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X Douglas v. Nra Group LLC

February 14, 2011

X DOUGLAS HARPHAM, PLAINTIFF,
v.
NRA GROUP LLC, D/B/A NATIONAL RECOVERY AGENCY, DEFENDANT.



The opinion of the court was delivered by: Joanna Seybert, U.S.D.J.

MEMORANDUM AND ORDER

SEYBERT, District Judge:

Pending before the Court is Defendant's motion to transfer venue. For the following reasons, that motion is DENIED.

DISCUSSION I. Defendant's § 1391 Arguments

Defendant first argues that the Court must transfer venue to the Middle District of Pennsylvania because this District is an improper venue under § 1391. The Court disagrees. Under 28 U.S.C. § 1391(a)(2), venue is proper in any "judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." Here, among other things, Plaintiff: (i) was offered employment while in this District;

(ii) worked for Defendant primarily in this District; (iii) permitted Defendant to identify his home in this District as Defendant's regional office; (iv) worked primarily with New York clients; and

(v) was paid through direct deposit to a New York bank. Compl. ¶ 4; Harpham Aff. ¶¶ 1, 4, 5, 8, 9, 16.

Defendant contends that, notwithstanding these facts, Plaintiff's case centers on Defendant's decision not to pay Plaintiff commissions, and argues that this decision occurred only in the Middle District of Pennsylvania. But, even if that's so, Defendant does not dispute that it withheld commissions that it otherwise would have sent to a New York bank account. Consequently, "a portion of the alleged breaching conduct . . . occurred in New York." See Sea Tow Services Intern., Inc. v. Pontin, 472 F. Supp. 2d 349, 364 (E.D.N.Y. 2007); see also Concesionaria DHM, S.A. v. International Finance Corp., 307 F. Supp. 2d 553, 559 (S.D.N.Y. 2004).

II. Defendant's § 1404(a) Arguments

Next, Defendant argues that, even if the Court finds that

venue is proper here under § 1391, it should still transfer venue under 28 U.S.C. § 1404(a). The Court disagrees, for the reasons below.

A. Standard of Review

28 U.S.C. § 1404(a) states that "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Section 1404(a) strives "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, 84 S. Ct. 805, 11 L. Ed. 2d 945 (1964) (internal quotations and citations omitted).

In considering whether to transfer venue under 28 U.S.C. § 1404(a), the Court engages in a two-step inquiry. See Frasca v. Yaw, 787 F. Supp. 327, 330 (E.D.N.Y. 1992). First, the court asks whether the action "might have been brought" in the requested transferee court. Frasca, 787 F. Supp. at 330. "If the proposed venue is proper, the court then considers whether the transfer will serve the convenience of witnesses and parties and is in the interests of justice." Kroll v. Lieberman, 244 F. Supp. 2d 100, 102 (E.D.N.Y. 2003). When analyzing the second step, the Court examines several factors, including: (1) convenience of the parties; (2) convenience of witnesses; (3) relative means of the parties; (4) locus of operative facts and relative ease of access to sources of proof; (5) attendance of witnesses; (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 (10) trial efficiency and how best to serve the interests of justice, based on the totality of material circumstances. See Neil Bros. Ltd. v. World Wide Lines, Inc., 425 F. Supp. 2d 325, 327-28 (E.D.N.Y. 2006). None of these factors are ...


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