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.
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
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,
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.
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
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,
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
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
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
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
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
As discussed earlier in determining that venue is proper in this
district, the fourth factor,
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
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.
"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
"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
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.
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