestion of the
transferee court compared to that of the transferor court.”
Demery, 2009 WL at *3 (citing Akiachak Native Community v. Dep’t
of the Interior, 502 F. Supp. 2d 64, 67 (D.D.C. 2007)).
1 See Montgomery, 532 F. Supp. 2d at 33 n.5. -5-
Ultimately, if the balance of private and public interests favors
a transfer of venue, then a court may order a transfer.
I. VENUE IN VIRGINIA
NHSA asserts that a substantial part of the events giving
rise to the claim occurred the Eastern District of Virginia where
NHSA has its sole corporate office, and Greene concedes that this
action could have been brought in the Eastern District of
Virginia. (See Defs.’ Mem. at 2; Pl.’s Opp’n at 2.) Therefore,
there is no dispute that venue would be proper in the potential
transferee district.
II. PRIVATE INTERESTS
Typically, a “plaintiff’s choice of forum is ordinarily
accorded deference.” Aftab v. Gonzalez, 597 F. Supp. 2d 76, 80
(D.D.C.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ ) SARAH M. GREENE, ) ) Plaintiff, ) ) v. ) Civil Action No. 08-1763 (RWR) ) NATIONAL HEAD START ) ASSOCIATION, INC., ) ) Defendant. ) ______________________________)
MEMORANDUM OPINION AND ORDER
Plaintiff Sarah M. Greene brings this diversity action
against the National Head Start Association (“NHSA”) for damages
based on claims of breach of employment contract, breach of
implied covenant of good faith and fair dealing, promissory
estoppel, retaliatory discharge and defamation, arising out of
the termination of her employment as the President and Chief
Executive Officer of NHSA. NHSA moves to transfer venue.
Because a transfer of venue to the Eastern District of Virginia
is in the interest of justice, the motion to transfer will be
granted.
BACKGROUND
Greene was associated with NHSA from 1968 to 2007. During
that time, she lived in Virginia, although she now lives in
Florida. (Compl. ¶ 1.) She was the President of NHSA’s Board of
Directors (“Board”) between 1982 and 1986. (Compl. ¶¶ 2, 9.) In
1991, NHSA’s Board chose Greene to become NHSA’s executive -2-
director. Her title changed to President and Chief Executive
Officer in 2000. Greene’s written employment agreement with NHSA
was issued and agreed to in Virginia. (Compl. ¶¶ 11, 14; Def.’s
Mem. in Supp. of Mot. to Transfer Venue (“Def.’s Mem.”) at 2.)
NHSA’s sole corporate office is in Alexandria, Virginia. (Def.’s
Mem. at 2.)
In 2007, a member of the Board had his personal accountant
review NHSA’s financial records. That Board member alleged that
NHSA was improperly spending grant money under Greene’s
leadership. (Compl. ¶¶ 43-45.) NHSA’s Board informed Greene
that they hired the law firm of Holland & Knight, LLP to
investigate improper spending of grant money under Greene’s
leadership. (Compl. ¶ 51.) At a meeting held in this district,
Holland & Knight reported its findings to the Board, which then
created an evaluation committee that collected here evaluations
of Greene’s performance as President and Chief Executive Officer.
(Compl. ¶¶ 51-55; Pl.’s Opp’n at 3.) The Board’s Executive
Committee later asked Greene to resign, which she refused to do.
On December 5, 2007, the Board terminated Greene’s employment.
(Compl. ¶¶ 15, 56-63.)
The defendants move to transfer this case to the United
States District Court for the Eastern District of Virginia. (See
Defs.’ Mem. at 1.) Greene opposes the motion to transfer. (See -3-
Pl.’s Opp’n to Def.’s Mot. to Transfer Venue (“Pl.’s Opp’n”) at
1-2.)
DISCUSSION
A case may be transferred to another venue under 28 U.S.C.
§ 1404(a) “[f]or the convenience of parties and witnesses, in the
interest of justice[.]” 28 U.S.C. § 1404(a). See also Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981). The moving
party carries the burden of demonstrating that a transfer is
warranted. Montgomery v. SGT Int’l, Inc., 532 F. Supp. 2d 29, 32
(D.D.C. 2008); Onyeneho v. Allstate Ins. Co., 466 F. Supp. 2d 1,
3 (D.D.C. 2006). Because “it is perhaps impossible to develop
any fixed general rules on when cases should be transferred[,]
. . . the proper technique to be employed is a factually
analytical, case-by-case determination of convenience and
fairness.” SEC v. Savoy Indus. Inc., 587 F.2d 1149, 1154 (D.C.
Cir. 1978) (quoting Starnes v. McGuire, 512 F.2d 918, 925
(1974)).
“Any transfer under § 1404(a) is restricted to a venue where
the action ‘might have been brought.’” See 28 U.S.C. § 1404(a);
Robinson v. Eli Lilly Co., 535 F. Supp. 2d 49, 51 (D.D.C. 2008).
When, as here, jurisdiction is based on diversity of citizenship,
[a] civil action . . . may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial -4-
part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(a). A court must also “weigh in the balance the
convenience of the witnesses and those public-interest factors of
systemic integrity and fairness that, in addition to [the]
private concerns [of the parties], come under the heading of ‘the
interest of justice.’” Stewart Org. Inc. v. Ricoh Corp., 487
U.S. 22, 30 (1988). “The private interest factors that are
typically considered include 1) the plaintiff’s choice of forum,
2) the defendant’s choice of forum, 3) where the claim arose,
4) the convenience of the parties, 5) the convenience of the
witnesses, particularly if important witnesses may actually be
unavailable to give live trial testimony in one of the
districts,1 and 6) the ease of access to sources of proof.”
Demery v. Montgomery County, Civil Action No. 08-1364 (RWR), 2009
WL 692604, at *3 (D.D.C. March 18, 2009). “Public interest
factors include 1) the local interest in making local decisions
about local controversies, 2) the potential transferee court’s
familiarity with the applicable law, and 3) the congestion of the
transferee court compared to that of the transferor court.”
Demery, 2009 WL at *3 (citing Akiachak Native Community v. Dep’t
of the Interior, 502 F. Supp. 2d 64, 67 (D.D.C. 2007)).
1 See Montgomery, 532 F. Supp. 2d at 33 n.5. -5-
Ultimately, if the balance of private and public interests favors
a transfer of venue, then a court may order a transfer.
I. VENUE IN VIRGINIA
NHSA asserts that a substantial part of the events giving
rise to the claim occurred the Eastern District of Virginia where
NHSA has its sole corporate office, and Greene concedes that this
action could have been brought in the Eastern District of
Virginia. (See Defs.’ Mem. at 2; Pl.’s Opp’n at 2.) Therefore,
there is no dispute that venue would be proper in the potential
transferee district.
II. PRIVATE INTERESTS
Typically, a “plaintiff’s choice of forum is ordinarily
accorded deference.” Aftab v. Gonzalez, 597 F. Supp. 2d 76, 80
(D.D.C. 2009); see also DeLoach v. Phillip Morris Cos., 132 F.
Supp. 2d 22, 24 (D.D.C. 2000). However, when a plaintiff is not
a resident of the forum and “most of the relevant events occurred
elsewhere,” this deference is weakened. Aftab, 597 F. Supp. 2d
at 80 (quoting Hunter v. Johanns, 517 F. Supp. 2d 340, 344
(D.D.C. 2007) (noting that “the strong presumption against
disturbing plaintiff[’s] initial forum choice . . . is weakened
. . . when the forum is not plaintiff’s home forum and most of
the relevant events occurred elsewhere”) (internal quotations and
citations omitted)). When the events occur in more than one
district, a court can consider which jurisdiction has the -6-
stronger factual nexus to the claims. Miller v. Insulation
Contractors, Inc., Civil Action No. 08-1556 (RWR), 2009 WL
1066263, at *2 (D.D.C. April 21, 2009) (citing O’Shea v. Int’l
Bhd. of Teamsters, Civil Action No. 04-207 (RBW), 2005 WL 486143,
at *3 (D.D.C. March 2, 2005)).
While Greene has filed her action in this forum, she is not
a resident of the District of Columbia, and the usual deference
given to a plaintiff’s choice of forum is weakened here. The
NHSA’s choice of forum is the Eastern District of Virginia where
NHSA has its sole corporate office and where it argues that most
of the events that gave rise to this employment action occurred.
(Def.’s Mem. at 1-2.) Greene disagrees and argues to the
contrary.
The parties have shed some but not enough light on important
facts needed to assess which district has the stronger factual
nexus to most of the claims. Count I alleges that Greene was
fired without good cause by a December 2007 action of the Board.
Neither side specified where the Board action took place. The
parties present dueling versions of where Greene did her work,2
leaving unresolved in which district the presence or absence of
2 NHSA says Greene spent the vast majority of her time in the Virginia office performing her most important duties involving day-to-day management matters. (Def.’s Reply at 2.) Greene says she performed a substantial portion of her duties in the District of Columbia performing advocacy work. (Pl.’s Opp’n at 2-3.) -7-
good cause would be most likely shown. Count II alleges her
termination was a breach of the covenant of fair dealing since it
was a product of an ill-motivated ad hoc committee. That
committee was formed and functioned in this district.3 Count III
alleges that Greene refrained from seeking other employment
relying to her detriment on NHSA’s promise that it would fire her
only for poor performance, a reliance and forbearance centered in
Virginia. Count IV alleges Greene’s discharge was retaliation
against her for favoring a replacement Board Chair, but neither
side specifies where she expressed her view, much less where the
Board acted to discharge her, as was mentioned. Count V alleges
defamatory statements but the parties say nothing regarding where
any such statements were made.
The final three private interest factors favor neither
district. NHSA claims it would be more convenient for it to
proceed in Virginia, while Greene argues that it would be more
convenient for her to proceed here. Neither party supports its
claim with any convincing reasoning. Neither forum is more
convenient for witnesses or has better access to sources of
proof. While NHSA argues that substantially all of the documents
and witnesses are located in Virginia, Greene points out that all
of the witnesses to this action are within the 100-mile
3 NHSA wrongly asserts that no critical events occurred in this district. (Def.’s Mem. at 1.) -8-
geographical area to which subpoena power extends, the relevant
inquiry for this factor. See Demery, 2009 WL at *3; Montgomery,
532 F. Supp. 2d at 33 n.5 (stating that convenience of the
witnesses refers to the possibility of having their live
testimony at trial). The close proximity of the federal
courthouses in Alexandria and the District of Columbia means
there is no material difference between the districts in ease of
access to sources of proof. Thus, NHSA’s effort to show that the
balance of private interests favors transfer has been anemic at
best.
II. PUBLIC INTERESTS
The parties did not present evidence regarding the relative
congestion of the different courts, and they failed to
meaningfully address which district has a greater interest in
deciding this case.4 However, Virginia has a greater interest in
deciding an employment dispute involving an employment agreement
created and executed in Virginia, between an employer whose sole
corporate office is in Virginia and an employee who resided in
Virginia. It is most likely Virginia law under which Greene’s
employment agreement will be construed and which will govern
Greene’s claims. The transferee district will have greater
familiarity with Virginia law, and “the public interest is ‘best
4 Greene failed to address or analyze any of the public interest factors in her opposition to the motion to transfer. -9-
served by having a case decided by the federal court in the state
whose laws govern the interests at stake.’” Veney v. Starbucks
Corp., 559 F. Supp. 2d 79, 84 (D.D.C. 2008) (quoting Trout
Unlimited v. United States Dep’t of Agric., 944 F. Supp. 13, 19
(D.D.C. 1996)). The public interests strongly support transfer.
While Greene shows that some events underlying her claims
occurred in this district and NHSA has made a weak showing on the
private interests analysis, the public interest factors clearly
tip the balance in favor of transfer. The motion to transfer
venue will be granted.
CONCLUSION AND ORDER
The balance of private and public interests weighs in favor
of transfer. Accordingly, it is hereby
ORDERED that defendant’s motion [6] to transfer venue be,
and hereby is, GRANTED. The Clerk is directed to transfer this
case to the United States District Court for the Eastern District
of Virginia.
SIGNED this 28th day of April, 2009.
/s/ RICHARD W. ROBERTS United States District Judge