Gong v. Penatta et al

Filing 63

ORDER TRANSFERRING Action to Northern District of Texas, Dallas Division 43 , 48 ; ORDER DENYING Miscellaneous Motions 45 , 53 , signed by Magistrate Judge Michael J. Seng on 3/2/12. (Hellings, J) [Transferred from California Eastern on 3/7/2012.]

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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TERRY KUAN GONG,

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CASE NO. 1:11-cv-02044-AWI-MJS

Plaintiff,

ORDER TRANSFERRING ACTION TO
NORTHERN DISTRICT OF TEXAS, DALLAS
DIVISION

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v.

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LEON E. PENATTA, et al.,

(ECF NOS. 43, 48)

Defendants.

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ORDER DENYING MISCELLANEOUS
MOTIONS

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(ECF NOS. 45, 53)

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/

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INTRODUCTION
On December 12, 2011, Terry Kuan Gong (“Plaintiff”), proceeding pro se, filed this

wrongful termination action pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”)1,

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the Age Discrimination in Employment Act of 1967 (“ADEA”),2 and Title I of the Americans

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42 U.S.C. § 2000e et seq.

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29 U.S.C. § 630 et seq.

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1 with Disabilities Act of 1990 (“ADA”).3
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Plaintiff names the following Defendants: (1) Leon Penatta, Secretary of Defense,
the U.S. official in charge of the Army Air Force Exchange Service (“AAFES”), the DOD

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Inspector General’s Office, and the Pacific Air Forces EEO Office (“Penatta”); (2) Thomas
Demicke, a U.S. Citizen living in Japan and a civilian employee of the Department of

7 Defense (“Demicke”); and (3) James K. Gordon, CEO of GET Marketing Inc. (“Gordon”),
8 a Texas based company contracted to the military to operate the Kadena, Japan , computer
9 sales concession where Plaintiff worked.
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Plaintiff has consented to Magistrate Judge jurisdiction. (ECF No. 17.)

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The Court has the following matters before it: (1) Motion by Gordon to Dismiss for

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Improper Venue,4 (ECF No. 43, 48); (2) Motion by Gordon to Dismiss for Improper

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14 Pleading, (ECF No. 44, 49); (3) Motions by Plaintiff to Strike and Dismiss [sic] in opposition

15 to Gordon’s Motion to Dismiss for Improper Venue (ECF No. 45, 53); and (4) Plaintiff’s
16 Motion to Amend the Original Complaint Paragraph 5. (ECF No. 56.)
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II.

FACTUAL AND LEGAL BACKGROUND

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Plaintiff’s Complaint is exceedingly lengthy and confusing. It seems to complain
about his alleged wrongful termination from civilian employment at the Kadena Exchange

21 Main Store (“Store”) located on Kadena Air Base, a United States military base in Kadena,
22 Japan. The events alleged in the Complaint occurred in Japan.
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42 U.S.C. § 12101 et seq.

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Fed. R. Civ. P.12(b)(3).

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Fed. R. Civ. P.8.

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Plaintiff, a U.S. citizen living in Japan, worked at the Store as a computer sales

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consultant. He was employed by Gordon and the Army Air Force Exchange Service, a

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federally funded corporation based in Dallas, Texas. (Compl. p. 2, ECF No. 1.)

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Plaintiff contends his termination from employment was due to unlawful

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discrimination. He has filed a related complaint with the federal Equal Employment

7 Opportunity Commission in Dallas, Texas. Its final disposition is uncertain. (Compl. at 36.)
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Summons have been issued to Plaintiff and the Complaint is out for service. (ECF

9 Nos. 5, 6, 7, 30, 31, 38, 42.)
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III.

ANALYSIS

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1.

Improper Venue

Defendant Gordon moves to dismiss, or alternatively transfer this action, based upon

14 improper venue. A motion to dismiss for improper venue challenges a plaintiff’s forum
15 selection.6 All well-plead allegations in the complaint bearing on venue are taken as true.7
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The moving party must present facts defeating the plaintiff’s assertion of venue.8
Generally a civil action may be brought in (1) a judicial district in which any defendant

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resides,9 if all defendants are residents of the State in which the district is located; (2) a
judicial district in which a substantial part of the events or omissions giving rise to the claim

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Fed. R. Civ. P. 12(b)(3).

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Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009).

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Pierce v. Shorty Sm all’s of Branson Inc., 137 F.3d 1190 (10th Cir. 1998).

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A natural person is deem ed to reside in the judicial district in which that person is dom iciled. 28
U.S.C. § 1391(c)(1). A corporation in a state with m ultiple judicial districts is deem ed to reside in any
district having sufficient contacts for personal jurisdiction or in the absence thereof the m ost significant
contacts. 28 U.S.C. § 1391(d).

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1 occurred, or a substantial part of property that is the subject of the action is situated; or (3)
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if there is no district in which an action may otherwise be brought as provided in this section,
any judicial district in which any defendant is subject to the court's personal jurisdiction with

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respect to such action.10
An action in which a defendant is an officer, employee, or agency of the United

7 States may be brought in (1) a judicial district in which a defendant resides; (2) a judicial
8 district in which a substantial part of the events or omissions giving rise to the claim
9 occurred; or (3) a judicial district in which the plaintiff resides.11
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A Title VII action must be brought in either (1) the judicial district in the state in which

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the unlawful employment practice is alleged to have been committed; (2) the judicial district
where the relevant employment records are maintained and administered; (3) the judicial

14 district in which the aggrieved person would have worked but for the alleged unlawful
15 employment practices; or (4) the judicial district in which the respondent has his principal
16 office.12 The Title VII venue provision controls over the general federal venue provision.13
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The allegations in Plaintiff’s Complaint, taken as true, fail to demonstrate proper

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venue in the Eastern District of California. No Defendant resides in this judicial district.
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None of the events in issue took place in this judicial district. No relevant record is located

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28 U.S.C. § 1391(b).

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28 U.S.C. § 1391(e).

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42 U.S.C. § 2000e-5(f)(3). For purposes of Sections 1404 and 1406 of Title 28 [dealing with
discretionary transfer], the judicial district in which the respondent has his principal office shall be
considered a district in which the action m ight have been brought. 42 U.S.C. § 2000e-5(f)(3).
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42 U.S.C. § 2000e-5; Pierce, 137 F.3d 1190.

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Nor does it appear that an exercise of personal jurisdiction over Defendants by this

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Court would be consistent with due process and the California long-arm statute.14 The

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Complaint alleges no facts showing any Defendant has due process “contacts” with

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California.
Gordon, in its affidavit supporting Motion to Dismiss for Improper Venue, states that

7 James Gordon is a resident of Texas; Gordon’s Enhanced Technology Marketing, Inc., is
8 a Texas corporation; the principal offices of James Gordon and Gordon’s Enhanced
9 Technology Marketing, Inc. are in Dallas County, Texas; all records relevant to this lawsuit
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are located at its principal offices in Dallas County, Texas; AAFES headquarters are located

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in Dallas County, Texas; and that Dallas County, Texas is within the Northern District of
Texas, Dallas Division. (ECF No. 48.) See Pierce, 137 F.3d at 1192 (defendant’s affidavit

14 in support of motion to dismiss for improper venue, containing facts showing location of
15 violation, records, and principal office of defendant, sufficient to support the motion).
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Plaintiff’s opposition documents fail to controvert the facts alleged by Gordon or
otherwise support venue in this judicial district. Plaintiff alleges he is an absentee voter in

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this judicial district, that he has family in this district, and that he prefers to litigate his claims
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in this judicial district. (ECF No. 45, 53.) None of these allegations, taken as true, support

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21 venue in the Eastern District of California. The Court notes that Plaintiff filed his related

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J. McIntyre Machinery, Ltd. V. Nicastro, 131 S.Ct. 2780, 2787 (2011); see Autogenom ics, Inc.
v. Oxford Gene Technology Ltd., 566 F.3d 1012 (9th Cir. 2009) (“California’s long-arm statute [Cal. Code
Civ. P. § 410.10] is coextensive with the lim its of due process”).
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Plaintiff’s citation to Fed. R. Civ. P. 4(k)(2), (see ECF 45, 53), dealing with territorial lim its on
effective service of sum m ons on a defendant not subject to any state’s courts of general jurisdiction, does
not establish venue in the Eastern District, or controvert the facts alleged by Gordon .

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1 EEOC complaint with the Dallas, Texas EEOC office, consistent with venue in Texas.

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Venue is not proper in the Eastern District of California. When a case is filed in the

3 wrong division or district, the courts may dismiss or transfer the action depending on
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whether the interests of justice favor a transfer.17

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“In determining whether in the interests of justice the action should be transferred,
[the court] may consider: (1) the convenience of parties; (2) the convenience of witnesses;

8 (3) the relative ease of access to sources of proof and the locus of operative facts; (4) the
9 availability of process to compel attendance of unwilling witnesses; (5) the cost of obtaining
10 willing witnesses; (6) the practical problems indicating where the action can be tried more
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expeditiously and inexpensively (e.g. calendar congestion); and (7) the totality of the

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circumstances.” French Transit, Ltd., v. Modern Coupon Systems, Inc. 858 F.Supp. 22, 27
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(S.D.N.Y. 1994).
Upon consideration of these factors, transfer of this action to the United States

16 District Court of the Northern District of Texas, Dallas Division, is appropriate. No factor
17 favors venue in the Eastern District of California. Accordingly, the Court grants alternative
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relief under Gordon’s Motion to Dismiss for Improper Venue transferring this case to the

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United States District Court of the Northern District of Texas, Dallas Division
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2.

Improper Pleading

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Com pl. at 23. An Equal Em ploym ent Opportunities Com m ission right-to-sue letter is typically
required before a federal em ploym ent discrim ination suit com m ences.
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28 U.S.C. § 1406(a); District No. 1, Pacific Coast Dist., M.E.B.A. v. State of Alaska, 682 F.2d
797, 799 (9th Cir. 1982); see also Goldlawr, Inc., v. Heim an, 369 U.S. 463, 466 (1962) (lack of personal
jurisdiction in transferring court not a bar to transfer).

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Defendant Gordon moves to dismiss this action for failure to properly plead.18 Gordon

2 asserts the Complaint “rambles on for 35 pages with additional attachments”, with “multiple
3 and confusing allegations”, in violation of the pleading requirement for a short and plain
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statement showing entitlement to relief.

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All pleadings must contain (1) a short and plain statement of the grounds for the
court’s jurisdiction, (2) a short and plain statement of the claim showing that the party is

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8 entitled to relief, and (3) a demand for the relief sought. Each allegation in the pleading

9 must be simple, concise, and direct.20 The short and plain statement requirement “forbids
10 the prolix recitation of probable evidence.”21
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A court has discretion to determine whether there has been a reasonable compliance

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with the requirement that each averment be simple, concise and direct. See Carrigan v.
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California State Legislature, 263 F.2d 560, 566 (9th Cir. 1959) (finding no abuse of

15 discretion in dismissing a complaint for failure to state cause of action concisely, plainly,
16 simply, shortly and directly [per Rule 8 (a)(2)] where complaint consisted of 27 pages of
17 legal theories, 9 pages of relief demanded, and 150 pages of intervening hearsay
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conversation, plaintiff conclusions, self serving statements, statements by non-defendants,

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and other such matter); see also Fisher v. United Feature Syndicate, Inc., 37 F.Supp.2d
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1213, 1216 (D. Colo. 1999) (lengthy and rambling complaint properly dismissed); see also

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Pursuant to Fed. R. Civ. P. 8.

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Fed. R. Civ. P. 8(a).

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Fed. R. Civ. P. 8(d)(1).

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Millet v. Godchauz Sugars, Inc., 241 F.2d 264, 266 (5th Cir. 1957).

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1 Hakman v. Kotchick, 129 F.R.D. 432, 433 (N.D. N.Y. 1990) (complaint containing little more
2 than demands, charges, and conclusions properly dismissed); see also Quat v. Horowitz,
3 882 F.Supp. 1296 (E.D.N.Y. 1995) (confused, ambiguous and unintelligible 76 page
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complaint naming six defendants properly dismissed with leave to amend).

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Plaintiff’s Complaint likely fails to comply with Rule 8 of the Federal Rules of Civil
Procedure. It consists of 29 single-spaced pages of ambiguous, disjointed, self-serving

8 and conclusory narrative, hearsay and evidentiary allegations that are difficult to understand
9 and relate to any purported theory of action. The relief sought is set out in an additional
10 6 partially intelligible, single-spaced pages, seeking a variety of redress, largely beyond the
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jurisdiction of the Court and unavailable under Plaintiff’s theories of action. There is fair

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question whether Defendants might be prejudiced in their ability to understand the
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Complaint and mount a defense. Warner Bros. Entertainment Inc. v. Ideal World Direct 516

15 F.Supp.2d 261, 269 (S.D.N.Y. 2007).
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Plaintiff’s Opposition document (ECF No. 55) in essence incorporating his Motion to

17 Amend Paragraph 5 (ECF No. 56) fails to controvert or counter Gordon’s showing. It simply
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requests leave to partially amend or supplement one paragraph of the Complaint. No such

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amendment would resolve the deficiencies in this Complaint.
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Accordingly, this court concludes that there is merit to Defendant’s pleading motion.

22 However, given our decision to transfer the action, the Court should and will defer to the
23 transferee court to issue a ruling on that motion.
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3.

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For the reasons stated above, Plaintiff’s Petition for Motion to Strike (ECF No. 45),

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Miscellaneous Motions

and Motion to Dismiss (ECF No. 53) are each DENIED.
IV.

ORDER

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Based on the foregoing, it is HEREBY ORDERED that:

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1. This action is transferred to the United States District Court for the Northern

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District of Texas, Dallas Division; and

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2. Plaintiff’s Petition for Motion to Strike (ECF No. 45), and Motion to Dismiss (ECF

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No. 53), are denied.

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3. Action on Defendant’s pleading motion is deferred as stated above.

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IT IS SO ORDERED.
Dated:

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March 2, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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