United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE.
Bruce and Julie Schollaert filed a Complaint [ECF No. 1]
against Defendants Essintial Enterprise Solutions, LLC
(Essintial); NCR Corporation (NCR); and Isadore
on September 28, 2017. On May 22, 2018, the Plaintiffs filed
an Amended Complaint [ECF No. 21], which also named Onepath
Systems, LLC (Onepath) as a Defendant. In the Amended
Complaint, the Plaintiffs allege that the Defendants
discriminated against them on the basis of race in violation
of 42 U.S.C. § 1981.
6, 2018, Defendant NCR filed a Motion to Dismiss [ECF No. 27]
pursuant to Federal Rule of Civil Procedure 12(b)(2), (3),
(5), or (6), or in the alternative to transfer venue under 28
U.S.C. §§1404 or 1406. On June 25, 2018, Defendant
Onepath filed a Motion to Dismiss [ECF No. 32] pursuant to
Federal Rule of Civil Procedure 12(b)(2), (3), or (5), or in
the alternative to transfer venue under 28 U.S.C.
§§1404 or 1406. The Plaintiffs responded [ECF No.
41] to both the Motions, and Defendants Onepath and NCR
jointly replied [ECF No. 44]. On July 25, 2018, Defendant
Hart moved [ECF No. 45] to join his Co-Defendants'
Motions. These matters are now briefed and ripe for review.
Plaintiffs are a husband and wife residing in Fort Wayne. The
Plaintiffs allege that they entered into contracts and work
arrangements for Defendants Essintial, NCR, and Onepath as
independent contractors. The Plaintiffs are in the business
of repairing business machines at commercial and retail
enterprises. In the Amended Complaint, the Plaintiffs allege
that on August 9, 2016, while preparing NCR business machines
at a Wal-Mart in Livonia, Michigan, Defendant Hart became
angry and hostile towards the Plaintiffs. The Plaintiffs
assert that Defendant Hart lodged racially insensitive and
abusive language at them, including referring to Plaintiff
Julie Schollaert as a “stupid white bitch” and
calling the Plaintiffs “lazy white people.” The
Plaintiffs alerted Essintial about the alleged harassment,
but it continued throughout the day. After this incident, the
Plaintiffs allege that they lost business with, and were
retaliated against by, Essinital, and were thus deprived of
on-going and future contractual benefits. The Plaintiffs
assert that Defendant Hart was at all relevant times a
Onepath employee and that he was wearing an NCR Tech Badge at
all relevant times. Additionally, the Plaintiffs allege that
Defendants Essintial, NCF, and Onepath were “joint
contractors” who controlled the terms, benefits, and
conditions of their working and contractual relationship with
the Plaintiffs. As such, they are liable for the alleged
Plaintiff alleges that Defendant Essintial has a corporate
address in Pennsylvania, that Defendant NCR has headquarters
in Georgia, that Defendant Onepath also has headquarters in
Georgia, and that Defendant Hart is an employee of Onepath.
The Plaintiffs broadly allege that Defendants Essintial, NCR,
and Onepath conduct business in Indiana. The Defendants'
briefing demonstrates that Defendant NCR is a Maryland
corporation with a principal place of business in Georgia,
that Defendant Onepath is a Georgia LLC with a principle
place of business in Georgia, and that Defendant Hart is an
Illinois resident who has never been an employee of any of
his co-Defendants. However, at relevant times he was
President of Clintech Business Solutions Corporation
(Clintech), an Illinois corporation with a principal place of
business in Illinois. Prior to August 9, 2016, Clintech
entered into a contract with Defendant Onepath to provide
services related to the installation of self-checkout
machines at a Wal-Mart located in Livonia, Michigan. On
August 9, 2016, Defendant Hart provided services related to
the installation of self-checkout machines at the Wal-Mart
located in Livonia.
parties agree that the events giving rise to the litigation
occurred exclusively in Livonia, Michigan, which lies in the
Eastern District of Michigan.
consideration of a motion to dismiss for improper venue, a
court must resolve all factual disputes and draw all
reasonable inferences in the plaintiff's favor,
Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d
801, 806 (7th Cir. 2011), with the plaintiff then bearing the
burden of establishing that venue is proper, Grantham v.
Challenge-Cook Bros., Inc., 420 F.2d 1182, 1184 (7th
Cir. 1969). If venue is improper, the court may either
dismiss the suit or transfer it to a district in which the
plaintiff could have initially filed the suit if “it be
in the interest of justice.” 28 U.S.C. §
1406(a). Venue can be proper in more than one
district. See Armstrong v. LaSalle Bank Nat'l
Ass'n, 552 F.3d 613, 617 (7th Cir. 2009). When
ruling on a motion to dismiss for improper venue, a district
court may examine facts outside the complaint without
converting the motion to a motion for summary judgment.
Cont'l Cas. Co. v. Am. Nat. Ins. Co., 417 F.3d
727, 733 (7th Cir. 2005).
is proper in “a judicial district in which a
substantial part of the events or omissions giving rise to
the claim occurred, or a substantial part of the property
that is the subject of the action is situated.” 28
U.S.C. § 1391(b)(2). The parties agree that the Northern
District of Indiana is an improper venue in this case.
(See Mots. to Dismiss, ECF Nos. 27, 32; Pl. Resp.,
ECF No. 41.) The only question remaining for the Court is
whether dismissal or transfer is proper. The Plaintiff
asserts that transfer to the United States District Court for
the Eastern District of Michigan is proper, whereas the
Defendants advocate for dismissal.
decision to transfer is left to the sound discretion of the
Court. Coté v. Wadel, 796 F.3d 981, 985 (7th
Cir. 1999). Transfer is ordinarily in the interest of justice
because dismissal of an action that could be brought
elsewhere is “time consuming” and may be
“justice-defeating.” Goldlawr, Inc. v.
Heiman, 369 U.S. 463, 467 (1962). The transferor court
does not need to have personal jurisdiction over all
defendants before it can apply 28 U.S.C. § 1406(a).
See Id. at 466. “In deciding whether transfer
is appropriate under [§] 1406(a), courts are to look at
whether the transfer is in the interest of justice; that is,
whether the transferee forum is convenient to the parties and
witnesses as well as what impact transfer has on the
efficient administration of the court system.”
Thomas v. Exxon Mobil Oil Corp., No. 2:06-CV-144,
2007 WL 1035159, at *1 (N.D. Ind. Apr. 2, 2007) (citing
Wild v. Subscription Plus, Inc., 292 F.3d 526, 530
(7th Cir. 2002)).
Court finds that transfer to the Eastern District of Michigan
under 28 U.S.C. § 1406(a) is proper. All of the
Defendants, as well as the Plaintiffs, were contracted,
subcontracted, or otherwise engaged to install self-checkout
machines at a Wal-Mart located in the Eastern District of
Michigan. The Plaintiff's Amended Complaint, and the
parties' briefing on the Motions, frame the litigation as
an alleged episode of racial discrimination wholly within,
and related to such contacts with, the Eastern District of
Michigan. The litigation could have been appropriately ...