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WO

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Patricia G. Barnes, 

Plaintiff, 

v. 

Commissioner of Social Security 

Administration, 

Defendant. 

No. CV-17-00549-TUC-JAS

ORDER 

 Pending before the Court are Defendant’s Motion to Dismiss Plaintiff’s Complaint 

for Improper Venue, or in the Alternative, Motion to Transfer Venue (Doc. 14) and 

Plaintiff’s cross-motion to transfer venue, or in the alternative to amend complaint (Doc. 

15). This matter is ripe for review. 

FACTUAL BACKGROUND

 In 2011, Plaintiff saw a job posting for “legal assistant” at a new Social Security 

Administration (“SSA”) office in Reno, Nevada. She contacted Jim Elkins, a Hearing 

Office Director in Reno, Nevada, to inquire about possible attorney positions. (Doc. 1 at 

¶ 27.) Mr. Elkins provided Plaintiff with some instructions to apply for the open 

positions, but did not provide Plaintiff with the vacancy announcement. (Doc. 1 at 

¶¶ 31-32.) Mr. Elkins and his assistant interviewed Plaintiff; without consulting with 

anyone, Mr. Elkins immediately professed that Plaintiff was not appropriate for further 

consideration. Id. at ¶ 67. Despite her superior qualifications, Plaintiff was not hired for 

the position. Id. at ¶¶ 6, 44, 48, 50. Plaintiff believes that SSA discriminated against her 
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due to her sex and age. Id. at ¶¶ 40, 44, 47-50. She was 60 years old at the time. Id. at 1. 

SSA has stated various reasons for her non-selection. Id. at ¶¶ 71-75.) 

 On August 3, 2011, Plaintiff raised her concerns with Mr. Elkins, who eventually 

referred her to SSA Human Resources Officer Ed Pilapil in Sacramento, California. Id. at 

¶ 52. Plaintiff asked Mr. Elkins to reconsider her candidacy. Id. at ¶ 56. Mr. Pilapil then 

“cleared the last selection for hire on August 29, 2011.” Id. at ¶ 63. According to 

Plaintiff, “Mr. Elkins recommended potential candidates to Mr. Pilapil, who determined 

if the selectees were qualified, set their salary level, determined their citizenship and then 

authorized Mr. Elkins to extend a job offers (sic) to the candidates.”1

 (Doc. 15 at 3.) 

Plaintiff then filed a complaint with the Equal Employment Opportunity Commission. 

(Doc. 1 at ¶ 6.) This complaint was later dismissed. Id. at ¶ 7. 

 On November 9, 2017, Plaintiff filed this suit against Nancy A. Berryhill, Acting 

Commissioner for SSA. (Doc. 1.) Defendant moved to dismiss or transfer to Reno, 

Nevada due to improper venue (Doc. 14). Plaintiff responded with a cross motion to 

transfer to the Southern District of California or amend her complaint (Doc. 15). 

DISCUSSION

Venue 

 Federal Rule of Civil Procedure 12(b)(3) allows a defendant to move to dismiss a 

complaint due to improper venue. This motion must be timely made; otherwise, the 

defendant waives the defense. Fed. R. Civ. P. 12(h)(1).2

 Once venue has been challenged, 

the burden is on the plaintiff to prove that it is proper. Piedmont Label Co. v. Sun Garden 

Packing Co., 598 F.2d 491, 496 (9th Cir. 1979); Golden Scorpio Corp. v. Steel Horse Bar 

& Grill, 596 F. Supp. 1282, 1286 (D. Ariz. 2009). “Additionally, ‘uncontroverted 

allegations in [plaintiff’s] complaint must be taken as true, and conflicts between the facts 

contained in the parties’ affidavits must be resolved in [plaintiff’s] favor.’” Brayton 

Purcell LLP v. Recordon & Recordon, 606 F.3d 1124, 1227 (9th Cir. 2010) (quoting Rio 

 1

 Defendant disputes this characterization. (Doc. 16 at 4.) 2

 Defendant timely filed their motion and did not waive this defense. See Fed. R. Civ. P. 

12(a)(2), (h)(1). 
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Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007, 1019 (9th Cir. 2002)). 

 Title VII has a specific venue provision, which applies instead of the general 

venue statute. Passantino v. Johnson & Johnson Consumer Prods, Inc., 212 F.3d 493, 

504 (9th Cir. 2000). A Title VII suit “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.” 42 U.S.C. § 2000e-5(f)(3). It is 

important to note that there may be multiple proper venues. See Passantino, 212 F.3d at 

506. 

 In this matter, Plaintiff is alleging that she would have worked in Reno, Nevada, 

but for the alleged discrimination. (Doc. 1 at ¶ 6.) This clearly provides venue to the 

District of Nevada for her action. See 42 U.S.C. § 2000e-5(f)(3). She additionally claims 

that the records are maintained and administered in Richmond, California, which is 

within the Northern District of California.3 See Doc. 15 at 4. If this is correct, there is 

venue within the Northern District of California for her action. See 42 U.S.C. 

§ 2000e-5(f)(3). Plaintiff alleges that the discriminatory actions happened in Reno, 

Nevada, and in Sacramento, California. See Doc. 1 at ¶¶ 6, 52. Defendant disputes 

whether discriminatory actions took place in Sacramento, but this Court resolves this in 

favor of Plaintiff. See Brayton Purcell LLP, 606 F.3d at 1227. Therefore, proper venue 

may be found within any judicial district in Nevada and California. See 42 U.S.C. 

§ 2000e-5(f)(3). The District of Arizona is not a proper venue. Therefore, this matter 

must be dismissed without prejudice or transferred. 28 U.S.C. § 1406(a). 

 3

 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA, Jurisdiction 

Map, https://www.cand.uscourts.gov/jurisdictionmap (last visited April 26, 2018). 
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Transfer or Dismiss

 When a case is filed in the incorrect division or district, the district court “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). If the court decides that 

dismissal is the appropriate choice, the dismissal must be without prejudice. In re Hall, 

Bayoutree Assocs., Ltd., 939 F.2d 802, 804 (9th Cir. 1991). The interest of justice may be 

satisfied if a plaintiff has diligently pursued the matter, wishes to expedite the matter, and 

it would be in the interest of judicial efficiency. Bolar v. Frank, 938 F.2d 377, 380 (2d 

Cir. 1991) (per curiam); Sherar v. Harless, 561 F.2d 791, 794 (9th Cir. 1977). A case 

could have been brought in a particular district or division if, and only if, the proposed 

court has subject matter jurisdiction, proper venue, the defendant is subject to that court’s 

personal jurisdiction, and the defendant is amenable to service of process in that district. 

Abrams Shell v. Shell Oil Co., 165 F. Supp. 2d 1096, 1103 (C.D. Cal. 2001). “An 

argument based on convenience alone is more appropriate in a § 1404 change of venue 

motion.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 

1986). 

 This case was filed within the incorrect district. See supra. It is in the interests of 

justice to transfer this matter. Plaintiff has diligently pursued this matter and transfer is in 

the interest of judicial efficiency. See Bolar, 938 F.2d at 380. Therefore, the Court must 

consider if this case could have been brought in another district. 28 U.S.C. § 1406(a). 

Venue would be proper within the District of Nevada and the Southern District of 

California.4 See 42 U.S.C. § 2000e-5(f)(3); Passantino, 212 F.3d at 506. There is no 

indication that either the District of Nevada or the Southern District of California lack 

personal jurisdiction over Defendant.5

 Both districts have subject matter justification over 

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 The Court acknowledges that venue is proper in other districts; however, the parties are only proposing transfer to the District of Nevada or the Southern District of California. 

(Docs. 14, 15.) 5

 Both Nevada’s and California’s long arm statute extend to due process. See Nev. Rev. 

Stat § 14.065 (“A court of this state may exercise jurisdiction over a party to a civil action on any basis not inconsistent with the Constitution of this state or the Constitution of the 

United States.”); Cal. Civ. P. Code § 410.10 (“A court of this state may exercise jurisdiction on any basis not inconsistent with the Constitution of this state or of the 
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the claims. See 28 U.S.C. § 1331. Defendant would be amenable to service in both 

districts. Fed. R. Civ. P. 4(i). Therefore, this matter could have been brought in either the 

District of Nevada or the Southern District of California. 

 Plaintiff argues that the Court should transfer this matter to the Southern District 

of California because she “can more easily afford and withstand the rigor of a five-hour 

drive to San Diego, [California].” (Doc. 15 at 8:23-24.) Defendant argues that the 

Southern District of California is not an appropriate venue and that the records and 

witnesses are in the District of Nevada. (Doc. 16.) The Court finds that judicial efficiency 

dictates that a transfer to the District of Nevada is in the interest of justice. 

Amend

 Rule 15(a)(2) of the Federal Rules of Civil Procedure (Fed. R. Civ. P.), states that 

courts should allow amendments “when justice so requires.” It is important to remember 

“the underlying purpose of Rule 15 . . . to facilitate decisions on the merits, rather than on 

the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en 

banc) (quoting Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). 

 Plaintiff included in her cross-motion to transfer venue a request to amend the 

complaint if the Court found that it is in the interest of justice to transfer this matter to the 

District of Nevada. (Doc. 15.) Defendant does not counter Plaintiff’s argument that 

amending the complaint would moot the motions to transfer due to lack of venue. (Doc. 

16 at 1:24-26.) The Court finds that justice does not require amendment. This matter can 

be brought to the District of Nevada without extreme detriment to either party.6

 

 United States.”). 6

 The Court acknowledges that Plaintiff has stated that the distance to the District of 

Nevada will be physically and financially difficult. (Doc. 15) The Court believes that true 

impediment may be mediated through telephonic appearances when appropriate. Plaintiff has indicated that discovery in this matter is complete, thereby limiting the need to travel to Nevada for extensive discovery or hearings. (Doc. 19 at 1:20-21.) 
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CONCLUSION

 Based on the aforementioned reasoning, the following are HEREBY ORDERED: 

 (1) Defendant’s Motion to Dismiss Plaintiff’s Complaint for Improper Venue, or 

in the Alternative, Motion to Transfer Venue (Doc. 14) is GRANTED as to the motion to 

transfer. 

 (2) This matter shall be transferred to the District of Nevada. 

 (3) Plaintiff’s cross-motion to transfer venue or in the alternative to amend 

complaint (Doc. 15) is denied. 

 Dated this 1st day of May, 2018.