Gill v. Federal Retirement Thrift Investment Board et al

Filing 18

ORDER signed by Judge Garland E. Burrell, Jr on 7/20/11 ORDERING that Plaintiff's case is DISMISSED without prejudice for improper venue. This case shall be closed. CASE CLOSED. (Mena-Sanchez, L)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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EMMA GILL,
Plaintiff,

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v.

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FEDERAL RETIREMENT THRIFT
INVESTMENT BOARD, THRIFT SAVINGS
PLAN, and DOES 1 through 15,
inclusive,
Defendants.
________________________________

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2:11-cv-0351-GEB-KJN
ORDER DISMISSING ACTION
WITHOUT PREJUDICE

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Defendant Federal Retirement Thrift Investment Board moves,

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inter alia, for dismissal of this action under Federal Rule of Civil

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Procedure (“Rule”) 12(b)(3), arguing that venue in this district is

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improper under 5 U.S.C. § 8477(e)(7)(B). (Mot. 9:25-28.) Plaintiff

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opposes the motion. “The substantive statutory basis for [Plaintiff’s]

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suit [is] 5 U.S.C. § 8477.” (Opp’n 3:19; accord Mot. 9:12-13, 27.)

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Defendant also argues the Thrift Savings Plan should be

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dismissed from this action since it is not an entity which Plaintiff can

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sue eo nomine. (Mot. 1:26-27; 2:8-9.) “Plaintiff agrees to dismiss the

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Thrift Savings Plan . . . as a Defendant” in her responsive brief;

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therefore, the Thrift Savings Plan is dismissed from this action. (Opp’n

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5:15-17.)

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I. BACKGROUND

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Plaintiff’s suit is based solely on her allegation that she is

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the beneficiary under a decedent’s Thrift Savings Plan (“TSP”); the TSP

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is a defined contribution retirement savings plan which is part of the

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federal employees retirement system. (Compl. ¶ 9; 5 U.S.C. §§ 8351,

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8440-79.) Upon a TSP plan participant’s death the funds in his or her

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TSP account are paid in accordance with the statutory order of payment

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prescribed in 5 U.S.C. § 8424(d), which states in pertinent part: the

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funds are distributed

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[f]irst, to the beneficiary or beneficiaries
designated by the [participant] in a signed and
witnessed writing received in the Office before the
death of [the participant;] . . . [s]econd, if
there is no designated beneficiary, to the widow or
widower of the [participant;] . . . [t]hird, . . .
to the child or children of the [participant;] . .
. [f]ourth, . . . to the parents of the
[participant; and] . . . [f]ifth, . . . to the duly
appointed executor or administrator of the estate
of the [participant].

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The decedent Alcurtis Gill died on September 9, 2008. (Compl.

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¶ 9; Mot. Exs. 3, 9.) Following his death, Plaintiff and the decedent’s

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siblings filed claims with Defendant for the funds in the decedent’s TSP

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account. (Mot. Exs. 3-4.) Defendant was unable to locate a designation

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of beneficiary form for the decedent’s account and therefore determined

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the funds in the decedent’s TSP account would be paid in accordance with

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the statutory order of payment prescribed in 5 U.S.C. § 8424(d). (Compl.

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Ex. A.; Mot. Ex. 15.) Plaintiff and the decedent were divorced on July

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21, 2005. (Compl. ¶ 9.) Defendant determined Decedent “did not have a

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surviving spouse” or “living children, and was not survived by his

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parents[;]” therefore, Defendant determined it must pay the funds in the

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decedent’s TSP account to the decedent’s estate. (Compl. Ex. A.; Mot.

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Ex. 9.)

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Plaintiff

alleges

in

her

complaint

that

she

“was

named

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beneficiary on the [decedent’s] TSP account” and that Defendant’s

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“record keepers failed to keep accurate and complete records on file for

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Decedent’s TSP account as required[.]” (Compl. ¶¶ 9, 10.) Plaintiff also

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alleges Defendant has “a fiduciary responsibility under 5 U.S.C. § 8477

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to

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Defendant “breached [this] duty [by] . . . destroying, deleting, or

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otherwise misplacing” the form which was executed on her behalf. Id. ¶¶

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34-35.

maintain”

the

decedent’s

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designation

of

beneficiary

form

and

II. DISCUSSION

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“Plaintiff has the burden of proving that venue is proper in

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th[is] district[, where] the suit was initiated.” Hope v. Otis Elevator

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Co., 389 F. Supp. 2d 1235, 1243 (E.D. Cal. 2005). “In deciding a [Rule]

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12(b)(3)

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pleadings and need not accept the pleadings as true.” U.S. Tower Corp.

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v. STS Intern., Inc., No. CIV-F-08-0228 AWI SMS, 2008 WL 2074463, at *2

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(E.D. Cal. May 15, 2008) (citing Murphy v. Schneider Nat’l, Inc., 362

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F.3d

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ordinarily are resolved on affidavits and declarations.” Kelly v.

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Echols, No. CIVF05118 AWI SMS, 2005 WL 2105309, at *11 (E.D. Cal. Aug.

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30, 2005) (citation and internal quotation marks omitted).

[venue]

1133,

motion,

1137-39

(9th

a

court

Cir.

may

2004)).

consider

facts

“Accordingly,

outside

venue

the

issues

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Plaintiff alleges in her complaint that venue is proper under

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the general jurisdiction statute prescribed in 28 U.S.C. § 1391(e)(3);

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however, in her opposition brief Plaintiff relies solely on 5 U.S.C. §

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8477(e)(7)(B) as support for her position that venue exists in this

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district.

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prescribes: “[a] civil action in which a defendant is . . . an agency of

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the United States . . . may, except as otherwise provided by law, be

(Compl.

¶

2;

Opp’n

4:11-19.)

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U.S.C.

§

1391(e)(3)

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brought in any judicial district in which . . . (3) the plaintiff

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resides if no real property is involved in the action.” 28 U.S.C. §

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1391(e) (emphasis added). However, 5 U.S.C. § 8477(e)(7)(B) prescribes:

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An action under this subsection may be brought in
the District Court of the United States for the
District of Columbia or a district court of the
United States in the district where the breach
alleged in the complaint or petition filed in the
action took place or in the district where a
defendant resides or may be found.

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The more specific venue provision in 5 U.S.C. § 8477(e)(7)(B) applies in

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this case. See generally Johnson v. Payless Drug Stores Northwest, Inc.,

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950 F.2d 586, 587 (9th Cir. 1991) (holding the more specific venue

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provision in Title VII applies, rather than then the general venue

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statute prescribed in 28 U.S.C. § 1391, since “venue for [Plaintiff’s]

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right of action is circumscribed by the very statute that gives [her]

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the right to sue in the first place”). Therefore, Plaintiff must

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demonstrate that venue is proper under 5 U.S.C. § 8477(e)(7)(B).

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Defendant argues Plaintiff’s “suit in the Eastern District of

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California meets none of the geographical conditions imposed by 5 U.S.C.

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§ 8477(e)(7)(B) . . . [and therefore,] this action must be dismissed for

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improper venue.” (Mot. 10:15-18.) Plaintiff argues “venue is proper”

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because “the breach took place in Sacramento[.]” (Opp’n 4:13-14.)

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Defendant argues it “neither resides nor is found in the

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Eastern

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averments from the declaration of Pamela-Jeanne Moran, the Director of

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Participation Services at the Federal Retirement Thrift Investment

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Board. (Mot. 10:12; ECF No. 8-1, Decl of Moran ¶ 1.) Moran declares:

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Defendant “operates one office which is located at 1250 H St. NW,

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Washington, D.C. 20005. [Defendant] also partners with contractors who

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have

District

sites

in

of

California”

various

and

locations

supports

including
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this

Fairoaks,

argument

Virginia

with

and

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Birmingham, Alabama. Finally, [Defendant] has a U.S. Treasury lockbox in

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St. Louis, Missouri.” (Decl of Moran ¶ 8.) Plaintiff has not presented

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evidence from which an inference can be drawn that Defendant has any

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presence in California. Therefore, the Eastern District of California is

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not “a district where a defendant resides or may be found.” 5 U.S.C. §

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8477(e)(7)(B).

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However, Plaintiff relies on her unsupported argument as her

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sole basis for establishing venue in this district, arguing: “venue is

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proper” in this district since the decedent’s beneficiary form was

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“lost,

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Sacramento[,]” California. (Opp’n 4:14-15.) Defendant counters “the

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alleged breach . . . could not have occurred outside [Defendant’s]

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offices.” (Mot. 10:12-14.) Plaintiff’s conclusory argument does not

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demonstrate that Defendant had possession of the referenced beneficiary

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form in California, or otherwise breached any obligation concerning the

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referenced beneficiary form in California.

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destroyed,

or

otherwise

misplaced

upon

transfer

from

Plaintiff also argues venue is proper in this district since

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the

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decedent died in California, and Plaintiff resides in California. (Opp’n

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4:14-17.) However, these arguments are not a bases for venue in this

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district under 5 U.S.C. § 8477(e)(7)(B). Therefore, Plaintiff has failed

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to prove that venue is proper in the Eastern District of California

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under 5 U.S.C. § 8477(e)(7)(B).

beneficiary

designation

form

was

executed

in

Sacramento,

the

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A case filed in the wrong district shall be dismissed, or if

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it is in the interest of justice[,] may be “transfer[ed] . . . to any

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district . . . in which it could have been brought.” 28 U.S.C. §

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1406(a). However, Plaintiff does not address this issue and instead

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argues:

“[i]n

the

interests

of

justice
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the

Eastern

District

is

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appropriate as Plaintiff does not have the resources to retain counsel

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in Washington D.C. and otherwise prosecute her case in Washington D.C.”

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(Opp’n 4:17-19.) This argument does not justify transferring this case

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to another district. See Johnson, 950 F.2d at 588 (holding “the district

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court did not abuse its discretion by dismissing the action without

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prejudice rather than transferring it sua sponte” since “justice would

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not be served by transferring [the action] to a jurisdiction that

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plaintiff purposefully sought to avoid”).

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III. CONCLUSION

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For the foregoing reasons, Plaintiff’s case is DISMISSED

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without prejudice for improper venue. This case shall be closed.

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Dated:

July 20, 2011

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GARLAND E. BURRELL, JR.
United States District Judge

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