Adhikari v. KBR, Inc.

• Decision Date: 04 August 2016
• Docket Number: 1:15-cv-1248 (JCC/TCB)
• Court: U.S. District Court — Eastern District of Virginia
• Parties: KRISHNA PRASAD ADHIKARI, ET AL., Plaintiffs, v. KBR, INC., ET AL., Defendants.

KRISHNA PRASAD ADHIKARI, ET AL., Plaintiffs, v. KBR, INC., ET AL., Defendants.

1:15-cv-1248 (JCC/TCB)

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA Alexandria Division

August 4, 2016

MEMORANDUM OPINION

This matter is before the Court on Defendants' motions to dismiss for improper venue, lack of personal jurisdiction, lack of subject matter jurisdiction, and failure to state a claim upon which relief can be granted. In the alternative, Defendants move to transfer this case to the Southern District of Texas. Plaintiffs oppose those motions and move for jurisdictional discovery. For the following reasons, the Court finds that venue is not proper in this District. Accordingly, the Court will transfer to the Southern District of Texas pursuant to 28 U.S.C. § 1406(a).

I. Background¹

This case arises from allegations that an Iraqi company,² working on behalf of Defendants, trafficked Nepali men to U.S. military bases in Iraq, where the men were forced to work for Defendants for over a year. The Iraqi company, Daoud & Partners, is not a defendant in this lawsuit. Defendants³ are six businesses⁴ that, in varying capacities, administer the U.S. Army contract for the provision of logistical support servicesand laborers to U.S. military bases overseas, LOGCAP III.⁵ Defendant KBR, Inc. is the parent corporation of the other defendants, but Kellogg Brown & Root Services, Inc. ("KBRSI") and Kellogg Brown & Root, LLC ("KBR, LLC") are the subsidiaries that primarily oversee the administration of LOGCAP III. (Lowes Decl. [Dkt. 16-1] ¶¶ 4, 11.)

As early as 2003, Defendants' managers in the United States and Iraq learned that their labor brokers, including Daoud, were engaged in deceptive practices in the recruitment and transportation of laborers to U.S. military bases. (Compl. ¶¶ 95-98.) Specifically, allegations surfaced that brokers promised laborers jobs in Oman, Jordan, or Kuwait but then took the laborers' passports, transported the laborers to Iraq, and forced them to work in deplorable conditions at U.S. military bases. (Compl. ¶¶ 98-106.) Defendants' managers in the United States and Iraq received reports of those practices from the media, diplomats, U.S. armed forces personnel, employees, subcontractors, and third-country nationals. (Compl. ¶¶ 99-118.) Despite knowing that Daoud and other brokers were deceiving laborers, Defendants' managers in the United States and abroad "took no effective steps to eliminate the abuses; to implement or enforce an effective code of conduct; todiscipline, penalize or remove the labor brokers who were implicating human trafficking; or to reduce or terminate [their] reliance on Daoud and other labor brokers when they engaged in these foreseeable human rights violations." (Compl. ¶¶ 126, 128, 129.) At times, Defendants even sought to silence potential whistleblowers and squash allegations of the brokers' wrongdoing. (Compl. ¶¶ 129-135.)

Plaintiffs' experiences are emblematic of the human rights complaints Defendants received. Plaintiffs are five Nepali men⁶ who were allegedly trafficked from Nepal to Jordan, and finally to Iraq, where they were forced to work on U.S. military bases and denied the ability to leave or even call home. Each Plaintiff paid a Nepali recruiting company to obtain a job at a hotel in Jordan. The Nepali recruiter helped Plaintiffs travel to Jordan under the promise of employment. But upon arrival, a Jordanian labor broker locked Plaintiffs in a cramped compound with other Nepali men and refused to return their passports. (Compl. ¶¶ 54-66.) After being kept against their wills in the compound for "some time," around August 2004 Plaintiffs were placed into several jeeps and driven to unannounced destinations. (Compl. ¶ 69.)

The brokers drove four of the plaintiffs to the U.S. military base Camp Fallujah in Iraq and handed them over to men with "Daoud & Partner" badges. (Compl. ¶¶ 71-72.) Plaintiffs protested in vain to "men from KBR and Daoud" that they had been brought to Iraq against their wills and demanded the return of their passports. (Compl. ¶ 73.) Plaintiffs persisted in their protests for weeks, culminating in a five day workers' strike. (Compl. ¶ 75.) The strike was ultimately put down when "KBR and Daoud responded by refusing to provide food to the Plaintiffs unless they returned to work." (Compl. ¶ 75.)

The fifth plaintiff, Lamichhane, was taken to camp Al Taqqadum, also in Iraq. (Compl. ¶ 71.) Upon arrival, a supervisor told Lamichhane he would be working for "KBR." (Compl. ¶ 76.) Lamichhane demanded his passport and to be returned home, but "KBR employees told him he could not leave and that his passport would not be returned." (Compl. ¶ 76.)

For the next fourteen to twenty-nine months, employees of Daoud and an unspecified KBR entity allegedly forced Plaintiffs to labor on the U.S. military bases. Plaintiffs were denied their passports, had limited access to the bases, lived in cramped quarters, feared for their lives due to the hostilities in Iraq, were forced to work long hours without reprieve, and were not paid their promised salaries. (Compl. ¶¶ 79-86.) Those terrible conditions continued for over a yearuntil Daoud and Defendants' employees allowed Plaintiffs to return to Nepal in October 2005, early 2006, and January 2007. (Compl. ¶ 87.)

In September 2015, Plaintiffs filed suit alleging that Defendants substantially assisted in the human trafficking and forced labor scheme described above and/or failed to prevent or stop that scheme. Plaintiffs allege that those actions violate the following nine laws: (1) the Trafficking Victims Protection Reauthorization Act, 18 U.S.C. §§ 1589, 1590, 1595, 1596; (2) the Alien Tort Statute, 28 U.S.C. § 1350;⁷ (3) Article 13 of the Law of Administration for the State of Iraq for the Transitional Period;⁸ (4) Articles 202, 203, and 204 of the Iraqi Civil Code;⁹ (5) Common Law False Imprisonment; (6) Common Law Negligence; (7) Common Law Negligent Hiring; (8) Common Law Negligent Supervision; and (9) Common Law Intentional Infliction of Emotional Distress. (Compl. ¶¶ 193-256.)

In response, Defendants moved to dismiss this case for lack of personal jurisdiction and improper venue, in addition toother bases for dismissal that are not at issue here. In the alternative, Defendants moved to transfer this case to the Southern District of Texas, where a related case was transferred from California in 2009. See Adhikari v. Daoud & Partners, No. 4:09-cv-1237 (S.D. Tex. transferred Apr. 24, 2009). These motions have been fully briefed and argued before the Court at an oral hearing. They are now ripe for disposition.

As described below, venue is not proper in this District and the Court will transfer this case pursuant to 28 U.S.C. § 1406(a) to the Southern District of Texas. Accordingly, the Court does not reach Defendants' alternative bases to dismiss this suit.

II. Standard of Review

Federal Rule of Civil Procedure 12(b)(3) permits a defendant to challenge a plaintiff's choice of venue in a pre-answer motion. When a defendant challenges venue, the plaintiff bears the burden of establishing that venue is proper. Bartholomew v. Va. Chiropractors Ass'n, Inc., 612 F.2d 812, 816 (4th Cir. 1979), overruled on other grounds by Union Labor Life Ins. Co. v. Pireno, 458 U.S. 119, 125 n.6 (1982). But if no evidentiary hearing is held, "the plaintiff need only make a prima facie showing of venue." Mitrano v. Hawes, 377 F.3d 402, 405 (4th Cir. 2004). In its analysis, the court need not accept the pleadings as true and may consider outside evidence. SeeSucampo Pharms., Inc. v. Astellas Pharma, Inc., 471 F.3d 544, 550 (4th Cir. 2006); T. & B. Equip. Co. v. RI, Inc., No. 3:15-cv-337, 2015 WL 5013875, at *2 (E.D. Va. Aug. 24, 2015). Nonetheless, the court must draw all reasonable inferences in favor of the plaintiff. T.& B. Equip., 2015 WL 5013875, at *2.

Federal Rule of Civil Procedure 12(b)(2) permits a defendant to move to dismiss a complaint for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). Once a defendant affirmatively raises a personal jurisdiction challenge, the plaintiff bears the burden of demonstrating that personal jurisdiction exists. Grayson v. Anderson, 816 F.3d 262, 268 (4th Cir. 2016). The plaintiff's burden "varies according to the posture of a case and the evidence that has been presented to the court." Id. "[W]hen the court addresses the personal jurisdiction question by reviewing only the parties' motion papers, affidavits attached to the motion, supporting legal memoranda, and the allegations in the complaint, a plaintiff need only make a prima facie showing of personal jurisdiction to survive the jurisdictional challenge." Id. When considering whether a plaintiff has carried its burden, the court must view all evidence, disputed facts, and reasonable inferences in favor of the plaintiff. Id.; Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 396 (4th Cir. 2003).

III. Analysis

Generally courts will address personal jurisdiction challenges before considering whether venue is proper. See Leroy v. Great W. United Corp., 443 U.S. 173, 180 (1979). Courts, however, are not required to proceed in that order and have discretion to address venue challenges first when sound prudential reasons exist for doing so. Id.; Sucampo, 471 F.3d at 550 n.3. Furthermore, a court need not have personal jurisdiction over defendants before transferring a case. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962) ("The language of § 1406(a) is amply broad enough to authorize the transfer of cases . . . whether the court in which it was filed had personal jurisdiction over the defendants or not."). Because the Court's venue analysis incorporates personal jurisdiction issues, and because venue is found to be improper here, the Court will begin with the venue analysis. As described below, the Court will not determine whether personal jurisdiction is proper as to each defendant because...