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John David Krulisky v. Bristol-Myers Squibb Company

June 27, 2011

JOHN DAVID KRULISKY, ON BEHALF OF HIMSELF AND OTHERS SIMILARLY SITUATED,
PLAINTIFF,
v.
BRISTOL-MYERS SQUIBB COMPANY,
DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION AND ORDER

Plaintiff Jeffrey Bethune filed a complaint initiating this purported collective action under the Federal Labor Standards Act ("FLSA") on November 18, 2010 against Bristol-Myers Squibb Company ("BMS"). The action is brought for the benefit of BMS territory business managers, associate territory business managers, pharmaceutical representatives and pharmaceutical sales representatives. After several individuals filed consent forms to sue under the FLSA, an amended complaint was filed on April 25, 2011 replacing Jeffrey Bethune with John David Krulisky ("Krulisky") as the named plaintiff. On May 9, BMS filed a motion to transfer this action to the District of New Jersey, or, in the alternative, to the Western District of Washington or the Southern District of Florida, pursuant to 28 U.S.C. § 1404(a). The motion was fully submitted on June 10. For the following reasons, BMS's motion to transfer this action to the District of New Jersey is granted.

DISCUSSION

Section 1404 provides: "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." 28 U.S.C. § 1404(a). District courts have "broad discretion in making determinations of convenience under Section 1404(a) and notions of convenience and fairness are considered on a case-by-case basis." D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106 (2dCir.2006). The movant bears the burden of establishing, by "clear and convincing evidence," that a transfer of venue is warranted. N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 114 (2d Cir. 2010).

If the transferee court would also have jurisdiction over the case, the court must determine whether, considering the "convenience of parties and witnesses" and the "interest of justice," a transfer is appropriate. In making that determination, a court considers:

(1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, and (7) the relative means of the parties.

Id. at 112 (citation omitted). A court may also consider "the forum's familiarity with the governing law" and "trial efficiency and the interest of justice, based on the totality of the circumstances." Berman v. Informix Corp., 30 F. Supp. 2d 653, 657 (S.D.N.Y. 1998).

I. Venue is Appropriate in New Jersey

The plaintiff does not dispute that this action could have been brought in New Jersey. As discussed below, a substantial part of the events giving rise to the plaintiff's claim took place in New Jersey, and BMS is subject to personal jurisdiction in that District.

II. Relevant Factors in Considering Transfer to Another Appropriate Forum

A. Convenience of the Parties

Krulisky is a resident of Florida, and none of the other plaintiffs that have opted in are resident or worked in this District. Instead, four are residents in the State of Washington, two others are residents of Florida, one is a resident of Maryland and one is a resident of Michigan. Although BMS maintains its corporate headquarters in New York, the home office and headquarters for its U.S. Pharmaceutical Group ("USP"), the group for which plaintiffs work or worked, is located in Plainsboro, New Jersey. The Plainsboro office includes the senior executives of USP, and indeed all those involved in sales or supporting sales for USP other than the field sales managers located across the country. Neither party has argued that the BMS employees relevant to the claims in this action work in the New York office. Therefore, the Southern District of New York is not a particularly convenient forum for any of the parties, and the District of New Jersey is more convenient for the defendant.

Although the plaintiff argues that BMS has not shown that New York is significantly more inconvenient than New Jersey, because the test for a transfer of venue is a multi-factor test, this is not a standard that a party seeking a transfer must meet. As BMS points out, if one seeking a transfer must always prove that one district is significantly more inconvenient than the requested forum, it would be rare for a case to be transferred between adjoining districts.

Plaintiff also points out that BMS has initiated suits in the Southern District of New York concerning its pharmaceutical products. This is irrelevant, as the locus of facts, witnesses, and documents for actions regarding BMS's intellectual property in its products or other corporate functions may be centered in New York, and is separate from ...


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