Tole v. Glenn Miller Productions, Inc.
Filing
17
MEMORANDUM AND ORDER granting 9 Motion to Transfer Case. For the aforementioned reasons, GMP's motion to transfer venue is granted. The Clerk of the Court is directed to terminate the motion pending at docket number 9 and promptly transfer this action to the United States District Court for the Middle District of Florida, Orlando Division. (Signed by Judge Naomi Reice Buchwald on 8/6/2013) Copies Mailed By Chambers. (ft) [Transferred from nysd on 8/7/2013.]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------X
GARY S. TOLE,
Plaintiff,
- against -
MEMORANDUM AND ORDER
GLENN MILLER PRODUCTIONS, INC.,
12 Civ. 6660 (NRB)
Defendant.
----------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff Gary S. Tole (“plaintiff”) brings this diversity
action for breach of contract and discrimination on the basis of
race
against
Productions,
his
Inc.
former
employer,
(“GMP”).
GMP
defendant
now
moves
Glenn
for
an
Miller
order
transferring venue from the Southern District of New York to the
Middle District of Florida, Orlando Division, pursuant to 28
U.S.C. § 1404(a).
For the reasons set forth below, we grant the
motion to transfer.
BACKGROUND1
I. Factual Background
1
The following facts are drawn from the Complaint (“Compl.”); Defendant’s
Memorandum of Law in Support of its Motion to Transfer Venue (“Def. Mem.”);
the Declaration of David Mackay, Jr. in Support of Defendant’s Motion to
Transfer Venue (“Mackay Decl.”); Plaintiff’s Memorandum of Law in Opposition
to Defendant’s Motion to Transfer Venue (“Pl. Mem.”); the Declaration of Gary
S. Tole in Opposition to Defendant’s Motion to Transfer Venue (“Tole Decl.”);
Defendant’s Reply Memorandum in Support of its Motion to Transfer Venue (Def.
Reply Mem.”); and the Supplemental Declaration of David Mackay, Jr. in
Support of Defendant’s Motion to Transfer Venue (“Supp. Mackay Decl.”).
1
Plaintiff is a white male trombonist and band leader who
resides in Rancho Cucamonga, California.
(Compl. ¶¶ 3, 5.)
GMP
was formed in 1956 by David Mackay, Sr. to manage the Glenn
Miller Orchestra (the “Orchestra”), a leading big band which had
been led previously by its eponymous founder.
(Id. ¶¶ 4, 6-7.)
Although
New
it
was
originally
incorporated
headquarters
and
principal
place
located in Naples, Florida.
of
in
business
York,
are
(Mackay Decl. ¶ 9.)
GMP’s
currently
The company
has not maintained offices or employees in New York since 1992.
(Id. ¶¶ 6-10.)
In 2010, GMP was looking to hire a new band leader for the
Orchestra.
After plaintiff applied for the position, GMP flew
him from his home in California to Manhattan to interview with
David
Mackay,
Jr.
(“Mackay”),
GMP’s
Chief
Executive
Officer,
Charles DeStefano (“DeStefano”), GMP’s President, and Mackay’s
wife, Constance, GMP’s Corporate Secretary.
(Compl. ¶¶ 11-12;
Mackay Decl. ¶¶ 12-15; Tole Decl. ¶ 3.)
In New York, the group met for dinner on July 18 and again
for lunch on July 19.
The
parties
agree
that
(Compl. ¶¶ 12-14; Mackay Decl. ¶ 16.)
plaintiff’s
potential
employment
was
discussed, but not formally negotiated, at the July 18 meeting.
(Compl. ¶ 13; Mackay Decl. ¶ 16.)
Plaintiff further alleges
that GMP negotiated the key terms of his employment, including
2
its duration and his compensation, during the July 19 meeting.
(Tole Decl. ¶ 6.)
He also maintains that GMP offered him the
position of leader and music director at that time, which he
immediately
However,
accepted.
employment
GMP
(Compl.
claims
took
that
place
no
¶¶
15-16;
such
during
the
Tole
negotiation
July
19
Decl.
or
¶
meeting;
offer
to
7.)
of
the
contrary, it submits that Mackay sent plaintiff an employment
agreement
upon
his
return
to
Florida,
and
subsequently
negotiated the terms of employment with plaintiff’s attorney,
Gordon P. Firemark, via telephone.
(Mackay Decl. ¶¶ 17-18.)
On August 12, 2010, more than three weeks after the meeting
in New York, plaintiff signed an employment agreement with GMP.
(Mackay Decl. ¶ 19; Tole Decl. ¶ 8; Compl. Ex. A, at 7.)
agreement
provided
for
a
three-year
term
of
employment,
The
to
commence in January 2011, during which plaintiff could only be
terminated for good cause after the first ninety days.
Ex. A, at 4-5.)
(Compl.
It also contained a choice of law provision,
which states that the agreement “shall be governed by the laws
of the State of New York.”
(Id. at 7.)
On January 12, 2011, plaintiff commenced employment with
GMP.
(Compl. ¶ 20.)
Over the course of the next eleven months,
plaintiff alleges that GMP repeatedly expressed its disapproval
of his hiring and promotion of minority employees.
3
(Id. ¶¶ 26-
37.)
For example, in response to plaintiff’s recruitment of two
African-American
musicians,
plaintiff
alleges
that
DeStefano
told him, “[t]his is the Glenn Miller Orchestra, not the Count
Basie Orchestra.”
(Id. ¶¶ 26-28.)
Plaintiff also points to an
October 2011 business meeting in Florida attended by Mackay,
DeStefano, Mrs. Mackay, and another GMP officer, Greg Parnell,
at which Mrs. Mackay allegedly referred to the Orchestra as
“white bread and milk” and stated that employing Damien Sanchez,
a Cuban-American employee whom plaintiff had previously promoted
to assistant road manager, “would not be good for [GMP’s] name.”
(Id. ¶ 35.)
On December 12, 2011, following an incident that occurred
while the Orchestra was on tour in Japan, Mackay sent plaintiff
a telefax from GMP’s offices in Naples informing him that he had
been terminated.
(Mackay Decl. ¶¶ 22-23; Tole Decl. ¶¶ 13-15.)
While plaintiff alleges that his termination was without cause,
(see Compl. ¶ 87), Mackay maintains that GMP had good cause to
terminate plaintiff based upon his actions in response to the
incident
in
Japan,
as
well
as
other
inappropriate
conduct
throughout his employment, (see Mackay Decl. ¶ 21).
II.
Procedural Background
Plaintiff filed this lawsuit on August 31, 2012, alleging
that GMP breached the terms of the employment agreement when it
4
terminated him without cause.
(Compl. ¶¶ 47-70, 84-89.)
The
complaint further alleges that GMP violated the Civil Rights Act
of 1871, codified at 42 U.S.C. § 1981, by discriminating on the
basis
of
race
when
it
terminated
him
on
account
professional association with racial minorities.
of
his
(Id. ¶¶ 90-
92.)
On
December
3,
2012,
GMP
filed
the
instant
motion
transfer venue, which plaintiff opposed on December 14.
filed its reply on December 21, 2012.
to
GMP
Oral argument was held on
July 30, 2013.2
DISCUSSION
I. Legal Standard
Section
1404(a)
permits
a
district
court
to
transfer
a
civil action to “any other district or division where it might
have been brought.”
28 U.S.C. § 1404(a).
The purpose of the
provision is to “protect litigants, witnesses and the public
against unnecessary inconvenience and expense.”
Barrack,
376
U.S.
citation omitted).
612,
616
(1964)
(internal
Van Dusen v.
quotation
and
The burden is on the moving party to make a
clear and convincing showing that the action is one that might
have been brought in the proposed transferee forum, and that
transfer would promote convenience and justice.
See Fteja v.
Facebook, Inc., 841 F. Supp. 2d 829, 832 (S.D.N.Y. 2012).
2
References preceded by “Tr.” refer to the transcript of oral argument.
5
Where
the
transferee
district
is
a
proper
venue,
as
plaintiff concedes it is here (Pl. Mem. at 5), “motions for
transfer lie within the broad discretion of the district court
and are determined upon notions of convenience and fairness on a
case-by-case basis.”
Schoenefeld v. New York, No. 08 Civ. 3269
(NRB), 2009 WL 1069159, at *2 (S.D.N.Y. Apr. 16, 2009) (citing
In re Cuyahoga Equip Corp., 980 F.2d 110, 117 (2d Cir. 1992))
(internal quotation marks omitted).
Among the factors to be
considered in deciding whether to grant a motion to transfer
venue
are:
convenience
(1)
of
the
the
convenience
parties;
(3)
of
the
the
witnesses;
relative
means
(2)
the
of
the
parties; (4) the locus of the operative events; (5) the relative
ease of access to sources of proof; (6) the weight accorded to
plaintiff’s choice of forum; (7) the availability of process to
compel unwilling witnesses; (8) the forum’s familiarity with the
governing
justice
law;
based
and
(9)
trial
efficacy
upon
the
totality
of
the
and
the
interests
circumstances.
of
See
Schoenefeld, 2009 WL 1069159, at *2; see also New York Marine
and Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 112 (2d
Cir. 2010).
The above factors do not comprise an exclusive list, nor
are they to be applied in a mechanical or formulaic manner.
“Rather, they, and any other factors peculiar to the particular
6
case in question, serve as guideposts to the Court's informed
exercise of discretion.”
Albert Fadem Trust v. Duke Energy
Corp., 214 F. Supp. 2d 341, 343 (S.D.N.Y. 2002).
II.
Application of Relevant Factors
With the above principles in mind, we will address each of
the relevant factors governing a motion to transfer seriatim,
based upon the affidavits and other submissions of the parties.
1. Convenience of the Witnesses
“The convenience of party and non-party witnesses is the
most
important
consideration
in
a
Section
1404(a)
motion.”
Schoenefeld, 2009 WL 1069159, at *2 (citing Mitsui Marine & Fire
Ins. Co. v. Nankai Travel Int’l Co., 245 F. Supp. 2d 523, 526
(S.D.N.Y. 2003)).
In evaluating this factor, we consider “the
materiality, nature and quality of each witness, not merely the
number of witnesses in each district.”
Royal & Sunalliance v.
British Airways, 167 F. Supp. 2d 573, 577 (S.D.N.Y. 2001).
GMP has identified four potential witnesses who would be
greatly inconvenienced if the suit were to remain in plaintiff’s
chosen
Sanchez.
forum:
Mackay,
Mrs.
Mackay,
DeStefano,
and
Damien
Each is mentioned by name in the complaint, each has
personal knowledge as to certain of plaintiff’s allegations, and
each resides and works in Florida.
Because these witnesses
would be greatly convenienced by litigation in Florida, this
7
factor weighs in favor of transfer.
See Arrow Elecs., Inc. v.
Ducommun, Inc., 724 F. Supp. 264, 267 (S.D.N.Y. 1989).
By
contrast,
plaintiff
witnesses in either forum.
fails
to
identify
any
potential
Despite his assertion that members
of the Orchestra would be “the witnesses most familiar with
[his] performance as band leader and music director and thus the
most knowledgeable about whether there was good cause for [his]
termination,” (Tole Decl. ¶ 18), he cannot identify a single
member who resides in New York.
Indeed, by plaintiff’s own
admission, the Orchestra members reside in various cities across
the United States, and thus proceeding in Florida may be equally
if not more convenient for them than proceeding in New York.
In
(Id.)
such
consideration
the
situations,
convenience
“the
of
Court
witnesses
dismisses
who
outside both the current and transferee forums.”3
are
from
located
Wechsler v.
Macke Int’l Trade, Inc., No. 99 Civ. 5725, 1999 WL 1261251, at
*6 (S.D.N.Y. Dec. 27, 1999).
2. Convenience and Relative Means of the Parties
This factor tends to weigh in favor of transfer when the
“inconvenience
eliminated
3
[to
without
the
moving
substantially
party]
adding
Moreover, as plaintiff has failed to name
alone submit affidavits from them attesting
convenient forum in which to proceed, we do
See Iyalla v. TRT Holdings, Inc., No. 04 Civ.
*5 n.8 (S.D.N.Y. July 25, 2005).
8
could
be
completely
to
the
non-moving
these potential witnesses, let
that New York would be a more
not consider their convenience.
8114 (NRB), 2005 WL 1765707, at
party’s inconvenience.”
Frame v. Whole Foods Market, Inc., No.
06 Civ. 7058, 2007 WL 2815613, at *6 (S.D.N.Y. Sept. 24, 2007).
Plaintiff is a resident of California, not New York, and
therefore
whether
must
this
travel
a
litigation
substantial
proceeds
distance
in
New
regardless
York
or
of
Florida.
However, GMP would save considerable time and money if it were
to litigate this action in Florida, where its principal place of
business and key witnesses are located.
Since Tole faces no
greater burden litigating this case in Florida, while GMP faces
a greater burden litigating it in New York, this factor weighs
in favor of transfer.
See GE Capital Franchise Fin. Corp., No.
08 Civ. 2025, 2009 WL 1812821, at *6 (W.D.N.Y. June 25, 2009)
(“This factor weighs in favor of transfer as Plaintiff would
have
less
of
a
financial
hardship
prosecuting
this
case
in
Florida than Defendant would have defending it in New York.”).
With respect to the parties’ relative means, we note at the
outset that neither party has presented persuasive evidence on
the issue.
Although plaintiff submits that he has not secured
employment since his termination from GMP, and thus receives no
income other than his unemployment benefits, GMP maintains that
he owns a production company and currently leads a big band
orchestra.
(Tole Decl. ¶ 24; Mackay Decl. ¶ 38.)
GMP asserts
that it is a “small business catering to a niche audience, and
9
has limited resources to spend on this case,” (Mackay Decl. ¶
39),
but
factor
as
does
that
not
conclusory
favor
statement
either
party’s
is
unsupported,
position.
this
See
Astor
Holdings, Inc. v. Roski, No. 01 Civ. 1905 (GEL), 2002 WL 72836,
at *12 (S.D.N.Y. Jan. 17, 2002).
3. The Locus of the Operative Events
The location of a lawsuit’s operative events is also a
“primary factor” in determining a motion to transfer venue.
See
Schoenefeld, 2009 WL 1069159, at *3; Smart v. Goord, 21 F. Supp.
2d
309,
316
(S.D.N.Y.
1998).
Here,
there
is
absolutely
connection between plaintiffs’ allegations and New York.
no
It is
clear that plaintiff does not allege any discrimination to have
taken place here.
Further, while the parties dispute whether
initial negotiation of his employment agreement occurred in New
York,
it
is
undisputed
executed here.
that
the
written
agreement
was
not
Indeed, the New York meetings occurred several
weeks before plaintiff hired California counsel to negotiate the
terms
of
his
employment
and
employment agreement with GMP.
to
the
signing
of
the
eventually
signed
a
written
That the negotiation giving rise
agreement
occurred
in
New
York
is
irrelevant, given that the breach of the agreement, and not its
formation, is what is at issue in the instant action.
Steamship
Owners
Mut.
Protection
10
and
Indem.
Ass’n,
See Am.
Inc.
v.
LaFarge N. Am., Inc., 474 F. Supp. 2d 474, 485 (S.D.N.Y. 2007)
(concluding that the location of the execution of the contract
is the locus in question).
By contrast, the connection between plaintiff’s allegations
and Florida is quite clear.
At least some of the negotiation of
plaintiff’s employment agreement was conducted during a phone
call
between
Firemark
Mackay
(in
(in
Florida)
California).
and
(Mackay
plaintiff’s
Decl.
¶
attorney,
18.)
Mackay
ultimately signed plaintiff’s employment agreement in Florida.
(Id. ¶ 19.)
alleges
Further, an October 2010 meeting at which plaintiff
Mrs.
Mackay
to
have
“expressed
her
displeasure”
concerning the company’s hiring of a Hispanic individual also
took place in Florida.
(Tole Decl. ¶ 11.)
Finally, Mackay made
the decision to terminate Tole in Florida, and sent a telefax
from GMP’s Florida office to Tole, who was traveling with the
Orchestra
decision.
in
Chicago
at
the
time,
(Mackay Decl. ¶¶ 20-23.)
informing
him
of
such
Thus, we find that this
factor weighs in favor of transfer.
4. The Relative Ease of Access to Sources of Proof
The
location
of
documentary
evidence
is
typically
considered a neutral factor in the transfer analysis.
See Am.
S.S. Owners Mut. Prot. & Indem. Ass’n v. Lafarge N. Am., Inc.,
474
F.
Supp.
2d
474,
484
(S.D.N.Y.
11
2007)
(“The
location
of
relevant documents is largely a neutral factor in today's world
of
faxing,
citation
scanning,
omitted).
and
There
standard approach here.
emailing
is
no
documents.”)
reason
to
depart
(internal
from
this
However, to the extent there are any
relevant documents or records relating to the incidents alleged
in the Complaint, they are most likely to be found in one of
GMP’s
two
offices
in
the
Middle
District
of
Florida.
(See
Mackay Decl. ¶ 8.)
5. The Weight Accorded to Plaintiff’s Choice of Forum
While
plaintiffs'
choice
of
forum
is
generally
a
substantial consideration, when a plaintiff brings a suit in a
forum that has no material connection with the action, this
factor should be given little weight.
See Nat’l Union Fire Ins.
Co. of Pittsburgh v. St. Paul Fire & Marine Ins. Co., 12 Civ.
1250 (PKC), 2012 WL 1829589, at *5 (S.D.N.Y. May 11, 2012);
Iyalla, 2005 WL 1765707, at *6.
Other than being the source of
the governing law, New York bears no connection whatsoever with
the underlying dispute, entitling plaintiff’s choice of forum to
little deference as a result.
Such deference is further diminished where, as here, the
suit
is
brought
Schoenefeld,
2009
Heyman,
F.
636
outside
the
plaintiff’s
WL
1069159,
at
Supp.
1545,
1550
12
*3
home
(citing
(S.D.N.Y.
forum.
Heyco,
1986)).
See
Inc.
v.
While
plaintiff appears to have selected New York in part because it
is
home
to
his
counsel,
the
convenience
of
counsel
is
not
relevant to the decision of whether to transfer venue.
See
GlaxoSmithKline Biologicals, S.A. v. Hospira Worldwide, Inc.,
No. 13 Civ. 1395 (PKC), 2013 WL 2244315, at *3 (S.D.N.Y. May 21,
2013); see also Fuji Photo Film Co., Ltd. v. Lexar Media, Inc.,
415 F. Supp. 2d 370, 374 (S.D.N.Y. 2006).
Accordingly, plaintiff’s preference for a New York forum is
not entitled to significant weight in our analysis.
See Iyalla,
2005 WL 1765707, at *5.
6. The Availability of Process to Compel Unwilling Witnesses
The availability of process to compel unwilling witnesses
has no impact on our analysis, as plaintiff has not identified
any non-party witnesses who are within this district’s subpoena
power, let alone who would not be subject to process here.
See
Fuji Photo Film Co. v. Lexar Media, Inc., 415 F. Supp. 2d 370,
375
(S.D.N.Y.
2006).
Nevertheless,
we
note
that
the
only
potential witnesses identified by the parties thus far reside in
Florida, and not in New York, such that it would be easier to
secure their attendance in the Middle District of Florida than
in the Southern District of New York.
7. The Comparative
Governing Law
Familiarity
13
of
Each
District
with
the
It
is
true,
as
plaintiff
submits,
that
a
venue’s
familiarity with the governing state law is an additional factor
to be considered.
See Filmline (Cross-Country) Prods., Inc. v.
United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989); Albert
Fadem Trust, 214 F. Supp. 2d at 343.
“generally
given
little
weight
in
However, this factor is
federal
courts”
because
federal courts are deemed capable of applying the substantive
law of other states.
AEC One Stop Grp., Inc. v. CD Listening
Bar, Inc., 326 F. Supp. 2d 525, 531 (S.D.N.Y. 2004); see also
Astor Holdings, 2002 WL 72936, at *13; Pilevesky v. Suntrust
Bank,
No.
10
Civ.
2290
(JS)
(ETB),
2010
WL
4879006,
at
*5
(E.D.N.Y. 2010) (finding that this factor “weighs slightly in
favor of transfer” when the transferee forum’s law will govern
dispute, but noting that “the tilt is slight, because federal
courts are deemed capable of applying the substantive law of
other states, particularly in a case . . . which involves rather
routine questions of contract law”) (internal quotation marks
omitted).
Thus, there is nothing to indicate that a federal
court in Florida is incapable of applying New York state law to
the instant dispute.
See, e.g., Lamm v. State St. Bank & Trust
Co., 889 F. Supp. 2d 1321, 1327-1331 (S.D. Fla. 2012) (applying
New York state law to breach of contract claim).
14
Moreover,
the
choice
of
law
provision
in
plaintiff’s
employment agreement requires only that New York state law be
applied to plaintiff’s breach of contract claim; federal law
remains applicable to plaintiff’s discrimination claim, whether
applied in this district or in the Middle District of Florida.
See Carr-Stock v. Orthotic Rehab. Prods., Inc., 832 F. Supp. 2d
229,
241
(W.D.N.Y.
familiarity
with
2011)
(concluding
governing
law
factor
that
was
comparative
neutral
where
complaint alleged two causes of action, a patent infringement
claim arising under federal law and a breach of contract claim
arising under Florida state law).
As a result, we consider this
factor neutral in our analysis.
8. Judicial Economy and the Interests of Justice
Courts can consider trial efficiency and general “interests
of justice” when deciding whether to grant a motion to transfer.
See Montgomery v. Tap Enterprises, Inc., No. 06 Civ. 5799 (HB),
2007 WL 576128, at *5 (S.D.N.Y. Feb. 26, 2007).
Here, the
parties have put forth no evidence of circumstances, such as
crowded
docket
conditions,
that
might
militate
a
speedier
prosecution of the action in one forum as opposed to the other.
See, e.g., De Jesus v. Nat’l R.R. Passenger Corp., 725 F. Supp.
207,
209
economy
(S.D.N.Y.
do
not
1989).
change
our
Thus,
considerations
conclusion
15
that
the
of
judicial
substantial
balance
of
convenience
relevant
of
the
considerations
witnesses
and
–
parties
particularly
and
the
the
locus
of
operative facts — weigh heavily in favor of transfer.
With
assume
respect
that
to
the
plaintiff’s
interests
counsel
of
must
justice,
have
we
can
anticipated
only
the
possibility that GMP would seek to transfer, given that Florida
is both its home state and the locus of nearly all of the
operative
practice
events.
of
Nevertheless,
soliciting
pre-motion
and
despite
letters,
this
which
Court’s
made
the
possibility of a transfer motion a reality, plaintiff chose to
litigate the motion rather than consent to the transfer.
Any
delay he has suffered or additional burden that will result from
transfer can only be attributed to plaintiff’s decision to bring
his lawsuit in New York rather than in Florida.
* * *
Having reviewed the relevant factors, we find that they
cumulatively counsel in favor of transfer.
Transferring this
case to Florida will economize the parties’ resources, provide
easy access to corporate records and potential witnesses, and
will not unduly inconvenience either party.
conclude
that
section
1404(a)
supports
the
litigation to the Middle District of Florida.
16
Accordingly, we
transfer
of
this
CONCLUSION
For
venue
is
terminate
the
aforementioned
granted.
the
The
reasons,
Clerk
motion pending
at
of
GMP' s
the
docket
motion
Court
is
number
9
transfer this action to the United States Dist
Middle District of Florida, Orlando Division.
SO ORDERED.
DATED:
New York, New York
August ~, 2013
iL42
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
17
to
transfer
directed
to
and promptly
ct Court for
Copies of the foregoing Order have been mailed on this
to the following:
Attorneys for Plaintiff
Lee F. Bantle,
Amos B. Blackman, Esq.
Bantle & levy LLP
817 Broadway
New York, N.Y. 10003
Attorneys for Defendant
Marion B. Cooper, Esq.
Drinker Biddle & Reath LLP
1177 Avenue of the Americas, 41 st Fl.
New York, N.Y. 10036
William R. Horwitz, Esq.
Drinker Biddle & Reath LLP
500 Campus Drive
Florham Park, N.J. 07932
18
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