Takkallapelli v. Builders Square

• Court: District Court, D. New Hampshire
• Decided: June 14, 1995
• Docket: CV-95-146-SD
• Status: Published

Opinion

Takkallapelli v. Builders Square CV-95-146-SD 06/14/95 UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Devi Takkallapelli

v. Civil No. 95-146-SD

Builders Square

O R D E R

Defendant Builders Square, Inc. (Builders Square), moves to

dismiss or alternatively transfer venue. Document 7. The

plaintiff objects. Document 8.

1. Background

Between June 25, 1988, and the fall of 1993, plaintiff Devi

Takkallapelli was employed by Builders Square at its store in

Nashua, New Hampshire. In this litiqation, she seeks to recover

for alleqed acts of discrimination which she endured in the

course of such employment.

A native of India, plaintiff qrounds her federal claims on

the provisions of Title VII of the Civil Riqhts Act of 1964, 42 U.S.C. § 2000e, et seg.; and 42 U.S.C. § 1981.1

In November 1993 Builders Square closed its Nashua store and

removed its personnel and business records to its headquarters in

San Antonio, Texas. Ms. Takkallapelli served her complaint on CT

Corporation, reqistered aqent of Builders Square, on April 6,

1995.

Defendant here claims that venue cannot be established in

New Hampshire pursuant to the requirements of Title VII. It

seeks dismissal or transfer to the Western Districtof Texas, San

Antonio Division. 28 U.S.C. § 1406(a).2

2. Discussion

Title VII details four bases for venue, Bolar v. Frank, 938

F.2d 377, 378 (2d Cir. 1991), which alternative forums have been

described as "necessary to support the desire of Conqress to

afford citizens full and easy redress of civil riqhts

qrievances." Richardson v. Alabama State Bd. of Educ., 935 F.2d

1Plaintiff also advances a pendent claim pursuant to state common law.

228 U.S.C. § 1406(a) provides:

The district court of a district in which is filed a case layinq venue in the wronq division or district shall dismiss,or ifit be in the interest of justice, transfer such case to any district or division in which it could have been brouqht.

2 1240, 1248 (11th Cir. 1991) (citing Lewis v. Madison County Bd.

of Educ., 678 F. Supp. 1550, 1551-52 (M.D. Ala. 1988)). Codified

at 42 U.S.C. § 2000e-5(f) (3), this venue statute provides in

relevant part that

an action 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, but 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. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent had his principal office shall in all cases be considered a district in which the action might have been brought.

To decide "proper venue under this statute, a court must

first look to the situs of any one of the first three criteria

set forth in section 2000e-5 (f) (3) . The court may look to the

district in which the employer's principal office is located only

if venue cannot be laid in one of the other three possible

districts specified in the statute." Arrocha v. Panama Canal

Comm'n , 609 F. Supp. 231, 234 (E.D.N.Y. 1985) (emphasis by court)

(citations omitted). Thus viewed. New Hampshire is clearly, as

the statute provides, the "state in which the unlawful employment

practice is alleged to have been committed."

3 Builders Square argues, however, that as it had closed its

New Hampshire store and removed its records to Texas prior to

commencement of this litigation, it cannot be "found" in New

Hampshire for the purposes of venue. Plaintiff points out,

however, that defendant still maintained an agent for service of

process and had failed to comply with statutory withdrawal

requirements as of the time of commencement of suit.3 In such

circumstances, defendant is to be "found" in New Hampshire for

purposes of the determination of proper venue. Harrison v.

International Assoc, of Machinists and Aerospace Workers, 807 F.

Supp. 1513, 1516 (D. Ore. 1992) (only legal, not physical,

presence of defendant required for venue purposes); Ford v.

Valmac Indus., Inc., 494 F.2d 330, 332 (10th Cir. 1974) (foreign

corporation "found" in state for jurisdictional purposes is

"found" there for venue purposes).

In sum, the special venue provisions of section 2000e-

5 (f) (3) set forth the clear "intent of Congress to limit venue to

3The New Hampshire Business Corporation Act, Revised Statutes Annotated (RSA) chapter 293-A (Supp. 1994), requires foreign corporations to obtain a certificate of authority to transact business in New Hampshire, id., § 15.01; maintain a registered agent, id. § 15.07, upon whom service of process may be had, id. § 15.10(a); and obtain a certificate of withdrawal of its authority to transact business if it desires to leave the state, id. § 15.20. In the instant case, defendant still maintained a registered agent for service and had not withdrawn its authority to transact business as of the time this litigation was commenced.

4 the judicial districts concerned with the alleged

discrimination." Stebbins v. State Farm Mut. Automobile Ins.

C o ., 413 F.2d 1100, 1102 (D.C. Cir.), cert, denied, 396 U.S. 895

(1969) . New Hampshire i_s such a jurisdiction, and venue is

properly laid here, as defendant was to be "found" here as of the

time of service of the complaint. No more is required.

3. Conclusion

For the reasons hereinabove outlined, the defendant's motion

to dismiss or alternatively to transfer venue must be and it is

herewith denied.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

June 14, 1995 cc: NancyRichards-Stower, Esq. Cyndi M. Brenedict, Esq. Thomas J. Pappas, Esq.