IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
March 1, 2013
HENRY SCHEIN, INC.
The opinion of the court was delivered by: John A. Mendez United States District Court Judge
ORDER GRANTING DEFENDANT HENRY SCHEIN, INC.'S MOTION TO DISMISS FOR IMPROPER VENUE AND DENYING PLAINTIFF MARIA DAVIS' MOTION TO TRANSFER
At 9:30 a.m. on February 20, 2013, Defendant Henry Schein, Inc's Motion To Dismiss for Improper Venue (Docket No. 7) and Plaintiff Maria Davis's Motion to Transfer Pursuant to 28 U.S.C. § 1406 (Docket No. 10), came on regularly for hearing before this Court in Courtroom 6, the Honorable John A. Mendez presiding. Angela J. Rafoth and Jessica Rothenberg of Littler Mendelson P.C. appeared on behalf of Defendant, and Jennifer Tachera appeared on behalf of Plaintiff.
After considering the moving and opposition papers on the cross-motions, evidence and arguments of the parties, and all other matters presented to the Court, the Court finds that, good cause appearing, Plaintiff's Complaint shall be dismissed for improper venue, and the Court declines to exercise its discretion to transfer the case under 28 U.S.C. section 1406. Plaintiff has admitted that the Complaint filed in this Court improperly cited the general venue provision, 28 U.S.C. section 1391, rather than the special venue provision in Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e)-(5)(f)(3), which is applicable to Plaintiff's claims. Plaintiff further admits that venue is improper in this Court under Title VII's venue provision. Because Plaintiff has not submitted any evidence demonstrating diligence in determining the proper venue in which to bring her action, and has filed a substantively identical action in the District of Nevada, where the parties agree venue is proper, the Court finds that it is not in the interests of justice to transfer the action pending in this Court, and will grant Defendant's motion to dismiss.
IT IS HEREBY ORDERED THAT Defendant's Motion to Dismiss for Improper Venue (Docket No. 7) is GRANTED and Plaintiff's Motion to Transfer Pursuant to 28 U.S.C. Section 1406 (Docket No. 10) is DENIED.
IT IS SO ORDERED.
John A. Mendez
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