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Kershner v. Norton

August 14, 2003

KATHRYN L. KERSHNER, PLAINTIFF,
v.
GALE A. NORTON, SECRETARY OF THE DEPARTMENT OF THE INTERIOR, DEFENDANT.



The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document No. 15

MEMORANDUM OPINION

DENYING THE PLAINTIFF'S MOTION TO ALTER THE TRANSFER ORDER

I. INTRODUCTION

Plaintiff Kathryn L. Kershner alleges employment discrimination by defendant Gale A. Norton, the Secretary of the Department of Interior, in this Title VII action. This matter comes before the court on the plaintiff's motion to alter the court's order transferring this case to the Northern District of West Virginia ("transfer order"). The plaintiff argues that the court erred by basing its transfer order on an affidavit the defendant submitted with her reply and by granting the defendant's motion to transfer despite a factual dispute regarding proper venue. Because the affidavit supports the reply and no factual conflict exists, justice does not require the court to alter the transfer order and the court denies the plaintiff's motion.

II. BACKGROUND

In September 2002, the plaintiff filed a complaint alleging employment discrimination by the defendant. Compl. at 1. At the time of the alleged discrimination, the defendant employed the plaintiff as a social service assistant at the defendant's job corps facility in Harpers Ferry, West Virginia. Id. The plaintiff alleges retaliation and discrimination based on a disabling depression made worse by working the midnight shift. Id. at 3. In April 2003, the defendant moved the court to transfer the action, arguing that venue is improper here because the defendant maintained and administered the plaintiff's employment records relevant to her claims in Harpers Ferry. Mot. to Transfer at 1. For this reason, and because the location of the relevant employment records was the only element of venue in dispute, the court determined that venue is proper in the Northern District of West Virginia and not in this district. Order dated May 2, 2003 at 2 (citing 42 U.S.C. § 2000e-5(f)(3)). Accordingly, the court granted the defendant's motion to transfer. Order dated May 2, 2003 at 2. On May 6, 2003 the plaintiff filed a motion to alter the court's order, challenging the transfer of the case. Mot. to Alter J. at 1.

III. ANALYSIS

A. Legal Standard for Altering or Amending an Interlocutory Judgment

A district court may revise its own interlocutory decisions"at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties." FED. R. CIV. P. 54(b); see also Childers v. Slater, 197 F.R.D. 185, 190 (D.D.C. 2000) (citing Federal Rule of Civil Procedure 60(b)'s Advisory Committee Notes). The standard of review for interlocutory decisions differs from the standards applied to final judgments under Federal Rules of Civil Procedure 59(e) and 60(b). Compare Muwekma Tribe v. Babbitt, 133 F. Supp. 2d 42, 48 n.6 (D.D.C. 2001) and United Mine Workers v. Pittston Co., 793 F. Supp. 339, 345 (D.D.C. 1992) with LaRouche v. Dep't of Treasury, 112 F. Supp. 2d 48, 51-52 (D.D.C. 2000) and Harvey v. District of Columbia, 949 F. Supp. 878, 879 (D.D.C. 1996). A motion pursuant to Rule 59(e), to alter or amend a judgment after its entry, is not routinely granted. Harvey, 949 F. Supp. at 879. The primary reasons for altering or amending a judgment pursuant to Rule 59(e) are an intervening change of controlling law, the availability of new evidence or the need to correct a clear error or prevent manifest injustice. Id.; Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (per curiam). Motions pursuant to Rule 60(b) may be granted for similar reasons. FED. R. CIV. P. 60(b); LaRouche, 112 F. Supp. 2d at 51-52. Reconsideration of an interlocutory decision, however, is available under the standard, "as justice requires." Childers, 197 F.R.D. at 190.

B. The Court Did Not Err By Relying on the Defendant's Reply Affidavit

The plaintiff argues that the court erred by relying on information in an affidavit that the defendant submitted with her reply. Mot. to Alter J. at 3. Therefore, the plaintiff contends, the court should alter the transfer order and deny the defendant's motion to transfer. Id.

Federal Rule of Civil Procedure 6(d) states: "When a motion is supported by affidavit, the affidavit shall be served with the motion." Although the rule is silent on the proper time to file affidavits that support a reply, courts have held that filing an affidavit with a reply is appropriate when the affidavit addresses matters raised in the opposition. McGinnis v. Southeast Anesthesia Assocs., 161 F.R.D. 41, 42 (W.D.N.C. 1995); Litton Indus., Inc. v. Lehman Bros. Kuhn Loeb, Inc., 767 F. Supp. 1220, 1235 (S.D.N.Y. 1991). Such an approach fulfills the purpose of Rule 6(d), which is to avoid unfair surprise and permit the court to resolve motions on the merits. McGinnis, 161 F.R.D. at 42.

To support her motion to transfer, the defendant supplied an affidavit from one of her attorneys, Jacqueline Jackson, stating that the employment records pertinent to this case "are maintained at... Harpers Ferry, West Virginia." Jackson Aff. ¶¶ 1, 5. The plaintiff's opposing affidavit declares that several of the defendant's employees told her that her employment records were located in the District of Columbia. Kershner Aff. ¶¶ 2-7. The ...


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