Johnson v . General Dynamics CV-09-282-JL 12/18/09 P UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE
Brian J. Johnson
v. Civil N o . 09-CV-282-JL Opinion N o . 2009 DNH 194 General Dynamics Information Technology, Inc.
OPINION AND ORDER
This case presents competing requests to transfer venue of a
matter that, by virtue of a special statutory venue provision,
should have been filed elsewhere. Plaintiff Brian Johnson, an
enlisted member of the United States Army Reserve, filed suit
here against his former employer, General Dynamics Information
Technology, Inc. (“General Dynamics”), alleging that the company
failed to reinstate him to a comparable job after a brief period
of military service. He brought claims for breach of contract
and violation of the Uniformed Services Employment & Reemployment
Rights Act of 1994 (“USERRA”), 38 U.S.C. §§ 4301 et seq., which
prohibits employment discrimination on the basis of membership in
the armed forces.
USERRA has a provision that limits venue to districts where
the employer “maintains a place of business.” 38 U.S.C. §
4323(c)(2). General Dynamics, claiming it does not maintain a
place of business in New Hampshire, has moved to dismiss the case for improper venue o r , in the alternative, to transfer venue to
its home district, the Eastern District of Virginia. See Fed. R.
Civ. P. 12(b)(3); 28 U.S.C. § 1406(a) (improper venue statute).
Johnson, a New Hampshire resident, opposes dismissal and instead
asks to transfer venue to the nearby District of Massachusetts,
where General Dynamics maintains a field office.
This court has jurisdiction under 28 U.S.C. §§ 1331 (federal
question) and 1332(a)(1) (diversity). After oral argument,
General Dynamics’s motion to dismiss is denied, and venue is
transferred to the District of Massachusetts as requested by
Johnson. This court agrees that New Hampshire is an improper
venue for Johnson’s USERRA claim, but concludes that transferring
the entire case to a proper venue would be more efficient than
dismissing it or severing the USERRA claim from the contract
claim. Both of the alternative venues proposed by the parties
would be proper. On balance, however, the District of
Massachusetts is more convenient and better positioned to serve
the interest of justice.
I. Applicable legal standard
When ruling on a defendant’s motion to dismiss for improper
venue, the court must treat all facts pled in the complaint as
true and draw all reasonable inferences in the plaintiff’s favor.
See, e.g., Adam v . Hensley, 2008 DNH 1 0 4 , 2 (citing Home Ins. C o .
2 v . Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th Cir. 1990)).
Although it is the defendant’s motion, the plaintiff has the
burden of proving that its chosen venue is proper as to each
claim. See, e.g., Cordis Corp. v . Cardiac Pacemakers, 599 F.2d
1085, 1086-87 (1st Cir. 1979); Ferrofluidics Corp. v . Advanced
Vacuum Components, Inc., 789 F. Supp. 1201, 1206 (D.N.H. 1992).
If the plaintiff cannot do s o , the court either “shall dismiss,
or if it be in the interest of justice, transfer such case to any
district or division in which it could have been brought.” 28
U.S.C. § 1406(a). Even if venue is proper as to some or all of
the plaintiff’s claims, the court nevertheless has discretion to
transfer venue “[f]or the convenience of parties and witnesses,
in the interest of justice.” 28 U.S.C. § 1404(a). The party
seeking transfer has the burden of showing that it is in the
interest of justice. See, e.g., Coady v . Ashcraft & Gerel, 223
F.3d 1 , 11 (1st Cir. 2000).
II. Background
Johnson accepted a job with General Dynamics in April 2008
as a systems administrator based out of Georgia. The job paid an
annual salary of $85,000. For the first year, however, the job
required that Johnson be deployed to Iraq, where he could
increase his salary to as much as $235,000 through hazard pay and
overtime.
3 Shortly into the job, Johnson took time off to attend an
Army Reserve re-enlistment ceremony on the Fourth of July. He
notified his supervisor of the ceremony well in advance, but
learned at the last minute that it would take longer than
expected. As a result, Johnson received a reprimand for failing
to provide proper notice. His supervisor also instructed another
employee to monitor his conduct, which Johnson perceived as
discrimination based on his military status.
In August 2008, Johnson learned that his Army Reserve unit
would soon be called to active duty for training in Wisconsin.
He immediately notified his supervisor, who requested
clarification of Johnson’s deployment status. Johnson explained
that he was in a “non-deployable” status for two years, but was
still required to report for periodic training. Again perceiving
discrimination based on his military status, Johnson requested,
before leaving Iraq, that he be transferred to a comparable job
upon his return from Army Reserve training.
When the training ended in October 2008, General Dynamics
informed Johnson that he could not return to his job in Iraq,
which had since been filled by another employee. After months of
negotiation, the company offered Johnson a replacement job in
Virginia as a systems administrator with a base salary of $85,000
--without the additional hazard and overtime pay that he could
have earned in Iraq. Johnson refused to accept the new job
4 because, in his view, it was not comparable to his higher-paying
job in Iraq. General Dynamics treated this refusal as a
resignation.
Johnson then filed this suit against General Dynamics,
alleging that the company breached his employment contract and
violated USERRA by failing to reinstate him to a comparable job
when he returned from his Army Reserve training. General
Dynamics responded by filing a motion to dismiss for improper
venue o r , in the alternative, to transfer venue to its home
district, the Eastern District of Virginia. Johnson, opposing
dismissal, has requested that venue instead be transferred to the
District of Massachusetts, where General Dynamics maintains a
field office and which is nearer to New Hampshire, his home
state.
III. Analysis
A. Is venue proper?
The first question raised by General Dynamics’s motion is
whether New Hampshire is a proper venue for Johnson’s claims.
When a plaintiff sues a corporation in federal court, venue is
ordinarily proper wherever the corporation has sufficient
contacts to support personal jurisdiction, “except as otherwise
provided by law.” See 28 U.S.C. § 1391. In this case, the
5 applicable federal law--USERRA--provides otherwise, expressly
limiting venue to “any district in which the private employer
. . . maintains a place of business.” 38 U.S.C. § 4323(c)(2).
This exclusive venue provision trumps the general venue statute
and therefore governs Johnson’s USERRA claim. See, e.g., 17
James Wm. Moore et a l . , Moore’s Federal Practice § 110.01[3][b]
(3d ed. 2009) (citing Fourco Glass C o . v . Transmirra Prods.
Corp., 353 U.S. 2 2 2 , 228 (1957), Johnson v . Payless Drug Stores
N.W., Inc., 950 F.2d 586, 587-88 (9th Cir. 1991), and Bolar v .
Frank, 938 F.2d 3 7 7 , 378-79 (2d Cir. 1991), all of which held
that similar venue provisions in other federal laws trumped the
general venue statute).
General Dynamics has represented to this court that it does
not “maintain[] a place of business” in New Hampshire as required
for venue under USERRA. The company currently has nine employees
in New Hampshire, but eight of them work out of their homes and
the other one works at the New Hampshire Department of
Transportation. Neither the employees’ homes nor the government
office can fairly be regarded as a “place of business” maintained
by General Dynamics, within the plain meaning of that term.1 See
Shufelt v . Abbott Labs., N o . 5:05-CV-00026, 2005 WL 1653596 (W.D.
1 See United States v . Fazal-Ur-Raheman-Fazal, 355 F.3d 4 0 , 45-46 (1st Cir. 2004) (explaining as a “general rule[] of statutory interpretation” that “unless the statutory language is ambiguous, we generally are limited by its plain meaning”).
6 Ky. Jul. 1 1 , 2005) (holding that USERRA “precludes venue” in a
district where the private employer only has sales
representatives and district managers who work out of their
homes).
Johnson notes that General Dynamics also has a registered
agent and office in New Hampshire, as required for a foreign
corporation to do business in the state. See N.H. Rev. Stat.
§ 293-A:15.03(a)(5). But General Dynamics uses a separate
company, CT Corporation System, as its registered agent and
office. Both parties acknowledge that CT Corporation System is
in the business of providing such services to many foreign
corporations.2 Johnson has not shown, and General Dynamics
denies, that the two companies have any operational connection.
Under New Hampshire law, a foreign corporation’s registered
office “may be the same as any of its places of business,” N.H.
Rev. Stat. § 293-A:15.07(1) (emphasis added), but it also may be
simply the office of the company’s registered agent, see id. §
293-A:15.07(2)(i). Thus, the mere fact that General Dynamics has
a registered agent and office in New Hampshire, standing alone,
2 Interestingly, General Dynamics has introduced evidence that the defendant in Shufelt, 2005 WL 1653596, also used CT Corporation System as its registered agent in Kentucky. Nevertheless, the court deemed venue improper there under USERRA. Because the Shufelt opinion did not discuss the registered agent, however, this court does not rely on it for this part of the analysis.
7 is not enough to make that office a General Dynamics “place of
business” under the USERRA venue provision. Because Johnson has
not met his burden of showing that venue is proper,3 see Cordis
Corp., 599 F.2d at 1086-87, this court concludes that New
Hampshire is an improper venue for his USERRA claim.
As to Johnson’s other claim for breach of contract, neither
party seems to dispute that New Hampshire is a proper venue under
the general venue statute. See 28 U.S.C. § 1391. But they
dispute whether the contract claim renders this court a so-called
3 At oral argument, Johnson raised for the first time another potential theory of venue: that General Dynamics Advanced Information System (“GD-AIS”) recently purchased a Nashua, New Hampshire company, Axsys Technologies, and therefore now maintains a place of business here. But GD-AIS is not the defendant in this case; General Dynamics Information Technology (“GD-IT”) i s . Both entities describe themselves as business units of General Dynamics Corporation. In briefing this motion, however, Johnson did not challenge the defendant’s position that GD-IT was his “private employer” for purposes of the USERRA venue analysis. 38 U.S.C. § 4323(c)(2). This court generally will not consider theories raised for the first time at oral argument, out of fairness to adverse parties and the court. See Doe v . Friendfinder Network, Inc., 540 F. Supp. 2d 2 8 8 , 309 n.19 (D.N.H. 2008). Moreover, Johnson has not presented any evidence regarding the relationship between GD-IT and GD-AIS. The record therefore provides no basis from which to resolve the novel--and potentially complex--question of whether the two entities could be considered part of a single “private employer” for purposes of the USERRA provision. Cf., e.g., Torres-Negron v . Merck & Co., 488 F.3d 3 4 , 40-42 (1st Cir. 2007) (identifying various factors to be considered in analyzing “whether two or more entities are a single employer” for purposes of Title VII employment discrimination claims, including common management, interrelation between operations, centralized control of labor relations, and common ownership). Johnson has not met his burden of showing that venue is proper on that basis.
8 “pendent venue” for the USERRA claim. There is some authority
for the proposition that pendent venue extends to claims for
which venue is otherwise improper if those claims arise from the
same factual nucleus as claims for which venue is proper. See,
e.g., 17 Moore, supra, § 110.05; 14D Charles Alan Wright et a l . ,
Federal Practice and Procedure § 3808, at 256 (3d ed. 2007).
Courts have been reluctant, however, to apply the pendent
venue doctrine in cases like this one, where it would effectively
override the limitations of a specific venue provision. See,
e.g., Sierra Club v . Johnson, 623 F. Supp. 2d 3 1 , 37 (D.D.C.
2009); 14D Wright, supra, § 3808, at 259-60. Some courts have
flatly refused to do s o , while others have done so only where the
plaintiff’s “primary” claim is the one for which venue is proper.
See, e.g., Lengacher v . Reno, 75 F. Supp. 2d 515, 519 (E.D. V a .
1999) (discussing both approaches). Johnson conceded at oral
argument that his primary claim in this case is the USERRA claim,
not the contract claim. Thus, even under the approach more
favorable to him, Johnson has not met his burden of showing that
this court would be a proper “pendent venue” for his USERRA
claim.
B. Dismissal or transfer?
Since New Hampshire is an improper venue for Johnson’s
USERRA claim, but a proper venue for his contract claim, this
9 court has a number of options. As to the USERRA claim, the
improper venue statute requires that it either be dismissed
without prejudice o r , “if it be in the interest of justice,”
transferred to a proper venue. 28 U.S.C. § 1406(a). The
contract claim could either be litigated separately here or else
transferred, along with the USERRA claim, to another proper venue
“[f]or the convenience of parties and witnesses, in the interest
of justice.” 28 U.S.C. § 1404(a). This court has wide latitude
in determining whether to transfer either or both of Johnson’s
claims. See, e.g., Auto Eur., LLC v . Conn. Indem. Co., 321 F.3d
6 0 , 64 (1st Cir. 2003); 17 Moore, supra, § 111.34[3].
The Supreme Court has made clear that a venue transfer is
ordinarily preferable to dismissal, both because it is more
efficient and because it reduces the risk of undue prejudice to
the plaintiff from having to file a new lawsuit. See Johnson v .
Ry. Exp. Agency, Inc., 421 U.S. 4 5 4 , 466 n.12 (1975) (stating
that § 1406(a) reflects an “express federal policy liberally
allowing transfer of improper-venue cases”); Van Dusen v .
Barrack, 376 U.S. 6 1 2 , 634 (1964) (“both sections [1404(a) and
1406(a)] were broadly designed to allow transfer instead of
dismissal”); Goldlawr, Inc. v . Heiman, 369 U.S. 463, 466 (1962)
(Ҥ 1406(a) is amply broad enough to authorize the transfer of
cases, however wrong the plaintiff may have been in filing his
case as to venue”). Dismissal is usually reserved for cases
10 where the plaintiff intentionally filed his claim in the wrong
venue or for an improper purpose, or where transfer would be
futile because no better venue exists. See, e.g., 17 Moore,
supra, § 111.34[3]; 14D Wright, supra, § 3827, at 587-90.
Nothing in the record suggests that Johnson realized that
New Hampshire would be an improper venue for his USERRA claim or
filed suit here to harass General Dynamics. He appears simply to
have made a good-faith mistake. Dismissing his USERRA claim
under § 1406(a) and thereby severing it from his properly venued
contract claim would be needlessly inefficient and prejudicial,
resulting in parallel litigation of two heavily overlapping
claims. As explained below, other venues exist that would be
proper for both claims and serve the interest of justice. The
possibility of consolidating both claims in a single proper venue
weighs heavily in favor of transfer, rather than dismissal. Cf.
Coady, 223 F.3d at 11 (explaining that the “possibility of
consolidation” is an important factor in determining whether to
transfer venue). General Dynamics’ request for dismissal is thus
denied. See, e.g., Lengacher, 75 F. Supp. 2d at 520 (explaining
in a similar situation that “the most sensible and just result
would be to transfer the entire matter” to a venue proper for all
claims).
11 As an alternative to dismissal, General Dynamics requests
that this court transfer venue to its home district, the Eastern
District of Virginia. Johnson opposes transfer there and instead
requests transfer to the District of Massachusetts, where General
Dynamics also maintains a place of business. Either forum would
be a proper venue for both of Johnson’s claims. See 28 U.S.C. §
1391(c); 38 U.S.C. § 4323(c)(2). The question is which forum
would be better positioned to further the interest of justice.
The key factors to consider in this analysis include the
convenience of the parties, the convenience of witnesses, the
availability of documents, the possibility of consolidation (as
discussed above), and judicial economy. See Auto Eur., 321 F.3d
at 6 4 ; Coady, 223 F.3d at 1 1 .
The factor that weighs most heavily in favor of a transfer
to the District of Massachusetts is the convenience of the
parties. Both parties have a geographical proximity to that
district: General Dynamics maintains a field office in
Massachusetts, and Johnson resides in neighboring New Hampshire.
See, e.g., 17 Moore, supra, § 111.13[1][e] (noting that party
residence is an important consideration in the convenience
analysis); 15 Wright, supra, § 3849, at 166 (same). The same
thing cannot be said for the Eastern District of Virginia, which
is convenient for only one of the parties, General Dynamics.
Johnson has represented to this court that he has limited
12 resources--certainly as compared with General Dynamics–-and that
it would be a financial hardship for him to litigate the case in
Virginia. See, e.g., 17 Moore, supra, § 111.13[1][e] (noting
that the relative financial means of the parties is also a
relevant consideration in the convenience analysis); 15 Wright,
supra, § 3849, at 183-85 (same). Taking into account the
convenience of both parties, this court therefore concludes that
the District of Massachusetts strikes a much better balance than
the Eastern District of Virginia.4
to the Eastern District of Virginia is the availability of
documents. General Dynamics claims--without dispute from Johnson
--that it stores many of the relevant personnel records at its
Virginia headquarters. This factor, though, has become “a
relatively less important consideration in the transfer
convenience analysis, given the comparatively low cost of
transporting documents” in electronic form. 17 Moore, supra, §
111.13[1][h]; see also 15 Wright, supra, § 3853, at 242 (stating
4 Johnson also argues that the convenience of counsel weighs in favor of the District of Massachusetts, since his counsel is licensed to practice in Massachusetts and General Dynamics’s counsel resides there. But this factor has little bearing on the analysis. See, e.g., Jackson Nat’l Life Ins. C o . v . Economou, 557 F. Supp. 2d 216, 2 2 2 , 2008 DNH 094; 17 Moore, supra, § 111.13[1][e][iii]; 15 Wright, supra, § 3850, at 198-99 (noting that most courts will consider the convenience of counsel only to the extent that it creates financial burdens that impact the convenience of the parties).
13 that this factor now carries “little weight”). Moreover, to the
extent that document production causes any serious inconvenience
in this case, it is likely to result from documents being located
in Iraq, not from any difference between litigating in Virginia
or Massachusetts. The court therefore assigns little weight to
this factor.
General Dynamics argues that another factor–-witness
convenience–-also favors the Eastern District of Virginia because
some of Johnson’s former managers “sit” there and some of the
relevant employment decisions were made there. But to the extent
that these witnesses still work for General Dynamics, they would
be likely to comply with a request that they testify in either
forum. See, e.g., 15 Wright, supra, § 3851, at 217 & n.8 (citing
Sousa v . TD Banknorth Ins. Agency, Inc., 429 F. Supp. 2d 4 5 4 , 457
(D.N.H. 2006) (Barbadoro, D.J.)); 17 Moore, supra, §
111.13[1][f]. General Dynamics also emphasizes that it offered
Johnson a replacement job based in Virginia. But Johnson never
accepted that job or worked there. The operative events in this
case occurred primarily in Iraq (and, to a lesser extent,
Georgia). As a result, no matter where this case is litigated,
witness convenience is likely to present a challenge, and some
witnesses may be beyond the court’s subpoena power. General
Dynamics has not shown that the Eastern District of Virginia has
14 a strong advantage over the District of Massachusetts in this
regard.
Having weighed all of the relevant factors, this court
concludes that the District of Massachusetts is better
positioned, on balance, to further the interest of justice in
light of the particular circumstances of this case. See Stewart
Org., Inc. v . Ricoh Corp., 487 U.S. 2 2 , 29 (1988) (explaining
that motions to transfer venue require an “individualized, case-
by-case consideration of convenience and fairness”) (quoting Van
Dusen, 376 U.S. at 6 2 2 ) . Johnson has shown, in particular, that
the District of Massachusetts offers convenience to both parties,
whereas the Eastern District of Virginia would be convenient only
to General Dynamics--and severely inconvenient to Johnson.
Although party convenience is not necessarily “a controlling
factor . . . if the convenience of witnesses and the interest of
justice point strongly in a contrary direction,” 15 Wright,
supra, § 3849, at 170-71, General Dynamics has not shown that
they do in this case. This court therefore exercises its
discretion to transfer venue to the District of Massachusetts.
15 IV. Conclusion
For the reasons set forth above, General Dynamics’s motion5
is DENIED, both as to the request for dismissal and the request
to transfer venue to the Eastern District of Virginia. The court
instead orders that this case be transferred to the District of
Massachusetts, as requested by Johnson in his opposition to the
defendant’s motion.6 The clerk shall transfer venue to that
district and close the case here.
SO ORDERED.
Jo ___ph N ___ a __ lante _______ United States District Ji Judge
Dated: December 1 8 , 2009
cc: Paul McEachern, Esq. Robert A Esq. Mark M . Whitney, Esq. Robert P. Joy, Esq. Sarah Mullen, Esq.
5 Document n o . 7 . 6 Document n o . 9.