Opinion
Civil Action No. 03-2433.
October 28, 2004
MEMORANDUM ORDER
Presently before the Court is Defendant American Cancer Society's ("ACS") Motion to Dismiss (Doc. No. 24), and the Corporation for National and Community Service ("Corporation"), Leslie Lenkowsky, and Gloria Sokolowski's ("Federal Defendants") Motion to Dismiss. (Doc. No. 26.) For the following reasons, ACS's Motion will be granted in part, and denied in part, and the Federal Defendants' Motion to Dismiss will be denied. Because there is improper venue as to ACS, the entire case will be transferred to the United States District Court for the Middle District of Pennsylvania.
Plaintiff refers to Sokolowski as "Solowski" in his Amended Complaint.
I. Background
Plaintiff, Charles Knight, an African-American male, was hired as an AmeriCorps*VISTA ("VISTA") volunteer on November 21, 2000. (Am. Compl. ¶¶ 18, 29.) Plaintiff and two other applicants, Debbie Howard and Jason Head, were hired simultaneously. ( Id. ¶ 30). Plaintiff was assigned to work in the Wyalusing School District (Bradford County, Pennsylvania) for ACS. ( Id. ¶ 19.) Plaintiff's primary duties for ACS included recruiting and interviewing potential volunteers for ACS fundraising programs, memorializing interviews of potential volunteers, and organizing volunteers for the fundraising programs. ( Id. ¶ 37.) Plaintiff also created "assessment charts" from statistics gathered on cancer deaths in the school district, taught computer classes to fellow volunteers, conducted surveys regarding implementation of school health clinics, assisted in the orientation of new volunteers, and developed photographs for the VISTA newsletter. ( Id. ¶ 39.)
AmeriCorps*VISTA is a nationwide service program. AmeriCorps is part of the Corporation for National and Community Service. (Am. Compl., Ex. A at 2.) Through the program, volunteers are assigned to serve under the direct supervision of federal, state, or local agencies or nonprofit organizations that have requested VISTA volunteers. "By assigning VISTA volunteers to an organization, the Corporation is providing federal assistance to that organization, and the organization is deemed a recipient of Federal financial assistance." (Mem. of Law in Supp. of the Federal Defs.' Mot. to Dismiss Pl.'s Am. Compl. for Lack of Subject Matter Jurisdiction at 5-6.) In exchange for a year of service, the volunteer receives either an educational award or a post-service stipend. 42 U.S.C. §§ 4955, 12602-12604 (2000).
Charles Haun was the ACS Community Organization Specialist and the VISTA Project Site Supervisor for the ACS/VISTA project. ( Id. ¶ 26.) Haun worked at the ACS North Central Region in Williamsport, Pennsylvania. ( Id. ¶ 22.) On or about July 24, 2001, Plaintiff learned from Haun of an opening for a VISTA Leader position in the Bradford County project. ( Id. ¶ 45.) Plaintiff believed that an applicant needed one year of service as a volunteer to be eligible for this position. ( Id. ¶ 47.) Of the current Bradford County volunteers, Plaintiff, Head, and Howard had the most experience. On August 29, 2001, Sokolowski, a Corporation supervisor, stated that a person from outside the current group of Bradford County volunteers would fill the VISTA leadership position. ( Id. ¶ 51.) On September 14, 2001, Plaintiff learned that Howard had applied for the position. ( Id. ¶ 52.) Shortly thereafter, Plaintiff emailed Haun about continuing for a second year of service, and inquired as to whether a person from the current group of volunteers would be considered for the leader position. ( Id. ¶ 53.) Haun did not respond to this email. ( Id. ¶ 54.) On September 25, 2001, Haun contacted Plaintiff and told him that Howard had applied for the leader position and that Haun was going to approve her application. ( Id. ¶ 56.)
Each of them had worked there eight months. ( Id. ¶¶ 48-49.)
Plaintiff informed Haun that he felt "slighted" for not being considered for the leader position. ( Id. ¶ 58.) In response, Haun met with Plaintiff and informed him that he had suggested to Sokolowski that Plaintiff be considered for the position. ( Id. ¶ 60.) Haun told Plaintiff that Sokolowski responded that she did not like Plaintiff, and the leader position would be filled by Howard or an "outside person." ( Id. ¶ 60.) Haun told Plaintiff that Howard was incapable of training other volunteers, and as a result there should be two leader positions in Bradford County — a Leader/Coordinator and a Leader/Trainer. ( Id. ¶ 61.) Sokolowski did not approve of Haun's idea and accused him of "placating" Plaintiff. ( Id. ¶ 65.) Plaintiff believes that the choice of Howard for the leader position, and Plaintiff's treatment as a whole, was based on Plaintiff's race and sex.
Plaintiff also avers that he was discriminated against when he was required to submit additional paperwork to receive VISTA relocation benefits. (Am. Compl. ¶¶ 82-85.)
On October 30, 2001, Plaintiff wrote to the Corporation's Equal Opportunity ("EO") Director to complain of the treatment he received as a volunteer, and to request that the matter be reviewed. ( Id. ¶ 67.) Plaintiff then filed an informal complaint with the Corporation's EO office alleging race and gender discrimination. ( Id. ¶ 69.) An EO counselor issued a report on February 12, 2002. ( Id. ¶ 11.) Two weeks later, Plaintiff filed a formal complaint of discrimination and reprisal with the EO office. ( Id. ¶ 12.) After further investigation, a report was submitted to the Corporation in October, 2002. ( Id. ¶ 15.) The Corporation issued a Final Agency Decision ("FAD") on March 17, 2003, concluding that "Complainant failed to establish by a preponderance of the evidence that he was discriminated against with regard to the claims raised in this complaint." ( Id. ¶ 16; Id., Ex. A at 17.)
On April 23, 2003, Plaintiff filed the initial Complaint in the instant matter. On January 6, 2004, Plaintiff filed an Amended Complaint (Doc. No. 23) alleging discrimination on the basis of sex and race in violation of the following federal statutes: (1) Title VI of the Civil Rights Act of 1964 ("Title VI"), 42 U.S.C. § 2000d (2000); (2) the National and Community Service Act of 1990 ("NCSA"), 42 U.S.C. § 12501 et seq. (2000); (3) the Domestic Volunteer Service Act of 1973 ("DVSA"), 42 U.S.C. § 4950 et seq. (2000); and (4) Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq. (2000). Plaintiff seeks monetary damages and equitable relief. The monetary damages include compensatory damages, punitive damages, attorney's fees, and costs against ACS. Plaintiff seeks equitable relief against Federal Defendants, including removal of Sokolowski as State Program Specialist for the Corporation, uniform filing requirements for all VISTA members seeking to receive the educational allowance, uniform filing requirements for all VISTA members seeking to receive relocation benefits, and Plaintiff's reinstatement as a VISTA volunteer with an appropriate adjustment in membership service time.
II. Legal Standard
Pursuant to Federal Rule of Civil Procedure 12(b), ACS asks this Court to dismiss Plaintiff's Amended Complaint for, among other reasons, improper venue. When improper venue is a basis for a motion to dismiss, the defendant generally bears the burden of showing lack of proper venue. Myers v. Am. Dental Assoc., 695 F.2d 716, 724-25 (3d Cir. 1982), cert. denied, 462 U.S. 1106 (1983). Each of the statutes under which this action is brought is silent as to venue. As a result, the general venue statute, 28 U.S.C. § 1391 (2000), applies. See Urrutia v. Harrisburg County Police Dept., 91 F.3d 451, 462 (3d Cir. 1996) (applying 28 U.S.C. § 1391 where 42 U.S.C. § 1983 is silent as to venue).
Federal Rule of Civil Procedure 12(b)(3) allows a court to dismiss a complaint for improper venue. This specific ground for dismissal may be joined with other defenses or objections raised in a Rule 12(b) motion. Fed.R.Civ.P. 12(b). ACS also alleges that Plaintiff fails to state a claim under Title IX and that no private right of action exists under the NCSA or DVSA. Further, ACS asks the Court to conclude that punitive damages are not available under any of the cited statutes. Because venue is improper, we will not address the merits of these arguments.
II. Analysis
A. Venue Under § 1391(e)
To determine whether venue is proper, we must look to the location and status of the parties. See 28 U.S.C. § 1391. ACS is a not-for-profit organization with a North Central Regional office in Williamsport, Pennsylvania. ( Id. ¶ 7; Pl.'s Opp'n to Def. ACS Mot. to Dismiss at 2, n. 3.) The Corporation for National and Community Service is a government corporation ("Corporation"). 42 U.S.C. § 12651 (2000). As such, it is an executive agency. 5 U.S.C. § 105 (2000). Plaintiff is suing Lenkowsky in his official capacity as the head of the Corporation. (Am. Compl. ¶ 5). Plaintiff is suing Sokolowski in her official capacity as "State Program Specialist" for the Corporation in Pennsylvania. ( Id. ¶ 6.)
Plaintiff asserts venue in the Eastern District of Pennsylvania under 28 U.S.C. § 1391(e). (Am. Compl. ¶ 2.) Section 1391(e) states in pertinent part:
A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity or under color of legal authority, or an agency of the United States, or the United States, may, except as otherwise provided by law, be brought in any judicial district in which (1) a defendant in the action resides, (2) a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) the plaintiff resides if no real property is involved in the action. Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.28 U.S.C. § 1391(e) (emphasis added).
This specific venue provision distinguishes between certain federal defendants and all non-federal defendants. While a plaintiff has several broad venue options regarding federal defendants, including the district in which the plaintiff resides, the statute imposes an additional burden on a plaintiff who wishes to join a non-federal defendant. Under the plain language of § 1391(e), a plaintiff must demonstrate that venue is proper as to each non-federal defendant in an action by relying on a separate venue provision. See Lamont v. Haig, 590 F.2d 1124, 1128-29 (D.C. Cir. 1978) (holding that § 1391(e) did not apply to appellees who were former federal government officials when action was filed); 17 James Wm. Moore et al., Moore's Federal Practice ¶ 110.31[5] (3d ed. 1999) ("[V]enue must be established with respect to the additional parties under the requirements that would be applicable if the United States or one of its officers, employees, or agencies were not a party."). Thus, a defendant cannot rely solely on the venue provisions of § 1391(e) in seeking to join a non-federal defendant.
Plaintiff relies on Hagan v. United States, Civ. A. No. 01-5506, 2002 WL 338882 (E.D. Pa. Mar. 2, 2002), to support his assertion that § 1391(e) applies to each of the Defendants in this action. Hagan is inapposite. In Hagan, the plaintiff sued the United States Attorney for the Northern District of Texas, the Chief Judge for the United States District Court of the Northern District of Texas, the Department of Justice, and other agents of the Department of Justice. The court concluded that there was proper venue under § 1391(e), id. at *5. In reaching the conclusion that venue was proper the court noted that Plaintiff resided within the district and that § 1391(e) applied to all of the federal defendants. There were no non-federal defendants in the litigation.
The United States Court of Appeals for the District of Columbia Circuit provided more instructive guidance on this discrete issue in Lamont v. Haig. There, the plaintiff filed suit against various defendants, all of whom held positions with the federal government. Id. at 1127. When plaintiff commenced his suit, however, not all of the defendants were federal governmental employees. Thus, the court recognized that venue could not be established as to the non-federal defendants under § 1391(e). Id. at 1128-29 ("[I]f suit is sought to be maintained not only against a federal defendant embraced within Section 1391(e) but also against an `additional person(),' there must be proper venue as specified in the pertinent statutes as to each.") (quoting § 1391(e)). While § 1391(e) applied to those defendants who were federal employees when the suit was filed, the plaintiff was required to establish venue as to the nonfederal defendants by relying on § 1391(b). See id. at 1126.
The District of Columbia circuit court interpreted the same venue provision that is at issue before this Court. Compare pertinent language of 28 U.S.C. § 1391(e) (1976) ("Additional persons may be joined as parties to any such action in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party.") with applicable provision of 28 U.S.C § 1391(e) (2000) (same).
ACS is neither an agency of the United States nor the United States. Thus, Plaintiff cannot establish venue under § 1391(e). Instead, he may only join ACS as a Defendant "in accordance with the Federal Rules of Civil Procedure and with such other venue requirements as would be applicable if the United States or one of its officers, employees, or agencies were not a party." 28 U.S.C. § 1391(e). Because ACS is a non-federal Defendant, Plaintiff must establish venue as to ACS under a provision other than § 1391(e).
Contrary to Plaintiff's assertion, it is irrelevant that ACS receives federal assistance. Applying such a standard would contravene the clear language of § 1391(e).
B. Venue Under § 1391(b)
In its Motion to Dismiss, Defendant ACS argues that venue is improper under § 1391(b). Plaintiff asserts that he does not rely on this section and that he instead seeks to establish venue under § 1391(c). ( See Response In Opp'n to ACS Mot. to Dismiss at 8-10.) Plaintiff is correct in suggesting that § 1391(c) outlines the test for determining where a defendant corporation resides. However, this test "applies only when the plaintiff has opted to lay venue in the defendant's district of residence, which the plaintiff can do either in a diversity case under [§ 1391(a)] or in any other kind of case under [§ 1391(b)]." David D. Siegel, Commentary on 1988 and 1990 Revisions of Section 1391, Application to Defendant Corporation, 28 U.S.C.A. § 1391 (1993). Because jurisdiction in this case is not based solely on diversity of citizenship, ( see Am. Compl. ¶ 1), § 1391(c) can only apply to § 1391(b).
Courts in this District often use § 1391(c) to interpret the term "reside" in 28 U.S.C. § 1391(b). See, e.g., Taylor Francis Group, PLC v. McCue, 145 F. Supp. 2d 627, 629 (E.D. Pa. 2001); Standard Knitting, Ltd. v. Outside Design, Inc., Civ. A. No. 00-2288, 2000 U.S. Dist. LEXIS 8633, at *3 (E.D. Pa. June 21, 2000).
Addressing next each of the relevant venue provisions of § 1391(b) to determine whether venue is proper, § 1391(b) provides:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.28 U.S.C. § 1391(b). ACS argues that venue is not proper in the Eastern District of Pennsylvania under 28 U.S.C. § 1391(b) because none of the Defendants reside in this district, nor did the underlying events substantially take place in the District.
Plaintiff cannot rely on § 1391(b)(1) because he has not demonstrated that all of the Defendants reside in the same state. The Corporation is a part of the federal executive branch and is headquartered in the District of Columbia. (Am. Compl. ¶ 4.) Knight argues that the Corporation should still be deemed to reside in the Eastern District of Pennsylvania under 28 U.S.C. § 1391(c). However, this section does not apply to federal agencies. See Davies Precision Machining, Inc. v. Defense Logistics Agency, 825 F. Supp. 105, 108 (E.D. Pa. 1993). In Davies, the court held that § 1391(c) did not apply to the Defense Logistics Agency, which was a federal agency. Id. ("I cannot find a general rule that all federal agencies are to be viewed as public corporation[s] for 28 U.S.C. § 1391(c) purposes. If that were the intent of Congress such a provision could have easily been added to the venue subsection dealing specifically with federal agencies and officials."). Plaintiff has cited no authority in support of his position that § 1391(c) applies to federal agencies, and we are aware of none. Because the text of the venue statute does not suggest that the term "corporation" should be broadly construed to apply to federal agencies, we decline to adopt such an expansive reading of the term.
It is irrelevant that the Corporation for National and Community Service is a government corporation since such an entity is an executive agency. 5 U.S.C. § 105. As such, it is subject to the venue provisions detailed in § 1391(e). See Galvan v. Fed. Prison Indus., 199 F.3d 461, 464 (D.C. Cir. 1999).
Plaintiff also avers that the Corporation resides in Pennsylvania, and that it specifically resides within the Eastern District of Pennsylvania, because it has an office in Philadelphia. (Am. Compl. ¶ 6.) However, a federal agency does not reside in a state for purposes of the venue statute merely because it has an office in that state. See Davies Precision Machining, 825 F. Supp. at 107. Instead, "a federal agency sued in its own name is considered to be a resident of the District of Columbia only." 17 James Wm. Moore et al., Moore's Federal Practice ¶ 110.31[4][a] (3d ed. 1999) (interpreting term "resides" in context of § 1391(e)). The venue statute does not suggest that a different definition of reside applies depending on whether a court is construing the term in the context of § 1391(b)(1) or § 1391(e). Thus, we conclude that the Corporation is not a resident of Pennsylvania under § 1391(b)(1).
Adopting such an approach would "render subsections (2), (3), and (4) [of § 1391(e)] superfluous," Reuben J. Donnelley Corp. v. Fed. Trade Comm'n, 580 F.2d 264, 267 (7th Cir. 1978), and "would mean that a plaintiff could file a suit in any district regardless of how remote that district's contact may be with the litigation." Id.
Plaintiff also cannot rely on § 1391(b)(1) because Leslie Lenkowsky does not reside in Pennsylvania. Plaintiff is suing Lenkowski in his official capacity as Chief Executive Officer of the Corporation. The residence of a federal officer is determined by the place where he performs his official duties. See, e.g., Florida Nursing Home Ass'n v. Harris, 616 F.2d 1355, 1360 (5th Cir. 1980), rev'd on other grounds, 450 U.S. 147 (1981); Reuben J. Donnelley Corp. v. Fed. Trade Comm'n, 580 F.2d 264, 266 n. 3 (7th Cir. 1978); 17 James Wm. Moore et al., Moore's Federal Practice ¶ 110.03[3] (3d ed. 1999). Since Lenkowski performs his official duties in the District of Columbia, ( see Am. Compl. ¶ 5; Id., Ex. A at 17), he is deemed to reside in the District of Columbia. Because neither the Corporation nor Lenkowski reside in Pennsylvania, § 1391(b)(1) is not applicable.
Venue as to ACS also is unavailable under § 1391(b)(2) because the events giving rise to Plaintiff's claims against ACS did not arise in the Eastern District of Pennsylvania. Section 1391(b)(1) states that venue exists in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." 28 U.S.C. 1391(b)(2). In interpreting this provision, the Third Circuit has explained that "the current statutory language still favors the defendant in a venue dispute by requiring that the events or omissions supporting a claim be `substantial.' Events or omissions that might only have some tangential connection with the dispute in litigation are not enough." Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994). Further, the Court's determination must be guided by the nature of the claims asserted against the defendant. Id. at 295.
Plaintiff raises the same legal claims against each Defendant, alleging discrimination on the basis of sex and race in violation of Title VI, Title IX, the DVSA, and the NCSA. A review of Plaintiff's Complaint reveals that a substantial part of the events giving rise to his claims against ACS occurred in the Middle District of Pennsylvania. Knight was assigned by the Corporation to work for ACS in Bradford County, (Am. Compl. ¶¶ 18-19), in the Middle District. The VISTA Leader position for which Plaintiff wanted to apply was available in Bradford County. (Am. Compl. ¶ 45.) Haun, who developed the VISTA project for Bradford County, supervised Plaintiff, and declined to select him for the VISTA Leader position, worked at the ACS North Central Region in Williamsport, Pennsylvania, (Am. Compl. ¶¶ 22, 24, 26, 56; Id., Ex. A at 5), which is also in the Middle District. Because a substantial part of the events or omissions giving rise to Plaintiff's claims against ACS do not arise in the Eastern District of Pennsylvania, venue in this district is improper as to ACS.
We also note that Plaintiff also cannot rely on 28 U.S.C. § 1391(b)(3) because venue is proper in another judicial district.
II. Transfer
When venue is improper, the Court may, in the interest of justice, dismiss the case or transfer it to a district court in which the case could have been brought. 28 U.S.C. § 1406(a) (2000); see also Goldlawr, Inc. v. Heiman, 369 U.S. 463, 464 (1962). Dismissal is a disfavored remedy because of the strains it imposes on judicial and party resources. NCR Credit Corp. v. Ye Seekers Horizon, Inc., 17 F. Supp. 2d 317, 319 (D.N.J. 1998). Thus, the statute permits a court to transfer a case to a district where venue is proper, instead of merely dismissing it. We will not dismiss the instant case because dismissal would impose unnecessary costs on both Plaintiff and the judicial system.
Section 1406(a) provides: "The district court of a district in which is filed a case lying 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." 28 U.S.C. 1406(a).
Once a court determines that proper venue does not exist, it may transfer the case to an appropriate district sua sponte. DiFillipo v. Sherenian, Civ. Action No. 95-4445, 1996 U.S. Dist. LEXIS 1372, at *8 (E.D. Pa. Feb. 9, 1996); Wims v. Beach Terrace Motors Inn, Inc., 759 F. Supp. 264, 270 (E.D. Pa. 1991); 17 James Wm. Moore et al., Moore's Federal Practice ¶ 111.34[1] (3d ed. 1999).
When venue is proper for one defendant but not for other defendants and dismissal is not appropriate, the district court can either transfer the entire case to a district that is proper for both defendants or sever the claims. Cottman, 36 F.3d at 296. However, "[w]hen the conduct of a codefendant as to whom venue is proper is central to the issues raised by the plaintiff against those subject to transfer, the grant of a severance would not ordinarily be consistent with the sound exercise of discretion." Id.
Here, the conduct of the Federal Defendants is central to the issues raised by the Plaintiff against ACS. Plaintiff's legal claims against each of the Defendants implicate factual issues which are shared by all of the Defendants. While separate entities, the Corporation and ACS shared responsibilities developing and managing the Americorps*VISTA/ACS program in Bradford County. While Plaintiff Knight was employed by Defendant Corporation, his immediate project supervisor was an ACS employee. (Am. Compl. ¶ 26.) Plaintiff asserts that all of the Defendants were involved in the decision to fill the VISTA Leader position for the Americorps*VISTA/ACS project in Bradford County. ( Id. ¶¶ 51, 56.) Severing Plaintiff's claims against ACS from those asserted against the Federal Defendants would require two courts to consider many of the same legal and factual issues, which would not serve basic principles of judicial economy.
Because venue is improper in this district as to ACS, we will, in the interests of justice, transfer this action to the Middle District of Pennsylvania, where the action could have been brought originally. Venue in that judicial district is proper as to ACS under 28 U.S.C. § 1391(b)(2), and venue is proper as to the Federal Defendants under 28 U.S.C. § 1391(e)(2).
An appropriate Order follows.
ORDER
AND NOW, this 28th day of October, 2004, upon consideration of Defendant American Cancer Society's Motion to Dismiss (Doc. No. 24), and Defendants Corporation for National and Community Service, Leslie Lenkowsky, and Gloria Sokolowski's Motion to Dismiss (Doc. No. 26), and all documents filed in support thereof, and in opposition thereto, it is ORDERED as follows:1. Defendant American Cancer Society's Motion to Dismiss (Doc. No. 24) is GRANTED in PART and DENIED in PART. The Motion is GRANTED as to improper venue and the case is TRANSFERRED to the United States District Court for the Middle District of Pennsylvania. The Motion is DENIED without prejudice in all other respects.
2. Defendants Corporation for National and Community Service, Leslie Lenkowski, and Gloria Sokolowski's Motion to Dismiss (Doc. No. 26) is DENIED without prejudice.
3. The Clerk of Court is directed to transfer this action to the United States District Court for the Middle District of Pennsylvania.
IT IS SO ORDERED.