Opinion
No. C 03-2484 CW.
November 4, 2004
ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, DEFENDANT'S MOTION TO DISMISS, AND DEFENDANT'S MOTION TO TRANSFER VENUE.
Defendant Alaska Tanker Company, LLC moves for summary adjudication of Plaintiff Patrick Lynch's claims for vessel negligence under the Jones Act, "unseaworthiness," and disparate treatment and retaliation under Title VII. Pursuant to Federal Rule of Civil Procedure 12(b)(3), Defendant also moves to dismiss for improper venue Plaintiff's complaint or, in the alternative, to transfer venue. Plaintiff opposes these motions. This matter was submitted on the papers. Having considered the parties' papers, the Court GRANTS in part Defendant's motion for summary judgment, DENIES Defendant's motion to dismiss, and GRANTS Defendant's motion to transfer venue to the District of Oregon.
BACKGROUND
Defendant, headquartered in Beaverton, Oregon, provides transportation of crude oil between Alaska, the western coast of the United States, and Hawaii. In February, 2002, Plaintiff was employed as a merchant seaman by Defendant on board the Defendant-owned SS KENAI, a vessel captained by Richard Holman. Shortly before midnight on February 23, 2002, Plaintiff was on board a small vessel launch that was returning Plaintiff and several co-workers to the SS KENAI following a day of shore leave in Port Angeles, Washington. On board the launch with Plaintiff were Charles Walker, Samuel Train, Daniel Lovely, Self Salvation and John Rapacki. While riding the launch back to the vessel, Plaintiff got into an argument with Walker that, according to Plaintiff and several witnesses, soon escalated into a physical altercation. The parties dispute the extent to which Walker was the physical aggressor in the confrontation, but Plaintiff maintains that he was physically assaulted by Walker after Walker subjected him to racial epithets. Plaintiff is Filipino American and Walker is African American.
The next morning, Captain Holman began an investigation into the matter, and later in the day both Plaintiff and Walker were discharged for fighting. On April 14, 2003, Plaintiff filed suit in San Francisco Superior Court alleging (1) vessel negligence under the Jones Act, (2) unseaworthiness of the SS KENAI, and
(3) disparate treatment on the basis of race and retaliation under Title VII. Plaintiff's lawsuit was removed to this Court on May 27, 2003. Venue appeared to be proper in this District upon removal because, under the Jones Act, a company may be sued in any federal district in which it is incorporated or doing business. Pure Oil Co. v. Suarez, 384 U.S. 202, 203 (1966). Defendant's vessels periodically dock in ports within the jurisdiction of this District.
On August 13, 2004, Defendant moved for summary judgment. On September 10, 2004, Plaintiff filed his opposition papers, but he did not oppose Defendant's motion for summary judgment as to either Plaintiff's Jones Act claim or his claim for unseaworthiness, stating that he did not have sufficient facts to support those claims. Plaintiff also stated his willingness to stipulate to the dismissal of both the Jones Act claim and the unseaworthiness claim. On September 17, Defendant filed its motion to dismiss or, in the alternative, to transfer venue.
After being discharged, Plaintiff was subsequently rehired by Defendant and has been continually employed by Defendant since January, 2003.
LEGAL STANDARD
I. Federal Rule of Civil Procedure 56
Summary judgment is properly granted when no genuine and disputed issues of material fact remain, and when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 1987).
The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324;Eisenberg, 815 F.2d at 1289. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Intel Corp. v. Hartford Accident Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991).
Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of showing that no genuine issue of material fact remains by demonstrating that "there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. The moving party is not required to produce evidence showing the absence of a material fact on such issues, nor must the moving party support its motion with evidence negating the non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), cert. denied, 502 U.S. 994 (1991). If the moving party shows an absence of evidence to support the non-moving party's case, the burden then shifts to the opposing party to produce "specific evidence, through affidavits or admissible discovery material, to show that the dispute exists." Bhan, 929 F.2d at 1409. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial. Celotex, 477 U.S. at 323.
II. Federal Rule of Civil Procedure 12(b)(3)
The defense of improper venue may be raised in a first responsive pleading or by a separate pre-answer motion pursuant to Federal Rule of Civil Procedure 12(b). However, the defense is ordinarily waived if not timely and properly raised. Fed.R.Civ.P. 12(h); Am. Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1106-07 (9th Cir. 2000). Where a party files a motion for summary judgment prior to moving to dismiss for improper venue, "such action constitutes a tacit admission on the part of the movant that the court has personal jurisdiction, that venue is properly laid there, and that the court should dispose of the case on its merits." Misch v. Zee Enters., Inc., 879 F.2d 628, 631-32 (9th Cir. 1989).
III. 28 U.S.C. Section 1404(a)
Title 28 U.S.C. section 1404(a) provides as follows: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." The statute, therefore, identifies three basic factors for district courts to consider in determining whether a case should be transferred: (1) convenience of the parties, (2) convenience of the witnesses, and (3) the interests of justice. 28 U.S.C. § 1404(a). The Ninth Circuit has ruled that a fourth factor for the court to consider is the plaintiff's choice of forum. Sec. Investor Prot. Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985). The burden is on the defendant to show that the convenience of parties and witnesses and the interests of justice require transfer to another district. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). The Supreme Court has ruled that section 1404(a) analysis should be an "individualized, case-by-case consideration of convenience and fairness." Van Dusen v. Barrack, 376 U.S. 612, 622 (1964).
DISCUSSION
I. Summary Judgment
Plaintiff concedes that he does not have sufficient facts to support his Jones Act claim or his claim for unseaworthiness. Because no genuine dispute of material fact remains, the Court grants Defendant's motion for summary judgment of those claims. However, for reasons set forth below, the Court defers ruling on Defendant's summary judgment motion as to Plaintiff's remaining Title VII claims to the District Oregon.
II. Federal Rule of Civil Procedure 12(b)(3)
Defendant did not file its motion to dismiss for improper venue within twenty days after being served with the complaint as required by Federal Rule of Civil Procedure 12. Moreover, Defendant moved for summary judgment prior to filing its motion to dismiss for improper venue. Defendant's motion to dismiss is denied.
III. 28 U.S.C. Section 1404(a)
Defendant moves, in the alternative, for transfer of venue of Plaintiff's remaining Title VII claims for disparate treatment and retaliation to the District of Oregon. While the issue of venue is ordinarily waived if a party moves for summary adjudication, the venue issue did not arise in this case until Plaintiff conceded in his opposition to Defendant's summary judgment motion that he could not sustain his Jones Act and unseaworthiness claims. Thus, a motion for transfer of venue is now both timely and appropriate. The Court must consider the three factors listed in section 1404(a) and the fourth identified by the Ninth Circuit to determine whether transfer of venue is proper in this case.
A. Convenience of the Parties
Defendant's principal place of business is located in Beaverton, Oregon, and Defendant maintains that it possesses documents relevant to this case in its Beaverton headquarters. Moreover, while Defendant does business in the Northern District of California inasmuch as its movable workplaces (i.e. its merchant vessels) periodically port here, it is inconvenient for Defendant to defend this lawsuit in this District.
Plaintiff is a merchant seaman currently employed by Defendant. According to Plaintiff, merchant seamen, by the nature of their work, are generally not readily available for depositions or, presumably, other trial-related engagements. Dry land is an inherently inconvenient venue for those who make their living spending long periods of time at sea. That understood, the principal place of business of a merchant seaman's employer is as convenient a venue for that seaman as any other location absent a showing to the contrary. For venue purposes, the District of Oregon is at least as convenient for Plaintiff as is the Northern District of California.
B. Convenience of the Witnesses
By Plaintiff's own admission, all witnesses to the altercation between Plaintiff and Walker and all witnesses to the adverse and complained of employment decision made by Defendant were and/or currently are employed by Defendant. Because Defendant's principal place of business is located in the District of Oregon, that District is a more convenient venue than the Northern District of California for those witnesses.
C. Interests of Justice
This prong of section 1404(a) analysis strongly favors Defendant's motion for transfer of venue. Venue originally appeared to be proper in this District only because of Plaintiff's Jones Act claim. Both the altercation between Plaintiff and Walker and the complained of employment decision took place on the SS KENAI, which was located at the time just off the coast of Port Angeles, Washington. Defendant's principal place of business is in Beaverton, Oregon. Neither the parties nor the facts that underlie any of Plaintiff's claims are connected in any way to this District.
Plaintiff's only currently viable claims are his Title VII claims. Under Title VII, venue is proper
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). Had Plaintiff pursued only his Title VII claims from the outset, venue would have proper only in the Western District of Washington, where the complained of employment decision occurred, or in the District of Oregon, where the employment records relevant to the case are maintained and where Defendant has its principal place of business.
Leaving aside the question of whether Plaintiff initially had a good faith belief that he could sustain a Jones Act claim, the interests of justice now strongly disfavor laying venue in this District. Plaintiff should pursue his Title VII claims in a District in which they could have been brought properly if they stood alone, which Plaintiff concedes they now do.
D. Plaintiff's Choice of Forum
In general, a plaintiff's choice of forum "should rarely be disturbed." Sec. Investor, 764 F.2d at 1317. However, there are exceptions to the general rule. "Ordinarily, where the forum lacks any significant contact with the activities alleged in the complaint, plaintiff's choice of forum is given considerably less weight . . ." IBM Credit Corp. v. Definitive Computer Servs, Inc., 1996 WL 101172, *2 (N.D. Cal. 1996). In IBM Credit Corp., a court in this District transferred that case to the Northern District of Texas, where the disputed agreements took place, where the witnesses resided, and where the agreements were to be executed. Id. The only thing that tied the dispute in that case to this District was a forum selection clause in one of the disputed agreements.
The facts in IBM Credit Corp. are analogous to those in this case. Nothing connects the facts alleged in Plaintiff's complaint to this District. The only connection between this case and the Northern District of California is a provision in the Jones Act, which claims Plaintiff now concedes are not supported by the facts. It is appropriate that the Court transfer this case to a District with some relevant connection to the parties, witnesses and facts of the case.
IV. Title VII Venue Requirements
Under section 1404(a), if the factors weigh in favor of transfer of venue, "a district court may transfer any civil action to any other district or division where it might have been brought." Defendant asks that the case be transferred to the District of Oregon, arguing persuasively that the challenged employment decision took place in the Western District of Washington only because the SS KENAI happened to be anchored in Port Angeles, Washington at the time of the incident giving rise to these claims. The District of Oregon is a more logical and convenient venue for Plaintiff's remaining Title VII claims. The Court therefore transfers Plaintiff's remaining claims to the District of Oregon.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part Defendant's motion for summary judgment, DENIES Defendant's motion to dismiss, and GRANTS Defendant's motion for transfer of venue as set forth above. The Court grants Defendant summary judgment on Plaintiff's claims for vessel negligence under the Jones Act and unseaworthiness. The Court defers ruling on Defendant's motion for summary judgment of Plaintiff's Title VII claims to the District of Oregon. Venue of this case is hereby TRANSFERRED to the District of Oregon pursuant to 28 U.S.C. § 1404(a). The Clerk shall transfer the file.
IT IS SO ORDERED.