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Grubb v. BNSF Railway Co.

United States District Court, D. Montana, Billings Division

November 8, 2019

EDWARD W. GRUBB, III, Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.

          ORDER

          Timothy J. Cavan United States Magistrate Judge

         Plaintiff Edward W. Grubb, III (“Grubb”) brings this action against Defendant BNSF Railway Company (“BNSF”), for disability discrimination and retaliation under Title VII of the Civil Rights Act of 1964, the Americans with Disability Act, and the Family and Medical Leave Act. (Doc. 1.)

         Presently before the Court is BNSF's Motion to Dismiss or Alternatively Transfer Venue. (Doc. 4.) The motion is fully briefed and ripe for the Court's review. (Docs. 12, 16.) In his opposition to BNSF's motion, Grubb requests leave to file an amended complaint. (Doc. 12 at 14.)

         Having considered the parties' submissions, the Court finds Grubb should be granted leave to amend.[1] Accordingly, BNSF's motion will be DENIED as moot.

         I. BACKGROUND

         Grubb worked for BNSF as a track laborer on a mobile tie gang. In July 2017, Grubb was assigned to work in Montana. At the time, Grubb maintained a residence in Missouri, but asserts he rarely worked in Missouri. Grubb currently resides in Minnesota.

         Grubb suffers from multiple mental disorders and is on several medications to treat his conditions. During the relevant time period, Grubb's young son was also diagnosed with brain cancer. Grubb alleges he informed his direct supervisor in Montana that he was on medications and had personal problems including his son's condition, and that he would need to miss some work.

         On July 26, 2017, Grubb alleges he had an adverse reaction to a new medication. BNSF states that it received information indicating Grubb had engaged in misconduct at certain hotels in Glendive, Montana. Grub states he does not recall what happened, but admitted and took full responsibility for the actions that took place, including causing approximately $65 in damage to a door at a hotel. Grubb was suspended without pay on July 26, 2017, pending an investigation into the incident. (Doc. 5, Ex. 1 at 57.)

         BNSF scheduled an investigation hearing, which was ultimately held in Kansas City, Kansas. Following the hearing, BNSF officials located in North Dakota, Kansas, and Texas reviewed the hearing transcript and recommended that Grubb be terminated. On August 22, 2017, BNSF terminated Grubb. The dismissal letter was sent to Grubb at his home address in Missouri.

         II. LEGAL STANDARDS

         BNSF moves to dismiss this action under Federal Rule of Civil Procedure 12(b)(3) for lack of venue, or in the alternative, requests the Court transfer venue to the Northern District of Texas under 28 U.S.C. § 1404.

         When the propriety of venue is challenged under Rule 12(b)(3), the plaintiff bears the burden of proving that venue is proper as to each claim. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979); Allstar Mktg. Grp., LLC v. Your Store Online, LLC, 666 F.Supp.2d 1109, 1126 (C.D. Cal. 2009). In considering a Rule 12(b)(3) motion, the Court must draw all inferences in favor of the non-moving party. Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1138 (9th Cir. 2004). However, the “pleadings need not be accepted as true, and facts outside the pleadings may be considered.” Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009). If the Court finds venue is improper, it has discretion to dismiss or transfer the case to a permissible venue. 28 U.S.C. § 1406(a).

         Discretionary changes of venue are governed by 28 U.S.C. § 1404(a), which provides:

For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division ...

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