Kitzel v. Tunnell Gov't Servs.

• Decision Date: 02 March 2023
• Docket Number: 8:22-cv-2733-VMC-AAS
• Parties: JENNIFER KITZEL, Plaintiff, v. TUNNELL GOVERNMENT SERVICES INC., Defendant.
• Court: U.S. District Court — Middle District of Florida

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JENNIFER KITZEL, Plaintiff, v. TUNNELL GOVERNMENT SERVICES INC., Defendant.

No. 8:22-cv-2733-VMC-AAS

United States District Court, M.D. Florida, Tampa Division

March 2, 2023

ORDER

VIRGINIA M. HERNANDEZ COVINGTON UNITED STATES DISTRICT JUDGE.

This matter comes before the Court upon consideration of Defendant Tunnell Government Services Inc.'s Motion to Dismiss for Improper Venue (Doc. # 17), filed on January 23, 2023. Plaintiff Jennifer Kitzel responded on February 13, 2023. (Doc. # 20). With leave, Tunnell replied on February 24 2023. (Doc. # 23). For the reasons that follow, the Motion is denied.

I. Background

A. Allegations in the Amended Complaint

Tunnell, which is a Maryland corporation, “provides government agencies, including the U.S. Food and Drug Administration (‘FDA') with professionals to assist those agencies in meeting their missions.” (Doc. # 13 at 1). “In September 2021, a Senior Recruiter on Tunnell's talent acquisition team reached out to Dr. Kitzel while she was in and residing in Florida about a job opportunity with Tunnell.” (Id.). “On December 13, 2021, Tunnell hired Dr. Kitzel as a Subject Matter Expert assigned to assist the FDA with various issues, including a project titled SHIELD, which was a multiagency initiative for laboratory interoperability. After Tunnell hired Dr. Kitzel, it sent a computer to her home in Florida that she could use as part of her employment.” (Id.).

“In her role as a Subject Matter Expert, Tunnell required Dr. Kitzel to track and report her time worked to Tunnell. Tunnell then billed the FDA for Dr. Kitzel's time and earned a profit from the time that she spent working in Florida.” (Id. at 2). A Tunnell employee, Dr. Campbell, directed Dr. Kitzel to also work on Dr. Campbell's personal Solar project. (Id.). Although the Solar project was not an FDA project, Dr. Campbell allegedly directed Dr. Kitzel to bill her time spent on the Solar project to the FDA. (Id.).

“On August 2, 2022, Dr. Kitzel sent an email to Mr. Josh Fine, her manager at Tunnell, with a series of complaints related to Campbell's improper use of federal resources and funds on his personal Solar project.” (Id. at 3). Then, “on September 26, 2022, the month after she complained about Campbell's improper use of federal funds, Tunnell terminated Dr. Kitzel's employment.” (Id.).

Kitzel initiated this action against Tunnell on December 1, 2022. (Doc. # 1). She later filed an amended complaint, asserting claims for retaliation under the False Claims Act (“FCA”), 31 U.S.C. § 3730(h) (Count I) and Florida's Private Whistleblower Act (Count II). (Doc. # 13). According to the amended complaint, “[v]enue lies within the United States District Court for the Middle District of Florida, Tampa Division, in accordance with 28 U.S.C. § 1391(b) because a substantial part of the events giving rise to this claim occurred in this judicial district.” (Id. at 1).

B. Instant Motion and Declarations

Now, Tunnell moves to dismiss the case for improper venue or, alternatively, to transfer the case to the United States District Court for the District of Maryland. (Doc. # 17). In support of its Motion, Tunnell attaches the declaration of its Senior Vice President Jerry D. Robinson. (Doc. # 17-1). In his declaration, Mr. Robinson avers that Tunnell, which is based in Bethesda, Maryland, “is a life sciences consulting firm that provides scientific and technical expertise to federal government clients in the Washington, D.C. region - meaning Washington, D.C., Maryland and Virginia.” (Id. At ¶¶ 1, 4, 10).

These clients include the FDA, which is also based in Maryland. (Id.). According to Mr. Robinson, Tunnell “has no office or business location in the State of Florida,” “has no clients or contracts in the State of Florida,” and “does not conduct any business in the State of Florida.” (Id. at ¶¶ 6-8).

Under its contract with the FDA, Tunnell agreed to provide expert consultants to work for the FDA as contractors, with some contractors “work[ing] remotely using FDA furnished property on the FDA network.” (Id. at ¶¶ 9-11). Tunnell hired Dr. Kitzel “as an Informatic Subject Matter Expert (SME) to work in support of the FDA's Center for Devices and Radiological Health pursuant to TGS's contract.” (Id. at ¶ 12). “Consistent with the Statement of Work, FDA GFE (government furnished equipment) is provided to [Tunnell] consultants, and the FDA sent Dr. Kitzel an FDA-issued computer for her use in working on the contract. The FDA has provided this equipment to all of [Tunnell's] consultants on the contract since July 2020.” (Id. at ¶ 14). But due “to a supply issue with FDA computers when Dr. Kitzel started, [Tunnell] sent her a loaner computer for use until her FDA-issued computer arrived.” (Id. at ¶ 15).

Furthermore, Mr. Robinson declares that “[i]n September 2022, at the request of the FDA contracting office, [Tunnell] removed Dr. Kitzel from the FDA contract to support the Center for Devices and Radiological Health and notified her of the removal.” (Id. at ¶ 16). The Tunnell “employees involved in the removal are located in Maryland and Pennsylvania and were in those locations when Dr. Kitzel was removed.” (Id. at ¶ 17).

Dr. Kitzel has responded to the Motion (Doc. # 20), and attaches her own declaration to her response. (Doc. # 20-1). Regarding this case's connection to Florida, Dr. Kitzel avers that Tunnell recruited her while she was living in Florida and, after it hired her, Tunnell sent her “a computer to [her] home in Hillsborough County, Florida for use as part of [her] employment.” (Id. at ¶¶ 2-4). Tunnell “billed the FDA for the time that [Dr. Kitzel] spent providing services” and, thus, “knowingly earned income from the services that [she] performed from Hillsborough County, Florida.” (Id. at ¶ 6). According to Dr. Kitzel, “Tunnell communicated with [her] routinely via telephone while [she] was in Hillsborough County, and [they] spoke more than 30 times during [their] business relationship.” (Id. at ¶ 7). Tunnell also sent Dr. Kitzel “dozens of emails over that span.” (Id.). “When [Dr. Kitzel] complained to Tunnell of improper billing practices, and when Tunnell terminated [her] employment over the telephone, [Dr. Kitzel] was located in Hillsborough County, Florida.” (Id. at ¶ 8).

Tunnell has also replied. (Doc. # 23). The Motion is ripe for review.

II. Legal Standard

A. Rule 12(b)(3) and Section 1406(a)

Section 1406(a) provides that “[t]he district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). Federal Rule of Civil Procedure 12(b)(3) states that a party may move to dismiss a case for “improper venue.” Fed.R.Civ.P. 12(b)(3). “These provisions therefore authorize dismissal only when venue is ‘wrong' or ‘improper' in the forum in which it was brought.” Atl. Marine Const. Co. v. U.S. Dist. Ct. for W. Dist. of Texas, 571 U.S. 49, 55 (2013).

“This question - whether venue is ‘wrong' or ‘improper'- is generally governed by 28 U.S.C. § 1391.” Id. “That provision states that ‘[e]xcept as otherwise provided by law . . . this section shall govern the venue of all civil actions brought in district courts of the United States.'” Id. (quoting § 1391(a)(1) (emphasis added)). But, as relevant here, the False Claims Act contains its own venue provision: “Any action under section 3730 may be brought in any judicial district in which the defendant or, in the case of multiple defendants, any one defendant can be found, resides, transacts business, or in which any act proscribed by section 3729 occurred.” 31 U.S.C. § 3732(a).

“When a defendant moves to dismiss for improper venue under Federal Rule of Civil Procedure 12(b)(3), the plaintiff bears the burden of showing that the venue selected is proper.” Worldwide Aircraft Servs., Inc. v. Anthem Ins. Companies, Inc., No. 8:21-cv-456-CEH-AAS, 2023 WL 1069811, at *2 (M.D. Fla. Jan. 27, 2023) (citing Delong Equip. Co. v. Wash. Mills Abrasive Co., 840 F.2d 843, 845 (11th Cir. 1988)). “While a court accepts all allegations of the complaint as true for purposes of a motion to dismiss, where venue allegations are contradicted by a defendant's affidavit, the court may examine facts outside of the complaint to determine whether venue is proper.” Id. at *3.

B. Section 1404(a)

“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a).

Ordinarily, “[t]o transfer an action under [S]ection 1404(a) the following criteria must be met: (1) the action could have been brought in the transferee district court; (2) a transfer serves the interest of justice; and (3) a transfer is in the convenience of the witnesses and parties.” i9 Sports Corp. v. Cannova, No. 8:10-cv-803-VMC-TGW, 2010 WL 4595666, at *3 (M.D. Fla. Nov. 3, 2010)(citation omitted).

III. Analysis

A. Venue

First, Tunnell argues that venue is improper in the Middle District of Florida because Tunnell does not reside or transact business in this District. (Doc. # 17 at 3-6). Rather, it argues that venue would be proper in the District of Maryland, where Tunnell is based. (Id. at 7). Thus, Tunnell seeks to dismiss this action for improper venue under Rule 12(b)(3) or transfer the case to the District of Maryland under Section 1406(a). (Id. at 1).

As an initial matter, the Court agrees with Tunnell that the FCA's venue provision applies to this action. Again Section 3732 of the False Claims Act states: ...