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Barnes v. Commissioner of Social Security Administration

United States District Court, D. Arizona

May 1, 2018

Patricia G. Barnes, Plaintiff,
Commissioner of Social Security Administration, Defendant.



         Pending before the Court are Defendant's Motion to Dismiss Plaintiff's Complaint for Improper Venue, or in the Alternative, Motion to Transfer Venue (Doc. 14) and Plaintiff's cross-motion to transfer venue, or in the alternative to amend complaint (Doc. 15). This matter is ripe for review.


         In 2011, Plaintiff saw a job posting for “legal assistant” at a new Social Security Administration (“SSA”) office in Reno, Nevada. She contacted Jim Elkins, a Hearing Office Director in Reno, Nevada, to inquire about possible attorney positions. (Doc. 1 at ¶ 27.) Mr. Elkins provided Plaintiff with some instructions to apply for the open positions, but did not provide Plaintiff with the vacancy announcement. (Doc. 1 at ¶¶ 31-32.) Mr. Elkins and his assistant interviewed Plaintiff; without consulting with anyone, Mr. Elkins immediately professed that Plaintiff was not appropriate for further consideration. Id. at ¶ 67. Despite her superior qualifications, Plaintiff was not hired for the position. Id. at ¶¶ 6, 44, 48, 50. Plaintiff believes that SSA discriminated against her due to her sex and age. Id. at ¶¶ 40, 44, 47-50. She was 60 years old at the time. Id. at 1. SSA has stated various reasons for her non-selection. Id. at ¶¶ 71-75.)

         On August 3, 2011, Plaintiff raised her concerns with Mr. Elkins, who eventually referred her to SSA Human Resources Officer Ed Pilapil in Sacramento, California. Id. at ¶ 52. Plaintiff asked Mr. Elkins to reconsider her candidacy. Id. at ¶ 56. Mr. Pilapil then “cleared the last selection for hire on August 29, 2011.” Id. at ¶ 63. According to Plaintiff, “Mr. Elkins recommended potential candidates to Mr. Pilapil, who determined if the selectees were qualified, set their salary level, determined their citizenship and then authorized Mr. Elkins to extend a job offers (sic) to the candidates.”[1] (Doc. 15 at 3.) Plaintiff then filed a complaint with the Equal Employment Opportunity Commission. (Doc. 1 at ¶ 6.) This complaint was later dismissed. Id. at ¶ 7.

         On November 9, 2017, Plaintiff filed this suit against Nancy A. Berryhill, Acting Commissioner for SSA. (Doc. 1.) Defendant moved to dismiss or transfer to Reno, Nevada due to improper venue (Doc. 14). Plaintiff responded with a cross motion to transfer to the Southern District of California or amend her complaint (Doc. 15).



         Federal Rule of Civil Procedure 12(b)(3) allows a defendant to move to dismiss a complaint due to improper venue. This motion must be timely made; otherwise, the defendant waives the defense. Fed.R.Civ.P. 12(h)(1).[2] Once venue has been challenged, the burden is on the plaintiff to prove that it is proper. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979); Golden Scorpio Corp. v. Steel Horse Bar & Grill, 596 F.Supp. 1282, 1286 (D. Ariz. 2009). “Additionally, ‘uncontroverted allegations in [plaintiff's] complaint must be taken as true, and conflicts between the facts contained in the parties' affidavits must be resolved in [plaintiff's] favor.'” Brayton Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1227 (9th Cir. 2010) (quoting Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002)).

         Title VII has a specific venue provision, which applies instead of the general venue statute. Passantino v. Johnson & Johnson Consumer Prods, Inc., 212 F.3d 493, 504 (9th Cir. 2000). A Title VII suit “may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office.” 42 U.S.C. § 2000e-5(f)(3). It is important to note that there may be multiple proper venues. See Passantino, 212 F.3d at 506.

         In this matter, Plaintiff is alleging that she would have worked in Reno, Nevada, but for the alleged discrimination. (Doc. 1 at ¶ 6.) This clearly provides venue to the District of Nevada for her action. See 42 U.S.C. § 2000e-5(f)(3). She additionally claims that the records are maintained and administered in Richmond, California, which is within the Northern District of California.[3] See Doc. 15 at 4. If this is correct, there is venue within the Northern District of California for her action. See 42 U.S.C. § 2000e-5(f)(3). Plaintiff alleges that the discriminatory actions happened in Reno, Nevada, and in Sacramento, California. See Doc. 1 at ¶¶ 6, 52. Defendant disputes whether discriminatory actions took place in Sacramento, but this Court resolves this in favor of Plaintiff. See Brayton Purcell LLP, 606 F.3d at 1227. Therefore, proper venue may be found within any judicial district in Nevada and California. See 42 U.S.C. § 2000e-5(f)(3). The District of Arizona is not a proper venue. Therefore, this matter must be dismissed without prejudice or transferred. 28 U.S.C. § 1406(a).

         Transfer or Dismiss

         When a case is filed in the incorrect division or district, the district court “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). If the court decides that dismissal is the appropriate choice, the dismissal must be without prejudice. In re Hall, Bayoutree Assocs., Ltd., 939 F.2d 802, 804 (9th Cir. 1991). The interest of justice may be satisfied if a plaintiff has diligently pursued the matter, wishes to expedite the matter, and it would be in the interest of judicial efficiency. Bolar v. Frank, 938 F.2d 377, 380 (2d Cir. 1991) (per curiam); Sherar v. Harless, 561 F.2d 791, 794 (9th Cir. 1977). A case could have been brought in a particular district or division if, and only if, the proposed court has subject matter jurisdiction, proper venue, the defendant is subject to that court's personal jurisdiction, and the defendant is amenable to service of process in that district. Abrams Shell v. Shell Oil Co., 165 F.Supp.2d 1096, 1103 (C.D. Cal. 2001). “An argument based on convenience alone is more appropriate in a § 1404 change of venue motion.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986).

         This case was filed within the incorrect district. See supra. It is in the interests of justice to transfer this matter. Plaintiff has diligently pursued this matter and transfer is in the interest of judicial efficiency. See Bolar, 938 F.2d at 380. Therefore, the Court must consider if this case could have been brought in another district. 28 U.S.C. § 1406(a). Venue would be proper within the District of Nevada and the Southern District of California.[4]See 42 U.S.C. § 2000e-5(f)(3); Passantino, 212 F.3d at 506. There is no indication that either the District of Nevada or the Southern District of California lack personal jurisdiction over Defendant.[5] Both districts have subject matter justification over the claims. See 28 U.S.C. ยง ...

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