Burke v. State University of New York, Institute of Technology at Utica/Rome, et al

Filing 12

ORDER granting 6 Motion to Change Venue, and dismissing Plaintiff's claims against the State University of New York, Institute of Technology at Utica/Rome and Plaintiff's claims under the New York State Human Rights Law. Clerk to follow up. Signed by Hon. Michael A. Telesca on June 20, 2012. (MES) [Transferred from New York Western on 6/21/2012.]

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
JONATHAN BURKE,
Plaintiff,

12-CV-6099
DECISION
and ORDER

v.
STATE UNIVERSITY OF NEW YORK,
INSTITUTE OF TECHNOLOGY AT UTICA/ROME;
SHERBURNE-EARLVILLE CENTRAL SCHOOL DISTRICT;
SUPERINTENDENT GAYLE HELLER
Defendants.
________________________________________
INTRODUCTION

Plaintiff, Jonathan Burke (“Plaintiff”), brings this action
pursuant to 42 U.S.C. § 1983, alleging a claim for First Amendment
retaliation and a claim for the denial of equal protection, against
his

former

employer,

the

Sherburne-Earlville

Central

School

District (the “School District”), and Superintendent Gayle Heller
(“Heller”), (collectively, “Defendants”). Plaintiff also initially
brought a claim for discrimination under the New York State Human
Rights Law (“NYSHRL”) against Defendant Heller and a claim against
the State University of New York, Institute of Technology at
Utica/Rome (“SUNY IT”), but he now stipulates to the dismissal of
both his claim under the NYSHRL and his claim against SUNY IT.

Pl.

Resp. at pg. 21, Docket No. 9. Accordingly, Plaintiff’s claims
under the NYSHRL and against SUNY IT are dismissed.
The School District and Heller now move for a transfer of
venue to the United States District Court for the Northern District
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of

New

York

and,

in

the

alternative,

they

move

to

dismiss

Plaintiff’s claims pursuant to Rule 12(b)(1), Rule 12(b)(6) or Rule
56 of the Federal Rules of Civil Procedure.
Docket No. 6.

Def. Mem. of Law at 1,

Plaintiff has not responded to Defendants’ motion

for a change of venue, but opposes the motion to dismiss and/or for
summary judgment and cross-moves for additional time to conduct
discovery under Rule 56(d). Pl. Mem. of Law, Docket Nos. 9, 9-1.
For the reasons discussed herein, this case is transferred to the
United States District Court for the Northern District of New York.
In the interest of consistency in the administration of this case,
the Court will leave the determination of the motion to dismiss to
the Northen District of New York.
DISCUSSION
Defendants request a transfer of venue to the United States
District Court for the Northern District of New York pursuant to 28
U.S.C. § 1404.

Plaintiff has not responded to this request.

28 U.S.C. § 1404 provides, “[f]or 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.”

A district court may consider the

following factors when determining whether to grant a motion to
transfer venue: “(1) the plaintiff's choice of forum, (2) the
convenience of witnesses, (3) the location of relevant documents

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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, and (7) the relative means of the parties.” New York
Marine and General Ins. Co. v. Lafarge North America, 599 F.3d 102,
112 (2d Cir. 2010)(quoting D.H. Blair & Co., Inc. v. Gottdiener,
462

F.3d

95,

106-7)).

While

Plaintiff’s

choice

of

forum

is

generally entitled to substantial deference, if “the balance is
strongly

in

favor

of

the

defendant”

the

court

may,

in

its

discretion, determine that venue is more appropriate in another
district court. See Gross v. British Broadcasting Corp.,386 F.3d
224, 230 (2d Cir.2004).
Most of the relevant factors weigh in favor of transferring
this case to the Northern District of New York and the Court finds
that the Defendants have met their burden of establishing that the
factors favor transfer to that district.

First, while Plaintiff

chose to file his case in the Western District of New York,
Plaintiff currently resides in Chenango County, which is located in
the Northern District of New York.

The Defendant School District

is located in Sherburne, New York, in Chenango County and Defendant
Heller also resides in Chenango County.

SUNY IT, which is no

longer a defendant in this case, but which may employ individuals
who may be called as witnesses and is the location where some of

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the relevant facts took place, is located in Oneida County, New
York, also within the Northern District of New York.
The Defendants assert that it is unlikely that any witnesses
would be located outside of Chengango or Oneida Counties and all of
the relevant
counties.

events

took

place

in

either Chenango

or

Oneida

Plaintiff has neither responded to these assertions nor

identified any potential facts or witnesses which occurred or are
located, respectively, in the Western District of New York.

The

ability to compel unwilling witnesses is not at issue in this case
and the relative means of the parties appears to weigh in favor of
transfer, as a transfer to the Northern District of New York would
require less travel on the part of all of the parties.
Because Plaintiff has not opposed or in any way responded to
the Defendants’ motion for transfer, the Court assumes that it is
equally, if not more, convenient for the Plaintiff to prosecute
this case in the Northern District of New York.
because the

relevant

factors

weigh

in

favor

of

Accordingly,
granting

the

Defendants’ motion for transfer, it is hereby,
ORDERED, that this case is now transferred to the Northern
District of New York; and it is
FURTHER ORDERED, that SUNY IT is dismissed as a defendant in
this action, and the Clerk of the Court is directed to remove the
State University of New York, Institute of Technology at Utica/Rome
from the caption in this case; and it is

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FURTHER ORDERED, that Plaintiff’s New York State law claims
are dismissed.

ALL OF THE ABOVE IS SO ORDERED.
s/ Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
June 20, 2012

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