Opinion
00 CIV. 6786 (DLC).
March 2, 2001.
Ruth M. Pollack Pollack Kotler, Mineola, NY, for plaintiffs.
John Sullivan Christine Button Kirpatrick Lockhart LLP, New York, NY, for defendants.
OPINION AND ORDER
In their amended complaint, filed December 6, 2000, plaintiffs Gladys Ann Clesi and John Clesi assert that defendants discriminated against them on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2003 et seq. ("Title VII"), and violated their rights under the Equal Protection Clause in the Fourteenth Amendment to the United States Constitution, the Violence Against Women Act, 42 U.S.C. § 13981 ("VAWA"), and state law. Defendants have moved to transfer venue to the Northern District of New York ("Northern District") pursuant to 28 U.S.C. § 1404. Defendants have also moved to dismiss plaintiffs' complaint. For the reasons set forth below, defendants' motion to transfer is granted.
BACKGROUND
The following facts are either undisputed or are alleged by plaintiffs and accepted as true for the purpose of this motion. Plaintiffs Gladys Ann Clesi and John Clesi are New York State residents who live in Edwards, New York, in the Northern District. Defendants Wendall Wainwright ("Wainwright"), Bill Tuohy ("Tuohy"), and Larry Straw ("Straw") are also residents of the Northern District of New York. During the period relevant to this action, the Clesis, Wainwright, Tuohy, and Straw were employed by the Zinc Corporation of America ("Zinc"), a subsidiary of Horsehead Industries, Inc. ("Horsehead"). Horsehead is a New York Corporation with its primary place of business in New York City, and Zinc's primary place of business is in Pennsylvania. During the period relevant to this action, all of the parties to this case worked for Zinc in Balmat, New York, in the Northern District. Gladys Ann Clesi was a maintenance/cleaning person, John Clesi was a miner for Zinc, Wainwright was the General Foreman of the Yard Crew Carpenter Shop, Tuohy was the Human Resources Manager, and Straw was the General Manager.
Gladys Ann Clesi asserts that Wainwright leered at her while she worked, and, in April 1996, grabbed her from behind while she was working and sexually assaulted her. In May 1996, Gladys Ann Clesi met with Straw and Tuohy to inform them of Wainwright's actions and also of harassment John Clesi was experiencing in the mines. Since that time, plaintiffs assert that defendants have allowed a hostile work environment to develop and continue in which, among other things, plaintiffs have been the subject of caricatures — posted in conference rooms at Zinc — in which they are identified by name and "depicted in degrading sexual situations." Gladys Ann Clesi also asserts that, in retaliation for her opposition to Wainwright's conduct, she was not given occupational health and safety training required for working in the mines. In or about February 2000, Zinc required Gladys Ann Clesi to sign a statement that she had received this training. When she refused, she was fired. John Clesi continues to work in the mines and has been retaliated against because of his opposition to the harassment against his wife and because he filed this lawsuit.
Plaintiffs received a right to sue letter from the Equal Employment Opportunity Commission ("EEOC") on or about June 11, 2000. Plaintiffs filed this complaint in the Southern District of New York ("Southern District") on September 8, 2000, and an amended complaint on December 6, 2000.
DISCUSSION
Section 1404(a) of Title 28, United States Code, allows for a transfer of venue "[f]or the convenience of parties and witnesses, [and] in the interest of justice." Such motions are in the Court's discretion to grant or deny and are "`determined upon notions of convenience and fairness on a case-by-case basis.'" Hall v. South Orange, 89 F. Supp.2d 488, 493 (S.D.N.Y. 2000) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992)). Courts should, ordinarily, defer to plaintiffs' choice of venue, but may give the plaintiffs' choice of forum substantially less deference when the "`operative facts upon which the litigation is brought bear little material connection to the chosen forum.'" Berman v. Informix Corp., 30 F. Supp.2d 653, 659 (S.D.N.Y. 1998) (citation omitted).
To determine whether a transfer is warranted, the Court must first determine whether the case could have properly been brought in the transferee court. Id. at 656. If the transferee court appears to have jurisdiction over the case, the Court must next consider whether the transfer is appropriate based upon several factors:
(1) the convenience of 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 the governing law, (8) the weight accorded the plaintiff's choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances.
Id. at 657.
It is undisputed that this case could have been brought in the Northern District. The plaintiffs and the individual defendants reside there, all of events giving rise to plaintiffs' claims occurred there, and the Zinc site in which the parties worked is located there. See 28 U.S.C. § 1391(b). Seventeen of the twenty witnesses plaintiffs have identified as material are residents of the Northern District. Although witnesses located in the Northern District could be subpoenaed to testify in the Southern District, the inconvenience to those witnesses and the cost to the party subpoenaing them would be greater. The most material documents in this case — personnel records, records of events, and documents concerning Gladys Ann Clesi's janitorial services contracts — are located in the Northern District. Because the parties, primary witnesses, and material documents in this case are in the Northern District, transfer would make the litigation of this case more convenient and less expensive.
It is also noteworthy that this Court would retain authority to quash or modify subpoenas issued to non-party witnesses located more than 100 miles away. Rule 45(c)(3)(A)(ii), Fed.R.Civ.P.
Plaintiffs argue that they intend to rely on "substantial documents and witnesses" from Horsehead, located in the Southern District, and intend to call expert witnesses located in or near the Southern District. In the first instance, the location of expert witnesses is irrelevant to a transfer decision. See Brown v. Dow Corning Corp., No. 93 CIV. 5510 (AGS), 1996 WL 257614, at *2 (S.D.N.Y. May 15, 1996). Plaintiffs acknowledge, moreover, that the acts at issue in this case occurred in the Northern District, and the vast majority of their anticipated witnesses reside in the Northern District. The Southern District has no connection to this case beyond the fact that the principal offices of Horsehead is located there. The locus of operative facts is, therefore, in the Northern District.
The interest in judicial efficiency and the interests of justice, based on the totality of the circumstances, further support defendants' request to transfer venue. A federal court in the Northern District will be as familiar with the applicable law as this Court. Plaintiffs assert that the judicial and social climate in the Northern District will be less sympathetic towards their claims. Without proof of improper bias, however, this assertion does not compel a different result. See Berry v. New York State Dep't of Corr. Servs., 808 F. Supp. 1106, 1109-10 (S.D.N.Y. 1992); Salomon Bros. Inc. v. West Virginia State Bd. of Investments, No. 89 CIV. 7088 (JFK), 1990 WL 20181 (S.D.N.Y. Mar. 1, 1990). Plaintiffs also assert that the Southern District is a more convenient venue because plaintiffs' counsel is located nearby, in the Eastern District of New York. Convenience for plaintiffs' counsel is, however, irrelevant to an evaluation of the balance of factors. See Frene N.V. v. Kmart Corp., No. 96 CIV. 9585 (LAP), 1998 WL 427668, at *4 (S.D.N.Y. July 29, 1998). Moreover, although plaintiffs assert that trial in the Northern District would be less convenient for plaintiffs' counsel, plaintiffs' counsel has offered to travel to the Northern District as needed to depose defendants there. In light of plaintiffs' counsel's willingness to travel between the Southern District and Northern District to litigate this case, plaintiffs have made no showing of financial hardship that would prevent them from fully litigating this case there. The material facts that support plaintiffs' allegations occurred in the Northern District, and the parties, primary documents, and witnesses that can prove or disprove these claims are there, as well. The totality of circumstances, therefore, support defendants' motion for transfer. See, e.g., Douglas v. Syracuse University College of Law, No. 94 Civ. 9195 (LAP), 1995 WL 555693 (S.D.N.Y. Sept. 18, 1995); Watkins v. Harvard University, 89 Civ. 2602 (JMM), 1989 WL 135181 (E.D.N.Y. Nov. 3, 1989). Having found that this action should be transferred to the Northern District, this Court will not resolve defendants' motions to dismiss the litigation. Delarosa v. Holiday Inn, No. 99 Civ. 2873 (RWS), 2000 WL 648615 at *5 (S.D.N.Y. May 19, 2000); Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 992 (S.D.N Y 1991). But see Security insurance Company of Hartford v. ITA Textiles Corp., No. 99 Civ. 10942 (MBM), 2000 WL 157879 at *2 (S.D.N.Y. Oct. 23, 2000).
CONCLUSION
The defendants' motion to transfer venue is granted. The Clerk of Court shall send a certified copy of this Opinion and any original documents filed in this action to the Clerk of Court for the Northern District of New York.
SO ORDERED: