Abdur-Rasheed v. Peralta Community Colleges

Filing 22

ORDER DENYING MOTION TO DISMISS FOR INSUFFICIENT SERVICE, DENYING MOTION TO QUASH SERVICE, AND GRANTING MOTION TO TRANSFER VENUE (addressing dkt entry 8 ). Signed by Judge Jeremy Fogel on 7/14/2011. (jflc2, COURT STAFF) (Filed on 7/14/2011)

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**E-Filed 07/14/2011**

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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TAUHEEDAH ABDUR-RASHEED,
Plaintiff,

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v.

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PERALTA COMMUNITY COLLEGES (LANEY
COLLEGE),

Case Number: 11-CV-1744-JF
ORDER DENYING MOTION TO
DISMISS FOR INSUFFICIENT
SERVICE, DENYING MOTION TO
QUASH SERVICE, AND GRANTING
MOTION TO TRANSFER VENUE1
[re: docket no. 8]

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Defendants.

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Plaintiff Tauheedah Abdur-Rasheed (“Abdur-Rasheed”) asserts a claim for employment

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discrimination against Defendant Peralta Community Colleges (“Peralta”) pursuant to Title VII

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of the Civil Rights Act, under 42 U.S.C. 2000e-5(g). Peralta moves to dismiss for insufficient

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service of process, or in the alternative, to quash service and change venue. The Court has

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considered the moving and responding papers and the oral arguments presented at the hearing on

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June 24, 2011. For the reasons discussed below, the motions to dismiss and to quash will be

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denied, and the motion to transfer venue will be granted.

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This disposition is not designated for publication in the official reports.

Case No. 11-CV-01744 JF
ORDER DENYING MOTION TO DISMISS FOR INSUFFICIENT SERVICE, ETC.
(JFEX1)

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I. BACKGROUND

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In 1990, Peralta hired Abdur-Rasheed as a permanent ten-month physical education

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teacher at Merritt College (“Merritt”), which is part of Peralta. Compl. p. 9.1 Abdur-Rasheed

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obtained a master’s degree in Physical Education, Health, and Recreation in 2004. Id. From

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2005 onward, Abdur-Rasheed has been requesting a twelve-month assignment as physical

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education teacher at Laney College (“Laney”), which also is part of Peralta. Id. During the

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summer of 2009, Abdur-Rasheed took a six-week assignment at Laney, but she was not given a

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full-time position despite the fact that Laney had a vacancy and school policy required the

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college to make an effort to hire from a list of part-time teachers before making new hires. Id. at

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13. Instead, Laney hired two male teachers (one Caucasian, one African-American) who lacked

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the Master’s Degree that school policy required. Id. at 5, 17. Abdur-Rasheed alleges

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discrimination on the basis of sex, age, religion, disability, and retaliation. Id. at 4, 5.

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Peralta moves to dismiss for insufficient service of process, or in the alternative, to quash

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service and change venue pursuant to Civil Local Rule 3-2(c). Abdur-Rasheed opposes the

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motions.

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II. DISCUSSION
A.

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Dismissal for Insufficient Service Under Rules 4 and 12(b)(5)
At the hearing in the motions, counsel for Peralta conceded that Abdur-Rasheed properly

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has effected service since the motions were filed. Accordingly the only remaining issue is the

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proper venue for this action.

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B.

Motion to Transfer Venue

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Civil Local Rule 3-2 provides in relevant part:

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(c) Assignment to a Division. Pursuant to the Court’s Assignment Plan ... all civil
actions and proceedings for which this district is the proper venue shall be assigned by the
clerk to a Courthouse serving the county in which the action arises. A civil action arises in
the county in which a substantial part of the events or omissions which give rise to the claim
occurred ... .
(d) San Francisco and Oakland. Except as provided in Civil L.R. 3-2(c), all civil

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Abdur-Rasheed’s complaint is unpaginated and contains diverse documents and
photocopied excerpts.
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Case No. 11-CV-01744 JF
ORDER DENYING MOTION TO DISMISS FOR INSUFFICIENT SERVICE, ETC.
(JFEX1)

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actions which arise in the count[y] of Alameda ... shall be assigned to the San Francisco
Division or the Oakland Division.
Civ. L.R. 3-2(c),(d)

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Pursuant to Title 28 U.S.C. § 1406(a), “[t]he district court of a district in which is filed a case

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laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice,

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transfer such case to any district or division in which it could have been brought.” Under

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Section 1406(a), “a district court has no discretion to retain a case in which venue is improper,

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but rather is required to dismiss or transfer the case.” In re Sorrells, 218 B.R. 580 (B.A.P. 10th

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Cir. 1998).

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It is undisputed that in the present case, Abdur-Rasheed’s claims arise from actions or

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omissions by persons at Merritt and Laney, both of which are located in Alameda County.

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Accordingly, the motion to transfer venue must be granted.

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IV. ORDER
Good cause therefor appearing, IT IS HEREBY ORDERED that the motions to dismiss

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and to quash are DENIED, and that the motion to transfer is GRANTED. The Clerk shall

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reassign this action to a judge in the San Francisco or Oakland Division.

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IT IS SO ORDERED.

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DATED: 07/14/2011
JEREMY FOGEL
United States District Judge

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Case No. 11-CV-01744 JF
ORDER DENYING MOTION TO DISMISS FOR INSUFFICIENT SERVICE, ETC.
(JFEX1)