United States District Court, W.D. Wisconsin
D. PETERSON DISTRICT JUDGE
M. Dawson, appearing pro se, was an employee at Res-Care Inc.
She alleges that she suffered sexual harassment, was not paid
for overtime worked, and was ultimately fired after she
complained about the harassment and Res-Care's failure to
fully pay her.
Res-Care has filed a motion to transfer the case to the
United States District Court for the Eastern District of
Wisconsin. Dkt. 9. Under 28 U.S.C § 1404(a), a
court may transfer a case to another district where the
action might have been brought if transfer serves the
convenience of the parties and witnesses and will promote the
interest of justice. See Coffey v. Van Dorn Iron
Works, 796 F.2d 217, 219-20 (7th Cir. 1986). “The
statute permits a ‘flexible and individualized
analysis.'” Research Automation, Inc. v.
Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 978
(7th Cir. 2010) (quoting Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29 (1998)). The defendant bears the
burden of establishing that the proposed new venue is clearly
more convenient. Coffey, 796 F.2d at 219. The
convenience inquiry generally focuses on “the
availability of access to witnesses, and each party's
access to and distance from resources in each forum.”
Research Automation, Inc., 626 F.3d at 978.
Res-Care contends that transfer to the Eastern District,
where Res-Care is located, is clearly more convenient because
the events at issue allegedly occurred there, most potential
witnesses reside there, and most or all of the defendants
reside there. In my order screening the complaint, I noted
that nothing in Dawson's allegations showed that venue
was proper in the Western District. Dkt. 5, at 2 n. 1. In its
brief-in-chief, Res-Care stopped short of saying that venue
is improper in the Western District, but it does
make that argument in its reply brief.
the question of proper venue first, Dawson alleges that she
was discriminated against while she worked at Res-Care, and
Res-Care is located in Kenosha, Wisconsin, so it seems
likely-but not certain- that all of the individual defendants
live in the Eastern District and that the events in question
occurred in the Eastern District. See 28 U.S.C.
§ 1391(b) (“Venue in general”). But Res-Care
does not adequately support its motion. Res-Care fails to
provide the actual residence of each of its co-defendants.
Instead, Res-Care states that Dawson lists the residence of
the individual defendants as 8600 Sheridan Rd. in Kenosha,
which a quick internet search shows is Res-Care's
address. This obvious pleading mistake by Dawson is not
itself a reason to transfer without giving Dawson a chance to
rectify the mistake.
also fails to support its convenience argument. “As for
convenience of parties and witnesses, it is clear that a
movant ‘[is] obligated to clearly specify the key
witnesses to be called' and to submit something ‘in
the way of affidavits, depositions, stipulations, or any
other type of document containing facts tending to establish
who (specifically) it planned to call or the materiality of
that testimony.'” Heller Financial, Inc. v.
Midwhey Powder Co., Inc., 883 F.2d 1286, 1293-94 (7th
Cir. 1989). Res-Care fails to identify potential witnesses,
where in the Eastern District they reside, and what material
testimony they would provide.
Res-Care has not yet carried its burden to show either that
venue is improper or that the Eastern District would be more
convenient, I will have it provide a supplement in which it
addresses the concerns discussed above. I will also give each
of the individual defendants an opportunity to respond to
Res-Care's filing, although they are not required to do
opposition, Dawson says that “the discrimination
didn't just occur in Kenosha County, WI but in other
counties as [well] which are  in the Western
District.” Dkt. 18. She also suggests that potential
witnesses live in the Western District. But, similar to
Res-Care, she does not provide any details about the events
or proposed witnesses. Nor does she state under penalty of
perjury that her assertions are true. Dawson has filed a
motion for leave to file a surreply, Dkt. 19, which I will
grant; Dawson has the right to respond to Res-Care's new
argument about improper venue.
may file her surreply after Res-Care and the individual
defendants have weighed in. Dawson should submit additional
specific facts relevant to these analyses, including: the
address of her current residence, specific events that gave
rise to this action that occurred in the Western District and
where exactly those events occurred, the names and locations
of potential witnesses who reside in the Western District,
the location of any other evidence located in the Western
District, and anything else that she believes makes the
Western District a more convenient forum for this litigation
than the Eastern District. She should include a statement
that the facts she provides are true under penalty of
has also filed a motion for an extension of time to amend her
complaint. Dkt. 20. I take her motion to be a response to my
screening order, in which I stated that she would have to
amended her complaint to better explain some of her proposed
claims. See Dkt. 5. I will grant that motion; Dawson
will have the same deadline for her amended complaint as I am
setting for her surreply on the motion to transfer.
Defendant Res-Care's motion for an extension of time to
file its ...