Allen v. Napolitano et al

Filing 17

MEMORANDUM OPINION. Signed by Judge Sue L. Robinson on 2/16/12. (rwc)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

HENRY ALLEN,

)
)
)
)

Plaintiff,

v.

)

JANET NAPOLITANO, Secretary of
the Department of Homeland Security,
Defendant.

Civ. No. 11-011-SLR

)
)

)

)

)

Henry Allen, Newark, Delaware. Pro se Plaintiff.
Jennifer Lynn Hall and Lesley F. Wolf, Assistant United States Attorneys, United States
Department of Justice, Wilmington, Delaware. Counsel for Defendant.

MEMORANDUM OPINION

Dated: February It.P , 2012
Wilmington, Delaware

ROBINSON, District Judge
I. INTRODUCTION
Plaintiff Henry Allen ("plaintiff') filed this employment discrimination lawsuit
pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5.

(0.1. 2) Pending before the court is defendant's motion to dismiss for improper venue or,
in the alternative, for failure to state a claim. (0.1. 10) For the following reasons, the
court will direct the Clerk of Court to transfer this action to the United States District
Court for the Northern District of Georgia.

II. BACKGROUND
Plaintiff, who currently resides in Newark, Delaware, filed this action alleging
employment discrimination based upon race, sex, and sexual orientation. Plaintiff was
employed as a transportation security officer at the Hartsfield Jackson International
Airport ("the Airport") in Atlanta, Georgia, at the time of events giving rise to his claims of
employment discrimination. He was terminated from his position on January 18, 2007.
Plaintiffs performance and/or disciplinary records are maintained at the local
Transportation Security Administration ("TSA") where he was employed as a
transportation security officer (i.e., the Airport). TSA official personnel files are located in
the TSA's human resources service office in Reston, Virginia. When a transportation
security officer's official personnel files are retired, they are archived at the Federal
Records Center in the State of Missouri. According to the Airport's TSA's human
resource specialist, the TSA would incur significant hardship due to the operational
needs of security screening at the Airport were it required to send members of its

screening workforce to another state during their scheduled shifts for court proceedings
as witnesses. (0.1. 11, Marcia Bearden aff.)
Plaintiff notes that it has been over four years since his separation from the TSA
and it is possible that his records are no longer at the Airport but were transferred to the
Federal Records Center. Plaintiff indicates that he does not have money to travel
between Delaware and Georgia. (0.1. 13)

III. STANDARD OF REVIEW
A court may dismiss a lawsuit for improper venue pursuant to Fed. R. Civ. P.
12(b)(3). The Federal Rules of Civil Procedure do not contain any specific venue
provisions or requirements. The court must determine whether venue is proper in
accordance with the appropriate statutes when deciding a motion to dismiss for improper
venue. Albright v. W L. Gord & Associates, Inc., 2002 WL 1765340, at *3 (D. Del. July
31, 2002) (citations omitted). Venue generally must be established for each separate
claim in a complaint. Stein v. Chemtex Int'l, Inc., 2004 WL 722252 (D. Del. Mar. 31,
2004). The moving party has the burden of proving that venue is improper. Id. (citing
Myers v. American Dental Ass'n, 695 F.2d 716, 724 (3d Cir. 1982)).

IV. DISCUSSION
Plaintiff raises employment discrimination claims pursuant Title VII and, therefore,
defendant moves for dismissal pursuant to 28 U.S.C. § 1406(a) on the grounds that
venue in a Title VII action is subject to the specific venue provisions of 42 U.S.C.

2

§ 2000e-5(f)(3). Defendant correctly notes that the court has the discretion pursuant to
§ 1406(a) to transfer the case to the United States District Court for the Northern District
of Georgia. 1
Plaintiff does not assert that venue is proper in the State of Delaware. Rather, he
argues that it has been four years since he was last employed with the TSA and he
presumes that his personnel records are no longer located in Atlanta. In addition, he
now resides in Delaware and does not have the money to travel between Delaware and
Georgia.
If a case is filed in the wrong court, § 1406(a) specifically provides that 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." 28 U.S.C. § 1406(a). The court may only
do so, however, if the defendant objects to venue. Henderson v. Keisling, 341 F. App'x
769 (3d Cir. 2009) (not published) (citing 28 U.S.C. § 1406(b)).
Section 2000e-5(f)(3) provides that a Title VII action 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,

1 Defendant also moves for dismissal pursuant to Fed. R. Civ. P. 12(b)(6). The
court will not address the merits of the motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) for failure to state a claim upon which relief may be granted. Instead, as will be
discussed, the court concludes that this lawsuit was filed in an improper venue.

3

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. 42 U.S.C. §
2000e-5(f)(3). Courts have determined that, for Title VII claims, Congress intended to
"limit venue to the judicial district concerned with the alleged discrimination." Stebbins v.
State Farm Mut. Auto Ins., Co., 413 F.2d 1100, 1102 (D.C. Cir. 1969). This venue
provision is exclusive. See Thurmon v. Marietta Dada Sys., 596 F.Supp. 367, 368 (M.D.
Pa.1984).
Plaintiff does not contest that: (1) the alleged unlawful employment practice
occurred at the Airport in Atlanta, Georgia; (2) the business records are located in
Georgia, Virginia, and/or Missouri; (3) he would have worked in Atlanta, Georgia but for
the alleged employment discrimination; and (4) the Airport is located in Atlanta, Georgia.
Notably, the alleged discrimination did not occur in Delaware, the employment records
are not kept in Delaware, and defendant's principal offices are not located in Delaware.
Thus, venue is not proper in this court.
The complaint could have, and should have, been filed in the United States
District Court for the Northern District of Georgia. Accordingly, in the interest of justice,
the court will transfer the case to the appropriate district, the Northern District of
Georgia.

V. CONCLUSION
For the above reasons, the Court will grant defendant's motion to the extent that
the case will be transferred to the United States District Court for the Northern District of

4

Georgia. The court will deny without prejudice the motion to dismiss pursuant to Fed. R.
Civ. P. 12(b)(6).
An appropriate order will issue.

5