Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

COWER v. ALBANY LAW SCHOOL OF UNION UNIVERSITY

July 7, 2005.

MICHAEL R. COWER, Plaintiff,
v.
ALBANY LAW SCHOOL OF UNION UNIVERSITY, ET AL., Defendants.



The opinion of the court was delivered by: DEBORAH BATTS, District Judge

MEMORANDUM & ORDER

Plaintiff Michael Cower ("Cower") originally filed this action in the Supreme Court of New York, New York County. The case was removed to the Southern District of New York, pursuant to 28 U.S.C. § 1441(b). The Complaint alleges violations of Title IX of the Education Amendments Act of 1972, New York State Human Rights Law, the Code of the City of Albany, and state contract and tort law. Defendants now move to transfer the action to the Northern District of New York, pursuant to 28 U.S.C.A. § 1404(a). Plaintiff's counsel also has filed a Notice of Motion to withdraw as counsel and requests that a retaining lien be fixed. Plaintiff has filed a Statement in Opposition to said motion to withdraw. For the following reasons, Defendants' motion to transfer is GRANTED; Plaintiff's counsel's motion to withdraw is GRANTED; and Plaintiff's counsel's request for a retaining lien is DENIED. I. BACKGROUND

Plaintiff, a resident of New York City, is a former student of Albany Law School. (Compl. ¶ 9.) Defendant Albany Law School of Union University ("ALS") is an accredited educational institution (Compl. ¶ 2), and Defendant Union University ("Union") is comprised of several higher education institutions in the Albany area, including ALS. (Compl. ¶ 3.) Defendant Thomas Guernsey ("Guernsey") is and was President and Dean of ALS. (Compl. ¶ 4.) Defendant John Springsteen is and was at all times employed by ALS in the Office of Administrative Services. (Compl. ¶ 5.)

  In 2002, the Plaintiff enrolled at ALS as a first-year law student. (Compl. ¶ 9.) The plaintiff alleges that, beginning at the first-year student orientation on or about August 19, 2002, Defendant Springsteen and other employees of ALS commenced a pattern of harassing behavior and discrimination against Plaintiff based on his sex, sexual orientation and sex stereotyping. (Compl. ¶ 11.) Plaintiff alleges that his photograph appeared in the "Class of 2005 Student Register," which is distributed to the law school community, with a "sex-based derogatory innuendo" printed beneath his photo. (Compl. ¶ 12.) Plaintiff alleges that Defendant Springsteen, joined by other ALS employees, engaged in a pattern of harassment, which included ridiculing, harassing, gender stereotyping and making derogatory comments and threats to the Plaintiff. (Compl. ¶¶ 14-16.) On or about December 5, 2002, Plaintiff attempted to meet with Defendant Guernsey regarding how he was being treated, and he also filed a written complaint. (Compl. ¶ 20.) Plaintiff contends that Defendant Guernesey was indifferent to his complaints and that ALS failed to respond to his concerns. (Compl. ¶ 21.) Plaintiff withdrew from ALS after his first semester, "because he could no longer tolerate the hostile environment" (Compl. ¶ 23.)

  II. DISCUSSION

  A. Defendants' Motion to Transfer Venue

  Defendants move to transfer this suit to the Northern District of New York pursuant to 28 U.S.C. § 1404(a).*fn1 "[M]otions for transfer lie within the broad discretion of the district court and are determined upon notions of convenience and fairness on a case-by-case basis." In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). Courts make a two-pronged inquiry when deciding whether transfer is proper: first, the court must determine whether the action could have been brought in the proposed transfer forum; second, the court must determine whether the interest of justice and the convenience of witnesses make transfer appropriate. Berman v. Informix Corp., 30 F.Supp.2d 653, 656 (S.D.N.Y. 1998).

  1. Appropriateness of Venue in Northern District of New York

  Under 28 U.S.C. § 1391(b), this suit initially could have been brought in the Northern District of New York.*fn2 All the Defendants reside or are located in the Northern District of New York. (Compl. ¶¶ 2-3; Defs.' Mem. Law at 3.) Furthermore, Plaintiff contends that the bases of his claim "arise out of plaintiff's enrollment, attendance and termination of his attendance at ALS" as well as "ALS' and Union's improper and wrongful hiring and retention of inappropriate individuals unsuitable to work in an academic setting." (Compl. ¶ 7.) As all of the Defendants reside in the Northern District of New York, which is where the events that underlie Plaintiff's claim occurred, this action clearly could have been brought initially in the Northern District of New York. Accordingly, the first prong of the inquiry is satisfied and the Court will address the second prong regarding whether transfer is appropriate.

  2. Interest of Justice and Convenience of Witnesses

  Once a determination has been made that the case could have been brought in the transferee forum, the Court considers whether transfer is appropriate based on several factors: (1) the convenience of witnesses; (2) the convenience of the parties; (3) the location of relevant documents and the relative ease of access to sources of proof; (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 governing law; (8) the weight accorded the plaintiff's choice of forum; and (9) trial efficiency and the interest of justice. Clesi v. Zinc Corp. of America, No. 00 Civ. 6786, 2001 U.S. Dist. LEXIS 2128, at *5. (S.D.N.Y. Mar. 6, 2001) (citing Berman, 30 F.Supp. 2d at 657). The first factor, that of convenience of witnesses, "is probably the single-most important factor in the analysis of whether transfer should be granted." Berman, 30 F.Supp. 2d 653, 657 (quoting Frene N.V. v. Kmart Corp., No. 96 Civ. 9585, 1998 WL 427688, at *2, 1998 U.S. Dist. LEXIS 11572 (S.D.N.Y. July 29, 1998)) (quoting Frasca v. Yaw, 787 F.Supp. 327, 331 (E.D.N.Y. 1992)). Plaintiff contends that defendants moving for transfer must submit the names of witnesses who will be inconvenienced, a statement of what their testimony will cover, and the specific hardships they would suffer if compelled to travel to the original venue, which Defendants here did not do. (Pl.'s Mem. Law at 9) (citing Capitol Records v. Kuang Dyi Co. of RM, No. 03 Civ. 0520, 2004 WL 405961, at *3 (S.D.N.Y. March 4, 2004); Arrow Electronics, Inc. v. Ducommun, Inc., 724 F. Supp. 264, 267 (S.D.N.Y. 1989)). However, in cases where the events demonstrate that the majority of witnesses are located in the transferee district, it is unnecessary to submit a statement naming the witnesses who will specifically be inconvenienced by maintaining the present venue. See MBCP Peerlogic LLC v. Critical Path, Inc., No. 02 Civ. 3310, 2002 U.S. Dist. LEXIS 23268, at *10 (S.D.N.Y. Dec. 4, 2002). Defendants have provided an initial list of five witnesses, all of whom are employees of the law school, and who live in the Northern District. (Defs.' Reply Mem. Law at 9.) There is a distinct possibility that making the witnesses and Defendants travel for a trial to the Southern District during the school year could "overly disrupt their professional lives as well as innumerable others, such as students and administrative staff." Watkins v. Harvard Univ., No. 89 Civ. 2602, 1989 U.S. Dist. LEXIS 19122, at *8 (E.D.N.Y. Nov. 3, 1989). See also Douglas v. Syracuse University College of Law, No. 94 Civ. 9195, 1995 WL 555693 (S.D.N.Y. Sept. 18, 1995) (granting defendant Syracuse Law School's motion transfer to the Northern District of New York from the Southern District, in part because defendant was prepared to call former student's first-year professors as witnesses, which would disrupt several first-year classes). Furthermore, ALS is located in the Northern District of New York, individual Defendants are ALS employees, and the alleged events occurred in the Northern District, so it is logical to conclude that most, if not all, of any additional witnesses also will be from the Northern District. Accordingly, based on the convenience of the witnesses, this factor weighs heavily in favor of transfer. With respect to the convenience of the parties, this factor is not dispositive for either party, as one side will be inconvenienced in whichever district the case is litigated.

  The third consideration is the location of relevant documents and the relative ease of access to sources of proof. "[A]ccess to documents and other proof is not a persuasive factor in favor of transfer without proof that documents are particularly bulky or difficult to transport, or proof that it is somehow a greater imposition for defendant to bring its evidence to New York than for plaintiff to bring its evidence to [the moving party's proposed forum]." Constitution Reinsurance Corp. v. Stonewall Ins. Co., 872 F.Supp. 1247, 1251 (S.D.N.Y. 1995) (quoting Sunshine Cellular v. Vanguard Cellular Systems, Inc., 810 F.Supp. 486 (S.D.N.Y. 1992)). Because all the events occurred in the Northern District of New York, it is probable that all of the documentation and proof is there. There is no evidence that transportation of such documents to the Southern District would be extraordinarily inconvenient or impossible, but certainly doing so would inconvenient.

  As to the fourth factor, the locus of operative facts, "[o]ne party's residence in a chosen forum, without more connecting a case to that forum, is insufficient to keep a case in that forum." Watkins v. Harvard Univ., No. 89 Civ. 2602, 1989 U.S. Dist. LEXIS 19122, at *10 (E.D.N.Y. Nov. 3, 1989). It is undisputed that all the alleged events took place at ALS, which is located in the Northern District of New York, and it is undisputed that the only connection to the Southern District is that the Plaintiff resides here. Accordingly, this factor weighs heavily in favor of transfer.

  The fifth factor is the availability of process to compel the attendance of unwilling witnesses. Albany is approximately 135 miles from New York City, and outside the 100-mile subpoena range to compel any available witnesses.*fn3 There is no reason to believe there will be any witnesses that require a subpoena in this case, however, as it is most likely that the majority of the witnesses called will be ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.