United States District Court, S.D. New York
DAE SUB CHOI, for himself and all others similarly situated, Plaintiff,
SUSHI MARU EXPRESS CORP., et al., Defendants.
MEMORANDUM OPINION AND ORDER
TAYLOR SWAIN United States District Judge.
Dae Sub Choi commenced this putative collective and class
action asserting violations of Federal and State labor laws
against Defendants by filing a Complaint on January 11, 2017.
(Docket entry no. 1 (“Compl.”).) This Court has
subject matter jurisdiction of the action pursuant to 28
U.S.C. §§ 1331 and 1367. Defendants have now moved,
inter alia, to transfer this case to the United
States District Court for the District of New Jersey pursuant
to 28 U.S.C. § 1404(a). The Court has carefully
considered the submissions of both parties in connection with
the instant motion and, for the following reasons,
Defendants' motion is granted and this matter will be
transferred to the District of New Jersey.
was employed by Defendants as a sushi chef from approximately
November 2011 through November 2016. (Compl. ¶ 11.)
Plaintiff is a New Jersey resident and his apparent direct
employer, Defendant Sushi Maru Express Corp. (“Sushi
Maru”), is a New Jersey corporation with its principal
place of business in Ridgefield, New Jersey. (Compl.
¶¶ 1-2.) Plaintiff alleges that he was hired to
work at a Sushi Maru location in New Jersey, but was
ultimately required to travel to Sushi Maru locations in New
York, both in the Southern District and elsewhere. (Compl.
¶ 12.) In connection with the instant motion, Defendants
have proffered a sworn declaration of Defendant Kevin Kim,
the President of Sushi Maru, who reviewed Plaintiff's
employment records and determined that Plaintiff worked
approximately 1, 017 total shifts for Sushi Maru, of which
912 were worked in New Jersey and 9 were worked somewhere in
New York. (Docket entry no. 23, Declaration of Jeffrey
Schlossberg, Ex. 2 (Declaration of Kevin Kim), ¶¶
8-9.) Defendants, in their briefing, have identified a number
of key witnesses who are New Jersey residents. (Docket entry
no. 24, Defs.' Mem. of Law in Support, at p. 7.)
1404(a) permits the district court to transfer any civil
action to another district where it might have been brought,
where such transfer is “[f]or the convenience of the
parties and witnesses, in the interest of justice.” 28
U.S.C.S. § 1404(a) (LexisNexis 2012). Thus,
“[s]ection 1404(a) proposes a two-part test. First, the
transferee district must be one where jurisdiction over the
defendant could have been obtained at the time suit was
brought, regardless of defendant's consent. Second, the
transfer must be in the interest of justice and convenience
of the parties and witnesses.” Whitehaus Collection
v. Barclay Products, Ltd., No. 11 CV 217, 2011 WL
4036097, at *1 (S.D.N.Y. Aug. 29, 2011) (internal quotation
parties do not dispute that this case could have been brought
in the District of New Jersey. Having satisfied that
threshold inquiry, the Court must evaluate the following
factors in determining whether transfer is appropriate
(1) the convenience of the 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 to plaintiff's
choice of forum; and (9) trial efficiency and the interests
Morris v. Ernst & Young, LLP, No. 12 CV 838,
2012 WL 3964744, at *3 (S.D.N.Y. Sept. 11, 2012) (quoting
In re Collins & Aikman Corp. Sec. Litig., 438
F.Supp.2d 392, 394 (S.D.N.Y. 2006)). The party seeking
transfer “carries the burden of making out a strong
case for transfer” through “clear and convincing
evidence.” See N.Y. Marine & Gen. Ins. Co. v.
Lafarge N. Am., Inc., 599 F.3d 102, 114 (2d Cir. 2010)
(quoting Filmline (Cross-Country) Prods., Inc. v. United
Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989))
(internal quotation marks omitted).
courts “have broad discretion in making determinations
of convenience under Section 1404(a) and notions of
convenience and fairness [must be] considered on a
case-by-case basis.” D.H. Blair & Co. v.
Gottdiener, 462 F.3d 95, 106 (2d Cir.2006). “An
important interest to be considered is the discouragement of
forum shopping.” Freeman v. Hoffmann-La Roche
Inc., No. 06 CV 13497, 2007 WL 895282, at *3 (S.D.N.Y.
Mar. 21, 2007) (quoting Unique Indus., Inc. v. Lisa
Frank, Inc., No. 93 CV 8037, 1994 WL 525041, at *2
(S.D.N.Y. Sept. 23, 1994)) (internal quotation marks
omitted). Accordingly, a plaintiff's choice of forum is
given less deference when it is not his home district.
Freeman, 2007 WL 895282, at *4.
Plaintiff resides in New Jersey, and Sushi Maru, his primary
employer, is a New Jersey corporation. The uncontroverted
evidence proffered by Defendants indicates that Plaintiff
worked 89.6% of his shifts in New Jersey, and 0.88% of his
shifts in New York. Although this evidence indicates that
there is some connection to this District, the locus of
operative facts has a much stronger connection to New Jersey
than New York. Moreover, Defendant has identified a number of
likely witnesses who are New Jersey residents, and Plaintiff
has neither disputed that these witnesses would be relevant,
nor proffered the identities of key witnesses located in this
District. Further, in light of Plaintiff's residence in
New Jersey, his choice of this District is due only limited
deference. “In the absence of factual proffers
indicating that relevant evidence is likely to be located in
this District, the choice of New York venue suggests forum
shopping.” Hix v. Morgan Stanley & Co.
LLC, No. 15 CV 217, 2015 WL 1726548, at *2 (S.D.N.Y.
Apr. 15, 2015) (Swain, J.) Here, aside from Plaintiff's
possible intent to enlist other, New York-based, employees as
part of this putative collective action, there is no
indication that Plaintiff's connections to this District
are material to this litigation.
Court has considered the remaining factors relevant to a
motion to transfer, as well as the objections of Plaintiff,
and finds that, on balance, that Defendants have
demonstrated, through a clear and convincing showing, that
the interests of justice and convenience to the parties and
witnesses strongly favor transfer of this case to the United
States District Court for the District of New Jersey.
foregoing reasons, Defendants' motion to transfer is
granted. The Clerk of Court is respectfully directed to
transfer the above-captioned case, including the pending
motion for partial judgment on the pleadings and for
conditional certification of the collective, to the United