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UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA 

)

TELLIGENT MASONRY, LLC, )

)

 Plaintiff, )

)

 v. ) Civil Action No. 19-1078 (RMC)

)

CONTINENTAL CASUALTY )

COMPANY, et al., )

)

 Defendants. )

)

MEMORANDUM OPINION 

Grunley Construction Company, Inc. (Grunley) was awarded the prime 

construction contract (Contract) in 2014 for work related to restoration of the Historic Center 

Building at St. Elizabeth’s West Campus for future occupation by the U.S. Department of 

Homeland Security (DHS). Compl. [Dkt. 1] ¶ 6. Grunley executed a payment bond with 

sureties Continental Casualty Company and Liberty Mutual Insurance Company. Id. ¶ 7. On or 

about November 23, 2015, Grunley and Telligent Masonry, LLC (Telligent) agreed to a 

subcontract by which Telligent was to perform masonry and related work for compensation of 

$1,725,000.00. Id. ¶ 8. At some point, Grunley directed Telligent to perform additional work 

which raised the total value of the subcontract to $2,273,984.83. Id. 

To date, Grunley has paid Telligent a total of $2,159,533.33, which is 

$114,451.50 short of the total subcontract value. Id. ¶ 10. On April 17, 2019, Telligent filed suit 

pursuant to the Miller Act, 40 U.S.C. §§ 3131-34,1 against the two sureties to recover monies 

 

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 Under the Miller Act, prospective contractors must furnish performance bonds and payment 

bonds to the government before entering into a contract for any public construction project worth 
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allegedly due. Compl. ¶¶ 20-26. Grunley filed a motion to intervene as of right or by permission 

pursuant to Federal Rule of Civil Procedure 24; the Court granted the motion to intervene as of 

right, but permitted Telligent to file a motion to dismiss Grunley’s counterclaims. See Order 

[Dkt. 13]. On July 17, 2019, Telligent moved to dismiss Grunley’s counterclaims for lack of 

subject-matter jurisdiction, or, in the alternative, under the theory of forum non conveniens. The 

motion is ripe for review.2

I. LEGAL STANDARDS 

A. Subject-Matter Jurisdiction 

Pursuant to Federal Rule of Civil Procedure 12(b)(1), a defendant may move to 

dismiss a complaint, or any portion thereof, for lack of subject-matter jurisdiction. Fed. R. Civ. 

P. 12(b)(1). When reviewing a motion to dismiss for lack of jurisdiction under Rule 12(b)(1), a 

court must “assume the truth of all material factual allegations in the complaint and ‘construe the 

complaint liberally, granting plaintiff the benefit of all inferences that can be derived from the 

facts alleged.’” Am. Nat’l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting 

Thomas v. Principi, 394 F.3d 970, 972 (D.C. Cir. 2005)). Nevertheless, “the Court need not 

accept factual inferences drawn by plaintiff[ ] if those inferences are not supported by facts 

alleged in the complaint, nor must the Court accept plaintiff[’s] legal conclusions.” Speelman v. 

United States, 461 F. Supp. 2d 71, 73 (D.D.C. 2006). The same logic and analysis are required 

 

over $100,000. 40 U.S.C. § 3131(b). Additionally, subcontractors not paid in full within ninety 

days of completion may bring a civil action to recover the outstanding balance against the 

sureties that supplied the payment bonds within one year of the last day in which labor was 

performed. 40 U.S.C § 3133(b)(2). 

2 See Pl., United States of America f/u/b/o Telligent Masonry, LLC’s Mot. to Dismiss Grunley 

Constr. Co., Inc.’s Countercl. (Mot.) [Dkt. 15]; Grunley Constr. Co., Inc.’s Opp’n to Pl.’s Mot. to 

Dismiss Countercl. [Dkt. 16]; Mem. in Reply to Grunley Constr. Co., Inc.’s Opp’n to Pl.’s Mot. 

to Dismiss Countercl. [Dkt. 17]. 
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when evaluating a defendant-intervenor’s counterclaim. See United States v. Intrados/Int’l 

Mgmt. Grp., 277 F. Supp. 2d 55, 59 (D.D.C. 2003) (summarizing legal standard for motion to 

dismiss counterclaim). 

B. Venue 

Under Federal Rule of Civil Procedure 12(b)(3), a defendant may, at the lawsuit’s 

outset, test whether the plaintiff “has brought the case in a venue that the law deems 

appropriate.” Modaressi v. Vedadi, 441 F. Supp. 2d 51, 53 (D.D.C. 2006). “If the plaintiff’s 

chosen forum is an improper venue under applicable statutes, or is otherwise inconvenient, the 

Court may dismiss the action or transfer the case to a district where venue would be proper or 

more convenient.” Id. (citing 28 U.S.C. § 1406 (providing for dismissal or transfer when venue 

is defective) and 28 U.S.C. § 1404 (allowing venue transfer for the convenience of the parties 

and witnesses)). 

 “[W]hen parties have agreed to a forum selection clause, the traditional analysis 

is altered and the clause should control absent a strong showing it should be set aside.” Gipson v. 

Wells Fargo & Co., 563 F. Supp. 2d 149, 154 (D.D.C. 2008) (quoting 2215 Fifth St. Assoc. v. UHaul Int’l, Inc., 148 F. Supp. 2d 50, 58 (D.D.C. 2001) (internal quotations omitted)); see also

M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 12 (1972) (“[Forum-selection] clauses are 

prima facie valid” and “should be honored by the parties and enforced by the courts.”). Forum 

selection clauses are to be enforced unless the party resisting enforcement shows that one of the 

exceptions set forth in Bremen applies. The opponent of enforcement must make a “strong 

showing” that: 

 (1) enforcement would be unreasonable and unjust; (2) the clause 

was invalid for such reasons as fraud or overreaching; (3) 

enforcement would contravene a strong public policy of the forum 

in which suit is brought, whether declared by statute or judicial 

decision; or (4) trial in the contractual forum would be so gravely 
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difficult and inconvenient that the plaintiff will for all practical 

purposes be deprived of his day in court. 

Cheney v. IPD Analytics, LLC, 583 F. Supp. 2d 108, 118 (D.D.C. 2008) (quoting Bremen, 407 

U.S. at 15) (internal quotations omitted)). 

II. ANALYSIS 

 The Court granted Grunley’s motion to intervene as of right pursuant to Federal 

Rule of Civil Procedure 24(a), which does not include the requirement that the intervenor 

demonstrate an “independent basis for jurisdiction.” EEOC v. Nat’l Children’s Ctr., Inc., 146 

F.3d 1042, 1046 (D.C. Cir. 1998). Had the Court granted Grunley’s motion to intervene through 

permissive intervention, under Federal Rule of Civil Procedure 24(b), Grunley would have had 

to establish how its contract claims against Telligent presented the Court with subject-matter 

jurisdiction independent from the Miller Act claims raised by Telligent. See id. (“The first 

requirement for permissive intervention—an independent basis for jurisdiction—stems not from 

any explicit language in Rule 24(b), but rather from the basic principle that a court may not 

adjudicate claims over which it lacks subject matter jurisdiction.”). With intervention as of right, 

Grunley’s counterclaims may be considered by the Court via its supplemental jurisdiction to hear 

“claims that are so related to claims in the action within such original jurisdiction that they form 

part of the same case or controversy.” 28 U.S.C. § 1367(a). 

Telligent argues it is challenging the Court’s jurisdiction to address Grunley’s 

claims, but the arguments are properly understood as challenging venue. Telligent cites the 

dispute resolution section of the Subcontract Agreement between itself and Grunley for the 

proposition that the proper venue for challenges to the agreement or either party’s performance is 

the Maryland state court located in Montgomery County, Maryland. See Mot., Ex. A, 
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Subcontract Agreement (Cost Code 04-200-0100) (Agreement) [Dkt. 15-2] ¶ 19. The relevant 

section of the Agreement states: 

All disputes between the Contractor and Subcontractor, not 

involving the Owner’s acts, omissions, or responsibilities shall, at 

the Contractor’s sole option, be resolved by arbitration in 

accordance with the rules of the American Arbitration Association. 

Subcontractor specifically agrees that any such arbitration 

proceedings shall, at the Contractor’s sole option, be consolidated 

with any arbitration proceedings between the Contractor and any 

other party. Subcontractor specifically agrees that any dispute with 

the Owner or the Contractor shall not interfere with Subcontractor’s 

progress of its work in any manner, and that Subcontractor shall 

proceed with its work as ordered, subject to claim, this includes 

disputes involving the timing of payment and/or payment amounts. 

This agreement to arbitrate shall be specifically enforceable under 

the prevailing arbitration law. The award rendered by the arbitrators 

shall be final, and judgment may be entered upon it in any court 

having jurisdiction thereof. Any such award shall be binding and 

enforceable against any persons, surety, and/or bonding company, 

which guarantee the performance by the Subcontractor of this 

Agreement in any manner. Should Contractor choose to litigate any 

actions or lawsuits arising hereunder to the extent permitted by 

Article 19 and by law shall only be brought in a Maryland State court 

of competent jurisdiction with venue in Montgomery County, 

Maryland. 

Id. Telligent argues that the final sentence of the paragraph binds the parties to litigate any 

disputes in Montgomery County. Grunley disagrees, focusing on the language “[s]hould 

Contractor choose to litigate any actions or lawsuits.” Id. As the Contractor, Grunley argues 

that it is only obligated to raise its claims in Montgomery County when it has initiated the 

lawsuit. In this instance, because Telligent initiated the instant litigation in the United States 

District Court for the District of Columbia as required by the Miller Act, Grunley did not 

“choose to litigate” and, therefore, is not bound by the agreement to bring the claims in 

Montgomery County. The Court agrees with Grunley. 

The Agreement sets forth two possible scenarios. First, if Telligent wishes to 

instigate a dispute under the Agreement the parties shall proceed to arbitration. Second, if 
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Grunley initiates the action the suit shall be brought in Montgomery County. This case arises in 

a third, distinct, posture. Telligent filed this case against the sureties as required by the Miller 

Act, thus introducing a venue not contemplated by the Agreement. Under the current posture, 

the Agreement contains no controlling language. The Court recognizes the strong presumption 

of validity given to forum selection clauses, see Bremen, 407 U.S. at 10, 12, and, if this case 

arose under a procedure discussed in the Agreement, the Court would enforce the clause as 

written. However, given the unanticipated posture of the current lawsuit, the Court will not 

dismiss the counterclaim and require Grunley to refile in Montgomery County. 

Telligent also argues that the Court should dismiss the counterclaim under the 

doctrine of forum non conveniens, citing Azima v. RAK Inv. Auth., 926 F.3d 870, 874-75 (D.C. 

Cir. 2019), where the Circuit recently confronted the availability of forum non conveniens as a 

proper method to dismiss a complaint due to a mandatory forum selection clause. The Circuit 

noted that where “the plaintiff has entered into a contract to litigate his claims in a specific 

forum, the defendant may enforce that agreement by moving to dismiss for forum non 

conveniens.” Id. at 874. Having already decided that the forum selection clause in the 

Agreement does not specifically consider the posture in which the parties currently find 

themselves, the Court relies on the typical forum non conveniens analysis to determine if the case 

can and should proceed elsewhere. For this purpose, the Court considers whether another forum 

is both (1) “available and adequate” to litigate Grunley’s counterclaims and, (2) “upon a 

weighing of public and private interests, the strongly preferred location for the litigation.” MBI 

Grp., Inc. v. Credit Foncier Du Cameroun, 616 F.3d 568, 571 (D.C. Cir. 2010). 

Again, the unique nature of the challenge presents the answer. Telligent initiated 

this action in the court designated by the Miller Act but now argues that the same court is not 
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convenient to decide related issues. While the courts of Montgomery County are certainly 

available and adequate to handle a contract dispute brought by Grunley against Telligent, 

Grunley did not initiate this suit and the public and private interests involved strongly prefer this 

court. The public interest in judicial economy supports a single court deciding all related issues 

which is why the Rules provide for intervention. The fact that Grunley had a right to intervene 

demonstrates that its interests are also at stake in this litigation against Grunley’s sureties and 

demonstrates that private interests also support having its counterclaims decided here. Telligent 

cannot be viewed as inconvenienced by being required to remain in a venue of its choosing for 

all related issues. 

IV. CONCLUSION

For the foregoing reasons, the Court will deny Telligent Masonry, LLC’s Motion 

to Dismiss Grunley Construction Company, Inc.’s Counterclaim, Dkt. 15. A memorializing 

Order accompanies this Memorandum Opinion. 

Date: October 29, 2019 

 ROSEMARY M. COLLYER 

 United States District Judge