Opinion
Civil No. 3:03-CV-2706-H
April 16, 2004
MEMORANDUM OPINION AND ORDER
Before the Court are the Motion to Dismiss of Defendant AirTouch Cellular d/b/a Verizon Wireless ("Verizon Wireless"), filed February 20, 2004, and the response and the reply thereto. For the following reasons, the motion to dismiss is DENIED, and the case is TRANSFERRED to the United States District Court for the Central District of California, Southern Division.
I. Background
On November 6, 2003, Plaintiff James Caballes ("Caballes") filed the instant action against four Verizon entities, including Verizon Wireless, for retaliation in violation of Title VII of the Civil Rights Act of 1964. (P.'s Compl. at 1, 4.) Caballes alleges that Defendants failed to hire him for the position of District Manager of Retail Stores for Southern California because Caballes had previously filed a charge of discrimination against Verizon with the Equal Employment Opportunity Commission ("EEOC"). ( Id. at 4.) Prior to applying for the position in California, Caballes had worked for Verizon as an employee and as an independent contractor. ( Id. at 2-3.)
Verizon Wireless now moves to dismiss for lack of personal jurisdiction or, alternatively, for improper venue. The Court need not reach the issue of personal jurisdiction because the special venue provisions of Title VII, and the evidence before the Court, clearly warrant the transfer of this case to the Central District of California.
II. Legal Standards
Congress has established special venue provisions for Title VII cases. See In Re: Horseshoe Entertainment, 337 F.3d 429, 432 (5th Cir. 2003). Specifically, Title VII cases
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). Although a plaintiff's choice of forum is a factor to consider in determining venue, "the plaintiff's choice of forum must be one which is permitted under the relevant venue statute." In Re: Horseshoe Entertainment, 337 F.3d at 434-35. Finally, any transfer of a Title VII case due to improper venue must still meet the requirements set forth in 28 U.S.C. § 1404 or § 1406. See id. at 433. See also 42 U.S.C. § 2000e-5(f)(3) (referring expressly to §§ 1404 and 1406).
III. Analysis
As noted above, Verizon Wireless seeks dismissal of the instant action due to improper venue. (D.'s Br. at 1, 9.) Verizon Wireless presents evidence that the special venue provisions of Title VII render venue improper in this district. The Court agrees. Verizon Wireless submits evidence of the following: (1) that the alleged retaliatory act, i.e., the decision not to hire Caballes, occurred in California; (2) that the employment records relevant to the alleged retaliatory act are located in California; (3) that Caballes would have been required to work in California but for the alleged retaliatory act; and (4) that the principal office of Verizon Wireless is located in Irvine, California. (D.'s App. at Ex. A, Ex. B.) Caballes presents no evidence to the contrary. Accordingly, the Court concludes that venue is not proper in this district because not one of the special venue provisions of 42 U.S.C. § 2000e-5(f)(3) is satisfied.
Having concluded that venue is not proper in this district, the Court must next determine whether the case should be dismissed or transferred. Verizon Wireless contends that the case should be dismissed because Caballes should have reasonably foreseen that venue in this district was improper. (D.'s Br. at 8.) The Court disagrees. Where, as here, a plaintiff files a case in the "wrong" district or division for purposes of venue, 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 instant case has been pending for more than five months, and it is not clear from the record when Caballes first received his notice of right to sue from the EEOC. Thus, should the Court dismiss this case, it is conceivable-if not certain-that Caballes would be barred from reasserting his claims in the proper venue. See EEOC Procedural Regulations, 29 C.F.R. § 1601.28(e)(1), 42 U.S.C. foil. § 2000e-4 (stating that a notice of right to sue authorizes a person to bring suit under Title VII within 90 days after receiving such authorization). But see Office of Pers. Mgmt. v. Richmond, 496 U.S. 414, 439 (1990) (recognizing that "Title VII's requirement that suits be filed within 90 days of receiving a notice of right to sue from the [EEOC is] subject to tolling in appropriate circumstances, notwithstanding that the statute on its face [does] not allow exceptions"). Accordingly, the Court concludes that it is in the interest of justice to transfer this case to the Central District of California.
IV. Conclusion
For the foregoing reasons, Verizon Wireless's motion to dismiss is DENIED, and the case is TRANSFERRED to the United States District Court for the Central District of California, Southern Division, pursuant to 28 U.S.C. § 1406(a).
SO ORDERED.