SERKAN ALTAN v. IK RETAIL GROUP

SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
______________________

SERKAN ALTAN,
Plaintiff,
vs.
IK RETAIL GROUP, et al.,
Defendants.
______________________

Civil Action No.: 2009 CA 008648 B
Judge Erik P. Christian
 

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS

This matter is before the court on Defendants’ Motion to Dismiss (“Motion”), Plaintiffs' Opposition to Defendants’ Motion to Dismiss (“Opposition”), and the record herein. Defendants move to dismiss counts 7, 8, and 9 for lack of subject matter jurisdiction. Defendants seek to dismiss the remainder of the claims based on the doctrine of forum non conveniens. Defendants further move that counts 3, 4, and 5 be dismissed for failure to state a claim upon which relief may be granted. For the reasons stated below Defendants’ Motion is denied.

I. FACTUAL BACKGROUND

Defendant IK Retail Group (“IK”) is a firm headed by Iraklis Karabassis and
which is headquartered at 3238 Prospect Street, N.W. Washington, DC. Companies under IK include MaxMara Caffe and M Cafe. Plaintiff was hired in June 2008, as an accountant for MaxMara Caffe and reported to Katrina Wilkey who worked from Defendants’ offices in Washington, DC. Opposition at 3. Plaintiff raised complaints about possible violations of labor laws by Giulio Santillo in January 2009. Opposition at 5.

Plaintiff was employed at M Café Bar from June 2008, until his termination in May 2009. Memorandum in Support of Motion to Dismiss at 1. (“Memorandum”). M Café Bar is located in Chevy Chase, Maryland and its corporate parent, MaxMara Caffe, Inc. is a Maryland corporation. Memorandum at 1. Plaintiff physically worked in Chevy Chase, MD. Opposition at 13. Following a workplace incident on April 17, 2009, Plaintiff comforted a colleague. Plaintiff claims that this irritated Mr. Santillo who made threatening remarks against Plaintiff and “lunged toward [Plaintiff], but did not reach him.” Opposition at 7. Subsequently, Plaintiff left the premises and Mr. Santillo ran after him and made additional threatening comments. Plaintiff further claims that Mr. Santillo demonstrated how he would strangle Plaintiff to two colleagues after Plaintiff had left for the day. Opposition at 7. Mr. Santillo made additional anti-gay remarks on two separate occasions. On May 1, 2009, Plaintiff was told he was being terminated effective May 15.

II. STANDARD OF REVIEW

Pursuant to D.C. Code § 13-425 (2009), “[w]hen any District of Columbia court finds that in the interest of substantial justice[,] the action should be heard in another forum, the court may stay or dismiss such civil action in whole or in part on any conditions that may be just.” Courts have noted that "[t]he decision whether to dismiss an action for forum non conveniens is entrusted to the sound discretion of the trial court and will be reversed on appeal only upon a clear showing of abuse of discretion." See Medlantic Long Term Care Corp. v. Smith, 791 A.2d 25, 28 (2002) (citing Coulibaly v. Malaquias, 728 A.2d 595, 601 (D.C. 1999)).

Moreover, the D.C. Court of Appeals has directed that the trial court "first must evaluate and apply so-called 'private' factors followed by assessment of prescribed 'public' factors. See Jacobson v. Pannu, 822 A.2d 1080, 1083 (D.C. 2003) (affirming trial court's denial of motion for forum non conveniens where doctor and patient were Maryland residents, however, doctor's medical business mostly took place in the District of Columbia and doctor-patient relationship began there).

The D.C. Court of Appeals noted that "[w]here the plaintiff's choice of forum is between the District of Columbia and one of the counties in the Washington, D.C. metropolitan area, as here, the public interest factors predominate for the obvious reason that the relative ease or difficulty in getting to a D.C. court and a metropolitan court outside D.C. is usually the same." Medlantic Long Term Care Corp. v. Smith, 791 A.2d at 31. However, the court commented in prior cases that "[o]ne factor operating against dismissal is 'the principle that 'unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed." See Usery v. Kaiser Found. Health Plan, 647 A.2d 778, 780 (1994) (citations omitted). However, "[u]ltimately, there is no set formula for determining when dismissal is warranted because the inquiry is highly fact-specific." Id., at 780-81 (citations omitted).

III. ANALYSIS

In considering the instant Motion, the Court will first discuss whether an
alternative forum is available and then apply and weigh the private and public interests factors. Generally, the defendant bears the burden of proof in moving to dismiss a case on the ground of forum non conveniens. See Neale v. Arshad, 683 A.2d 160, 163 (D.C. 1996). Subsequently, the Court will address Defendants’ claim that Plaintiff’s claim should be dismissed for a failure to state a claim upon which relief may be granted.

A. SUBJECT MATTER JURISDICTION

Defendants claim that the instant case cannot proceed in the Superior Court for the District of Columbia. Motion at 3. In response, Plaintiff argues that venue for employment litigation exists both where the decision to discriminate is made and where the decision is implemented. Opposition at 12. Superior Court Civil Procedure Rule 12(b)(1) states that a court’s lack of subject matter jurisdiction is a valid defense. Super. Ct. Civ. R. 12(b)(1).

Courts in Maryland have discussed the proper venue for employment
discrimination litigation. A person that is subjected to a discriminatory act prohibited by a county code may bring and maintain a civil action against the person that committed the alleged discriminatory act for damages, injunctive relief, or other civil relief. Maryland Code Ann. § 20-1202(b). “A civil action under this section shall be filed in the circuit court for the county where the alleged unlawful employment practice occurred.” Maryland Code Ann. § 20-1013(b) (2009). Precedent interpreting the clause “where the discrimination takes place” determines where the discriminatory act “took place,” “occurred,” or “happened” by reference to both where the decision to discriminate took place and where the decision is implemented or where its effects are felt. Pope-Payton v. Realty Mgmt. Servs., Inc., 815 A.2d 919, 924 & 930 (Md. Ct. Spec. App. 2003) (holding that it would produce an “absurd result” to transfer case to circuit court in Montgomery County where plaintiff alleges workplace discrimination took
place in Prince George’s County).

In light of precedent discussing the proper venue for employment discrimination in Maryland, venue exists both where the decision is made and where its effects are felt. Pope-Payton v. Realty Mgmt. Servs., Inc., 815 A.2d at 930. Because Maryland courts have granted venue in both locations, Defendant’s Motion to dismiss based on a lack of subject matter jurisdiction is denied.

B. FORUM NON CONVENIENS

Defendant alternately argues that while venue may be technically proper, the doctrine of forum non conveniens vests the trial court with the discretion to dismiss an action if the interests of “substantial justice” so dictate. Motion at 3. See Medlantic Long Term Care Corp. v. Smith, 791 A.2d at 28. “When any District of Columbia court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss such civil action in whole or in part on any conditions that may be just.” D.C. Code § 13-425. It is well-settled in this jurisdiction that "[a] prerequisite for application of the doctrine of forum non conveniens is the availability of an alternative forum in which plaintiff's action may more appropriately be entertained." See Malik v. District of Columbia, 703 A.2d 1250, 1254 (1998) (citations omitted). Here, it is undisputed that Plaintiff can bring this employment discrimination action in Maryland or the District of Columbia based on the precedent established in Pope-Payton v. Realty Mgmt. Servs., Inc., 815 A.2d at 930. Plaintiff argues that Defendants place excessive weight on the private and public factors available to determine forum non conveniens. Opposition at 14.

1. PRIVATE FACTORS

The D.C. Court of Appeals, in Davis v. Davis, 957 A.2d 576, 583 (D.C. 2008) (citing Gulf Oil v. Gilbert, 330 U.S. 501, 508 (1945)), sets forth the factors to determine the appropriate forum for litigation. The relevant factors are: “(1) the relative ease of access to proof, (2) availability of compulsory process and the cost of obtaining the attendance of witnesses, (3) the enforceability of a judgment if one is obtained, (4) evidence of an attempt by the plaintiff to vex or harass the defendant by his choice of forum, and (5) other obstacles to a fair trial.” Davis v. Davis, 957 A.2d at 583 n.13. The Court also refers to: the enforceability of a judgment once obtained and evidence that the plaintiff attempted to vex, harass or oppress the defendant by his choice of forum. It concludes by stating that “unless the balance is strongly in favor of the defendant, the
plaintiff's choice of forum should rarely be disturbed.” Gulf Oil v. Gilbert, 330 U.S. at 508; Davis v. Davis, 957 A.2d at 583. The factors cited in Gulf Oil and Davis do not militate in favor of or against either Maryland or the District of Columbia. Defendants have their offices in the District of Columbia. Opposition at 15. Plaintiff further contends that the cost for serving process in this case was not significant and most witnesses reside nearby. Opposition at 16. The logistical burdens of litigation in either forum are comparable and the factors set forth in Gulf Oil have been satisfied.

2. PUBLIC FACTORS

Defendants argue that the public interest factors serve to ensure that litigation takes place in a forum with a greater connection to the parties. Motion at 6. The public factors used to decide forum non conveniens issues are: “1) administrative difficulties caused by local court dockets congested with foreign litigation; 2) the local interest in having localized controversies decided at home; 3) the unfairness of imposing the burden
of jury duty on the citizens of a forum having no relation to the litigation, and 4) the avoidance of unnecessary problems in conflict of laws and in the interpretation of the laws of another jurisdiction.” Medlantic Long Term Care Corp. v. Smith, 791 A.2d 25, 30-31 (D.C. 2002); Kaiser Foundation Health Plan, Inc. v. Rose, 583 A.2d 156, 158 (D.C. 1990).

Applying the four public-interest factors, the Court finds: (1) the instant action would cause little, if any, administrative difficulties and would not congest the docket with foreign litigation. Furthermore, the Court agrees with Plaintiffs that the case is not foreign litigation. Opposition at 18; (2) There is sufficient local interest in this controversy inasmuch as it involves a Defendant who is headquartered in the District of Columbia, and a substantial amount of the alleged discrimination against Plaintiff originated in the District of Columbia. Opposition at 17; (3) There is no unfairness of imposing jury duty on citizens of this forum because the case involves a corporation headquartered in the District of Columbia; and (4) The interpretation of the D.C. and Maryland Human Rights Acts should not be onerous due to the similarity of the statutes in each jurisdiction.¹

The similarity of the employment discrimination statutes between the two jurisdictions will not tend to generate unnecessary problems with the interpretation of laws of other jurisdictions. The Court finds that Defendants have failed to establish that any of the private or public interest factors weigh in favor of granting dismissal on the grounds of forum non conveniens. Plaintiff’s choice of forum in the District of Columbia should not be disturbed.

D. FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED

Defendants argue that Plaintiff does not have a remedy in tort, and counts 3, 4, and 5 must be dismissed pursuant to Rule 12(b)(6). Motion at 9. Defendants argue that Plaintiff should pursue a workers’ compensation claim rather than a tort claim. In response, Plaintiff alleges Defendants committed the torts of wrongful termination in violation of public policy and negligent supervision. Opposition at 19. “Dismissal for failure to state a claim on which relief can be granted is ‘impermissible unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.’” Winston Murray v. Wells Fargo Home Mortgage, 953 A.2d 308, 316 (D.C. 2008); (quoting Owens v. Tiber Island Condo. Ass’n., 373 A.2d 890, 893 (D.C. 1977)). “’Dismissal for failure to state a claim upon which relief can be granted is proper under Super. Ct. Civ. R. 12 (b)(6) . . . only where it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief’; and we construe the complaint ‘in the light most favorable to the plaintiff . . .’ and take its allegations as true.” Taylor v. D.C. Water & Sewer Auth., 957 A.2d 45, 49 (D.C. 2008) (quoting McBryde v. Amoco Oil Co., 404 A.2d 200, 202 (D.C. 1979)).

In order to make a prima facie claim for the tort of negligent supervision, a party must prove “an employer knew or should have known its employee behaved in a dangerous or otherwise incompetent manner, and that the employer, armed with that actual or constructive knowledge, failed to adequately supervise the employee.” Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985) (citing Murphy v. Army Distaff Found., Inc., 458 A.2d 61, 64 (D.C. 1983)). Plaintiff is alleging that another employee assaulted
him (but did not commit battery) upon business premises. Opposition at 22. Likewise, Plaintiff claims he was wrongfully terminated for bringing Messrs. Karabassis’ and Santillo’s behavior to the attention of the Defendant. Opposition at 23. In light of Plaintiff’s claims of wrongful termination as well as assault and negligent supervision, it cannot be said that Plaintiff would be unable to prove a set of facts which would entitle him to relief.

The Court finds that Defendants have failed to establish that Plaintiff has not stated a claim upon which relief may be granted. Consequently, the Court denies Defendants’ motion for dismissal for failure to state a claim upon which relief may be granted.

IV. CONCLUSION

The court evaluated the private and public interest factors in Defendants’
argument to dismiss based upon forum non conveniens; and, for the reasons stated above, Defendants’ Motion is denied. The “inquiry is not ‘whether the District of Columbia is the best forum for this litigation,’ but rather ‘whether the District of Columbia has so little to do with this case that its courts should decline to hear it.’” Blake v. Prof’l Travel Corp., 768 A.2d 568, 572 (D.C. 2001) (citations omitted). Moreover, “unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed”. Dunkwu v. Neville, 575 A.2d 293, 294 (D.C. 1990) (citations omitted).

In addition, Defendants’ have not demonstrated that Plaintiff has failed to state a claim upon which relief may be granted. WHEREFORE, it is this 1 day of February of 2010, hereby, ORDERED, that Defendants’ Motion to Dismiss is DENIED; and it is FURTHER ORDERED, that for each Motion filed, the parties shall e-mail a copy of the proposed order in Microsoft Word Format to the following e-mail addresses pursuant to this Court’s General Order: Christiane2@dcsc.gov and Christiane3@dcsc.gov.

SO ORDERED.

ERIK P. CHRISTIAN
JUDGE

(Signed-in-Chambers)

Copies mailed to:

Elizabeth Torphy-Donzella, Esquire
Darryl G. McCallum, Esquire
20 S. Charles Street, 11th Floor
Baltimore, MD 21201

David Scher, Esquire
Scott Oswald, Esquire
The Employment Law Group, P.C.
888 17th Street, N.W. Suite 900
Washington, DC 20006

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¹ Cf. D.C. CODE § 2-1402.11(a)(1). It shall be unlawful to do the following discriminatory acts: “(1) By an employer. -- To fail or refuse to hire, or to discharge, any individual; or otherwise to discriminate against any individual, with respect to his compensation, terms, conditions, or privileges of employment, including promotion; or to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities, or otherwise adversely affect his status as an employee… .” with MD. CODE ANN. § 20-606(a)(1) (2009) states that an employer may not “fail or refuse to hire, discharge, or otherwise discriminate against any individual with respect to the individual's compensation, terms, conditions, or privileges of employment because of: (i) the individual's race, color, religion, sex, age, national origin, marital status, sexual orientation, genetic information, or disability unrelated in nature and extent so as to reasonably preclude the performance of the employment; … (2) limit, segregate, or classify its employees or applicants for employment in any way that would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect the individual's status as an employee … .”  (italics added).