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Aljindi v. Northcentral University

United States District Court, E.D. California

February 23, 2018

AHMAD J. ALJINDI, Plaintiff,




         On September 26, 2017, plaintiff Ahmad J. Aljindi, who proceeds pro se, commenced this civil rights action, pursuant to 42 U.S.C. §§ 2000e-2000e-17, against defendant Northcentral University. (See ECF No. 1.)[1] Plaintiff filed the operative first amended complaint on November 9, 2017. (ECF No. 18.) Presently pending before the court are plaintiff's motion to transfer venue, and motion for default judgment (ECF Nos. 38, and 46), as well as defendant's motion to dismiss (ECF No. 41). An opposition and reply was filed to each motion. (ECF Nos. 45, 50, 51, 52, 54, 55). These motions came on regularly for hearing on February 22, 2018, at 10:00 a.m. (ECF No. 56.) At the hearing, pro se plaintiff Ahmad J. Aljindi appeared telephonically and Anthony J. DeCristoforo and Paul M. Smith appeared on behalf of defendant.

         After carefully considering the written briefing, the oral arguments of counsel, the court's record, and the applicable law, the court DENIES plaintiff's motion to transfer venue; DENIES plaintiff's motion for default judgment; GRANTS defendant's motion to dismiss; and DISMISSES the first amended complaint with leave to amend.


         When plaintiff initiated this action on September 26, 2017, he requested leave to proceed in forma pauperis (ECF No. 2), which the court granted (ECF No. 4). Thereafter, plaintiff filed several motions to disqualify the magistrate judge, to utilize the court's electronic filing system, and to appoint counsel. (See ECF Nos. 3, 7, 13, 14, 16, 23.) Each of these motions was denied. (See ECF Nos. 4, 11, 20, 26.)

         On October 31, 2017, plaintiff initiated a second action against defendant Northcentral University. See Aljindi v. Northcentral University, No. 2:17-cv-02288-JAM-KJN (PS) (E.D. Cal.). The court consolidated this second action with the instant action, and directed plaintiff to file a first amended complaint in the instant action, to bring all related claims in a single complaint. (See ECF No. 11.)

         Plaintiff filed the first amended complaint on November 9, 2017. (ECF No. 18.) Then, on November 15, 2017, while simultaneously denying three of plaintiff's motions (ECF Nos. 13, 14, 16), the court determined that service of the first amended complaint was appropriate, but explicitly advised that

The court reserves decision as to plaintiff's claims until the record is sufficiently developed, and this order does not preclude defendant from challenging plaintiff's first amended complaint through a timely motion pursuant to Federal Rule of Civil Procedure 12 or other appropriate method of challenging plaintiff's pleading.

(ECF No. 20 at 2.)

         The first amended complaint alleges that plaintiff-a Middle Eastern Muslim whose nation of origin is Syria-was discriminated and retaliated against by defendant Northcentral University, based on his race, religion, and national origin in violation of Title VII of the Civil Rights Act of 1964, as amended. (See generally ECF No. 18.) It also alleges that defendant bribed officials at the Equal Employment Opportunity Commission (“EEOC”), in an effort to have the EEOC dismiss plaintiff's complaints against defendant. (Id.)

         On November 22, 2017, defendant was sent a waiver of service, along with the first amended complaint, which defendant signed and returned on January 9, 2018. (ECF No 35.) The wavier explicitly advised “that a judgment may be entered against [defendant] . . . if an answer or motion under Rule 12 is not filed . . . and served upon plaintiff within 60 days after 11/22/2017.” (Id.)

         On Monday, January 22, 2018-61 days after November 22, 2017-defendant filed and served a motion to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF No. 41.) The following day, plaintiff opposed defendant's motion to dismiss; filed a motion for default judgment; and requested the Clerk of Court for an entry of default. (ECF Nos. 45, 46, 47). The Clerk of Court declined plaintiff's request for entry of default because defendant had filed a motion to dismiss. (See ECF No. 49.) Then, defendant replied to plaintiff's opposition and opposed plaintiff's motion for default judgment. (ECF Nos. 50, 52.)

         Previously, on January 16, 2018, plaintiff filed a motion to transfer venue to the United States District Court for the Central District of California (“Central District”) (ECF No. 38), which defendant has also opposed (ECF No. 51). On February 15, 2018, plaintiff changed his address of record with the court to a P.O. Box in Irvine, California. (See ECF No. 53.) At the hearing, plaintiff asserted that he currently resides in Riverside County, California.


         A. Motion to Transfer Venue

         1. Legal Standard

         “[A] district court may transfer any civil action to any other district or division where it might have been brought” based upon three factors: the convenience of parties, the convenience of witnesses, and the interest of justice. 28 U.S.C. § 1404(a). These “factors are in the inherently broad discretion of the [c]ourt, allowing the [c]ourt to consider the particular facts of each case. . . . [and they] break down to a number of relevant considerations: convenience of witnesses, judicial economy, relative ease of access to proof, and availability of compulsory process.” E. & J. Gallo Winery v. F. & P. S.p.A., 899 F.Supp. 465, 466 (E.D. Cal. 1994) (internal citations omitted).

         “The convenience of witnesses is said to be the most important factor in passing on a transfer motion.” Los Angeles Mem'l Coliseum Comm'n v. Nat'l Football League, 89 F.R.D. 497, 501 (C.D. Cal. 1981) (internal citations omitted); accord Filmline (Cross-Country) Productions, Inc. v. United Artists Corp. (2nd Cir. 1989) 865 F.2d 513, 520; Navajo Nation v. Urban Outfitters, Inc. (D NM 2013) 918 F.Supp.2d 1245, 1256.

         “While it is unusual for a plaintiff to move to transfer venue, a plaintiff may seek a transfer pursuant to Section 1404(a).” Cox v. Ashcroft, No. CVF05-149OWW/GSA, 2008 WL 802314, at *1 (E.D. Cal. Mar. 25, 2008). However, “a number of courts have held that when a plaintiff seeks to transfer venue, she must first demonstrate there has been a change in circumstances since the case was originally filed justifying transfer.” Howard v. CVS Caremark Corp., No. CV1304748SJOPJWX, 2013 WL 12164627, at *2 (C.D. Cal. Aug. 22, 2013) (collecting cases).

         Little deference is given to plaintiff's choice of venue, “when the plaintiff chooses a forum which has no connection to himself or the subject matter of the suit, ” Chrysler Capital Corp. v. Woehling, 663 F.Supp. 478, 482 (D. Del. 1987); accord Piper Aircraft Co. v. Reyno454 U.S. 235, 236 (1981), or when it is apparent that plaintiff is engaged in forum shopping. Royal ...

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