SCHWARTZ v. PLANALYTICS, INC.
OPINION. Signed by Judge Noel L. Hillman on 6/29/2017. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JEFFREY P. RESNICK
SHERMAN, SILVERSTEIN, KOHL, ROSE & PODOLSKY, PC
EAST GATE CORPORATE CENTER
308 HARPER DRIVE
MOORESTOWN, NJ 08057
On behalf of Plaintiff
LISA MARIE SCIDURLO
STEVENS & LEE, P.C.
620 FREEDOM BUSINESS CENTER
KING OF PRUSSIA, PA 19406
On behalf of Defendant
HILLMAN, District Judge
Plaintiff Richard Schwartz worked for Defendant
Planalytics, Inc. for six years as a sales person.
Plaintiff, who was 55 years old at the time, was diagnosed with
cancer and an atrial flutter.
On June 10, 2016, Plaintiff
notified Defendant’s human resources director of his medical
conditions and, according to Plaintiff, the HR director knew he
was going to seek FMLA leave.
On June 13, 2016, Defendant fired
Plaintiff for poor work performance, even though Plaintiff
contends that he was an exemplary employee who was a top sales
producer and had never been disciplined or criticized.
Plaintiff claims that Defendant violated his rights under
the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq., the
Americans with Disabilities Act, (“ADA”), 42 U.S.C. § 12111 et
seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621,
et seq. (“ADEA”), the New Jersey Law Against Discrimination
(“NJLAD”), N.J.S.A. 10:5–1, et seq., the New Jersey Family and
Medical Leave Act (“NJFMLA”), N.J.S.A. 34:11B-1 et seq., and
breached the covenant of good faith and fair dealing when
Defendant terminated him from employment.
Presently before the Court is the motion of Defendant to
dismiss 1 Plaintiff’s claims for lack of personal jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(2), or to dismiss six of
Plaintiff’s claims for failure to state a claim pursuant to Fed.
R. Civ. P. 12(b)(6), or to transfer venue to the U.S. District
Court for the Eastern District of Pennsylvania pursuant to 28
U.S.C. § 1404(a).
For the reasons expressed below, Defendant’s
motion will be granted in part, and the matter will be
In response to Defendant’s motion to dismiss, Plaintiff filed a
cross-motion to stay the decision on Defendant’s motion until
Plaintiff’s charge filed with the Equal Employment Opportunities
Commission (“EEOC”) was decided. On April 20, 2017, the EEOC
closed Plaintiff’s file on his charge because of this lawsuit.
Accordingly, Plaintiff’s cross-motion to stay is now moot.
transferred to the Eastern District of Pennsylvania.
Subject matter jurisdiction
This Court has jurisdiction over Plaintiff’s federal claims
under 28 U.S.C. § 1331, and supplemental jurisdiction over
Plaintiff’s state law claim pursuant to 28 U.S.C. § 1367.
Defendant argues that this Court does not have personal
jurisdiction over it.
Under the Due Process clause, the
exercise of personal jurisdiction over a non-resident defendant
is appropriate when the defendant has “certain minimum contacts
with [the forum state] such that the maintenance of the suit
does not offend ‘traditional notions of fair play and
Int’l Shoe Co. v. Washington, 326 U.S.
310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463
A defendant establishes minimum contacts by
“‘purposefully avail[ing] itself of the privilege of conducting
activities within the forum State,’” thereby invoking “‘the
benefits and protections of [the forum State’s] laws.’”
Metal Indus. Co., Ltd. v. Sup. Ct. of California, 480 U.S. 102,
109 (1987) (quoting Burger King Corp. v. Rudzewicz, 471 U.S.
462, 475 (1985)).
The Court may exercise specific personal jurisdiction over
a defendant where the cause of action is related to or arises
out of activities by the defendant that took place within the
Helicopteros Nacionales de Colombia, S.A. v. Hall,
466 U.S. 408, 414 n.8 (1984). 2
A defendant’s contacts with the
forum may not be “random,” “fortuitous” or “attenuated.”
Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297 (1980).
Plaintiff argues that this Court may exercise specific
jurisdiction over Defendant because: a) it required him to work
from a home office when it hired him, and that home office was
in New Jersey; b) most of Defendant’s sales representatives
worked from home and that was how the company operated; c)
Plaintiff worked from his home office four days a week, and only
traveled to the Berwyn, PA office for Monday meetings, although
he was not required to as he could have attended telephonically;
d) Plaintiff’s supervisor for most of his tenure worked remotely
from Boston and now Florida; e) Plaintiff had been assigned to
work on New Jersey accounts; f) at the time of his termination
Plaintiff was prospecting New Jersey accounts; g) Defendant
reimbursed his mileage costs from his home office and his home
office expenses; h) Defendant paid Plaintiff by direct deposit
If the cause of action has no relationship to a defendant’s
contacts with a forum state, the Court may nonetheless exercise
general personal jurisdiction if the defendant has conducted
“continuous and systematic” business activities in the forum
state. Helicopteros Nacionales de Colombia, S.A. v. Hall, 466
U.S. 408, 416 (1984). Plaintiff does not argue that general
jurisdiction is applicable.
to a bank in New Jersey; i) Plaintiff’s phone calls were
permanently forwarded to his home office; j) his email footer
and business card included his New Jersey cell phone number; and
k) Defendant never told Plaintiff that he was not permitted to
work from his home office.
Plaintiff argues that because Defendant purposely hired and
employed for six years a New Jersey resident to work from his
New Jersey home, his claims arise out of this relationship, and
no factors render jurisdiction in New Jersey unfair or
unreasonable, this Court may exercise personal jurisdiction over
In contrast, Defendant argues that it only has attenuated
contacts with New Jersey and it has not purposefully directed
its activities to New Jersey:
a) it is incorporated in
Pennsylvania and operates one office in the U.S. in
Pennsylvania; b) it does not have an office in New Jersey; c) it
has never filed a corporate tax return in New Jersey; d) it does
not maintain any bank accounts in New Jersey; e) only four of
its clients are located in New Jersey and Plaintiff never
managed any of them; f) it performs all work for those clients
in its Berwyn, Pennsylvania office; and g) Plaintiff
unilaterally decided to work from home for his own convenience,
even though he was never authorized to do so.
Based on Defendant’s very limited contacts with New Jersey,
and that Plaintiff’s claims against it arise out of
communications that occurred in Pennsylvania, Defendant argues
this Court may not exercise personal jurisdiction over it.
Related to Defendant’s lack of personal jurisdiction
argument, Defendant contends that this forum is not the proper
venue for Plaintiff’s case.
Two provisions governing venue are
Title 28 U.S.C. § 1404(a) provides, “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.”
Title 28 U.S.C. § 1406(a) provides, “The district court of a
district in which is filed a case laying venue in the wrong
division or district 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 brought.”
Section 1404(a) transfers are discretionary determinations
made for the convenience of the parties and presuppose that the
court has jurisdiction and that the case has been brought in the
Lafferty v. St. Riel, 495 F.3d 72, 76–77 (3d
Cir. 2007) (citing Jumara v. State Farm Ins. Co., 55 F.3d 873,
878 (3d Cir. 1995); 17A Moore's Federal Practice, § 111.02
(Matthew Bender 3d ed. 2006)).
Section 1406(a) comes into play
where plaintiffs file suit in an improper forum, and in those
instances, district courts are required either to dismiss or
transfer to a proper forum.
Id. (citations omitted).
Venue is proper in “a judicial district where any defendant
resides, if all defendants reside in the same State.”
A plaintiff’s residence is irrelevant to that
Al-Ghena Intern. Corp. v. Radwan, 957 F. Supp. 2d 511,
519–20 (D.N.J. 2013) (citation omitted).
Venue is also proper
in “a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action
28 U.S.C. § 1391(b)(2).
Defendant argues that because the action’s only connection
to this Court is Plaintiff’s residence, Plaintiff could have,
and should have, brought his case in the U.S. District Court for
the Eastern District of Pennsylvania.
Defendant further argues
that venue in the Eastern District of Pennsylvania is a proper
venue because all of the witnesses and documents are in Berwyn,
Pennsylvania, and the location of the Eastern District of
Pennsylvania courthouse is not inconvenient to Plaintiff because
it is only two miles from this Court, and Plaintiff traveled
into Pennsylvania weekly for six years for Monday meetings.
Plaintiff rejects Defendant’s inconvenience argument, and
in addition to the reasons Plaintiff argues for personal
jurisdiction over Defendant, Plaintiff argues that his choice of
forum should not be disturbed because the location of this Court
two miles away from the Eastern District of Pennsylvania
courthouse in Philadelphia is just as convenient for Defendant
as Defendant argues it is convenient for Plaintiff.
Regardless of the determination of whether this Court can
exercise personal jurisdiction over Defendant, the Court may
look to 28 U.S.C. § 1404(a) or § 1406(a) to determine whether to
transfer Plaintiff’s case.
“A district court may transfer a[n]
action to another district court even if it lacks jurisdiction
over a defendant.”
Rappoport v. Steven Spielberg, Inc., 16 F.
Supp. 2d 481, 507 (D.N.J. 1998) (citing Goldlawr, Inc. v.
Heiman, 369 U.S. 463, 465–66 (1962); Carteret Sav. Bank, FA v.
Shushan, 919 F.2d 225, 231 (3d Cir. 1990); United States v.
Berkowitz, 328 F.2d 358, 361 (3d Cir. 1964); Telesis Mergers &
Acquisitions, Inc. v. Atlis Fed. Svcs., Inc., 918 F. Supp. 823,
829 (D.N.J. 1996)); 3 see also Leroy v. Great W. United Corp., 443
U.S. 173, 180 (1979) (citations omitted) (“The question of
personal jurisdiction, which goes to the court's power to
Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465–66 (1962) holds,
“The language of § 1406(a) is amply broad enough to authorize
the transfer of cases, however wrong the plaintiff may have been
in filing his case as to venue, whether the court in which it
was filed had personal jurisdiction over the defendants or not.”
The Third Circuit found that Goldlawr applies equally to §
1404(a) and § 1406(a) because they are companion sections,
remedial in nature, enacted at the same time, and both dealing
with the expeditious transfer of an action from one district or
division to another. U.S. v. Berkowitz, 328 F.2d 358, 361 (3d
exercise control over the parties, is typically decided in
advance of venue, which is primarily a matter of choosing a
On the other hand, neither personal
jurisdiction nor venue is fundamentally preliminary in the sense
that subject-matter jurisdiction is, for both are personal
privileges of the defendant, rather than absolute strictures on
the court, and both may be waived by the parties.
when there is a sound prudential justification for doing so, we
conclude that a court may reverse the normal order of
considering personal jurisdiction and venue.”).
the Court were to find that it could not exercise personal
jurisdiction over Defendant, “[d]ismissal is considered to be a
harsh remedy . . . and transfer of venue to another district
court in which the action could originally have been brought, is
the preferred remedy.”
NCR Credit Corp. v. Ye Seekers Horizon,
Inc., 17 F. Supp. 2d 317, 319 (D.N.J. 1998) (citing Goldlawr,
369 U.S. at 466).
Where the proposed alternative forum is appropriate, it is
within the Court’s discretion to transfer the action.
State Farm Ins. Co., 55 F.3d 873, 883 (3d Cir. 1995) (citing
Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29
(1988) (explaining that the district court has the discretion
“to adjudicate motions for transfer according to an
individualized, case-by-case consideration of convenience and
fairness” (citation and quotations omitted)).
Here, it is
undisputed that: (1) personal jurisdiction may be exercised over
Defendant in the Eastern District of Pennsylvania; (2) venue is
proper in the Eastern District of Pennsylvania because it is a
judicial district where Defendant resides and where a
substantial part of the events giving rise to the claims
occurred; and (3) the Eastern District of Pennsylvania cannot be
considered inconvenient for Plaintiff.
Based on these
considerations, the Court finds that it is in the interest of
justice that the case be transferred to the Eastern District of
See, e.g., Bliss Network Management v. Hunter
EMS, Inc., 2011 WL 773236, at *2–3 (D.N.J. 2011) (addressing the
venue issue first, and finding that because the defendants have
shown that a transfer of venue is appropriate under § 1404(a),
the court did not reach the questions of whether one defendant
is subject to the exercise of personal jurisdiction or whether
Using the same argument to support its position that personal
jurisdiction over it is lacking, Defendant argues that
Plaintiff’s NJFMLA and NJLAD claims fail because it is not a New
Jersey employer subject to those New Jersey statutes. Defendant
presents two separate inquiries and the resolution of one does
not immediately determine the other. Upon transfer, the
personal jurisdiction issue will be resolved, and the Eastern
District of Pennsylvania may decide, independent of the personal
jurisdiction considerations, whether Plaintiff’s NJFMLA and
NJLAD claims are viable, should Defendant refile a motion to
dismiss on that basis, along with Defendant’s additional bases
to dismiss the other counts in Plaintiff’s complaint presented
the complaint should be dismissed for improper venue).
For the foregoing reasons, Defendant’s motion to transfer
venue to the U.S. District Court for the Eastern District of
Pennsylvania will be granted.
The other relief sought by
Defendant in its motion will be denied without prejudice.
Plaintiff’s cross-motion to stay will be denied as moot.
appropriate Order will be entered.
June 29, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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