Franken v. Speer

Filing 48

ORDER signed by District Judge John A. Mendez on 10/3/2018 DENYING 42 Motion to Change Venue. (Michel, G.)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN FRANKEN,

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No.

2:17-cv-01128-JAM-KJN

Plaintiff,

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v.

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MARK T. ESPER, Secretary of
the United States Army,

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ORDER DENYING PLAINTIFF’S MOTION
TO CHANGE VENUE

Defendant.

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This matter is before the Court on Plaintiff Kevin Franken’s

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Motion to Change Venue.

Mot., ECF No. 42.

Defendant Mark Esper

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filed an opposition, ECF No. 45, to which Plaintiff replied, ECF

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No. 46.

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motion and relevant legal authority, the Court DENIES Plaintiff’s

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Motion to Change Venue.1

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After consideration of the parties’ briefing on the

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This motion was determined to be suitable for decision without
oral argument. E.D. Cal. L.R. 230(g). The hearing was scheduled
for October 2, 2018.
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I.

BACKGROUND

Plaintiff previously worked as a Park Ranger/Natural

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Resources Specialist for Defendant, United States Army.

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ECF No. 1, ¶ 13.

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Springs, California.

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Plaintiff alleges that he was subject to a myriad of interactions

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he found to be discriminatory, harassing, hostile, and

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retaliatory.

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Compl.,

Plaintiff’s official duty station was in Valley
Id. ¶ 2.

Between June 2015 and July 2016,

Id. ¶¶ 13–110.

On May 28, 2017, Plaintiff filed a three-claim complaint in

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the U.S. District Court for the Eastern District of California,

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alleging Title VII sex discrimination and hostile work

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environment, as well as failure to accommodate under the

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Rehabilitation Act.

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three additional Title VII cases alleging Defendant engaged in

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discriminatory employment practices.

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those three cases in the U.S. District Court for the Northern

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District of California.

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3:17-cv-07161-LB (N.D. Cal. filed Dec. 17, 2017) (“Franken II”);

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Franken v. Harris, et al., No. 3:18-cv-01837–KAW (N.D. Cal. filed

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March 25, 2018) (“Franken III”); Franken v. Esper, et al., No.

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3:18-cv-04120-SK (N.D. Cal. filed July 10, 2018) (“Franken IV”).

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Defendant filed motions to dismiss or transfer in Franken II and

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Franken III.

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been served in Franken IV.

Id. ¶¶ 111–19.

Plaintiff went on to file

Mot. at 6.

Plaintiff filed

See id.; Franken v. Esper, et al., No.

Opp’n, ECF No. 15, p. 15.

Defendants have not yet

Id.

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II.

OPINION

Plaintiff now moves this Court to change the venue of this
case from the Eastern District of California, where he originally
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filed the case, to the Northern District of California, where his

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three other suits are pending.

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arguing the Eastern District of California is the location of the

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alleged acts and the district in which the vast majority of

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witnesses reside.

Mot. at 6.

Defendant opposes,

Opp’n at 2.

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A.

Legal Standard

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“For the convenience of parties and witnesses, in the

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interest of justice, a district court may transfer any civil

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action to any other district or division where it might have

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been brought or to any district or division to which all parties

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have consented.”

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“prevent the waste of time, energy and money and to protect

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litigants, witnesses and the public against unnecessary

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inconvenience and expense[.]”

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612, 616 (1964) (internal quotation marks omitted).

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28 U.S.C. § 1404(a).

Section 1404(a) seeks to

Van Dusen v. Barrack, 376 U.S.

In a Title VII case, the statute’s special venue provision
details where cases arising under the statute may be brought:
Each United States district court and each United
States court of a place subject to the jurisdiction of
the United States shall have jurisdiction of actions
brought under this subchapter. Such an action may be
brought in any judicial district in the State in which
the unlawful employment practice is alleged to have
been committed, in the judicial district in which the
employment records relevant to such practice are
maintained and administered, or in the judicial
district in which the aggrieved person would have
worked but for the alleged unlawful employment
practice, but if the respondent is not found within
any such district, such an action may be brought
within the judicial district in which the respondent
has his principal office. For purposes of sections
1404 and 1406 of Title 28, the judicial district in
which the respondent has his principal office shall in
all cases be considered a district in which the action
might have been brought.
42 U.S.C. § 2000e-5(f)(3); Johnson v. Payless Drug Stores Nw.,
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Inc., 950 F.2d 586, 587–88 (9th Cir. 1991).

This section of

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Title VII also determines the proper venue for litigating a

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Rehabilitation Act claim.

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132 (D.D.C. 2012).

Slaby v. Holder, 901 F. Supp. 2d 129,

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B.

Analysis

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Pursuant to Section 1404(a), the Court evaluates the

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districts in which the case could have been filed, whether

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transfer would provide the litigants and witnesses with a more

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convenient, efficient forum, and whether a transfer serves the

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interests of justice.

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(1)

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Where the Case Could Have Been Brought

Under Title VII’s special venue provision, the Court

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evaluates three factors to determine the districts in which

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Plaintiff could have filed this case.

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relevant here: (1) the state in which the allegedly unlawful

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employment practice occurred and (2) the district in which the

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defendant maintains and administers employment records.

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U.S.C. § 2000e-5(f)(3).

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a.

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Two of those factors are

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The Alleged Unlawful Employment Practice Took
Place in California

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Here, based on the acts alleged in Plaintiff’s complaint,

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the unlawful employment practices took place in Valley Spring,

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California, within the Eastern District of California.

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under Title VII, venue is proper in any of California’s four

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federal districts.

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does not weigh for or against transfer to the Northern District

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of California.

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See 42 U.S.C. § 2000e-5(f)(3).

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Thus,

This factor

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b.

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District in Which the Employment Records Are
Maintained and Administered

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Plaintiff alleges in the declaration attached to his motion

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that the decisions to discharge him and discriminate against him

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were made in San Francisco.

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similarly alleges, without factual support, that the computer

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system containing his employment record was located in San

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Francisco.

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and offers two declarations: one from Plaintiff’s former

See id.

Franken Decl., ECF No. 42-2.

He

Defendant disputes Plaintiff’s allegations

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supervisor and another from the counsel involved in Plaintiff’s

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discrimination complaints.

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the Chief of the Operations and Readiness Branch, provides facts

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that indicate none of the employment decisions alleged were

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approved, ratified, or finalized in San Francisco.

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ECF No. 45-2.

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Adrienne Cady details that Plaintiff’s electronic employment

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records are stored in Sacramento and Washington, D.C.

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Decl., ECF No. 45-3.

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The declaration from Randy Olsen,

Olsen Decl.,

The declaration from Assistant District Counsel

Cady

Having reviewed the declarations in support of and

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opposition to Plaintiff’s motion, the Court finds Defendant’s

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declarations to be more reliable because they provide detailed

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facts about the location where the individuals described in the

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Complaint worked and made employment decisions, rather than

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unsubstantiated beliefs and conclusory allegations.

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this information, the Court finds it more likely that the

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decisions regarding Plaintiff’s employment were made,

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implemented, and felt in the Eastern District of California.

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See Passantino v. Johnson & Johnson Consumer Prod., Inc., 212
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Based on

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F.3d 493, 506 (9th Cir. 2000) (“[V]enue is proper in both the

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forum where the employment decision is made and the forum in

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which that decision is implemented or its effects are felt.”).

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This factor weighs against transfer to the Northern District of

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California.

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(2)

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Convenience of the Parties and Witnesses

Plaintiff argues in his motion that the case should be

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transferred because it would be more convenient for him to

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prosecute this action in San Francisco, where he filed his three

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subsequent cases.

Mot. at 6.

He also believes that the

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Northern District is more convenient because he resides there.

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Id.

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40 unique witnesses, illustrating that 29 witnesses reside in

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the Eastern District of California, three reside in the Northern

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District of California and eight are unknown or outside either

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district’s subpoena power.

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29 witnesses residing in the Eastern District are closer to

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Sacramento than San Francisco.

Defendant, on the other hand, provides an analysis of the

Kim Decl., ECF No. 45-1.

All of the

Id.

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This review of the evidence demonstrates that the Eastern

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District of California is a more convenient venue for the vast

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majority of witnesses whose addresses are known.

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evidence that the non-party witnesses, other than Plaintiff’s

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health care providers, are within the subpoena power of the

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Northern or Eastern Districts of California.

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Kim Decl., Ex. C, ECF No. 45-1, pp. 23–26.

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that the only inconvenience transfer would cause is for

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witnesses to drive from Sacramento to San Francisco.

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argument ignores its converse: it is far more efficient for
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There is no

See Reply at 2;
Plaintiff argues

That

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three individuals to drive from San Francisco to Sacramento than

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it is for 29 individuals to do the opposite.

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See Reply at 2.

The factor weighing convenience of parties and witnesses

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weighs against transferring the case to the Northern District of

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California.

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(3)

Interests of Justice

Finally, Plaintiff argues that court congestion weighs in

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favor of transferring the case.

Mot. at 8.

Plaintiff is

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correct that the Eastern District of California has one of the

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highest caseloads per judge in the nation and has an immediate

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need for a minimum of five new judgeships.

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Nevertheless, this district’s impending judicial emergency does

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not permit the Court to transfer every case in which there is a

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tenuous nexus with another judicial district.

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Plaintiff will suffer by remaining in the forum he originally

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selected does not outweigh the other Section 1404(a) factors.

See id.

The delay

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III.

ORDER

For the reasons set forth above, the Court DENIES
Plaintiff’s Motion to Change Venue.

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IT IS SO ORDERED.

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Dated: October 3, 2018

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