The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.
Plaintiff, Mercedes Ayala-Branch ("Ayala-Branch") commenced the present
action alleging thirteen separate causes of action for sexual, gender and
national origin discrimination and unlawful retaliation pursuant to Title
VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq. ("Title
VII"), and analogous New York State and City law. At the initial
conference pursuant to Rule 16 of the Federal Rules of Civil Procedure,
defendant Tad Telecom, Inc. ("TTI") sought leave to file a motion to
transfer the action to the United States District Court for the Middle
District of Florida, Tampa Division. At the Rule 16 conference, the Court
scheduled the matter for briefing by letter. For the reasons set forth
below, TTI's motion to transfer pursuant to 28 U.S.C. § 1404 (a) is
Ayala-Branch asserts that venue for this action is proper in the
Southern District of New York because she was hired to participate in a
training program in Tampa, Florida after a telephone interview which
occurred in this District and because she would have worked here but for
the alleged discrimination. Based on these assertions, Ayala-Branch
concludes that her choice of forum is proper under the venue provision of
Title VII, 42 U.S.C. § 2000e-5 (f)(3), which states:
Such 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 . . .
Accepting as true Ayala-Branch's allegation that she would have worked in
this judicial District upon completion of her training, it appears that
the Southern District of New York is an appropriate forum under the
specific venue rules set forth in Title VII.
That the present action may have been commenced appropriately in this
District, however, does not end the inquiry. Although Title VII contains
its own statutory venue provisions, an action brought under the federal
employment discrimination laws is still subject to transfer in order to
maximize the convenience of parties and witnesses and in the interests of
justice. See 28 U.S.C. § 1404 (a); Ring v. Executive Jet Aviation,
No. 01 Civ. 738, 2001 WL 492428, *2 (S.D.N.Y. May 8, 2001); Richman v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 441 F. Supp. 517,
(S.D.N.Y. 1977) (although "choice of forum in a Title VII action is
strictly governed by the venue provisions in 42 U.S.C. § 2000e-5 (f)
(3) . . . transfer in the interests of justice and for the convenience of
all the parties is not foreclosed by 42 U.S.C. § 2000e-5 (f)(3).").
In assessing whether transfer of an action is warranted pursuant to
28 U.S.C. § 1404 (a), courts are guided by several factors: (1) the
convenience of witnesses; (2) the convenience of parties; (3) the
location of relevant documents and the ease of access to those sources of
proof; (4) the situs of the operative events at issue; (5) the
availability of process to compel the attendance of unwilling witnesses;
(6) the relative means of the parties; (7) the comparative familiarity of
each district with the governing law; (8) the weight accorded to
plaintiff's choice of forum; and (9) judicial economy and the interests of
justice. See Berman v. Informix Corporation, 30 F. Supp.2d 653, 657
(S.D.N.Y. 1998) (citations omitted) Ordinarily, plaintiff's choice of
forum is accorded relatively greater importance than the other factors.
That is not the case, however, when the operative facts have few
meaningful connections to the plaintiff's chosen forum. Id. at 659. Under
those circumstances, the importance of the plaintiff's choice of forum
measurably diminishes. Id.; see also Caesar v. Interoute
Telecommunications, Inc., No. 00 Civ. 8629, 2001 WL 648946, *3 (S.D.N.Y.
June 12, 2001).
Ayala-Branch contends that transfer would be unwarranted for two
reasons. First, her choice of forum is statutorily authorized pursuant to
42 U.S.C. § 2000e-5 (f)(3), and presumably, the Court should defer to
her preference for bringing her action in this District. Second, transfer
would result in inconvenience to Ayala-Branch and undue delay in the
Neither of these two contentions present a compelling case for denying
transfer. As set forth above, the more precise issue before the Court is
not whether Ayala-Branch's choice of forum is proper, but whether another
district would be the more appropriate forum in light of the totality of
circumstances. Furthermore, although the Court respects Ayala-Branch's
preference to remain in this District for purposes of litigation, the
importance of her preference is substantially diminished by the
uncontested allegations in her complaint which place the operative events
— her training program, the alleged unlawful employment practices,
her complaints of discrimination to supervisors and her employer's
alleged retaliation against her — in Tampa, Florida.
In addition, TTI raises a number of relevant practical and efficiency
concerns which go to the heart of the analysis under Berman. First, TTI
identifies seven potential witnesses with relevant knowledge of the
events in question, who, because the operative events occurred in Tampa,
all reside either in Florida or Georgia. The convenience of these
potential witnesses, therefore, clearly weighs in favor of transfer.
Furthermore, the practical consideration of this Court's subpoena power
is also relevant. Because some of these potential witnesses have left TTI
for other employment opportunities, they are non-party witnesses who may
be unwilling to travel to this District and who are clearly beyond the
subpoena power of this Court.
When balancing these concerns under the rubric of the Berman analysis,
the Court is persuaded that the Middle District of Florida is the more
appropriate forum for Ayala-Branch's action. The second, third, seventh
and eighth factors
favor neither party over the other.*fn1 The sixth
factor has not been addressed by either party.*fn2 The balance of the
criteria, however, support TTI's motion to transfer. Ayala-. Branch's
training program, TTI's allegedly discriminatory acts, her purported
complaints to TTI supervisors and the alleged retaliation against her
— the critical events in question — took place in Tampa. The
potential witnesses, all current residents of Florida or Georgia, would
save both time and expense if this action proceeds in the Middle District
of Florida. The unavailability of non-party witnesses because of the
limitation in this Court's subpoena power could substantially prejudice
TTI's ability to defend itself against Ayala-Branch's claims.
As a final matter, Ayala-Branch's concerns about undue delay appear to
be misplaced. She asserts that transfer of her action would require, in
essence, starting over again from the beginning. TTI, however, has stated
by letter brief its willingness to stipulate to the case management plan
already endorsed by this Court and to any discovery that has already been
taken in this District. In sum, judicial ...