Skoorka v. Kean University et al

Filing 28

OPINION fld. Signed by Judge Kevin McNulty on 6/5/15. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BRUCE SKOORKA,

Civ. No. 14-456 1 (KM)(MAH)

Plaintiff,
OPINION

v.
KEAN UNIVERSITY, et al.,
Defendants.

Plaintiff Bruce Skoorka has filed a motion (Dkt No. 7) pursuant to 28
U.S.C.

§ 1292(b), seeking leave to appeal a decision (Dkt. No. 5) transferring his

case from the Southern District of New York to this district. Because I perceive
no controversial issue of law or any way in which such an appeal would
advance the ultimate resolution of Skoorka’s case, I will deny the motion.
Background
The SDNY action

Skoorka is a professor of Economics at Kean University. He alleges that
the defendants discriminated against him because of his religion, and
retaliated against him because he previously complained about discrimination.
Skoorka alleges several acts of discrimination or retaliation. Most relevant to
this motion, though, is his allegation that the defendants have interfered with
Skoorka’s other job. In addition to teaching at Kean, Skoorka teaches part-time
at New York University. Skoorka alleges that Kean interfered with his
employment at NYU by scheduling him to teach courses at Kean at times that
would conflict with his teaching schedule at NYU.

The interlocutory transfer order
Skoorka filed this complaint—one of several he has filed asserting similar
claims against Kean University and its employees—in the United States District
Court for the Southern District of New York. On July 18, 2014, United States
District Judge Gregory H. Woods transferred Skoorka’s case to this District.
(Dkt. No. 5) Judge Woods found that, because none of the parties and events in
this suit seemed to have any connection to New York, venue for the Title VII
claims was not proper in his District under 42 U.S.C.

§ 2000e-5(f)(3). In the

alternative, Judge Woods held that the claims would be transferred “[fjor the
convenience of the parties and witnesses, in the interest of justice” under 28
U.S.C.

§ 1404(a).

That transfer order is not appealable as a matter of right under 28 U.S.C.

§ 1291 because it is not a final decision of the district court.
a motion to
that an order granting
“It is entirely settled
is interlocutory in
transfer venue under [28 U.S.C. § 1 1404(a)
character and not immediately appealable under Section 1291.” 15
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal
Practice and Procedure § 3855, at 319 (3d ed. 2007).
...

...

...

Liberi v. Taitz, 425 F. App’x 132, (3d Cir. Mar. 28, 2011); see also In re Federal—
Mogul Global, Inc., 300 F.3d 368, 378 (3d Cir.2002). The specific grounds for
transfer are not critical to the appealability issue, and appeal is not authorized
by the collateral order doctrine:
“[O]rders granting or denying motions to transfer under 28 U.S.C.
§ 1404(a) or 28 U.S.C. § 1406(a) are not immediately appealable
under 28 U.S.C. § 1291 as collaterally final orders. It is irrelevant
for these purposes whether the motion to transfer is based on a
forum selection clause, the convenience of witnesses, or other
factors.” Nascone v. Spudnuts, Inc., 735 F.2d 763, 772—73 (3d Cir.
1984). See also McCreary Tire & Rubber Co. i,’. CEAT S.p.A., 501
F.2d 1032 (3d Cir. 1974) (“An order transferring an action pursuant
to 28 U.S.C. § 1404(a) or refusing to make such a transfer is
interlocutory and unappealable under § 1291.”).
Single Employer Welfare Ben. Plan Trust v. Datalink Electronics, Inc.,
372 F. App’x 294, 297 (3d Cir. Mar. 24, 2010).

Skoorka’s motion for leave to appeal the transfer order
Skoorka, though, has asked this Court to allow him leave to appeal the
transfer order. (Dkt. No. 7) Where a district judge enters an order that is not
otherwise appealable, federal law gives the judge the option of stating in writing
that he considers the issue worthy of an interlocutory appeal. 28 U.S.C.

§ 1292(b). To issue such a statement, the judge must be of the opinion that 1)
the order involves “a controlling question of law as to which there is substantial
ground for difference of opinion”; and 2) “that an immediate appeal from the
order may materially advance the ultimate termination of the litigation” 28

§ 1292(b). Both are required.

U.S.C.

Discussion
Neither of the Section 1292(b) factors is present here. I find no grounds
for a substantial difference of opinion as to the correctness of the district
court’s decision to transfer the case. Nor do I find that an immediate appeal
from the order would advance a resolution of this case. The motion for leave to
appeal will therefore be denied.
The correctness of the SDNY transfer order
I find little room for debate that transferring this case to this district was
proper.
Skoorka’s SDNY complaint is anchored by a single federal-law claim
under Title VII of the Civil Rights Act. Title VII provides that venue is proper in
any of three types of jurisdictions: 1) any judicial district in the State where the
unlawful employment practice is alleged to have been committed; 2) the judicial
district in which the employment records relevant to the unlawful employment
practice are maintained; or 3) the district in which the plaintiff would have
worked but for the alleged unlawful employment practice. Failing that, the
action may be brought (4) where the respondent has its principal office. 42
U.S.C.

§ 2000e-5(f)(3).
3

Under those statutory standards, venue may or may not have been
improper in New York, but it clearly is proper in New Jersey. Skoorka argues
that an alleged unlawful employment practice occurred in New York because
Kean’s scheduling practices, although they occurred here, interfered with his
teaching schedule at NYU. (See Mot., 2). I disagree; the unlawful employment
practice itself “is alleged to have been committed” by Kean in New Jersey. In
the alternative, Skoorka argues that venue is proper in New York because, but
for Kean’s scheduling practices, he would have worked (or worked additional
days) at New York University. See 42 U.S.C.

§ 2000e-5(f)(3) (Title VII venue in

“the judicial district in which the aggrieved person would have worked but for
the alleged unlawful employment practice”) I will assume without deciding that
such a claim could be venued in New York on that basis.’ That, however, does
not dispose of the issue.
True, a federal court shall dismiss or transfer a case when venue is

§ 1406. But it also may transfer a case to a superior
forum even when venue is permissible. See 28 U.S.C. § 1404. Thus a district

improper. See 28 u.s.c.

judge possesses the discretion to transfer a case to another district where
doing so serves “the convenience of parties and witnesses,” and “the interest of
justice.” 28 U.S.C.

§ 1404(a). And that is what Judge Woods did.

The convenience of parties and witnesses would not seem to be a close
call. True, the districts are adjoining. But all of the relevant events and actors—
including Skoorka himself—are located in and around Kean University, here in
2
New Jersey. Skoorka has made no showing that trying the case in New York
What the drafters no doubt had in mind was that a plaintiff, denied
employment or fired on a discriminatory basis, could sue that employer in the district
where the plaintiff would have worked but for the discrimination. Skoorka poses an
interesting variation: he alleges that discrimination by one employer, Kean, in New
Jersey is preventing him working for another employer, NYU, in New York, and that
therefore he may sue Kean in New York. One can imagine extreme variations on this
scenario: a plaintiff claiming that his New Jersey employer discriminatorily denied him
employment or training as a pipefitter, thereby disqualifying him for a job on an
Alaska pipeline, and suing the New Jersey employer in Alaska.
1

2
One party, the American Federation of Teachers, is located in Washington, D.C.
Without prejudging the matter, I note that the AFT was dismissed from a parallel

4

would be more convenient, and he has not rebutted the fairly obvious
proposition that a trial in New Jersey would be far more convenient for the
parties and witnesses.
With respect to the interests of justice, I must consider judicial economy.
The now-transferred SDNY complaint is very similar to a pending action in this
District that Skoorka filed in 2007 and refiled in 2009, 09-cv-3428 (D.N.J.).
The claims and parties appear to overlap almost entirely. Only the time frame
seems to have shifted. (The implication is that Skoorka believes the defendants
have persisted in the conduct for which he sued earlier.) In the pending,
earlier-filed DNJ action (No. 09-cv-3428), the procedural history and the
factual background are extensive and the filings are voluminous. It therefore
serves the interests of judicial efficiency, as well as the interests of the parties,
to have the district judge and the magistrate judge already familiar with the
matter handle this more recent incarnation of Skoorka’s claims.
Skoorka identifies only one reason that transferring venue was not in the
interests of justice. He says that “based on prior events, Plaintiff cannot obtain
an impartial trial in New Jersey.” (Mot., 3) There are no facts to support such a
claim. Skoorka has suffered some defeats, both in State and federal court, but
those adverse rulings do not reflect on the impartiality of any New Jersey court
or jury.
Conclusion
Accordingly, I will deny Skoorka’s request for leave to appeal the decision
to transfer venue. A separate order will issue.
June 5, 2015
Newark, New Jersey

Kevin McN lty
United States District Judge
action, 09-cv-3428 (D.N.J.). At any rate, AFT’s Washington location does not furnish
any basis for choosing between a New Jersey and a New York venue.
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