Deshmukh v. Sunovion Pharmaceuticals Inc.

Filing 17

ORDER: The Defendants Motion to Dismiss Complaint for Improper Venue or, in the Alternative, to Transfer to the Southern District of New York (Doc. No. 13 ) is hereby DENIED. It is so ordered. Signed by Judge Alvin W. Thompson on 02/10/2015. (Koehler, S)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
VINAY DESHMUKH,
:
:
Plaintiff,
:
:
v.
:
:
SUNOVION PHARMACEUTICALS INC. :
:
Defendant.
:
:
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Civil No. 3:14cv00923(AWT)

RULING ON MOTION TO DISMISS OR TRANSFER
The plaintiff, Vinay Deshmukh, brought this action against
the defendant, Sunovion Pharmaceuticals Inc. (“Sunovion”), for
wrongful discharge because of the plaintiff’s Indian ethnicity,
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq., and for wrongful discharge in violation of
public policy, under state common law.

The defendant has moved

to dismiss the Complaint for improper venue pursuant to Fed. R.
Civ. P. 12(b)(3) and 28 U.S.C. § 1406(a), or, in the
alternative, to transfer this case to the Southern District of
New York pursuant to 28 U.S.C. § 1404(a).
For the reasons set forth below, the defendant’s motion is
being denied.

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I.

FACTUAL AND PROCEDURAL BACKGROUND
The plaintiff is a resident of Garnet Valley, Pennsylvania.

Sunovion is a company organized under the laws of the State of
Massachusetts.

It maintains its corporate headquarters in

Marlborough, Massachusetts, does business in Connecticut and
employs more than 15 employees.
Beginning in October 2010, the defendant employed the
plaintiff as a Regional Business Manager.

In this role, the

plaintiff was responsible for hiring, training and mentoring a
team of 11 Therapeutic Specialists who sold Latuda, an atypical
antipsychotic medication developed by the defendant.

The

plaintiff’s sales territory included “almost all” of
Connecticut, in addition to Westchester County in New York and
parts of New York City.

(Complaint ¶ 11.)

In early 2012, the plaintiff notified a number of Sunovion
employees, including his then-supervisor, that an abnormally
high number of cash prescriptions of Latuda had been dispensed
in the Bronx, which was the territory managed by Hemal Naik, one
of the Therapeutic Specialists on the plaintiff’s team.

This

“raised red flags” for the plaintiff because he believed that
the population in the Bronx was unlikely to be able to afford
the $500 per month cost of Latuda.

(Complaint ¶ 13.)

On November 29, 2012, Sunovion in-house attorney Avery
Price invited the plaintiff to the company’s headquarters in

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Marlborough, Massachusetts to discuss the high number of cash
prescriptions in the Bronx.

Before the meeting, Price and

Sunovion’s Human Resources Director required the plaintiff to
sign an agreement stating that he would not reveal what
transpired during the meeting.

On December 4, 2012, the

plaintiff met with Price and Sunovion Vice President of Sales
Chris Gish.

However, instead of asking the plaintiff what he

knew about the Latuda cash prescriptions that were dispensed in
the Bronx, Price and Gish “became aggressive and accusatory” and
stated that because the plaintiff and Naik were both ethnically
Indian, the plaintiff would “protect” Naik.

(Complaint ¶ 19.)

Price and Gish also accused the plaintiff of mistreating one of
his team members by drawing attention to his low sales numbers
during a conference call.

Gish stated that this management

style was due to Deshmukh’s “culture” and that it was “an Indian
thing” to “torment” people.

(Complaint ¶ 21.)

On December 13,

2012, while the plaintiff was working in Manhattan, he received
a call from his supervisor and Sunovion’s Human Resources
Director, who terminated the plaintiff’s employment with
Sunovion.

In the time since the termination of his employment

with the defendant, the plaintiff has been unable to find
employment.
On March 4, 2014, the plaintiff filed a complaint against
the defendant with the U.S. Equal Employment Opportunity

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Commission (“EEOC”) and the New York State Division of Human
Rights, alleging violations of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., in that the defendant
terminated his employment based on his ethnicity.

On March 26,

2014, the EEOC issued a right to sue letter with respect to
Deshmukh’s claim under Title VII, finding that it was unable to
conclude that the information in the complaint established a
violation of Title VII.

On June 25, 2014, the defendant filed

the Complaint.
II.

LEGAL STANDARD
In deciding a Rule 12(b)(3) motion to dismiss based on

improper venue, “[t]he court must take all allegations in the
complaint as true, unless contradicted by the defendants’
affidavits, and [w]hen an allegation is so challenged [a] court
may examine facts outside the complaint to determine whether
venue is proper.”

Indymac Mortgage Holdings, Inc. v. Reyad, 167

F.Supp.2d 222, 237 (D. Conn. 2001) (internal quotation marks and
citation omitted).

Furthermore, “[t]he court must draw all

reasonable inferences and resolve all factual conflicts in favor
of the plaintiff,” who has “the burden of showing that venue in
the forum is proper.”

Id.

If the venue is not proper, the district court “shall
dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have been

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brought.”

28 U.S.C. § 1406(a).

“Whether dismissal or transfer

is appropriate lies within the sound discretion of the district
court.”

Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir.

1993).
III. DISCUSSION
A.

Dismissal for Improper Venue

The general federal venue statute, 28 U.S.C. § 1391(b),
provides that:
[A] civil action may be brought in (1) a judicial
district in which any defendant resides, if all
defendants are residents of the State in which the
district is located; (2) a judicial district in which
a substantial part of the events or omissions giving
rise to the claim occurred . . . or (3) if there is no
district in which an action may otherwise be brought
as provided in this section, any judicial district in
which any defendant is subject to the court’s personal
jurisdiction with respect to such action.
Id.
The defendant contends that none of the acts or omissions
giving rise to this litigation occurred in Connecticut, and
therefore the District of Connecticut is not a proper venue
pursuant to 28 U.S.C. § 1391(b).

The defendant argues that the

plaintiff’s claims are premised on acts that occurred in New
York and Massachusetts: “(1) his complaint about perceived
improper use of cash prescriptions in New York, (2) allegedly
discriminatory treatment or conduct that occurred during a
meeting in Massachusetts; and/or, (3) his termination, which

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occurred over the phone while he was in New York.”

(Defendant’s

Memorandum of Law in Support of its Motion to Dismiss (Doc. No.
14) (“Defendant’s Memorandum”) at 5.)
The plaintiff contends that the District of Connecticut
meets the requirements of 28 U.S.C. § 1391(b)(2) because a
substantial part of the events or omissions giving rise to this
action occurred in Connecticut.

(See Plaintiff’s Memorandum of

Law in Support of his Objection to Defendant’s Motion to Dismiss
Complaint or Transfer for Improper Venue (Doc. No. 15-1)
(“Plaintiff’s Response”) at 4-6.)
However, Title VII claims such as Count One are subject to
the special venue provision of Title VII, which is set forth at
42 U.S.C. § 2005e–5(f)(3).

See Minnette v. Time Warner, 997

F.2d 1023, 1026 (2d Cir. 1993); Abramski v. Potter, No. 3:05 CV
224 (SRU), 2005 WL 3021926, at *2 (D. Conn. Oct. 31, 2005);
Vasser v. McDonald, No. CV 14-0185 (RC), 2014 WL 5581113, at *5
(D.D.C. Nov. 4, 2014).

The special venue provision of Title VII

provides that:
an action may be brought in any judicial district in
the State in which the unlawful employment practice is
alleged to have been committed, in the judicial
district in which the employment records relevant to
such practice are maintained and administered, or in
the judicial district in which the aggrieved person
would have worked but for the alleged unlawful
employment practice, but if the respondent is not
found within any such district, such an action may be
brought within the judicial district in which the
respondent has his principal office.

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42 U.S.C. § 2005e–5(f)(3) (emphasis added). 
The court concludes that Count One easily satisfies the
venue requirements of Title VII.

Count One is a claim for

wrongful termination of the plaintiff’s employment because of
his Indian ethnicity.

The plaintiff alleges that he worked for

the defendant in Connecticut and the defendant terminated his
employment.

The plaintiff also contends, and the defendant does

not dispute, that his employment was “largely based in the State
of Connecticut,” his primary sales territory included “most of
Connecticut” and he “travelled and interacted with the
defendant, its employees and customers in his sales territory
throughout his employment.”

(Plaintiff’s Response at 4-6.)

Thus, as to Count One, the plaintiff has adequately alleged that
he “would have worked” in this District “but for the alleged
unlawful employment practice.”

42 U.S.C. § 2005e–5(f)(3).

Count Two is a common law claim for wrongful discharge.
Count Two is not subject to the special venue provision of Title
VII.
Federal courts have taken slightly different
approaches to venue when confronted with the situation
where . . . a Title VII claim is joined with [a] claim
subject to the general venue statute, such as the
ADEA. Some courts have ruled that such a lawsuit must
proceed where venue exists for both claims. Other
courts have determined venue based on the claim
subject to the more restrictive [special venue
provision of Title VII].

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Boudouin v. Dep’t of Navy, No. C 09-4958 SBA, 2010 WL
890042, at *4 (N.D. Cal. Mar. 8, 2010) (internal citations
omitted).

Under either approach, venue is proper in this

District.
Where venue is based on 28 U.S.C. 1391(b)(2), district
courts must “take seriously the adjective ‘substantial’” in
discharging their duty to “construe the venue statute strictly.”
Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005).
[W]hen a plaintiff relies on § 1391(b)(2) to defeat a
venue challenge, a two-part inquiry is appropriate.
First, a court should identify the nature of the
claims and the acts or omissions that the plaintiff
alleges give rise to those claims. Second, the court
should determine whether a substantial part of those
acts or omissions occurred in the district where suit
was filed, that is, whether significant events or
omissions material to those claims have occurred in
the district in question.
Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir.
2005) (internal citations and quotation marks omitted).
Substantiality for venue purposes is more a
qualitative than a quantitative inquiry, determined by
assessing the overall nature of the plaintiff’s claims
and the nature of the specific events or omissions in
the forum, and not by simply adding up the number of
contacts.
Id. at 432-33.

Also, under the general venue statute, venue can

be appropriate in more than one judicial district:
Section 1391(b)(2) does not restrict venue to the
district in which the most substantial events or
omissions giving rise to a claim occurred. . . .
Rather . . . § 1391(b)(2) contemplates that venue can
be appropriate in more than one district and permits

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venue in multiple judicial districts as long as a
substantial part of the underlying events took place
in those districts.
Daniel, 428 F.3d at 432 (internal citations and quotation marks
omitted).
Here, as to the nature of Count Two, it is a claim for
wrongful discharge in violation of public policy, in retaliation
for the plaintiff’s expressing concern about cash prescriptions
of Latuda in the Bronx, New York.

With respect to the events

underlying the claim, the plaintiff worked for the defendant
from October 2010 to December 2012 and, although his sales
territory included Westchester County, New York and parts of New
York City, his employment was largely based in the State of
Connecticut.
in the Bronx.

He had expressed concerns about events occurring
On the day his employment was terminated, he was

working in Manhattan when he was called by his supervisor from
corporate headquarters in Massachusetts.

Thus, while a

substantial part of the events underlying the action took place
outside the State of Connecticut, a substantial part of those
underlying events also took place in the State of Connecticut.
Because venue is proper in this District, the defendant’s
motion to dismiss for improper venue is being denied.

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B.

Transfer to the Southern District of New York

In the alternative, the defendant contends that this case
should be transferred to the Southern District of New York
pursuant to 28 U.S.C. § and 1404(a).
For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any
civil action to any other district or division where
it might have been brought or to any district or
division to which all parties have consented.
28 U.S.C. § 1404(a).
In determining whether a transfer of venue pursuant to
28 U.S.C. § 1404(a) is appropriate, district courts
engage in a two-part inquiry, asking: (1) whether an
action might have been brought in the proposed
transferee forum, and, if so, (2) whether the transfer
promotes convenience and justice.
Costello v. Home Depot U.S.A., Inc., 888 F. Supp. 2d 258, 266
(D. Conn. 2012) (internal quotation marks and citations
omitted).

In determining whether the transfer promotes

convenience and justice, “[d]istrict courts have broad
discretion in making determinations of convenience under Section
1404(a) and notions of convenience and fairness are considered
on a case-by-case basis.”

D.H. Blair & Co. v. Gottdiener, 462

F.3d 95, 106 (2d Cir. 2006).

The factors a district court is to

consider 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, (7) the

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relative means of the parties, (8) the forum’s
familiarity with the governing law, and (9) trial
efficiency and the interests of justice, based on the
totality of the circumstances.
Costello, 888 F. Supp. 2d at 267 (citing D.H. Blair & Co., 462
F.3d at 106–107; Hanninen v. Fedoravitch, 583 F.Supp.2d 322, 331
(D. Conn. 2008)).

On a motion to transfer, “[t]he movant bears

the burden of establishing the propriety of transfer by a clear
and convincing showing.”

Costello, 888 F. Supp. 2d at 266.

Venue in the Southern District of New York would be proper
in this case under the special venue provision of Title VII,
because the plaintiff would have worked in that District but for
the alleged unlawful employment practice, and under the general
venue statute, because a substantial part of the events
underlying the plaintiff’s wrongful discharge claim took place
in that District.
The defendant argues that this case should be transferred
to the Southern District of New York because, in relevant part,
the locus of operative facts from which the claims in this case
arise is the Southern District of New York, this court will not
be able to compel witnesses in the New York City area to testify
at trial because of their distance from the courthouse, and the
median time to disposition of cases in the Southern District of
New York is 2.3 months shorter than the median time to

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disposition of cases in the District of Connecticut.
(Defendant’s Memorandum at 9-13).
“The locus of operative facts is an important factor to be
considered in deciding where a case should be tried. To
determine the locus of operative facts, courts look to where the
events from which the claim arises occurred.”

Costello v. Home

Depot U.S.A., Inc., 888 F. Supp. 2d 258, 268 (D. Conn. 2012)
(internal quotations and citations omitted).

As to Count One,

the locus of operative facts is Connecticut, where the
plaintiff’s employment was largely based.

However, as to Count

Two, the locus of operative facts is the Southern District of
New York, where the alleged cash prescriptions were sold.
“A party moving for transfer on the ground of the
convenience or availability of witnesses must specify the
identity of key witnesses and the nature of their likely
testimony, and support these statements with affidavits.”
Costello, 888 F. Supp. 2d at 267.

The defendant has not

specified any key witnesses in support of its position.

“A

subpoena may command a person to attend a trial, hearing, or
deposition . . . within 100 miles of where the person resides,
is employed, or regularly transacts business in person.”
R. Civ. P. 45(c)(1)(A).

Fed.

The court takes judicial notice that

parts of the New York City metropolitan area are less than 100
miles from the courthouses of the Southern District of New York

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but more than 100 miles from Hartford, whereas the defendant’s
headquarters in Marlborough, Massachusetts is within 100 miles
of Hartford, but more than 100 miles from the Southern District
of New York.

Thus, this factor does not weigh in favor of

either district.
As to the difference between the average time to
disposition of cases in the Southern District of New York and
the District of Connecticut, the court finds that, to the extent
that such summary statistics can be said to be predictive of the
expected time to disposition of this particular case, a
difference of 2.3 months weighs, at best, only slightly in favor
of the Southern District of New York.
In considering a motion to transfer, a district court
ordinarily affords the plaintiff’s choice of forum
substantial weight. See In re Warrick, 70 F.3d 736,
741 (2d Cir.1995). When plaintiffs choose a forum that
is not any plaintiff’s home forum, that choice of
forum is accorded considerably less weight. See
Iragorri v. United Technologies, 274 F.3d 65, 71 (2d
Cir.2001).
Costello, 888 F. Supp. 2d at 267.

Here, the plaintiff chose a

forum that is not his home forum, but it appears that his home
forum, the Eastern District of Pennsylvania, is not available to
him.

Thus, the court concludes that this factor weighs slightly

in favor of the plaintiff’s choice, the District of Connecticut.
The parties have not addressed in their submissions the
other factors listed in Costello and the court has no basis for

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evaluating them.1

Weighing the factors discussed above, the

court concludes that the defendant has not met its burden of
establishing by a clear and convincing showing that transfer of
this case promotes convenience and justice.

Two of the factors

are neutral factors in this case, while one weighs at best
slightly in favor of transferring this case and the remaining
factor weighs slightly in favor of not doing so.
IV.

CONCLUSION
For the reasons set forth above, Defendant’s Motion to

Dismiss Complaint for Improper Venue or, in the Alternative, to
Transfer to the Southern District of New York (Doc. No. 13) is
hereby DENIED.
It is so ordered.
Dated this 10th day of February 2015, at Hartford,
Connecticut.

/s/
Alvin W. Thompson
United States District Judge

1

In its reply, the defendant also contends that forum shopping
played a part in the plaintiff’s decision to bring this case in
the District of Connecticut because Count Two is premised on
Connecticut common law that has no clear corollary in New York
or Massachusetts. However, “[w] hen a federal district court
sits in diversity, it generally applies the law of the state in
which its sits, including that state’s choice of law rules.” In
re Coudert Bros. LLP, 673 F.3d 180, 186 (2d Cir. 2012).
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