The opinion of the court was delivered by: Hon. Dana M. SABRAWUnited States District Judge
ORDER RE: DEFENDANTS' MOTION TO DISMISS COMPLAINT
Pending before the Court is Defendants' motion to dismiss Plaintiff's Complaint for lack of personal jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(2), improper venue pursuant to Rule 12(b)(3) and 42 U.S.C. § 2000e-5(f)(3), improper service pursuant to Rule12(b)(5), and failure to state a claim pursuant to Rule 12(b)(6).
Plaintiff alleges she was subjected to sexual harassment and gender discrimination while employed as a millwright working for Defendant Siemens Generation Services ("SGS"). On December 13, 2010, Plaintiff filed a Complaint in this Court. (Doc. 1.) In the Complaint, Plaintiff states ten claims for relief: (1) sexual harassment in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), (2) gender discrimination in violation of Title VII, (3) retaliation in violation of Title VII, (4) assault, (5) battery, (6) intentional or reckless infliction of emotional distress, (7) negligent infliction of emotional distress, (8) negligent and/or wanton supervision, training, and retention, (9) negligent and/or wanton hiring, and (10) respondeat superior liability. (Doc. 1.) On March 22, 2011, Defendants SGS, Michael McCormick, and Steve Cooper filed the instant motion to dismiss. (Doc. 11.) Plaintiff filed an opposition and Defendants filed a reply. (Docs. 23-24.)
The Court first addresses Defendants' motion to dismiss for improper venue pursuant to Rule 12(b)(3) and 42 U.S.C. § 2000e-5(f)(3).
In general, venue is proper in any judicial district where any defendant resides, if all defendants reside in the same state, or in any judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C. § 1391(b). For venue purposes, a corporation is deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced, and in states such as California that have more than one judicial district, a corporation is deemed to reside in any district in the state within which its contacts would be sufficient to subject it to personal jurisdiction if the district were a separate state. 28 U.S.C. § 1391(c). However, actions arising under Title VII are additionally subject to the special venue provisions of 42 U.S.C. § 2000e-5(f)(3). See Johnson v. Payless Drug Stores NW, Inc., 950 F.2d 586, 587-88 (9th Cir. 1991); see also Berry v. Potter, No. CIV 04-2922 PHX RCB, 2006 WL 335841, at *2 (D. Ariz. Feb. 10, 2006)("The appropriate venue for Plaintiff's Title VII claim must be determined based on 42 U.S.C. § 2000e-5(f)(3), not 28 U.S.C. § 1391(e). This is because the general venue statute . . . is only operative 'except as otherwise provided by law,' and 42 U.S.C. § 2000e-5(f)(3) provides otherwise for Title VII claims.").
Section 2000e-5(f)(3) provides that Title VII actions 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." 42 U.S.C. § 2000e-5(f)(3). The section also provides that, "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." Id. "Analysis under Rule 12(b)(3) . . . permits the district court to consider facts outside of the pleadings." Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 324 (9th Cir. 1996).
Section 2000e-5(f)(3) sets forth the judicial districts in which venue is proper for actions stating claims for violation of Title VII. The first prong of § 2000e-5(f) provides that Title VII actions may be brought in any judicial district in the state in which the unlawful employment practice is alleged to have been committed. "The Ninth Circuit has construed the venue provision to hold that 'venue is proper in both the forum where the employment decision is made and the forum in which that decision is implemented or its effects are felt.'" Ellis v. Costco Wholesale Corp., 372 F. Supp. 2d 530, 536 (N.D. Cal. 2005)(quoting Passantino v. Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000)). Plaintiff alleges she suffered sexual harassment, gender discrimination, and retaliation in violation of Title VII while working for Defendant SGS in Nevada, Georgia, Texas, and Puerto Rico. (Complaint ¶¶ 17, 35, 45, 62, 96.) Plaintiff does not allege any conduct in violation of Title VII that occurred within or had any direct connection to the State of California.
The second prong of § 2000e-5(f)(3) provides that an action for violation of Title VII may be brought in the judicial district in which the employment records relevant to the alleged unlawful employment practices are maintained and administered. Defendants make an uncontested assertion that, because SGS has no permanent offices, assets, or employees in California, they do not maintain or administer "any employment records--much less employment records relevant to the alleged unlawful employment practices," in California. (Mot. to Dismiss at 13.) Plaintiff does not submit any evidence to the contrary.
The third prong of § 2000e-5(f)(3) provides that an action for violation of Title VII may be brought in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice. Plaintiff asserts that she "resides in California and would have worked, for Siemens, in California, absent the violations of Federal and State law," and that "Plaintiff has been barred from working anywhere for SGS including her local working area." (Opp'n. at 4.)
All parties agree that an incident on October 10, 2009 led directly to the termination of Plaintiff's employment with SGS. Plaintiff asserts that she "effected a constructive discharge on October 10, 2009 after being subjected to an extremely hostile work environment at Comanche Peak Nuclear Generating Station in Glen Rose, Texas." (Complaint ¶ 96). Plaintiff further states that SGS sent correspondence dated December 22, 2009 and February 16, 2010 to union representatives in Savannah and Kennesaw, Georgia explaining why Plaintiff was not to be referred to any SGS jobs until after April 10, 2010: (1) unreported absence of three consecutive workdays, and (2) a "quit" at the Comanche Peak outage. (Opp'n. Exs. C, D.) In the same letters, SGS stated Plaintiff would be considered for "reemployment" after April 10, 2010. (Opp'n. Ex. C.) Plaintiff does not contest the assertion that her suspension was based on her conduct and she does not state a claim for wrongful termination. Likewise, Defendants do not contest Plaintiff's assertion that her conduct on October 10, 2009 was a result of the alleged unlawful employment practices. Based on the assertions of the parties, violations of Title VII may have been the "but for" cause of Plaintiff's decision to effect discharge on October 10, 2009. Accordingly, it ...