BRELAND v. ATC VANCOM, INC., (E.D.Pa. 2002)

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Docket Number

Civil Action No. 02-4401

Judges

Thomas Newman O'Neill

Acts

The Public Health And Welfare — Civil Rights — Equal Employment Opportunities — Definitions
Judiciary And Judicial Procedure — District Courts; Venue — Jurisdiction And Venue — Cure Or Waiver Of Defects

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Smart Summary

Factual and Procedural Background

Plaintiff Carolin Breland, proceeding pro se at the time, filed a Title VII employment discrimination lawsuit against defendant ATC Vancom, Inc. on July 2, 2002. The summons and complaint were served on defendant in Addison, Texas, with receipt confirmed on August 5, 2002. Defendant filed a response on September 6, 2002, which was eleven days past the twenty-day deadline prescribed by Federal Rule of Civil Procedure 12(a)(1)(A). Plaintiff did not file for default judgment. Defendant moved to dismiss the case for improper venue under Federal Rule of Civil Procedure 12(b)(3) or, alternatively, to transfer the case to the Northern District of Georgia. Plaintiff argued that defendant waived the venue objection by filing late. The court considered the facts that defendant is an Illinois corporation with a Georgia-based limited partnership subsidiary operating in Cobb County, Georgia, where plaintiff was employed and allegedly discriminated against. Plaintiff filed an EEOC complaint which was processed through the Atlanta district office. All relevant employment records are maintained in Georgia, and plaintiff never worked for defendant while living in Pennsylvania.

Legal Issues Presented

Whether defendant waived its right to object to improper venue by filing its response to the complaint beyond the 20-day period set by Rule 12(a)(1)(A).
Whether venue is proper in the Eastern District of Pennsylvania under Title VII and related venue statutes.
Whether the case should be dismissed for improper venue or transferred to a proper venue under 28 U.S.C. § 1406(a).

Arguments of the Parties

Plaintiff's Arguments

Defendant waived its right to object to improper venue by filing its responsive pleading eleven days late, beyond the twenty-day period required by Rule 12(a)(1)(A).

Defendant's Arguments

Venue in the Eastern District of Pennsylvania is improper because the alleged unlawful employment practice occurred in Cobb County, Georgia, where plaintiff worked and was terminated.
All pertinent employment records are maintained in Georgia, making that the proper venue under 42 U.S.C. § 2000e-5(f)(3).
Defendant did not waive its venue objection despite the late filing because Rule 12(h)(1) does not require the venue defense to be asserted within the 20-day response period; rather, waiver only occurs if the defense is not raised by motion or in a responsive pleading at all.
Transfer of venue to the Northern District of Georgia is appropriate and in the interest of justice under 28 U.S.C. § 1406(a).

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Davis v. Smith, 253 F.2d 286 (3d Cir. 1958)	Right to object to improper venue is personal to defendant and may be waived.	Supported the principle that venue objections can be waived if not timely asserted.
Granger v. Kemm, Inc., 250 F. Supp. 644 (E.D. Pa. 1966)	Failure to timely file a motion to dismiss for improper venue constitutes waiver.	Discussed but distinguished as an overly strict interpretation of Rule 12.
Aetna Life Ins. Co. v. Alla Medical Services, Inc., 855 F.2d 1470 (9th Cir. 1988)	Defendant may assert a Rule 12(b) motion at any time before filing a responsive pleading.	Used to support that late motions to dismiss for venue are not necessarily waived.
Bechtel v. Liberty National Bank, 534 F.2d 1335 (9th Cir. 1976)	Same as Aetna Life Ins. Co., regarding timing of Rule 12(b) motions.	Reinforced that venue objections can be raised before responsive pleading regardless of timing.
Stjernholm v. Peterson, 83 F.3d 347 (10th Cir. 1996)	Failure to timely assert a Rule 12(b) motion constitutes waiver if default was entered prior.	Distinguished because in the present case no default judgment had been entered.
Gordon v. Strictland, No. Civ. A. 93-3875, 1993 WL 386765 (E.D. Pa. 1993)	Defendant’s motion to dismiss for improper venue after 20 days is timely if no default motion filed.	Supported the court’s conclusion that late venue objection was not waived.
Reliable Tire Distributors, Inc. v. Kelly Springfield Tire Co., 623 F. Supp. 153 (E.D. Pa. 1985)	Rule 12(h)(1) requires waiver only if defense not raised by motion or pleading.	Used to clarify timing of venue objections and waiver.
Lagana v. Kmart Corp., 1998 WL 372347 (E.D. Pa. 1998)	Consideration of untimely Rule 12(b)(6) motion allowed.	Demonstrated district courts’ discretion to consider late motions.
Kampf v. Heinecke, 1995 WL 262526 (E.D. Pa. 1995)	Discretion to allow untimely response absent motion for default judgment.	Supported allowing defendant’s late venue objection.
Elias v. Energy Reduction Sys., Inc., 1993 WL 55932 (E.D. Pa. 1993)	Tardiness in filing a Rule 12(b)(2) motion does not constitute waiver if first response raises the issue.	Reinforced court’s reasoning against strict waiver rule.
Foss v. Klapka, 95 F.R.D. 521 (E.D. Pa. 1982)	Rule 12(h)(1) does not specify waiver for untimely motions to dismiss.	Supported court's interpretation of waiver rules.

Court's Reasoning and Analysis

The court analyzed the timing and nature of defendant's venue objection in light of Federal Rules of Civil Procedure 12(a) and 12(h)(1), and relevant case law. While plaintiff argued that the late filing of defendant’s response constituted a waiver of the venue defense, the court found that Rule 12(a) governs only the timing for serving a responsive pleading and does not itself impose a waiver for late venue objections. Rule 12(h)(1) requires waiver only if the defense is not raised by motion or in a responsive pleading at all, regardless of timing.

The court acknowledged the Granger decision, which held that late venue objections constituted waiver, but rejected its overly strict interpretation, citing commentary from Wright & Miller and more recent decisions from within the Third Circuit that favor a more flexible approach. The court also considered contrary authority from other circuits, distinguishing cases where default judgments had been entered prior to venue objections.

Given that defendant timely raised the venue objection by motion before filing a responsive pleading and plaintiff had not moved for default judgment, the court concluded defendant did not waive the venue defense. Because the alleged discriminatory acts and relevant records were centered in Georgia, venue in the Eastern District of Pennsylvania was improper. Pursuant to 28 U.S.C. § 1406(a), the court found it in the interest of justice to transfer the case to the Northern District of Georgia, Atlanta Division, rather than dismiss it.

Holding and Implications

The court DENIED defendant's motion to dismiss for improper venue but GRANTED the alternative motion to transfer the case. The action was TRANSFERRED to the Northern District of Georgia, Atlanta Division.

This decision directly affects the parties by relocating the case to a proper venue consistent with statutory and case law requirements. The court did not establish new precedent but reaffirmed a more flexible interpretation of waiver rules for venue objections under Rule 12(h)(1), emphasizing that late filing alone does not necessarily waive such defenses absent a default judgment or failure to raise the defense altogether.

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CAROLIN BRELAND v. ATC VANCOM, Inc.

MEMORANDUM AND ORDER

THOMAS N. O'NEILL, JR., District Judge.

Plaintiff Carolin Breland filed this pro se Title VII employment discrimination action against defendant ATC Vancom, Inc. on July 2, 2002. On July 16, 2002 a summons was issued and plaintiff mailed it and the complaint to ATC Vancom in Addison, TX. A postal return receipt demonstrates that the summons and complaint were received by defendant on August 5, 2002. Defendant responded by filing the present motion on September 6, 2002, eleven days beyond the twenty days allotted by Federal Rule of Civil Procedure 12(a)(1)(A) for response. Plaintiff never filed a motion for default judgment.

Plaintiff currently is represented by counsel.

Presently, defendant moves to dismiss this case for, inter alia, improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3), or in the alternative to transfer the case to the Northern District of Georgia, Atlanta Division. Plaintiff contends that because defendant's response was untimely I must deny the motion. I disagree, and conclude that the case will be transferred because venue in this District is improper.

Defendant is an Illinois corporation headquartered in Oakbrook, Illinois. ATC Vancom of Georgia, L.P. is a limited partnership apparently controlled by ATC Vancom, Inc. and operates bus transportation routes for Cobb Community Transit in and around Cobb County, Georgia. Plaintiff began working for defendant in Cobb County, Georgia on July 1, 2000, and was terminated on February 21, 2001. Plaintiff subsequently moved to the Philadelphia area and filed a complaint with the Equal Employment Opportunity Commission in November of 2001, alleging race and age discrimination. Thereafter, the EEOC transferred the complaint to the EEOC's Atlanta district office for further processing. Plaintiff never worked for defendant while living in Pennsylvania. In addition, it is undisputed that all pertinent employment records are maintained in Georgia.

Title 42 U.S.C. § 2000e-5(f)(3) provides that Title VII claims "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. . . ." In the present case, the alleged discrimination occurred in Cobb County, Georgia. Georgia is where plaintiff worked and would have remained working, but for the alleged discriminatory discharge. Moreover all pertinent employment records are maintained in Georgia. Therefore, the proper venue for the action is Georgia.

Improper venue may, however, be waived by defendant: "Nothing in this chapter shall impair the jurisdiction of a district court of any matter involving a party who does not interpose timely and sufficient objection to the venue." 28 U.S.C. § 1406(b). The Court of Appeals has recognized that the right to defend suit in the appropriate venue is conferred for the personal benefit of defendant and may be waived by defendant. See Davis v. Smith, 253 F.2d 286, 288 (3d Cir. 1958).

Plaintiff asserts that defendant waived its right to object to improper venue by filing its response to the complaint eleven days late. See Fed.R.Civ.P. 12(a)(1)(A) (requiring defendant to serve an answer 20 days after being served with summons and complaint); Fed.R.Civ.P. 12(h)(1) (noting that objection to improper venue is waived if not appropriately asserted). Although the Court of Appeals for the Third Circuit does not appear to have addressed this issue, at least one court in the Eastern District of Pennsylvania has concluded that a defendant waives his right to object to improper venue when he fails to answer the complaint in a timely fashion. See Granger v. Kemm, Inc., 250 F. Supp. 644, 645-46 (E.D.Pa. 1966) (Davis, J.) (concluding that motion filed 55 days after service of complaint constituted waiver).

However, the Court of Appeals for the Ninth Circuit has determined that a defendant may assert a 12(b) motion at any time before the responsive pleading is filed, regardless of the 20 day time period expressed in Rule 12(a). See Aetna Life Ins. Co. v. Alla Medical Services, Inc., 855 F.2d 1470, 1474 (9th Cir. 1988); Bechtel v. Liberty National Bank, 534 F.2d 1335, 1340-41 (9th Cir. 1976).
Plaintiff contends the Court of Appeals for the Tenth Circuit has held that failure to assert a 12(b) motion within the 20-day time limit constitutes a waiver. See Stjernholm v. Peterson, 83 F.3d 347, 349 (10th Cir. 1996). The Stjernholm Court's decision, however, is distinguishable from the present case because there a default had been entered against defendant before the 12(b) motion was filed. See id. at 348.

In the present case, however, I conclude that defendant did not waive its objection to improper venue. Although the rule of law applied inGranger has the positive effect of compelling early assertion of 12(b)(3) motions, it is premised on an overly strict interpretation of Rule 12(a) and Rule 12(h)(1). See 5A Charles Alan Wright Arthur R Miller, Federal Practice and Procedure § 1391 (2d ed. 1990). Rule 12(a) only addresses when the pleading must be served and is silent on the question of waiver. Id. Rule 12(h)(1) does not call for the assertion of the defense within the time provided in Rule 12(a) for serving a responsive pleading. Id. Rather, it mandates waiver if the defense is not made by motion or included in the responsive pleading, presumably whenever it may happen to be served. Id.

Moreover, the recent trend among district courts within the Third Circuit demonstrates a shift away from the restrictive interpretation employed by the Granger Court. See Gordon v. Strictland, No. Civ. A. 93-3875, 1993 WL 386765, *2 n. 3 (E.D. Pa. Sept. 24, 1993) (VanArtsdalen, J.) ("[U]nless a plaintiff has made a motion for default, a defendant's motion to dismiss for improper venue after the 20 day period is timely if the defendant has not yet responded."); Reliable Tire Distributors, Inc. v. Kelly Springfield Tire Co., 623 F. Supp. 153, 155 (E.D.Pa. 1985) (Shapiro, J.) ("Rule 12(h)(1) does not require the assertion of the defenses of lack of personal jurisdiction or improper venue within the time provided in Rule 12(a) but provides that these defenses will be waived if neither made by motion nor included in a responsive pleading."); see also Lagana v. Kmart Corp., No. Civ. A. 97-5911, 1998 WL 372347, *3 (E.D.Pa. June 19, 1998) (Gawthrop, J.) (deciding to consider defendant's 12(b)(6) motion despite untimely filing); Kampf v. Heinecke, Civ. A. No. 94-6452, 1995 WL 262526, *1 (E.D.Pa. April 28, 1995) (McGlynn, J.) (concluding that defendants' late objection for improper venue was timely, where plaintiff failed to move for default judgment); Elias v. Energy Reduction Sys., Inc., No. Civ. A. 92-4971, 1993 WL 55932, at *3 (E.D.Pa. Mar. 2, 1993) (holding that under a 12(b)(2) motion "tardiness does not constitute a waiver so long as defendant's first response raises the issue"); Foss v. Klapka, 95 F.R.D. 521, 523 (E.D.Pa. 1982) (Broderick, J.) ("Rule 12(h)(1) does not state that waiver will be found to exist if the defendant's motion to dismiss is untimely.").

The Kampf Court also recognized that "When a party fails to answer or otherwise plead within 20 days of service of the complaint, the court has discretion to allow an untimely response in the absence of a motion for default judgment." Kampf, 1995 WL 262526, at *1.

District courts have the power to dismiss or transfer cases when a plaintiff files in an improper venue. Title 28 U.S.C. § 1406(a) provides: "The 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." Because venue is not proper in this District and it appears transfer would be in the interest of justice, I will transfer this action to the Northern District of Georgia, Atlanta Division.

ORDER

AND NOW, this 4th day of December, 2002, upon consideration of defendant's motion and plaintiff's response thereto and for the reasons stated in the accompany memorandum, it is ORDERED that defendant's motion to dismiss is DENIED, but defendant's alternative motion for transfer is GRANTED. The case is TRANSFERRED to the Northern District of Georgia, Atlanta Division.