Preston v. Wisconsin Staffing Services, Inc.

Filing 18

ORDER granting 2 Motion to Dismiss for Lack of Jurisdiction; denying 8 Motion to Transfer/Change Venue (Written Opinion). Signed by Senior Judge David S. Doty on 7/16/2012. (PJM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Civil No. 12-797(DSD/SER)
Catherina J. Preston,
Plaintiff,
ORDER

v.
Wisconsin Staffing Services,
Inc., doing business as
Nicolet Staffing,
Defendant.

Andrea B. Niesen, Esq. and Bird, Jacobsen & Stevens PC,
300 Third Avenue S.E., Suite 305, Rochester, MN 55904,
counsel for plaintiff.
Joel L. Aberg, Esq. and Weld, Riley, Prenn & Ricci, SC,
P.O. Box 1030, Eau Claire, WI 54702, counsel for
defendant.

This matter is before the court upon the motion to dismiss by
defendant Wisconsin Staffing Services, Inc. (Wisconsin Staffing)
and the motion to transfer/change venue by plaintiff Catherina J.
Preston.

Based on a review of the file, record and proceedings

herein, and for the following reasons, the motion to dismiss is
granted.

BACKGROUND
This

disability-discrimination

action

arises

termination of Preston by WSS in September 2007.

out

of

the

WSS is a

Wisconsin corporation with its principal office in Rhinelander,
Wisconsin.

It does not own or possess property in Minnesota.

Zunker Aff. ¶ 5.
¶ 6.

WSS does not transact business in Minnesota.

Preston worked for WSS in Ladysmith, Wisconsin.

the time Preston was a resident of Wisconsin.

Id. ¶ 8.

Id.
At

Id.

In February 2008, Preston filed a charge of discrimination
with the U.S. Equal Employment Opportunity Commission (EEOC).
Compl. ¶ VII.

The EEOC charge was cross-filed with the Wisconsin

Department of Workforce Development — Equal Rights Division.

The

EEOC determined that reasonable cause existed to believe that WSS
had violated the Americans with Disability Act (ADA).

Id. ¶ VIII.

On January 5, 2012, the EEOC issued a right-to-sue letter.

Id.

Preston filed the present action in the District of Minnesota by
mistake on March 29, 2012.

WSS moves to dismiss for lack of

personal jurisdiction1 and Preston moves to transfer this action to
Wisconsin.

DISCUSSION
Preston agrees that this court lacks personal jurisdiction
over WSS, and therefore, dismissal is proper unless the interest of
justice demand transfer.
court

...

and

that

“Whenever a civil action is filed in a

court

finds

that

there

is

a

want

of

jurisdiction, the court shall, if it is in the interest of justice,

1

The memorandum of WSS discusses the standard of Federal Rule
of Civil Procedure 12(b)(6), and suggests that the court may
consider additional affidavits without converting the motion to a
motion for summary judgment. The motion is properly brought under
Rule 12(b)(2).
2

transfer such action or appeal to any other such court in which the
action or appeal could have been brought at the time it was filed
or noticed.”

28 U.S.C. § 1631.

“Section 1631 was enacted so that

parties confused about which court has subject-matter jurisdiction
would not lose an opportunity to present the merits of a claim by
filing in the wrong court and then, upon dismissal, having the
claim barred by a statute of limitations.”2

Gunn v. U.S. Dept. of

Agriculture, 118 F.3d 1233, 1240 (8th Cir. 1997).

As a result, the

interests of justice demand transfer when “a plaintiff in good
faith filed in the wrong court.”

Id.

In the present case, it appears that the period for filing the
ADA claim has now lapsed.

There is no evidence that Preston filed

in the wrong forum to gain an advantage.3

But nothing in the

complaint suggests a possible basis for jurisdiction over WSS in
Minnesota.
that

the

See Compl. ¶¶ II, III.
charge

of

discrimination

Indeed, the complaint states
“was

cross-filed

with

the

2

Courts adopt different views of the scope of § 1631. See
Cimon v. Gaffney, 401 F.3d 1, 7 n.21 (1st Cir. 2005) (noting split
among circuit courts over application of § 1631 to personal
jurisdiction).
The Eighth Circuit has not determined whether
§ 1631 applies to personal jurisdiction. In this case, the plain
language of the statute controls.
See N. States Power Co. v.
United States, 73 F.3d 764, 766 (8th Cir. 1996). Congress did not
limit the type of jurisdiction addressed by § 1631, and the statute
supports
application
to
both
subject-mater
and
personal
jurisdiction.
As a result, the court need not resort to
legislative history, and finds that § 1631 applies to the present
case.
3

The court commends Preston’s counsel for her professionalism
and candor in her filings and at oral argument.
3

Wisconsin
Division.”

Department

of

Workforce

Development

Id. ¶ VII (emphasis added).

-

Equal

Rights

Moreover, had Preston

properly pleaded jurisdiction in accordance with Federal Rule of
Civil Procedure 8(a)(1), she would have discovered her error.
Under these circumstances, filing this action in Minnesota cannot
be characterized as good faith.

Accord Stanifer v. Brannan, 564

F.3d 455, 460 (6th Cir. 2009) (affirming denial of motion to
transfer based on “complete lack of diligence in determining the
proper forum in the first place.”); Cote v. Wadel, 796 F.2d 981,
985 (7th Cir. 1986) (analyzing denial of transfer under 28 U.S.C.
§ 1404).

Therefore, the interest of justice does not demand

transfer, and dismissal is warranted.

CONCLUSION
Accordingly, based on the above, IT IS HEREBY ORDERED that:
1.

The motion to dismiss [ECF No. 2] is granted; and

2.

The motion to transfer [ECF No. 8] is denied.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated:

July 16, 2012
s/David S. Doty
David S. Doty, Judge
United States District Court

4