United States District Court, S.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
F. MOORER UNITED STATES DISTRICT JUDGE.
before the Court is Defendant's Motion to Dismiss or,
in the Alternative, to Transfer, and Memorandum in
Support. (Doc. 9, filed November 19, 2018). Plaintiff
filed his response to the motion (Doc. 11, filed December 18,
2018). As such, the motion is fully briefed and ripe for this
Court's review. For the reasons detailed below, the
undersigned determines the Motion to Dismiss or, in the
Alternative, to Transfer, and Memorandum in Support (Doc. 9)
is granted as to the alternative transfer request and denied
as to his motion to dismiss. Consequently, the case shall be
transferred to the appropriate venue, the United States
District Court for the Eastern District of Virginia, pursuant
to 28 U.S.C. § 1406.
originally filed this action with this Court on July 9, 2018.
(Doc. 1). Plaintiff brings claims for declaratory and
injunctive relief, back pay, compensatory damages, and other
relief to redress employment discrimination based on race
pursuant to Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000(e) et seq. (Id., at 1).
Plaintiff states he is an African American who is stationed
in Sembach, Germany, as a civil employee of the Department of
the Army and was not selected for a GS-14 vacancy.
(Id. at ¶¶ 1 & 22). Plaintiff claims
he was denied career development opportunities that were
given to Mr. David Thomas, a Caucasian employee of the
Department of the Army who was also stationed in Sembach,
Germany (Id. at ¶ 4 & at 11); Defendant
retaliated against Plaintiff when he failed to promote
Plaintiff in favor of a less qualified individual who was
outside of Plaintiff's protected class (Id., at
11); and Defendant engaged in unlawful retaliation and race
discrimination when he failed to promote Plaintiff in favor
of a less qualified individual who was outside of
Plaintiff's protected class (Id., at 11).
November 19, 2018, Defendant filed his Motion to Dismiss or,
in the Alternative, to Transfer, and Memorandum in Support in
which he requests the Court dismiss this action pursuant to
Fed.R.Civ.P. 12(b)(3) and (6) for improper venue and failure
to state a claim, respectively, or in the alternative,
transfer this matter pursuant to 28 U.S.C. § 1406 to the
Eastern District of Virginia. (Doc. 9, at 1-2). Plaintiff
filed his response to the motion on December 18, 2018, in
which he concedes this matter should be transferred to the
Eastern District of Virginia for those reasons stated by
Defendant. (Doc. 11).
district court has subject matter jurisdiction over the
claims in this action pursuant to 28 U.S.C. § 1331
(federal question), 28 U.S.C. § 1343(a)(3) (civil
rights), and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e-3.
challenges venue in his motion. Specifically, Defendant
requests the Court dismiss this matter or transfer venue to
the Eastern District of Virginia.
Standard of Review
Generally, the courts look to 28 U.S.C. § 1391(b) for
proper venue. However, Title VII has its own venue provision
that supersedes § 1391. See Pinson v. Rumsfeld,
192 Fed.Appx. 811, 817 (11th Cir. 2006) (“The venue
provisions of § 2000e-5(f)(3) were intended to be the
exclusive venue provisions for Title VII employment
discrimination actions and . . . the more general provisions
of § 1391 are not controlling in such
cases.”). Title VII's venue provision states:
[A Title VII] 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.
42 U.S.C. § 2000e-5(f)(3). If venue is improper, the
district court “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.” 28
U.S.C. § 1406(a). The plaintiff carries the burden of
showing that venue is proper in the chosen forum once the
defendant contests venue under Fed.R.Civ.P. 12(b)(3).
Pritchett v. Paschall Truck Lines, Inc.,
714 F.Supp.2d 1171, 1174 (M.D. Ala. 2010).
reviewing a challenge to venue, the court accepts the
allegations of the complaint “as true, to the extent
they are uncontroverted by defendants' affidavits.”
Delong Equip. Co. v. Wash. Mills Abrasive Co., 840
F.2d 843, 845 (11th Cir. 1988); see also Estate of Myhra
v. Royal Caribbean Cruises, Ltd., 695 F.3d
1233, 1239 (11th Cir. 2012) (stating same). The Court
“may make factual findings necessary to resolve motions
to dismiss for improper venue, ” so long as the
resolution of the factual disputes is not an adjudication on
the merits of the case. Bryant v. Rich, 530 F.3d
1368, 1376 (11th Cir. 2008). A court must draw all reasonable
inferences and resolve all factual conflicts in favor of the
plaintiff. Wai v. Rainbow Holdings, 315 F.Supp.2d
1261, 1268 (S.D. Fla. 2004). “Rule 12(b)(3) is a
somewhat unique context of dismissal in which we consciously
look beyond the mere allegations of a complaint, and,
although we continue to favor the plaintiff's facts in
the context of any actual evidentiary dispute, we do not view
the allegations of the complaint as the exclusive basis for
decision.” Estate of Myhra, 695 F.3d at 1239.