United States District Court, S.D. Texas, Houston Division
MEMORANDUM & ORDER
P. ELLISON UNITED STATES DISTRICT JUDGE
has filed a Motion to Dismiss for Improper Venue or in the
Alternative, to Transfer to the District of Columbia in this
employment discrimination lawsuit. (Doc. No. 49.) Plaintiff
has responded, and Defendant has replied. (Doc. Nos. 53 &
55.) After careful consideration of the parties'
arguments, and the relevant statutes and caselaw, the Court
finds that it must deny Defendant's motion to dismiss,
but grant Defendant's motion to transfer. Accordingly,
for the reasons given, this case is transferred to the
District Court for the District of Columbia.
applied for one of three Trial Attorney positions within the
Special Litigation Section of the Civil Rights Division of
the Department of Justice in Washington, D.C., on August 31,
2012. Several hundred other individuals also applied for
these positions. Plaintiff was not one of the ten individuals
selected for an interview. Ultimately, two individuals from
the ten that were interviewed were selected for the position.
The third opening remained vacant. Plaintiff alleges that
Defendant engaged in race and gender discrimination under
Title VII of the Civil Rights Act of 1964, and age
discrimination under the Age Discrimination in Employment Act
of 1967 (ADEA).
pursuing her administrative remedies, Plaintiff filed this
lawsuit on September 16, 2016. (Doc. No. 1.) She amended her
complaint on October 3, 2016, and again on October 26, 2016.
(Doc. Nos. 5 & 6.) Defendant answered on December 2,
2016. (Doc. No. 10.) With the Court's permission,
Plaintiff amended her complaint for a third time on April 7,
2017. (Doc. No. 44.) Defendant filed this motion to dismiss
in lieu of an answer on May 3, 2017. (Doc. No. 49.)
Motion to Dismiss
motion to dismiss, filed pursuant to Rule 12(b)(3) of the
Federal Rules of Civil Procedure, Defendant argues that venue
in the Southern District of Texas is improper under Title
VII's venue provision, 42 U.S.C. §2000e-5(f)(3).
This provision provides that an action alleging employment
discrimination under Title VII may be brought in 1) any
judicial district in the State in which the unlawful
employment practice is alleged to have been committed, 2) the
judicial district in which the employment records relevant to
such practice are maintained and administered, or 3) the
judicial district in which the aggrieved person would have
worked but for the alleged unlawful employment practice. 42
U.S.C. §2000e-5(f)(3). If the respondent is not found
within any of those districts, the suit may be brought within
the judicial district in which the respondent has his or her
principal office. Id.
asserts, and Plaintiff does not seem to dispute, that the
allegedly unlawful employment practice occurred in the
District of Columbia, where the Department of Justice
(“DOJ”) is based; that the relevant employment
records are maintained and administered in the District of
Columbia; and that Ms. Law would have worked in the District
of Columbia but for the alleged unlawful employment practice.
Thus, under this provision, venue would be proper in the
District of Columbia, and is improper in the Southern
District of Texas.
as Plaintiff points out, Defendant did not raise the defense
of improper venue in its initial answer in this case.
Although Defendant did raise the defense in lieu of an answer
to Plaintiff's third amended complaint, the Federal Rules
of Civil Procedure require Defendant to raise this defense in
its first pleading. Rule 12(g)(2) of the Federal Rules of
Civil Procedure dictates that “a party that makes a
motion under this rule must not make another motion under
this rule raising a defense or objection that was available
to the party but omitted from its earlier motion.” This
rule has been interpreted by courts to mean that “[t]he
filing of an amended complaint will not revive the right to
present by motion defenses that were available but were not
asserted in timely fashion prior to the amendment of the
pleading.” 5C Wright & Miller, Fed. Prac. &
Proc. Civ. § 1388 (3d ed.); see also Keefe v.
Derounian, 6 F.R.D. 11, 13 (N.D. Ill. 1946) (holding
that because Plaintiff's amended complaint “merely
corrected an insufficient allegation of diversity
jurisdiction, ” it did not “revive the
defendant's right . . . to object to the service of
process, which is an objection that existed at the beginning
of the case and should have been raised then.”).
the defense of improper venue was available to Defendant when
it filed its first Answer in this case, but Defendant did not
assert this defense. Because of Rule 12(g)(2), it cannot do
so now. Accordingly, Defendant's motion to dismiss is
Motion to Transfer
moves, in the alternative, to transfer this case to the
District Court for the District of Columbia. (Doc. No. 49 at
14.) A district court may, in its discretion, transfer any
civil action to any other district court where it might have
been brought “for the convenience of parties and
witnesses, in the interest of justice.” 28 U.S.C.A.
§ 1404(a). The party seeking transfer bears the
“burden of demonstrating why the forum should be
changed.” Houston Trial Reports, Inc. v. LRP
Publications, Inc., 85 F.Supp.2d 663, 667 (S.D. Tex.
1999). “Unless the balance of factors strongly favors
the moving party, the Plaintiff's choice of forum
generally should not be disturbed.” Id.
“However, when the plaintiff's chosen forum has
little or no factual connection to the case, the
plaintiff's choice carries less weight.” Molina
v. Vilsack, 2009 WL 5214098, at *2 (S.D. Tex. Dec. 23,
2009) (citing Hanby v. Shell Oil Co., 144 F.Supp.2d
673, 677 (E.D. Tex. 2001)).
first determination for the district court to make is whether
the judicial district to which transfer is sought would have
been a district in which the claim could have been filed. As
discussed above, the District Court for the District of
Columbia is where the case should have been filed,
under the venue provision of Title VII. Although Defendant