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Tole v. Glenn Miller Productions, Inc.

United States District Court, Second Circuit

August 6, 2013

GARY S. TOLE, Plaintiff,

Lee F. Bantle, Amos B. Blackman, Esq., Bantle & levy LLP, New York, N.Y., Attorneys for Plaintiff.

Marion B. Cooper, Esq., Drinker Biddle & Reath LLP, New York, N.Y., William R. Horwitz, Esq., Drinker Biddle & Reath LLP, Florham Park, N.J. Attorneys for Defendant.



Plaintiff Gary S. Tole ("plaintiff") brings this diversity action for breach of contract and discrimination on the basis of race against his former employer, defendant Glenn Miller Productions, Inc. ("GMP"). GMP now moves for an order transferring venue from the Southern District of New York to the Middle District of Florida, Orlando Division, pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, we grant the motion to transfer.


I. Factual Background

Plaintiff is a white male trombonist and band leader who resides in Rancho Cucamonga, California. (Compl. ¶¶ 3, 5.) GMP was formed in 1956 by David Mackay, Sr. to manage the Glenn Miller Orchestra (the "Orchestra"), a leading big band which had been led previously by its eponymous founder. (Id. ¶¶ 4, 6-7.) Although it was originally incorporated in New York, GMP's headquarters and principal place of business are currently located in Naples, Florida. (Mackay Decl. ¶ 9.) The company has not maintained offices or employees in New York since 1992. (Id. ¶¶ 6-10.)

In 2010, GMP was looking to hire a new band leader for the Orchestra. After plaintiff applied for the position, GMP flew him from his home in California to Manhattan to interview with David Mackay, Jr. ("Mackay"), GMP's Chief Executive Officer, Charles DeStefano ("DeStefano"), GMP's President, and Mackay's wife, Constance, GMP's Corporate Secretary. (Compl. ¶¶ 11-12; Mackay Decl. ¶¶ 12-15; Tole Decl. ¶ 3.)

In New York, the group met for dinner on July 18 and again for lunch on July 19. (Compl. ¶¶ 12-14; Mackay Decl. ¶ 16.) The parties agree that plaintiff's potential employment was discussed, but not formally negotiated, at the July 18 meeting. (Compl. ¶ 13; Mackay Decl. ¶ 16.) Plaintiff further alleges that GMP negotiated the key terms of his employment, including its duration and his compensation, during the July 19 meeting. (Tole Decl. ¶ 6.) He also maintains that GMP offered him the position of leader and music director at that time, which he immediately accepted. (Compl. ¶¶ 15-16; Tole Decl. ¶ 7.) However, GMP claims that no such negotiation or offer of employment took place during the July 19 meeting; to the contrary, it submits that Mackay sent plaintiff an employment agreement upon his return to Florida, and subsequently negotiated the terms of employment with plaintiff's attorney, Gordon P. Firemark, via telephone. (Mackay Decl. ¶¶ 17-18.)

On August 12, 2010, more than three weeks after the meeting in New York, plaintiff signed an employment agreement with GMP. (Mackay Decl. ¶ 19; Tole Decl. ¶ 8; Compl. Ex. A, at 7.) The agreement provided for a three-year term of employment, to commence in January 2011, during which plaintiff could only be terminated for good cause after the first ninety days. (Compl. Ex. A, at 4-5.) It also contained a choice of law provision, which states that the agreement "shall be governed by the laws of the State of New York." (Id. at 7.)

On January 12, 2011, plaintiff commenced employment with GMP. (Compl. ¶ 20.) Over the course of the next eleven months, plaintiff alleges that GMP repeatedly expressed its disapproval of his hiring and promotion of minority employees. (Id. ¶¶ 26-37.) For example, in response to plaintiff's recruitment of two African-American musicians, plaintiff alleges that DeStefano told him, "[t]his is the Glenn Miller Orchestra, not the Count Basie Orchestra." (Id. ¶¶ 26-28.) Plaintiff also points to an October 2011 business meeting in Florida attended by Mackay, DeStefano, Mrs. Mackay, and another GMP officer, Greg Parnell, at which Mrs. Mackay allegedly referred to the Orchestra as "white bread and milk" and stated that employing Damien Sanchez, a Cuban-American employee whom plaintiff had previously promoted to assistant road manager, "would not be good for [GMP's] name." (Id. ¶ 35.)

On December 12, 2011, following an incident that occurred while the Orchestra was on tour in Japan, Mackay sent plaintiff a telefax from GMP's offices in Naples informing him that he had been terminated. (Mackay Decl. ¶¶ 22-23; Tole Decl. ¶¶ 13-15.) While plaintiff alleges that his termination was without cause, (see Compl. ¶ 87), Mackay maintains that GMP had good cause to terminate plaintiff based upon his actions in response to the incident in Japan, as well as other inappropriate conduct throughout his employment, (see Mackay Decl. ¶ 21).

II. Procedural Background

Plaintiff filed this lawsuit on August 31, 2012, alleging that GMP breached the terms of the employment agreement when it terminated him without cause. (Compl. ¶¶ 47-70, 84-89.) The complaint further alleges that GMP violated the Civil Rights Act of 1871, codified at 42 U.S.C. § 1981, by discriminating on the basis of race when it terminated him on account of his professional association with racial minorities. (Id. ¶¶ 90-92.)

On December 3, 2012, GMP filed the instant motion to transfer venue, which plaintiff opposed on December 14. GMP filed its reply on December 21, 2012. ...

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