Wang v. Phoenix Satellite Televison US, Inc. et al
MEMORANDUM AND ORDER denying 32 Motion to Change Venue. For the foregoing reasons, Ms. Wang's motion to transfer (Docket # 32) is DENIED. (Signed by Judge P. Kevin Castel on 1/13/2014) (lmb)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC #: _ _ _-:-;;:--:-~
DATE FILED: /- 13 ~/1
13 Civ. 218 (PKC)
PHOENIX SATELLITE TELEVISION US, INC.,
PlaintiffLihuan Wang brings this employment discrimination action against
defendant Phoenix Satellite Television US, Inc. ("Phoenix"). Invoking this Court's diversity
jurisdiction, she asserts only state law claims pursuant to the New York State Human Rights
Law, N.Y. Exec. L. § 290 et ~ ("NYSHRL") and the New York City Human Rights Law,
N.Y. City Admin. Code § 8-101 et seq. ("NYCHRL"). Ms. Wang now moves to transfer the
case to the United States District Court for the District of Columbia pursuant to 28 U.S.c.
§ 1404(a). For the reasons stated below, the motion is denied.
On January 9,2013, Ms. Wang first filed suit against Phoenix and Zhengzhu Liu,
its former Washington D.C. bureau chief, alleging hostile work environment and failure to hire
claims. (Compl., Docket # 1.) At that time, Phoenix, a Delaware corporation, was
headquartered in Los Angeles and had bureaus in New York City and Washington D.C. (Id.
7,9.) Mr. Liu was a resident of the Commonwealth of Virginia. (Id.
In her complaint, Ms. Wang alleged that, during an unpaid intemship at Phoenix's
New York bureau, Mr. Liu took her to a hotel room in ManIlattan, New York, and attempted to
kiss her by force. (See id.
10, 19.) Subsequently, when Ms. Wang was in Washington D.C.,
she contacted Mr. Liu regarding employment. (Id.
21.) According to Ms. Wang, Mr. Liu
responded by inviting her to Atlantic City "to discuss job opportunities." (Id.) Ms. Wang further
alleged that after she rebuffed Mr. Liu's advances, he retaliated by refusing to provide her with
full-time employment at Phoenix's New York bureau. (See id.
On January 18, Ms. Wang amended her complaint and dropped all claims against
Mr. Liu. (Docket # 3.) In response to perceived pleading deficiencies outlined by Phoenix in a
March 12 motion to dismiss, Ms. Wang elected to file a Second Amended Complaint on March
29. (Docket # 15, 16, 19.) Phoenix subsequently refiled its motion to dismiss, which was fully
briefed on June 20. (Docket # 21-25.) On October 3, this Court dismissed Ms. Wang's hostile
work environment claims against Phoenix. (Docket # 26.) Ms. Wang requested leave to file this
motion two weeks later, on October 16. (Docket # 28.)
During the pendency of this action, current and former Phoenix employees, as
well as a former intern, brought independent claims against Phoenix in the United States District
Court for the District of Columbia under Title VII of the Civil Rights Act of 1964,42 U.S.C.
§ 2000e et seg., and the D.C. Human Rights Act, D.C. Code § 2-1401.01 et seg., stemming ii-om
Mr. Liu's alleged actions at the Washington D.C. bureau. Ren v. Phoenix Satellite Television
(U.S.), Inc., No. 13-1110 (CCK) (D.D.C July 19, 2013). The Ren plaintiffs are represented by
the same counsel as Ms. Wang and Ms. Wang referenced the experiences of two of the plaintiffs
in her initial complaint. (See id.; Compl.
Section 1404(a) provides that "[fJor 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." 28 U.S.C. § 1404(a). Thus, "[d]eciding a § 1404(a) motion to transfer venue
'requires a two-part inquiry: first, whether the action to be transfelTed might have been brought
in the transferee court; and second, whether considering the convenience of the parties and
witnesses, and the interest of justice, a transfer is appropriate.'" AGCS Marine Ins. Co. v.
Associated Gas & Oil Co" Ltd., 775 F. Supp. 2d 640, 645 (S.D.N.Y. 2011) (quoting Fuji Photo
Film Co., Ltd. v. Lexar Media Inc., 415 F. Supp. 2d 370, 373 (S.D.N.Y. 2006)).
1. Propriety ofthe Transferee Forum
An action "might have been brought" in another forum if venue would have been
proper there and the defendants would have been amenable to personal jurisdiction in the
transferee forum when the action was initiated. See Hoffman v. Blaski, 363 U.S. 335, 344
(1960). Jurisdiction and venue in the District of Columbia would be proper as to Phoenix
because it maintains a bureau in Washington D.C., and Mr. Liu, whose actions form the basis of
Phoenix's potential liability, was employed at the Washington D.C. bureau at all relevant times.
II. Factors Governing Transfer
The second inquiry is whether "the convenience of parties and witnesses" and
"the interest of justice" justify a transfer. 28 U.S.C. § 1404(a). "Among the factors to be
considered in determining whether to grant a motion to transfer venue are, inter alia: (1) the
plaintiffs choice of forum, (2) the convenience of witnesses, (3) the location of relevant
documents 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 & Gen. Ins. Co. v.
Lafarge N. Am" Inc., 599 F.3d 102, 112 (2d Cir. 2010) (citation and quotation marks omitted).
Other factors considered by district courts include "the forum's familiarity with the governing
law" and "trial efficiency and the interests of justice." Everlast World's Boxing Headquarters
Corp. v. Ringside, Inc., 928 F. Supp. 2d 735, 743 (S.D.N.Y 2013). The burden of demonstrating
the desirability of transfer lies with the moving party, who must "make a clear and convincing
showing that the balance of convenience favors [its] choice" of forum. Hubbell Inc. v. Pass &
Seymour, Inc., 883 F. Supp. 955, 962 (S.D.N.Y. 1995); see New York Marine & Oen.lns. Co.,
599 F.3d at 114 (noting that it is "appropriate that the district courts in our Circuit have
consistently applied the clear and convincing evidence standard in determining whether to
exercise discretion to grant a transfer motion.").
a. Plaintiffs Choice of Forum
A plaintiffs choice offorum is usually accorded "great weight." D.H. Blair &
Co., Inc. v. Oottdiener, 462 F.3d 95, 107 (2d Cir. 2006). However, when a motion to transfer is
brought by the plaintiff, "the usual presumptions as to plaintiff's choice of forum are not
appropriate .... " Anglo Am. Ins. Orp., P.L.C. v. CalFed, Inc., 916 F. Supp. 1324,1328
"[A] motion to transfer venue is not ordinarily granted at the request ofthe party
who chose the forum in the first place." Stroud Prods. & Enters., Inc. v. Castle Rock Entm't,
Inc., No. 07 Civ. 8638(HB), 2009 WL 2391676, at *2 (S.D.N.Y. Aug. 4, 2009) (internal
quotation marks and citations omitted). In this District, courts have required a plaintiff moving
to transfer under 28 U.S.c. § 1404 to demonstrate a "change in circumstances" after the action
was filed that warrants a venue change. Id. However, such a showing is not mandatory as
"[ d]istrict courts have broad discretion in making determinations of convenience under Section
1404(a) and notions of convenience and fairness are considered on a case-by-case basis." See
D.H. Blair & Co., Inc. 462 F.3d 95 at 106; Anglo Am. Ins. Orp., P.L.C., 916 F. Supp. at 1329;
see also Nipponkoa Ins. Co. v. Ceva Logistics, U.S., Inc., No. 11 Civ. 9040(SAS), 2012 WL
2550278, at *1 (S.D.N.Y. July 2,2012) (noting that a plaintiffs transfer motion may be granted
if it is "in the interests of justice").
Ms. Wang points to the filing ofRen, No. 13-1110 (CCK) (D.D.C July 19, 2013),
after this action conmlenced, as a change in circumstances favoring a change in venue. When a
plaintiff has an interest relating to a later-filed case, transfer may be appropriate. See Fairfax
Dental (Ir.) Ltd. v. S.J. Filhol Ltd., 645 F. Supp. 89,90,92 (E.D.N.Y. 1986) (finding that
common defenses of patent invalidity in separate actions brought by the same plaintiff weighed
in favor of transfer).
The District of Columbia action asserts claims under Title VII and the D.C.
Human Rights Act. Ms. Wang's action is brought under the NYSHRL and NYCHRL. The two
actions do not raise common issues oflaw, but may contain common questions of fact. As Ms.
Wang is not a party to the Ren action, and not in privity with any parties, any findings of fact in
that action would not be binding on her.
Because Ms. Wang's interests would not be harmed by any outcome in the Ren
action, and Ms. Wang initially filed suit in this District, this factor weighs against transfer.
b. Trial Efficiency and the Interests of Justice
When multiple claims are brought in different forums, there is a strong policy in
this Circuit favoring the litigation of related claims in the same tribunal in order to avoid
duplicitous litigation and inconsistent results. Wyndham Assocs. v. Bintliff, 398 F.2d 614,619
(2d Cir. 1968); K.M v. Maclaren USA, Inc., No. 10 Civ. 7942(LTS)(RLE), 2011 WL 1900137,
at *4 (S.D.N.Y. Apr. 7, 2011). Complete identity of all patiies is not a necessity, as long as the
suits involve common issues of law or fact. See Hilti Aktiengesellschaft v. Milwaukee Elec.
Tool Corp., No. 04CV629 (ARR)(ASC), 2004 WL 1812821, at *8 (E.D.N.Y. July 19, 2004);
Fairfax Dental (Ir.) Ltd., 645 F. Supp. at 92. In general, the first-filed suit will have priority over
the second, unless there are "special circumstances," or "the balance of convenience favors the
second-filed action." N.Y. Marine & Gen. Ins. Co., 599 F.3d at 112 (internal quotation marks
and citation omitted). "The 'balance of convenience' is determined by considering the same
factors considered with motions to transfer venue." Id. (internal quotation marks and citation
Here, there are some common questions of fact in the two actions, including Mr.
Liu's status as Phoenix's employee and the scope of his authority. Because Ms. Wang is not a
party to the Ren action, there is a possibility of inconsistent results between the two actions on
these issues. But the factual underpinnings are othelwise predominantly focused upon the
interactions between Mr. Liu and the individual plaintiffs. As such, trial efficiency somewhat
Though Ms. Wang characterizes the filing of the Ren action as a "change in
circumstances," she has long been on notice ofthe possible filing of the Ren action. In her
complaint, two ofthe plaintiffs in that action are mentioned by name as other alleged victims of
Mr. Liu and are represented by the same counsel. (See Compl.
27, 29.) Furthermore, Ms.
Wang's counsel filed the initial complaint in that action on July 19 and sought leave to file the
instant motion to transfer on October 16, almost tluee full months later. Even if there was a
change in circumstances warranting transfer on July 19, it does not necessarily follow that
transfer would still be wananted now.
Between July 19 and October 3, Phoenix's motion to dismiss was pending before
the Court. Because Ms. Wang waited for the Court to decide the motion, portions of which were
decided adversely to her, before requesting this venue transfer, the Court views the instant
motion as a belated attempt at securing a judge perceived to be more favorable to her claims-in
essence, judge shopping. Also, this Court has already acquired some familiarity with the action
tln'ough the process of amending the pleadings and ruling on the motion to dismiss. On this
basis, the Court concludes that the interests of justice would not be served by transferring this
action to the District of Columbia.
Thus, this factor weighs against transfer.
c. Convenience of Witnesses and Availability of Process to Compel
"The convenience of patiies and witnesses is considered the essential criteria
under the venue statute and the most significant factor." In re Nematron Corp. Secs. Litig., 30 F.
Supp. 2d 397, 400 (S.D.N.Y. 1998) (intemal quotation marks and citation omitted). "When a
patiy seeks the transfer on account of the convenience of witnesses under § 1404(a), he must
clearly specify the key witnesses to be called and must make a general statement of what their
testimony will cover." Factors Etc" Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978)
(abrogated on other grounds Qy Pirone v. Macmillan, Inc., 894 F.2d 579 (2d Cir. 1990)).
Including Phoenix's fanner bureau chief, Mr. Liu, Ms. Wang has identified six
potential non-party witnesses for whom the District of Columbia would be more convenient. Of
the six witnesses, three are current Phoenix employees and thus under its control. As a practical
matter, the employee-witnesses would be available in any venue in which Phoenix could be
properly sued. See Glass v. S & M NuTec, LLC, 456 F. Supp. 2d 498, 503-04 (S.D.N.Y. 2006).
Ofthe remaining three witnesses, only Mr. Liu would testify to the events giving rise to Ms.
Wang's claims. (See Wang Dec\. ~ 12.) The other witnesses would testify as to Mr. Liu's
behavior towards them, and not toward Ms. Wang herself. (Id.
As Mr. Liu's alleged actions form the basis for Phoenix's potential liability, he is
arguably a "key witness." Mr. Liu is not a current Phoenix employee and resides in the
Commonwealth of Virginia. (Compl. '1'18, 30.) As such, he may be outside this Court's
subpoena power, should his presence be required in this District. I (See Wang DecI.1I5.)
However, Mr. Liu was not a Phoenix employee when this action commenced, nor when he was
removed as a defendant when Ms. Wang first amended her complaint. (See CompI.1I30.)
Given that Mr. Liu's status as a non-patty witness was known before the
complaint was amended, and the other non-party witnesses would testify to ancillary matters,
this factor weighs slightly in favor of transfer.
d. The Location of Relevant Documents and Relative Ease of Access to
Sources of Proof
Neither party has identified any relevant documents and their locations.
Accordingly, this factor is neutral.
e. Convenience and Relative Means of the Patties
The Southern District of New York and the District of Columbia are equally
convenient for the parties. Phoenix has offices both in this District and the District of Columbia
and Ms. Wang resides abroad. Neither party has indicated that continuing the action in either
this Court, or the District of Columbia, would create financial hardship. Accordingly, this factor
Locus of Operative Facts
The locus of operative events in this case is neither wholly in New York, nor
wholly in the District of Columbia. Mr. Liu allegedly made inappropriate remarks to Ms. Wang
in a New York hotel room. (Second Amended Complaint '124.) Mr. Liu's subsequent
communication to Ms. Wang that no job would be available occurred in Washington, D.C.
I Mr. Liu may be compelled to appear for a deposition where he resides, is employed, or regularly conducts
business, or within 100 miles thereof. See Rule 45, Fed. R. Civ. P.
(Id. "29.) Ms. Wang's alleged injnry, namely her denial of ajob at Phoenix's New York
bureau, took place in New York. (See id.
Because a portion ofMr. Liu's allegedly wrongful conduct, as well as Ms.
Wang's injnry, occurred in New York, this factor weighs against transfer.
g. The Forum's Familiarity with the Governing Law
The parties do not dispute that the action is governed by New York law. The
District Court for the District of Columbia is capable of applying New York law and it does not
appear that the issues of law presented in this case are particularly complex or novel. That said,
it is also the case that this Court is fi'equently called upon to apply New York law and is familiar
with it. For that reason, the fact that Ms. Wang's claims are governed by New York law weighs
against transfer, although only slightly.
Everlast World's Boxing Headguatiers Corp.,
928 F. Supp. 2d at 747 (noting forum's familiarity with New York law favors keeping the case in
this District, but that the fact "merits little weight").
For the foregoing reasons, Ms. Wang's motion to transfer (Docket # 32) is
P. Kevin Castel
United States District Judge
Dated: New Y'),.1<, New York
January i ~I 2014
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