Tak v. Vyas et al
Filing
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MEMORANDUM OPINION re 11 Motion to Dismiss or to Transfer Venue. Signed by District Judge Roderick C. Young on 10/5/21. (mrees, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Norfolk Division
SHARAD TAK,
Plaintiff,
v.
JITENDRA VYAS, et al.,
Defendants.
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Civil Action No. 2:21CV93 (RCY)
MEMORANDUM OPINION
This matter comes before the Court on Defendants’ Motion to Dismiss or to Transfer
Venue (ECF No. 11.) The Motion has been fully briefed, and the Court dispenses with oral
argument because the materials before it adequately present the facts and legal contentions, and
argument would not aid the decisional process. For the reasons stated below, the Court will grant
in part and deny in part Defendants’ Motion to Dismiss or to Transfer Venue. The Court will grant
the Motion to Transfer and will deny the Motion to Dismiss.
I. BACKGROUND1
Sharad Tak (“Plaintiff”) created Technology Ventures, LLC, with Jitendra Vyas and
Sundeep Damani (“Individual Defendants”) on March 1, 1999. (Compl., ECF No. 1 at ¶ 15.)
Each signed an Operating Agreement detailing their rights and obligations. (Id. at ¶ 17.) The
purpose of the company was to provide IT consulting services. (Id. at ¶ 16.) Plaintiff was
designated the CEO and Chairman of the Board of Managers (“the Board”). (Id. at ¶ 22.)
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In ruling on a motion to transfer, the Court may consider evidence outside the pleadings but still views such
evidence in the light most favorable to the nonmoving party. See Hughes v. DynCorp International, LCC, No.
3:20cv168, 2020 WL 2201675, at *1 (E.D. Va. May 6, 2020) (citing Sucampo Pharms., Inc. v. Astellas Pharma,
Inc., 471 F.3d 544, 550 (4th Cir. 2006)); Gibbs v. Rees, No. 3:17cv386, 2018 WL 1460705, at *4 n.11 (E.D. Va.
Mar. 23, 2018). As such, the Court accepts the substance of Plaintiff’s complaint for purposes of background .
Hughes, 2020 WL 2201675 at *1.
Defendant Vyas was designated President, and Defendant Damani was designated Chief
Operating Officer. (Id. at ¶ 22.) The Individual Defendants were also designated as members of
the Board. (Id.)
The Operating Agreement calls for management of the company’s day to day activities to
be conducted by meetings and votes. (Id. at ¶ 19). Each manager is entitled to advanced notice
of any meeting, and each manager is to be given written notice of decisions within ten days of
each decision. (Id.) The Board determines distributions and officer salaries. (Id. at ¶¶ 20, 36.)
Plaintiff alleges that the Individual Defendants have not provided him with advanced
notice of meetings and have not provided him with written notice of decisions. (Id. at ¶¶ 33, 35.)
Furthermore, Plaintiff alleges that Individual Defendants have unilaterally decided to charge
consulting fees to Stream, LLC, and Foxhall Ventures, LLC (“Business Defendants”), which are
controlled by the Individual Defendants, as a way to supplement their salaries and avoid making
distributions. (Id. at ¶ 37.)
Plaintiff currently resides in Florida. (Id. at ¶ 2.) Defendants Vyas and Damani are
residents of Fairfax, Virginia. (Mem. Supp., ECF No. 12 at 5.) Business Defendants are both
headquartered in Fairfax County, and neither has offices or employees in the counties that make
up the Norfolk Division of the Eastern District of Virginia. (Id. at 6.)
II. PROCEDURAL HISTORY
On February 12, 2021, Plaintiff filed a Complaint (ECF No. 1) in the District Court for
the Eastern District of Virginia, in the Norfolk Division, against the Individual Defendants and
the Business Defendants. Defendants filed a Motion to Dismiss or Transfer Venue (ECF No. 11)
and a Memorandum in Support (ECF No. 12) on March 16, 2021. Defendants seek to dismiss
the complaint for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) or to
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transfer this action to the Alexandria Division. Plaintiff filed a Response in Opposition (ECF
No. 14) on March 30, 2021. Defendants filed a Reply (ECF No. 15) on April 2, 2021.
III. STANDARDS OF REVIEW
Whether venue is proper is determined by 28 U.S.C. § 1391 (“§ 1391”) as modified by
the Eastern District of Virginia’s Local Rule 3(C) (“Local Rule 3(C)”). Local Rule 3(C) states
that “28 U.S.C. § 1391 et seq. shall be construed as if the ‘judicial district’ and ‘district’ were
replaced with the term ‘division.’” E.D. Va. Loc. R. 3(C). As such, § 1391(b) should be read as:
A civil action may be brought in – (1) a [division] where any defendant resides, if
all defendants reside in the same State, (2) a [division] in which a substantial part
of the events or omissions giving rise to the claim occurred, or a substantial part
of the property that is the subject of the action is situated, or (3) a [division] in
which any defendant is subject to personal jurisdiction at the time the action is
commenced, if there is no [division] in which the action may otherwise be
brought.
See 28 U.S.C. § 1391(b); E.D. Va. Loc. R. 3(C). And, § 1391(d) should be read as:
[S]uch corporation shall be deemed to reside in any [division] . . . within
which its contacts would be sufficient to subject it to personal jurisdiction
if that [division] were a separate State, and, if there is no such [division],
the corporation shall be deemed to reside in the [division] within which it
has the most significant contacts.
See 28 U.S.C. § 1391(d); E.D. Va. Loc. R. 3(C).
IV. DISCUSSION
The Court finds that the Norfolk Division is not the proper venue for this action, as none
of the Defendants are residents of the Norfolk Division and the events or omissions that gave rise
to the claim did not occur in the Norfolk Division. Since all Defendants are residents of the
Alexandria Division, it is the proper venue.
A. The Individual Defendants
Plaintiff argues that Defendants are ignoring the plain language of § 1391. (Resp. Opp’n,
ECF No. 14 at 2.) Despite having his attention drawn to Local Rule 3(C) by the Motion to
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Dismiss or Transfer Venue and the Memorandum in Support of that motion, Plaintiff emphasizes
that § 1391 clearly states “judicial district.” (Id.) This ignores the clear language of Local Rule
3(C) that calls for “judicial district” to be replaced with “division.” E.D. Va. Loc. R. 3(C). The
only mention of Local Rule 3(C) made by Plaintiff is to note that the rule permits “the Clerk’s
Office in any division [to] accept for filing new complaints which . . . are in proper form.” (Resp.
Opp’n at 3 (quoting E.D. Va. Loc. R. 3(C)) (internal quotations omitted).) A more complete
reading of Local Rule 3(C) is instructive. The rule states, “the Clerk's Office in any division
shall accept for filing new complaints which, venue excepted, are in proper form. Such
complaints shall be filed on the day submitted, deemed "filed" for all purposes, and forwarded to
the division where venue lies for further proceedings.” E.D. Va. Loc. R. 3(C) (emphasis added).
Therefore, it is clear that venue is determined by division, not district.
For the Individual Defendants, residence is straightforward. A natural person’s residency
is determined by their domicile. 28 U.S.C. § 1391(c)(1). Domicile is determined by physical
presence and an intent to remain. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 48
(1989) (citation omitted). Both Individual Defendants live in Fairfax County and work for a
company located in Fairfax County. (Mem. Supp. at 5.) Plaintiff has not alleged any facts that
would affect the Individual Defendants’ place of residence or domicile. As such, for venue
purposes, the Individual Defendants reside in Fairfax County which is within the Alexandria
Division.
B. The Business Defendants
Plaintiff claims that § 1391 “indicates that, having been created under the laws of the
Commonwealth of Virginia, [the Business Defendants] are considered to reside in any judicial
district within the Commonwealth.” (Resp. Opp’n at 3.) This contention is based on § 1391(d),
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which states, “For purposes of venue . . . a corporation is subject to personal jurisdiction at the
time an action is commenced, such corporation shall be deemed to reside in any district in that
State within which its contacts would be sufficient to subject it to personal jurisdiction.” 28
U.S.C. § 1391(d). Plaintiff contends venue is proper since the Business Defendants are subject
to jurisdiction in Norfolk. (ECF. No. 14 at 3.)
Once again, Plaintiff neglects to read § 1391 in light of Local Rule 3(C). Like § 1391(b)(c), § 1391(d) should be read with “division” instead of “district.” See, e.g, Hughes, 2020 WL
2201675 at *5 (“unless the Richmond Division, acting as its own state, can exercise personal
jurisdiction over Defendant in this case, venue in this Division proves improper.”); Liverett v.
Dyncorp International, LLC, No. 3:17cv282, 2017 WL 9481048, at *2 (E.D. Va. July 18, 2017)
(“A corporation resides in any division where its contacts would be sufficient to subject it to
personal jurisdiction if that division existed as a separate district”).
For purposes of venue, an unincorporated association, such as an LLC, is treated like a
corporation. See Denver & R. G. W. R. Co. v. Brotherhood of Railroad Trainmen, 387 U.S. 556,
559-60 (1967). “[T]he residence of the association itself rather than that of its individual
members”2 determines the proper venue. Id. Defendants have alleged and Plaintiff has not
disputed that each Business Defendant is headquartered in and has its principal place of business
in Fairfax County. (Mem. Supp. Ex. A at 2; Mem. Supp. Ex. B at 2; see Resp. Opp’n at 2-3.) As
such, for venue purposes, the Business Defendants reside in Fairfax County which is within the
Alexandria Division.
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Even if the residence of the Business Defendants’ members were used to determine the entities’ residency, the
Norfolk Division would not be the proper venue. Plaintiff has not alleged that the Business Defendants have
members other than the Individual Defendants. (Compl. at 3.)
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C. Proper Venue3
The Court finds that the Norfolk Division is not the proper venue and that the Alexandria
Division is the proper venue for this action. The Individual Defendants and the Business
Defendants are residents of the Alexandria Division. Plaintiff has not alleged the occurrence of
any events or omission in the Norfolk Division that would have given rise to this action. All
relevant events that occurred in Virginia occurred in the Alexandria Division. Therefore, the
case should be transferred to the Alexandria Division.
D. Motion to Dismiss
Defendants’ filing included a Motion to Dismiss. (ECF No. 11.) Given that Court has
found venue to be improper and will grant the Motion to Transfer, the Court finds that the
Motion to Dismiss is moot. Therefore, the Court will deny the Motion to Dismiss.
V. CONCLUSION
For the foregoing reasons, the Court will grant in part and deny in part the Defendants’
Motion to Dismiss or to Transfer Venue (ECF No. 11). The Court will grant the Motion to
Transfer, deny the Defendant’s Motion to Dismiss as moot, and will direct the Clerk to transfer
this case of the Alexandria Division of the Eastern District of Virginia.
An appropriate Order shall issue.
/s/
/
Roderick C. Young
k Young
ung
United States District Judge
tates
ct Judge
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Richmond, Virginia
Date: October 5, 2021
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Defendants have also based their motion on 28 U.S.C. § 1404, which allows for transfer of venue based on an
“individualized case-by-case consideration of convenience and fairness.” Stewart Org. Inc. v. Ricoh Corp., 487 U.S.
22, 29 (1988). Given that the Norfolk Division is not a proper forum, this argument will not be addressed.
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