Colbert v. Harris Co. Juvenile Probation

Filing 17

REPORT AND RECOMMENDATION: For the reasons stated above, the undersigned Magistrate Judge recommends that: (1) Defendant's motion be DENIED to the extent they seek dismissal under Rules 12(b)(2) and 12(b)(3) in this District; and (2) this acti on be transferred to the United States District Court for the Southern District of Texas, Houston Division, pursuant to 28 U.S.C. § 1406(a). Signed by Magistrate Judge John S. Bryant on 8/20/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

NATASHA S. COLBERT,
Plaintiff,
v.
HARRIS COUNTY JUVENILE
PROBATION
Defendant,

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Case No. 3:13-CV-00347
Judge Campbell/Bryant

TO: The Honorable Todd Campbell, District Judge
REPORT AND RECOMMENDATION
This matter is on referral to the undersigned for, inter alia, pretrial management of the
case, including recommendation for ruling on any dispositive motions (Docket Entry No. 3). On
April 16, 2013, Natasha S. Colbert (“Plaintiff”) sued Harris County Juvenile Probation
(“Defendant”) for discrimination based upon her disability (Docket Entry No. 1). In an order
allowing Plaintiff to proceed in forma pauperis, the Court construed Plaintiff’s complaint as
alleging a violation of the Americans with Disabilities Act (ADA) (Docket Entry No. 3). On
May 13, 2013, Defendant filed a motion to dismiss for lack of personal jurisdiction and improper
venue under Rules 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure (Docket Entry
No. 11). Defendant further filed a supplemental memorandum in support of this motion on June
28, 2013 (Docket Entry No. 16). For the reasons stated below, the undersigned Magistrate Judge
recommends that the case be transferred to the United States District Court for the Southern
District of Texas, Houston Division.

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Statement of Facts
Plaintiff is a resident of Antioch, Tennessee (Docket Entry No. 1, p.1). Defendant’s
place of business is in Houston, Texas (Id.). Plaintiff alleges that she was originally offered
employment by Defendant, but then Defendant withdrew the offer after Plaintiff flew to Texas
and they met in person on June 4, 2012 (Id. at 2–3). Plaintiff alleges that Defendant withdrew its
offer of employment because of her disability, a hearing impediment (Id. at 3).
Defendant contends that all of its employment practices occurred in Houston, all of its
employment records are held in Houston, and that Plaintiff’s employment would have occurred
in Houston (Docket Entry No. 11, p.4).
Analysis
The enforcement provisions of Title VII, including its rules regarding venue, are used for
ADA claims. 42 U.S.C. § 12117(a). Venue under Title VII is determined under the following
provision:
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. For purposes of sections 1404 and 1406 of Title 28, the
judicial district in which the respondent has his principle office shall in all cases
be considered a district in which the action might have been brought. 42 U.S.C §
2000e-5(f)(3).
Under 28 U.S.C. § 1406(a), “[t]he 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.” The Sixth Circuit has
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held that § 1406(a) “provides the basis for any transfer made for the purpose of avoiding an
obstacle to adjudication on the merits in the district court where the action was originally
brought. That defect may be either improper venue or lack of personal jurisdiction.” Martin v.
Stokes, 623 F.2d 469, 474 (6th Cir. 1980). See also Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466
(1962) (holding § 1406(a) allows the transfer of a case “whether the court in which it was filed
had personal jurisdiction over the defendants or not”).
Here, Plaintiff has identified Houston, Texas, as Defendant’s place of business (Docket
Entry No. 1, p.1). Plaintiff has not disputed Defendant’s assertions that Houston is where all of
Defendant’s employment practices occurred, where all of Defendant’s employment records are
held, and where she would have worked. Plaintiff has not submitted any factual or legal basis
for this Court to find venue is proper in the Middle District of Tennessee. Because it will avoid
an obstacle to adjudication on the merits, this case should be transferred to the proper venue, the
United States District Court for the Southern District of Texas, Houston Division.
Recommendation
For the reasons stated above, the undersigned Magistrate Judge recommends that: (1)
Defendant’s motion be DENIED to the extent they seek dismissal under Rules 12(b)(2) and
12(b)(3) in this District; and (2) this action be transferred to the United States District Court for
the Southern District of Texas, Houston Division, pursuant to 28 U.S.C. § 1406(a).
Under Rule 72(b) of the Federal Rules of Civil Procedure, any party has 14 days from
receipt of this Report and Recommendation in which to file any written objections to this
Recommendation with the District Court. Any party opposing said objections shall have 14 days
from receipt of any objections filed in this Report in which to file any responses to said
objections. Failure to file specific objections within 14 days of receipt of this Report and
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Recommendation can constitute a waiver of further appeal of this Recommendation. Thomas v.
Arn, 474 U.S. 140 (1985), Reh’g denied, 474 U.S. 1111 (1986).

ENTERED this 20th day of August, 2013.
s/ John S. Bryant
JOHN S. BRYANT
United States Magistrate Judge

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