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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 14-CV-1095
WILLIAM GARCIA, APPELLANT,
V.
AA ROOFING COMPANY, LLC, ET AL., APPELLEES.
Appeal from the Superior Court of the District of Columbia (CAB-1337-14)
(Hon. Herbert B. Dixon, Jr., Trial Judge) (Submitted June 16, 2015 Decided September 10, 2015)*
Carlos M. Recio was on the brief for appellant. Shawn C. Whittaker was on the brief for appellee. Before FISHER and THOMPSON, Associate Judges, and RUIZ, Senior Judge.
THOMPSON, Associate Judge: In an amended complaint alleging breach of
contract, violation of the Virginia Consumer Protection Act, fraud, and common
law conspiracy to defraud, appellant William Garcia, a resident of Fairfax County,
* The decision in this case was originally issued as an unpublished Memorandum Opinion and Judgment. It is now being published upon the court’s grant of appellant’s motion to publish. 2
Virginia, sued appellees Holger Kuessner, AA Roofing Company, LLC (“AA
Roofing”), and Wayne Hammond (AA Roofing’s owner and principal manager), to
recover damages arising out of what the amended complaint alleges was “shoddy”
work done on the roof of appellant’s McLean, Virginia residence in March 2011.
The Superior Court dismissed the action without prejudice on the grounds of forum
non conveniens. Appellant challenges that ruling, contending that the court
misconstrued the facts or failed to consider them in the light most favorable to him;
erroneously failed to give any deference to his choice of forum; erroneously failed
to give any weight to the “defendants’ significant relationships to the District of
Columbia” and the “significant relationship between the plaintiff’s causes of action
and the District of Columbia”; and improperly shifted the burden of proof. We
agree and therefore reverse and remand.
I.
When reviewing a dismissal on the basis of forum non conveniens, we
accept as true the factual allegations of the complaint. Nixon Peabody LLP v.
Beaupre, 791 A.2d 34, 36 (D.C. 2002). Accordingly, for purposes of our analysis,
we assume the truth of the following background facts drawn from the amended
complaint and attached exhibits. During June 2010, while on a boat ride, appellant was introduced to appellee
Kuessner, a District of Columbia resident and the owner of HK Property
Development, LLC, a home improvement company that does business and is
licensed in the District. Appellant and Kuessner talked about certain home repair
work that needed to be done at appellant’s Fairfax County, Virginia residence, and
the two men arranged to meet at appellant’s home to discuss the work. During the
ensuing meeting, Kuessner learned that appellant also needed to repair damage to
the roof of his residence. Although appellant had already identified a contractor to
perform this work, Kuessner responded to this information by “aggressively
ma[king] efforts to divert the roofing work” to AA Roofing Company. 1 Kuessner
“represented that he knew AA Roofing [Company] personally, knew that the
company did very good work and that . . . [appellant] would receive an excellent,
high quality job at a good price.” Kuessner also offered to have AA Roofing
Company perform a free estimate.
On July 8, 2010, Kuessner, working from his office in the District of
Columbia, emailed appellee Wayne Hammond, a Maryland resident who did
1 The amended complaint asserts that appellee AA Roofing, incorporated in 2014, is the successor to AA Roofing Company. Appellees dispute this assertion. 4
business as AA Roofing Company, to ask Hammond to “check this one [i.e.,
appellant’s residence] out for me” and “send me the estimate.” AA Roofing
Company held itself out as a “local roofing company in Washington, D.C.,”
“serving the Washington [D.C.] [a]rea.” Kuessner’s email to Hammond further
stated, “This [project] is a big one[.]” In addition, the email mentioned two other
properties, one in the District, and stated, “[I]t looks like we get the jobs.”
In August 2010, Hammond provided Kuessner with AA Roofing Company’s
estimate for roof work on appellant’s residence, and Kuessner forwarded the
estimate to appellant. Thereafter, during phone calls between appellant and
Kuessner, who participated from his office in the District of Columbia, Kuessner
“again urged [appellant to] use the services of AA Roofing [Company.]”
Appellant decided to hire AA Roofing Company, but he postponed the roof
replacement until the following spring. Appellant eventually contacted AA
Roofing Company directly, agreed to expand the scope of the project, and then
entered into a contract with Hammond that was “based upon the original August
2010 estimate.” AA Roofing Company replaced appellant’s roof in March 2011.
Over two years later, in July 2013, appellant learned that his roof had been
improperly installed. Appellant filed his lawsuit in this matter on March 7, 2014. 5
He alleged that Kuessner convinced appellant to hire AA Roofing Company
because Kuessner and Hammond had a “long-time joint venture” relationship in
which Kuessner served as a “sales agent” soliciting business for AA Roofing
Company, setting the stage for AA Roofing Company to “cut corners to save
money” and for Kuessner and Hammond to then share the resulting profits.
In June 2014, appellees AA Roofing and Hammond moved to dismiss
appellant’s complaint on the basis of forum non conveniens. They argued that the
trial court should refrain from hearing this dispute because the District “has
nothing to do with this case[,]” Virginia substantive law applies, and Virginia is
not only an adequate alternative forum, but “in the interest of justice, . . . is the
proper forum as it is the jurisdiction where any of [appellant’s] alleged claims
occurred.” Judge Dixon granted the motion in a written order dated August 29,
2014.
II.
“The purpose of the doctrine of forum non conveniens . . . is to avoid
litigation in a seriously inconvenient forum, rather than to ensure litigation in the
most convenient forum.” Hechinger Co. v. Johnson, 761 A.2d 15, 20 (D.C. 2000) 6
(emphasis in original) (internal quotation marks omitted). In resolving a motion to
dismiss for forum non conveniens, the trial court “is to be guided by enumerated
‘private interest factors’ affecting the convenience of the litigants and ‘public
interest factors’ affecting the convenience of the forum[,]” as articulated by the
Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). Mills v. Aetna
Fire Underwriters Ins. Co., 511 A.2d 8, 10 (D.C. 1986). The private interest
factors include “(1) plaintiff’s choice of forum; (2) the convenience of parties and
witnesses; (3) the ease of access to sources of proof; (4) the availability and cost of
compulsory process; and (5) the enforceability of any judgment obtained.” Nixon
Peabody, 791 A.2d at 37 (quoting Future View, Inc. v. CritiCom, Inc., 755 A.2d
431, 433 (D.C. 2000)). “[U]nless the balance [of these private factors] is strongly
in favor of the defendant, the plaintiff’s choice of forum should rarely be
disturbed.” Gulf Oil, 330 U.S. at 508 (noting also that “the plaintiff may not, by
choice of an inconvenient forum, vex, harass, or oppress the defendant by inflicting
upon him expense or trouble not necessary to his own right to pursue his remedy”
(internal quotation marks omitted)). The public interest factors include: “(1) the
clearance of foreign controversies from congested dockets; (2) the adjudication of
disputes in the forum most closely [l]inked thereto; and (3) the avoidance of
saddling courts with the burden of construing a foreign jurisdiction’s law.” Nixon
Peabody, 791 A.2d at 37 (quoting Future View, 755 A.2d at 433). The trial court 7
is to “evaluate the contacts with the [relevant] jurisdictions in the light most
favorable to the nonmoving party.” Medlantic Long Term Care Corp. v. Smith,
791 A.2d 25, 32 (D.C. 2002).
“[T]he burden normally [is] allocated to the defendant to demonstrate why
dismissal is warranted for forum non conveniens[.]” Eric T. v. National Med.
Enters., 700 A.2d 749, 754 (D.C. 1997) (internal quotation marks omitted);
Medlantic, 791 A.2d at 29 (“[I]n most cases, a defendant who invokes the doctrine
of forum non conveniens bears the burden of demonstrating why dismissal is
warranted.”). However, “when neither party resides in the District and the
plaintiff’s claim has arisen in another jurisdiction, the burden shifts to the plaintiff
to justify bringing suit in the District rather than in the forum more significantly
connected to the case.” Nixon Peabody, 791 A.2d at 38 (quoting Wyeth Labs., Inc.
v. Jefferson, 725 A.2d 487, 491 (D.C. 1999)). Nonetheless, this court has found
burden-shifting appropriate “only where there is virtually no link to this
jurisdiction.” Coulibaly v. Malaquias, 728 A.2d 595, 606 (D.C. 1999) (internal
quotation marks omitted).
In reviewing a ruling on a motion to dismiss on the grounds of forum non
conveniens, this court “independently evaluates the pertinent factors[,]” not on a de 8
novo basis, but by “apply[ing] close scrutiny to the specific factors identified and
evaluated by the trial court.” Nixon Peabody, 791 A.2d at 37 (internal quotation
marks omitted). “The decision whether to dismiss an action for forum non
conveniens is entrusted to the sound discretion of the trial court[.]” Medlantic, 791
A.2d at 28; “[w]here the [trial] court has considered all relevant public and private
interest factors, and where its balancing of these factors is reasonable, its decision
deserves substantial deference.” Nixon Peabody, 791 A.2d at 37-38 (internal
quotation marks omitted). Nevertheless, “[a]lthough this court reviews a decision
to dismiss on grounds of forum non conveniens for abuse of discretion, trial court
rulings in this area receive closer scrutiny than most other exercises of
discretion[.]” Blake v. Professional Travel Corp., 768 A.2d 568, 572 (D.C. 2001);
see also Jacobson v. Pannu, 822 A.2d 1080, 1083 (D.C. 2003) (noting that this
court’s review of a ruling on a forum non conveniens motion “does not allow the
trial court the margin of error that the term ‘discretion’ ordinarily signifies”).
“Once this court is satisfied that the trial court took the proper factors into
consideration,” reversal of its ruling on a forum non conveniens motion is
appropriate only when there is a clear abuse of discretion. Nixon Peabody, 791
A.2d at 37. 9
III.
Although the trial court judge correctly articulated most of the foregoing
principles, we agree with appellant that he strayed from them in resolving the
defendants’ motion.
First, the court was required to consider the facts as pled in the amended
complaint and the attachments thereto in the light most favorable to appellant. The
court emphasized in its ruling that allegedly false representations by appellee
Kuessner were made in Virginia and that the roof-repair contract and
unworkmanlike repairs were executed in Virginia, but made no mention in its
analysis of, for example, (1) appellant’s allegations that Kuessner sent
correspondence and made phone calls from his office in the District to urge
appellant to hire AA Roofing Company and to secure an estimate from Hammond
for roof work on appellant’s residence,2 (2) AA Roofing Company’s holding itself
out as a “local roofing company in Washington, D.C.[,]” and (3) appellant’s
2 Analogizing to Jacobson, one might say that appellant’s allegation is that the “consultation [that] cemented the . . . [eventual] relationship” with Hammond and AA Roofing Company occurred in the District. 822 A.2d at 1082. 10
allegation that Hammond and AA Roofing “regularly and systematically
performed roofing services in the District of Columbia[.]”
Second, the court reasoned that Fairfax County, Virginia, rather than the
District, is the “ideal forum for the plaintiff to bring suit.” The court thereby
revealed its focus on whether the District is the more (or most) convenient forum.
The issue, however, was “not whether [Virginia] is the more convenient forum but,
rather, whether the District of Columbia is a seriously inconvenient forum.” Beard
v. South Main Bank, 615 A.2d 203, 208 (D.C. 1992) (Terry, J., concurring)
(emphasis in the original); see also Blake, 768 A.2d at 572 (“[T]he inquiry is not
[w]hether the District of Columbia is the best forum for this litigation, but rather
whether the District has so little to do with this case that its courts should decline
to hear it.” (internal quotation marks omitted)); Hechinger Co., 761 A.2d at 20
(“The purpose of the doctrine of forum non conveniens . . . is to avoid litigation in
a seriously inconvenient forum, rather than to ensure litigation in the most
convenient forum.” (emphasis in the original) (internal quotation marks omitted));
Ussery v. Kaiser Found. Health Plan of Mid-Atlantic States, Inc., 647 A.2d 778,
780 (D.C. 1994) (“The rule is not that jurisdiction should be denied unless such
denial would work an injustice[;] . . . rather that jurisdiction should be taken unless 11
to do so would work an injustice.” (quoting Wilburn v. Wilburn, 192 A.2d 797, 799
(D.C. 1963) (footnote omitted))).3
Third, stating that appellant did “not me[e]t his burden of establishing that
the District is a more convenient forum than Virginia,” the trial court shifted the
burden of persuasion to appellant, relieving defendants of their burden to show that
the District is a seriously inconvenient forum. Yet, burden-shifting is appropriate
“only where there is virtually no link to this jurisdiction.” Coulibaly, 728 A.2d at
604 (internal quotation marks omitted). The burden of proof may shift from the
defendant to the plaintiff “when neither party resides in the District” and “the
plaintiff’s claim has arisen in another jurisdiction which has more substantial
contacts with the cause of the action [than does the District.]” Id. at 603 (quoting
Neale v. Arshad, 683 A.2d 160, 163 (D.C. 1996)). Here, although the motion to
dismiss on the ground of forum non conveniens was filed only by Hammond and
AA Roofing, both non-domiciliaries of the District, the court could not properly
3 Appellant’s brief suggests that “the most serious risk of ‘inconvenience’ would appear to be to [his breach of contract, fraud, conspiracy, and consumer protection] claim[s] . . . if []he cannot litigate [them] in the District.” Blake, 768 A.2d at 574. Appellant asserts that the Virginia statute of limitations may preclude him from pursuing those claims in Virginia. See Mobley v. Southern Ry. Co., 418 A.2d 1044, 1047 (D.C. 1980) (explaining that an essential predicate to invocation of the doctrine of forum non conveniens is the “availability of an alternative forum”). 12
ignore the fact that one of the defendants, appellee Kuessner, is a District resident.
Cf. Carr v. Bio-Medical Applications of Washington, Inc., 366 A.2d 1089, 1092-93
(D.C. 1976) (upholding a dismissal for forum non conveniens where “[a]ll of the
physicians named as defendants reside in Maryland and are licensed to practice
medicine in that State[,]” “[t]he professional corporation composed of these
doctors is a Maryland corporation[,]” and “Bio-Medical, the owner of the
Maryland hemodialysis center where decedent was regularly treated, is a Delaware
corporation qualified to do business exclusively in Maryland”). Among the facts
pled were not only that defendant/appellee Kuessner resides in the District, but also
that he worked to persuade appellant to utilize the services of AA Roofing
Company from his office in the District, and that AA Roofing Company held itself
out as a “local roofing company in Washington, D.C.[,]” solicited roofing business
in the District, and worked through its alleged agent in the District (appellee
Kuessner) to convey an estimate to appellant (allegedly as part of a conspiracy to
defraud). Had the court focused on these allegations and taken them as true, it
could not reasonably have concluded that there is “virtually no link” between the
causes of action alleged and this jurisdiction. Coulibaly, 728 A.2d at 604.
Fourth, “[i]n reviewing a trial court decision for abuse of discretion, we must
determine whether the decision maker failed to consider a relevant factor[.]” Id. at 13
603 (internal quotation marks omitted). The court here reasoned that the
“plaintiff’s dispute with these defendants has no relationship to the District
whatsoever[.]” In so reasoning, it failed to consider the factors discussed in the
paragraph above. Further, in reasoning that there was no relationship to the
District that could “justify the imposition of jury duty on its citizens[,]” the court
unreasonably failed to consider the interest of District residents in holding
accountable defendants who engage in unfair trade practices involving a type of
service the defendants also provide in the District of Columbia. Cf. Medlantic, 791
A.2d at 32 (where decedent’s death allegedly was caused by appellants’ negligent
care in Maryland, “the District of Columbia, no less than the state of Maryland, has
a significant interest in how resident corporations conduct business, especially
where, as here, defendants also provide similar medical care in the District”). We
are constrained to hold that the trial court did not “reasonably evaluate[] the motion
in light of the relevant factors.” Blake, 768 A.2d at 572 (internal quotation marks
omitted).
Further, unless the balance of the Gulf Oil private factors was strongly in
favor of the appellees, this was not the “rare[]” case in which plaintiff/appellant’s
choice of forum should be disturbed. Coulibaly, 728 A.2d at 601 (explaining that
it is when “the trial judge finds th[e] balance of private interests to be in equipoise 14
or near equipoise[ that] he must then determine whether or not factors of public
interest tip the balance in favor of a trial in a foreign forum” (emphasis in
original)). In the trial court’s estimation, there was no such strong balance in favor
of the appellees, as the court found “no potential obstacles to a fair trial and no
evidence of intent on the part of the plaintiff to engage in harassing or vexatious
litigation,” and the court had nothing more to say about the private interest factors
other than that plaintiff would need to “take any judgment to the state of
Maryland” to have it enforced against appellees Hammond and AA Roofing. This
was not a consideration that was strongly in favor of dismissal.4
4 A District of Columbia judgment against AA Roofing and Hammond could be enforced by enrolling it in Maryland pursuant to that state’s Uniform Enforcement of Foreign Judgments Act. See Md. Code Ann., Cts. & Jud. Proc. §§ 11-801 to 11-807 (West 2015); see also Mike Smith Pontiac, GMC, Inc. v. Mercedes-Benz of N. Am., Inc., 741 A.2d 462, 467-69 (Md. 1999). This case is not one in which a District judgment would need to be taken to a foreign country where the ability to obtain enforcement at all is questionable. Cf. Coulibaly, 728 A.2d at 599.
In addition, if this case were filed in Virginia, the jurisdiction the trial court found “most appropriate[,]” appellant would have to perform even more steps in order to enforce any judgment he might receive. The record does not show that any of the appellees has assets in Virginia. Therefore, appellant would have to domesticate a Virginia judgment in both Maryland and the District — whereas, if the case remained here, appellant would have to domesticate the judgment in only one other jurisdiction, Maryland. When the matter is viewed this way, the District is at least arguably a more convenient forum than Virginia. 15
Finally, the trial court found that “administrative difficulties would accrue
from th[e] court having to ascertain and apply the [substantive] state law for
Virginia, [which the parties agreed would apply,] with which th[e] . . . court would
have to gain familiarity[.]” However, “[o]ur courts are not unfamiliar with
applying the laws of other jurisdictions,” Medlantic, 791 A.2d at 33 (internal
quotation marks omitted),5 and they “routinely adjudicate disputes among citizens
of the District, Maryland, and Virginia where choice of law and conflicts of law
issues abound.” Jacobson, 822 A.2d at 1085. This case does not “involv[e the]
possible peculiarities of state law from a geographically distant jurisdiction rarely
addressed here.” Id. Nor is it apparent (and appellees did not argue) that the trial
court, in applying Virginia law, would be required to “untangle problems . . . in
law foreign to itself.” Gulf Oil, 330 U.S. at 509. “[A]t this stage of the
proceedings, where the substantive issues in dispute have scarcely been developed,
we are justifiably skeptical of the defendants’ argument that . . . a Superior Court
judge . . . would be unable to decide . . . correctly” any issue involving Virginia
law. Auerbach v. Frank, 685 A.2d 404, 411 (D.C. 1996). We must conclude that
the trial court gave undue weight to the burdensomeness of having to apply
5 See also id. at 32 (questioning whether litigation involving conduct in neighboring counties “can[] fairly be characterized as ‘foreign’”); Coulibaly, 728 A.2d at 598 (referring to this “integrated metropolitan area”). 16
Virginia law. We also conclude that it is “not unreasonable to impose jury service
on District citizens to decide this case” since “the defendants are present and doing
business in D.C.” Medlantic, 791 A.2d at 33.6
Ordinarily, after we have determined that the trial court improperly
exercised its discretion when evaluating the forum non conveniens factors, we
remand the case, so that the trial court can conduct a reevaluation using the correct
standards. Coulibaly, 728 A.2d at 605. However, “where the trial court [has]
conducted an incomplete or partially erroneous analysis,” as happened here, “this
court may conduct the analysis based on the facts of record if there is but one
permissible conclusion.” Medlantic, 791 A.2d at 31; see also Jacobson, 822 A.2d
at 1084 (noting that this court has “used our heightened review of trial court
discretion in these cases to apply the [Gulf Oil] factors ourselves in ruling that the
trial court erred as a matter of law”). We conclude that there is only one
permissible conclusion in this case. For the reasons we have already described, the
6 We also note that “‘where this court has approved or ordered dismissal on forum non conveniens grounds, it has conditioned dismissal on the waiver of the statute of limitations in the alternative forum.’” Future View, 755 A.2d at 434 (quoting Guevara v. Reed, 598 A.2d 1157, 1161 (D.C. 1991)). That the trial court granted the motion to dismiss on forum non conveniens grounds without considering whether some or all of appellant’s claims would be time-barred in Virginia, and without addressing the need for a waiver of any statute of limitations defense in that jurisdiction, is another reason why the court’s ruling does not survive close appellate scrutiny. 17
appellees’ motion to dismiss on the basis of forum non conveniens should not have
been granted.
IV.
For the foregoing reasons, we reverse the order of dismissal and remand the
case to the trial court for further proceedings consistent with this opinion.
So ordered.