Avci v. Brennan et al

Filing 54

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER.For the forgoing reasons,1) plaintiffs motion for entry of default (Docket No. 49) is DENIED and 2) defendants motion to transfer (Docket No. 51) is ALLOWED.The Clerk of Court will process the transfer of this case to the United States District Court for the Southern District of New York. So ordered.(Caruso, Stephanie)

United States District Court
District of Massachusetts

Ulas Avci
Plaintiff,
v.
Megan J. Brennan, Postmaster
General
Defendant.

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Civil Action No.
15-12577-NMG

MEMORANDUM & ORDER
GORTON, J.
This case involves allegations of harassment and disparate
treatment brought by plaintiff Ulas Avci, appearing pro se,
against defendant Megan J. Brennan, Postmaster General of the
United States Postal Service (“USPS”).
Shortly after plaintiff filed an amended complaint, in
August, 2016, he filed a motion for entry of default pursuant to
Fed. R. Civ. P. 55(a).

Defendant responded with a motion to

transfer this action to the United States District Court for the
Southern District of New York.

For the following reasons,

plaintiff’s motion for entry of default will be denied and
defendant’s motion to transfer will be allowed.
I.

Background
Ulas Avci is a former employee of the USPS New York

International Service Center in Jamaica, New York.

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Avci’s

claims arise out of alleged incidents of harassment and
disparate treatment he purportedly experienced while working in
that facility.
Avci had been living in New York State at least until the
time defendant filed her motion to transfer venue.

Plaintiff’s

current mailing address on record, however, indicates that he is
now a resident of Maryland.
In June, 2015, plaintiff filed this action.1

Several months

later, defendant moved to strike plaintiff’s complaint.

United

States Magistrate Judge Donald L. Cabell authored a Report and
Recommendation (“R&R”), in May, 2016, recommending allowance of
the motion to strike but permission for plaintiff to file an
amended complaint.

That R&R was accepted and adopted by this

Court and plaintiff subsequently filed an amended complaint in
August, 2016 raising claims of harassment and disparate
treatment.

Approximately three weeks later, he moved for an

entry of default and defendant responded with a motion to
transfer the case.

Those two motions are the subjects of this

memorandum.

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A year earlier, in June, 2014, plaintiff filed a similar
complaint against the Postmaster General for alleged civil
rights violations during his employment with the USPS in
Massachusetts. That case is also assigned to this session.
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II.

Plaintiff’s Motion for Entry of Default
Pursuant to Fed. R. Civ. P. 55(c), an entry of default can

be set aside for “good cause”.

That standard is a “liberal one”

based upon the policy justification that actions should be
resolved on their merits. Coon v. Grenier, 867 F.2d 73, 76 (1st
Cir. 1989).

Such an analysis also applies to the circumstance

here, where the Court is faced with a request for entry of
default and the defendant has made an appearance. See Schmir v.
Prudential Ins. Co. of Am., 220 F.R.D. 4, 5 (D. Me. 2004)
(citing McKinnon v. Kwong Wah Rest., 83 F.3d 498, 503 (1st Cir.
1996)).
Defendant admits that she erred in calculating the deadline
for responding to plaintiff’s amended complaint.

Because

defendant missed the deadline to respond by only a few days and
she has filed a plausible motion to transfer, the Court
concludes that there is good cause to deny plaintiff’s motion
for an entry of default. See Coon, 867 F.2d at 76-77 (the
existence of a “meritorious defense” is a factor in the “good
cause” analysis).
III. Defendant’s Motion to Transfer
A.

Legal Standard

Under 28 U.S.C. § 1404(a), a district court may transfer a
civil action to any other district where it might have been
brought “[f]or the convenience of parties and witnesses, in the

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interest of justice.”

In order for the court to transfer under

§ 1404(a), it must be shown that the case could have been
properly brought in the transferee forum.

In a discrimination

action brought under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq., venue is proper
[1] in any judicial district in the State in which the
unlawful employment practice is alleged to have been
committed, [2] in the judicial district in which the
employment records relevant to such practice are
maintained and administered, or [3] 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.
42 U.S.C. § 2000e-5(f)(3).
While the decision to transfer a case under § 1404 lies
solely within the discretion of the trial court, there is a
presumption in favor of the plaintiff’s choice of forum. Momenta
Pharm., Inc. v. Amphastar Pharm., Inc., 841 F. Supp. 2d 514, 522
(D. Mass. 2012) (citation omitted).

Unless the balance strongly

favors the defendant, “a plaintiff’s choice of forum should
rarely be disturbed.” Gulf Oil Corp. v. Gilbert, 330 U.S. 501,
508 (1947).
The defendant must bear the burden of proving that a
transfer is warranted. Momenta Pharm., 841 F. Supp 2d at 522.
Factors to be considered in determining whether transfer is
warranted include 1) the plaintiff’s choice of forum, 2) the

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relative convenience of the parties, 3) the convenience of the
witnesses and location of documents, 4) any connection between
the forum and the issues, 5) the law to be applied and 6) the
state or public interests at stake. Id.
B.

Application

Neither party challenges this Court’s exercise of personal
jurisdiction nor do they contend that venue is improper.
Defendant asks this Court, however, to transfer this action to
the United States District Court for the Southern District of
New York (“S.D.N.Y.”), pursuant to 28 U.S.C. § 1404(a).
As a threshold matter, the Court concludes that S.D.N.Y. is
a proper venue because the alleged conduct occurred in the State
of New York. See 42 U.S.C. § 2000e-5(f)(3) (“[A]n action may be
brought in any judicial district in the State in which the
unlawful employment practice is alleged to have been
committed . . . .” (emphasis added)).
Second, the Court concludes that the factors strongly favor
transfer.
The “relative convenience” factor does not favor either
venue.

Although plaintiff lived in New York until the date on

which defendant filed her motion to transfer, his mailing
address of record indicates that he resides in Maryland.
Although Maryland is closer to New York than to Massachusetts,
plaintiff would have to travel no matter where this action is

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maintained. See Bader v. Air Line Pilots Ass’n, Int’l, 63 F.
Supp. 3d 29, 35 (D.D.C. 2014) (concluding that the convenience
factor does not favor either party because plaintiffs would have
to travel to either venue).
The third and fourth factors, however, strongly favor
transfer.

First, plaintiff’s amended complaint in this case

contains only allegations against USPS personnel in New York not
in Massachusetts and thus the witnesses and documents are
presumably located there. See Princess House, Inc. v. Lindsey,
136 F.R.D. 16, 18 (D. Mass. 1991) (quoting Brant Point Constr.
v. Poetzsch, 671 F. Supp. 2, 3 (D. Mass. 1987)).

Moreover, the

connection between the two pending actions is minimal.

Taking

plaintiff’s allegations as true, as the Court must do, certain
employees in New York perhaps knew about plaintiff’s EEOC
complaint involving allegedly improper conduct during his
previous employment with USPS in Massachusetts.

Such a small

link, however, does not weigh against transfer because the
operative conduct complained of in this action occurred
exclusively in New York. See United States ex rel. Ondis v. City
of Woonsocket, 480 F. Supp. 2d 434, 436 (D. Mass. 2007)
(transferring case to United States District Court for the
District of Rhode Island where all the complained-of events took
place in Rhode Island except for the receipt of allegedly false
claims which occurred in Massachusetts).

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Although there is a presumption in favor of a plaintiff’s
choice of forum, when, as in this action, the forum has little
connection to the case and plaintiff is not a resident of the
forum, his choice is given less weight. See id.
Accordingly, because factors three and four compellingly
favor transfer, the Court concludes that, on balance, the case
should be transferred to the Southern District of New York.

ORDER
For the forgoing reasons,
1)

plaintiff’s motion for entry of default (Docket No.
49) is DENIED and

2)

defendant’s motion to transfer (Docket No. 51) is
ALLOWED.

The Clerk of Court will process the transfer of this case
to the United States District Court for the Southern District of
New York.

So ordered.

/s/ Nathaniel M. Gorton_____
Nathaniel M. Gorton
United States District Judge
Dated February 7, 2017

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