King v. CVS Caremark Corporation et al
MEMORANDUM OPINION AND ORDER DENYING 8 MOTION to Dismiss for Improper Venue or, to Transfer Venue. Additionally, the Clerk is DIRECTED to place Mr. King's unredacted charge (Doc. 8-2) under seal. Signed by Judge Virginia Emerson Hopkins on 7/20/2012. (JLC)
2012 Jul-20 PM 03:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JAMES R. KING,
CORPORATION, a/k/a CVS
PHARMACY, and CODY
) Case No.: 1:12-CV-1715-VEH
MEMORANDUM OPINION AND ORDER
Plaintiff James R. King (“Mr. King”) initiated this job discrimination case
against Defendant CVS Caremark Corporation (“CVS”) and Cody Berguson (“Mr.
Berguson”) on April 27, 2012. (Doc. 1). The court has before it Defendants’ Motion
To Dismiss For Improper Venue, Or Alternatively To Transfer Venue (the “Venue
Motion”) (Doc. 8) which was filed on June 18, 2012.
In the Venue Motion, Defendants seek to have this case dismissed pursuant to
Rule 12(b)(3) of the Federal Rules of Civil Procedure or alternatively transferred
from the Eastern Division of the Northern District of Alabama to the Middle one
pursuant to 28 U.S.C. § 1404(a). (Doc. 8 at 1). Mr. King filed his opposition (Doc.
9) on July 2, 2012. Defendants elected not to reply. For the reasons explained below,
the Venue Motion is DENIED.
The parties are in agreement that the standard federal venue statute applies
here. 28 U.S.C. § 1391 governs venue generally in federal court and provides in part:
(a) Applicability of section.--Except as otherwise provided by law-(1) this section shall govern the venue of all civil actions
brought in district courts of the United States; and
(2) the proper venue for a civil action shall be determined
without regard to whether the action is local or transitory
(b) Venue in general.--A civil action may be brought in-(1) a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district is
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action
is situated; or
(3) if there is no district in which an action may otherwise
be brought as provided in this section, any judicial district
in which any defendant is subject to the court’s personal
jurisdiction with respect to such action. . . .
(d) Residency of corporations in States with multiple districts.--For
purposes of venue under this chapter, in a State which has more than one
judicial district and in which a defendant that is a corporation is subject
to personal jurisdiction at the time an action is commenced, such
corporation shall be deemed to reside in any district in that State within
which its contacts would be sufficient to subject it to personal
jurisdiction if that district were a separate State, and, if there is no such
district, the corporation shall be deemed to reside in the district within
which it has the most significant contacts.
28 U.S.C. § 1391(a)-(b), (d) (emphasis added).
Forum Non Conveniens
28 U.S.C. § 1404 governs change of venue and states in relevant part:
For the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any other district
or division where it might have been brought or to any district or
division to which all parties have consented.
Id. (emphasis added).
Curing Venue Defects
28 U.S.C. § 1406(a) addresses a district court’s options when venue is
The district court of a district in which is filed a case laying venue in the
wrong division or district 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.
Id. (emphasis added).
Dismissal Due To Improper Division
The court easily rejects Defendants’ contention that a dismissal of this lawsuit
due to improper divisional venue is appropriate. In particular, the parties are in
agreement that venue is proper within the Northern District of Alabama, and § 1391
only addresses venue in the context of districts, not divisions.
28 U.S.C. § 1393 is the former federal statute that governed divisional venue.
However,“[w]hen 28 U.S.C. § 1393 was repealed effective February 17, 1989 by
Public Law 100–702, the concept of divisional venue disappeared.” Bishop v. C &
P. Trucking Co., Inc., 840 F. Supp. 118, 119 (N.D. Ala. 1993). Additionally,
although “[t]he repeal of § 1393 does not abrogate local rules respecting divisional
venue[,] . . . the Northern District of Alabama has not adopted any local rules
respecting divisional venue.” Id. (citation omitted).
Finally, even if Defendants were able to show that improper divisional venue
exists in this instance, under § 1406(a) the court would still have the option of
transferring the case to a proper division “in the interest of justice” which alternative
it would undoubtedly exercise over a dismissal under these circumstances.
Accordingly, Defendants’ suggestion that this case should be dismissed for want of
divisional venue misses the mark and such request for relief is DENIED.
Transfer From Eastern To Middle Division
Alternatively, Defendants desire to have this lawsuit transferred to the Middle
Division because of the lawsuit’s relationship with St. Clair County. Assuming
without deciding that a divisional transfer on the basis of forum non conveniens is
still appropriate in the Northern District of Alabama despite the lack of any local
divisional rules, the court, in its discretion, declines to make such a transfer in this
It has generally been held that “[t]he plaintiff’s choice of forum should not be
disturbed unless it is clearly outweighed by other considerations.” Howell v. Tanner,
650 F.2d 610, 616 (5th Cir. 1981),1 disagreement on other grounds recognized by
Brumfield v. Jones, 849 F.2d 152 (5th Cir. 1988). With regard to forum non
conveniens, “Defendants . . . bear the burden of proof, and must make a convincing
showing of the right to transfer.” Mason v. Smithkline Beecham Clinical Lab., 146 F.
Supp. 2d 1355, 1363 (S.D. Fla. 2001). In making its determination, the court should
consider, among other factors: “(1) the convenience of the witnesses; (2) the location
of relevant documents and the relative ease of access to sources of proof; (3) the
convenience of the parties; (4) the locus of operative facts; (5) the availability of
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en
banc), the Eleventh Circuit adopted as binding precedent all decisions of the former
Fifth Circuit handed down prior to October 1, 1981.
process to compel the attendance of unwilling witnesses; (6) the relative means of the
parties; (7) a forum’s familiarity with the governing law; (8) the weight accorded a
plaintiff’s choice of forum; and (9) trial efficiency and the interests of justice, based
on the totality of the circumstances.” Manuel v. Convergys Corp., 430 F.3d 1132,
1135 n.2 (11th Cir. 2005).
Here, Defendants have not carried their burden of demonstrating that
convenience and other factors clearly favor a divisional transfer. Therefore, Mr.
King’s choice of forum should control. In particular, as Mr. King has explained (and
as Defendants have not disputed), his home is actually closer in miles to the federal
courthouse in Anniston (i.e., located in the Eastern Division) than the one in Gadsden
(i.e., located in the Middle Division). (Doc. 9 at 7). The same is true for CVS which
is located in Pell City. (Id. at 7-8). The travel for Mr. Berguson, who resides in
Birmingham, is equal for either division. (Id. at 8).
Defendants’ statements about the domiciles of key nonparty witnesses are too
broadly phrased to satisfy that factor. In particular, the court is unwilling to order a
divisional transfer based vaguely upon Defendants’ “information and belief, [that]
those individuals reside in or near St. Clair County.” (Doc. 8 ¶ 6; Doc. 8-1 ¶ 6).
The other factors are similarly lacking in convincing support for Defendants
as Mr. King has outlined in his opposition. For example, Defendants have not
explained and the court cannot envision how the costs and procedures for obtaining
witnesses will be any appreciably more expensive in the Eastern Division than in the
Middle. Additionally, because the situs of material events occurred in Pell City, the
courthouse located in Anniston of the Eastern Division is actually the closer federal
forum as pointed out above.
Finally, the case authorities upon which Defendants rely are significantly
distinguishable (and therefore also unpersuasive) as they involve district transfers as
opposed to divisional ones. Thus, the jury burden argument embraced by the district
court in Bell v. K Mart Corp., 848 F. Supp. 996, 999 (N.D. Ga. 1994), does not apply
in the divisional context, i.e., the jurors from the Eastern Division do have a
connection to this litigation as it arises in the Northern District of Alabama, the very
federal district in which they reside.2 Therefore, the Venue Motion is also DENIED
on forum non conveniens grounds.
Accordingly, the Venue Motion is DENIED. Additionally, the clerk is
DIRECTED to place Mr. King’s unredacted charge (Doc. 8-2) under seal as he has
The court is also aware, although the parties may not be, that the Eastern and
Middle divisions are combined for the purposes of jury venire. Thus, the same pool
of persons will constitute the venire, no matter whether the case is an “Eastern”
division case or a “Middle” division case.
requested in his opposition due to the private information disclosed therein in
contravention of the E-Government Act of 2002. (Doc. 9 at 20).
DONE and ORDERED this the 20th day of July, 2012.
VIRGINIA EMERSON HOPKINS
United States District Judge
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