Gradillas Court Reporters, Inc. v. Cherry Bekaert, Llp et al

MOTION to Dismiss for improper venue pursuant to Rule 12

D.D.C.July 10, 2017

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GRADILLAS COURT : REPORTTERS, INC. : : Plaintiff, : : Case No. 1:17-cv-01164 (BAH) v. : : CHERRY BEKAERT, LLP, et al. : : Defendants : DEFENDANTS’ MOTION TO DISMISS PURSUANT TO FEDERAL RULES OF CIVIL PROCEDURE 12(b)(2) AND 12(b)(3) OR IN THE ALTERNATIVE TO TRANSFER VENUE Defendants Cherry Bekaert, LLP and Sara Crabtree, by counsel and pursuant to Fed. R. Civ. P. 12(b)(2),12(b)(3), 28 U.S.C. § 1406, and 28 U.S.C. § 1404(a), move the Court for an order dismissing this case for lack of personal jurisdiction and improper venue. Or, in the alternative, to transfer the case to the United States District Court for the Eastern District of Virginia in the interests of justice and for the convenience of the Parties. The reasons that support this relief are more thoroughly explained in the accompanying Memorandum of Points and Authorities. Case 1:17-cv-01164-BAH Document 11 Filed 07/10/17 Page 1 of 2 Respectfully submitted, CHERRY BEKAERT, LLP; and SARA CRABTREE By Counsel, CARR MALONEY P.C. By: /s/ J. Peter Glaws, IV Kevin M. Murphy, #388476 J. Peter Glaws, IV, #1013049 Carr Maloney P.C. 2020 K Street, NW, Suite 850 Washington, D.C. 20006 (202) 310-5500 (Telephone) (202) 310-5555 (Facsimile) kmm@carrmaloney.com jpg@carrmaloney.com CERTIFICATE OF SERVICE I hereby certify that on this 10th day of July 2017, a copy of the foregoing Motion to Dismiss was served via the Court’s electronic filing system to: Suzelle M. Smith (#376384) Howarth & Smith 512 West Sixth Street, Suite 728 Los Angeles, CA 90014 Telephone: (213) 955-9400 Facsimile: (213) 622-0791 ssmith@howarth-smith.com Counsel for Plaintiff /s/ J. Peter Glaws, IV Case 1:17-cv-01164-BAH Document 11 Filed 07/10/17 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GRADILLAS COURT : REPORTTERS, INC. : : Plaintiff, : : Case No. 1:17-cv-01164 (BAH) v. : : CHERRY BEKAERT, LLP, et al. : : Defendants : MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THE DEFENDANTS’ MOTION TO DISMISS FOR IMPROPER VENUE, LACK OF PERSONAL JURISDICTION, OR IN THE ALTERNATIVE, TO TRANSFER VENUE TO THE U.S. DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA CARR MALONEY P.C. Kevin M. Murphy, #388476 J. Peter Glaws, IV, #1013049 2020 K Street, NW, Suite 850 Washington, D.C. 20006 (202) 310-5500 (Telephone) (202) 310-5555 (Facsimile) kmm@carrmaloney.com jpg@carrmaloney.com Counsel for Defendants Cherry Bekaert, LLP And Sara Crabtree July 10, 2017 Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 1 of 26 ii TABLE OF CONTENTS Introduction ................................................................................................................................................... 1 Statement Of Facts ........................................................................................................................................ 2 Legal Standard .............................................................................................................................................. 4 I. Improper Venue ............................................................................................................................ 4 II. Lack of Personal Jurisdiction ...................................................................................................... 5 Argument ...................................................................................................................................................... 6 I. The Court should dismiss the Complaint because venue is not proper in the District of Columbia ............................................................................................................... 6 a. Venue is not proper under 28 U.S.C. 1391(a)(1) because at least one of the Defendants does not reside in the District of Columbia. .............................................. 7 b. Venue is not proper under 28 U.S.C. § 1391(a)(2) because none of the acts or omissions giving rise to the Plaintiff’s claim occurred in the District of Columbia ......................................................................................................... .8 c. Venue is not proper under 28 U.S.C. § 1391(a)(3) because the Eastern District of Virginia is an available forum for this case ................................. 10 II. The Court should dismiss the Complaint because the District of Columbia does not have personal jurisdiction over either of the Defendants ................................ 11 a. Plaintiff Gradillas cannot meet its burden to plead facts in support of general personal jurisdiction pursuant to D.C. Code § 13-422 over the Defendants in the District of Columbia, the sole basis for personal jurisdiction alleged in the Complaint ............................................................................................................... 11 b. The Complaint otherwise fails to plead systematic and continuous contacts with the District of Columbia by the Defendants, which also bars the application of general personal jurisdiction ................................................................. 12 c. Under the facts of this case, the exercise of general jurisdiction or specific personal jurisdiction pursuant to D.C.’s long-arm statute is barred by the Government Contacts Exception ....................................................................... 16 Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 2 of 26 iii III. In the alternative to dismissal for improper venue and lack of personal jurisdiction, the Court should transfer this case to the United States District Court for the Eastern District of Virginia ..................................................................................... 17 a. Transfer is warranted under 28 U.S.C. § 1406 to remove the procedural obstacles of lack of personal jurisdiction and improper venue .................................. 17 b. The Court should also transfer this action to the U.S. District Court for the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a) for the convenience of the Parties and in the interests of justice ........................................... 18 Conclusion .................................................................................................................................................. 21 Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 3 of 26 1 Introduction This is an accounting malpractice case by a California Plaintiff against one Virginia and one North Carolina Defendant. According to the Complaint, the Defendants allegedly failed to submit a timely bid proposal to the U.S. Securities and Exchange Commission. The Court, however, should dismiss this case for two, independent, reasons. First, the U.S. District Court for the District of Columbia is not the proper venue for this case. Second, there is no personal jurisdiction over any of the Defendants in the District of Columbia. Specifically, there is no general or specific personal jurisdiction over Defendant Cherry Bekaert, LLP (“CB”) or its employee, Defendant Sara Crabtree. Under the federal venue statute governing this claim, 28 U.S.C. § 1391(a), venue is not proper in the U.S. District Court for the District of Columbia because none of the Defendants reside in D.C., none of the acts or omissions giving rise to the claim occurred in D.C., there is no property subject to this litigation situated in D.C., and venue is otherwise available in the U.S. District Court for the Eastern District of Virginia. With regard to personal jurisdiction, general jurisdiction as defined in D.C. Code § 13-422, the sole jurisdictional ground alleged in the Complaint, is absent for two reasons: (1) CB is a North Carolina Limited Liability Partnership with its principle place of business in Richmond, Virginia, it has no office in the District of Columbia; and (2) Ms. Crabtree is a resident of Virginia Beach, Virginia and works out of CB’s office in Virginia Beach. In fact, Ms. Crabtree has never performed professional work for Plaintiff Gradillas in the District of Columbia and can only recall one day in the last five years where she met another CB client in D.C. Thus, under the plain language of D.C. Code §13-422, neither of the Defendants fall within the class of persons subject to general jurisdiction thereunder. Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 4 of 26 2 Moreover, although not pleaded, the Court also does not have general personal jurisdiction over the Defendants under principles of “doing business” in the District of Columbia. The Complaint fails to allege systematic and continuous business contacts with the District of Columbia and, accordingly, the Court does not have general personal jurisdiction. There is also no specific jurisdiction over the Defendants in the District of Columbia. This is because, under the facts of this case, all alleged “contacts” with the District of Columbia consist of communications or submissions to the U.S. Securities and Exchange Commission, or various other federal agencies. Such contacts by non-residents, however, as a matter of law, do not constitute doing business in the District of Columbia under the Government Contacts Exception to D.C.’s long-arm statute. For these reasons, as more fully explained throughout this Memorandum, Defendants Cherry Bekaert, LLP and Sara Crabtree, by counsel, move the Court for an order dismissing this case for improper venue and lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(3). The Defendants, however, recognize that personal jurisdiction appropriately exists in the Commonwealth of Virginia, that the alleged acts or omissions giving rise to this case occurred in Virginia, and all of the Defendants reside within the boundaries of the U.S. District Court for the Eastern District of Virginia. Thus, in the alternative to dismissing this case, the Court should transfer venue to the Eastern District of Virginia. Statement of Facts Plaintiff Gradillas Court Reporters, Inc. is a court reporting company operating out of Glendale California. (See generally Compl.; see also Exhibit 1 (engagement letter listing Beverly Hills, CA address.)) In early 2012, Gradillas contacted the Virginia Beach, Virginia office of CB Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 5 of 26 3 and subsequently signed an engagement agreement whereby CB was to “provide general consulting and accounting assistance as requested by [Gradillas] . . . including, but not limited to . . ., advising on government contract matters and proposals . . . as mutually agreed.” (Ex. 1; see also Compl. ¶ 17.)1 Thereafter, CB and Ms. Crabtree performed various services at the request of Gradillas. (Compl. ¶ 18.) All services performed by CB for Gradillas were from its office in Virginia Beach, Virginia. (See Crabtree Affidavit ¶¶ 13-14 (cited hereafter as Exhibit 2); Affidavit of John Carpenter ¶¶ 13-14 (cited hereafter as Exhibit 3.) CB is a Limited Liability Partnership organized under the laws of the State of North Carolina, with its principle place of business in Richmond, Virginia. (Affidavit of Cherry Bekaert, LLP ¶ 4 (cited hereafter as Exhibit 4).) CB does not maintain an office within the District of Columbia. (Id. ¶ 6.) Nor does any CB partner reside within the District. (Id. ¶ 7.) According to the Complaint, CB’s “contacts” with the District consist of offices in Tyson’s Corner, Virginia and Bethesda, Maryland, a Government Contractor Consulting Services practice area, website advertisements, and providing accounting and government contract consulting services to Plaintiff Gradillas. (Compl. ¶¶ 3, 9-12.) Ms. Crabtree has never performed professional services within the District of Columbia for Gradillas, and can only recall one day in the last five years when she entered the District to meet with one client and have dinner with another the same evening. (Ex. 2 ¶ 12.) Nor has Ms. Crabtree ever lived in the District of Columbia. (Id. ¶ 8.) According to the Complaint, the only “contact” Ms. Crabtree has with the District is her work on government contract bids “submitted to the SEC and other government contracts.” (Compl. ¶ 4; see also Compl. ¶ 9 (alleging contact 1 Paragraph 17 alleges Gradillas retained Cherry Bekaert in March 2013, but the applicable engagement agreement was signed by Gradillas on March 27, 2012. (Ex. 1.) Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 6 of 26 4 with “Washington, D.C. based SEC Contracting officers[,]” and submission of the bid at issue “by Defendant Crabtree to the SEC in the District”).) On February 24, 2017, Gradillas contacted the Defendants requesting assistance with submission of a bid to perform court reporting services for the U.S. Securities and Exchange Commission. (Compl. ¶ 26.) The SEC bid was to be submitted no later than March 17, 2017 at 12:00pm EST. (Id. ¶ 25.) That same day, Ms. Crabtree acknowledged the request for assistance from Gradillas and began assisting in preparing the bid, “as she had in the past,” from her office in Virginia Beach (Compl. ¶ 27; Ex. 2 ¶ 13; Ex. 13.) As had been the case since the inception of the professional relationship, these communications were between Gradillas in California and CB and Ms. Crabtree in Virginia Beach. (Id.) According to the Complaint, the Defendants failed to timely submit the SEC bid, which allegedly caused its rejection. (See generally Compl.) Legal Standard I. Improper Venue. Where, as here, a case is removed from D.C. Superior Court to the U.S. District Court for the District of Columbia based on this Court’s diversity jurisdiction, the plaintiff bears the burden of establishing venue is proper under 28 U.S.C. § 1391(a). Cooper v. Farmers New Century Ins. Co., 593 F. Supp. 2d 14 (2008) (Upon removal of a case to this Court under diversity jurisdiction, Judge Kollar-Kotelly evaluating a defendant’s Rule 12(b)(3) motion to dismiss for improper venue under the three prongs of 28 U.S.C. § 1391(a)). Under “Federal Rule of Civil Procedure 12(b)(3), a defendant may, at the lawsuit's outset, test whether the plaintiff has brought the case in a venue that the law deems appropriate.” King v. Caliber Home Loans, Inc., 210 F. Supp. 3d 130, 134 (D.D.C. 2016) citing Johns v. Newsmax Media, Inc., 887 F. Supp. 2d 90, 96 (D.D.C. 2012). “In order to prevail on a motion to dismiss for improper venue, a defendant must present facts that will Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 7 of 26 5 defeat the plaintiff's assertion of venue, but the burden remains on the plaintiff to prove that venue is proper when an objection is raised, since it is the plaintiff's obligation to institute the action in a permissible forum.” Id citing Roland v. Branch Banking & Trust Corp., 149 F. Supp. 3d 61, 67 (D.D.C. 2015) (internal quotation marks omitted). “In considering a motion to dismiss for improper venue, the Court must accept the factual allegations of the complaint regarding venue as true and must draw all reasonable inferences in favor of the plaintiff.” Id. (internal citation omitted). “Moreover, the Court may resolve the motion on the basis of the complaint alone, or, as necessary, it may examine facts outside the complaint that are presented by the parties, while drawing reasonable inferences in favor of the plaintiff.” Id. citing McCain v. Bank of America, 13 F. Supp. 3d 45, 51 (D.D.C. 2014). “If the Court concludes that venue is improper, it must then decide whether to dismiss the action or to transfer the case to a district where it could initially have been instituted.” Caliber Home Loans, Inc., 210 F. Supp. 3d at 134 citing 28 U.S.C. § 1406(a). “As the D.C. Circuit has observed, ‘[r]efusal to transfer spells the end to the action, while transfer would not prejudice the defendants' position on [the] merits,’ and ‘[t]he Supreme Court has inferred a congressional purpose underlying section 1406(a) favoring the transfer of cases when procedural obstacles impede an expeditious and orderly adjudication . . . on the merits.” Id. citing Sinclair v. Kleindienst, 711 F.2d 291, 293-94 (D.C.Cir. 1983) (quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962)). II. Lack of Personal Jurisdiction. When evaluating a motion to dismiss for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2), the “[p]laintiff bears the burden of establishing personal jurisdiction over each individual defendant.” Burman v. Phoenix Worldwide Indus., Inc., 437 F. Supp. 2d 142, Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 8 of 26 6 147 (D.D.C. 2006) citing Atlantigas Corp. v. Nisource, Inc., 290 F. Supp. 2d 34, 42 (D.D.C. 2003). “In the absence of an evidentiary hearing, ... [the plaintiff] can satisfy [its] burden with a prima facie showing.” Id. citing Mwani v. bin Laden, 417 F.3d 1, 7 (D.C.Cir. 2005). “In order to meet [this] burden, [the] plaintiff must allege specific facts on which personal jurisdiction can be based; . . . [the plaintiff] cannot rely on conclusory allegations.” Id. citing Atlantigas Corp., 290 F. Supp. 2d at 42. “Furthermore, the plaintiff cannot aggregate factual allegations concerning multiple defendants in order to demonstrate personal jurisdiction over any individual defendant.” Id. In diversity cases, such as this Case, “a federal district court must look to the jurisdictional law of the forum where it presides to determine whether it has personal jurisdiction over a non- resident defendant.” Phoenix Worldwide, 437 F. Supp. 2d at 147 citing Fed. R. Civ. P. 4(e). “Under District of Columbia law, personal jurisdiction can be satisfied either by demonstrating that the court has general jurisdiction pursuant to D.C. Code § 13-422 (2001) or that the court has personal jurisdiction pursuant to the District of Columbia long-arm statute, D.C. Code § 13-423 (2001).” Id. “The plaintiffs bear the ‘burden of establishing a factual basis for the exercise of personal jurisdiction over the defendant.’” Id. citing Crane v. New York Zoological Soc'y, 894 F.2d 454, 456 (D.C.Cir.1990). “In determining whether such a basis exists, factual discrepancies appearing in the record must be resolved in favor of the plaintiff[s].” Id Argument I. The Court should dismiss the Complaint because venue is not proper in the District of Columbia. In a civil case removed to this Court under the Court’s diversity jurisdiction, whether venue is proper is contingent on the case falling within one of the categories set out in 28 U.S.C. § 1391(a). Cooper, 593 F. Supp. 2d at 18, 19-21; Buchanan v. Manley, 145 F.3d 386, 389 (D.C. Cir. 1998). The three categories outlined in 1391(a) make venue proper in a judicial district where: (1) Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 9 of 26 7 any defendant resides, if all defendants reside in the same State, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) where 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. Buchannan, 145 F.3d at 389 citing 28 U.S.C. 1391(a)(1)-(3). Where, as here, “the propriety of venue in this district [is] challenged, the Court must evaluate whether venue is proper here under any of the three prongs.” Delta Sigma Theta Sorority v. Bivins, 20 F. Supp. 3d 207, 211 (D.D.C. 2014) (analyzing the three prongs that provide a basis for venue in federal question cases under 1391(b)); See also Cooper, 593 F. Supp. 2d at 19-22. Under the facts of this case, venue is not proper in this Court and the case should be dismissed or transferred to the U.S. District Court for the Eastern District of Virginia. a. Venue is not proper under 28 U.S.C. 1391(a)(1) because at least one of the Defendants does not reside in the District of Columbia. In this case, there is no dispute that Ms. Crabtree does not reside in the District of Columbia. She is a resident of Virginia Beach, Virginia. (Ex. 2 ¶ 3, 6; see also Compl. at case caption.) For this reason, Venue is not proper under Section 1391(a)(1). For a civil diversity case to come within the scope of 1391(a)(1), all of the defendants must reside in the same state in which the action is pending at the time the claim is commenced. See, e.g., Dashman v. Peter Letterese & Assocs., Inc., 999 F. Supp. 553, 555 (S.D.N.Y. 1998). If that threshold is met, venue lies in a judicial district within the state that encompasses the residence of any of the defendants. Id. For cases pending in the U.S. District Court for the District of Columbia, if one defendant in a multi-defendant case does not reside in D.C., Section 1391(a)(1) does not support venue in this Court. Buchannan, 145 F.3d at 389. Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 10 of 26 8 There is no allegation in the Complaint that Ms. Crabtree is a resident of the District of Columbia. Additionally, both the case caption and Ms. Crabtree’s affidavit show that she is not a D.C. resident. Rather, Ms. Crabtree is a resident of Virginia Beach, Virginia. (Ex. 2 ¶ 6.) Moreover, because Ms. Crabtree is not a D.C. resident, the residency of other defendants, including CB, as the corporate defendant, is not relevant under 1391(a)(1). E.g., Buchannan, 145 F.3d at 389. For these reasons, Venue is not proper in this Court and the case should be dismissed or transferred to the U.S. District Court for the Eastern District of Virginia. b. Venue is not proper under 28 U.S.C. § 1391(a)(2) because none of the acts or omissions giving rise to the Plaintiff’s claim occurred in the District of Columbia. Since the inception of the relationship in 2012, all work performed by CB and Ms. Crabtree on behalf of Gradillas has been out of CB’s office in Virginia Beach, Virginia. (Ex. 2 ¶¶ 13-14; Ex. 3 ¶¶ 13-14.) The same holds true for the work underlying this claim. (Id.) In February and March 2017, CB and Ms. Crabtree attempted to assist Gradillas with a bid proposal to be submitted to the SEC. (Compl. ¶¶ 22-27.) Ms. Crabtree performed all work associated with this potential bid in Virginia Beach, “as she had in the past.” (Compl. ¶ 27; Ex. 2 ¶¶ 13-14.) Significantly, the basis of the Complaint is CB’s alleged failure to timely submit the bid proposal to the SEC. (Compl. ¶ 29.) In this regard, the sole basis for this claim is an alleged omission occurring outside of the District of Columbia, at the Virginia Beach office of CB. Under 28 U.S.C. § 1391(a)(2), venue is proper in any judicial district where a “substantial part of the events or omissions giving rise to the claim occurred.” Buchannan, 145 F.3d at 389; see also Cooper, 593 F. Supp. 2d at 20-21. Although Section 1391(a)(2) does not require the Court to “determine which forum represents the ‘best’ venue . . ., 1391(a)(2) focuses venue on those districts in which the events or omissions supporting a claim [are] substantial.” Abramoff v. Shake Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 11 of 26 9 Consulting, L.L.C., 288 F. Supp. 2d 1, 4 (D.D.C. 2003) (internal citations omitted). To this extent, “[o]nly locations hosting a substantial part of the events that directly give rise to a claim are relevant. Id. citing Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir. 2003) (internal quotations omitted) (emphasis added). “Moreover, because the general-venue statute protects the defendant, courts often focus on the relevant activities of the defendant, rather than the plaintiff, in determining where a substantial part of the underlying events occurred.” Id. (internal citations omitted). Finally, the fact that Gradillas alleges it will feel damages in the District of Columbia “does not create venue under section 1391(a)(2).” Id. In the Complaint, Gradillas attempts to skirt the venue requirements by focusing on its work. For example, Gradillas alleges that venue in D.C. is proper because it “does substantial business in the District” and because “work performed by Defendants on behalf of Gradillas was for Washington, D.C. based contracting officers.” (Compl. ¶ 9.) This line of argument, however, throws settled analysis of venue under Section 1391(a)(2) on its head because it focuses solely on the work of Plaintiff Gradillas rather than on the activities of the Defendants that directly give rise to the claim. Abramoff, 288 F. Supp. 2d at 4. It does not support Venue in the District of Columbia. Accordingly, shifting the focus to actions or omissions of the Defendants allegedly giving rise to the claim, the Complaint does allege “a significant part of the events giving rise to Plaintiff’s Complaint occurred within the District of Columbia.” (Compl. ¶ 9.) This allegation, however, is demonstrably false. (Ex. 2 ¶¶ 10-14; Ex. 3 ¶¶ 11-14.) Not a single alleged act or omission in the Complaint occurred in the District of Columbia. Id. Further, it contradicts the very basis of the claim, i.e., the Defendants’ alleged failure to send a bid proposal to the SEC. (Compl. ¶ 29.) In other words, the Complaint alleges the polar opposite of acts or omissions in the District of Columbia, it alleges a failure to direct action towards the District. Specifically, Gradillas alleges, Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 12 of 26 10 while the Defendants were performing under a contract for professional services in Virginia Beach, Virginia, they failed to direct action toward the SEC in the District of Columbia. (See generally Compl.) To this extent, no inference can be drawn that an alleged failure to send a bid proposal from outside of the District of Columbia to a D.C. based federal government agency actually constitutes acts or omissions occurring within the District of Columbia. Finally, averments in the Complaint to CB’s general business contacts with the District of Columbia are a red herring because they are not relevant to venue under Section 1391(a)(2). (See, e.g., Compl. ¶ 9 alleging venue is proper “because Defendants conduct substantial business in the District.”) Venue focuses on the location of “events or omissions giving rise to the claim.” Buchannan, 145 F.3d at 389. In this case, all work done by CB (including by Ms. Crabtree) occurred from Virginia Beach, Virginia. (Ex. 2 ¶¶ 10-14; Ex. 3 ¶¶ 11-14.) Accordingly, because venue is not proper under 28 U.S.C. § 1391(a)(2), the Court should dismiss the Complaint or transfer the case to the U.S. District Court for the Eastern District of Virginia. c. Venue is not proper under 28 U.S.C. § 1391(a)(3) because the Eastern District of Virginia is an available forum for this case. Both of the Defendants in this matter, CB and Ms. Crabtree, are residents of the Commonwealth of Virginia, within the boundaries of the U.S. District Court for the Eastern District of Virginia. CB is a Limited Liability Partnership with its principle place of business in Richmond, Virginia and Ms. Crabreee is a resident of Virginia Beach, Virginia. (Ex. 4 ¶ 5; Ex. 2 ¶ 6.) Under 28 U.S.C. § 1391(a)(3), venue is proper in “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” Id. (emphasis added). In this case, even if the Court had personal jurisdiction over either of the Defendants, Section 1391(a)(3) does not provide a basis Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 13 of 26 11 for venue because there is another federal district in which this action may be brought. Namely, the United States District Court for the Eastern District of Virginia. II. The Court should dismiss the Complaint because the District of Columbia does not have personal jurisdiction over either of the Defendants. a. Plaintiff Gradillas cannot meet its burden to plead facts in support of general personal jurisdiction pursuant to D.C. Code § 13-422 over the Defendants in the District of Columbia, the sole basis for personal jurisdiction alleged in the Complaint. The Complaint alleges a single basis for personal jurisdiction over the Defendants, D.C. Code §13-422. (Compl. ¶ 9.) Section 13-422 permits courts within the District of Columbia to exercise general personal jurisdiction over a defendant who is “domiciled in, organized under the laws of, or maintaining his or its principle place of business in, the District of Columbia . . . .” D.C. Code §13-422 (2017). In this matter, however, neither Defendant falls within the scope of general personal jurisdiction under D.C. Code § 13-422. CB is legally organized as a Limited Liability Partnership under the laws of the State of North Carolina, has its principle place of business in Richmond, Virginia, and does not maintain an office in the District of Columbia. (Ex. 4 ¶¶ 4-7.) Ms. Crabtree is domiciled in Virginia Beach, Virginia and is an employee of CB in its Virginia Beach, Virginia office. (Ex. 2 ¶ 3, 6.) She has never performed work for Gradillas within the boundaries of the District of Columbia. (Id. ¶ 11.) Further, Ms. Crabtree can only recall meeting clients (not Gradillas) in the District of Columbia on a single day over the last five years in September 2016. (Ex. 2 ¶ 12.) Under these circumstances, the Defendants are not subject to personal jurisdiction in the District of Columbia under D.C. Code § 13-422. See Phoenix Worldwide, 437 F. Supp. 2d at 147 (finding D.C. Code § 13-422 does not confer general jurisdiction over a Florida limited liability partnership, with its principle place of business in Florida, and no office in the District of Columbia.) Since there is no other basis for the Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 14 of 26 12 exercise of personal jurisdiction alleged in the Complaint, the Court should dismiss the claims accordingly or transfer this case to the U.S. District Court for the Eastern District of Virginia. b. The Complaint otherwise fails to plead systematic and continuous contacts with the District of Columbia by the Defendants, which also bars the application of general personal jurisdiction. The Complaint states that CB “conduct[s] substantial business in the District, particularly in regard to government contracts” (Compl. ¶ 9), based on the following allegations: Defendants also have offices in both Tysons Corner, Virginia, and Bethesda, Maryland, which service the District. In fact, Defendants' Tysons Corner office is referred to as their "Washington D.C." office. Defendant Cherry also has a registered agent in the District. (Compl. ¶ 9.) Defendant Cherry advertises its Government Accounting Contract Consulting Services. For example, Defendants website states that Cherry is "[r]anked among the largest accounting and consulting firms in the country, Cherry Bekaert specializes in offering solutions that impact our clients' ability to grow. For more than 65 years, global corporations, private businesses, government entities, nonprofits, emerging firms, start-ups and successful individuals have relied on Cherry Bekaert to guide them forward to their growth destination." See http://www.cbh.com/about/ (last visited April 24, 2017). (Compl. ¶ 10.) Defendant Cherry's website also states that its "team of seasoned and experienced GovCon consultants helps our clients address the complexities that come with federal contracting. We strive to remain responsive and attentive to our clients' accounting and financial needs, while providing innovative and tailored consulting solutions across a wide range of service areas." See Cherry Bekaert, Government Contractor Consulting Services, http://www.cbh.com/services/advisory-services/government- contractor-consulting-services/ (last visited April 24, 2017). (Compl. ¶ 11.) Defendant Cherry further refers to its government contractor consulting services as "Achieving Success When Selling to the Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 15 of 26 13 World's Largest Buyer." See Cherry Bekaert, Government Contractor Consulting Service, http://www.cbh.com/industries/govemment- contractors/ (last visited April 24, 2017).Defendant goes on to detail its services and strengths: For those involved in Federal contracting, compliance is just one of the many complications that you will face. Cherry Bekaert's Government Contractor Services Group understands the complex challenges you face in a regulated environment. Our industry specialists work with hundreds of organizations involved with federal contracting and have the technical know-how and project management experience to help you make the most of emerging opportunities while minimizing FAR, DFAR and DCAA compliance issues. We can help you realize compliance and minimize risk, and more importantly, achieve industry best practices. With our deep focus in this industry, our audit and tax practices bring a unique approach to the government contractor community. Our experienced government contractor advisory team includes former DCAA auditors, contractor CFOs/controllers, contract directors, and banking and government procurement executives. You will benefit from proactive, integrated and timely advice based upon the holistic knowledge we bring to problem solving. Federal Contracting covers organizations in technical services, product manufacturing and engineering, ranging from multi-billion dollar, multi- national corporations, to small businesses, have benefited from our contractor consulting expertise. We've worked successfully with such agencies as DoD, GSA, HHS, SBA, USAID and the IRS on behalf of our Federal Contracting clients. By the way, that's not just our opinion; in a recent survey, many of our clients gave us particularly high marks for our work on regulatory issues. (Compl. ¶ 12.) Boiled down to its essence, the Complaint alleges that general personal jurisdiction exists over the Defendants in the District of Columbia by virtue of CB’s offices in suburban Maryland and Virginia, and CB’s generally accessible internet advertising of its government contractor consulting services. None of these allegations, however, provide a basis for personal jurisdiction. In addition to explicit general personal jurisdiction under D.C. Code § 13-422, D.C. Courts have interpreted D.C. Code § 13-334(a) as permitting “an exercise of general jurisdiction over a Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 16 of 26 14 foreign corporation if the corporation is ‘doing business’ in the District.” Alkanani v. Aegis Defense Services, LLC, 976 F. Supp. 2d 13, 28-29 (D.D.C. 2014). General personal jurisdiction under this “doing business” standard “reaches as far as the limits of constitutional due process” and requires the plaintiff to plead contacts by the defendant “in the forum [that] are continuous and systematic.” Id. at 29 citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 317 (1945) (additional internal citations omitted). Applying this due process standard to general jurisdiction under D.C. Code § 13-334(a), “the defendant's contacts and affiliations with the forum must be so extensive, so constant, and so prevalent that they render the defendant “essentially at home” in the forum.” Alkanani, 976 F. Supp. 2d at 29 citing Daimler 134 S.Ct. 746, 757-58 (2014) (“holding that a company's maintenance of several facilities and a regional office in the forum state, coupled with significant sales in the forum state, was not enough to make the company “essentially at home” in the forum for the purposes of general jurisdiction”). Under the facts of this case, Gradillas fails to plead contacts by either CB or Ms. Crabtree that are so extensive as to render them “essentially at home” in the District of Columbia. With regard to Ms. Crabtree, she has no contacts with the District of Columbia. She lives and works in Virginia Beach, Virginia, owns no property in D.C., and can only recall being in D.C. for work on a single day over the last five years. (Ex. 2 ¶¶ 3-13.) With regard to CB, the Complaint fails to plead contacts that render it “essentially at home” in the District of Columbia for three reasons. First, CB’s website that advertises its Government Contractor Consulting services is not of a nature that enables a user to start and finish a transaction with CB entirely online. As alleged in the Complaint, CB advertises that it can provide consulting services to government contractors. (Compl. ¶¶ 9-12.) There is, however, no allegation in the Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 17 of 26 15 Complaint that CB’s website is anything more than a generally accessible information source. This Court has consistently held that such an internet presence is not sufficient to confer general personal jurisdiction over a defendant in the District of Columbia. See, e.g., Alkanani, 976 F. Supp. 2d at 28-33 (holding that a foreign corporation’s website that advertised security services and a “Washington, D.C.” office located in Reston, Virginia did not confer general personal jurisdiction in the District of Columbia where the website did not allow D.C. residents, or anyone else, to become a customer or enter transaction with the defendant). Second, the fact that CB maintains an office in Tysons Corner, Virginia that the Firm references as its “Washington, D.C. office” (Compl. ¶ 9) does not expose CB to general personal jurisdiction in the District of Columbia. Under similar circumstances, this Court has held that “whatever [a] [d]efendant may say about its contact with the forum, in order to assert general jurisdiction over a defendant, the Court must still find facts establishing the requisite actual connection to the forum.” Alkanani, 976 F. Supp. 2d at 32-33 (finding that a company advertising its Reston, Virginia office as a “D.C. Office” does not actually make that office in the District of Columbia for personal jurisdiction purposes). Third, as explained more fully in Section II(c) below, the Government Contacts Exception bars this Court, as a matter of law, from exercising general (or specific) personal jurisdiction over the Defendants based on contacts with the federal government and its agencies. This is so regardless as to whether such contacts with the federal government are for Gradillas or for other CB clients more broadly. Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 18 of 26 16 c. Under the facts of this case, the exercise of general jurisdiction or specific personal jurisdiction pursuant to D.C.’s long-arm statute is barred by the Government Contacts Exception. The Complaint attempts to outline contacts by the Defendants with the District of Columbia through communications with the SEC related to this specific matter, and the federal government more broadly related CB’s Government Contractor Consulting Services. (See, e.g., Compl. ¶¶ 3- 4, 9-12, 18-19, 26-29.) Although the Complaint alleges other contacts with regard to CB, such as internet advertising as discussed above, there is no other alleged contact with the District of Columbia by Ms. Crabtree outside the scope of communications with the federal government. Because there is no general personal jurisdiction, Gradillas must plead facts that show the existence of specific jurisdiction over the non-resident Defendants under D.C.’s long-arm statute. See, e.g., App Dynamic ehf v. Vignisson, 87 F. Supp. 3d 322, 326-27 (D.D.C. 2015). The District’s long-arm statute “enables a court to exercise personal jurisdiction over a non-resident defendant where a claim arises from his transacting any business in the District.” Id. citing D.C. Code § 13- 423(a)(1) (internal citations omitted) (emphasis added). There is, however, an exception to the transacting-business prong of the long-arm statute known as the “Government Contacts Exception.” Vignisson, 87 F. Supp. 3d at 327. This exception provides that entry into the District for the sole purpose of contacting federal government agencies cannot serve as a basis for personal jurisdiction. Id. citing Envtl. Research Int’l v. Lockwood Greene Engineers, Inc., 355 A.2d 808 (D.C. 1976) (additional citations omitted). The Government Contacts Exception “derives from the unique character of the District as the seat of the national government and . . . the need for unfettered access to federal departments and agencies for the Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 19 of 26 17 entire national citizenry.” Id. citing Envtl. Research, 355 A.2d at 813. Without the Exception, the District of Columbia could be converted “into a national judicial forum.” Id.2 In this case, facts supporting jurisdiction in the District of Columbia are entirely based on contacts with (or failure to timely contact) the SEC and other unnamed federal agencies by Ms. Crabtree, as the employee working on Gradillas engagement(s), or CB’s Government Contracts Consulting Services more broadly. (See, e.g., Compl. ¶¶ 3-4, 9-12, 18-19, 26-29.) It is black letter law, however, that such contacts by a non-resident defendant do not support personal jurisdiction in the District of Columbia. Vignisson, 87 F. Supp. 3d at 326-27. Further, it is quite clear that Ms. Crabtree, individually, did not “transact business” in the District of Columbia. (Ex. 2 ¶¶ 3-13.) Therefore, even if somehow it could be construed that CB transacted business in the District of Columbia outside of contacts with the federal government or its agencies, Ms. Crabtree, as an individual, clearly did not. For this reason, the Court is barred, as a matter of law, from exercising personal jurisdiction over the Defendants, Ms. Crabtree and CB. The Court should dismiss the Complaint accordingly or transfer this case to the U.S. District Court for the Eastern District of Virginia. III. In the alternative to dismissal for improper venue and lack of personal jurisdiction, the Court should transfer this case to the United States District Court for the Eastern District of Virginia. a. Transfer is warranted under 28 U.S.C. § 1406 to remove the procedural obstacles of lack of personal jurisdiction and improper venue. Venue is not proper in this Court and there is no personal jurisdiction over Defendants CB and Ms. Crabtree in the District of Columbia. Supra. However, “[i]n a case filed in an improper 2 The Government Contacts Exception is subject to a limited exception-to-the-exception for instances of fraud, which is not applicable to the facts of this case. App Dynamic ehf v. Vignisson, 87 F. Supp. 3d 322, 326-28 (D.D.C. 2015). Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 20 of 26 18 jurisdiction, a court in the interests of justice, may transfer the action to any district where it could have been brought.” Transferring the case “is appropriate under 28 U.S.C. § 1406(a) when procedural obstacles, such as lack of personal jurisdiction . . ., impede an expeditious and orderly adjudication on the merits.” Sweetgreen, Inc. v. Sweet Leaf, Inc., 882 F. Supp. 2d 1, 6 (D.D.C. 2012) (internal citations and punctuation omitted). Federal district courts “may transfer an action even though it lacks personal jurisdiction over the defendants.” Id. citing Naartex Consulting Corp. v. Watt, 722 F.2d 779, 789 (D.C.Cir. 1983). The judicial district where an action could have been brought is determined by the general venue statute at 28 U.S.C. 1391(a), as previously discussed. In this case, the alleged acts and omissions which form the subject matter of the Complaint, i.e. the professional services provided by the Defendants, all occurred at CB’s office in Virginia Beach, Virginia (within the Eastern District). (Ex. 2 ¶¶ 3, 10-14; Ex. 3 ¶¶ 6, 11-14.) Additionally, all Defendants are residents of or have a principle place of business within the Eastern District of Virginia. (Ex. 2 ¶ 6; Ex. 4 ¶ 5.) And finally, the Courts within the Commonwealth of Virginia, including the Eastern District, are the only courts that may exercise personal jurisdiction over all of the Defendants. Accordingly, transferring this matter to the U.S. District Court for the Eastern District will remove the venue and jurisdictional problems that currently exist. For this reason, in the interests of justice, the Court should transfer this case to the United States District Court for the Eastern District of Virginia. b. The Court should also transfer this action to the U.S. District Court for the Eastern District of Virginia pursuant to 28 U.S.C. § 1404(a) for the convenience of the Parties and in the interests of justice. Under 28 U.S.C. § 1404(a), federal courts may transfer a case to another district “where the action might have been brought.” Greene v. National Head Start Ass’n, Inc., 610 F. Supp. 2d 72, 74 (D.D.C. 2009) (transferring a case from the U.S. District Court for the District of Columbia Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 21 of 26 19 to the Eastern District of Virginia pursuant to Section 1404(a)). Where, as here, a civil action is based on diversity jurisdiction, where the action “might have been brought” is determined by analyzing the three prongs of 28 U.S.C. § 1391(a). Id. Under the circumstances of this case, as explained throughout this Memorandum, there is no question that this case could have been brought in the U.S. District Court for the Eastern District of Virginia. See, e.g, Section III(a) supra. Therefore, transfer of this case to the Eastern District of Virginia is appropriate. In addition, when making a determination regarding transfer under Section 1404(a), the Court must weigh certain private and public interest factors. Greene, 610 F. Supp. 2d at 74-75. Private interest factors that the Court considers “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 . . . and 6) the ease of access to sources of proof.” Greene, 610 F. Supp. 2d at 74 (citations omitted). The “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.” Id. (citations omitted). Under the circumstances of this case, consideration of the private interest factors weighs in favor of transfer to the Eastern District of Virginia. The first three private interest factors are choice of forum (Plaintiff’s and Defendants’) and where the claim arose. Although “a plaintiff’s choice of forum is ordinarily accorded deference . . . when a plaintiff is not a resident of the forum and most of the relevant events occurred elsewhere, this deference is weakened.” Greene, 610 F. Supp. 2d at 75 (internal citations omitted). In this case, Gradillas is not a resident of the District of Columbia (Ex. 1; Compl. at case caption.) Thus, the Court should afford no deference to Plaintiff’s choice of forum. Also, all of the alleged acts or omissions giving rise to this case occurred in Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 22 of 26 20 Virginia Beach, Virginia, within the Eastern District of Virginia. (Ex. 2 ¶¶ 3-14.) Accordingly, the choice of forum and where the claim arose factors weigh in favor of transfer to the Eastern District of Virginia. The fourth, fifth, and sixth private interest factors are convenience of the parties, witnesses, and sources of proof. Consideration of these factors also weigh in favor of transfer to the Eastern District of Virginia. With regard to the Plaintiff, Gradillas is a California company and its owner, Josephine Gradillas is a resident of California. (Ex. 1.) Thus, the Plaintiff will need to travel regardless of whether this case is litigated in this Court or the Eastern District of Virginia. The Defendants, however, are both Virginia residents and litigating this matter in the Eastern District of Virginia will be significantly more convenient for them. (Ex. 2 ¶ 3, 6; Ex. 4 ¶ 5.) Additionally, most or all relevant witnesses in this matter are located in Virginia Beach, Virginia, including Ms. Crabtree, John Carpenter (who is the Gradillas engagement partner at CB), and any other CB personnel who billed time to the Gradillas account. (Ex. 2 ¶¶ 3, 6, 13-14; Ex. 3 ¶ 7, 11-14.) Virginia Beach is more than 100 miles away from the District of Columbia and, accordingly, is outside this Court’s subpoena power. See Fed. R. Civ. P. 45(c)(1)-(2). Whether witnesses are outside of a Court’s subpoena power is “the relevant inquiry for this factor.” Greene, 610 F. Supp. 2d at 76 (internal citations omitted). For these reasons, the final three private interest factors also weigh in favor of transfer to the Eastern District of Virginia. With regard to the public interest factors, all three weigh in favor of transfer to the Eastern District of Virginia. First, Virginia has a greater interest in deciding a claim against Virginia residents, who perform professional services in Virginia, and where the alleged acts or omissions giving rise to this case occurred in Virginia. This is particularly true, as here, where there is no connection between the alleged acts giving rise to this case and the District of Columbia. Second, Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 23 of 26 21 the Eastern District of Virginia is more familiar with Virginia law, which is likely to govern this matter. See e.g., Elite Entm't, Inc. v. Khela Bros. Entm't Inc., 396 F. Supp. 2d 680, 692 (E.D. Va. 2005) citing Poole v. Perkins, 126 Va. 331, 101 S.E. 240 (1919) (recognizing that under Virginia’s choice of law principles, when the parties to a contract intend for the contract to be performed in Virginia, Virginia law governs the contract’s construction, validity, interpretation, and performance.)3 In this case, there is no question that both Gradillas and CB intended, and in fact did, perform the professional services at issue from CB’s office in Virginia Beach, Virginia. (E.g., Compl. ¶¶ 26-27; Ex. 1; Ex. 2 ¶ 10-11, 13-14; Ex. 3 ¶ 11-14.) Finally, the third public interest factor is the comparative congestion of the transferor and transferee court. As of March 2016, the last statistics available, the U.S. District Court for the District of Columbia had 2,675 cases pending compared to 2,170 in the Eastern District of Virginia. See Federal Judicial Caseload Statistics, Table C available at http://www.uscourts.gov/federal-judicial-caseload-statistics-2016-tables. Thus, this Court is more congested than the Eastern District of Virginia. Under the facts of this case, all issues and factors to be considered in ruling on a motion to transfer venue under 28 U.S.C. § 1404(a) weigh in favor of transfer to the U.S. District Court for the Eastern District of Virginia. For this reason, the Court should transfer this case accordingly. Conclusion As discussed in this Memorandum, the Defendants do not have sufficient contacts with the District of Columbia to subject them to personal jurisdiction here, either generally or with specific 3 Under the circumstances of this case, given that the parties intended for CB to perform its services for Plaintiff in Virginia, all Defendants are residents of Virginia, all professional services performed by CB for Plaintiff since the inception of their relationship in 2012 took place in Virginia, the alleged acts or omissions giving rise to this case took place in Virginia, and Virginia has a significant interest in regulating the conduct of its professionals performing work in the Commonwealth, Virginia law will likely apply to this matter using D.C.’s choice-of-law principles which utilize a governmental interest analysis. See, e.g., Shenandoah Assocs. Ltd. P'ship v. Tirana, 182 F. Supp. 2d 14, 18-19 (D.D.C. 2001). Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 24 of 26 22 regard to the allegations in the Complaint. Further, the alleged acts or omissions giving rise to the case have no connection to the District of Columbia, and therefore venue is not proper. For these reasons, the Court should dismiss the Complaint. In the alternative to dismissal, however, the Court should transfer this case to the U.S. District Court for the Eastern District of Virginia. Under the circumstances, the Eastern District of Virginia is the only federal court with personal jurisdiction over all of the Defendants and is the proper venue given the applicable law and the alleged acts or omissions giving rise to this case. Respectfully submitted, CHERRY BEKAERT, LLP; and SARA CRABTREE By Counsel, CARR MALONEY P.C. By: /s/ J. Peter Glaws, IV Kevin M. Murphy, #388476 J. Peter Glaws, IV, #1013049 Carr Maloney P.C. 2020 K Street, NW, Suite 850 Washington, D.C. 20006 (202) 310-5500 (Telephone) (202) 310-5555 (Facsimile) kmm@carrmaloney.com jpg@carrmaloney.com Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 25 of 26 23 CERTIFICATE OF SERVICE I hereby certify that on this 10th day of July 2017, a copy of the foregoing Memorandum of Points and Authorities in Support of the Defendants’ Motion to Dismiss was served via the Court’s electronic filing system to: Suzelle M. Smith (#376384) Howarth & Smith 512 West Sixth Street, Suite 728 Los Angeles, CA 90014 Telephone: (213) 955-9400 Facsimile: (213) 622-0791 ssmith@howarth-smith.com Counsel for Plaintiff /s/ J. Peter Glaws, IV Case 1:17-cv-01164-BAH Document 11-1 Filed 07/10/17 Page 26 of 26 Case 1:17-cv-01164-BAH Document 11-2 Filed 07/10/17 Page 1 of 4 Case 1:17-cv-01164-BAH Document 11-2 Filed 07/10/17 Page 2 of 4 Case 1:17-cv-01164-BAH Document 11-2 Filed 07/10/17 Page 3 of 4 Case 1:17-cv-01164-BAH Document 11-2 Filed 07/10/17 Page 4 of 4 Case 1:17-cv-01164-BAH Document 11-3 Filed 07/10/17 Page 1 of 2 Case 1:17-cv-01164-BAH Document 11-3 Filed 07/10/17 Page 2 of 2 Case 1:17-cv-01164-BAH Document 11-4 Filed 07/10/17 Page 1 of 2 Case 1:17-cv-01164-BAH Document 11-4 Filed 07/10/17 Page 2 of 2 Case 1:17-cv-01164-BAH Document 11-5 Filed 07/10/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA GRADILLAS COURT : REPORTTERS, INC. : : Plaintiff, : : Case No. 1:17-cv-01164 (BAH) v. : : CHERRY BEKAERT, LLP, et al. : : Defendants : ORDER UPON consideration of the Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(3), the supporting Memorandum of Points and Authorities, and any opposition thereto or reply in support thereof, and HAVING FOUND that for the reasons articulated by the Defendants’ in their supporting briefs, the Court lacks general personal jurisdiction over the Defendants; and having further FOUND that the Court lacks specific personal jurisdiction over the Defendants; and having further FOUND that the U.S. District Court for the District of Columbia is not the proper venue for this case pursuant to 28 U.S.C. § 1391(a); and having further FOUND that the alleged facts underlying the claim arose in the Commonwealth of Virginia and that the U.S. District Court for the Eastern District of Virginia is the only federal district court with personal jurisdiction over all of the Defendants under the circumstances of this case; and having further FOUND that, accordingly, the U.S. District Court for the Eastern District of Virginia is the appropriate venue for this case pursuant to 28 U.S.C. § 1406(a); and having further Case 1:17-cv-01164-BAH Document 11-6 Filed 07/10/17 Page 1 of 2 2 FOUND that, upon consideration of all relevant factors to transfer a case for the convenience of the parties under 28 U.S.C. § 1404(a), the interests of justice under the circumstances require transfer of venue to the United States District Court for the Eastern District of Virginia; it is hereby ORDERED that the Defendants’ Motion to Dismiss or in the Alternative to Transfer Venue to the U.S. District Court for the Eastern District of Virginia is GRANTED; and it is further ORDERED that this case is to be transferred to the U.S. District Court for the Eastern District of Virginia. So Ordered U.S. District Judge Beryl A. Howell Copies to Counsel of Record Case 1:17-cv-01164-BAH Document 11-6 Filed 07/10/17 Page 2 of 2