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Johnson v. Potter

April 13, 2007

KENNETH L. JOHNSON, PLAINTIFF,
v.
JOHN E. POTTER, POSTMASTER GENERAL OF THE UNITED STATES, DEFENDANT.



The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge

MEMORANDUM OPINION

This matter is before the court on Defendant's motion to transfer and motion to dismiss. For the reasons stated below, we grant the motion to transfer and deny the motion to dismiss.

BACKGROUND

Plaintiff Kenneth L. Johnson ("Johnson") contends that he was employed by the United States Postal Service ("USPS") from 1985 until he resigned on July 31, 2003. Johnson also alleges that he was rehired by the USPS as a letter carrier in October 2004 and that his employment was subject to a ninety-day probationary period. Johnson claims that the USPS terminated his employment on January 26, 2005, prior to the expiration of his probationary period, on the basis of his race.

Johnson brought the instant action against Defendant John E. Potter, Postmaster General of the United States, and includes a claim alleging a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and a claim alleging violation of 42 U.S.C. § 1981. Defendant moves to dismiss the instant action pursuant to Federal Rule of Civil Procedure 12(b)(3) ("Rule 12(b)(3)") and also to transfer venue pursuant to 28 U.S.C. § 1406(a).

LEGAL STANDARD

Rule 12(b)(3) provides that a party may move to dismiss an action when the action is not filed in a proper venue. Fed. R. Civ. P. 12(b)(3). If a court determines that it is not the proper venue for the action the court is required to dismiss the action or "if it be in the interests of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1406(a); see Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999)(stating that a sufficient reason to transfer a case to the proper venue rather than dismissing the case is that the plaintiff will be time-barred from filing a new claim in the other venue).

DISCUSSION

Defendant argues that the United States District Court for the Northern District of Illinois is not a proper venue for the instant action and that this case should either be dismissed or transferred to the United States District Court for the Southern District of Indiana pursuant to 28 U.S.C. § 1406(a).

I. Propriety of Venue in the Northern District of Illinois Under Title VII

Defendant argues that venue in the Northern District of Illinois is not proper. In all actions brought pursuant to Title VII, venue is determined pursuant to the statute's venue provision. 42 U.S.C. § 2000e-5(f)(3). Pursuant to the Title VII venue provision:

Such an action may be brought [1] in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, [2] in the judicial district in which the employment records relevant to such practice are maintained and administered, or [3] 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).

Defendant argues that each of the venue provisions of 42 U.S.C. ยง2000e-5 point to the proper venue as the Southern District of Indiana. Johnson was given until February 21, 2007, to file an answer to Defendant's motions and Johnson has not filed an answer to either the motion to dismiss or motion to transfer. Thus, Johnson has not opposed any of Defendant's arguments. In the instant action, Johnson's allegations against the USPS center on his employment with the USPS in Indianapolis, Indiana. Johnson alleges that he was formerly employed by the USPS in Indianapolis, Indiana. (Compl. Par. 4). In addition, Johnson alleges that he was terminated from his position at the USPS while he was employed by the USPS in Indianapolis, Indiana, (Compl. Par. 4, 13), and the facts indicate that, but for the termination of his employment, Johnson would have continued to work for the USPS in Indianapolis, Indiana. (D. Ex. 1). Finally, Johnson's official employment ...


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