Dance v. Pennsylvania

GARY L. DANCE Plaintiff, v. COMMONWEALTH OF PENNSYLVANIA, et al., Defendants.

CIVIL ACTION NO. 17-5818

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

JULY 9, 2018

MEMORANDUM

SCHMEHL, J.

Defendants Commonwealth of Pennsylvania ("Commonwealth"), Pennsylvania State Police ("PSP"), Marcus Brown ("Colonel Brown"), Tyree Blocker ("Colonel Blocker"), George Bivens ("Lieutenant Colonel Bivens"), Lisa Christie ("Lieutenant Colonel Christie"), Edward Hoke ("Major Hoke"), Wendell Morris ("Captain Morris"), William Arndt ("Captain Arndt"), Gregory Bacher ("Captain Bacher"), David Cain ("Lieutenant Cain"), Michael Witmer ("Lieutenant Witmer"), Thomas Tran ("Lieutenant Tran"), William Brown ("Lieutenant Brown") (collectively "PSP Defendants"), move for partial dismissal and transfer of the remaining claims to the Middle District of Pennsylvania. Plaintiff Gary L. Dance, Jr., argues venue is proper in this district because a substantial part of the events giving rise to Mr. Dance's claim occurred in this district. For the reasons below, this Court will grant Defendants' motion in part and transfer the remaining claims to the Middle District of Pennsylvania.

I. BACKGROUND

Plaintiff Gary L. Dance, Jr., files this lawsuit against the Commonwealth, PSP, and twelve individual Defendants alleging: Count I) First Amendment Retaliation under 42 U.S.C. § 1983; Count II) Race Discrimination under 42 U.S.C. § 1983; Count III) Employment Discrimination/Retaliation under 42 U.S.C. § 2000e; Count IV) Employment Discrimination/Hostile work environment under 42 U.S.C. § 2000e; and Count V) Employment Discrimination/Retaliation under the Pennsylvania Human Relations Act 43 P.S. § 951.

Mr. Dance, an African American male, began working with the Pennsylvania State Police in 1993. (ECF Docket No. 1, ¶ 27.) PSP assigned Mr. Dance to Troop T, Pocono as a Trooper following his graduation. (Id. at ¶28.) In 1996, PSP transferred Mr. Dance to the King of Prussia station. (Id. at ¶ 29.) After a series of promotions to Corporal (1998), Sergeant (2002), and Lieutenant (2005), PSP reassigned Mr. Dance in 2012 to Troop T in Highshire, Pennsylvania, as the Eastern Section Field Commander and supervisor over two stations: King of Prussia and Pocono. (Id. at ¶¶ 30-33.) Throughout this time, Mr. Dance was the "only minority, Black Field Commander in the entire PSP." (Id. at ¶ 40.)

Mr. Dance brings this lawsuit against Defendants alleging discrimination. (ECF Docket No. 1.) Mr. Dance alleges: the PSP did not allow him to attend important Senate hearings, but allowed subordinates to attend; he received lower evaluations due to his complaints of racial profiling; PSP did not offer him promotions within Troop T and Troop R, instead selecting members with less seniority; and the PSP denied him employment opportunities because of his race. (Id.) Defendants then moved to partially dismiss the case and transfer venue to the Middle District of Pennsylvania. On June 19, 2018, this Court held oral arguments on the motion.

II. STANDARD OF REVIEW

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claimsatisfies the plausibility standard when the facts alleged "allow[] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Burtch v. Millberg Factors, Inc., 662 F.3d 212, 220-21 (3d Cir. 2011) (citing Iqbal, 556 U.S. at 678). While the plausibility standard is not "akin to a 'probability requirement,'" there nevertheless must be more than a "sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). "Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief.'" Id. (quoting Twombly, 550 U.S. at 557).

The Court of Appeals requires us to apply a three-step analysis under a 12(b)(6) motion: (1) "it must 'tak[e] note of the elements [the] plaintiff must plead to state a claim;'" (2) "it should identify allegations that, 'because they are no more than conclusions, are not entitled to the assumption of truth;'" and, (3) "[w]hen there are well-pleaded factual allegations, [the] court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief." Connelly v. Lane Construction Corp., 809 F.3d 780, 787 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 675, 679); see also Burtch, 662 F.3d at 221; Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011); Santiago v. Warminster Township, 629 F.3d 121, 130 (3d Cir. 2010).

Also, under Federal Rule of Civil Procedure 12(b)(3), a court must grant a motion to dismiss if venue is improper. Leone v. Cataldo, 574 F.Supp.2d 471, 483 (E.D. Pa. 2008). When deciding a Rule 12(b)(3) motion, the court must "accept as true all of the allegations in the complaint, unless those allegations are contradicted by the defendants' affidavits." Kimmel v. Phelan Hallinan & Schmieg, 847 F.Supp.2d 753, 759 (E.D. Pa. 2012) (citing Bockman v. First Am. Mktg. Corp., 2012 WL 171972, at *1 n. 1 (3d Cir.2012)). In a motion to dismiss forimproper venue, the defendant bears the burden of showing that venue is improper. MacKay v. Donovan, 747 F.Supp.2d 496, 502 (E.D. Pa. 2010) (citing Leone, 574 F.Supp.2d at 483)).

III. ANALYSIS

a. This case will be transferred to the Middle District of Pennsylvania as the Eastern District is not the proper venue.

Defendants argue the remaining claims should be transferred to the Middle District of Pennsylvania because all factors related to venue, addressed below, favor transfer to the Middle District. Under venue, the test is not defendant's "contacts" with a particular district; rather, it is the "location of those events or omissions giving rise to the claim." Leone, 574 F.Supp.2d at 483. Under 28 U.S.C. § 1391(b), venue generally is proper only in:

(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

28 U.S.C. § 1391(b). The movant bears the burden of showing that venue is improper. MacKay, 747 F.Supp.2d at 502.

In evaluating a transfer or dismissal based on venue considerations, this Court must first analyze whether venue is proper under 28 U.S.C. § 1391. If venue is proper, this Court may consider transfer under 28 U.S.C. § 1404. If not, this Court would consider dismissal or transfer under 28 U.S.C. § 1406. In federal court, venue is governed by either 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406. Section 1404(a) provides for the transfer where both the original and requested venue is proper. Section 1406 applies where original venue is improper and provides for either transfer or dismissal. Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995).

Although Mr. Dance filed in this district, it is not clear this district is the proper venue under § 1391. Mr. Dance resides in the Middle District of Pennsylvania; the majority of events giving rise to Mr. Dance's claims - reassigned to Troop T, not promoted to Field Command of Troop R, excluded from participating in a manhunt - occurred in the Middle District; and the PSP Departmental Headquarters and offices triggering the dispute are located in the Middle District. (ECF Docket No. 1; ECF Docket No. 19, at 23.) But, Mr. Dance argues venue is proper in this district because the alleged discriminatory acts occurred in this district when the PSP reassigned Mr. Dance as Eastern Section Field Commander and supervisor over the King of Prussia station and the Pocono station. ECF Docket No. 1, ¶ 33). We address § 1391 venue below.

First, venue is proper in a judicial district in which any defendant resides. 28 U.S.C. § 1391(a). Mr. Dance cannot satisfy this requirement as it does not appear any of the Defendants reside in this district. The Commonwealth and PSP - as a state and state agency respectively - reside in Harrisburg, Pennsylvania, which is in the Middle District. None of the individual Defendants, according to the Complaint, reside in this district. Under Section 1391(a), venue is improper in this district.

Second, venue is proper in a judicial district in which a substantial part of the events giving rise to the claim occurred. 28 U.S.C. § 1391(b). Mr. Dance argues the discrimination occurred in this district which satisfies section 1391(b). (ECF Docket No. 1, ¶¶ 65-66.) Mr. Dance argues this district is the proper venue because: 1) PSP reassigned Mr. Dance as Field Commander and supervisor of the King of Prussia station; 2) Captain Bacher excluded him from investigating a crash in King of Prussia (ECF Docket No. 1, ¶¶ 64-69); and 3) Captain Bacher excluded him from State Senate hearings involving PSP's response to a major accident in Kingof Prussia. (ECF Docket No. 1, ¶¶ 53-55.) Besides the above, Mr. Dance does not put forth any further evidence of discrimination occurring in this district.

Most of the events in the Complaint, though, clearly occurred in the Middle District. During the relevant time period, Mr. Dance operated as Station Commander at PSP's Pocono Station, located in the Middle District (ECF Docket No. 1, ¶¶ 29, 33); PSP reassigned him to Troop T - located in the Middle District - as supervisor of King of Prussia and Pocono Stations (Id. at ¶ 33); Sergeant Holt's "roll call" incident occurred in the Middle District (Id. at ¶¶ 76, 79, 82-83);...