RICHARD W. ROBERTS, District Judge.
Plaintiff Monica Loreto filed this complaint against defendants Myra Cushman and Karen Portillo to resolve a dispute over the administration of the estate of Anne Cushman. The defendants moved to dismiss for, among other things, lack of personal jurisdiction and improper venue, and Loreto moved to amend her complaint. Because Loreto has not established that this court may exercise personal jurisdiction over the defendants or that venue is proper here, and because Loreto's proposed amended complaint would not remedy either defect, Loreto's motion to file an amended complaint will be denied without prejudice, and this case will be transferred to the United States District Court for the District of Maryland.
Anne Cushman passed away in 2006. She had three children — daughters Myra Cushman and Portillo, and son Charles Cushman. After Anne
The defendants moved to dismiss the complaint, arguing, among other things, that venue is improper in the District of Columbia and that the defendants are not subject to personal jurisdiction in the District of Columbia. Defs.' Mot. to Dismiss at 1. Loreto did not file a timely opposition,
"`The defendant has the burden of showing why leave to file an amended complaint should not be granted.'" Dickerson v. Dist. of Columbia, 806 F.Supp.2d 116, 118 (D.D.C.2011) (quoting Smith v. Cafe Asia, 598 F.Supp.2d 45, 48 (D.D.C. 2009)). "The decision whether to grant leave to amend a complaint is within the discretion of the court, but leave `should be freely given unless there is a good reason, such as futility, to the contrary.'" Dickerson, 806 F.Supp.2d at 118 (quoting Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C.Cir.1996)). Amendments are futile when the proposed claims "`would not survive a motion to dismiss.'" Smith, 598 F.Supp.2d at 48 (quoting James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C.Cir.1996)). A claim fails to survive a motion to dismiss filed under Rule 12(b)(6) when it does not plead sufficient factual detail to state a claim that is "`plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
"`It is plaintiff's burden to make a prima facie showing that the Court has personal jurisdiction over the defendants.'" Gomez v. Aragon, 705 F.Supp.2d 21, 23 (D.D.C.2010) (quoting Ballard v. Holinka, 601 F.Supp.2d 110, 117 (D.D.C. 2009)). A plaintiff may not rely on conclusory allegations as the basis for establishing personal jurisdiction. Akers v. Watts, 740 F.Supp.2d 83, 91 (D.D.C.2010) (citing Moore v. Motz, 437 F.Supp.2d 88, 91 (D.D.C.2006)); see also Dean v. Walker, 756 F.Supp.2d 100, 102 (D.D.C.2010) (stating that "[b]are allegations or conclusory statements are insufficient to establish personal jurisdiction"). Personal jurisdiction in this case "must be determined by reference to District of Columbia law." United States v. Ferrara, 54 F.3d 825, 828 (D.C.Cir.1995).
"A District of Columbia court may exercise personal jurisdiction over a person domiciled in, ... or maintaining his... principal place of business in, the District of Columbia as to any claim for relief." D.C.Code § 13-422. For defendants like Myra and Portillo who are not domiciled in the District of Columbia,
Courts have been somewhat demanding in the quantum of proof required to demonstrate personal jurisdiction over non-domiciliaries. The Supreme Court has stated that "[t]he unilateral activity of those who claim some relationship with a nonresident defendant cannot satisfy the requirement of contact with the forum state." Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985). The District of Columbia Court of Appeals found that physicians practicing in Virginia who were licensed in D.C., who were listed in the D.C. yellow pages and a referral list in the International Monetary Fund's ("IMF's") health center in D.C., who regularly attended professional education gatherings in D.C., and who took a phone call from a patient at the IMF in D.C. were not transacting business in D.C. Etchebarne-Bourdin v. Radice, 982 A.2d 752, 758-60 (D.C.2009). Nor was a foreign law firm that negotiated in the District to perform legal representation abroad for a District entity, and sent electronic communications and invoices to the entity in the District. Exponential Biotherapies, Inc. v. Houthoff Buruma N.V., 638 F.Supp.2d 1, 7-8 (D.D.C.2009). Likewise, a Florida accounting firm did not transact business in D.C. by providing accounting services and financial instruments to a D.C. client and faxing and telephoning the client in D.C. Burman v. Phoenix Worldwide Indus., 437 F.Supp.2d 142, 148-49. See also Dynamic Concepts, Inc. v. U-Tech Servs. Corp., Civil Action No. 99-1260(EGS), 2000 U.S. Dist. LEXIS 6497, at 17-20 (D.D.C. Jan. 31, 2000) (finding that defendant who negotiated with plaintiff while plaintiff was in D.C., sent plaintiff payment from a D.C. bank, and contacted plaintiff in D.C. by mail, telephone and fax did not transact business in D.C.); Mitchell Energy Corp. v. Mary Helen Coal Co., 524 F.Supp. 558, 564 (D.D.C.1981) (stating that the "[e]xchange of letters and telephone communications with a party in the District of Columbia alone is not considered a jurisdictionally significant contact" and finding that the defendant did not transact business in the District).
Here, neither Loreto's complaint nor her motion to amend nor her proposed amended complaint establishes personal jurisdiction over the defendants. In three separate filings, each presenting opportunities to specify facts showing that the defendants were transacting business within the District to meet the requirements of the District's long arm statute, and that exercising personal jurisdiction over the defendants in the District of Columbia would be
In addition, Loreto's complaint does not establish that venue is proper in the District of Columbia under 28 U.S.C. § 1391. When, as here, jurisdiction is based solely on diversity of citizenship, the applicable venue provision is 28 U.S.C. § 1391(a), which states that venue is proper in a judicial district (1) "where any defendant resides, if all defendants reside in the same State," (2) "in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial 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)(1)-(3). The defendants do not reside in the District of Columbia, the District of Columbia was not the location where a substantial part of the events giving rise to the claim occurred, and the defendants are not subject to personal jurisdiction in the District of Columbia.
As the defendants imply, Defs.' Stmt. of P. & A. in Supp. of Defs.' Mot. to Dismiss at 5, 8-9, Loreto's action may be transferred to a proper venue even though this court lacks personal jurisdiction over the defendants. See Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C.Cir. 1983). Under 28 U.S.C. § 1406(a), the "district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district ... in which it could have been brought." Transfer is appropriate under § 1406(a) when procedural obstacles prevent a timely adjudication on the merits. Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C.Cir.1983) (citing Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962)). Procedural obstacles include "lack of personal jurisdiction, improper venue, and statute of limitation bars." Sinclair, 711 F.2d at 294. "Generally, the interests of justice require transferring such cases to the appropriate judicial district rather than dismissing them." Poku v. FDIC, 752 F.Supp.2d 23, 25 (D.D.C.2010). "The decision to transfer an action [under § 1406(a)] is left to the discretion of the Court." Baez v. Connelly, 734 F.Supp.2d 54, 58 (D.D.C.2010). "Courts can determine venue by applying a `commonsense appraisal' of events having operative significance." James v. Booz-Allen & Hamilton, Inc., 227 F.Supp.2d 16,
The parties have not addressed to which district this case should be transferred in the event that it is not dismissed. However, a commonsense appraisal of the significant events in this case reveals that venue would be appropriate in the District of Maryland. Anne's property about which both the original and proposed amended complaint seek relief is in Maryland, and Myra resides in Maryland. Rather than dismissing this case for lack of personal jurisdiction over the defendants, the court will transfer it in the interest of justice to the District of Maryland.
The plaintiff has not shown that this court has personal jurisdiction over the defendants, and the plaintiff has not established that venue in the District of Columbia is proper for her action. The proposed amended complaint would cure neither defect. Because venue is improper here but would be proper in the District of Maryland, it is hereby
ORDERED that the defendant's motion to dismiss be, and hereby is, GRANTED IN PART. The Clerk is directed to transfer this case to the United States District Court for the District of Maryland. The remainder of the defendants' motion to dismiss is otherwise left for decision by the transferee Court. It is further
ORDERED that the plaintiff's motion [6] for leave to file an amended complaint be, and hereby is, DENIED without prejudice.