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discounting inconvenience to a party's employees who could be compelled to testify as witnesses
Summary of this case from Managed Protected Servs., Inc. v. Credo Petroleum Corp.Opinion
No. CIV 04-2922 PHX RCB.
February 10, 2006
ORDER
On December 17, 2004, Plaintiff filed suit against the United States Postal Service (the "Postal Service"), alleging that he was improperly denied a promotion either on the basis of his age or in retaliation for previous complaints filed with the Equal Employment Opportunity Commission ("EEOC") in violation of the Age Discrimination in Employment Act ("ADEA") and Title VII. Compl. (doc. # 1). On July 15, 2005, the United States filed a Motion to Dismiss for Improper Venue, or in the Alterative to Transfer Case (doc. # 9), arguing that the proper forum for Plaintiff's Title VII claim is the Northern District of Ohio, not the District of Arizona. Plaintiff opposes transfer. Resp. (doc. # 10). Having carefully considered the arguments raised, the Court now rules.
I. BACKGROUND
Plaintiff, born 1952, Compl. (doc. #1) at 2, has apparently been in the employ of the Postal Service for the past thirty years, and becomes eligible for retirement in October 2007, Resp. (doc. # 10) at 3. He currently serves at a duty post in Glendale, Arizona as the Manager of Remote Encoding Operations, a position he has held since 1995. See id. at 2-3.
During his employment with the Postal Service over the years, Plaintiff filed complaints with the EEOC. The most recent of these complaints concerns his non-selection for a Plant Manager position in Akron, Ohio, which is at the center of the present controversy. Compl. (doc. # 1) at 2; Resp. (doc. # 10) at 1-2. Following two and a half years of additional training and work assignments, Plaintiff was listed as "ready" to assume the responsibilities of the position, but was ultimately passed over for the promotion in favor of a thirty-five-year-old candidate who was listed as "not ready." Compl. (doc. # 1) at 2. After exhausting administrative remedies, Plaintiff filed the present action alleging that the Postal Service improperly discriminated against him either on the basis of his age or in retaliation for his previous EEOC complaints in violation of the ADEA and Title VII.
II. DISCUSSION
The United States contends that Plaintiff's Complaint should be dismissed for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) because the District of Arizona is not a proper forum for Plaintiff's Title VII claim. Mot. (doc. # 9) at 2-3. Alternatively, the United States petitions the Court to transfer this case to the Northern District of Ohio pursuant to either 28 U.S.C. § 1406(a) or 1404(a). Id. at 3-5.
The Title VII venue statute explicitly recognizes the possibility of venue transfers pursuant to sections 1404 and 1406. See 42 U.S.C. § 2000e-5(f)(3).
A. Motion to Transfer Venue
A transfer request pursuant to section 1406(a) necessarily turns upon the same underlying issue as a motion to dismiss pursuant to Rule 12(b)(3) — whether the action lays venue in the wrong judicial district. The Court will therefore begin its discussion by turning to the United States' request to transfer venue pursuant to section 1406(a).
1. Transfer Pursuant to 28 U.S.C. § 1406(a)
Under section 1406(a), "a case laying venue in the wrong division or district" must either be dismissed, "or if it be in the interest of justice," transferred "to any division or district in which it could have been brought." 28 U.S.C. § 1406(a). Before examining the propriety of venue in this District, however, the Court will address the United States' pending request for leave to file a sur-reply (doc. # 13) directed to that issue.
a. The United States' Request for Leave to File a Sur-Reply
Plaintiff has filed an unauthorized second response (doc. # 12) in which he argues that venue is appropriate in this District under the general venue statute, 28 U.S.C. § 1391(e). The United States is correct in noting that a party is generally entitled to only one responsive memorandum, and that Plaintiff should therefore be barred from raising new arguments in his unauthorized second response. See Mot. to Disregard Pl.'s Additional Resp. (doc. # 13). Alternatively, the United States petitions the Court for leave to file a sur-reply. Id.
For present purposes, the Court can conclude that Plaintiff's argument under section 1391(e) would fail without inviting any further response from the United States. The appropriate venue for Plaintiff's Title VII claim must be determined based on 42 U.S.C. § 2000e-5(f)(3), not 28 U.S.C. § 1391(e). This is because the general venue statute upon which Plaintiff relies is only operative "except as otherwise provided by law," and 42 U.S.C. § 2000e-5(f)(3) provides otherwise for Title VII claims. Accordingly, the United States' motion (doc. # 13), construed as a request for leave to file a sur-reply, shall be denied and dismissed as moot.
b. Proper Venue for Plaintiff's Title VII Claim
The fora available to Plaintiff for his Title VII claim must be determined in view of 42 U.S.C. § 2000e-5(f)(3) and its interpretive case law. Under 42 U.S.C. § 2000e-5(f)(3), a Title VII claim may be brought in any judicial district in a state "in which the unlawful employment practice is alleged to have been committed, . . . in which the employment records relevant to such practice are maintained and administered, or . . . in which the aggrieved person would have worked but for the alleged unlawful employment practice." 42 U.S.C. § 2000e-5(f)(3); Johnson v. Payless Drug Stores, N.W. Inc., 950 F.2d 586, 587 (9th Cir. 1991). Otherwise, the action may be brought in any judicial district where the defendant keeps its principal office. 42 U.S.C. § 2000e-5(f)(3). The Ninth Circuit has held that, in failure-to-promote cases under Title VII, "venue is proper in both the forum where the employment decision is made and the forum in which that decision is implemented or its effects are felt [by the plaintiff]."Passantino v. Johnson Johnson Consumer Prods., 212 F.3d 493, 506 (9th Cir. 2000).
In Passantino, a plaintiff who worked in Tacoma, Washington alleged that she had been repeatedly passed over for several promotions because of her gender. Id. at 499-500. The defendant argued that New Jersey was the only permissible venue because that was where the promotional decision was actually made. Id. at 504. The Ninth Circuit observed that such a narrow reading of the venue rule would lead to the perverse result that, while other Title VII complainants could sue where they were employed, those complaining of a failure to promote would be required to litigate in far-away places any time an adverse promotional decision was made in a more distant office. See id. at 505. The court noted that the increased burden of litigating in a federal court on the other side of the country would be "inconsistent with the beneficent purposes of Title VII. Id. Because "[p]laintiffs unlawfully denied a promotion, like those discharged, feel the effects of their injury where they actually work," the court concluded that venue was proper in the Western District of Washington. Id.
In the instant case, the United States maintains that venue is not appropriate in this District primarily because (1) the alleged unlawful employment practice — presumably the adverse promotional decision — was committed by officials in Akron, and (2) Plaintiff would have worked in Akron but for the adverse promotional decision. See Mot. (doc. # 9) at 3. Both of these arguments fail.
It is clear from Passantino that the seat of power from which an employer makes its employment decisions is not dispositive on the issue of venue in Title VII cases when the aggrieved employee works in a different state than the powers that control the employee's advancement. While an unlawful employment practice may literally occur at a decision making level in another office, it will also be deemed to occur for venue purposes where the plaintiff works and suffers injury. Therefore, even if the decision not to promote Plaintiff was made by officials in Akron, that only establishes the Northern District of Ohio as one possibility for venue. Another forum contemplated by Passantino is any judicial district in the state in which Plaintiff was working at the time the adverse promotional decision was made — in this case, Arizona.
Plaintiff's response reflects that he was working in Glendale, Arizona at the time he was most likely passed over for promotion. Plaintiff maintains that he has been working as the Postal Service's Manager of Remote Encoding Operations in Glendale for the past ten years. See Resp. (doc. # 10) at 2-3. The United States does not refute Plaintiff's assertion that he has been working in Arizona for this period and, in fact, acknowledges his present employment there. See id. at 3. Although the decision not to offer Plaintiff the promotion may have been made in Akron, Plaintiff would have felt the effect of his injury in Arizona where he was apparently working when the decision was made. Therefore, under Passantino, both the Northern District of Ohio and the District of Arizona are appropriate venues for the Title VII claim.
The declaration attached to the United States' motion alludes to Plaintiff's past work in Cleveland, Ohio, but does not specify the time period of his tenure at that office. See Mot. (doc. # 9), Ex. A ("Breault Decl.") ¶ 5 (anticipated testimony of Michael B. Potts concerning Plaintiff's work at the Processing and Distribution Center in Cleveland, Ohio). Without a more specific reference to time, and in the absence of any challenge to Plaintiff's assertion that he has worked in Arizona for the past ten years, the Court must conclude that the United States concedes that Plaintiff was employed in Arizona during that time.
Because venue appears to be proper in this District based on the arguments raised, the United States' motion to transfer venue pursuant to 28 U.S.C. § 1406(a) must be denied at this time. However, because venue would also be appropriate in the Northern District of Ohio, the Court must consider whether transfer is appropriate under section 1404(a).
2. Transfer Pursuant to 28 U.S.C. § 1404(a)
Under section 1404(a), "a district court may transfer any civil action to any other district . . . where it might have been brought" when "the convenience of parties and witnesses" or "the interest of justice" so requires. 28 U.S.C. § 1404(a). The decision of whether to transfer a case is within the broad discretion of the district court. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). Such decisions require "individualized, case-by-case consideration of convenience and fairness." Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (citation omitted). Based on the parties' arguments, the factors most relevant to the analysis of the present motion (doc. # 9) include (1) Plaintiff's choice of forum; (2) public interest in local adjudication of local controversies; (3) convenience of the parties and witnesses; (4) the availability of compulsory process to compel attendance of unwilling non-party witnesses; (5) the differences in the costs of litigation in the two forums; and (6) ease of access to sources of proof. See Jones 211 F.3d at 498. While these factors derive from the law of forum non conveniens, section 1404(a) provides for greater flexibility and discretion.See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1982).
The moving party bears the burden of establishing that the balance of conveniences favors transfer. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). "The defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum." Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). Moreover, transfer must alleviate rather than merely shift inconvenience to another party. Id.
1. Plaintiff's Choice of Forum
Great weight is generally accorded a plaintiff's choice of forum. Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (citing Tex. E. Transmission Corp. v. Marine Office-Appleton Cox Corp., 579 F.2d 561, 567 (10th Cir. 1978)). This is particularly so in cases arising under Title VII, which is governed by a venue statute generally perceived as expanding the fora available to plaintiffs. Cf. Passantino, 212 F.3d at 504 (finding that Title VII's broad venue provision "was necessary to support the desire of Congress to afford citizens full and easy redress of civil rights grievances") (citation omitted). When a more permissive venue statute applies, the Ninth Circuit has held that the plaintiff's choice of forum is entitled to greater deference as a matter of law. See, e.g., Sec. Investor Prot. Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985) (because the securities laws afford many options for venue, defendants would have to make a stronger showing in order to disturb the plaintiffs' choice of forum).
Although Plaintiff's choice of forum for his Title VII claim may be similarly entitled to greater deference as a matter of law, this view must be tempered by the fact that Plaintiff's ADEA claim, which is governed only by the general venue statute, would not command the same level of deference. Nevertheless, for the reasons explained more fully below, the Court is satisfied that the United States has made a sufficiently strong showing that the conveniences warrant transfer, notwithstanding the greater level of deference contemplated by Passantino and Vigman.
2. Public Interest in Adjudication of Local Controversies
When an incident takes place within a judicial district, courts often find there is a public interest in hearing the case locally. Residents within the Northern District of Ohio would assuredly take a keen interest in staffing matters at the Postal Service's Processing and Distribution Center in Akron. However, the Court must also remain sensitive to the interest of Arizona in providing a forum for the protection of its residents including Plaintiff. Cf. Haisten v. Grass Valley Med. Reimbursement Fund, 784 F.2d 1392, 1399 (9th Cir. 1986) (holding that jurisdiction was proper even though the defendant had absolutely no physical contact with the forum state, because the defendant's policies had effects in the state, and because the state had an interest in providing a forum for the protection of its residents). Accordingly, the Court concludes that the local interest in hearing this case in the Northern District of Ohio, on its own, is insufficient to supersede both the countervailing public interest of Arizona and the great deference accorded Plaintiff's choice of forum.
The Court is aware that personal jurisdiction disputes and venue disputes often turn on different issues. However, where the public interest of a state has led courts to conclude that the exercise of personal jurisdiction over a nonresident defendant would comport with due process, this fact is illuminating as to the similar public interest considerations raised by section 1404(a). See Passantino, 212 F.3d at 505, n. 8 ("Although we recognize that the issues involved in personal jurisdiction disputes are different from the issues involved in venue disputes, it is clear that if exercising personal jurisdiction over a particular defendant would comport with due process, this fact provides support for reading an otherwise ambiguous venue statute in harmony with the jurisdictional rule.").
3. Convenience of the Witnesses
The majority of the Postal Service's anticipated fact witnesses reside or work within or near the Northern District of Ohio. Prospective witnesses with personal knowledge of the circumstances surrounding the selection process for the Akron Plant Manager position include the following Postal Service employees:
• Kenneth F. Winters Pittsburgh, Pennsylvania
• Susan L. Marsh Pittsburgh, Pennsylvania
• David M. Patterson Buffalo, New York
• Thomas F. Kelley Columbus, Ohio
• Phillip R. Sindelar, Jr. Painseville, Ohio
• Christopher H. Smith Warrendale, Pennsylvania
Breault Decl ¶ 5. However, as each remains in the Postal Service's employ, their location does not mandate transfer. The Court presumes the Postal Service can compel their attendance at trial in Arizona. See STX, Inc. v. Trils Stik, Inc., 708 F. Supp. 1551, 1556 (N.D. Col. 1988) (citing Galonis v. Nat'l Broad. Co., 498 F. Supp. 789, 793 (D.N.H. 1980)) (discounting inconvenience to party's employee-witnesses who can be compelled to testify).
In addition, the United States anticipates calling the following former Postal Service employees:
• Norman M. Callhoun Indianapolis, Indiana
• Sernia P. Richardson Pittsburgh, Pennsylvania
• Gary McCurdy Cranberry Township, Pennsylvania
• Judson Zernechel Canton, Ohio
• Michael B. Potts Copely, Ohio
Id. Because these individuals are no longer employees of the Postal Service, they cannot be compelled to appear at trial. On the other hand, transfer would bring at least two of the prospective nonparty witnesses, Zernechel and Potts, within the subpoena power of the Northern District of Ohio. See Fed.R.Civ.P. 45(c)(3)(B)(iii).
Plaintiff in turn emphasizes four prospective witnesses whom he contends are important to his case — an argument he raises for the first time in an unauthorized second response. See Second Resp. (doc. # 12) at 2. He fails, however, to indicate the names of any of his prospective witnesses, the basis of their knowledge, the anticipated subject matter of their testimony, or their affiliation, if any, with the Postal Service. See id. Even if the Court were to consider Plaintiff's untimely argument, the scant information he has provided tends more to support transfer than to demonstrate any significant value in retaining venue in this District. At least two of his prospective witnesses reside outside Arizona, see Second Resp. (doc. # 12) at 2, placing them beyond the reach of compulsory process in this Court if they were indeed nonparty witnesses, see Fed.R.Civ.P. 45(c)(3)(B)(iii). Moreover, transfer to the Northern District of Ohio would most likely alleviate any inconvenience for Plaintiff's prospective witness or witnesses located in Washington, D.C.
In short, Plaintiff belatedly suggests that the convenience of his prospective witnesses should discourage transfer, but provides no information about these individuals or their anticipated testimony. In contrast, the evidence before the Court demonstrates that the individuals identified by the United States can testify to the merits of Plaintiff's claims based on their personal knowledge of the selection process for the Plant Manager position in Akron. See Williams v. Bowman, 157 F. Supp. 2d 1103, (N.D. Cal. 2001) (similarly finding that although both parties identified witnesses in both districts, defendants identified individuals that would likely testify to the merits of the lawsuit, indicating this factor weighed in defendants' favor); see also Tel. Mgmt. Corp. v. Goodyear Tire Rubber Co., 5 F. Supp. 2d 896, 898 (transferring venue in a contract case to the district where individuals who worked on the contract at issue were located, including retired individuals no longer subject to compulsory trial attendance). Furthermore, for all that appears, the transfer sought by the United States would most likely alleviate any inconvenience to Plaintiff's prospective witness or witnesses located in Washington, D.C. Finally, while only Kelley, Potts, Sindelar, and Zernechel reside in Ohio, the Court finds it would be more convenient for the other individuals to travel to Ohio in lieu of Arizona. See Int'l Comfort Prods. v. Hanover House Indus., Inc., 739 F. Supp. 503, 506 (D. Ariz. 1989) (transferring suit to Pennsylvania where defendants' witnesses resided primarily there and in New York).
Accordingly, the Court concludes that the convenience of the witnesses weighs heavily in favor of the transfer sought by the United States. See id. at 507 ("The most critical factor to review is the convenience of the witnesses.") (citing L.A. Mem'l Coliseum v. Nat'l Football League, 89 F.R.D. 497 (C.D. Cal. 1981)).
4. Availability of Compulsory Process
Of the five prospective nonparty witnesses identified by the United States, none reside in Arizona. Breault Decl. ¶ 5. Because all of these individuals would fall outside the subpoena power of any court in this District, see Fed.R.Civ.P. 45(c)(3)(B)(iii), this factor offers no justification for this Court to retain venue. Although the United States acknowledges that three of its five prospective nonparty witnesses currently reside in Pennsylvania and Indiana, it is apparent that the remaining two individuals would at least be subject to compulsory process in the Northern District of Ohio. See Breault Decl. ¶ 5; Fed.R.Civ.P. 45(c)(3)(B)(iii). Finally, at least two of Plaintiff's prospective witnesses reside outside Arizona, see Second Resp. (doc. # 12) at 2, and would lie beyond the reach of compulsory process in this Court if they were nonparty witnesses,see Fed.R.Civ.P. 45(c)(3)(B)(iii). Therefore, on balance, this factor favors transfer.
5. Costs of Litigation
The most significant witnesses — those with personal knowledge of the selection process for the Akron Plant Manager position — all reside in and around the Northern District of Ohio. See Breault Decl. ¶ 5. Although Defendant would have to spend more money to discover evidence and to secure the attendance of these witnesses were the case to be tried in this Court, so too may Plaintiff whose prospective witnesses reside not only in Arizona, but also in Colorado and Washington, D.C. See Second Resp. (doc. # 12) at 2. On the other hand, Plaintiff contends that he would deplete a year's worth of annual leave, thus impairing his retirement plans, if he were to continue proceeding pro se after a transfer to the Northern District of Ohio. Resp. (doc. # 10) at 3. Because the transfer sought by the United States would merely shift rather than eliminate the inconvenience of litigation costs, this factor neither favors nor disfavors transfer. See Decker Coal Co., 805 F.2d at 843.
6. Ease of Access to Sources of Proof
In assessing the relative inconvenience to the parties in gaining access to relevant sources of proof, the Court recognizes that documentary evidence is substantially less costly to produce than witness testimony. In the present case, however, none of the documentary evidence referenced in the parties' briefs is located in this District. The books and records concerning the selection process for the Plant Manager position in Akron are maintained and administered in the Postal Service's Eastern Area offices in Pittsburgh. Breault Decl. ¶ 3. In addition, Plaintiff's employment files and the files related to his previous EEOC complaints are kept in Denver, Colorado and Ashburn, Virginia. See Resp. (doc. # 10) at 2. Although the various records are all located outside the Northern District of Ohio, the Court finds that they would be more conveniently transported to that venue in lieu of Arizona. Moreover, in the case at hand, transfer would most likely improve rather than impede Plaintiff's access to the stated sources of proof. For example, should the EEOC filings become relevant to Plaintiff's Title VII claim of retaliation, transfer would actually alleviate any inconvenience to Plaintiff of locating and transporting the appropriate files from Virginia, which is much nearer to the Northern District of Ohio than to this District. Accordingly, the Court finds that this factor also favors transfer.
The United States correctly notes that the Title VII venue statute, 42 U.S.C. § 2000e-5(f)(3), is only concerned with those records relating to the alleged unlawful employment practice.See Reply (doc. # 11) at 3. However, under section 1404(a), the Court must consider the ease of access to all relevant sources of proof. In this instance, although Plaintiff's employment files and EEOC filings are incapable of establishing venue, they may nevertheless become relevant for other purposes at trial.
In sum, the Court begins from a position affording great deference to Plaintiff's choice of forum on account of the more permissive venue provisions of Title VII. However, this deference can be overcome by a particularly strong showing that the conveniences favor transfer, and the Court finds that the United States has met this heavy burden here. From the evidence presented, the Court concludes that the convenience of the witnesses, the availability of compulsory process, and the ease of access to sources of proof all point toward the Northern District of Ohio as the most appropriate venue for this case. Therefore, the United States' motion to transfer (doc. # 9) will be granted.
B. Motion to Dismiss for Improper Venue
Also before the Court is the United States' motion to dismiss (doc. # 9) pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure, which allows a party to seek dismissal of a complaint if the action was initiated in an improper venue. Fed.R.Civ.P. 12(b)(3). As discussed above at Part II.A.1.b,supra, the evidence before the Court shows that the District of Arizona is a proper venue for Plaintiff's Title VII claim, a fact which would support a denial of the Rule 12(b)(3) motion on its merits. In light of the Court's order transferring this case to the Northern District of Ohio pursuant to 28 U.S.C. § 1404(a), however, the Rule 12(b)(3) motion must be denied as moot.
III. CONCLUSION
In light of the foregoing analysis, the Court finds that venue would be proper in the District of Arizona as well as the Northern District of Ohio for both the ADEA claim and the Title VII claim of Plaintiff's Complaint. However, the Court concludes that, pursuant to 28 U.S.C. § 1404(a), the case should be transferred to the Northern District of Ohio for, inter alia, the convenience of the witnesses. Therefore,
IT IS ORDERED that the United States' Motion to Dismiss for Improper Venue, or in the Alternative to Transfer Case (doc. # 9) is GRANTED in part and DENIED in part.
IT IS FURTHER ORDERED that the United States' motion to transfer venue pursuant to 28 U.S.C. § 1404(a) (doc. # 9) is GRANTED.
IT IS FURTHER ORDERED that the United States' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3) (doc. # 9) is DENIED as moot.
IT IS FURTHER ORDERED that the United States' Motion to Disregard Plaintiff's Additional Response to Defendant's Motion to Dismiss (doc. # 13) is construed as a request to file a sur-reply to Plaintiff's Response to Defendant's Second Motion to Dismiss or Transfer Case to Ohio (doc. # 12) and is DENIED as moot.
IT IS FINALLY ORDERED directing the Clerk of the Court to . . . transfer this action to the Northern District of Ohio.