Fairchild et al v. Eisai, Inc.
Ruling and ORDER denying 21 Motion to Transfer to Another District. Signed by Judge Mark R. Kravitz on 8/4/2011. (Falcone, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JONATHAN FAIRCHILD and
No. 3:11cv452 (MRK)
RULING AND ORDER
Plaintiffs Jonathan Fairchild and Terrence McNamara have sued Defendant Eisai, Inc.
("Eisai") for violations of the Fair Labor Standards Act ("FLSA"), 29 U.S.C. §§ 201 et seq.
Plaintiffs have filed this case pursuant to the FLSA's provision for opt-in class actions. See 29
U.S.C. § 216(b). Plaintiffs allege that they and other pharmaceutical sales representatives
employed by Eisai were unlawfully classified by Eisai as exempt from laws requiring overtime
pay when in fact they were non-exempt and entitled to overtime pay.
Currently pending before the Court is Eisai's Motion to Transfer Venue [doc. # 21]
pursuant to 28 U.S.C. § 1404(a). Eisai claims that the District of New Jersey has stronger ties to
the case than the District of Connecticut; that the vast majority of witnesses and documents
relevant to the case are based in New Jersey; that New Jersey is more convenient for the putative
nationwide class; and that because this is a putative class action, the plaintiff's choice of forum is
entitled to less deference than would normally be the case. Plaintiffs oppose the motion, arguing
that their choice of forum is entitled to substantial deference; that "[t]here is a clear Connecticut
nexus in this matter," Pl.'s Resp. to Mot. to Transfer [doc. # 29] at 2; that Eisai has not clearly
demonstrated that any inconvenience would result if the case proceeds in Connecticut; that Eisai
does not contend that any of its witnesses would refuse or be unable to testify at a trial in
Connecticut; and that a transfer would delay the provision of notice for potential opt-in plaintiffs
and waste time, energy, and money.
Under § 1404(a), a district court must undertake a two-part inquiry in determining
whether transfer of venue is appropriate. First, the court must determine whether the action
sought to be transferred is one that could originally have been brought in the transferee district.
See 28 U.S.C. § 1404(a) ("[A] district court may transfer any civil action to any other district or
division where it might have been brought."). Second, the court must evaluate whether transfer is
warranted, considering several specific factors related to "the convenience of the parties and
witnesses [and] in the interest of justice." Id. Section 1404(a) gives district courts "considerable
discretion . . . to adjudicate motions for transfer according to an 'individualized, case-by-case
consideration of convenience and fairness.'" Red Bull Assocs. v. Best Western Int'l, Inc., 862 F.2d
963, 967 (2d Cir. 1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). In
considering whether to transfer venue, relevant factors include:
(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.
Jones v. Walgreen Co., 463 F. Supp. 2d 267, 271 (D. Conn. 2006) (quoting D.H. Blair & Co.,
Inc. v. Gottdiener, 462 F.3d 95, 106-107 (2d Cir. 2006)); see Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 508 (1947). This Court and other district courts have identified two additional factors to
consider when determining a motion to transfer: "(1) the forum's familiarity with the governing
law; and (2) trial efficiency and the interest of justice, based on the totality of the circumstances."
Jones, 463 F. Supp. 2d at 271 (quotation marks and citations omitted); see Gulf Oil, 330 U.S. at
508-09. Because Eisai seeks to transfer venue, it bears the burden of justifying the transfer. See
D.H. Blair & Co., 462 F.3d at 106; Hanninen v. Fedoravitch, 583 F. Supp. 2d 322, 331 (D.
Conn. 2008). "Absent a clear and convincing showing that the balance of convenience strongly
favors the alternate forum . . . discretionary transfers are not favored." Xiu Feng Li v. Hock, 371
F. App'x 171, 175 (2d Cir. 2010) (summary order) (alteration in original) (quotation marks
omitted) (quoting Ayers v. Arabian American Oil Co., 571 F. Supp. 707, 709 (S.D.N.Y. 1983));
see New York Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102 (2d Cir. 2010)
("[T]he party requesting transfer carries the 'burden of making out a strong case for transfer.' It is
therefore appropriate that the district courts in [the Second] Circuit have consistently applied the
clear and convincing evidence standard in determining whether to exercise discretion to grant a
transfer motion." (citation omitted)).
Neither party disputes that this action could have been brought in the District of New
Jersey, and thus the first requirement for transfer under § 1404(a) is satisfied. Therefore, the
Court turns to the factors that must be considered in the second part of the inquiry.
The Court first considers Plaintiffs' choice of a Connecticut forum. Ordinarily, a
plaintiff's choice of forum is "given great weight" in the analysis required by § 1404(a). D.H.
Blair & Co., 462 F.3d at 107. In this case, the named Plaintiffs are both Connecticut residents
who worked for Eisai in Connecticut, and ordinarily, the Court would give their choice of forum
significant, though not controlling, weight. However, Plaintiffs seek to bring this case not only as
an individual action, but also on behalf of all other similarly situated current and former
employees of Eisai – a large potential class. When a plaintiff elects to bring his or her lawsuit as
a class action, the plaintiff's choice of forum is entitled to less weight. See In re Warrick, 70 F.3d
736, 741 & n.7 (2d Cir. 1995) ("It is true . . . that the plaintiff's choice of forum is a less
significant consideration in a (here, putative) class action than in an individual action."); In re
Collins & Aikman Corp. Sec. Litig., 438 F. Supp. 2d 392, 398 (S.D.N.Y. 2006) ("[I]n class
actions less weight is given to the plaintiff's choice." (quotation marks omitted)). As this Court
has previously explained, an individual plaintiff's choice of forum carries less weight in a class
action because such a case involves "numerous potential plaintiffs, each possibly able to make a
showing that a particular forum is best suited for the adjudication of the class's claim." Jones,
463 F. Supp. 2d at 274 (quotation marks omitted) (quoting In re Collins & Aikman Corp. Sec.
Litig., 438 F. Supp. 2d at 398). In Jones, the Court concluded that the plaintiff's choice of
Connecticut as a forum was "entitled to much less weight than it otherwise might receive"
because "[b]arely one percent of [the class was] located in Connecticut and ten times as many
[members of the class were] located in Illinois as in Connecticut." Id. The Court contrasted Ms.
Jones's case with In re Warrick, in which a "disproportionate share of the putative class members
reside[d] in [the] chosen forum." In re Warrick, 70 F.3d at 741 n.7; see Jones, 463 F. Supp. 2d at
274. This case falls somewhere in between Jones and In re Warrick. As Eisai notes, nearly three
times as many putative class members (sixty, or 4.92% of the putative class members) reside in
New Jersey as do in Connecticut (twenty-one, or 1.72%). However, as Plaintiffs note, that ratio
is not as dramatic as the one in Jones, and unlike Ms. Jones, both Mr. Fairchild and Mr.
McNamara reside in Connecticut. See Jones, 463 F. Supp. 2d at 278 (noting that Ms. Jones
resided in Massachusetts). Plaintiffs also note that of the six current Plaintiffs and opt-ins, none
lived or worked in New Jersey. In any case, even if Plaintiffs' choice of Connecticut as the forum
for their FLSA collective action is entitled to somewhat less weight than it would otherwise
receive, this factor tips at least slightly in Plaintiffs' favor. See id. at 274.
With regard to the remaining factors, Eisai has not demonstrated that those factors weigh
in favor of this case being tried in New Jersey rather than Connecticut. In its briefs, Eisai
emphasizes that several potential witnesses – all Eisai employees – are New Jersey residents. If
Plaintiffs wish to depose those witnesses, they will have to travel to New Jersey to do so. With
regard to trial, Eisai has identified several of its own central employees who would have to travel
from New Jersey to testify. However, Plaintiffs note that the individuals other than the plaintiffs
who are most likely to have information relevant to the plaintiffs' primary job duties are the
district managers who live and work in the areas where the plaintiffs lived and worked, including
areas closer to Connecticut than to New Jersey. While New Jersey may be a more convenient
forum for many of Eisai's employee-witnesses, the Court cannot agree that this factor "weighs
decidedly in favor of New Jersey." Mem. in Supp. of Mot. to Transfer [doc. # 21] at 11.
Eisai has not identified any party- or non-party witnesses who would refuse to testify
absent a subpoena – let alone produced affidavits or other evidence indicating that anticipated
witnesses are unwilling to testify. But even if the three witnesses identified by Eisai who reside
outside a 100-mile-radius of this Court would have to be subpoenaed, those witnesses are within
the subpoena reach of this Court because of their places of employment. See Fed. R. Civ. P.
45(b)(2)(A)-(B); Fed. R. Civ. P. 45(c)(3)(A)(ii); Crocco Decl. [doc. # 21-2] ¶¶ 10, 15, 17 (noting
the places of employment of Lorrie Albinson (Connecticut), Parveen Hyder (Woodcliff Lake,
New Jersey), and Eve Costopoulos (Woodcliff Lake, New Jersey)).
As for the convenience of the parties, obviously the District of New Jersey would be a
more convenient forum for Defendant. However, the majority of named Plaintiffs and current
opt-ins are Connecticut residents, and the vast majority of all potential opt-in plaintiffs reside in
neither Connecticut nor New Jersey. Similarly, the locus of operative facts in this case is split
between New Jersey – the location of Eisai's corporate headquarters, where, according to Eisai,
all the relevant decisions in this case occurred – and the various districts in which the plaintiffs
worked. In addition, although Eisai's documents are located in New Jersey, Eisai does not
dispute that the plaintiffs' own records are located where the plaintiffs reside. Moreover, records
and documents can be copied and mailed. Thus, those factors do not weigh in favor of either the
District of New Jersey or the District of Connecticut.
Plaintiffs argue – and Eisai does not dispute – that Eisai has far greater financial
resources than either of the current named Plaintiffs as well as any other employee or former
employee of Eisai that might opt in to the action. Insofar as transfer to the District of New Jersey
"would not dramatically increase the costs associated with pursuing this litigation as a class
action lawsuit," Jones, 463 F. Supp. 2d at 278, the concerns related to the relative means of the
parties are somewhat mitigated, and this factor thus tips just slightly in Plaintiffs' favor.
Finally, Eisai has not established that the interests of justice would be better served by
transfer. Both forums in this case are "equally familiar with the governing federal law." Id. Eisai
maintains, though, that justice would be better served by a transfer of venue to the District of
New Jersey because of New Jersey's strong ties to the case, citing the principle that "[t]he burden
of jury duty 'ought not be imposed upon the people of a community which has no relation to the
litigation.'" Mem. in Supp. of Mot. to Transfer [doc. # 21] at 14 (quoting Ferens v. John Deere
Co., 494 U.S. 516, 529 (1990)). But Eisai does not – and cannot – claim that Connecticut has no
connection to this case, and Eisai does not even attempt to argue that transfer to the District of
New Jersey would promote trial efficiency. See id.
Having considered the relevant factors, the Court concludes that Eisai has not made a
clear and convincing showing that transfer should be made to the United States District Court for
the District of New Jersey. Eisai's Motion to Transfer Venue [doc. # 21] is thus DENIED.
IT IS SO ORDERED.
Dated at New Haven, Connecticut: August 4, 2011.
Mark R. Kravitz
United States District Judge
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