The opinion of the court was delivered by: Glasser, United States Senior District Judge
Plaintiff Edward Lauer ("Lauer") brings this putative class action for unpaid overtime against his former employer, Saybolt LP, and related entities Core Laboratories LP and Core Laboratories, Inc.*fn1 This Court's jurisdiction is predicated on the diversity of the parties. Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss the complaint on the grounds that this action is preempted by federal law and, alternatively, that Lauer's claims are time-barred under New Jersey labor law. Defendants also move pursuant to 28 U.S.C. § 1404(a) to transfer venue of this action to New Jersey. For the reasons discussed below, defendants' motion to transfer venue is granted and this action is transferred to the United States District Court for the District of New Jersey.
Lauer, a resident of Staten Island, worked for Saybolt as an oil, gas and chemical ("OGC") inspector for at least two years.*fn2 In this capacity Lauer would measure the quality and quantity of oil samples from various sources. Plaintiff's Memo. of Law In Opposition ("Opp.") at 3. He was "employed out of" Defendants' Linden, New Jersey office, Compl. ¶ 24, which deployed OGC Inspectors to petroleum storage terminals and refineries in the New York and New Jersey harbor area. See Certification of John Barbarise ("Barbarise Cert."), dated Sept. 18, 2009, at ¶ 6. One of these facilities to which Lauer was deployed was the "Stapleton Anchorage" located near the Verrazano Bridge in New York Harbor. Compl. ¶ 24; Barbarise Cert. ¶ 23. Lauer alleges that he spent a "substantial" or "significant" amount of time working for Saybolt in New York state. Compl. ¶¶ 3, 24; Declaration of Edward Lauer ("Lauer Decl."), dated Nov. 9, 2009, at ¶ 5. According to Lauer's time records submitted by Saybolt in support of its motion, Lauer worked in New York on 68 of the 439 days of his employ with Saybolt, or 15.5% of working days, the "bulk" of which was performed at the Stapleton Anchorage. See Barbarise Cert. ¶ 23, Ex. B. (Part 1).
The nature of Lauer's work often required him to work in excess of forty hours per week. Lauer claims that under New York law he was thus entitled to, but did not receive, overtime compensation equal to one and one-half times his regular hourly rate, or "time and a half," for each hour worked in excess of forty hours per week. Compl. ¶¶ 33-37. Lauer also claims that under New York law he was entitled to, but did not receive, "spread of hours" pay equal to one hour's pay at minimum wage for each workday exceeding ten hours.*fn3 Id. Finally, Lauer claims that Saybolt failed to maintain time records and to post information concerning employees' rights to a minimum wage and to overtime pay, as required by New York law and the federal Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq.*fn4
In addition to himself, Lauer seeks to represent a class pursuant to Rule 23 of the Fed. R. Civ. P. He defines this putative class as "all persons who were employed by Defendants at any time since May 26, 2002, to the entry of judgment in this case (the "Class Period"), who were non-exempt employees within the meaning of the New York Labor Law and have not been paid for overtime wages as required in violation of the New York Labor Law." Compl. ¶ 15. Lauer estimates the size of the proposed class at approximately 100 members but alleges that the necessary facts to determine the precise number of class members "are presently within the sole control of the Defendants." Id. ¶ 16.
Saybolt does not have an office in New York state and most of the petroleum storage facilities serviced by the New Jersey office are located in New Jersey. Barbarise Cert. ¶¶ 3, 6. On average, OGC Inspectors from the New Jersey office spend 85% of their time working in New Jersey, with the balance of work performed in New York and Connecticut. Id. ¶ 7. Saybolt hires its inspectors in New Jersey, and its supervisors, managers and paperwork are located there. Id. ¶ 9. Inspectors receive their assignments and pay, and file their paperwork, in New Jersey. Id. They submit the samples they collect for testing in New Jersey. Id.
In its motion to dismiss, Saybolt asserts primarily that Lauer's state law claims are preempted by section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185. However, Saybolt also moves to transfer this action to New Jersey pursuant to 28 U.S.C. § 1404(a). Because the Court determines that a transfer of venue is appropriate, it will not address Saybolt's motion to dismiss.
I.Standard of Review for Motion to Transfer Venue
28 U.S.C. § 1404(a) gives a district court the discretion "to transfer any civil action to any other district or division where it might have been brought." A motion under § 1404(a) is to be decided with reference to convenience and fairness under the circumstances of each particular case. See D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006); In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992). The purpose of § 1404(a) is to "prevent waste of 'time, energy and money' and 'to protect litigants, witnesses and the public against unnecessary inconvenience and expense . . . .'"
Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26, 27 (1960)).
To determine whether or not a venue transfer motion should be granted, the Court must follow a two-step test. First, the Court must determine whether or not the action "might have been brought" in the proposed transferee district. See Jones v. United States, No. 02 Civ. 1017, 2002 WL 2003191, at *2 (E.D.N.Y. Aug. 26,2002); Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 986 (E.D.N.Y.1991). Second, the Court, using its discretion, must employ a multi-factor test to determine if, on balance, the equities favor transfer. Although not exhaustive, the factors include: (1) convenience of the parties; (2) convenience of witnesses; (3) relative means of the parties; (4) locus-operative facts and relative ease of access to sources of proof; (5) availability of process to compel the attendance of witnesses to testify at trial; (6) the weight accorded the plaintiff's choice of forum; (7) calendar congestion; (8) the desirability of having the case tried by the forum familiar with the substantive law to be applied; (9) practical difficulties; and finally (10) the interests of justice. See Zaitsev v. State Farm Fire & Cas. Co., No. 05 Civ. 2098, 2005 WL 3088326, at *1 (E.D.N.Y. Nov. 17, 2005) (Glasser, J.) (citing United States Fidelity and Guaranty Co. v. Republic Drug Co., 800 F.Supp. 1076 (E.D.N.Y.1992)). The Court analyzes the above factors in four categories: (1) Party considerations, (2) Witness and evidentiary considerations, (3) Forum considerations, and (4) Public Interest considerations. See Zaitsev, 2005 WL 3088326, at *1.
In order to succeed on its motion to transfer, Saybolt must make a "clear-cut showing" that venue should be transferred for the motion to be granted. See, e.g., Merkur v. Wyndham Intern., Inc., No. 00 Civ. 5843, 2001 WL 477268, at *2 (E.D.N.Y. Mar. 30, 2001) (citing Schieffelin & Co. V. Jack Co. Of Boca, Inc., 725 F.Supp. 1314, 1321 (S.D.N.Y.1989)); Snyder v. Madera Broadcasting, Inc., 872 F.Supp. 1191, 1199 (E.D.N.Y. 1995) (citing St. Cyr v. Greyhound Lines, Inc., 486 F.Supp. 724, 727 (E.D.N.Y. 1980)). Despite this demand, it is well-established that the district ...