Renchard v. Prince William Marine Sales, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

RANDOLPH W. RENCHARD,

Plaintiff,

Civil Action No. 13-698 (BAH)

v.

Judge Beryl A. Howell

PRINCE WILLIAM MARINE

SALES, INC., et al.

Defendants.

MEMORANDUM OPINION

Pending before the Court in this breach of contract and tort suit are three motions: a

Motion to Transfer this Case to the Eastern District of Virginia (“Defs.’ Mot. Transfer”), ECF

No. 4, filed by all defendants; Defendants Prince William Marina, Inc. (“PWM”) and Prince

William Marine Sales, Inc.’s (“PWMS”) Motion to Dismiss for failure to state a claim (“PWM

Defs.’ Mot. Dismiss”), ECF No. 5; and Defendant Frank Fiorina’s Motion to Dismiss for failure

to state a claim (“Def. Fiorina’s Mot. Dismiss”), ECF No. 6. For the reasons set forth below, the

Motion to Transfer is denied; Defendant Fiorina’s Motion to Dismiss is granted; and Defendants

PWM and PWMS’ (collectively, the “PWM Defendants”) Motion to Dismiss is granted in part

and denied in part without prejudice. 1

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The defendants have also requested an oral hearing on their motions, pursuant to Local Civil Rule 7(f). See Defs.’

Mot. Transfer at 1; PWM Defs.’ Mot. Dismiss at 1; Def. Fiorina’s Mot. Dismiss at 1. The Court exercises its

discretion provided for under the Rule and denies these requests in light of the briefing provided and in the interest

of judicial economy.

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I. BACKGROUND

The plaintiff, Randolph W. Renchard, is “profoundly and pre-linguistically deaf and uses

American Sign Language for daily communication” such that “[t]o communicate with Plaintiff

effectively in business or other important situations, a qualified sign interpreter is required.” 2

Compl. ¶ 20, ECF No. 1-1. 3 The plaintiff also “has learning and reading disabilities and cannot

write or read unless small words are used.” Id. ¶ 19. 4 In November 2009, the plaintiff purchased

a yacht from the PWM Defendants for approximately $1.4 million dollars. Id. ¶ 25. To facilitate

the purchase, on May 19, 2009, the plaintiff had liquidated his living trust and wired $516,481.28

to Defendant PWMS “as a cash deposit toward the purchase of the yacht.” Id. ¶ 22; see Compl.

Ex. 1. The plaintiff traded in his existing boat, valued at $210,000, and the sale closed in mid-

November 2009. Compl. ¶ 25. The plaintiff received a mortgage on the boat for the remaining

balance, $699,861.74, listing defendant PWMS as the mortgagee dated December 29, 2009. Id.

Ex. 5 at 54. The mortgage states that “[t]o the extent that state law rather than federal law is

deemed to apply to any provision of this mortgage, the parties elect to apply the laws of the State

of Maryland.” Id. at 56.

After obtaining the mortgage, the plaintiff financed “the balance of the purchase by

entering into a Retail Installment Contract and Security Agreement [the “First Installment

Contract”] with Plaintiff for $692,246.00 on December 30, 2009.” Compl. ¶ 28; see Compl. Ex.

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All facts are taken from the Complaint and assumed to be true for the purposes of a motion to dismiss. See, e.g.,

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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This case was removed from District of Columbia Superior Court on May 14, 2013. See Notice of Removal at 1,

ECF No. 1. Consequently, the operative Complaint and all exhibits are contained in the file forwarded to this Court

with the Notice of Removal. Paragraph and page numbers for the Complaint and the attached exhibits refer to the

page of the Superior Court file, ECF No. 1-1, where the reference can be found.

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The PWM Defendants acknowledge the need to make accommodations for the plaintiff in their principal’s

affidavit filed with their Reply to the Plaintiff’s Opposition to the PWM Defendants’ Motion to Dismiss, ECF No.

14-1. Specifically, the PWM Defendants’ President, Carlton Phillips, notes that during discussions with the

plaintiff, the plaintiff “would insist that I face him so that he could read my lips. If there was confusion about what

was being said my staff and I wrote out notes for him so that he understood.” Aff. of Carlton Phillips, President,

PWM & PWMS, ¶ 7, ECF No. 14-1.

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3 at 42. The First Installment Contract required the plaintiff to pay $5,471.35 for thirty-five

months, with a final balloon payment of $647,644.25 due at the end of the thirty-sixth month.

Compl. Ex. 3 at 42. The First Installment Contract contains no forum selection clause or choice

of law provision. See id. at 42–45.

At all relevant times to this action, the plaintiff contends that the yacht “was slipped in

Columbia Island Marina, located in the District of Columbia” and that the District of Columbia

“remains [the yacht’s] hailing port as of the time of the filing of” the Complaint. 5 Id. ¶¶ 76; 79.

Subsequent to the purchase, the plaintiff “made requests for maintenance and repairs to the

yacht, via a video relay service, from Columbia Island Marina in Washington, D.C.” where the

yacht was moored. Compl. ¶ 33; see id. ¶ 23 (discussing transport of yacht to Columbia Island

Marina “where [the yacht] would be slipped”). The plaintiff alleges that, to facilitate these

maintenance requests, Defendant PWM retained “a set of keys . . . unbeknownst to Plaintiff, to

the yacht and the gate securing” the marina. Compl. ¶ 34. The cost of these maintenance and

repair requests, as claimed by the PWM Defendants, was $25,283.71. Id. ¶ 41. The plaintiff

informed the PWM Defendants that he would be unable to pay for the maintenance in a single

lump sum and the parties “orally agreed that Plaintiff would be allowed to pay $500.00 per

month towards the maintenance and repair fees, although Plaintiff had questions about some of

the fees but could not ask due to communication difficulties.” Id. ¶ 42. The parties did not

discuss what law would apply to any disputes as to this oral agreement, or in what forum such

disputes would be resolved. See id. The repairs occurred “on at least fifteen different occasions”

in the District of Columbia. Id. ¶ 40. The $500 payments began in February, 2010, were made

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The PWM Defendants note that the yacht in question “currently is moored in Virginia.” PWM Defs.’ Reply to Pl’s

Opp’n to PWM Defs.’ Mot. Dismiss (“PWM Defs.’ MTD Reply”) at 7. This is of no practical import to the

resolution of the pending motions, but, in any event, the plaintiff has submitted documents indicating the yacht’s

hailing port remains Washington, D.C. See Compl. Ex. 17 at 117 (Coast Guard registration showing hailing port as

Washington, D.C. at time of filing of suit).

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by automatic deduction from the plaintiff’s bank account, id. ¶ 43, and totaled $9,000 over the

ensuing eighteen months, id. ¶ 44.

In November, 2010, the PWM Defendants discovered that the boat the plaintiff traded in

2009 still had an outstanding mortgage, on which the plaintiff was continuing to make payments.

See id. ¶¶ 45–48. The PWM Defendants informed the plaintiff he would need to pay off the

mortgage “so that PWM could sell it.” Id. ¶ 46. The plaintiff averred that he was unable to pay

the entire mortgage, but that he was continuing to make payments on it and “that no one at PWM

had asked him whether there was a balance owed on the [trade-in boat] or told him that he had to

pay it off at the time he purchased the yacht.” Id. ¶ 47. The trade-in boat’s mortgage amounted

to just over $26,000 in November 2010. Id. ¶ 48. The PWM Defendants apparently paid off the

mortgage themselves and “informed Plaintiff . . . that the $26,387.08 paid to [the mortgagee]

would be added to the repair and maintenance bills and that Plaintiff should continue making

$500.00 monthly payments towards [sic] the entire amount, now approximately $51,000.” Id. ¶

49.

During the first half of 2011, the plaintiff “incurred additional fees for purported repairs

and maintenance to the yacht totaling $21,039.94.” Id. ¶ 50. Invoices provided by the plaintiff

show that as of August 3, 2011, the plaintiff owed $73,427.93 to Defendant PWMS, separate

from the nearly $700,000 owed under the financing arrangement on the boat. See Compl. Ex. 9

at 94.

The plaintiff signed another Retail Installment Contract and Security Agreement (the

“Second Installment Contract”) with Defendant PWMS dated July 15, 2011, at the Defendant

PWMS’ request. See Compl. Ex. 4 at 47–51. Defendant PWMS requested the plaintiff sign this

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new contract, without dating it, on February 11, 2010 6 because Defendant PWMS was “changing

all of [its] bank contracts to a more professional contract.” Id. at 47. In the request to the

plaintiff, Defendant PWMS noted that, “the [monthly] payment did not change, however, the

balloon, final payment is lower than the last contract” since the Second Installment Contract had

a slightly longer term than the First Installment Contract. See id. This new contract was

supposed to end on August 15, 2013, eight months later than the First Installment Contract.

Compare Second Installment Contract at 48 (listing last payment date as August 15, 2013) with

First Installment Contract (listing last payment date as December 27, 2012). The Second

Installment Contract also applied a lower interest rate than the First Installment Contract.

Compare Second Installment Contract at 48 (listing interest rate as 6.0 percent) with First

Installment Contract (listing interest rate as 7.25 percent).

The Second Installment Contract stated, in the section marked “Remedies,” that the

PWM Defendants “may not accelerate payment or repossess any Property described in this

Contract on account of late payment or non-payment of an installment if you make payment

(together with any agreed late charge) within 10 days of the date on which the installment was

due.” Second Installment Contract at 50. Finally, the Second Installment Contract stated that

“[t]he law of Virginia will govern this transaction. It is also governed by applicable federal law

and regulations. In the event of a dispute, the exclusive forum, venue, and place of jurisdiction

will be in Virginia, unless otherwise required by law.” Id. There is no indication in the Second

Installment Contract that the maintenance charges and trade-in mortgage costs incurred since the

purchase of the yacht in November, 2009, were included in the amount financed under the

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The parties do not explain the seventeen month gap between the request and the date on which the Second

Installment Contract was signed.

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Second Installment Contract. See id. at 48 (listing amount financed as $668,000); compare with

First Installment Contract at 43 (listing amount financed as $692,246.00).

The plaintiff received an email from Defendant PWMS’ business manager, Brandy

Espinosa, on August 24, 2011, stating that “we need payment for the service work you have had

done by next Wednesday (+/- $73,000). If you do not have the balance due you need to turn

your yacht in to” the PWM Defendants’ owner, Carlton Phillips (“Phillips”). See Compl. ¶ 52;

see also Compl. Ex. 10 at 97. The plaintiff attempted to secure a loan to pay the balance but was

unsuccessful. Compl. ¶ 53.

On September 16, 2011, the plaintiff received an e-mail message from a PWM

representative noting that Defendant PWM had “picked up the boat and it is now back here

(PWM)[;] we will be putting it up for sale.” Id. ¶ 56; see also Compl. Ex. 11 at 99. The plaintiff

avers that no lien was filed on the yacht, nor was any attempt made “to otherwise comply with

District of Columbia law governing repossession.” Compl. ¶ 54–56. Three weeks later, the

same PWM representative sent the plaintiff another email notifying him that he would need to

“remove [his] personal belongings from the boat” which was being held at the PWM

Defendants’ place of business. Id. ¶ 59; see also Compl. Ex. 12 at 101. On October 15, 2011,

the plaintiff received a notice by mail from the PWM Defendants stating “[t]his letter is to

inform you and confirm verbal discussion about your 2008 Sea Ray 58DB #Y1591. This is

formal notice that the boat has been taken for satisfaction of your debt to Prince William Marine

Sales and we have put the boat up for sale. Once the boat is sold depending on the actual deal

situation, we will work out the possibility of putting you into another smaller boat.” Compl. Ex.

13 at 103. The plaintiff avers that he “could not understand what PWM was doing or had done

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and continued making payments on the [Second Installment Contract] for the yacht even after

PWM had seized it.” Compl. ¶ 63.

In April 2012, Defendant PWMS asked the plaintiff to execute a document labelled “Bill

of Sale” for the yacht. Id. ¶ 64; see also Compl. Ex. 15 at 108–09. The plaintiff signed the

document on April 20, 2012, although the plaintiff contends that “he thought he was required to

do so but did not understand its purpose.” Compl. ¶ 65. Two months later, the plaintiff met with

Phillips and his secretary, Michelle Price, without a sign language interpreter, and was told that

the yacht had been “sold.” Id. ¶¶ 66–67. During this meeting, the plaintiff was informed that he

would be receiving no money back from the “sale” because the yacht had depreciated in value—

from $1.4 million to between $700,000 and $800,000—while the plaintiff’s debt to Defendant

PWMS was “825K.” Id. ¶¶ 68–70. Notably, the plaintiff alleges that the PWM Defendants told

him the boat had been “repossessed,” despite the plaintiff having not missed a payment on the

Second Installment Contract or on the maintenance fees. Id. ¶ 68–69. The plaintiff later learned

that the yacht had been part of a “trade” with Defendant Fiorina and, for the purposes of that

trade, the yacht had been valued at $1,280,000, not the $700,000-800,000 he had been informed

the yacht was worth at the June meeting with the PWM Defendants. Id. at 72–74.

The plaintiff filed suit against the defendants in the Superior Court for the District of

Columbia on April 17, 2013, stating ten causes of action including common law torts, violation

of the District of Columbia Consumer Protection Procedures Act, breach of contract, fraud, and

conspiracy. See Compl. ¶¶ 81–168. The defendants timely removed the action to this Court

pursuant to 28 U.S.C. §§ 1332, 1441, and 1446. See Not. of Removal at 1. On the date of

removal, the defendants filed their motion to transfer this matter to the Eastern District of

Virginia pursuant to the forum selection clause in the Second Installment Contract and their

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motions to dismiss for failure to state a claim upon which relief can be granted. See Defs.’ Mot.

Transfer; PWM Defs.’ Mot. Dismiss; Def. Fiorina’s Mot. Dismiss, generally.

In his opposition to Defendant Fiorina’s Motion to Dismiss, (“Pl.’s Fiorina Opp’n”), ECF

No. 11, the plaintiff withdrew his “cause of action alleging conspiracy against [Defendant]

Fiorina.” Pl.’s Fiorina Opp’n at 1. Consequently, Count Nine, which is one of two claims

against Defendant Fiorina, is dismissed as it pertains to him.

In their replies to the plaintiff’s Consolidated Memorandum in Opposition to the

defendants’ Motion to Transfer and the PWM Defendants’ Motion to Dismiss (“Pl.’s Opp’n”),

ECF No. 12, the defendants raised, for the first time, a procedural challenge to the plaintiff’s

cause of action for replevin, based on the District of Columbia’s statutory requirement that the

plaintiff post a bond at the time he initiated the action. See PWM Defs.’ Reply Pl.’s Opp’n

PWM Defs.’ Mot. Dismiss (“PWM Defs.’ MTD Reply”) at 3, ECF No. 15; Def. Fiorina’s Reply

Pl.’s Opp’n Def. Fiorina’s Mot. Dismiss (“Def. Fiorina’s MTD Reply”) at 3, ECF No. 16. In

order to provide the plaintiff an opportunity to respond to this new argument, the Court ordered

the plaintiff to show cause “why Count 1 of the plaintiff’s Complaint should not be dismissed for

failure to comply with D.C. Code Section 16-3704” by December 16, 2013. Minute Order dated

December 11, 2013. The plaintiff did not respond to the Court’s Order.

II. LEGAL STANDARD

A. Motion to Transfer

A case may be transferred to another venue “[f]or the convenience of parties and

witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). As the Supreme Court has noted,

“Section 1404(a) is intended to place discretion in the district court to adjudicate motions for

transfer according to an ‘individualized, case-by-case consideration of convenience and

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fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (quoting Van Dusen v.

Barrack, 376 U.S. 612, 622 (1964)). “[T]ransfer in derogation of properly laid venue” in the

District of Columbia “must . . . be justified by particular circumstances that render the transferor

forum inappropriate by reference to the considerations specified in” 28 U.S.C. § 1404(a).

Starnes v. McGuire, 512 F.2d 918, 925 (D.C. Cir. 1974). In deciding a motion to transfer venue

under § 1404(a), a court must first determine whether the transferee district is one where the

action “might have been brought,” 28 U.S.C. § 1404(a), and then must balance the private and

public interests involved in the proposed transfer to determine “whether the defendant has

demonstrated that considerations of convenience and the interest of justice support a transfer,”

Barham v. UBS Fin. Servs., 496 F. Supp. 2d 174, 178 (D.D.C. 2007). The burden is on the

movant for “establishing that the transfer of this action is proper.” Hooker v. NASA, No. 12-

1358, 2013 WL 4454549, at *1 (D.D.C. Aug. 21, 2013) (internal quotation marks and citation

omitted).

B. Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6)

The Federal Rules of Civil Procedure require that a complaint contain “‘a short and plain

statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

defendant fair notice of what the . . . claim is and the grounds upon which it rests[.]’” Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957));

FED. R. CIV. P. 8(a). A motion under Rule 12(b)(6) does not test a plaintiff’s likelihood of

success on the merits; rather, it tests whether a plaintiff properly has stated a claim. See Scheuer

v. Rhodes, 416 U.S. 232, 236 (1974) abrogated on other grounds by Harlow v. Fitzgerald, 457

U.S. 800, 814 (1982). Although “detailed factual allegations” are not required to withstand a

Rule 12(b)(6) motion, a complaint must offer “more than labels and conclusions” to provide

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“grounds” of “entitle[ment] to relief.” Twombly, 550 U.S. at 555 (alteration in original). “Nor

does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 557)

(alteration in original). The Supreme Court stated that “[t]o survive a motion to dismiss, a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is

plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). A claim is facially plausible

“when the plaintiff pleads factual content that allows the court to draw the reasonable inference

that the defendant is liable for the misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556).

III. DISCUSSION

At the outset, the plaintiff’s failure to respond to the Court’s Order to Show Cause

regarding his conformance to the District of Columbia statutory requirement that he post a

suitable “undertaking” at the time he filed his replevin action, see D.C. Code § 16-3704, and the

plaintiff’s failure to plead or otherwise show in his Complaint that this requirement has been met,

compels the Court to dismiss Count 1 of the Complaint. Since Defendant Fiorina is named only

in Count 1 and Count 9, which has been voluntarily dismissed, Defendant Fiorina is dismissed

from this action.

As to the remaining counts, Counts 2 through 10, the PWM Defendants’ motions to

dismiss and motion to transfer are interrelated in that the motion to dismiss is, for the most part,

premised on the assumption that Virginia law applies to this action. See PWM Defs.’ Mem.

Supp. PWM Defs.’ Mot. Dismiss (“PWM MTD Mem.”) at 3 (“All of Plaintiff’s causes of action

are subject to review under the standards required by the law of the Commonwealth of

Virginia.”), ECF No. 5-2; Pl.’s Opp’n at 10 (“Defendant’s [sic] entire motion to dismiss is

premised on the erroneous notion that ‘the contract attached as Exhibit 4 to the suit upon which

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Plaintiff primarily relies requires that all disputes related thereto be subject to the law,

jurisdiction and venue of Virginia.’”) (quoting PWM Defs.’ MTD at 1). Thus, the Court turns

first to the defendants’ Motion to Transfer.

A. The Defendants’ Motion to Transfer Venue

The defendants argue that transfer is appropriate for two distinct reasons. First, the

defendants contend that the forum selection clause in the Second Installment Contract is binding

on this action and, consequently, the Court must transfer this case to the Eastern District of

Virginia. See Defs.’ Mem. Supp. Mot. to Transfer Venue (“Defs.’ Transfer Mem.”) at 1–2, ECF

No. 4-2. Second, the defendants allege that, if the forum selection clause does not apply, the

traditional forum non conviens factors favor discretionary transfer under 28 U.S.C. § 1404(a).

See id. at 7–9. Neither argument is persuasive.

1. The Forum Selection Clause Does Not Apply

The defendants are correct that “the existence of [a] forum selection clause in the

agreement between the parties” is a “major consideration” when analyzing a motion to transfer

venue. Defs.’ Transfer Mem. at 4. Indeed, the Supreme Court has held that “[w]hen the parties

have agreed to a valid forum-selection clause, a district court should ordinarily transfer the case

to the forum specified in that clause” and “[o]nly under extraordinary circumstances unrelated to

the convenience of the parties” may such a motion be denied. Atl. Marine Const. Co., Inc. v.

U.S. Dist. Court for W. Dist. of Tex., 134 S. Ct. 568, 581 (2013). While there is no reason to

suspect here that the forum selection clause is not “valid,” there is also no reason to believe that

the forum selection clause applies to the plaintiff’s suit.

There were at least six different agreements between the parties according the plaintiff:

(1) the original sales contract, which contained no choice of law or venue clause, see Compl. Ex.

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2; (2) the First Installment Contract, which contained no choice of law or venue clause, see First

Installment Contract; (3) the Second Installment Contract, which contained the forum selection

and choice of law clause designating Virginia as the applicable law and forum, see Second

Installment Contract; (4) the Bill of Sale and Mortgage, executed on December 29, 2009, which

contained a choice of law provision designating Maryland law but no forum selection clause, see

Compl. Ex. 5; (5) the oral agreement for repairs and maintenance payments of $500 per month,

which contained no forum selection or choice of law provision, see Compl. ¶¶ 32–42; and (6) the

Bill of Sale executed on April 20, 2012, which contained no forum selection or choice of law

provision, see Compl. Ex. 15. Thus, only one of the six agreements contains the forum selection

clause the defendants now assert is dispositive: the Second Installment Contract.

The forum selection clause at issue is limited to “this transaction,” referring to the

transaction outlined in the Second Installment Contract. See Second Installment Contract at 50.

The description of goods or services purchased pursuant to the Second Installment Contract does

not contain any mention of maintenance, repairs, or the balance due on the trade-in mortgage.

See id. at 48. Indeed, the amount financed in the Second Installment Contract is nearly $30,000

less than that financed in the First Installment Contract, despite the fact that the PWM

Defendants showed a $73,000 balance for maintenance services just three weeks after the Second

Installment Contract was signed. See id.; compare id. (financing $668,000) with First

Installment Contract at 42 (financing $692,246); see also Compl. Ex. 9 at 94 (showing balance

due for maintenance and other charges of $73,427.93 on August 3, 2011). Had the Second

Installment Contract contemplated inclusion of the maintenance and other fees as part of the

“this transaction,” presumably the maintenance balance would have been zero, since the money

owed would have been rolled into the financing arrangement. That was clearly not done.

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As pleaded, the plaintiff alleges that the PWM Defendants unlawfully seized the yacht in

question not for default on the Second Installment Contract but, rather, for failure timely to pay

the charges due for maintenance and repair work and for the outstanding balance on the trade-in

mortgage. See, e.g., Compl. ¶¶ 6–8 (alleging that the PWM Defendants “seized Plaintiff’s

yacht” because “Plaintiff failed to pay the unpaid work orders and trade-in payoff in full”).

Although the plaintiff refers to the Second Installment Contract in his Seventh Cause of Action,

see Compl. ¶¶ 139–48, this reference does not render the maintenance charges, which are the

gravamen of this dispute, part of the transaction referenced in the Second Installment

Agreement. 7

The defendants characterize this breach of contract cause of action as “artful dodging,”

because the plaintiff named Defendant PWMS as the only defendant to which the breach of

contact claim applies. See Defs.’ Reply Pl.’s Opp’n Mot. Transfer (“Defs.’ Reply”) at 6, ECF

No. 14. While it is true that “courts have found that strategic or artfully drawn pleadings will not

be permitted to circumvent an otherwise applicable forum selection clause,” Worldwide Network

Servs., LLC v. DynCorp Int’l, 496 F. Supp. 2d 59, 63 (D.D.C. 2007), the pleading here is not

such an example. Rather, the facts alleged in the Complaint point to the issues being the oral

agreement for maintenance services, the plaintiff’s subsequent inability to pay for those services

in one, lump-sum payment, and the PWM Defendants’ “repossession” of the yacht for those

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The PWM Defendants read Count 7 as setting out a claim for breach of the Second Installment Contract. See, e.g.,

PWM Defs.’ MTD Mem. at 10–11; PWM Defs.’ MTD Reply at 5 (“Plaintiff’s Breach of Contract claim

unequivocally relies on the Retail Installment Contract and Security Agreement attached to the Complaint.”). Count

7, as plead, is not entirely clear as to whether the “contract” alleged to have been breached is the oral agreement

between the parties for maintenance services, see Compl. ¶¶ 141–42 (“The [Second Installment Contract] provide[s]

no provisions for the repair and maintenance of the yacht.”), or the Second Installment Contract, see id. ¶ 143 (“The

sole basis for repossession under the [Second Installment Contract] is default and Plaintiff had never defaulted.”).

Count 7 also names only Defendant PWMS, the signatory to the Second Installment Contract, which likely

compounded the PWM Defendants’ understandable confusion. The plaintiff’s submissions make clear, however,

that Count 7 refers to the oral agreement for maintenance services. See Pl.’s Opp’n at 1 (“PWM’s repossession was

based on repairs that PWM repeatedly performed on the yacht in the District of Columbia, under an agreement not

governed by any choice of law or forum provision . . . .”) (emphasis in original).

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unpaid charges. See Compl., generally. Thus, the forum selection clause in the Second

Installment Contract is not, as the defendants assert, “an otherwise applicable forum selection

clause” since it does not apply to this action at all. The operative agreement is the oral

agreement regarding maintenance to the yacht, not the Second Installment Contract.

The actions giving rise to the instant suit are not part of the “transaction” referenced in

the Second Installment Agreement and, consequently, the forum selection clause in that

document does not apply. Thus, it is necessary to perform the analysis mandated by 28 U.S.C. §

1404(a), including the weighing of public and private interest factors, to determine whether this

matter should, nevertheless, be transferred to the Eastern District of Virginia.

2. The § 1404(a) Analysis

The defendants devote most of their briefing in support of their Motion to Transfer to the

inapplicable forum selection clause in the Second Installment Contract. See Defs.’ Transfer

Mem. at 2–4; 5–7; Defs.’ Reply at 2–6. To the extent that the defendants address the relevant §

1404(a) factors, their arguments are unavailing.

The threshold determination required by 28 U.S.C. §1404(a)—that the action “might

have been brought” in the transferee forum—is met: there is no dispute that this action “might

have been brought” in the Eastern District of Virginia. Indeed, the defendants assert, albeit

erroneously, that it must be brought there. See Defs.’ Transfer Mem. at 2 (“[T]he choice of law

and forum clause of the contract between the parties requires a transfer of this matter to the

Eastern District of Virginia.”) (emphasis added); Pl.’s Opp’n generally (raising arguments

against transfer but not asserting case could not have been brought in the Eastern District of

Virginia). At issue, then, is whether the convenience of the parties and the interest of justice, as

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encompassed by the various public and private interest factors to be considered with a § 1404(a)

motion, support a transfer.

Courts generally look to six private interest factors in evaluating transfer motions: “1) the

plaintiff’s choice of forum, 2) the defendant’s choice of forum, 3) where the claim arose, 4) the

convenience of the parties, 5) the convenience of the witnesses, particularly if important

witnesses may actually be unavailable to give live trial testimony in one of the districts, and 6)

the ease of access to sources of proof.” Montgomery v. STG Int’l, Inc., 532 F. Supp. 2d 29, 32–

33 (D.D.C. 2008) (citing Akiachak Native Cmty. v. U.S. Dep’t of Interior, 502 F. Supp. 2d 64, 67

(D.D.C. 2007)).

In most cases, “a plaintiff’s choice of forum is . . . a paramount consideration that is

entitled to great deference in the transfer inquiry.” FTC v. Cephalon, Inc., 551 F. Supp. 2d 21,

26 (D.D.C. 2008) (internal quotation marks omitted). That choice is “entitled to deference,

unless that forum has no meaningful relationship to the plaintiff[’]s claims or to the parties.”

United States ex rel. Westrick v. Second Chance Body Armor, Inc., 771 F. Supp. 2d 42, 47

(D.D.C. 2011) (citing Veney v. Starbucks Corp., 559 F. Supp. 2d 79, 84 (D.D.C. 2008)). It is up

to the defendants to “carry a weighty burden to demonstrate that the plaintiff[’]s forum choice

should be disturbed in favor of the . . . defendants’ choice.” Id. This deference is substantially

lessened when the plaintiff is a “foreigner” to the forum, see Thayer/Patricof Educ. Funding,

LLC v. Pryor Resources, Inc., 196 F. Supp. 2d 21, 31 (D.D.C. 2002) (citing Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 255–56 (1981)), or there is a lack of “meaningful ties” between the

controversy, the parties, and the forum, see Wyandotte Nation v. Salazar, 825 F. Supp. 2d 261,

268 (D.D.C. 2011). Thus, to some extent, the first factor, the plaintiff’s choice of forum, and the

third factor, where the claim arose, are often conflated, since the analysis of where the claim

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arose necessarily involves examining the ties, or lack thereof, between the parties, the

controversy, and the forum.

Here, the plaintiff is not domiciled in the District of Columbia. See Compl. ¶ 13 (listing

the plaintiff’s residence as Maryland). The defendants assert that “[a]ll transactions, dealings,

conversations and agreements between the parties are alleged to have occurred in Virginia where

the relationship is centered,” Defs.’ Transfer Mem. at 8, but this statement is belied by the

Complaint. All of the repairs around which this dispute centers are alleged to have occurred in

the District of Columbia, Compl. ¶¶ 32; 40; the boat was slipped in the District of Columbia, id.

¶ 23; the maintenance and repairs were ordered via video conference from the District of

Columbia, id. ¶ 33, and the alleged improper seizure of the yacht occurred in the District of

Columbia, id. ¶ 61. Thus, there are plainly significant ties between this forum, the plaintiff, and

the events that gave rise to the claim, and consequently, the first and third factors weigh against

transfer.

The second factor, the defendants’ choice of forum, “is not ordinarily entitled to

deference.” Weiner v. Novartis Pharms. Corp., No. 07-2108, 2013 WL 6085599, at *2 (D.D.C.

Nov. 20, 2013). The defendants offer no argument as to why their choice of forum should be

given preference over the plaintiff’s, except with regard to the inapplicable forum selection

clause. See Defs.’ Transfer Mem. at 8. Merely stating that the defendants “have consented and

pray . . . that the matter be transferred” is insufficient to carry the “heavy burden” of a defendant

moving to transfer from an otherwise proper venue. See Thayer/Patricof, 196 F. Supp. 2d at 31.

Thus, the second factor does not weigh in favor of transfer.

As to the convenience of the parties and access to proof, the defendants make the

conclusory statement that “[t]here is no question that the most convenient jurisdiction of the

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parties is the Eastern District of Virginia” because all of the defendants are present in that

district. Defs.’ Transfer Mem. at 8. Yet, as the plaintiff points out, the distance between the

District of the District of Columbia and Eastern District of Virginia’s courthouses is minimal and

the two Districts border each other. See Pl.’s Opp’n at 4–5. In any event, it is axiomatic that

“mere inconvenience to the witnesses alone is not enough to warrant transfer,” FC Investment

Grp. v. Lichtenstein, 441 F. Supp. 2d 3, 14 (D.D.C. 2006), and in the instant matter the

defendants do not argue that any party will be inconvenienced by litigating this case in the

District of Columbia. Consequently, the fourth, fifth, and sixth factors do not weigh in favor of

transfer. Since the first and third factors weigh in favor of the plaintiff’s choice of forum in this

District and none of the other factors weigh against the plaintiff’s choice of forum, the private

interest factors favor resolution of this matter in the District of Columbia.

The public interest factors also favor venue in the District of Columbia. Courts typically

look to three factors in evaluating the public interest: “(1) the transferee forum’s familiarity with

the governing laws and the pendency of related actions in that forum; (2) the relative congestion

of the calendars of the potential transferee and transferor courts; and (3) the local interest in

deciding local controversies at home.” Foote v. Chu, 858 F. Supp. 2d 116, 123 (D.D.C. 2012)

(citing Ravulapalli v. Napolitano, 773 F. Supp. 2d 41, 56 (D.D.C. 2011)). The defendants’ only

argument on this score is that this action “arises entirely out of business dealings that occurred

within the Commonwealth of Virginia,” which appears to relate to the third factor 8 regarding the

interest in “deciding local controversies at home.” Defs.’ Transfer Mem. at 8. 9

8

The first factor, familiarity with governing law, favors venue in this forum since, as explained infra, the applicable

law is that of the District of Columbia.

9

The defendants assert in their reply that the yacht is “currently moored in Virginia.” Defs.’ Reply at 7. The

defendants offer no reason why this fact matters, particularly in light of the fact that the yacht is no longer in the

PWM Defendants’ custody after having been sold and the plaintiff’s allegation that the yacht was improperly seized

and removed to Virginia. Therefore, the Court affords no weight to this statement.

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The maintenance work done that gave rise to the instant suit occurred in the District of

Columbia, the yacht itself was slipped in the District of Columbia, and the yacht was allegedly

improperly converted in the District of Columbia. See Compl. ¶¶ 23; 32; 33; 40. The plaintiff is

correct in noting that “the [alleged] unlawful repossession of a . . . vessel from its usual mooring

in the District of Columbia for failure to pay for repairs performed in the District of Columbia . .

. which were both undertaken with the aid of a key to the marina located in the District of

Columbia – on its face suggests the District of Columbia’s very strong interest in maintaining

this case” in this District. Pl.’s Opp’n at 6. The defendants’ cursory and conclusory statement as

to the relationship between this action and the Commonwealth of Virginia is belied by the

Complaint and, thus, the third public interest factor favors venue in the District of Columbia.

Since the defendants, as the moving party, bear the burden of “showing that a transfer

would be appropriate,” and the only argument made by the defendants as to the public interest

factors is unavailing, the Court finds that the public interest factors as well as the private interest

factors are neutral or weigh against transfer. Thus, the defendants’ motion to transfer is denied.

B. The PWM Defendants’ Motion to Dismiss

The PWM Defendants devote the vast majority of the briefing in support of their motion

to dismiss to the applicability of Virginia law. See PWM Defs.’ MTD Mem.; PWM Defs.’ MTD

Reply, generally. The PWM Defendants argue that, in the absence of the Second Installment

Contract’s forum selection clause, this Court should still apply Virginia law under the District of

Columbia’s conflicts of law principles. See PWM Defs.’ MTD Mem. at 5–7. This argument is

unavailing.

This Circuit applies “the law of the forum—in this case, the District of Columbia—to

determine whether the law of the District of Columbia . . . reaches this dispute.” Shaw v.

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Marriott Int’l, Inc., 605 F.3d 1039, 1045 (D.C. Cir. 2010). Under District of Columbia choice of

law principles, “the Court must first determine whether a ‘true conflict’ exists between the laws

of the competing jurisdictions.” Margolis v. U-Haul Int’l, Inc., 818 F. Supp. 2d 91, 100 (D.D.C.

2011). Assuming such a conflict exists, District of Columbia “law will be applied unless the

foreign state has a greater interest in the controversy.” Jones v. Clinch, 73 A.3d 80, 82 (D.C.

2013) (quoting Kaiser-Georgetown Cmty. Health Plan, Inc. v. Stutsman, 491 A.2d 502, 509

(D.C. 1985)) (emphasis in original). To determine which jurisdiction has a “greater interest,” the

District of Columbia uses a modified “governmental interests analysis,” which evaluates “the

governmental policies underlying the applicable laws and determine[s] which jurisdiction’s

policy would be more advanced by the application of its law to the facts of the case under

review.” Id. (quoting District of Columbia v. Coleman, 667 A.2d 811, 816 (D.C. 1995)). As part

of that analysis, District of Columbia courts examine the four factors set forth in the

RESTATEMENT (SECOND) OF CONFLICT OF LAWS § 145, namely, “a) the place where the injury

occurred; b) the place where the conduct causing the injury occurred; c) the domicile, residence,

nationality, place of incorporation and place of business of the parties; and d) the place where the

relationship is centered.” Id.

Assuming, arguendo, that there is a conflict between the laws of the District of Columbia

and the laws of Virginia with regard to the remaining claims in this matter, the Court is

convinced that District of Columbia law applies. The injury in question here is the alleged

wrongful seizure of the yacht and that injury occurred in the District of Columbia. Furthermore,

the conduct causing the injury, which here is the alleged wrongful use of the yacht and marina

keys to facilitate the wrongful seizure, also happened in the District of Columbia. Compl. ¶ 61.

Thus, the first and second RESTATEMENT factors favor District of Columbia law. The third

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factor, the parties’ locations, favors either Maryland or Virginia law, because the plaintiff is

domiciled in Maryland, id. ¶13, while the PWM Defendants are incorporated in Virginia, id. ¶¶

14–15. The fourth factor, the place where the relationship is centered, at best, could favor either

District of Columbia or Virginia law, since the yacht was purchased in Virginia but the oral

agreement for maintenance services is alleged to have been initiated and consummated in the

District of Columbia. See id. ¶ 33. In sum, two factors clearly favor the District of Columbia,

one appears to favor either the Maryland or Virginia, and the last could favor the District of

Columbia or Virginia.

The District of Columbia measures the RESTATEMENT factors qualitatively, and counts

the place of injury as particularly significant when an injury is “to [a] tangible thing[].”

Washkoviak v. Student Loan Marketing Ass’n, 900 A.2d 168, 181–82 (D.C. 2006). Indeed, in

Jones, the District of Columbia Court of Appeals found the situs of the injury that gave rise to

the claim to be “more than sufficient to outweigh” the corporate status of the parties. Jones, 73

A.3d at 83. Consequently, District of Columbia law applies to this matter.

Since the PWM Defendants devote the vast majority of their briefing in support of their

motion to dismiss to applying Virginia law, see PWM Defs.’ MTD Mem.; PWM Defs.’ MTD

Reply, generally, which does not apply to this action, and the plaintiff devoted its briefing in

opposition to the motion to dismiss to whether Virginia law should apply, see Pl.’s Opp’n,

generally, the parties have failed to put forth an adequate legal foundation on which their claims

can be resolved. Consequently, with the exception of the replevin claim, the PWM Defendants’

Motion to Dismiss is denied without prejudice to refile, in light of the Court’s holding that

District of Columbia law applies to this action.

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IV. CONCLUSION

For the foregoing reasons, the Defendants’ Motion to Transfer is DENIED; Defendant

Fiorina’s Motion to Dismiss is GRANTED; and the PWM Defendants’ Motion to Dismiss is

GRANTED as to Count 1 and DENIED without prejudice as to all other claims. Defendant

Fiorina is dismissed from this action. The parties shall meet and confer pursuant to this Court’s

Standing Order, ECF No. 8, and jointly submit the required report, including a proposed

scheduling order to control further proceedings in this matter, by January 20, 2014. See Standing

Order ¶ 3(a).

An appropriate Order accompanies this Memorandum Opinion.

Date: January 6, 2014 Digitally signed by Beryl A. Howell

DN: cn=Beryl A. Howell, o=District Court for

the District of Columbia, ou=District Court

Judge,

email=howell_chambers@dcd.uscourts.go

v, c=US

__________________________

Date: 2014.01.06 11:39:16 -05'00'

BERYL A. HOWELL

United States District Judge

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