United States District Court, D. Montana, Billings Division
EDWARD W. GRUBB, III, Plaintiff,
BNSF RAILWAY COMPANY, a Delaware corporation, Defendant.
Timothy J. Cavan United States Magistrate Judge
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.
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.)
considered the parties' submissions, the Court finds
Grubb should be granted leave to amend. Accordingly,
BNSF's motion will be DENIED as moot.
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
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.
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.)
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.
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.
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. §
changes of venue are governed by 28 U.S.C. § 1404(a),
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 ...