Beau Ellenbecker v. Jimmy John’s, LLC

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 8, 2021 *
Decided November 9, 2021
Before
ILANA DIAMOND ROVNER, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 21‐1019
BEAU ELLENBECKER,
Plaintiff‐Appellant,
v.
JIMMY JOHN’S, LLC,
Defendant‐Appellee.
Appeal from the United States District
Court for the Eastern District of
Wisconsin.
No. 20‐C‐1231
William C. Griesbach,
Judge.
O R D E R
Beau Ellenbecker, a former store manager at Jimmy John’s, appeals the denial of
his post‐judgment motion challenging the dismissal of his employment‐discrimination
complaint. Because the district court acted well within its discretion to deny the motion,
we affirm.
* Appellee was not served with process in the district court and is not
participating in this appeal. After examining the appellant’s brief and the record, we
have concluded that the case is appropriate for summary disposition. FED. R. A PP. P.
34(a).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1

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No. 21‐1019 Page 2
Ellenbecker alleged that he was fired from Jimmy John’s in retaliation for alerting
management to the sexually vulgar comments of a former coworker. See 42 U.S.C.
§ 2000e‐3. The district court screened and dismissed his complaint for failure to state a
claim. Ellenbecker did not appeal and instead moved for relief from judgment under
Rule 60(a) of the Federal Rules of Civil Procedure, which concerns corrections based on
mistakes arising from oversight or omission. Ellenbecker asserted that he brought his
suit in the wrong judicial district. He contended that the Eastern District of Wisconsin
was the wrong venue for this suit, given that the events he complained about all
occurred in the Western District. The court denied Ellenbecker’s motion because Rule
60(a) is designed to correct clerical errors, not to substantively alter the court’s decision.
Ellenbecker then appealed. Because he filed his notice of appeal more than 28
days after entry of judgment, however, we limited our review to the denial of his Rule
60(a) motion. (Order of Jan. 29, 2021).
Ellenbecker maintains that his filing of this suit in the wrong venue deprived the
district court of jurisdiction. In his view, the court should have vacated the judgment
and transferred the action to the Western District of Wisconsin.
This argument falters on multiple grounds. First, a belated objection to venue is
not a ground for relief under Rule 60(a). See Brandon v. Chi. Bd. of Educ., 143 F.3d 293,
295 n.2 (7th Cir. 1998). Second, improper venue does not affect jurisdiction. See Wachovia
Bank v. Schmidt, 546 U.S. 303, 316 (2006) (“[V]enue and subject‐matter jurisdiction are
not concepts of the same order. Venue is largely a matter of litigational convenience;
accordingly it is waived if not timely raised.”). Third, because all the events Ellenbecker
complained about occurred in Wisconsin, it does not matter which district in the state
he chose. Venue is a creature of statute, KM Enters., Inc. v. Global Traffic Techs., Inc.,
725 F.3d 718, 724 (7th Cir. 2013), and the Title VII venue provisions permit filing “in any
judicial district in the State in which the unlawful employment practice is alleged to have
been committed.” 42 U.S.C. § 2000e‐5(f)(3) (emphasis added).
We have considered Ellenbecker’s other arguments on appeal, and none has
merit.
AFFIRMED

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