GOFFNEY v. LOCKHEED MARTIN CORPORATION

Filing 11

OPINION. Signed by Judge Robert B. Kugler on 4/18/2011. (tf, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
OPINION
___________________________________
:
:
CAROL BELL, et al., on behalf of
:
themselves and those similarly situated,
:
:
Plaintiffs,
:
v.
:
:
LOCKHEED MARTIN CORPORATION, :
:
:
Defendant.
___________________________________ :
:
:
GWENDOLYN GOFFNEY, on behalf of
:
herself and those similarly situated,
:
:
Plaintiff,
:
:
v.
:
LOCKHEED MARTIN CORPORATION, :
:
:
Defendant.
___________________________________ :

(Doc. Nos. 273, 304)

Civil No. 08-6292 (RBK/AMD)

(Doc. No. 4)

Civil No. 10-4297 (RBK/AMD)

KUGLER, United States District Judge:
These are employment discrimination cases. The core of both matters is a Title VII class
action against Defendant Lockheed Martin Corporation (“Lockheed”) for gender discrimination.
All Plaintiffs allege that Lockheed’s company-wide policies and practices have a negative
disparate impact on female employees’ compensation and advancement. This dispute began
when Plaintiff Carol Bell filed her Complaint against Lockheed in 2008 (the “Bell Litigation”).
The Court subsequently permitted Ms. Bell to join two out-of-state Lockheed employees as
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named plaintiffs. Although neither of the new Plaintiffs satisfied Title VII’s venue provision,
Lockheed did not raise any objections regarding venue. In 2010, Ms. Goffney, an out-of-state
employee, filed a Complaint asserting, among other claims, the identical Title VII class action
claim alleged in the Bell Litigation (the “Goffney Matter”). Currently before the Court is Ms.
Bell’s motion for leave to file a Third Amended Complaint joining Ms. Goffney and two other
employees as named plaintiffs in the Bell Litigation. (Civ. No. 08-6292, Doc. No. 304). Ms.
Bell also moves, in the alterative, to consolidate the Goffney Matter with the Bell Litigation.
(Civ. No. 08-6292, Doc. No. 273). Lockheed’s principal objection to both motions is that Ms.
Goffney and one of the new plaintiffs seeking joinder are out-of-state employees who do not
satisfy Title VII’s venue provision. Also before the Court is Lockheed’s motion to dismiss Ms.
Goffney’s Complaint for improper venue. (Civ. No. 10-4297, Doc. No. 4). Because Lockheed
waived the right to object to joinder of out-of-state employees based on improper venue, the
Court grants Ms. Bell’s motion for leave to file the proposed Third Amended Complaint.
Because Ms. Goffney has represented to the Court that she will dismiss her Complaint against
Lockheed if she is joined as a named plaintiff in the Bell Litigation, the Court stays decision
regarding Ms. Bell’s motion to consolidate and Lockheed’s motion to dismiss for ten days so that
Ms. Goffney may dismiss her Complaint.
I.

BACKGROUND
Ms. Bell works for Lockheed at its Mt. Laurel, New Jersey facility. She has been

employed by Lockheed at various times from 1978 until the present, for a total of approximately
twenty-one years. Ms. Bell filed her Complaint against Lockheed in December 2008, asserting
individual and class claims for discrimination under Title VII and the New Jersey Law Against
Discrimination (“NJLAD”) based on a disparate impact theory. Ms. Bell claims that Lockheed’s

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company-wide policies and practices have a disparate impact on female employees’
compensation and advancement. Ms. Bell also asserts individual claims for retaliation under
Title VII and the NJLAD. Ms. Bell’s Complaint asserts that venue in this Court is proper under
Title VII’s venue provision, which provides that venue is proper in any district where: (1) the
alleged discrimination occurred; (2) the employment records relevant to such practice are
maintained and administered; or (3) the plaintiff would have worked but for the alleged
discrimination. (Am. Compl. ¶ 12 (citing 42 U.S.C. § 2000e-5(f)).
In October 2009, Ms. Bell moved to file a Second Amended Complaint1 adding Linda
Abt and Maxine Walker as named plaintiffs. Ms. Abt was employed by Lockheed at its King of
Prussia, Pennsylvania facility. Ms. Walker was employed by Lockheed while residing in Texas.
Neither Ms. Abt nor Ms. Walker were employed by Lockheed in New Jersey and neither alleges
that Lockheed discriminated against them in New Jersey or that they would have worked for
Lockheed in New Jersey but for the alleged discrimination. Lockheed opposed Ms. Bell’s
motion to join Ms. Walker and Ms. Abt, but did not raise improper venue as an objection to
joinder.
Magistrate Judge Donio granted Ms. Bell leave to file her Second Amended Complaint
joining Ms. Abt and Ms. Walker. Lockheed appealed Magistrate Judge Donio’s ruling to this
Court, but did not raise improper venue regarding Ms. Abt and Ms. Walker’s claims. This Court
affirmed Magistrate Judge Donio’s Order. Lockheed then filed an Answer to Plaintiffs’ Second
Amended Complaint. Lockheed’s Answer asserted the following affirmative defense regarding
venue: “Venue is improper for all putative defendants except Lockheed Martin.” (Answer to
Second Am. Compl., at 66) (emphasis added).

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Ms. Bell filed an Amended Complaint as of right in March 2009.

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Sometime before August 2010, Plaintiffs’ counsel requested that Lockheed consent to
adding Ms. Goffney as a named Plaintiff in the Bell Litigation. (See Tr. of Aug. 11, 2010 Hr’g,
Civ. No. 08-6292, Doc. No. 245, at 31-32). Lockheed did not consent, and, because the EEOC
issued Ms. Goffney a right-to-sue letter requiring her to file suit within ninety days, Plaintiffs’
counsel filed a separate action against Lockheed on behalf of Ms. Goffney in August 2010.
Plaintiffs’ counsel maintains that it filed a separate complaint on behalf of Ms. Goffney solely as
a protective measure because Lockheed took the position that moving to join a party in an
existing action does not toll the ninety-day period for filing a claim in Court. (Id.).
Ms. Goffney’s Complaint asserts that Lockheed violated Title VII because its companywide policies and practices have a disparate impact on female employees’ compensation and
advancement. Ms. Goffney’s Complaint includes a class claim under Title VII that is identical to
the class claim in the Bell Litigation, as well as an individual retaliation claim under Title VII.
At a hearing before Magistrate Judge Donio regarding a discovery dispute, Lockheed’s counsel
characterized the relationship between the Bell Litigation and the Goffney Matter as follows:
[T]here is now a Complaint that has been filed on behalf of
Gwendolyn Goffney in New Jersey within the last week or two
that plaintiffs have acknowledged that they are planning to move to
consolidate with the current lawsuit. So these charging parties, all
of them are alleging sex discrimination, have virtually the exact
same allegations in their EEOC charges as Plaintiff Carol Bell and
the other two named plaintiffs had in their EEOC charges, are
clearly part and parcel of the same group . . . .
(Id. at 30).
In September 2010, Lockheed moved to dismiss Ms. Goffney’s Complaint for improper
venue. Lockheed argues that, pursuant to Title VII’s specific venue provision, venue is not
proper in this Court because Ms. Goffney resides in Texas, Lockheed’s alleged discrimination

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did not occur in New Jersey, and Ms. Goffney does not allege that she would have worked for
Lockheed in New Jersey but for the alleged discrimination.
In October 2010, Plaintiffs moved to consolidate the Goffney Matter with the Bell
Litigation for all purposes. Plaintiffs argue that consolidation is appropriate pursuant to Rule
42(a) because the actions involve common issues of law and fact. In December 2010, Plaintiffs
moved for leave to file a Third Amended Complaint adding Ms. Goffney, Dianne Sosa, and
Andrea de la Torre as named plaintiffs. Ms. Sosa resides in Annapolis, Maryland and is a
current Lockheed employee. She asserts the same gender discrimination disparate-impact claim
under Title VII and a retaliation claim under Title VII. Ms. de la Torre resides in Cherry Hill,
New Jersey and is a current Lockheed employee. She asserts gender discrimination disparateimpact and retaliation claims under Title VII and the NJLAD. The Third Amended Complaint
also alleges that Lockheed terminated both Ms. Abt and Ms. Walker in 2010 and includes other
updated facts.
Lockheed opposes Plaintiffs’ motion to consolidate and for leave to amend. Lockheed
argues that the Court should deny Plaintiffs’ motions because this Court is not the proper venue
for Ms. Goffney or Ms. Sosa’s claims. Lockheed also argues that Plaintiffs’ motion to amend is
untimely and that amendment will unduly prejudice Lockheed because it will further delay
discovery and final adjudication of the Bell Litigation. All three motions are fully briefed and
are ripe for decision.

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II.

DISCUSSION
A. The Bell Plaintiffs’ Motion to Amend to Join Ms. Goffney, Ms. Sosa, and Ms. de
la Torre2
Rule 20(a)(1) provides that plaintiffs may be joined if: “(A) they assert any right to relief

jointly, severally, or in the alternative with respect to or arising out of the same transaction,
occurrence, or series of transactions or occurrences; and (B) any question of law or fact common
to all plaintiffs will arise in the action.” The requirements prescribed by Rule 20(a)(1) are to be
liberally construed in the interest of convenience and judicial economy. Swan v. Ray, 293 F.3d
1252, 1253 (11th Cir. 2002). The Supreme Court has expressed a policy that strongly
encourages joinder consistent with fairness to the parties. See United Mine Workers of Am. v.
Gibbs, 383 U.S. 715, 724 (1966). Consequently, “joinder falls within the discretion of the court
and is to be liberally granted.” Collins v. Cnty. of Gloucester, No. 06-2589, 2008 U.S. Dist.
LEXIS 29327, at *6 (D.N.J. Apr. 9, 2008); see Snodgrass v. Ford Motor Co., No. 96-1814, 2002
U.S. Dist. LEXIS 13421, at *5-6 (D.N.J. Mar. 28, 2002). Nevertheless, “[i]n exercising its
discretion [whether to permit joinder], the District Court must provide a reasoned analysis that
comports with the requirements of the Rule, and that is based on the specific fact pattern
presented by the plaintiffs and claims before the court.” Hagan v. Rogers, 570 F.3d 146, 157 (3d
Cir. 2009).
Lockheed does not contest that Ms. Goffney, Ms. Sosa, and Ms. de la Torre’s claims are
part of the same transaction or occurrence and involve common questions of law or fact. Rather,
Lockheed asserts the following three objections to joinder: (1) Plaintiffs’ motion is untimely
because they made the motion after the deadline contained in the operative Scheduling Order; (2)
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In addition to joining Ms. Goffney, Ms. Sosa, and Ms. de la Torre as named Plaintiffs, the Third Amended
Complaint includes additional factual allegations regarding Ms. Walker, Ms. Abt, and Ms. Bell’s claims. Lockheed
does not take issue with those amendments. Lockheed objects only to Plaintiffs’ joinder of the new named
plaintiffs.

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the addition of three new Plaintiffs at this stage of the litigation will prejudice Lockheed; and (3)
this Court is the improper venue for Ms. Goffney and Ms. Sosa’s Title VII claims. The Court
rejects all three arguments and grants Plaintiffs leave to file the Third Amended Complaint.
1. Timeliness
Notwithstanding Rule 20’s liberal amendment standards, leave to amend may be
governed by Rule 16 if an operative scheduling order sets a timeline for joinder. Rule 16(a)
requires the court to enter a scheduling order that limits “the time to join other parties, amend
pleadings, complete discovery, and file motions.” Once the court enters a scheduling order
pursuant to Rule 16(a), it may “not be modified except upon a showing of good cause and by
leave of the [court].” Fed. R. Civ. P. 16(b); see E. Minerals & Chems. Co. v. Mahan, 225 F.3d
330, 340 (3d Cir. 2000). “To establish good cause under Rule 16, the party seeking the
extension must show that the deadlines set forth in the scheduling order ‘cannot reasonably be
met despite the diligence of the party seeking the extension.’” Rowe v. E.I. du Pont de Nemours
& Co., No. 06-3080, 2010 U.S. Dist. LEXIS 16185, at *13-14 (D.N.J. Feb. 24, 2010) (quoting
Fed. R. Civ. P. 16(b) advisory committee’s notes to 1983 amendments)). “Good cause may also
be satisfied if the movant shows that the inability to comply with a scheduling order is ‘due to
any mistake, excusable neglect or any other factor which might understandably account for
failure of counsel to undertake to comply with the Scheduling Order.’” Id. at *14 (quoting
Newton v. Dana Corp., Parish Div., No. 94-4958, 1995 U.S. Dist. LEXIS 8473, at *3 (E.D. Pa.
June 21, 1995)).
On July 31, 2009, Magistrate Judge Donio entered a Scheduling Order stating that the
“time within which to seek amendments to the pleadings or to add new parties will expire on
October 30, 2009.” (Civ. No. 08-6292, Doc. No. 35). The Scheduling Order did not set a

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deadline for the close of discovery. On October 28, 2009, Magistrate Judge Donio entered a
comprehensive Scheduling Order that provided deadlines for, among other things, expert
discovery, depositions, and written discovery. (Civ. No. 08-6292, Doc. No. 29). The
comprehensive Scheduling Order provided a discovery end-date of April 30, 2010, but did not
provide any deadline for motions to amend the pleadings or to add new parties.
On December 8, 2009, at a hearing before Magistrate Judge Donio, the parties discussed
the necessity of amending the Scheduling Orders in light of various pending motions, including
Ms. Bell’s motion to amend. (Tr. of Dec. 8, 2009 Hr’g, Civ. No. 08-6292, Doc. No. 120, at 84).
Magistrate Judge Donio requested that the parties agree on a new scheduling order. On January
19, 2010, the parties reported to Magistrate Judge Donio that they could not agree on a new
schedule while the motion to amend was outstanding. As a result, a new scheduling order was
not adopted.
On November 9, 2010, at a hearing before Magistrate Judge Donio, Plaintiffs’ counsel
raised the possibility of moving to add Ms. Goffney and two new plaintiffs. Although Lockheed
argued that the joinder of new plaintiffs at that juncture would prejudice Lockheed, it did not
argue that such a motion was time-barred because of an operative scheduling order. Indeed,
Plaintiffs’ counsel asserted at the hearing: “There’s no deadline so far as motion[s] to amend.”
(Tr. of Nov. 11, 2010 Hr’g, Civ. No. 08-6292, Doc. No. 285, at 58). Neither Magistrate Judge
Donio nor Lockheed’s counsel raised any objection to that assertion.
In light of these circumstances, the Court finds that Plaintiffs’ motion to amend is not
time-barred and that there is good cause for not strictly enforcing the July 31, 2009 Scheduling
Order. It is far from clear whether the original Scheduling Oder was implicitly superseded by
the comprehensive Scheduling Order and/or suspended by the subsequent motion practice.

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Indeed, Plaintiff’s comments at the November 11, 2010 hearing suggest that all parties
understood that the original Scheduling Order was no longer operative and that a new schedule
was necessary. The Court finds that these circumstances “understandably account for” for
Plaintiffs’ belief that it was not time-barred from making a motion to amend notwithstanding the
July 31, 2009 Scheduling Order. See Rowe, 2010 U.S. Dist. LEXIS 16185, at *14.
Additionally, as discussed below, the Court does not foresee any significant prejudice to
Lockheed by joining these new Plaintiffs at this juncture. Thus, the Court concludes that the July
31, 2009 Scheduling Order does not bar Plaintiffs’ motion to amend.
2. Prejudice
Lockheed argues that even if Plaintiffs’ motion is not barred by the Scheduling Order,
Lockheed will be prejudiced by joining new plaintiffs at this juncture. Specifically, Lockheed
argues that the addition of new plaintiffs will unnecessarily prolong discovery because it will
require new discovery particular to each plaintiff’s employment. Lockheed also argues that the
addition of Ms. Goffney, Ms. Sosa, and Ms. de la Torre is unnecessary because their interests are
protected as members of the putative class. Plaintiffs respond that adding new plaintiffs is
important to ensure adequate class representation, discovery remains ongoing, and delay is alone
insufficient to establish prejudice.
“The court has discretion to deny joinder if it determines that the addition of the party
under Rule 20 will . . . result in prejudice, expense or delay.” Cincerella v. Egg Harbor Twp.
Police Dep’t, No. 06-1183, 2007 U.S. Dist. LEXIS 66283, at *8 (D.N.J. Sept. 6, 2007) (quoting 7
Charles Alan Wright, et al., Federal Practice and Procedure: §1652, at 395) (3d ed. 2001)).
However, “[t]he passage of time, without more, does not require that a motion to amend a
complaint be denied.” Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984). Denial is

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appropriate only if delay “become[s] ‘undue,’ placing an unwarranted burden on the court,” or if
it “become[s] ‘prejudicial,’ placing an unfair burden on the opposing party.” Id. “Implicit in the
concept of ‘undue delay’ is the premise that [p]laintiffs, in the exercise of due diligence, could
have sought relief from the court earlier.” In re Pressure Sensitive Labeldstock Antitrust Litig.,
No. MDL.03-1556, 2006 U.S. Dist. LEXIS 9827, at *1 (M.D. Pa. Jan. 3, 2006). “Tactical
decisions and dilatory motives may lead to a finding of undue delay.” Leary v. Nwosu, No. 055769, 2007 U.S. Dist. LEXIS 74202, at *4 (E.D. Pa. Oct. 2, 2007). However, “[t]here is no
presumptive period in which a motion for leave to amend is deemed ‘timely’ or in which delay
becomes ‘undue.’” Arthur v. Maersk, Inc., 434 F.3d 196, 205 (3d Cir. 2006). “Whether delay is
undue depends on the facts and circumstances of the case.” Nat’l Recovery Agency, Inc. v. AIG
Domestic Claims, Inc., No. 05-0033, 2006 U.S. Dist. LEXIS 27889, at *4 (M.D. Pa. May 9,
2006).
The Court finds that Plaintiffs have not engaged in undue delay and that Lockheed will
not be prejudiced by Plaintiffs’ proposed amendments. First, it does not appear that additional
discovery particular to Ms. Goffney, Ms. Sosa, and Ms. de la Torre will cause significant delay.
The core of all Plaintiffs’ claims is gender discrimination under Title VII based on disparate
impact. All Plaintiffs claim that Lockheed’s company-wide policies and practices have a
disparate impact on female employees’ compensation and advancement. The bulk of discovery
necessary to develop this claim is not particular to any party. More importantly, the current
Plaintiffs have already sought discovery relevant to company-wide gender discrimination based
on disparate impact. Thus, the only additional discovery created by adding these new Plaintiffs
is discovery particular to the new Plaintiffs’ employment at Lockheed. Because discovery

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remains open, the Court finds that any new discovery will not significantly burden Lockheed or
substantially delay this matter.
Second, Plaintiffs did not unduly delay the joinder of new Plaintiffs or act with dilatory
motives. In opposing Ms. Bell’s motion to amend to add Ms. Walker, Lockheed argued that Ms.
Walker could not be added as a named plaintiff because the EEOC had not yet issued her a rightto-sue letter. In granting leave to join Ms. Walker, Magistrate Judge Donio held that “Ms.
Walker’s Title VII proposed claims are not at this time premature” because the EEOC issued a
right-to-sue letter while the motion was pending. (Civ. No. 08-6292, Doc. No. 207, at 28).
Plaintiffs argue that, in light of Lockheed’s position and Magistrate Judge Donio’s finding, they
waited to join new plaintiffs until they could demand right-to-sue letters from the EEOC
pursuant to 29 C.F.R. § 1601.28, which requires the EEOC to issue a right-to-sue letter after 180
days from the filing of a charge of discrimination.
Without addressing whether a plaintiff must obtain a right-to-sue letter before moving to
join an existing class action, the Court finds that Plaintiffs did not unduly delay joinder or act
with dilatory motives. Ms. Goffney received her right-to-sue letter in May 2010 and filed her
Complaint approximately ninety days later in August 2010. Ms. Sosa and Ms. de la Torre
requested right-to-sue letters from the EEOC on December 14 and 17, 2010 respectively.
Plaintiffs moved to join all three women on December 21, 2010. The timing of joinder was
apparently driven by Plaintiffs’ perception, created in part by Lockheed’s position, that they
could not add new plaintiffs until those plaintiffs were entitled to obtain right-to-sue letters from
the EEOC. Thus, Plaintiffs’ decision to wait for EEOC letters before moving to add new
plaintiffs appears to be driven by a desire to avoid the multiplication of motions that would likely

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occur if they moved to amend before obtaining right-to-sue letters. Plaintiffs did not unduly
delay joinder of new plaintiffs.
3. Venue
Lockheed’s principal objection to Ms. Goffney’s action and to Plaintiff’s motion to add
Ms. Sosa is that this Court is the improper venue for their Title VII claims.3
“In ruling upon the defendants’ motion to dismiss for lack of proper venue, the Court
‘accepts the plaintiffs[’] well-pled factual allegations regarding venue as true, . . . draws all
reasonable inferences from those allegations in the plaintiffs[’] favor, and …resolves any factual
conflicts in the plaintiffs[’] favor . . . . The court, however, need not accept the plaintiffs[’] legal
conclusions as true.’” Quarles v. Gen. Inv. & Dev. Co., 260 F. Supp. 2d 1, 8 (D.D.C. 2003)
(quoting James v. Booz-Allen & Hamilton, Inc., 227 F. Supp. 2d 16, 20 (D. D.C. 2002) (citation
omitted)). A defendant seeking dismissal or transfer for improper venue bears the burden of
showing that venue is improper. See Myers v. Am. Dental Ass’n, 695 F.2d 716, 724-25 (3d Cir.
1982) (defendant moving to dismiss for improper venue pursuant to Rule 12(b)(3) bears burden
of proving improper venue); Colon v. Pitney Bowes Corp., No. 06-5016, 2007 U.S. Dist. LEXIS
9454, at *6-7 (D.N.J. Feb. 8, 2007) (the party moving for transfer of venue pursuant to 28 U.S.C.
§ 1404(a) bears the burden of showing that an alternative forum is more appropriate).
Venue in civil actions is generally governed by 28 U.S.C. § 1391. However, Title VII
contains its own venue provision. See 42 U.S.C. § 2000e-5(f)(3). Title VII’s venue provision is
“mandatory and well-settled, thereby rendering other general venue statutes inapplicable.”
Vincent v. Woods Servs., No. 08-1007, 2008 U.S. Dist. LEXIS 27781, at *2 (D.N.J. Apr. 4,
2008); see Colon, 2007 U.S. Dist. LEXIS 9454, at *6-7. Consequently, “[a] civil action in which
3

Lockheed does not raise a venue objection to joinder of Ms. de la Torre because Lockheed employed Ms. de la
Torre in New Jersey, thereby satisfying Title VII’s venue provision. See 42 U.S.C. § 2000e-5(f)(3) (stating that
venue is proper in the district where the alleged unlawful employment practice occurred).

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claims are asserted pursuant to Title VII . . . must be brought in the judicial district where (1) the
alleged unlawful employment practice was committed, (2) the employment records relevant to
such practice are maintained and administered, or (3) the plaintiff would have worked but for
such practice.” Colon, 2007 U.S. Dist. LEXIS 9454, at *6-7 (citing 42 U.S.C. § 2000e-5(f)(3)
and 42 U.S.C. § 12117(a)).
However, a defendant may waive objections to venue because venue is not jurisdictional.
D’Addario v. Geller, 264 F. Supp. 2d 367, 392 (E.D. Va. 2003). “Jurisdiction is the power to
adjudicate, while venue relates to the place where judicial authority may be exercised and is
intended for the convenience of the litigants.” Id. Thus, unlike objections to subject-matter
jurisdiction, which may not be waived, a party may waive objections to venue. See Neirbo v.
Bethlehem Shipbuilding Corp., 308 U.S. 165, 168 (1939) (holding that an objection to venue
“may be lost by failure to assert it seasonably, by formal submission in a cause, or by submission
through conduct.”).
Pursuant to Rule 12(h)(1), a party waives objections to venue by not raising those
objections in a motion before a responsive pleading or in the first responsive pleading. See S.
Seas Catamaran, Inc. v. Motor Vessel Leeway, 120 F.R.D. 17, 20 (D.N.J. 1988) (holding that
defendant waived objections to venue by not including them in pre-answer motion). The only
exception to Rule 12(h) is when the objection to venue was not available at the time the party
answered or made a pre-answer motion. See Fed. R. Civ. P. 12(g); Rowley v. McMillan, 502
F.2d 1326, 1333 (4th Cir. 1974). However, “[t]he 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 pleading.” 5C Charles Alan Wright, et al., Federal
Practice & Procedure § 1388, at 491 (4th ed. 2009); Rowley, 502 F.2d at 1332-33.

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Here, Plaintiffs argue that Lockheed waived its right to object to venue regarding Ms.
Goffney and Ms. Sosa because Lockheed previously waived any objections regarding Ms. Abt
and Ms. Walker, and the four women’s allegations are indistinguishable for purposes of venue.
Lockheed responds that Title VII’s venue provision is fact-specific and that Lockheed was not
required to object to venue regarding Ms. Sosa and Ms. Goffney until it became aware of their
particular allegations. Thus, the issue before the Court is whether Lockheed’s waiver of venue
as to Ms. Abt and Ms. Walker constitutes waiver of venue as to Ms. Sosa and Ms. Goffney.4 The
Court concludes that Lockheed waived its right to object to venue regarding Ms. Sosa and Ms.
Goffney.
The parties cite only one case directly addressing the issue and the Court’s independent
research did not reveal any additional authority. In Lanehart v. Devine, 102 F.R.D. 592, 593 (D.
Md. 1984), seven federal firefighters brought class claims against the government under the
Tucker Act, 28 U.S.C. § 1346(a)(2), in the United States District Court for the District of
Maryland. The Tucker Act’s venue provision provides that “‘any civil action against the United
States . . . may be prosecuted only . . . in the judicial district where the plaintiff resides.’” Id.
(quoting 28 U.S.C. § 1402). The putative class was broad and included other similarly situated
persons outside of Maryland. Id. at 594-95. Additionally, one of the named plaintiffs was not a
Maryland resident. Id. at 593. However, the government answered the complaint without
objecting to venue in the District of Maryland. Id. The plaintiffs subsequently moved to join

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The Court rejects Lockheed’s argument that it did not waive objections as to venue regarding Ms. Abt and Ms.
Walker. In response to Plaintiffs’ allegation in their Second Amended Complaint that venue in this Court is proper,
Lockheed answered that this was a conclusion of law “as to which no response is necessary.” (Answer to Second
Am. Compl., ¶ 16). However, in Lockheed’s affirmative defenses, it pleads that “[v]enue is improper as to all
putative defendants except Lockheed Martin.” (Id. at 66). By conceding that venue was proper as to all claims
against Lockheed, Lockheed necessarily waived any objections to venue in this Court regarding Ms. Abt and Ms.
Walker.

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new plaintiffs, several of whom were not residents of Maryland. Id. The government opposed
joinder of the new plaintiffs based on improper venue. Id.
The court held that a defendant in a class action can waive its right to object to venue
regarding subsequently named plaintiffs if the defendant previously waived objections to venue
regarding similarly situated named plaintiffs. Id. at 594-95. The court further held that the
government waived any objections to venue regarding the new plaintiffs because: (1) the
defense of improper venue was originally available at the time the government filed its answer;
and (2) the broad scope of the putative class put the government “on notice that plaintiffs other
than those named, for whom venue might be improper, might exist.” Id.
The Court finds Lanehart persuasive. First, Rule 12(h)(1) requires that a defendant raise
threshold objections such as venue as soon as they are “available.” See Fed. R. Civ. P.
12(h)(1)(A) (requiring motions to be made as provided by Rule 12(g)(2), which provides that a
party must consolidate all motions under Rule 12 that are “available to the party”); Briksza v.
Moloney, No. 08-1785, 2009 U.S. Dist. LEXIS 52205, at *12-13 (D.N.J. June 19, 2009). “‘The
law is clear that in determining whether venue for a putative class action is proper, courts are to
look only at the allegations pertaining to the named representatives,’” Tahir, 2009 U.S. Dist.
LEXIS 115879, at *15 (quoting Cook v. UBS Fin. Servs., Inc., No. 05-8842, 2006 U.S. Dist.
LEXIS 12819, at *6 n.2 (S.D.N.Y. Mar. 21, 2006)), and each individual named plaintiff must
satisfy the applicable venue provision, Quarles, 260 F. Supp. 2d at 13 (D.D.C. 2003). Thus,
when Ms. Abt and Ms. Walker were joined as out-of-state named Plaintiffs, the defense of
improper venue was “available” to Lockheed. Rule 12(h) therefore required Lockheed to raise
or preserve that defense in its pre-answer motion to dismiss or responsive pleading. Lockheed
did not do so, and Rule 12(h)(1) prohibits it from reviving that same objection to venue

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regarding Ms. Goffney and Ms. Sosa. Cf. Rowley, 502 F.2d at 1333 (“[A]n amendment to the
pleadings permits the responding pleader to assert only such of those defenses which may be
presented in a motion under Rule 12 as were not available at the time of his response to the
initial pleading. An unasserted defense available at the time of response to an initial pleading
may not be asserted when the initial pleading is amended.”).
Second, Lanehart furthers Rule 12(h)’s underlying purpose of ensuring that threshold
objections such as improper venue are not asserted piecemeal. See Flory v. United States, 79
F.3d 24, 25 (5th Cir. 1996) (“The purpose of the Rule 12(h)(1) automatic waiver provision is to
encourage the consolidation of motions and discourage the dilatory device of making them in a
series.”). When Ms. Goffney and Ms. Sosa were joined, Lockheed had an opportunity to raise
objections to venue based on the joinder of out-of-state Plaintiffs. Lockheed chose not to object
to venue regarding Ms. Goffney and Ms. Sosa. It would undermine the purpose of Rule 12(h) to
now permit Lockheed to raise the exact same objection to venue regarding subsequently joined
out-of-state Plaintiffs. If Rule 12(h)’s automatic wavier provision has any application in class
actions such as this, it must require defendants to assert the threshold objections enumerated in
Rule 12(h)(1) at the first opportunity.
Third, Lockheed nevertheless argues that Lanehart is “of no value to the Court” because
Lanehart did not specifically address Title VII’s venue provision, which requires a “detailed”
venue analysis “that must be addressed on an individual plaintiff basis.” (Letter from Cheryl M.
Stanton, Esq. dated Feb. 11, 2011, at 4). Even if the Court accepts Lockheed’s incorrect
assertion that Lanehart did not address a venue provision analogous to Title VII’s venue
provision,5 there are no pertinent factual differences between Ms. Abt and Ms. Walker’s claims

5

Lockheed asserts that “Lanehart was a FLSA [sic] which, unlike Title VII, involves no exclusive and detailed
venue analyses that must be addressed on an individual plaintiff basis.” (Letter from Cheryl M. Stanton, Esq. dated

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and Ms. Sosa and Ms. Goffney’s claims. None of the four women reside or work in New Jersey,
none allege that Lockheed discriminated against them in New Jersey, and none allege that they
would have worked for Lockheed in New Jersey but for the alleged discrimination. See 42
U.S.C. § 2000e-5(f)(3). Under Title VII’s venue provision, this Court is not the proper venue for
any of their Title VII claims. Thus, Ms. Goffney and Ms. Sosa’s new allegations do not add any
new facts relevant to the venue analysis. If Lockheed wished to object to joinder of out-of-state
plaintiffs based on improper venue, it should have raised that objection when Ms. Abt and Ms.
Walker were joined.
B. Plaintiffs’ Motion to Consolidate and Lockheed’s Motion to Dismiss
Ms. Goffney represents to the Court that “[s]hould the Court grant permission for
plaintiffs to file the Third Amended Complaint, Ms. Goffney would dismiss her separately
pending action to join [the Bell Litigation.].” (Pls.’ Br. in Support of Leave to File Third Am.
Compl., at 2 n.1). As discussed above, Ms. Goffney is properly added to the Bell Litigation as a
named Plaintiff. If Ms. Goffney dismisses her Complaint, Plaintiffs’ motion to consolidate and
Lockheed’s motion to dismiss will be moot. Thus, the Court stays decision regarding Plaintiffs’
motion to consolidate and Lockheed’s motion to dismiss for ten days from the date that Plaintiffs
file the proposed Third Amended Complaint pursuant to L. Civ. R. 7.1(f) so that Ms. Goffney
may dismiss her Complaint in the Goffney Matter.

Feb. 11, 2011, at 4). Lockheed is incorrect. Although the plaintiffs in Lanehart asserted FLSA claims, they sought
damages against the federal government under the Tucker Act. The case therefore turned on the Tucker Act’s
specific venue provision. See Lanehart, 102 F.R.D. at 593 (“The applicable venue provision under the Tucker Act,
28 U.S.C. § 1402, provides . . . .”). Contrary to Lockheed’s assertion, the Tucker Act’s venue provision, like Title
VII, provides that venue is determined on an “individual plaintiff basis.” See 28 U.S.C. § 1402 (stating that venue is
proper in the district “where the plaintiff resides”) (emphasis added).

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III.

CONCLUSION
For the reasons discussed above, the Court grants Plaintiffs’ motion for leave to file the

proposed Third Amended Complaint in the Bell Litigation. Because Ms. Goffney has
represented to the Court that she will dismiss her Complaint in the Goffney Matter should the
Court grant Plaintiffs’ motion for leave to amend, the Court stays decision regarding Plaintiffs’
motion to consolidate and Lockheed’s motion to dismiss for ten days from the date that Plaintiffs
file the proposed Third Amended Complaint pursuant to L. Civ. R. 7.1(f).

/s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

Dated: 4/18/2011

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