NICHOLS v. VILSACK

Filing 34

MEMORANDUM OPINION AND ORDER: It is hereby ORDERED that Defendant's motion to dismiss or transfer the case 28 is DENIED. See document for details. Signed by Judge Randolph D. Moss on 5/2/2016. (lcrdm1, ) Modified on 5/2/2016 to add Memorandum and Opinion text(kt).

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

BARBARA A. NICHOLS,
Plaintiff,
v.

Civil Action No. 13-1502 (RDM)

THOMAS J. VILSACK, Secretary, U.S.
Department of Agriculture
Defendant.

MEMORANDUM OPINION AND ORDER
After the Court granted Defendant’s motion to dismiss, Plaintiff filed her first amended
complaint. Defendant’s motion to dismiss the case for improper venue under Rule 12(b)(3) or to
transfer the case pursuant to 28 U.S.C. § 1404(a) is now before the Court. Dkt. 28. As explained
below, the Court concludes that Defendant has waived the defense of improper venue and that a
transfer is not warranted. The Court, accordingly, DENIES Defendant’s motion.
I.

PROCEDURAL HISTORY

Barbara A. Nichols, proceeding pro se, filed this action against the Secretary of
Agriculture on September 30, 2013. Dkt. 1. As relevant here, her original complaint alleged that
while working for the Animal Plant and Health Inspection Service (“APHIS”) in Riverdale,
Maryland, she suffered employment discrimination on the basis of race, sex, and age in violation
of Title VII and the Age Discrimination and Employment Act (“ADEA”). Id. ¶¶ 1–4.
After receiving two extensions of time in which to answer or otherwise respond to the
complaint, Defendant filed a motion to dismiss under Rule 12(b)(6) on April 22, 2014, which
Plaintiff timely opposed on May 5, 2014. Dkts. 12, 14; Mar. 18, 2014 & Apr. 16, 2014 Minute

Orders. In its motion, Defendant raised defenses of failure timely to exhaust administrative
remedies and failure to state a claim upon which relief can be granted. See Dkt. 12. Defendant
did not raise improper venue as a defense at that time. See id.
On December 30, 2015, the Court granted Defendant’s motion and dismissed the
complaint without prejudice. Nichols v. Vilsack, No.13-01502, 2015 WL 9581799, at *1 (D.D.C.
Dec. 30, 2015). With respect to Plaintiff’s claims under Title VII and the ADEA, it held that
Defendant could not meet its burden of proving non-exhaustion at the motion to dismiss stage,
but that Plaintiff’s complaint indeed failed to allege facts sufficient to state a plausible claim that
she suffered a cognizable adverse employment action or was subjected to a hostile work
environment. See id. at *4–13. 1
On January 27, 2016, Plaintiff filed an amended complaint. Dkt. 23. Plaintiff again
alleged that while working for APHIS in Riverdale, she suffered discrimination on the basis of
race, sex, and age in violation of Title VII and the ADEA. Id. ¶¶ 2–4. On April 8, 2016,
Defendant moved to dismiss the case based on improper venue or to transfer venue to the District
of Maryland pursuant to 28 U.S.C. § 1404(a). Dkt. 28; Mar. 10, 2016 Minute Order. Although
this action was originally brought in 2013, Defendant asserted for the first time that venue is
improper in this district with respect to Plaintiff’s Title VII claims, although it concedes that
venue is proper with respect to her ADEA claims. See Dkt. 28 at 4–5. Plaintiff timely opposed
the motion. Dkt. 30.

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The Court also held that Plaintiff’s challenge to the administrative processing of her
discrimination complaint and her claim under 42 U.S.C. § 1981 were not legally cognizable. See
id. at *13–14.
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II.

ANALYSIS

Although venue for ADEA claims is determined by the general venue statute, 28 U.S.C.
§ 1391, Title VII includes its own venue provision. The provision states that:
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.
42 U.S.C. § 2000e-5(f)(3). Defendant moves to dismiss or to transfer this case for improper
venue pursuant to Rule 12(b)(3) of the Federal Rules of Civil Procedure and 28 U.S.C.
§ 1406(a). Dkt. 28 at 1. It contends that, under the Title VII venue provision, this Court is not
the proper venue for Plaintiff’s Title VII claims because (1) the alleged violations occurred in
Maryland, (2) its employment records are maintained electronically in Minnesota, and (3)
Plaintiff does not allege that she would have worked in the District of Columbia but for the
alleged violations. Dkt. 28 at 2. In the alternative, Defendant contends that the Court should
exercise its discretion to transfer the case pursuant to 28 U.S.C. § 1404(a) based on “the
convenience of parties and witnesses.” Id. at 6. Although Plaintiff lives in Maryland, she
opposes Defendant’s motion on the ground that a transfer would “plac[e] a heavy burden on
Plaintiff” by failing to ensure that the case is resolved “once and for all.” 2 Dkt. 30 at 2. The
Court addresses Defendant’s arguments under Rule 12(b)(3) and 28 U.S.C. § 1404(a) in turn.

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Plaintiff’s memorandum in opposition to the motion may not be a model of clarity, but
contrary to Defendant’s argument in reply, see Dkt. 31 at 1, she has not conceded the issue of
whether transfer or dismissal is proper.
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A.

Venue

The Court denies Defendant’s motion to the extent that it relies on Rule 12(b)(3) and 28
U.S.C. § 1406(a) because the government waived the defense of improper venue by failing to
include it in its first motion to dismiss. Rule 12(g)(2) provides that, absent exceptions not
relevant here, “a party that makes a motion under [Rule 12] must not make another motion under
this rule raising a defense or objection that was available to the party but omitted from its earlier
motion.” And under Rule 12(h)(1)(A), “[a] party waives [an improper venue] defense . . . by
. . omitting it from a motion in the circumstances described in Rule 12(g)(2).” See also 28
U.S.C. § 1406(b) (“Nothing in this chapter shall impair the jurisdiction of a district court of any
matter involving a party who does not interpose timely . . . objection to the venue.”); Tarta v.
Nation Care, Inc., 864 F. Supp. 2d 173, 175 n.2 (D.D.C. 2012) (holding Title VII defendant
waived any objection to venue by failing to assert such defense in its motion).
Here, Defendant “waived its objection to . . . venue by failing to assert [it] in its ‘first
defensive move.’” George Washington Univ. v. DIAD, Inc., No. 96-301, 1996 WL 470363, at *1
(D.D.C. Aug. 9, 1996). This objection was available when it filed its motion to dismiss
Plaintiff’s original complaint, yet it did not raise the issue at that time. As relevant to the venue
question, the original complaint contained the same allegations as the amended complaint—that
Plaintiff was discriminated against in violation of Title VII while employed by APHIS in
Riverdale, Maryland. Compare Dkt. 1 ¶¶ 1–4, with Dkt. 23 ¶¶ 2–4. That Plaintiff has filed an
amended complaint does not excuse Defendant’s waiver of a previously available defense. See
5C Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 1388 (3d ed.)
(“The filing of an amended complaint will not revive the right to present by motion defenses that
were available but were not asserted in timely fashion prior to the amendment of the

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pleading[.]”); see also Lederman v. United States, 131 F. Supp. 2d 46, 58 (D.D.C. 2001) (“‘A
defense available at the time of an initial response to a pleading may not be asserted when the
initial pleading is amended.’” (quoting Weber v. Turner, No. 80-412, 1981 WL 26999, at *3
(D.D.C. Oct. 2, 1980))).
B.

28 U.S.C. § 1404(a)

The Court denies on the merits Defendant’s motion to transfer the case to the District of
Maryland to the extent that it relies on 28 U.S.C. § 1404(a). “Unlike a motion to dismiss for
improper venue under Rule 12(b)(3), a motion to transfer venue under Section 1404(a) is not a
‘defense’ that must be raised by pre-answer motion or responsive pleading.” 14D Charles Alan
Wright & Arthur R. Miller, Federal Practice & Procedure § 3829 (4th ed.). Section 1404(a)
grants district courts discretion to transfer a case even though venue is proper “[f]or the
convenience of parties and witnesses, in the interest of justice.” “Courts assess motions to
transfer venue according to an ‘individualized, case-by-case consideration of convenience and
fairness,’” balancing the private and public interests at stake. Taylor v. Shinseki, 13 F. Supp. 3d
81, 89–90 (D.D.C. 2014). “The moving party bears the initial burden of establishing that transfer
is proper.” Id. at 89.
Here, Defendant’s contentions that “‘the balance of private and public interests favors a
transfer of venue’” are without merit. Id. Defendant’s principal argument for a § 1404(a)
transfer is that the case should be tried “in Maryland, particularly the Greenbelt Division”
because three of its key witnesses reside and work in Maryland. Dkt. 28 at 8. This argument
fails the straight-face test. Notwithstanding Defendant’s protestations to the contrary, the Court
trusts that if and when this case goes to trial, Defendant will be able to secure the testimony of
these witnesses—who are current employees of Defendant, see Dkt. 28-1 at 3 (Carlson Decl.

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¶ 8)—in the District of Columbia. It takes less than a half hour to travel from Greenbelt,
Maryland to the federal courthouse in the District of Columbia by Metro, at a cost of less than
$4.00. Defendant’s headquarters, moreover, is located in the District of Columbia and its
personnel records are maintained electronically. See id. at 2 (Carlson Decl. ¶ 4); Dkt. 28 at 2.
“The convenience of the parties and witnesses” thus provides no plausible support for a transfer.
On the other side of the balance, this Court has already invested significant time and
resources familiarizing itself with the case and ruling on Defendant’s prior motion to dismiss.
Transferring the case to Maryland at this juncture would simply delay the proceedings
unnecessarily. The Court is not persuaded otherwise by Defendant’s exhibit showing that the
median time interval between filing and disposition of a civil case is 0.5 months shorter in the
District of Maryland than in this district. See Dkt. 28-5 at 2 (Ex. C). Additionally, Defendant
admits that this district is the proper venue for Plaintiff’s ADEA claim and that judicial
efficiency favors litigating both the ADEA and Title VII claims in one jurisdiction. See Dkt. 28
at 5–6.
III.

CONCLUSION

For the foregoing reasons, it is hereby ORDERED that Defendant’s motion to dismiss or
transfer the case is DENIED.
So ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: May 2, 2016

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