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United States District Court, S.D. New York

January 5, 2004.

MARGUERITE FOLEY, Plaintiff, -against- SAMMONS PRESTON, INC. Defendants

The opinion of the court was delivered by: GEORGE DANIELS, District Judge


Plaintiff Marguerite Foley, a resident of North Carolina, brings claims for employment discrimination under Title VII of the Civil Rights Act of 1964, the Pregnancy Discrimination Act, the Family and Medical Leave Act of 1993, the New York State Human Rights Law and the New York City Administrative Code. Defendants move to dismiss pursuant to Fed.R.Civ.P. 12(b)(3) or, in the alternative, to transfer the instant action to the Northern District of Illinois pursuant to 28 U.S.C. § 1404 and 1406. For the reasons stated below, defendant's motion to dismiss is denied. Defendant's motion to transfer the case to the Northern District of Illinois is also denied.

I. Background

  Plaintiff, a former sales representative, sold medical supplies to hospitals and health care providers in the New York metropolitan area for the defendant until her termination on March 28, 2002. Plaintiff alleges that on June 22, 2001, she took a six week leave of absence and one week vacation, with authorization from her employer to give birth to her child. Plaintiff claims that when she returned to work on August 10, 2001, she was informed that her sales territory, which included Manhattan, was being reduced and would no longer include the borough. Plaintiff alleges that upon protesting the reduction of her sales territory, she was informed by her Page 2 supervisor that it would be easier for the plaintiff to work the smaller area as she had a newborn child and a four year-old. Plaintiff alleges that the decision to reduce her sales territory was based solely upon a discriminatory reason as "men who had families did not have their territories reduced in size." Complaint at 5, ¶ 31. Plaintiff argues that defendant's action "constitutes an impermissible discriminatory act, based upon sex, in violation of [plaintiff s] rights under the provisions of Title VII of the Civil Rights Act of 1964. . . ." Id. at 5, ¶ 33.

  Plaintiff also alleges that prior to her pregnancy leave, on or about January 15, 2001, she suffered sexual harassment in violation of her rights under Title VII Plaintiff claims that during two separate regional sales meetings held in Philadelphia, Pennsylvania, a particular co-worker made a series of offensive and sexually hostile remarks. After complaining of these remarks to the supervisor, plaintiff alleges that her employer retaliated against her. Specifically, plaintiff maintains that "one of her original accounts has been reclassified as a house account, causing [her] to suffer a loss of pay and commissions." Id. at 9, ¶ 58. Plaintiff further asserts that her termination on March 28, 2002 "was in retaliation for [her] registering complaints about offensive sexual behavior by [her supervisor]." Id. at 10, ¶ 66.

  II. Discussion

  Defendant argues that plaintiffs complaint should be dismissed because venue is improper in the Southern District of New York. Title VII has a specific venue provision, 42 U.S.C. § 2000e-5(f)(3). See Bolar v. Frank, 938 F.2d 377, 379 (2d Cir. 1991). Section 2000e-5(f)(3) provides that a Title VII 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 Page 3 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.

 42 U.S.C. § 2000e-5(f)(3).

  Title VII provides its own definition of what constitutes an unlawful employment practice. Specifically, it is an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin. . . ." 42 U.S.C. § 2000e-2(a)(1). See Wrenn v. Bd. of Dir., Whitney M. Young, Jr. Health Center, 1989 WL 23135, * 6 (N.D.N.Y.). In the present case, plaintiff alleges that defendant unlawfully discharged her in retaliation for her claims of sexual harassment. As plaintiff was terminated from her position in New York, venue is properly established. It is without dispute that plaintiff was hired in New York, worked in New York and lost her job in New York.

  Defendants contend, however, that "no allegedly discriminatory employment-related decisions were made in the Southern District of New York; all were made . . . in telephone consultations with corporate representatives in Bolingbrook, Illinois" and that "what matters is that the decisions about which she complains were not made in this judicial district. . . ." Defendant's Brief at 2-3. However, notwithstanding defendant's argument, the alleged discriminatory effect of those decisions were clearly in New York. In determining where an alleged discriminatory practice occurred, courts look not only to where the decisions were made, but also to where the discriminatory actions took place. See Cox v. National Football League, Page 4 1997 WL 619839, *3 (N.D.Ill. 1997). To hold otherwise allows employers everywhere "to make their decisions to terminate and discipline in far away offices in order to protect themselves from litigation." Id. Plaintiff therefore satisfies the first basis for establishing venue and venue is proper in this district. Defendant's motion to dismiss is therefore denied.

  Defendant argues, in the alternative, that this case should nevertheless be transferred to the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a).


The inquiry on a motion to transfer is twofold. The court must first determine whether the action sought to be transferred is one that `might have been brought' in the transferee court. Second, the court must determine whether, considering the `convenience of parties and witnesses' and the interes of justice, a transfer is appropriate.
Wilshire Credit Corp. v. Barrett Capital Management Corp., 976 F. Supp. 174 (W.D.N.Y. 1997). Defendant argues and plaintiff concedes that the present action could have been brought in the Northern District of Illinois, as plaintiffs employment records are maintained and administered in Bolingbrook, Illinois. The Court must next decide whether a transfer is in fact called for, given the competing interests of the parties.

  Section 1404(a) is concerned with both "`private interest factors' affecting the convenience of the litigants" and "public interest factors' affecting the convenience of the forum." Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 258, 70 L.Ed.2d 419 (1981) (citation omitted). The private interest factors include


(1) the convenience of witnesses; (2) the location of relevant documents and relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the forum's familiarity with the governing law; (8) the weight accorded the plaintiffs choice of forum; and (9) trial efficiency and the interest of justice, based on the totality of the circumstances.
MBCP Peerlogic LLC v. Critical Path, Inc., 2002 WL 31729626 at *3 (S.D.N.Y. 2002) (citing Page 5 Constitution Reins. Corp. v. Stonewall Ins. Co., 872 F. Supp. 1247, 1250 (S.D.N.Y. 1995)). See also Dwyer v. General Motors Corp., 853 F. Supp. 690, 692 (S.D.N.Y. 1994); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). While courts are to consider the above factors, there is "no rigid formula for balancing these factors and no single one of them is determinative." Citigroup, Inc. v. City Holding Company and City Nat'l Bank, 97 F. Supp.2d 549, 561 (S.D.N.Y. 2000) (citations omitted). In addition, the Court must defer to the plaintiffs choice of forum unless the balance of convenience and justice weigh heavily in favor of defendant's proposed forum. Id.; Toy Biz, Inc. v. Century Corp., 990 F. Supp. at 330 (S.D.N.Y. 1998); Jannus Group, Inc. v. Independent Container, Inc., 1998 U.S. Dist. LEXIS 13106 *9 (S.D.N.Y. Aug. 24, 1998).

  The first factor, the convenience of witnesses, is considered the single most important factor in the analysis of whether a transfer should be granted. Aerotel, Ltd. v. Sprint Corp., 100 F. Supp.2d 189, 197 (S.D.N.Y. 2000). The moving party must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover. Factors Etc. v. Four Seasons Hotels, Ltd., 579 F.2d 215, 218 (1978). Plaintiff contends that it will take the depositions of six witnesses, all of whom reside closer to this district than the Northern District of Illinois. Plaintiff has provided an explanation of the information to be provided by each of her witnesses. Defendant argues that it intends to call the company's president, human resources director and other employee witnesses. Defendant, however, fails to proffer the extent or nature of its witnesses' testimony. Furthermore, although the number of witnesses seems to tip the balance in favor of the plaintiff, "[determining] the convenience of a forum to witnesses requires more than simply adding up the number of potential witnesses in the alternative fora. The nature Page 6 and importance of a potential witness's testimony also inform the Court's determination." Garrel v. NYLCare Health Plans, Inc. & NYLCare Health Plans of the Mid-Atlantic, Inc., 1999 WL 459925 (S.D.N.Y. 1999)(citing Vaughn v. American Basketball Assn., 419 F. Supp. 1274, 1276 (S.D.N.Y. 1976). Of the potential ten witnesses identified by both the plaintiff and the defendant, two of the most important are the plaintiffs former supervisor and the co-worker who allegedly sexually harassed her. The former resides in New York State while the latter resides in Pennsylvania. This factor, therefore, favors keeping this case in this jurisdiction.

  Secondly, although defendant argues and the plaintiff concedes that the employment records are located in the defendant's offices in Illinois, "[t]he location of documents factor is neutral `[in] today's era of photocopying, fax machines and Federal Express." Aerotel, Ltd. v. Sprint Corp., 100 F. Supp.2d 189, 197 n.2 (S.D.N.Y. 2000)(quoting Coker v. Bank of America, 984 F. Supp. 757, 766 (S.D.N.Y. 1997). Furthermore, the defendant has failed to demonstrate that the amount of physical evidence situated in Illinois is so overwhelming that it is impractical and unduly burdensome to ship it to New York.

  As to the convenience of the parties, neither side's argument proves availing. As plaintiff is currently a resident of North Carolina, the relative cost of traveling to either the Northern District of Illinois or this District is of equal balance. Defendant, meanwhile, simply argues that "it is the only party that resides in the forum that it claims to be the proper venue." However, since defendant does business in New York, it cannot argue that New York is an inconvenient or unexpected forum in which to litigate an issue arising out of its relationship with a New York employee.

  As discussed earlier in determining that venue is proper in this district, the fourth factor, Page 7 the location of the locus of operative facts, also favors non-transfer. Although defendant claims that the decisions leading to the events at the center of this litigation occurred outside of this district, the result of those decisions were the reduction of plaintiff s New York sales territory and the termination of her New York employment. Furthermore, plaintiffs allegations of harassment occurred in Philadelphia, Pennsylvania, not the Northern District of Illinois. This factor, therefore, also favors non-transfer.

  The fifth factor, the availability of process to compel the attendance of unwilling witnesses also favors the plaintiffs choice of forum. Plaintiff asserts that of the six witnesses she expects to depose, four are within the 100 mile subpoena power of the United States District Court for the Southern District of New York, while none are in the 100 mile subpoena power of the Northern District of Illinois. Plaintiff further argues that the two witnesses offered by the defendant can be compelled to appear pursuant to Fed.R.Civ.P. 45(c)(3)(A)(ii) because they are officers of the defendant. Defendant argues that plaintiff does not claim that her witnesses would be unwilling to testify in Illinois without being subpoenaed, and as such, the Court should find this factor neutral. However, the analysis of this factor assumes the unwillingness of third party witnesses to attend and then asks what process is available to compel attendance. As there is no process to compel if this case is transferred to the Northern District of Illinois, this factor favors non-transfer.

  Plaintiff maintains that she is unemployed and alleges that the defendant is expected to gross 220 million dollars in calendar year 2003 and is part of an organization whose value is put at 1.6 billion dollars. Plaintiffs Brief at 16. Plaintiff further alleges that she is responsible for all expenses incurred by her counsel and that such expenditures constitute a financial hardship. Page 8 "Where a disparity exists between the means of the parties, a court may consider the relative means of the parties in determining venue." Aerotel, 100 F. Supp.2d at 197. Defendant presents no argument as to this factor. This Court finds that defendant's resources are greater than those of plaintiff and that litigation in the Northern District of Illinois would likely pose a much greater burden on plaintiff than the burden posed on defendant to litigate in this district.

  The forum's familiarity with governing law favors the plaintiff, but only slightly. Although plaintiff asserts New York State law claims, such claims are corollary to their federal claims and do not present complex questions of law. See Merkur v. Wyndham Int'l. No. 00 Civ. 5843, 2001 WL 477268, at *5 (S.D.N.Y. 2001)("Where an action does not involve complex questions of another state's laws, courts in this district accord little weight to this factor on a motion to transfer venue")(citing Vassallo v. Niedermever, 495 F. Supp. 757, 759 (S.D.N.Y. 1980)). Moreover, the fact that New York law may apply "is not more significant than convenience to the parties and witnesses." Schwarz v. R.H. Macy's Inc., 791 F. Supp. 94, 96 (1992). Although this factor weighs in favor of keeping this case in this District, therefore, it does so only slightly and without much weight.

  "While ordinarily a plaintiffs choice of forum is accorded significant weight, when the forum chosen is not the plaintiffs home forum, the choice is given less deference." Kiss My Face Corp. v. Bunting, 2003 WL 22244587, *4 (S.D.N.Y. 2003). As plaintiff currently resides in North Carolina, her choice of forum should be given less deference. However, this district was previously plaintiffs residence and place of employment, and creates fewer issues regarding its convenience for litigation of this dispute.

  Finally, defendant argues that "based upon statistical data, this matter will proceed to Page 9 final disposition more rapidly in the Northern District of Illinois." Plaintiff argues that defendant's argument that this district has heavier caseload is entitled to little weight. It is clear, however, that this factor analyzes not only trial efficiency but also the interest of justice, based on the totality of the circumstances. Here, neither the nature or complexity of this action compel transfer to the Northern District of Illinois.

  In sum, the convenience of the majority of relevant trial witnesses, the ability to compete the attendance of unwilling witnesses, the convenience of the plaintiff and relative inconvenience to the defendant, the locus of operative facts, and the relative means of the parties supports keeping this case in the Southern District of New York. Defendant has failed to meet its burden of demonstrating that the transfer to the Norther District of Illinois is warranted in the interest of justice. Defendant's motion to transfer, therefore, is denied.

  SO ORDERED. Page 1


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