United States District Court, D. Arizona
Patricia G. Barnes, Plaintiff,
Commissioner of Social Security Administration, Defendant.
HONORABLE JAMES A. SOTO UNITED STATES DISTRICT JUDGE
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
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
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.” (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.
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).
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). 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)).
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.
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. 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).
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).
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.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. Both districts have subject matter
justification over the claims. See 28 U.S.C. §