Szubinski v. SJM Premier Medical Group LLC et al

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
COURTNEY SZUBINSKI,
Plaintiff,
vs.
SJM PREMIER MEDICAL GROUP LLC,
SCOTT J. MISCOVICH LLC, SCOTT J.
MISCOVICH, M.D.;
Defendants.
CIV. NO. 22-00533 LEK-RT
ORDER TRANSFERRING VENUE
On October 16, 2023, Defendants SJM Premier Medical
Group LLC (“SJM”), Scott J. Miscovich, M.D. LLC doing business
as Premier Medical Group (“PMG” and collectively “Corporate
Defendants”), and Scott J. Miscovich, M.D. (“Dr. Miscovich” and
collectively “Defendants”) filed their motion to dismiss or for
judgment on the pleadings (“Motion”). [Dkt. No. 43.] Plaintiff
Courtney Szubinski (“Plaintiff”) filed her memorandum in
opposition on December 21, 2023. [Dkt. No. 48.] Defendants filed
their reply on December 29, 2023. [Dkt. No. 49.] This matter
came on for hearing on January 12, 2024. For the reasons set
forth below, Defendants’ Motion is granted as to Defendants’
request for transfer to the United States District Court for the
District of Arizona, and insofar as Count I against Dr.
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Miscovich is dismissed. The Motion is denied without prejudice
in all other respects.
BACKGROUND
This action arises out of Defendants’ termination of
Plaintiff’s employment. Plaintiff alleges Dr. Miscovich owns and
operates SJM and PMG and made the final decisions related to
employment decisions. [Second Amended Civil Complaint for
Equitable and Monetary Relief (“Second Amended Complaint”),
filed 10/2/23 (dkt. No. 39), at ¶¶ 10-12.] Plaintiff is
domiciled in Arizona, Dr. Miscovich is domiciled in Hawai`I, SJM
is a Nevada limited liability company with its principal place
of business in Arizona, and PMG is a Hawai`I limited liability
company with its principal place of business in Hawai`i. Dr.
Miscovich is the managing member of both SJM and PMG. [Id. At
¶¶ 1-4.] Plaintiff alleges she was hired on April 7, 2021 as a
part-time Covid-19 vaccinator at various vaccination sites in
Arizona, and began working full-time in July 2021 at the Pima
County, Arizona facility (“Pima County Facility”). [Id. At
¶¶ 13, 17.] Defendants offered Plaintiff a clinical coordinator
role at the Pima County Facility on August 10, 2021. [Id. At
¶ 22.] Plaintiff alleges in April 2022 she was replaced by a
less qualified male employee. At this point, Plaintiff alleges
her job duties changed to mostly secretarial work, her
supervisory duties were eliminated, and she lost her office
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space and work laptop. [Id. At ¶ 28.] At various times
throughout her employment, Plaintiff alleges that she reported
health and safety concerns to Defendants, including concerns of
Defendants’ improper medical training and credentialing. [Id. At
¶¶ 15, 20-21, 23-24, 26-27, 29, 31-33.]
Plaintiff alleges on June 21, 2022, Plaintiff received
a memorandum from Dr. Miscovich terminating her employment. The
header of the letter stated “Premier Medical Group Hawaii” and
“Premier Medical Group USA” and listed an address in Kaneohe,
Hawai`i. Id. At ¶ 36, see also Reply, Declaration of Rene
Mansanas (“Mansanas Decl.”), Exh. D (June 21, 2022 letter from
Dr. Miscovich to Plaintiff). 1
Plaintiff alleges the following claims: retaliation
for reporting violations of federal law regarding medical
training and credentialing in violation of the False Claims Act,
Title 31 United States Code Section 3730(h), against Defendants
(“Count I”); discrimination based on sex resulting in her
termination in violation of Hawai`I Revised Statutes
Section 378-2 against the Corporate Defendants (“Count II”);
retaliation in violation of the Hawai`I Whistleblowers’
1 A corrected version of the Mansanas Declaration was filed
on January 26, 2024 (“Corrected Mansanas Declaration”). [Dkt.
no. 51.] Rene Mansanas (“Mansanas”) is PMG’s Executive Vice
President and Chief Operating Officer (“COO”). [Corrected
Mansanas Decl. at ¶ 1.]
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Protection Act, Hawai`I Revised Statutes Section 378-62, against
Defendants (“Count III”); discrimination based on sex resulting
in her termination in violation of Title VII of the Civil Rights
Act of 1964 (“Title VII”), Title 42 United States Code
Section 2000e et. Seq., against the Corporate Defendants
(“Count IV”). [Second Amended Complaint at ¶¶ 40-65.]
Defendants argue venue in Hawai`I is improper, and
therefore this Court should dismiss the case or transfer the
case to Arizona. In the alternative, Defendants argue this Court
should dismiss the case for failure to state a claim. [Motion,
Mem. In Supp. At 1-3.]
STANDARD
Defendants challenge venue pursuant to Federal Rule of
Civil Procedure 12(b)(3). [Motion at 3.] It is the plaintiff’s
burden to establish that venue is proper. See Piedmont Label Co.
v. Sun Garden Packing Co., 598 F.2d 491, 496 (9 th Cir. 1979). In
a Rule 12(b)(3) motion, a court may consider facts outside of
the pleadings and need not accept the pleadings as true. Kukje
Hwajae Ins. Co. v. M/V Hyundai Liberty, 408 F.3d 1250, 1254 (9 th
Cir. 2005). If factual issues are contested, the court must draw
all reasonable inferences and resolve all factual conflicts in
favor of the non-moving party, or hold a pre-trial evidentiary
hearing on the disputed facts. Chey v. Orbitz Worldwide, Inc.,
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983 F. Supp. 2d 1219, 1227 (D. Hawai`I 2013) (citing Murphy v.
Schneider Nat’l, Inc., 362 F.3d 1133, 1138-39 (9 th Cir. 2004)).
If venue is improper, the district court may dismiss
the case without prejudice, or, if it is “in the interest of
justice, transfer [the] case to any district or division in
which it could have been brought.” 28 U.S.C. § 1406(a); see also
In re Hall, Bayoutree Assocs., 939 F.2d 802, 804 (9 th Cir. 1991)
(stating dismissal for improper venue must be without
prejudice).
DISCUSSION
Preliminarily, Plaintiff concedes Dr. Miscovich should
only be named as a Defendant in Count III. [Mem. In Opp. At 13.]
Claims against Dr. Miscovich are only brought in Counts I and
III. Therefore, Count I against Dr. Miscovich is dismissed
without leave to amend.
II. 	Whether Venue is Proper in Hawai`i
Venue in Title VII cases is exclusively governed by
Title 42 United States Code Section 2000e-5(f)(3). Johnson v.
Payless Drug Stores Nw., Inc., 950 F.2d 586, 587-88 (9 th Cir.
1991) (per curiam). “In employment discrimination cases, the
Title VII venue provisions control rather than the general
federal venue statute, even if a non-Title VII claim is
included.” Mayberry v. Int’l Bus. Machs. Corp., No. CV 09-1369
CW, 2009 WL 1814436, at *3 (N.D. Cal. June 25, 2009) (citing
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Johnson v. Pay Less Drugstores Northwest, Inc., 950 F.2d 586,
587–588 (9 th Cir. 1991)).
Section 2000e-5(f)(3) provides that:
an action may be brought in any judicial district
in the State in which the unlawful employment
practice is alleged to have been committed, in
the judicial district in which the employment
records relevant to such practice are maintained
and administered, or in the judicial district in
which the aggrieved person would have worked but
for the alleged unlawful employment practice, but
if the respondent is not found within any such
district, such an action may be brought within
the judicial district in which the respondent has
his principal office.
Generally, Title VII’s venue provision allows suit in the
judicial district where the plaintiff worked or would have
worked. Passantino v. Johnson & Johnson Consumer Prods., Inc.,
212 F.3d 493, 504-505 (9 th Cir. 2000). Venue may be appropriate
in more than one district. See id. At 506. Under Section 2000e-
5(f)(3), “venue is proper in both the forum where the employment
decision is made and the forum in which that decision is
implemented or its effects are felt.” Id.
Defendants argue Plaintiff has not carried her burden
of demonstrating that venue is proper in Hawai`I because none of
the bases for venue stated in Section 2000e-5(f)(3) apply: no
unlawful employment practice was committed in Hawai`I; Plaintiff
did not work in Hawai`I; employment records were not maintained
or administered in Hawai`I; and SJM’s principal offices are in
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Arizona. [Motion, Mem. In Supp. At 8-11.] Plaintiff contends the
decision to terminate Plaintiff was made in Hawai`I, and it is
reasonable to assume that employment records are administered
and maintained in Hawai`I until discovery proves otherwise.
[Mem. In Opp. At 10-12.] The Court addresses both of Plaintiff’s
arguments in turn.
A. 	Decision to Terminate
Plaintiff argues the letter terminating her employment
was sent from Hawai`I from Dr. Miscovich, a Hawai`I resident,
indicating the decision to terminate Plaintiff’s employment was
made in Hawai`i. [Mem. In Opp. At 10-11.] However, Defendants
offer evidence indicating the decision to terminate Plaintiff
was not made in Hawai`i. Rather, the decision to terminate
Plaintiff was part of nationwide downsizing effort that resulted
in the termination of almost 200 employees. [Corrected Mansanas
Decl. at ¶¶ 3-4.] Mansanas, PMG’s Executive Vice President and
COO, states she toured the Pima County Facility around May 9,
2022 to May14, 2022 to evaluate the operations and staffing at
these facilities. [Id. At ¶¶ 1, 5.] Mansanas states the
selection of which employees to terminate was based on a review
of salaries, job duties, and site functions. Termination
notifications sent to employees in Arizona, Georgia, New Mexico
and Hawai`I were all sent from PMG’s Hawai`I offices. See id. At
¶¶ 7-8. In light of this evidence, the fact Plaintiff’s
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termination letter was sent by Dr. Miscovich from Hawai`I does
not indicate Plaintiff’s termination decision occurred in
Hawai`I and is insufficient to establish that venue is proper in
this district.
Plaintiff has not carried her burden under the first
prong of Title VII’s venue provision of establishing that the
unlawful employment practice is alleged to have been committed
in Hawai`i. See 42 U.S.C § 2000e-5(f)(3).
II. 	Where Employment Records Are Maintained
Likewise, Plaintiff fails to establish employment
records are “maintained and administered” in Hawai`i. See id.
Defendants present evidence that the relevant electronic
employment records are on a server in California. See Corrected
Mansanas Decl. at ¶ 9. When employment records are stored
electronically, the location of the server storing the records
is the place where they are considered to be maintained and
administered for the purpose of Title VII venue. See, e.g., Enoh
v. Hewlett Packard Enter. Co., Case No. 17-cv-04212-BLF, 2018 WL
3377547, at *9 (N.D. Cal. July 11, 2018) (citing cases).
Therefore, because the relevant employment records are not
maintained and administered in Hawai`I, venue in this district
is improper on that basis.
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II. 	Dismiss or Transfer
For the foregoing reasons, venue is not proper in
Hawai`i. Therefore, the Court may dismiss the case or transfer
the case to any district in which it properly could have been
brought. The interest of justice generally requires transferring
an action brought in an improper venue instead of dismissing it.
See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466–67 (1962).
Venue is proper in the United States District Court
for the District of Arizona, the district in which Plaintiff is
domiciled and worked prior to her termination. See Second
Amended Complaint at ¶¶ 1, 13, 17; 42 U.S.C. § 2000e-5(f)(3)
(“an action may be brought . . . in the judicial district in
which the aggrieved person would have worked but for the alleged
unlawful employment practice”). Plaintiff does not dispute that
venue would be proper in Arizona, nor the fact that Plaintiff
worked in Arizona, and but for her termination, would have
continued to work in Arizona. Therefore, the Court finds that
transfer to the United States District Court for the District of
Arizona is proper.
Because the Court concludes that transfer is
warranted, it does not reach the remaining issues. The remaining
portions of the Motion are denied without prejudice to raising
those issues in the transferee district.
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CONCLUSION
For the foregoing reasons, Defendant’s Motion to
Dismiss Second Amended Civil Complaint for Equitable and
Monetary Relief, Filed October 2, 2023 [ECF 39] or for Judgment
on the Pleadings, filed October 16, 2023, is GRANTED IN PART AND
DENIED IN PART. The Motion is GRANTED insofar as the case is
TRANSFERRED to the United States District Court for the District
of Arizona and Count I against Dr. Miscovich is DISMISSED
without leave to amend. The Motion is DENIED WITHOUT PREJUDICE
in all other respects. The Clerk’s Office is DIRECTED to
transfer the case to the United States District Court for the
District of Arizona. The Clerk’s Office shall effectuate the
transfer and close the case file in this district court on March
6, 2024 unless a timely motion for reconsideration of this Order
is filed.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 20, 2024.
COURTNEY SZUBINSKI VS. SJM PREMIER MEDICAL GROUP LLC, ET AL; CV
22-00533 LEK-RT; ORDER TRANSFERRING VENUE
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