LARRY E. GOUGE, JR., Plaintiff,
CSX TRANSPORTATION, INC., Defendant.
MEMORANDUM and ORDER
DAVID R. HERNDON, Chief District Judge.
I. Introduction and Background
Before the Court is CSX Transportation, Inc.'s motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3) (Doc. 10). Specifically, defendant moves the Court to dismiss without prejudice plaintiff's cause of action on the grounds that venue is not proper or in the alternative to transfer this cause of action pursuant to 28 U.S.C. §1404(a). Plaintiff opposes the motion (Doc. 19). As the Court finds that venue is proper and that defendant has not met its burden of demonstrating that the Eastern District of Tennessee is clearly more convenient, the Court DENIES the motion.
On November 1, 2012, Larry E. Gouge, Jr., filed a complaint against CSX Transportation, Inc. ("CSX") for violations of the Federal Rail Safety Act, 49 U.S.C. § 20109 ("FRSA") (Doc. 2). Gouge works as a conductor for CSX on its KD subdivision which runs from Corbin, Kentucky to Etowah, Tennessee. The complaint alleges that CSX repeatedly harassed and discriminated against Gouge because he filed a personal injury report and reported unsafe conditions at CSX.
The complaint alleges the following. On December 2, 2009, Gouge completed a Report of Personal Injury after he was struck and injured by overgrown trees and vegetation while riding on the side of a rail car. As a result, Gouge was out of work for about one year until November 17, 2010 when he returned to work for CSX. Upon returning to work, CSX subjected plaintiff to intimidation, harassment, discrimination, and unfavorable personnel actions. Pursuant to 49 U.S.C. § 20109, plaintiff engaged in protected activities and CSX was aware that activities were protected. In April 2011, Gouge filed a complaint with the Occupational Safety and Health Administration ("OSHA") claiming that CSX retaliated against him in violation of FRSA because of his December 2009 workplace injury. Subsequently, Gouge amended his complaint with OSHA.
CSX moves to dismiss without prejudice this case for improper venue arguing that Gouge filed the case here "solely because his counsel maintains an office in this district." CSX maintains that venue is not proper in this district under the FRSA's venue provision or the federal venue statute provision. Alternatively, CSX moves the Court to transfer the Eastern District of Tennessee where the parties reside and the relevant events occurred. Gouge responds that venue is proper under the federal venue statute as CSX resides in this district because it operates Rose Lake Yard in East St. Louis, Illinois and operates a "major rail yard in East St. Louis, Illinois." Also, plaintiff argues that CSX has failed to show that the Eastern District of Tennessee is clearly more convenient. The Court agrees with plaintiff.
Rule 12(b)(3) provides that a party may move to dismiss based on improper venue. Fed.R.Civ.P. 12(b)(3). In ruling on a motion to dismiss for improper venue, the court follows the same standard as for a Rule 12(b)(2) dismissal, taking all the allegations in the complaint as true and drawing all reasonable inferences in favor of the plaintiff. See Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 806 (7th Cir.2011) (citing Kochert v. Adagen Med. Int'l, Inc., 491 F.3d 674, 677 (7th Cir.2007)). The defendant has the burden of showing that venue is improper. Granader v. Peachtree Lane Assocs. (In re Peachtree Lane Assocs.), 150 F.3d 788, 794 (7th Cir.1998).
Under 28 U.S.C. § 1391(b), applicable to civil actions wherein jurisdiction is not founded solely on diversity, venue is proper 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 (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). Furthermore, for the purposes of determining venue under this provision, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. 28 U.S.C. § 1391(c).
Clearly, pursuant to 28 U.S.C. § 1391(b)(1), venue is proper in this judicial district. CSX resides in this judicial district because it owns and operates rail yards in East St. Louis, Illinois which are located in this judicial district.
Next, the Court must address defendant's arguments as to the venue provision contained in the FRSA. Defendant contends that under FRSA venue is proper in the Eastern District of Tennessee as that is where the violations occurred. Defendant maintains that while 49 U.S.C. §20109(d)(3) does not define the "appropriate district court, " 49 U.S.C. § 20109(d)(2)(A)(iii) provides for the Secretary of Labor the right to bring an action to enforce the orders entered by it "in the district court... in which the violation occurred." Thus, according to defendant, venue is proper in the Eastern District of Tennessee. Plaintiff responds that Congress did not promulgate a special rule for venue in FRSA.
49 U.S.C. § 20109(d)(3) provides:
De novo review.-With respect to a complaint under paragraph (1), if the Secretary of Labor has not issued a final decision within 210 days after the filing of the complaint and if the delay is not due to the bad faith of the employee, the employee may bring an original action at law or equity for de novo review in the appropriate district court of the United States, which shall have jurisdiction over such an action without regard to the amount in ...