Law v. Lynch et al
Memorandum and Order denying Defendant's Motion to Dismiss; granting Defendant's Motion to Transfer to District Court for the District of Columbia (Signed by Judge Keith P Ellison) Parties notified.(arrivera, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
ELEANOR JANICE LAW,
June 02, 2017
David J. Bradley, Clerk
§ CIVIL ACTION NO. 4:16-CV-2799
MEMORANDUM & ORDER
Defendant has filed a Motion to Dismiss for Improper Venue or in the Alternative, to
Transfer to the District of Columbia in this employment discrimination lawsuit. (Doc. No. 49.)
Plaintiff has responded, and Defendant has replied. (Doc. Nos. 53 & 55.) After careful
consideration of the parties’ arguments, and the relevant statutes and caselaw, the Court finds
that it must deny Defendant’s motion to dismiss, but grant Defendant’s motion to transfer.
Accordingly, for the reasons given, this case is transferred to the District Court for the District of
Plaintiff applied for one of three Trial Attorney positions within the Special Litigation
Section of the Civil Rights Division of the Department of Justice in Washington, D.C., on
August 31, 2012. Several hundred other individuals also applied for these positions. Plaintiff was
not one of the ten individuals selected for an interview. Ultimately, two individuals from the ten
that were interviewed were selected for the position. The third opening remained vacant. Plaintiff
alleges that Defendant engaged in race and gender discrimination under Title VII of the Civil
Rights Act of 1964, and age discrimination under the Age Discrimination in Employment Act of
After pursuing her administrative remedies, Plaintiff filed this lawsuit on September 16,
2016. (Doc. No. 1.) She amended her complaint on October 3, 2016, and again on October 26,
2016. (Doc. Nos. 5 & 6.) Defendant answered on December 2, 2016. (Doc. No. 10.) With the
Court’s permission, Plaintiff amended her complaint for a third time on April 7, 2017. (Doc. No.
44.) Defendant filed this motion to dismiss in lieu of an answer on May 3, 2017. (Doc. No. 49.)
Motion to Dismiss
In its motion to dismiss, filed pursuant to Rule 12(b)(3) of the Federal Rules of Civil
Procedure, Defendant argues that venue in the Southern District of Texas is improper under Title
VII’s venue provision, 42 U.S.C. §2000e-5(f)(3). This provision provides that an action alleging
employment discrimination under Title VII may be brought in 1) any judicial district in the State
in which the unlawful employment practice is alleged to have been committed, 2) the judicial
district in which the employment records relevant to such practice are maintained and
administered, or 3) the judicial district in which the aggrieved person would have worked but for
the alleged unlawful employment practice. 42 U.S.C. §2000e-5(f)(3). If the respondent is not
found within any of those districts, the suit may be brought within the judicial district in which
the respondent has his or her principal office. Id.
Defendant asserts, and Plaintiff does not seem to dispute, that the allegedly unlawful
employment practice occurred in the District of Columbia, where the Department of Justice
(“DOJ”) is based; that the relevant employment records are maintained and administered in the
District of Columbia; and that Ms. Law would have worked in the District of Columbia but for
the alleged unlawful employment practice. Thus, under this provision, venue would be proper in
the District of Columbia, and is improper in the Southern District of Texas.
However, as Plaintiff points out, Defendant did not raise the defense of improper venue
in its initial answer in this case. Although Defendant did raise the defense in lieu of an answer to
Plaintiff’s third amended complaint, the Federal Rules of Civil Procedure require Defendant to
raise this defense in its first pleading. Rule 12(g)(2) of the Federal Rules of Civil Procedure
dictates that “a party that makes a motion under this rule must not make another motion under
this rule raising a defense or objection that was available to the party but omitted from its earlier
motion.” This rule has been interpreted by courts to mean that “[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 Wright & Miller, Fed.
Prac. & Proc. Civ. § 1388 (3d ed.); see also Keefe v. Derounian, 6 F.R.D. 11, 13 (N.D. Ill. 1946)
(holding that because Plaintiff’s amended complaint “merely corrected an insufficient allegation
of diversity jurisdiction,” it did not “revive the defendant's right . . . to object to the service of
process, which is an objection that existed at the beginning of the case and should have been
Here, the defense of improper venue was available to Defendant when it filed its first
Answer in this case, but Defendant did not assert this defense. Because of Rule 12(g)(2), it
cannot do so now. Accordingly, Defendant’s motion to dismiss is denied.
Motion to Transfer
Defendant moves, in the alternative, to transfer this case to the District Court for the
District of Columbia. (Doc. No. 49 at 14.) A district court may, in its discretion, transfer any
civil action to any other district court where it might have been brought “for the convenience of
parties and witnesses, in the interest of justice.” 28 U.S.C.A. § 1404(a). The party seeking
transfer bears the “burden of demonstrating why the forum should be changed.” Houston Trial
Reports, Inc. v. LRP Publications, Inc., 85 F. Supp. 2d 663, 667 (S.D. Tex. 1999). “Unless the
balance of factors strongly favors the moving party, the Plaintiff's choice of forum generally
should not be disturbed.” Id. “However, when the plaintiff's chosen forum has little or no factual
connection to the case, the plaintiff's choice carries less weight.” Molina v. Vilsack, 2009 WL
5214098, at *2 (S.D. Tex. Dec. 23, 2009) (citing Hanby v. Shell Oil Co., 144 F. Supp. 2d 673,
677 (E.D. Tex. 2001)).
The first determination for the district court to make is whether the judicial district to
which transfer is sought would have been a district in which the claim could have been filed. As
discussed above, the District Court for the District of Columbia is where the case should have
been filed, under the venue provision of Title VII. Although Defendant has waived that defense,
there is no doubt that venue would be proper in the District of Columbia.
Next, the Court must consider whether transfer would be for the “convenience of parties
and witnesses” and “in the interest of justice.” Id. The determination of “convenience” turns on a
number of private and public interest factors, none of which is given dispositive weight. In re
Volkswagen AG, 371 F.3d 201, 203 (5th Cir. 2004). The private concerns include: (1) the relative
ease of access to sources of proof; (2) the availability of compulsory process to secure the
attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other
practical problems that make trial of a case easy, expeditious and inexpensive. Piper Aircraft Co.
v. Reyno, 454 U.S. 235, 241 n. 6 (1981). The public concerns include: (1) the administrative
difficulties flowing from court congestion; (2) the local interest in having localized interests
decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4)
the avoidance of unnecessary problems of conflict of laws of the application of foreign law. Id.
Private Interest Factors
The first private interest factor is the relative ease of access to sources of proof. Because
the allegedly discriminatory actions occurred in the District of Columbia, the District of
Columbia is the location of a majority, if not all, of the important sources of proof in this case.
Plaintiff indicates that most documents are stored electronically and can be transferred via email,
diminishing the weight of this factor. But the Fifth Circuit has explicitly instructed District
Courts not to follow the reasoning propounded by Plaintiff. “That access to some sources of
proof presents a lesser inconvenience now than it might have absent recent developments does
not render this factor superfluous.” In re Volkswagen of Am., Inc., 545 F.3d 304, 316 (5th Cir.
2008). Because all of the documents are located in the District of Columbia, this factor weighs in
favor of transfer.
The second private interest factor—the availability of compulsory process to secure the
attendance of witnesses—also weighs in favor of transfer. Defendant has identified eight
potential witnesses in this case. All of these potential witnesses live in or around the District of
Columbia. (Doc. No. 49 at 10-12.) Although DOJ can require its employees to attend trial, four
of the eight witnesses no longer work for DOJ, and are no longer subject to its control. Because
the District of Columbia is more than 100 miles away from the Southern District of Texas, any
subpoena for these witnesses would be subject to a motion to quash under Rule 45(d)(3)(A)(ii) of
the Federal Rules of Civil Procedure. Thus, if the case were to remain in the Southern District of
Texas, Defendant would be unable to secure compulsory process for half of the witnesses that
Defendant wishes to have testify. Accordingly, this factor weighs heavily in favor of transfer.
For the reasons explained above, the third private interest factor—the cost of attendance
and convenience for willing witnesses—also weighs heavily in favor of transfer. “[I]it is the
convenience of non-party witnesses, rather than that of party witnesses, that is the more
important factor and is accorded greater weight in a transfer of venue analysis.” State St. Capital
Corp. v. Dente, 855 F. Supp. 192, 198 (S.D. Tex. 1994). The Fifth Circuit has found it “obvious”
that it is more convenient for witnesses to testify at home, and that “additional distance means
additional travel time; additional travel time increases the probability for meal and lodging
expenses; and additional travel time with overnight stays increases the time which these fact
witnesses must be away from their regular employment.” Volkswagen II, 545 F.3d at 317. As a
result, the Fifth Circuit set a 100-mile threshold as follows: “When the distance between an
existing venue for trial of a matter and a proposed venue under § 1404(a) is more than 100 miles,
the factor of inconvenience to witnesses increases in direct relationship to the additional distance
to be traveled.” Id. The parties agree that the District of Columbia is more than 1,500 miles from
Houston. Defendant has identified eight potential witnesses, all of whom live in the District of
Columbia. Although Defendant could not effectuate compulsory process over four of those
witnesses, the cost of transporting DOJ’s employees and any willing witnesses would be
substantial, as would the inconvenience for those witnesses.
The fourth factor encompasses “all other practical problems that make trial of a case
easy, expeditious and inexpensive.” Piper Aircraft, 454 U.S. at 241 n. 6. “For this factor, courts
consider whether transfer would delay already protracted litigation.” JPT Grp., LLC. v. Steven
Madden Retail, Inc., 2016 WL 3523878, at *4 (S.D. Tex. June 28, 2016) (citing In re Radmax,
Ltd., 720 F.3d 285, 289 (5th Cir. 2013)). However, “garden-variety delay associated with transfer
is not to be taken into consideration when ruling on a § 1404(a) motion to transfer. Were it, delay
would militate against transfer in every case.” In re Radmax, Ltd., 720 F.3d at 289. Here, there
would be no unusual delay in transferring the case. Trial is not set until the end of the year, and
limited written discovery has occurred. Furthermore, no depositions have yet been taken.
Plaintiff argues that, as a pro se plaintiff, she would have difficulty filing pleadings if the
case were transferred to the District of Columbia. The Court notes that Plaintiff, while
technically pro se, has been a lawyer or judge for her entire career, and is married to a lawyer
who has filed pleadings for Plaintiff on the Electronic Court Filing system. Nonetheless, the
Court acknowledges that Plaintiff has stated that she has difficulty filing pleadings online. The
Court finds that this factor is neutral.
Public Interest Factors
The parties do not address the first public interest factor, which concerns the
administrative difficulties flowing from court congestion. The focus of this factor is “whether a
trial may be speedier in another court because of its less crowded docket.” Watson v. Fieldwood
Energy Offshore, LLC, 181 F.Supp. 3d 402, 412 (5th Cir. 2016). “In analyzing this factor courts
often consider the medial time interval from case filing to disposition.” Id. The average length of
time from filing to disposition of civil cases in the District of Columbia is 7.8 months, while in
Texas the length of time is 8 months. See U.S. District Courts—Federal Court Management
Statistics (March 31, 2016) http://www.uscourts.gov/sites/default/files/data_tables/fcms_na_
distprofile1231.2016.pdf. Accordingly, this factor is neutral.
The second factor is the local interest in having localized interests decided at home. “A
local interest is demonstrated by a relevant factual connection between the events and the
venue.” Vasquez v. El Paso II Enterprises, LLC, 912 F. Supp. 2d 445, 451 (W.D. Tex. 2012).
Here, Defendant has its headquarters in the District of Columbia, and the position at issue is one
based in the District of Columbia. Furthermore, the alleged discrimination at issue took place in
the District of Columbia, by residents of the District of Columbia. The only relationship that this
case has to the Southern District of Texas is that Plaintiff resides in Texas. Plaintiff argues that
the activities of the individual attorneys in the Special Litigation Section of DOJ have nationwide
impact, because they bring lawsuits throughout the United States. This may be, but Plaintiff
complains of an act of discrimination that occurred in the District of Columbia, by residents of
the District of Columbia, so the purview of the job she applied for is irrelevant. Thus, the second
factor weighs in favor of transfer.
The third factor—the familiarity of the forum with the law that will govern the case—is
neutral. Plaintiff has brought claims under two federal statutes. Thus, the District Court for the
District of Columbia and the Southern District of Texas have similar levels of familiarity with
the governing laws. The final public interest factor—the avoidance of unnecessary problems of
conflict laws—or in the application of foreign law, is also neutral in this case.
Balancing the Factors
Taken together, the factors weigh in favor of transfer. Although a plaintiff’s choice of
forum is normally granted deference when considering transfer, that choice carries little
significance if the chosen forum has no factual nexus to the case and other factors weigh in favor
of transfer. Hanby, 144 F. Supp. 2d at 677. As explained above, Plaintiff’s chosen forum has no
nexus to the case, and several of the factors weigh in favor of transfer. The others are neutral—
none weighs against transfer. Furthermore, the factor that weighs most heavily in favor of
transfer is one of the most important factors for a court to consider—the convenience and cost
for non-party witnesses. State St. Capital Corp. v. Dente, 855 F. Supp. 192, 198 (S.D. Tex.
1994). Because the alleged discrimination occurred in the District of Columbia, all of the
relevant witnesses are located in the District of Columbia, and all would have to travel to the
Southern District of Texas, at great expense and inconvenience to themselves and Defendant. In
light of this and the other factors discussed above, the Court finds that this case should be
transferred to the District Court for the District of Columbia.
For the above reasons, the Court hereby DENIES Defendant’s Motion to Dismiss and
GRANTS Defendant’s Motion to Transfer.
IT IS SO ORDERED.
SIGNED at Houston, Texas on the 2nd of June, 2017.
KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE
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