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Law v. Sessions

United States District Court, S.D. Texas, Houston Division

June 2, 2017

ELEANOR JANICE LAW, Plaintiff,
v.
JEFF SESSIONS, Defendant.

          MEMORANDUM & ORDER

          KEITH P. ELLISON UNITED STATES DISTRICT JUDGE

         Defendant 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.

         I. BACKGROUND

         Plaintiff 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).

         After 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.)

         II. ANALYSIS

         A. Motion to Dismiss

         In its 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.

         Defendant 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.

         However, 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.”).

         Here, 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 denied.

         B. Motion to Transfer

         Defendant 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)).

         The 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 ...


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