Dickerson et al v. Novartis Corporation et al

Filing 78

MEMORANDUM OPINION AND ORDER re: 64 MOTION to Sever , Transfer Venue and Stay Discovery of Plaintiff Dickerson's Claims filed by Alcon Laboratories, Inc.: For the reasons set forth above, Defendants' motion to sever th e claims brought by Elyse Dickerson and transfer venue of those claims to the U.S. District Court for the Northern District of Texas (Fort Worth Division) is GRANTED. The Clerk of Court is directed to terminate the motion pending at Dkt. No. 64. (Signed by Judge Gregory H. Woods on 4/21/2016) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
ELYSE DICKERSON, et al.,
:
:
Plaintiff, :
:
-v :
:
NOVARTIS CORPORATION and ALCON
:
LABORATORIES, INC.,
:
:
Defendant.
:
:
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: 4/21/2016

1:15-cv-1980-GHW
MEMORANDUM OPINION
AND ORDER

GREGORY H. WOODS, United States District Judge:
I.

INTRODUCTION
Plaintiff Elyse Dickerson, a former marketing director for defendant Alcon Laboratories,

Inc. (“Alcon”), alleges that her employer failed to compensate, promote, and provide the same
opportunities to her as it did to similarly situated male employees simply because of her gender. She
alleges that after she complained of the discriminatory treatment, her employer initiated a retaliatory
investigation in an effort to concoct a reason to terminate her employment, terminated her while she
was on medical leave, and then defamed her in news publications after she filed the present suit. In
the same complaint, several other named plaintiffs bring class and collective action claims alleging
that Defendants engaged in gender-based pay discrimination. Ms. Dickerson is not a class or
collective action representative.
Defendants seek to sever Ms. Dickerson’s individual claims from the class and collective
action claims, and to transfer her claims to the Northern District of Texas—where she resides, was
employed, complained of discrimination, filed her EEOC charge, and was terminated. For the
reasons outlined below, Defendants’ motion is GRANTED.

II.

BACKGROUND1
Ms. Dickerson, a resident of Fort Worth, Texas, worked for Alcon from March 2002 until

her employment was terminated on January 2, 2015. Am. Compl. ¶ 8, Dkt. No. 44. Throughout her
employment, Ms. Dickerson lived and worked in Fort Worth, where Alcon is also headquartered
and maintains its principal place of business. Pechal Decl. ¶¶ 4, 8, Dkt. No. 65. Alcon has operated
as a wholly-owned subsidiary of defendant Novartis Corporation (“Novartis”), a New York
corporation, since an April 2011 merger. Am. Compl. ¶¶ 22–23.
From January 2010 until her termination, Ms. Dickerson was the Global Marketing Director
for Alcon, managing one of the largest product portfolios for the company. Am. Compl. ¶¶ 27–28.
Indeed, Ms. Dickerson alleges that in 2014, she directly oversaw ten major brands with net sales of
$1.7 billion, which represented more than 15% of Alcon’s business. Id. ¶ 28. At the time that Ms.
Dickerson became Global Marketing Director, she was the first and only female Global Market
Director at Alcon. Id. ¶ 34.
In spite of her distinguished performance and accomplishments at Alcon, Ms. Dickerson
alleges that she was subjected to gender-based pay discrimination and disparate treatment during her
employment. See id. ¶ 30. Specifically, she alleges that she was compensated at a lower rate than
similarly situated male employees—for example, her salary was lower than any male marketing
director in 2011—and that she was denied career-enhancing opportunities, such as overseas
assignments, that similarly situated male employees received. Id. ¶¶ 31–39. Ms. Dickerson also
alleges that that she was denied promotions and compensation increases, despite commensurate

Unless otherwise noted, the facts are taken from the amended complaint, and are accepted as true for the
purposes of this motion. See Cerussi v. Union Coll., 144 F. Supp. 2d 265, 266 (S.D.N.Y. 2001) (accepting as true
facts alleged by plaintiff or otherwise undisputed in deciding motion to transfer). Moreover, “[i]n deciding a
motion to transfer, a court may consider material outside of the pleadings.” Mohsen v. Morgan Stanley & Co.
Inc., No. 11-cv-6751 (PGG), 2013 WL 5312525, at *3 (S.D.N.Y. Sept. 23, 2013) (collecting cases).
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increases in her responsibilities, and given lower performance ratings than male employees because
the male evaluators did not “see the leader” in Ms. Dickerson. Id. ¶¶ 36–37, 42.
Ms. Dickerson became a vocal opponent of what she viewed as her employer’s
discriminatory practices, and complained repeatedly of discriminatory treatment. Id. ¶¶ 40–44. In
response to her outspoken criticism, she alleges, her employer gave her negative performance
ratings, froze her salary, failed to award her hundreds of thousands of dollars in long-term incentive
compensation, and declined to consider her for new job assignments. Id. ¶ 45. Thereafter, on
August 12, 2014, Ms. Dickerson filed a charge of discrimination with the Texas Workforce
Commission’s Civil Rights Division and the Dallas District Office for the United States Equal
Employment Opportunity Commission. Id. ¶ 46; Charge of Discrimination, Dkt. 69-4.
In response to her filing the EEOC charge, Ms. Dickerson alleges that her employer
launched a retaliatory “sham investigation,” in an effort to contrive a reason to terminate her
employment. Am. Compl. ¶ 47. On January 2, 2015, five months after she filed the EEOC charge
and while she was on medical leave, Ms. Dickerson alleges that she was terminated in retaliation for
her complaints of gender discrimination. Id. ¶ 50. Ms. Dickerson also alleges that a majority of her
employee stock grants, worth more than $750,000, were scheduled to vest in just over two weeks
from the date of her termination. Id.
On March 17, 2015, the present suit was filed. In the complaint, Ms. Dickerson brought
individual claims alleging pay discrimination, unlawful discharge, and retaliation under Title VII, 42
U.S.C. §§ 2000e, et seq. In addition, Ms. Dickerson’s former co-worker, Dr. Susan Orr, brought
individual claims under Title VII, as well as individual and collective action claims under the Equal
Pay Act, 29 U.S.C. §§ 206 et seq. “(EPA”). Ms. Dickerson was not seeking to serve as a collective
action representative in the complaint.

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During the course of the next year, the parties primarily engaged in private settlement
discussions and mediation. The Court had little involvement with the case during that time, aside
from granting the parties’ repeated requests for extensions of time to file an amended complaint and
to adjourn any initial pretrial conference. See, e.g., Dkt. Nos. 20, 24, 29, 31.
An amended complaint was filed on December 28, 2015. In addition to the previously
asserted EPA collective action claims, the amended complaint includes class action allegations for
Title VII claims of discrimination in pay, promotion, and assignments, and also adds a number of
named plaintiffs as class and/or collective action representatives. Ms. Dickerson is not a class or
collective action representative, but maintains her individual claims in the same suit. In addition to
the previously asserted claims, Ms. Dickerson added individual claims for violations of the EPA and
the Family and Medical Leave Act (“FMLA”). Moreover, Ms. Dickerson alleges that subsequent to
her bringing suit, Alcon and Novartis made defamatory statements regarding the circumstances of
her termination—for example, by stating that she was terminated for serious violations of internal
policies, which she contends was pretext for retaliation. Am. Compl. ¶¶ 51–61. Those statements
were published in a number of news publications, including the Wall Street Journal and Fort Worth
Star-Telegram. Id. ¶¶ 53, 55. Accordingly, Ms. Dickerson includes several claims for defamation,
slander, libel, and defamation per se in the amended complaint.
In conjunction with the filing of the amended complaint, Plaintiffs filed a motion for
preliminary approval of settlement of the class and collective action claims. Dkt. 36. The parties
thereafter informed the Court that, although they were able to reach agreement on the terms of a
settlement for the proposed class and collective action claims, they were not able to reach agreement
with respect to Ms. Dickerson’s individual claims. Dkt. No. 39. Accordingly, the parties submitted
a proposed case management plan and scheduling order, proposing a discovery schedule for what
the parties described as “the continuing claims” of Ms. Dickerson alone, as distinct from the settling
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class and collective action claims. Dkt. No. 40. The Court held an initial pretrial conference on
January 11, 2016, and entered a case management plan and scheduling order governing Ms.
Dickerson’s individual claims that same day. Dkt. No. 52.
During the initial pretrial conference, Alcon indicated that it intended to file a motion to
sever Ms. Dickerson’s individual claims from the other plaintiffs’ class and collective action claims,
and to transfer venue of her individual claims to the Northern District of Texas, where Ms.
Dickerson resides and Alcon is headquartered. Alcon filed the motion to sever and transfer on
March 7, 2016, Dkt. No. 64, and Novartis joined in the motion that same day, Dkt. No. 66. The
motion was fully briefed as of March 28, 2016.
III.

SEVERANCE
A. Legal Standard
Rule 21 of the Federal Rules of Civil Procedure provides that a court may “sever any claim

against a party.” Fed R. Civ. P. 21. In resolving a motion for severance, courts consider:
“(1) whether the claims arise out of the same transaction or occurrence; (2) whether the claims
present some common questions of law or fact; (3) whether settlement of the claims or judicial
economy would be facilitated; (4) whether prejudice would be avoided if severance were granted;
and (5) whether different witnesses and documentary proof are required for the separate claims.” N.
Jersey Media Grp. Inc. v. Fox News Network, LLC, 312 F.R.D. 111, 114 (S.D.N.Y. 2015) (quoting Oram
v. SoulCycle LLC, 979 F. Supp. 2d 498, 502–03 (S.D.N.Y. 2013)). “Severance requires the presence
of only one of these conditions,” although courts “view severance as a procedural device to be
employed only in exceptional circumstances.” Oram, 979 F. Supp. 2d at 503 (internal quotation
marks and citations omitted).
As the moving parties, Defendants “bear[ ] the burden of demonstrating that ‘severance is
required to avoid prejudice or confusion and to promote the ends of justice.’” N. Jersey Media, 312
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F.R.D. at 114 (quoting Agnesini v. Doctor’s Assoc., Inc., 275 F.R.D. 456, 458 (S.D.N.Y. 2011)). “The
decision whether to grant a severance motion is committed to the sound discretion of the trial
court.” New York v. Hendrickson Bros., 840 F.2d 1065, 1082 (2d Cir. 1988).
The Court finds that Defendants have met their burden and that severance is appropriate.
For all practical purposes, Ms. Dickerson’s claims are already functionally proceeding as a separate
case. Ms. Dickerson is not a class or collective action representative, and her “continuing claims”
are proceeding on an entirely separate track from the class and collective action claims. A case
management plan and scheduling order has been entered, and the parties have begun discovery, with
respect to Ms. Dickerson’s individual claims alone. The class and collective action claims, in
contrast, are proceeding towards a potential settlement agreed to by the parties, albeit one that has
not been approved by the Court. Thus, any purported efficiency in maintaining Ms. Dickerson’s
claims in the same suit as the class and collective action claims is largely illusory. See Erausquin v.
Notz, Stucki Mgmt. (Bermuda) Ltd., 806 F. Supp. 2d 712, 721 (S.D.N.Y. 2011) (even assuming that
claims at issue arise out of same transaction and present common issues of fact and law, finding that
“Plaintiffs’ arguments with respect to the severance factors are largely illusory” because “resolution
of these issues as to [Defendant] will likely never be required”).
Turning to the first and second factors, Ms. Dickerson’s pay discrimination claims arguably
arise from the same transaction or occurrence as the proposed class and collective pay
discrimination claims, and may involve some common questions of fact or law. See Oram, 979 F.
Supp. 2d at 504 (“[T]he same transaction or occurrence factor routinely has been found to exist
where employee plaintiffs with varying factual circumstances allege the common denominator of a
policy or practice.”) (quoting Gerace v. Cliffstar Corp., No. 05-cv-65S, 2009 WL 5042621, at *1
(W.D.N.Y. Dec. 15, 2009)). Nevertheless, the majority of Ms. Dickerson’s allegations involve
distinct facts and legal claims unique to her alone. Indeed, Ms. Dickerson brings claims for unlawful
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termination and retaliation—claims expressly excluded from the scope of the release in the proposed
class and collective action settlement, see Proposed Settlement Agreement § 10.3, Dkt. No. 38-1—as
well as FMLA and defamation claims that are unrelated to the claims of the proposed class and
collective actions. Although Ms. Dickerson also alleges individual pay discrimination claims, the
Court is not required “to deny Defendants’ severance motion merely because there exist some
common question of law and fact.” Erausquin, 806 F. Supp. 2d at 722.
Moreover, given that the majority of Ms. Dickerson’s allegations are unique to her alone, her
individual claims will necessarily involve substantially different witnesses and evidence from the class
and collective action claims. For instance, witnesses and evidence regarding Ms. Dickerson’s
individual performance and her outspoken complaints, the basis for the investigation and resulting
termination, the circumstances regarding her medical leave, and the allegedly defamatory statements,
will require separate proof from the largely statistical evidence that has been offered in support of
the motion for preliminary approval of settlement of the class and collective action claims. 2 Thus,
there is little to gain in judicial economy from maintaining Ms. Dickerson’s individual claims
together with the class and collective action claims, which, as noted above, are proceeding as
functionally separate cases. See Medicare Beneficiaries’ Def. Fund v. Empire Blue Cross Blue Shield, 938 F.
Supp. 1131, 1147 (E.D.N.Y. 1996) (“[W]here parties make both class claims and individual damage
claims, the court has the discretion to make appropriate orders such as severance, when necessary.”)
(citing Green v. Wolf Corp., 406 F. 2d 291, 301 (2d Cir. 1968)); see also Roberts v. First Fin. Planners, Inc.,
No. 05-cv-38-D-D, 2008 WL 4283366, at *2 (N.D. Miss. Sept. 18, 2008) (finding that although
plaintiffs’ individual claims for relief “do arise from one transaction or occurrence . . . [p]rosecuting

There is little discernable overlap in the amended complaint between the facts alleged in support of Ms.
Dickerson’s individual claims and the sparse facts alleged in support of the class and collective action
claims—the latter of which are alleged in separate sections of the complaint.
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the individual claims along with the class action claims is inappropriate and will do nothing more
than complicate the class action litigation.”).
The Court also finds that granting severance would not materially prejudice any party.
Although Plaintiffs assert that the case has proceeded as a single action for over a year and that
requiring that they change gear at this juncture would cause undue prejudice, the Court disagrees.
The litigation has effectively proceeded as two distinct actions on separate tracks, and, although this
matter was commenced over a year ago, the parties spent the vast majority of that time in settlement
discussions with little involvement of the Court. Given the distinct factual allegations and legal
claims, severance of Ms. Dickerson’s claims “would reduce the potential for prejudice that could
arise from confusion of the factual issues and legal claims made by the plaintiffs.” Benedith v.
Malverne Union Free Sch. Dist., 38 F. Supp. 3d 286, 339 (E.D.N.Y. 2014) (internal quotation marks and
citation omitted). 3
Finally, severance would facilitate transfer, which the Court also finds appropriate, as
addressed below. See Wyndham Associates v. Bintliff, 398 F.2d 614, 618 (2d Cir. 1968) (courts may
sever claims for the purpose of permitting transfer “where the administration of justice would be
materially advanced by severance and transfer”); see also 7 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1689 (3d ed.) (“Even when venue is proper as to all defendants, the
court may sever a claim against a party and transfer it to a more convenient forum . . . .”). Thus,

Plaintiffs also contend that, although Ms. Dickerson is not a class representative, all of the named plaintiffs
bringing Title VII claims in this action are “piggybacking” off of the class charge that she filed, and thus
would be prejudiced by severance. “The Second Circuit has adopted the ‘single filing rule’—also known as
‘piggybacking’—‘which provides that where one plaintiff has filed a timely EEOC complaint, other non-filing
plaintiffs may join in the action if their individual claims arise out of similar discriminatory treatment in the
same time frame.’” Barrett v. Forest Labs., Inc., 39 F. Supp. 3d 407, 454 (S.D.N.Y. 2014) (quoting Snell v. Suffolk
Cnty., 782 F.2d 1094, 1100 (2d Cir. 1986)). Contrary to Plaintiffs’ assertion, each of the named plaintiffs
asserting Title VII claims filed their own EEOC charge. Plaintiffs fail to articulate how they are
“piggybacking” off of Ms. Dickerson’s charge—and more importantly, fail to identify the prejudice that
would result from severance. See Dkt. No. 54-4.
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taking all of the above-referenced factors into account, the Court finds that severance of Ms.
Dickerson’s individual claims is appropriate.
IV.

TRANSFER
A. Legal Standard
Defendants also seek to transfer Ms. Dickerson’s claims to the Northern District of Texas

(Fort Worth Division), where she resides. Section 1404(a) of Title 28 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 . . . .” 28 U.S.C. § 1404(a).
“Thus, § 1404(a) proposes a two-part test. First, the transferee district must be one where
jurisdiction over the defendant could have been obtained at the time suit was brought, regardless of
defendant’s consent. Second, the transfer must be in the interest of justice and convenience of the
parties and witnesses.” In re CenturyLink, Inc. Sec. Litig., No. 13-cv-3839 (LTS), 2014 WL 1089116, at
*1 (S.D.N.Y. Mar. 18, 2014) (ellipses omitted) (quoting Whitehaus Collection v. Barclay Products, Ltd.,
No. 11-cv-217, 2011 WL 4036097 (S.D.N.Y. Aug. 29, 2011)).
The parties do not dispute that Ms. Dickerson’s claims could have been brought in the
Northern District of Texas. Having satisfied that threshold inquiry, the Court must evaluate the
following factors to determine whether to grant a motion to transfer venue:
(1) the convenience of the witnesses; (2) the convenience of the parties; (3) the
location of relevant documents and the relative ease of access to sources of proof;
(4) the locus of operative facts; (5) the availability of process to compel the attendance
of unwilling witnesses; (6) the relative means of the parties; (7) the forum’s familiarity
with the governing law; (8) the weight accorded the plaintiff’s choice of forum; and
(9) trial efficiency and the interests of justice.
Steck v. Santander Consumer USA Holdings Inc., No. 14-cv-6942 (JPO), 2015 WL 3767445, at *2
(S.D.N.Y. June 17, 2015) (quoting Ritchie Capital Mgmt., L.L.C. v. U.S. Bank Nat. Ass’n, No. 14-cv8513 (PAE), 2015 WL 1611391, at *1 (S.D.N.Y. Apr. 10, 2015)).

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The list of factors is not exhaustive, Pausch Med. GmbH v. Pausch LLC, No. 14-cv-1945
(PAC), 2015 WL 783365, at *1 (S.D.N.Y. Feb. 24, 2015), and “[t]here is no rigid formula for
balancing these factors and no single one of them is determinative,” Citigroup Inc. v. City Holding Co.,
97 F. Supp. 2d 549, 561 (S.D.N.Y. 2000). Rather, “weighing the balance is essentially an equitable
task left to the Court’s discretion.” Id. (internal quotation marks and citation omitted). The Court,
moreover, has “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.” D.H. Blair & Co.
v. Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006).
“[T]he party requesting transfer carries the burden of making out a strong case for transfer,”
and district courts “have consistently applied the clear and convincing evidence standard in
determining whether to exercise discretion to grant a transfer motion.” New York Marine & Gen. Ins.
Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 114 (2d Cir. 2010) (internal quotation marks and citation
omitted).
A. The Convenience of the Witnesses and the Availability of Process to Compel
Attendance of Unwilling Witnesses
“Courts typically regard the convenience of witnesses as the most important factor in
considering a § 1404(a) motion to transfer.” Jackson v. Avis Rent A Car Sys., LLC, No. 14-cv-1658
(LLS), 2015 WL 1004299, at *3 (S.D.N.Y. Mar. 6, 2015) (quoting Herbert Ltd. P’ship v. Elec. Arts Inc.,
325 F. Supp. 2d 282, 286 (S.D.N.Y. 2004)). In conducting this analysis, the Court “weighs more
heavily the convenience of non-party witnesses than party witnesses.” McGraw-Hill Companies Inc. v.
Jones, No. 12-cv-7085 (AJN), 2014 WL 988607, at *7 (S.D.N.Y. Mar. 12, 2014).
The party moving for transfer “must provide the Court with a detailed list of probable
witnesses who will be inconvenienced if required to testify in the current forum.” Kiss My Face Corp.
v. Bunting, No. 02-cv-2645 (RCC), 2003 WL 22244587, at *2 (S.D.N.Y. Sept. 30, 2003). The Court
“does not merely tally the number of witnesses who reside in the current forum in comparison to
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the number located in the proposed transferee forum”; but rather “must qualitatively evaluate the
materiality of the testimony that the witnesses may provide.” Herbert, 325 F. Supp. 2d at 286.
In support of the motion to transfer, Alcon submitted a declaration from Cindy Pechal, the
head of Alcon’s human resources department, describing the key witnesses who would be
inconvenienced by the current forum. The list of witnesses include current Alcon employees and
one former employee, responsible for: supervising Ms. Dickerson; investigating her allegations of
gender discrimination; attending meetings where her negative performance evaluations were
determined; investigating the allegations that resulted in her termination; participating in the meeting
that led to her termination; and employees familiar with company’s compensation, benefits, and
promotion policies. See Pechal Decl. ¶¶ 9–19. Each of those individuals resides in Texas. See id.
Plaintiff argues that the convenience of witnesses does not favor transfer because Novartis
identified twenty-four witnesses in its initial disclosures “who reside or work in the New York City
metropolitan area.” See Harwin Decl. ¶ 16, Dkt. No. 69-1. Plaintiff does not explain the anticipated
testimony of the witnesses, but nevertheless asserts that three of the individuals “may have
information pertaining to Ms. Dickerson’s retaliation claim,” and that at least four of the individuals
“may have information pertaining to Ms. Dickerson’s defamation claims.” Id. ¶ 17. On that basis,
Plaintiff argues that the total number of potential witnesses that would be inconvenienced by
transfer to the Northern District of Texas is greater than those that would be inconvenienced by a
New York forum.
Plaintiff’s argument fails for several reasons. First, as noted above, the Court does not
“merely tally” the number of witnesses that reside in each forum, but rather must “qualitatively
evaluate the materiality of the testimony” from each of the witnesses. Herbert, 325 F. Supp. 2d at
286; see also 15 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3851 (3d ed.)
(explaining that courts “have been careful not to let a motion for transfer become ‘a battle of
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numbers’”). Although the Novartis employees may have information that is relevant to Ms.
Dickerson’s claims, Plaintiff fails to provide any description of the anticipated testimony. Thus, the
Court cannot discern if any of the witnesses would provide material testimony. 4 See Pace v. Quintanilla,
No. 13-cv-91 (RJS), 2013 WL 5405563, at *3 (S.D.N.Y. Sept. 23, 2013) (Because “Plaintiffs have not
discussed the potential testimony of the [anticipated witnesses] . . . there is no basis on which the
Court may infer the materiality of their testimony.”). In contrast, the witnesses identified by
Alcon—supervisors, investigators, and others that worked with Ms. Dickerson and were directly
involved in the facts alleged in the complaint—can be expected to provide material testimony.
Moreover, Novartis joined in Alcon’s motion to transfer, and there has been no representation that
any Novartis employees would be unwilling or unable to testify in the transferee forum.
Plaintiff also identifies two sets of non-party witnesses that she asserts would be
inconvenienced by a transfer, and would be outside of the subpoena powers of the Northern
District of Texas. “The availability of process to compel the testimony of important witnesses is an
important consideration in transfer motions.” Martignago v. Merrill Lynch & Co., No. 11-cv-3923
(PGG), 2012 WL 112246, at *8 (S.D.N.Y. Jan. 12, 2012) (quoting Billing v. Commerce One, Inc., 186 F.
Supp. 2d 375, 378 (S.D.N.Y. 2002)). Rule 45 of provides that a district court may command
testimony or production of documents “within 100 miles of where the person resides, is employed,
or regularly transacts business in person[.]” Fed. R. Civ. P. 45(c). “The weight given this factor
must, however, depend on an assessment of the availability of alternative procedures for preserving
those witnesses’ testimony, the importance of having them testify live and the importance of other

During a pre-motion conference, counsel for Novartis represented that, aside from one 30(b)(6) witness
who could explain the shared human resource services that it provides, no Novartis witness could provide
material testimony regarding Plaintiff’s discrimination claims. February 22, 2016 Hearing Tr. 6:18–7:10, Dkt.
No. 69-2.
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witnesses, whose live appearance may be prevented by a transfer.” Kelly v. MD Buyline, Inc., 2 F.
Supp. 2d 420, 442 (S.D.N.Y. 1998).
The first set of witnesses include a former supervisor, Judy Robertson, and former coworker and current plaintiff, Dr. Orr. Both Ms. Robertson and Dr. Orr reside in Pennsylvania.
Harwin Dec. ¶ 18. Although Ms. Dickerson’s former supervisor could be expected to provide
testimony material to her claims, the materiality of Dr. Orr’s testimony is not apparent—Plaintiff
simply states that she would offer testimony regarding “Ms. Dickerson’s discrimination and
defamation claims.” Id. In any event, both Ms. Robertson and Dr. Orr reside outside of the
Southern District of New York, and typically “district courts have given little, if any, weight to the
convenience of witnesses who reside in neither the transferor nor transferee forum.” Elec. Workers
Pension Fund, Local 103, I.B.E.W. v. Nuvelo, Inc., No. 07-cv-1229 (HB), 2007 WL 2068107, at *4
(S.D.N.Y. July 20, 2007).
The other set of non-party witnesses include two former owners and the current owner of
Ethis Communications, Inc., all of whom reside in the Southern District of New York. Harwin
Decl. ¶ 18. Plaintiff does not explain the anticipated testimony of those witnesses—or explain
Ethis’s relevance to the case at all—other than to state that they “have important information
relating to . . . Plaintiff’s retaliation and wrongful termination discharge.” Id. In reply, Defendants
clarify that Ethis is a third-party vendor to whom Ms. Dickerson was accused of approving
improper payments, which was the purported basis for Alcon’s investigation and ultimate
termination of Ms. Dickerson. See Def.’s Reply Br. 7, Dkt. No. 72.
Because Plaintiff fails to describe the proposed testimony of the Ethis witnesses, the Court
assigns little weight to the potential unavailability of the witnesses. Even assuming the materiality of
the Ethis witnesses’ testimony, Plaintiff fails to explain the importance of having the witnesses
testify in person, rather than through an alternative means. “[E]ven if a party’s witnesses do refuse
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to testify, deposition testimony is an acceptable alternative.” Martignago, 2012 WL 112246, at *8
(brackets omitted) (quoting Farberware Licensing Co. LLC v. Meyer Mktg. Co., No. 09-cv-2570(HB),
2009 WL 1357956, at *2 (S.D.N.Y. May 14, 2009)); see also Jacobsen v. Dhundale, No. 15-cv-6677
(KBF), 2016 WL 94256, at *2 n.2 (S.D.N.Y. Jan. 7, 2016) (assigning “little or no weight” to
argument that transfer would put witnesses outside of 100-mile subpoena zone of transferee court
where there was “no information as to whether these witnesses . . . could submit videotaped
depositions for trial”); Caribbean Wholesales & Serv. Corp. v. US JVC Corp., No. 93-cv-8197 (PKL),
1996 WL 140251, at *6 (S.D.N.Y. Mar. 27, 1996) (“Even assuming the witnesses’ testimony is of
value . . . [plaintiff] has failed to show why presentation of their testimony through deposition would
be inadequate.”); Longo v. Wal-Mart Stores, Inc., 79 F. Supp. 2d 169, 172 (E.D.N.Y. 1999) (granting
motion to transfer where “Plaintiff can effectively place the testimony of her New York physicians
before an Arizona jury by either a video deposition or live video testimony”). Plaintiff does not
suggest that the Ethis witnesses’ testimony could not be presented in some form at trial, such as by
videotaped depositions.
Evaluating both the number of witnesses that would be inconvenienced and the materiality
of the anticipated testimony, as well as the availability of process to compel testimony, the Court
finds that these factors weigh in favor of transfer.
B. The Convenience of the Parties
“The convenience of the parties favors transfer when transfer would increase convenience
to the moving party without generally increasing the inconvenience to the non-movant.” Liberty
Mut. Ins. Co. v. Fairbanks Co., 17 F. Supp. 3d 385, 399 (S.D.N.Y. 2014). Here, Ms. Dickerson resides
in, and Alcon has its principle place of business in, the Northern District of Texas. The
convenience to the moving parties is arguably lessened by the fact that Novartis has corporate

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offices in the Southern District of New York, but Novartis has nevertheless joined Alcon’s motion
to transfer, thereby expressing that it will not be inconvenienced by the proposed transfer.
Plaintiff primarily contends that transfer to her home forum would cause substantial
inconvenience to her because her counsel, who have offices in New York, would be required to
travel or retain local counsel. Despite Plaintiff’s contention to the contrary, “the convenience of
counsel is not of particular importance.” GlaxoSmithKline Biologicals, S.A. v. Hospira Worldwide, Inc.,
No. 13-cv-1395 (PKC), 2013 WL 2244315, at *3 (S.D.N.Y. May 21, 2013); see also Olympia Grp., Inc. v.
Cooper Indus., Inc., No. 00-cv-7367 (MBM), 2001 WL 506219, at *2 (S.D.N.Y. May 14, 2001) (“[T]he
convenience of the parties’ lawyers is not relevant to the decision whether to transfer.”). Moreover,
the Court observes that Mr. Sanford, one of Plaintiff’s principal counsel who has appeared before
the Court, is based in the District of Columbia, not the Southern District of New York. See Motion
to Appear Pro Hac Vice, Dkt. No. 5.
Because transfer to the Northern District of Texas would increase convenience to the
parties, the Court finds that this factor weighs slightly in favor of transfer.
C. The Location of Relevant Documents and the Relative Ease of Access to
Sources of Proof
Defendants contend that most of the relevant documents in this case—personnel files,
performance evaluations, benefit plans, and compensation records—are located at Alcon’s
headquarters in the Northern District of Texas. Plaintiff, on the other hand, contends that she has
given the documents in her possession to her counsel, who have brought them to the Southern
District of New York. Moreover, Plaintiff argues that Defendants maintain some relevant
employment records in suburban New Jersey, and that, in any event, the transfer of Alcon’s
documents from Texas to New York would not impose a substantial burden.
Because the majority of relevant documents are likely to be located in Alcon’s headquarters
in the Northern District of Texas, the Court finds that this factor weighs in favor of transfer.
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Nevertheless, because “this factor is entitled to relatively little weight in the modern era of faxing,
scanning, and emailing documents,” McGraw-Hill Companies, 2014 WL 988607, at *9 (internal
quotation marks omitted), the Court assigns little weight to this factor.
D. The Locus of Operative Facts
“The location of operative facts is a primary factor in determining a § 1404(a) motion to
transfer.” Rosen v. Ritz-Carlton Hotel Co. LLC, No. 14-cv-1385 (RJS), 2015 WL 64736, at *4
(S.D.N.Y. Jan. 5, 2015) (quoting Whitehaus, 2011 WL 4036097, at *2). “To determine the locus of
operative facts, a court must look to the site of the events from which the claim arises.” Ivy Soc’y
Sports Grp., LLC v. Baloncesto Superior Nacional, No. 08-cv-8106 (PGG), 2009 WL 2252116, at *6
(S.D.N.Y. July 28, 2009) (quoting AVEMCO Ins. Co. v. GSV Holding Corp., No. 96-cv-8323 (LAP),
1997 WL 566149, at *6 (S.D.N.Y. Sept 11, 1997)).
Here, the Court finds that the operative events giving rise to Plaintiff’s allegations occurred
in the Northern District of Texas—that is where she was employed; where she complained of pay
discrimination; where she was denied promotions and pay raises; where she was given negative
performance evaluations; where she took medical leave; where she was investigated; and where she
was ultimately terminated.
Plaintiff primarily argues that the Southern District of New York is the relevant locus for
two reasons. First, Plaintiff contends that her pay discrimination claims originate in the Southern
District of New York because that is where Novartis, Alcon’s corporate parent, maintains its
corporate offices. In cases alleging that discriminatory employment practices were “coordinated
from the corporate headquarters,” courts have found that the locus of operative facts is the
employer’s corporate headquarters. See Jones v. Walgreen Co., 463 F. Supp. 2d 267, 278 (D. Conn.
2006); but see Bukhari v. Deloitte & Touche LLP, 12-cv-4290, 2012 WL 5904815, at *5 (S.D.N.Y. Nov.
26, 2012) (explaining that in wage-and-hour disputes, “the locus of operative facts is the location of
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the alleged violations . . . not the corporate headquarters” where the allegedly unlawful practices
were formulated). Because Plaintiff alleges that “Novartis establishes common employment policies,
practices, and procedures” for Alcon, Am. Compl. ¶ 25, she concludes that Novartis’s New York
offices are the relevant locus of the pay discrimination claims.
Plaintiff’s argument is unavailing for several reasons. Most critically, although Plaintiff
alleges that Novartis established some policies for Alcon, she fails to allege that Novartis established
or implemented any discriminatory policies—let alone any discriminatory policies that affected
Plaintiff. 5 In contrast, Alcon submitted a sworn declaration that “[t]he personnel, compensation,
and employment decisions of which Ms. Dickerson complaints . . . were formulated and
implemented solely by employees of Alcon.” Pechal Dec. ¶ 22. Nor is it apparent that any of
Novartis’s employment policies, discriminatory or otherwise, were formulated in the Southern
District of New York. Plaintiff acknowledges that Novartis has offices “in Manhattan and in East
Hanover, New Jersey,” Harwin Decl. ¶ 20, but fails to allege that any employment policies were
established in the Manhattan office, rather than in the New Jersey office. During a pre-motion
conference, moreover, counsel for Novartis represented that the Novartis entity located in New
Jersey is responsible for “human resource type services,” rather than the New York office. February
22, 2016 Hearing Tr. 6:5–17. On the record before the Court, there is, therefore, no evident
material connection between Plaintiff’s pay discrimination claims and the current forum.
Plaintiff also contends that the operative events giving rise to her defamation claims
occurred in the Southern District of New York because Novartis made defamatory statements from
its Manhattan offices to the Wall Street Journal. Plaintiff’s argument misses the mark. “[I]n a

While Plaintiff’s counsel baldly asserts that “Novartis is responsible for all the employment policies being
challenged in this action,” Pls.’ Opp’n Br. at 2, Dkt. No. 69, the Court can find no facts alleged in the
complaint or in any sworn statements submitted in connection with the present motion that support that
contention.

5

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defamation case where the statements at issue are published nationwide ‘the tort essentially lacks a
locus, but rather injures plaintiff everywhere at once.’” Test Masters Educ. Servs., Inc. v. NYP Holdings,
Inc., No. 06-cv-11407 (BSJ), 2007 WL 4820968, at *4 (S.D.N.Y. Sept. 18, 2007) (quoting Condit v.
Dunne, 317 F. Supp. 2d 344, 353 (S.D.N.Y. 2004)). Moreover, “[i]n such cases, there is a
presumptive rule that the law of the plaintiff’s domicile applies.” Broadspring, Inc. v. Congoo, LLC, No.
13-cv-1866 (JMF), 2014 WL 4100615, at *6 (S.D.N.Y. Aug. 20, 2014). The Court need not
determine, and expressly does not state any views regarding, any choice-of-law questions applicable
to Plaintiff’s defamation claims. Rather, the Court merely concludes that because her injury
“essentially lacks a locus,” Plaintiff’s allegations that defamatory statements were made in New York
do not weigh against transfer.
Because the location of operative facts giving rise to Plaintiff’s claims is in the Northern
District of Texas, the Court finds that this factor strongly favors transfer.
E. The Relative Means of the Parties
“Where disparity exists between the parties, such as an individual plaintiff suing a large
corporation, the relative means of the parties may be considered.” Coast to Coast Fabrics, Inc. v. Exact
Change Only Corp., No. 04-cv-7300 (DAB), 2006 WL 846716, at *5 (S.D.N.Y. Mar. 29, 2006)
(alterations omitted) (quoting Berman v. Informix Corp., 30 F. Supp. 2d 653, 659 (S.D.N.Y. 1998)).
Plaintiff, an individual, is of much more limited means than Defendants, which are large
pharmaceutical corporations.
Nevertheless, “a party arguing for or against transfer on these grounds must offer
documentation to show that transfer would be unduly burdensome to his finances.” Seltzer v. Omni
Hotels, No. 09-cv-9115 (BSJ) (JCF), 2010 WL 3910597, at *5 (S.D.N.Y. Sept. 30, 2010) (ellipses
omitted) (quoting Dostana Enterprises LLC v. Fed. Express Corp., No. 00-cv-0747 (RWS), 2000 WL
1170134, at *4 (S.D.N.Y. Aug. 16, 2000)). In a written declaration, Plaintiff contends that her
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“litigation cost will increase substantially” if the case is transferred to her home forum due to
increased travel costs for her out-of-state attorneys, experts, and witnesses. Dickerson Decl. ¶¶ 12–
13, Dkt. No. 69-3. Notwithstanding that unsupported assertion, Plaintiff fails to show that litigating
this action in her home forum “would impose an undue financial hardship.” See Seltzer 2010 WL
3910597, at *5 (individual suing corporation failed to “provide any specific support” for the
contention that transfer would be “cost prohibitive”); Wechsler v. Macke Int’l Trade, Inc., No. 99-cv5725 (AGS), 1999 WL 1261251, at *8 (S.D.N.Y. Dec. 27, 1999) (“[P]laintiff’s unsupported assertion
that plaintiff’s means are ‘extremely limited’ does not suffice to show that transfer would be unduly
burdensome.”); Scherillo v. Dun & Bradstreet, Inc., 684 F. Supp. 2d 313, 329 (E.D.N.Y. 2010) (“Other
than conclusory allegations in his affidavit, plaintiff has not produced documentation that litigating
the case in [transferee forum]—as compared to New York—would be prohibitively expensive.”).
Thus, the Court finds that this factor weighs only slightly against transfer, and in any event,
“this factor has rarely been a dispositive reason to grant or deny a transfer motion, and is not so
here.” Schoenefeld v. New York, No. 08-cv-3269 (NRB), 2009 WL 1069159, at *3 (S.D.N.Y. Apr. 16,
2009) (internal quotation marks and citation omitted).
F. The Forum’s Familiarity With the Governing Law
“Familiarity with the governing law as a factor in determining transfer of venue is generally
given little weight in federal courts[.]” Am. Eagle Outfitters, Inc. v. Tala Bros. Corp., 457 F. Supp. 2d
474, 479 (S.D.N.Y. 2006) (internal quotation marks and citation omitted). The majority of Plaintiff’s
claims raise questions of federal law, which either forum is equally capable of deciding. See Mattel,
Inc. v. Procount Bus. Servs., No. 03-cv-7234 (RWS), 2004 WL 502190, at *4 (S.D.N.Y. Mar. 10, 2004)
(“This case raises questions of federal law. Therefore, either forum is equally capable of hearing and
deciding those questions.”).

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With respect to Plaintiff’s state law defamation claims, the parties dispute whether Texas or
New York law applies—and thus, whether this factor weighs in favor of, or against, transfer.
However, as noted above, the Court need not resolve any conflict-of-law question. “Federal courts
are deemed capable of applying the substantive law of other states,” and thus this factor is accorded
minimal weight irrespective of whether Texas or New York law applies to the defamation claims.
See Flowserve Corp. v. BMCE, Inc., No. 05-cv-8075 (WHP), 2006 WL 2927176, at *4 (S.D.N.Y. Oct.
12, 2006) (internal quotation marks and citation omitted); see also Nova Grp., Inc. v. Universitas Educ.,
LLC, No. 11-cv-342 (AWT), 2011 WL 5570793, at *3 (D. Conn. Nov. 16, 2011) (finding this factor
neutral where “courts in both [New York and Connecticut] are capable of applying” federal law and
Connecticut law.). Because both courts are capable of applying the governing law, the Court finds
this factor to be neutral.
G. The Weight Accorded the Plaintiff’s Choice of Forum
“A plaintiff’s choice of forum is entitled to considerable weight and is generally not
disturbed unless the balance of the factors strongly favors transfer.” McGraw-Hill, 2014 WL 988607,
at *7. Where “the forum selected is not plaintiff’s home forum or the place where the operative
facts of the action occurred,” however, “this diminishes the weight assigned to this factor.” Id.; see
also Hix v. Morgan Stanley & Co. LLC, No. 15-cv-217 (LTS) (JCF), 2015 WL 1726548, at *2
(S.D.N.Y. Apr. 15, 2015) (“[A] plaintiff’s choice of forum is given less deference when it is not her
home district.”); Simpson v. Rodas, No. 10-cv-6670 (CS), 2012 WL 4354832, at *10 (S.D.N.Y. Sept.
21, 2012) (importance of plaintiff’s choice “measurably diminishes” where operative facts “have few
meaningful connections” to plaintiff’s chosen forum).
The Southern District of New York is not Plaintiff’s home district and the operative facts, as
described above, have only a limited connection to the Southern District of New York. Indeed,
Plaintiff’s charge of discrimination was filed in Texas—not New York—with both the Texas
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Workforce Commission’s Civil Rights Division and the Dallas District Office of the EEOC.
Plaintiff’s choice of forum weighs against transfer, but the weight of this factor is substantially
diminished.
H. Trial Efficiency and the Interests of Justice
“The Court’s consideration of whether transfer is in the interest of justice is based on the
totality of the circumstances, and relates primarily to issues of judicial economy[.]” Indian Harbor Ins.
Co. v. Factory Mut. Ins. Co., 419 F. Supp. 2d 395, 407 (S.D.N.Y. 2005) (internal quotation marks and
citations omitted). Plaintiff primarily argues that the interests of justice weigh against transfer
because this action was commenced over a year ago. The parties spent the vast majority of that
time, however, engaged in settlement discussions without the Court’s involvement, and the case
remains in the early stages of litigation. Because “there has not yet been a significant investment by
the Southern District of New York in this case in terms of either time or work,” Invivo Research, Inc. v.
Magnetic Resonance Equip. Corp., 119 F. Supp. 2d 433, 439 (S.D.N.Y. 2000), the Court finds that this
factor weighs only slightly against transfer. See also Pecorino v. Vutec Corp., 934 F. Supp. 2d 422, 444
(E.D.N.Y. 2012) (noting that “the Court would not be hesitant to transfer the case to Florida at this
early stage of the litigation,” where complaint was filed almost one year ago but only “minimal
discovery” had taken place).
I. Balancing of the Interests Favors Transfer
Weighing the factors set forth above, the Court in its discretion determines that Defendants
have met their burden of demonstrating by clear and convincing evidence that transfer is
appropriate. 6

Because the Court finds that transfer is appropriate under 28 U.S.C. § 1404(a), the Court does not reach
Defendants’ alternative argument that transfer is required under 28 U.S.C. § 1406(a).
6

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V.

CONCLUSION
For the reasons set forth above, Defendants’ motion to sever the claims brought by Elyse

Dickerson and transfer venue of those claims to the U.S. District Court for the Northern District of
Texas (Fort Worth Division) is GRANTED. The Clerk of Court is directed to terminate the
motion pending at Dkt. No. 64.
SO ORDERED.
Dated: April 21, 2016
New York, New York

_____________________________________
_____________________
__
________________
GREGORY H. WOODS
GREGORY H
GORY
R
nited
United States District Judge

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