Yeibyov.E-Park of DC, Inc.

United States District Court, D. MarylandJan 18, 2008
Civil Action No. DKC 2007-1919 (D. Md. Jan. 18, 2008)

Civil Action No. DKC 2007-1919.

January 18, 2008



Presently pending and ready for resolution in this employment case are (1) a motion for leave to file a second amended complaint by Plaintiffs Ismael Anoumatacky, Woldegebriel Yeibyo, and Solomon Abebe (paper 56), (2) Defendants' motions to dismiss the complaint (paper 19 and 59), (3) Plaintiffs' motion for leave to file surreply (paper 23), (4) Defendants' motion to strike the first amended complaint (paper 32), and (5) Defendants' motion for leave to file a supplementary memorandum in support of the pending motions to dismiss (paper 67). The issues are fully briefed and the court now rules pursuant to Local Rule 105.6, no hearing being deemed necessary. For the reasons that follow, the court will grant in part Plaintiffs' motion for leave to file a second amended complaint and grant in part and deny in part Defendants' motions to dismiss. The court will deny Plaintiffs' motion to file surreply and Defendants' motion to file a supplementary memorandum. Defendants' motion to strike the first amended complaint is moot.

I. Background

Plaintiffs Woldegebriel Yeibyo and Solomon Abebe ("Original Plaintiffs") filed suit against Defendants E-Park of DC, Inc. ("E-Park"), Unipark Services Group, LLC ("Unipark"), Stefano Dubuc, Richard Karp and Vikas Sharma (collectively "Original Defendants") in the Circuit Court for Montgomery County on October 26, 2006. In the original complaint, Original Plaintiffs set forth claims under the Maryland Wage and Hour Law, MD CODE ANN., LAB. EMPL. § 3-401, et seq. (2007) (MWHL) and the Maryland Wage Payment and Collection Law, MD CODE ANN., LAB. EMPL. § 3-501, et seq. (2007) (MWPCL). On February 23, 2007, Original Defendants moved to dismiss the initial complaint. On June 21, 2007, Original Plaintiffs filed a First Amended Complaint in which they added an additional Defendant, MidAtlantic Services Group, Inc. ("MidAtlantic") and added a claim for collective action under the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). The gravamen of Original Plaintiffs' complaint is that they were not properly compensated for extra hours, overtime, nighttime hours, and holidays that they worked and that plaintiff Yeibyo was improperly barred from using his sick time. Defendants then filed notice of removal and a motion to dismiss, and, soon thereafter, Ismael Anoumatacky joined the suit as a party plaintiff by opting into the FLSA claim for unpaid wages and overtime.

Plaintiffs filed a Motion for Leave to File a Second Amended Complaint on August 31, 2007. Plaintiffs seek to add the allegations of Ismael Anoumatacky to the complaint, to remove references to vacation, holiday, and sick pay, and to state a claim under FLSA in lieu of the Maryland state class action claim that was originally filed. Defendant Mid-Atlantic filed a motion to dismiss the first amended complaint and an opposition to the Plaintiffs' request to file a second amended complaint. (Paper 59). Original Defendants also oppose Plaintiffs' motion for leave to amend. (Paper 60). Defendants also filed a motion for leave to file a supplementary memorandum in support of their pending motions to dismiss. (Paper 67).

II. Motions for Leave to File Surreply

Unless otherwise ordered by the court, surreply memoranda are not permitted to be filed. Local Rule 105.2(a). "Surreplies may be permitted when the moving party would be unable to contest matters presented to the court for the first time in the opposing party's reply." Khoury v. Meserve, 268 F.Supp.2d 600, 605 (D.Md. 2003) (citing Lewis v. Rumsfeld, 154 F.Supp.2d 56, 61 (D.D.C. 2001)).

Plaintiffs' proposed surreply does not attempt to address matters presented for the first time in Defendants' reply. Rather, Plaintiffs seek to direct the court's attention to issues with Defendants' characterizations of the cited caselaw. To the extent that Plaintiffs seek to re-open briefing on the issues raised in Defendants' motion to dismiss, Plaintiff's motion is denied. Defendants did not raise any new issues or legal theories in their reply brief.

In their motion for leave to file a supplementary memorandum in support of the pending motions to dismiss, Defendants draw the court's attention to federal authority for their arguments in support of dismissal on the basis of failure to exhaust arbitration provisions. Because the court does not find that the collective bargaining agreement's ("CBA") arbitration clause applies to the case at bar, it will deny Defendants' motion to file a supplementary memorandum.

III. Motions for Leave to Amend and to Dismiss
A. Standards of Review

Under Fed.R.Civ.P. 15(a), a petitioner must obtain leave from the court in order to file a second amended complaint. Rule 15(a) of the Federal Rules of Civil Procedure provides that "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Refusal of such leave, without a justifying reason, is not only an abuse of discretion, but is "inconsistent with the spirit of the Federal Rules." Foman v. Davis, 371 U.S. 178, 182 (1962). Denial of leave to amend should occur "only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile." Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir. 1986). Rule 15, thus, reflects "the federal policy in favor of resolving cases on their merits instead of disposing of them on technicalities." Laber v. Harvey, 438 F.3d 404, 426 (4th Cir. 2006) (en banc). Determinations of futility under Rule 15(a) are governed by the standard for motions to dismiss. Classen Immunotherapies, Inc. v. King Pharms., Inc., 403 F.Supp.2d 451, 459 (D.Md. 2005).

The purpose of a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is to test the sufficiency of the plaintiff's complaint. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Except in certain specified cases, a plaintiff's complaint need only satisfy the "simplified pleading standard" of Rule 8(a), Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513 (2002), which requires a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Nevertheless, "Rule 8(a)(2) still requires a `showing,' rather than a blanket assertion, of entitlement to relief." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 n. 3 (2007). That showing must consist of at least "enough facts to state a claim to relief that is plausible on its face." Id. at 1974.

In its determination, the court must consider all well-pled allegations in a complaint as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and must construe all factual allegations in the light most favorable to the plaintiff. See Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). The court must disregard the contrary allegations of the opposing party. See A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir. 1969). The court need not, however, accept unsupported legal allegations, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979). In sum, "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Twombly, 127 S.Ct. at 1965 (internal citations omitted).

B. Analysis

In their proposed second amended complaint, Plaintiffs seek to "add Mr. Anoumatacky's allegations to the complaint, to remove references to vacation, holiday, and sickpay as they apply to Plaintiffs' FLSA claims, and to reflect the matter as a FLSA representative action instead of a class action in Maryland State Court." (Paper 56, at 1). Plaintiffs specify that Counts I, II, and III remain MWHL, MWPCL, and FLSA claims respectively against all Defendants jointly and severally. The proposed second amended complaint also contains a Count IV in which Plaintiffs assert another FLSA claim against Defendants to the effect that Defendants "intentionally misclassified" Anoumatacky as exempt from overtime pay under the FLSA. Plaintiffs seek to bring this claim on behalf of Anoumatacky and other similarly situated employees.

Defendants assert that Plaintiffs' motion for leave to file a second amended complaint should be rejected as futile for several reasons. First, they argue that the Maryland Wage law claims asserted in Counts I and II must fail because all three plaintiffs were employed outside the state of Maryland. Second, they contend that the individual defendants, Messers. Dubuc, Sharp and Karma, cannot be held liable as employers under the MWPCL. Third, they maintain that Defendants are not "joint employers" or a "single enterprise" under the FLSA and accordingly cannot be held liable under it. Fourth, they assert that Plaintiffs' proposed collective action under the FLSA is not susceptible to class adjudication because the proposed claims require highly individualized proof.

Defendants also incorporate their arguments in support of their motion to dismiss the first amended complaint that the court lacked personal jurisdiction over Defendant Sharma; that the doctrine of forum non conveniens directs that the case should be heard in the District of Columbia; that Yeibyo's claims relating to violations of the Collective Bargaining Agreement are preempted by federal labor law; and that Yeibyo's claims are subject to arbitration and thus should be dismissed for failure to exhaust.

Plaintiffs argue that Maryland Wage laws are applicable to employees working outside of Maryland, that the individual Defendants are liable under the MWPCL, that Defendants are an "enterprise" and "joint employer" under the FLSA, and that Defendants' assertion that Plaintiffs' claims are unsuitable to class adjudication is premature.

1. Maryland Wage Law Claims: Application of Maryland Wage Laws to employment conducted outside state lines.

All of the Plaintiffs were employed exclusively in the District of Columbia and there is no allegation that the employment relationship was contracted for or that Plaintiffs received their wages in Maryland. Plaintiffs' proposed second amended complaint alleges that E-Park regularly conducts business in Maryland, Unipark is a limited liability company organized under Maryland law, and Mid-Atlantic operates in Maryland. Plaintiffs' only allegation of Maryland connections are the location of Defendants and the processing of payroll at the Silver Spring office.

Defendants assert that the Maryland wage laws do not apply to actions by employees whose place of employment is outside Maryland. Plaintiffs, of course, disagree. Generally, as stated by the Court of Appeals of Maryland:

Maryland Code, § 3-413(1) of the Labor and Employment Article, with an exception not relevant here, requires each employer in Maryland to pay its employees the minimum wage required by the Federal Fair Labor Standards Act.
Shanks v. Lowe, 364 Md. 538, 545 (2001). The purpose of the MWHL "is to set minimum wage standards in the State," MD. CODE. ANN, LAB. EMPL. § 3-403(b) (2007), and the Act defines "employer" as "a person who acts directly or indirectly in the interest of another employer with an employee."§ 3-401 (2007). The MWPCL defines "employer" as "any person who employs an individual in the State or a successor of the person." MD. CODE. ANN, LAB. EMPL. § 3-501 (2007). Plaintiffs' opposition contends that the MWHL is silent as to where an employee must perform his or her work, while the MWPCL lacks a definition of the word "employee" and also fails to specify if an employee must perform his or her job functions inside Maryland state lines to qualify for coverage. Further, Plaintiffs cite Marroquin v. Canales, 236 F.R.D. 257 (D.Md. 2006) and Heath v. Perdue Farms, Inc., 87 F.Supp.2d 452, 454, 463 (D.Md. 2000), as support for their argument that the MWHL and MWPCL have been construed to cover employees who perform work outside of Maryland. Defendants respond that neither of these cases specifically addresses the issue of the applicability of Maryland wage laws to the out of state employees, and additionally argue that both cases are factually distinguishable from this case.

The parties essentially present a choice of law question: does either Maryland statute apply to this case? This case was removed to this court by Defendants on the basis of federal question removal jurisdiction, 28 U.S.C. §§ 1441(a) and 1331, based on the FLSA claim in the amended complaint. The court has supplemental jurisdiction over the state law claims, 28 U.S.C. § 1367. In this situation, the court applies the law of the forum, Maryland, to this choice of law question at the outset. Plaintiffs contend that these claims sound in tort, but it is more likely that they present a contract claim.

Generally, in a conflict-of-laws situation, a court must determine at the outset the nature of the problem presented to it for solution, specifically, if it relates to torts, contracts, property, or some other field, or to a matter of substance or procedure.
Erie Ins. Exch. v. Heffernan, 399 Md. 598, 615 (2007). The answer to that question is somewhat unclear, but, whether a tort or a contract, a Maryland court would apply District of Columbia law to the situation.

If this is a tort action, and if events giving rise to the action occurred in more than one state:

The Oregon courts have concluded that, for purposes of notice under its tort claims act, an action for overtime wages sounds in tort, based on the definition of "tort" in that act. See, e.g., Butterfield v. State, 163 Or.App. 227, 232, 987 P.2d 569, 571 (Or.App. 1999). Other courts deem the action as stating a contract or quasi-contract claim. Pedraza v. City of East Chicago, 746 N.E.2d 94, 100 (Ind.App. 2001); Seattle Professional Engineering Employees Ass'n v. Boeing Co., 139 Wash.2d 824, 991 P.2d 1126 (Wash. 2000).

Maryland law is clear that in a conflict of law situation, such as the one presented in the case sub judice, "where the events giving rise to a tort action occur in more than one State, we apply the law of the State where the injury-the last event required to constitute the tort occurred." Laboratory Corp. of America v. Hood, 395 Md. 608, 614, 911 A.2d 841, 845 (2006). This principle is lex loci delicti. Consistent with the principle of lex loci delicti, because the automobile collision occurred in Delaware, under Maryland law, a Maryland Court would apply the substantive tort law of Delaware to determine what the claimants are "entitled to recover" in an action for uninsured motorist benefits.
Erie Ins. Exchange, 399 Md. at 620. Even if payroll processing took place in Maryland, the injury — failure to pay as required — would have occurred in the District of Columbia, where Plaintiffs worked and lived.

On the other hand, employment relationships are paradigmatically contractual in nature, see, e.g., Louisville N.R. Co. v. Harvey, 15 Ky.L.Rptr. 809, 1894 WL 1617 (Ky.Super. 1894), and this case should be assessed in that fashion. As to contracts, Maryland applies the principle of lex loci contractus, i.e., the law of the jurisdiction where the contract was made. Allstate Ins. Co. v. Hart, 327 Md. 526, 529 (1992). Plaintiffs have not alleged any facts giving rise to a contract formed under or subject to Maryland law. If anything, the allegations suggest that the employment contracts were entered into in the District of Columbia, and the law of that jurisdiction would apply.

A case decided some years ago by Judge Davis illustrates the concept. Judge Davis concluded that the parties' choice of Massachusetts law to govern an employment relationship, even though some of the work was to be performed in Maryland and some elsewhere, precluded an employee's action under the Maryland wage statutes:

As explained supra, the parties to this dispute entered into a contract in which they chose the law of Massachusetts to govern their relationship. Their ability to determine the governing law, however, is not absolute. In Maryland, a choice-of-law clause will not be honored if the issue is one "`which the parties could not have resolved by an explicit provision in their agreement,'" Kronovet, 288 Md. at 44-45, 415 A.2d at 1105 (quoting Restatement (Second) Conflict of Laws § 187(2)), and if "1) the state whose law is chosen has no substantial relationship to the parties or the transaction; or 2) the strong fundamental public policy of the . . . state [which would have been the state of the applicable law absent the choice-of-law provision] precludes the application of the choice-of-law provision." American Motorists, 338 Md. at 572, 659 A.2d at 1301; Restatement (Second) Conflicts of Law at § 187. The issue of what remedies are available to an employee if his employer withholds pay is certainly one which the parties could have resolved by explicit agreement. Therefore, these exceptions to honoring the choice-of-law provision are inapplicable.
Taylor v. Lotus Dev. Corp., 906 F.Supp. 290, 297-98 (D.Md. 1995). Accordingly, the Maryland wage claims will be dismissed.

Because the Maryland wage law claims will be dismissed, Defendants' alternative assertions that those statutes do not authorize individual liability, that the state wage claims are preempted by federal law, or that the Maryland wage claims are subject to dismissal for failure to exhaust an arbitration requirement, need not be addressed.

2. Fair Labor Standard Act Claims

a. "Joint Employers" or "Single Enterprise"

Defendants assert that Plaintiffs' FLSA claims must fail because they cannot show that Defendants constitute an "enterprise" or "joint employer" under the FLSA. Plaintiffs' proposed second amended complaint alleges that "Unipark, E-Park, and Mid-Atlantic share common offices and key personnel and are engaged in common business interests" and that Defendants are an "enterprise" as defined within the FLSA. (Paper 56-4 ¶¶ 16, 18). In their opposition, Defendants assert that Plaintiffs are "simply wrong." (Paper 60, at 6).

The FLSA defines the term "enterprise" at 29 U.S.C. § 203(r)(1) as consisting of three main elements: related activities, unified operation or common control, and common business purpose. Brennan v. Arnheim Neely, Inc., 410 U.S. 512, 518 (1973). Defendants concede that Plaintiffs have pled common control, but challenge Plaintiffs' ability to establish related activities and common business purpose. Finally, Defendants argue that Plaintiffs' allegations omit any reference to Unipark. While Defendants assert that common ownership and sharing of employees "alone does not establish . . . a single enterprise," they appear to conflate a summary judgment standard for the appropriate motion to dismiss standard to be used here, citing a case, Griffin v. Daniel, 768 F.Supp. 532, 537 (W.D.Va. 1991), where the court entered judgment for insufficient factual proof of an enterprise.

Similarly, Defendants challenge the sufficiency of Plaintiffs' pleadings as to whether Defendants constitute a "joint employer" under the FLSA. Defendants' arguments fail on this front, as well, because on a motion for leave to file a second amended complaint or a motion to dismiss, a plaintiff need only provide a "short and plain statement of the claim showing that the pleader is entitled to relief." Plaintiffs have alleged that "Unipark, E-Park, and MidAtlantic share . . . key personnel" and that Plaintiffs worked for E-Park and MidAtlantic simultaneously. (Paper 56-4 ¶¶ 16, 89-93).

b. Collective Adjudication

Defendants assert that Plaintiffs' proposed collective action claims must fail because they believe that Plaintiffs' proposed class is impermissibly broad and cannot be "similarly situated." Class actions under the FLSA are governed by section 16(b) of the Fair Labor Standards Act, 29 U.S.C. § 216(b), which provides "[n]o employee shall be a party plaintiff . . . unless he gives his consent in writing to become such a party and such consent is filed in the court in which such action is brought." A collective action can be brought under § 216(b) as long as the plaintiff is "similarly situated" with those potential claimants he wishes to represent, and no claimant shall be a member of or bound by the action unless he or she "opts in" to the action. 29 U.S.C. § 216(b). Thus,

the § 216(b) notice process requires the court to engage in a preliminary review to determine if there are persons "similarly situated" to the Plaintiffs and to describe accurately the group of such persons to whom notice ought to be directed. In essence, there would be a two-step process where first notice is sent to potential class members. Then, after discovery is complete, the court would determine whether the class should be restricted based on the "similarly situated" requirement of the FLSA. See Lusardi v. Zerox Corp., 118 F.R.D. 351, 358 (D.N.J. 1987). The logic of [this] approach is that, in contrast to class actions under Rule 23, members of the FLSA representative action "opt in"; therefore, the stricter Rule 23 test is irrelevant and unnecessary because, at this stage, the potential class is uncertain and self selective. See Woods v. New York Life Ins. Co., 686 F.2d 578, 579 (7th Cir. 1982); Jackson v. Go-Tane Servs. Inc., 2000 WL 1221642, *3 (N.D.Ill. Aug. 21, 2000); Lusardi, 118 F.R.D. at 358.
Garza v. Chicago Transit Auth., 2001 WL 503036, at *2 (N.D.Ill. May 8, 2001).

During the first or "notice stage," the court examines pleadings and affidavits in the record to determine whether notice should be given to potential class members. Brooks v. BellSouth Telecomm., Inc., 164 F.R.D. 561, 568 (N.D.Ala. 1995) (quoting Mooney v. Aramco Servs., Co., 54 F.3d 1207, 1213-14 (5th Cir. 1995)). "Because the court has minimal evidence, this determination is made using a fairly lenient standard, and typically results in `conditional certification' of a representative class." Mooney, 54 F.3d at 1214.

When determining if persons are "similarly situated," such persons must be similarly situated with respect to their job requirements and with regard to their pay provisions; the positions need not be identical, only similar. Tucker v. Labor Leasing, Inc., 872 F.Supp. 941 (M.D.Fla. 1994). Stated otherwise, plaintiffs are similarly situated when there is a demonstrated similarity among individual situations, and some factual nexus that binds the named plaintiffs and potential class members together as victims of a particular alleged policy or practice. Bonilla v. Las Vegas Cigar Co., 61 F.Supp.2d 1129 (D.Nev. 1999). After "discovery is complete and more factual information is available to the court, the defendant may file a motion to decertify the class . . . [and then] the court uses a higher standard to analyze the similarly situated issue." Moss, 201 F.R.D. at 409.

In their proposed second amended complaint, Plaintiffs seek to represent:

[a]ll present and former non-exempt employees of Defendants who were either misclassified as exempt under the FLSA and thus not paid overtime and/or who were properly classified as nonexempt but were not paid overtime at a rate equal to one and one-half times their regular compensation rate. This cohort is limited to individuals employed by Defendants who were entitled to be compensated with overtime wages equal to one and one-half times their regular compensation rate pursuant to the [FLSA], and who were caused to sustain damages when they were not paid the overtime wages . . . that were legally due. . . .

(Paper 56-4 ¶ 95). Like the plaintiffs in Moss, each named plaintiff in this case asserts a common claim; i.e., that Defendants violated the FLSA by failing to compensate with him overtime wages for his work as a parking attendant. See Moss, 201 F.R.D. at 410. Accordingly, under the "fairly lenient standard" used at the notice stage, Plaintiffs have proffered sufficient allegations of similarity, factual nexus, and policy or practice to survive the current motions to dismiss.

IV. Personal Jurisdiction over Sharma

Defendants seek to dismiss the claims against Defendant Sharma for lack of personal jurisdiction. Defendants argue that the court may not exercise jurisdiction over an individual solely on the basis of his status as a corporate officer or owner, citing Marriott PLP v. Tuschman, 904 F.Supp 461, 466 (D.Md. 1995) ("Shareholders in a corporation do not subject themselves to personal jurisdiction in the forum in which the corporation was formed or transacts business.").

When a court's power to exercise personal jurisdiction over a nonresident defendant is challenged by a motion under Fed.R.Civ.P. 12(b)(2), "the jurisdictional question is to be resolved by the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence." Carefirst of Maryland, Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citing Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 59-60 (4th Cir. 1993)). Where, as here, the court rules without conducting an evidentiary hearing, relying solely on the basis of the complaint, affidavits and discovery materials, "the plaintiff need only make a prima facie showing of personal jurisdiction." Carefirst of Maryland, 334 F.3d at 396; see also Mylan Labs., 2 F.3d at 60; Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989). In determining whether the plaintiff has proven a prima facie case of personal jurisdiction, the court "must draw all reasonable inferences arising from the proof, and resolve all factual disputes, in the plaintiff's favor." Mylan Labs., 2 F.3d at 60.

Plaintiffs rely on §§ 6-102 and 6-103(b) to support the exercise of personal jurisdiction over Sharma. Plaintiffs assert that Sharma was served with process at the Unipark E-Park office in Silver Spring, Maryland and Sharma does not dispute that assertion. MD. CODE ANN., CTS JUD. PROC. § 6-102(a) authorizes personal jurisdiction over a person served with process in Maryland. Thus, because Sharma was served with process in Maryland, sufficient contact within Maryland exists to allow for jurisdiction over Sharma in this suit. See Republic Props. Corp. v. Mission West Props., LP, 391 Md. 732, 748-49 (2006) (citing Burnham v. Superior Court of California, 495 U.S. 604, 610 (1990)).

Section 6-103(b) provides that a court has personal jurisdiction over a person:

who directly or by an agent commits any of the following:
(1) Transacts any business or performs any character of work or service in the State . . . (3) Causes tortious injury in the State by an act or omission in the State; (4) Causes tortious injury in the State or outside the State by an act or omission outside the state if he regularly does or solicits business, engages in any other persistent course of conduct in the State . . .

MD. CODE ANN., CTS JUD. PROC. § 6-103(b).

It is not necessary to rely on Plaintiffs alternative assertion that jurisdiction exists under § 6-103(b) because Sharma is a member of Unipark, an officer and owner of E-Park, and is involved in the operations of both, which maintain offices in Maryland.

V. Forum Non Conveniens

A court may dismiss an action under the doctrine of forum non conveniens when the relevant public and private interests strongly favor trial in an alternative forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981); Kontoulas v. A.H. Robins Co., 745 F.2d 312, 315 (4th Cir. 1984). The Supreme Court stated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507 (1947), that "[t]he principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." In reaffirming and restating the doctrine, the Supreme Court stated that it applies "where trial in the plaintiff's chosen forum imposes a heavy burden on the defendant or the court, and where the plaintiff is unable to offer any specific reasons of convenience supporting his choice." Piper Aircraft Co., 454 U.S. at 249. "[U]nless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gulf Oil, 330 U.S. at 508. The doctrine of forum non conveniens is particularly designed to prevent harassment of defendants. Ferruzzi v. Italia, S.p.A. v. Trade Transport, Inc., 683 F.Supp. 131, 134 (D.Md. 1988) (citing Piper Aircraft Co., 454 U.S. at 249 n. 15).

Defendants have not shown that the case should be dismissed under the doctrine of forum non conveniens. No suggestion has been made that Plaintiffs' intent in choosing this venue is to harass Defendants, which is the primary reason for the application of this doctrine. See Ferruzzi, 683 F.Supp. at 135. Further, Defendants have not sufficiently shown that public and private interests strongly favor trial in an alternative forum. Defendants have made no showing of any "heavy burden" posed by litigating the case in Maryland. Typically courts refuse to apply forum non conveniens where the alternative venue is geographically proximate to the district where the case was filed. See, e.g., Burke v. Quartey, 969 F.Supp. 921 (D.N.J. 1997). Here, the case is pending before the Southern Division of the United States District Court for the District of Maryland, while Defendants argue that it could have been filed in the District of Columbia. Taking into consideration the reluctance of courts to disturb the plaintiff's choice of forum and the very close proximity of the two potential fora, no hardship would befall either party if the action were maintained in the jurisdiction where it was filed.

VI. Conclusion

For the forgoing reasons, Plaintiffs' motion for leave to file a second amended complaint and the motions to dismiss will be granted in part and denied in part. The motions to file surreplies, and to strike the first amended complaint will be denied. A separate Order will follow.