ASKERNEESE v. NISOURCE, INC. et al
MEMORANDUM AND ORDER THAT DEFENDANTS MOTION TO DISMISS OR TRANSFER VENUE IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY HONORABLE TIMOTHY J. SAVAGE ON 4/4/13. 4/4/13 ENTERED AND E-MAILED.(jl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
NISOURCE, INC. and
COLUMBIA GAS OF PENNSYLVANIA, INC. :
April 4, 2013
In this employment discrimination case brought under Title VII of the Civil Rights
Act of 1964 (“Title VII”) and the Pennsylvania Human Relations Act (“PHRA”),1 the
defendants NiSource, Inc. (“NiSource”) and Columbia Gas of Pennsylvania (“Columbia
Gas”), both Ohio corporations with no connection to this district, have moved to dismiss
or transfer the action to the Western District of Pennsylvania, where Columbia Gas has
its principal place of business.2 The defendants argue that the balancing of private and
public factors favors transfer to the Western District of Pennsylvania for the
convenience of the parties and the witnesses. They cite, undisputedly, that the Western
District is where the plaintiff resides, defendants conduct business, and all conduct and
evidence giving rise to the claims alleged in this action occurred.
Opposing the motion, plaintiff, Timothy Askerneese, who resides in the Western
District of Pennsylvania, argues that venue under Title VII lies in any district in
Pennsylvania, including the Eastern District of Pennsylvania. He contends that because
Citing 28 U.S.C. § 1332(a), plaintiff asserts federal jurisdiction based on diversity of citizenship.
Although there is no diversity jurisdiction, there is federal question jurisdiction pursuant to 28 U.S.C. §
1331 based upon plaintiff’s Title VII claim.
It is unclear from the complaint where NiSource’s principal place of business is located.
the wrongful conduct occurred within the Commonwealth of Pennsylvania, he may file
suit in any district in the state. Additionally, he argues that the defendants have failed to
meet their burden to justify transfer from the plaintiff’s preferred forum.
After weighing all relevant factors and giving due consideration to the plaintiff’s
preference, we conclude that the private and public interests favor transferring this
action to the Western District of Pennsylvania. Therefore, the motion to transfer will be
The defendants bear the burden of demonstrating that (1) the case could have
been brought initially in the proposed transferee forum; (2) the proposed forum will be
more convenient for the parties and witnesses; and, (3) transfer will be in the interest of
justice. 28 U.S.C. § 1404(a); Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.
1995); Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970).
Venue in Title VII actions lies in: (1) any district in the State where the unlawful
employment practice was allegedly committed; (2) the district where the relevant
employment records are maintained and administered; or, (3) the district where the
aggrieved person would have worked but for the alleged unlawful employment practice.
42 U.S.C. § 2000e–5(f)(3). If the defendant cannot be found in any of these districts,
the action may be brought in the judicial district where the defendant has its principal
place of business. Id.
No one questions that the action could have been brought in the Western District
It is the district where the alleged discriminatory and retaliatory
conduct took place, where the relevant employment records are, and where the plaintiff
was working and would have continued to work but for the alleged unlawful employment
Accordingly, we must weigh the private and public interest factors to
determine whether the balance of convenience tips in favor of transfer. Jumara, 55
F.3d at 879-80.
Factors considered when determining whether transfer is more convenient for the
parties and in the interest of justice are: (1) the plaintiff’s choice of forum; (2) the
defendant’s preferred forum; (3) the place where the claim arose; (4) the relative ease
of access to the sources of proof; (5) the convenience of the parties as demonstrated by
relative financial status and physical location; (6) the availability of compulsory process
for the attendance of witnesses; (7) the convenience of the witnesses; (8) the practical
problems that make trial of a case expensive and inefficient; and, (9) public interest
factors, such as congestion of court dockets and the local interest in deciding the
controversy. Jumara, 55 F.3d at 879-80. Depending on the nature and facts of the
case, these factors overlap and are intertwined.
Because the analysis involved is “flexible and individualized,” the district court
has broad discretion in deciding a motion for transfer of venue. Stewart Org., Inc. v.
Ricoh Corp., 487 U.S. 22, 29 (1988). Despite this wide latitude, a transfer motion is not
to be granted without a careful weighing of factors favoring and disfavoring transfer.
See Shutte, 431 F.2d at 24-25.
Here, the only factor favoring this forum is that the plaintiff has chosen it. All
other factors are neutral or weigh in favor of transfer to the Western District of
Plaintiff’s Choice of Forum
The plaintiff’s choice of forum typically receives “paramount consideration.”
Shutte, 431 F.2d at 25; see also Jumara, 55 F.3d at 879 (observing that plaintiff’s
choice of venue “should not be lightly disturbed” (citation and quotation omitted)).
However, the plaintiff’s choice is given less deference because none of the operative
facts underlying the claim occurred there. See TaiDoc Technology Corp. v. Diagnostics
Devices, Inc., No. 12-2457, 2012 WL 3627423, at *2 (E.D. Pa. Aug 23, 2012); Lindley
v. Caterpillar, Inc., 93 F.Supp.2d 615, 617 (E.D. Pa. 2000). It is certainly entitled to
even less deference where the plaintiff does not reside there and none of the alleged
unlawful acts occurred there.
The plaintiff does not offer any reason why he filed his action in this district rather
than in the Western District of Pennsylvania.
Apparently, this forum was chosen
because his attorneys have their office here.
There is no other connection to this
district. Under these circumstances, where there are no operative facts that occurred in
this district and the plaintiff does not reside here, his choice of forum will not be given
Defendants’ Preferred Forum
The defendants prefer to litigate this case in the Western District of
Pennsylvania. They provide services to twenty-six (26) counties in Central and Western
Pennsylvania. They have no contacts with the Eastern District of Pennsylvania. They
have no office or employees here.
They do not regularly conduct business here.
Columbia Gas has its principal place of business in Canonsburg, Pennsylvania, which is
located in the Western District of Pennsylvania. Although there is no indication where
its principal place of business is, NiSource is an Ohio corporation. In light of these
concerns, together with the absence of any real connection to this district, this factor
Where the Claim Arose
Where the claim arose implicates other factors in the analysis.
questions of access to proof, choice of law, convenience of the parties and the
witnesses, availability of witnesses, and efficiency concerns. Hence, determining the
place where the claim occurred will inform the evaluation of these other factors.
All conduct, evidence and witnesses giving rise to the claims alleged in this
action are located in the Western District of Pennsylvania.
Accordingly, this factor
weighs in favor of transfer.
Relative Ease of Access to Sources of Proof
All records and witnesses relevant to the plaintiff’s termination from employment
are in the Western District of Pennsylvania. Plaintiff has not identified any witness or
other source of evidence located in the Eastern District.
On the other hand, the
defendants claim that all witnesses and documents are located where Columbia Gas’s
principal place of business is - the Western District of Pennsylvania. Thus, the source
of proof factor clearly favors transfer.
Relative Financial Status
The Western District of Pennsylvania is more convenient for all parties in terms
of the relative financial and physical burdens. The Western District is closer than the
Eastern District to all the parties. Plaintiff resides in Aliquippa, which is in the Western
District of Pennsylvania.
Columbia Gas has its principal place of business in
Canonsburg, Pennsylvania, in the Western District. NiSource is an Ohio corporation.
Both the plaintiff and the defendants’ witnesses will have to travel to litigate the case
here. Considering it will cost all parties more to litigate in this district rather than the
Western District of Pennsylvania, this factor weighs in favor of transfer.
Availability of Compulsory Process
It does not appear that the parties anticipate difficulties in compelling the
attendance of witnesses. If so, availability of compulsory process is a neutral factor in
balancing the conveniences of the parties. However, it is conceivable the plaintiff may
need to subpoena witnesses who are current or former employees of the defendants.
In that event, he would have difficulty requiring their attendance. See Fed. R. Civ. P.
45(c)(3)(A)(ii) (2008) (witnesses may quash a subpoena if they are commanded to
travel more than 100 miles from where they reside or are employed). The witnesses
reside or work in or near the Western District which is more than 100 miles from
The convenience of the witnesses is considered only to the extent the witnesses
may actually be unavailable for trial in a particular venue. Jumara, 55 F.3d at 879;
Brenner v. Consol. Rail Corp., No. 09-1574, 2009 WL 2710241, at *3 (E.D. Pa. Aug.
26, 2009). The parties have not demonstrated that witnesses will be unavailable in this
district. Thus, this factor neither favors nor disfavors transfer.
Practical Problems Affecting Expense and Efficiency
The defendants contend that travel costs for the parties and witnesses would
make prosecution of this case in the Eastern District of Pennsylvania expensive and
Plaintiff contends that the distance is not significant.
He claims that
discovery could be efficiently conducted through electronic mail, CDs, and the United
States Postal Service.
Plaintiff ignores the logistical and financial problems associated with deposing
Undoubtedly, the parties will have to depose witnesses, including the
plaintiff himself, regarding the facts surrounding the plaintiff’s employment, termination
and damages. The plaintiff cannot expect these witnesses to travel here when they
could be deposed and appear at trial closer to their homes. Although discovery could
properly take place, efficiency considerations regarding travel costs favor transferring
Public Interest Factors
The defendants contend that the Western District of Pennsylvania has a public
interest in adjudicating this case because the dispute involves residents of Western
Pennsylvania and a large employer in that region. They point to less congestion in that
district than in this district. They also assert that none of the conduct at issue occurred
in the Eastern District of Pennsylvania. Plaintiff argues that there is no local interest in
this employment discrimination case and congestion is not an issue, as the median time
from filing to disposition was comparatively lower in the Eastern District of
As of September 30, 2012, there were 14,257 cases pending in the Eastern
District of Pennsylvania and only 2,064 cases pending in the Western District of
Pennsylvania.3 Given this disparity, transfer to the district having fewer outstanding
cases is favored.
The Western District has an interest in having a dispute involving its residents,
individuals and businesses resolved there, especially when the events occurred there.
The Eastern District has no interest in the parties or issues. Thus, the public interest
factors favor transfer.
After balancing all relevant competing interests, including the plaintiff’s choice of
forum and the private and public interests, we conclude the balance weighs in favor of
transferring this case to the Western District of Pennsylvania. Therefore, in the interest
of justice, the motion to transfer venue will be granted and this case will be transferred
to the Western District of Pennsylvania.
accessed Apr. 4, 2013).