Smalls v. Arising Industries, Inc.

Filing 2

OPINION AND ORDER transferring this case to the Brunswick Division of the United States District Court for the Southern District of Georgia pursuant to 28 U.S.C. § 1406(a). Signed by Judge William S. Duffey, Jr on 7/28/17. (ddm)

On July 26, 2017, Plaintiff, represented by counsel, filed his Complaint,
asserting a single claim for race-based discrimination, in violation of 42 U.S.C.
§ 1981. The Complaint heading indicates Plaintiff intended to file his Complaint
in the “Southern District of Georgia.” The citizenship of Defendant is not alleged.
Defendant’s principal office, and apparently its only location, is in Hazlehurst,
Georgia, in the Southern District. The Court also notes that the address for
Defendant’s corporate officer, and registered agent, is located in Douglas, Georgia,
which is also in the Southern District. (Compl. ¶ 6; Georgia Secretary of State,
2017 Annual Registration for Arising Industries, Inc., https://ecorp.sos.ga.gov/).
In Paragraph Three of his Complaint, Plaintiff asserts: “The unlawful
employment practices alleged in this Complaint were committed within this
district. In accordance with 28 U.S.C. § 1391 and 42 U.S.C. § 1981, venue is
appropriate in this Court.” (Compl. ¶ 3).
II.

DISCUSSION
A district court may raise the issue of defective venue sua sponte. See, e.g.,

Kapordelis v. Danzig, 387 F. App’x 905, 906-907 (11th Cir. 2010), cert. denied,
131 S.Ct. 1481 (2011); Berry v. Salter, 179 F. Supp. 2d 1345, 1350 (M.D. Ala.
2001); cf. Lipofsky v. New York State Workers Comp. Bd., 861 F.2d 1257, 1259
(11th Cir. 1988); Nalls v. Coleman Low Fed. Inst., 440 F. App’x 704, 706

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(11th Cir. 2011). When venue is improper, under 28 U.S.C. § 1406, a court “shall
dismiss, or if it be in the interest of justice, transfer such case to any district . . . in
which it could have been brought.” 28 U.S.C. § 1406(a).
Section 1981 does not contain an exclusive venue provision, and thus venue
in this case is governed by the general venue statute, 28 U.S.C. § 1391. See, e.g.,
Hayes v. RCA Service Co., 546 F. Supp. 661, 664-65 (D.D.C. 1982). Under
Section § 1391(b), venue is proper in “a judicial district in which a substantial part
of the events or omissions giving rise to the claim occurred.” 28 U.S.C.
§ 1391(b).1 Plaintiff is relying on where the alleged wrongful conduct occurred as
the basis for venue.
Here, Plaintiff does not allege any facts to support that venue is proper in the
Northern District of Georgia. The claimed Section 1981 violation—the race-based
discrimination—occurred at Defendant’s plant in Hazlehurst, Georgia. The City of
Hazlehurst is located in Jeff Davis County, within the Brunswick Division of the
United States District Court for the Southern District of Georgia.2 Because “a
substantial part of the events or omissions giving rise to” Plaintiff’s Section 1981
1

Venue is also proper in a judicial district where “a substantial part of
property that is the subject of the action is located.” 28 U.S.C. § 1391(b)(2).
Property is not at issue in this case and this subsection does not apply.
2
See http://www.hazlehurstga.gov/; www.gas.uscourts.gov/gas_county.pdf.
That Plaintiff may have intended to file his Complaint in the Southern District
further supports that this action should be transferred.
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claim occurred in Hazlehurst, venue in this action is proper in the United States
District Court for the Southern District of Georgia, not the Northern District of
Georgia. See 28 U.S.C. § 1391(b). The Court concludes that this action should be
transferred to the United States District Court for the Southern District of Georgia.
See 28 U.S.C. § 1406(a).
III.

CONCLUSION
For the foregoing reasons,
IT IS HEREBY ORDERED that this action is TRANSFERRED, pursuant

to 28 U.S.C. § 1406(a), to the Brunswick Division of the United States District
Court for the Southern District of Georgia.

SO ORDERED this 28th day of July, 2017.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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