Lewis-Gursky v. Citigroup, Inc. et al
Filing
40
MEMORANDUM OPINION AND ORDER re: 23 MOTION to Transfer Case [Notice of Motion to Transfer Venue Pursuant to 28 U.S.C. sec. 1404(a)], filed by Judge Technical Services, Inc., Citigroup, Inc. For the foregoing reasons, Defendants mo tion to transfer venue is granted. The Clerk of Court is requested to transfer the above-captioned action to the United States District Court for the Middle District of Florida and close this case. This Memorandum Opinion and Order resolves Docket Entry Number 23. (As further set forth in this Order.) (Signed by Judge Laura Taylor Swain on 12/11/2015) (spo)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
CAROLINE ALANA LEWIS-GURSKY, and
RUBEN CHEZ, on behalf of themselves and all
others similarly situated,
Plaintiffs,
-v-
No. 15CV3213-LTS-DCF
CITIGROUP, INC., and JUDGE
TECHNICAL SERVICES, INC.,
Defendants.
-------------------------------------------------------x
MEMORANDUM OPINION AND ORDER
Before the Court is a motion brought by Defendants Citigroup, Inc. (“Citi”) and
Judge Technical Services, Inc. (“Judge” and, collectively, “Defendants”), seeking an order,
pursuant to 28 U.S.C. § 1404(a), transferring this putative nationwide Fair Labor Standards Act
(“FLSA”) collective action1 to the United States District Court for the Middle District of Florida.
The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1367.
The Court has carefully reviewed the parties’ submissions. For the following
reasons, Defendants’ motion to transfer venue is granted.
1
As explained infra, one of the two Plaintiffs also purports to represent a Federal
Rule of Civil Procedure 23 class with respect to a New Jersey state wage and
hour law claim.
LEWISGURSKYTRANSFERVENUE.WPD
VERSION 12/11/15
1
BACKGROUND2
Citi is a Delaware corporation headquartered in the Southern District of New
York and Judge is Delaware corporation headquartered in Pennsylvania. (Am. Compl. ¶¶ 48,
49.) Plaintiff Caroline Alana Lewis-Gursky (“Lewis-Gursky”) is a citizen of Florida. (Id. ¶ 7.)
On April 23, 2015, Lewis-Gursky filed her initial Complaint in this action, alleging that she had
been employed by Defendants from approximately 2008 to July 2014 and that she had been
assigned to work at Citi’s office in Tampa, Florida. (See generally Docket Entry No. 1; see also
Am. Compl. ¶ 11.) Plaintiff claims that, throughout the course of her employment, she regularly
worked more than 40 hours per week but was not paid overtime compensation as required by the
FLSA. (Am. Compl. ¶ 17.) Lewis-Gursky further alleges that, “[p]ursuant to corporate policies
formulated in whole or in part at Citi’s headquarters in New York and applicable at Citi’s
locations nationwide, Defendants have denied Collective and Class Members” overtime
compensation. (Id. ¶ 75.)
On July 2, 2015, Defendants moved to transfer this case to the Middle District of
Florida. (Docket Entry No. 23.) On July 9, 2015, Plaintiff filed an Amended Complaint, adding
a second named Plaintiff, Ruben Chez (“Chez”). (Am. Compl. ¶¶ 28-47.) Chez claims that he
had been employed by Defendants from approximately January 2015 to April 2015 and that he
had been assigned to work at Citi’s office in Jersey City, New Jersey. (Id. ¶¶ 29, 32.) A citizen
of New Jersey (id. ¶ 28), Chez asserts a federal claim substantially similar to Lewis-Gursky’s –
that Defendants failed, pursuant to a company-wide practice and policy “formulated in whole or
part at Citi’s headquarters in New York,” to pay overtime compensation that was due under the
2
The facts recited herein are drawn from the First Amended Complaint (“Am.
Compl.”). (Docket Entry No. 26.)
LEWISGURSKYTRANSFERVENUE.WPD
VERSION 12/11/15
2
FLSA and also purports to represent the nationwide FLSA collective. (Am. Compl. ¶¶ 75-76.)
The Amended Complaint also adds a New Jersey state wage and hour law claim on behalf of
Chez and a Federal Rule of Civil Procedure 23 class of similarly situated individuals. (Id. ¶ 63.)
DISCUSSION
Section 1404(a) of Title 28 of the United States Code permits a district court to
transfer any civil action to another district where it might have been brought when such a
transfer serves “the convenience of the parties and witnesses, [and is] in the interest of justice.”
28 U.S.C.S. § 1404(a) (LexisNexis 2012). “Section 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.” Whitehaus Collection v.
Barclay Products, Ltd., No. 11CV217-LBS, 2011 WL 4036097, at *1 (S.D.N.Y. Aug. 29, 2011)
(internal quotation marks and citation omitted).
Plaintiffs do not dispute that their claims could have been brought in the Middle
District of Florida. Having satisfied this threshold inquiry, the Court looks to the following
factors in order to determine whether a transfer of venue is appropriate:
(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
governing law; (8) the weight accorded to plaintiff's choice
of forum; and (9) trial efficiency and the interests of
justice.
Morris v. Ernst & Young, LLP, No. 12CV0838-KW, 2012 WL 3964744, at *3 (S.D.N.Y. Sept.
LEWISGURSKYTRANSFERVENUE.WPD
VERSION 12/11/15
3
11, 2012) (quoting In re Collins & Aikman Corp. Sec. Litig., 438 F. Supp. 2d 392, 394
(S.D.N.Y. 2006)). The party seeking transfer “carries the burden of making out a strong case for
transfer” by pointing to “clear and convincing evidence” upon which the Court can base its
decision. Hix v. Morgan Stanley & Co. LLC, No. 15CV217-LTS-JCF, 2015 WL 1726548, at *1
(S.D.N.Y. April 15, 2015) (internal quotation marks and citation omitted). District courts “have
broad discretion in making determinations of convenience under Section 1404(a) and notions of
convenience and fairness [must be] considered on a case-by-case basis.” D.H. Blair & Co. v.
Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006).
The Second Circuit has recognized that a plaintiff’s choice of forum is, as a
general rule, “presumptively entitled to substantial deference.” Gross v. British Broad. Corp.,
386 F.3d 224, 230 (2d Cir. 2004); see also Royal & Sunalliance v. British Airways, 167 F. Supp.
2d 573, 576 (S.D.N.Y. 2001) (“A plaintiff’s choice of venue is entitled to significant
consideration and will not be disturbed unless other factors weigh strongly in favor of transfer.”).
However, a plaintiff’s choice of forum is entitled to substantially less deference when the forum
she selects is not her home district. Freeman v. Hoffmann–La Roche Inc., No. 06CV13497RMB, 2007 WL 895282, at *3 (S.D.N.Y. Mar. 21, 2007) (“This factor is less compelling where,
as here, plaintiffs choose a forum that is not their home district”); see also Intria Corp. v. Intira
Corp., No. 00CV7198-AGS, 2000 WL 1745043, at *8 (S.D.N.Y. Nov. 27, 2000) (“where the
forum is not the plaintiff’s home district, the plaintiff’s choice of forum is given less deference,
even when the plaintiff’s home district is adjacent to the forum.”). In “the absence of factual
proffers indicating that relevant evidence is likely to be located” in the chosen district, the choice
of a non-home district may indicate forum shopping. Hix, 2015 WL 1726548, at *1. “The
interests of justice require that this Court not reward [forum shopping].” Freeman, 2007 WL
LEWISGURSKYTRANSFERVENUE.WPD
VERSION 12/11/15
4
895282, at *1 (quoting In re Eclair Bakery Ltd., 255 B.R. 121, 142 (Bankr. S.D.N.Y. 2000)).
Furthermore, “a plaintiff’s choice of forum ‘is afforded little weight’ in a purported class action,
as here, where ‘numerous potential plaintiffs [are] each possibly able to make a showing that a
particular forum is best suited . . . .’” Freeman, 2007 WL 895282, at *3 (citing Eichenholtz v.
Brennan, 677 F. Supp. 198, 202 (S.D.N.Y. 1998)).
Lewis-Gursky is a citizen of the Middle District of Florida and Chez is a citizen
of New Jersey, thus the Southern District of New York is not the home forum of either named
plaintiff. (See Am. Compl. ¶¶ 7, 28.) In light of this fact, and because this case is a purported
nationwide collective and New Jersey class action, the Court gives Plaintiffs’ choice of this New
York venue only limited deference. Freeman, 2007 WL 895282, at *4. Moreover, Plaintiffs
have not identified a single potential witness located in the Southern District of New York,
whereas Defendants have identified multiple potential witnesses located in or near the Middle
District of Florida. (See Docket Entry No. 25, Exs. A, B.) In addition, the Citi location at which
Lewis-Gursky was employed – and where the overtime hours in this case were allegedly worked
– is located in the Middle District of Florida, and relevant documents and sources of proof with
respect to Lewis-Gursky’s claims are presumably located there as well. Furthermore, Chez was
allegedly employed outside of New York State. In the absence of any factual proffer indicating
that relevant evidence is likely to be located in this district, Plaintiffs’ choice of a New York
venue raises an inference of forum shopping. Hix, 2015 WL 1726548, at *1. Indeed, in her
Opposition Memorandum, Lewis-Gursky essentially admits as much, arguing that the Southern
District of New York represented the best venue in which to file suit because she believes that
the case law is favorable to FLSA plaintiffs. (See Pl. Opp. Memo at p. 5.) Each of these
considerations weighs in favor of granting Defendants’ transfer motion. See Freeman, 2007 WL
LEWISGURSKYTRANSFERVENUE.WPD
VERSION 12/11/15
5
895282, at *1
Furthermore, although Lewis-Gursky conclusorily alleges in the Amended
Complaint that she was denied overtime pay pursuant to a company-wide Citi policy, she has
identified no facts, evidence, or witnesses in support of this claim that are situated in the
Southern District of New York or anywhere else. Plaintiffs’ opposition makes an unelaborated
reference to Citi’s “corporate” “‘Professional Day’ and ‘Professional Week’ policies, under
which IT workers are [allegedly] denied pay for hours worked over eight in a day and 40 in a
week” (see Docket Entry No. 27 (“Pl. Opp. Memo”) at p. 5), but neither policy is referred to in
the Amended Complaint and Plaintiffs proffer no explanation in their opposition as to the nature
or locus of evidence substantiating the relevance of the policies. Thus, the supposed companywide policy upon which Lewis-Gursky heavily relies does not weigh in favor of deferring to her
choice of venue.
The Amended Complaint’s addition of a second named plaintiff who lives and
worked in New Jersey fails to provide any further nexus to the Southern District of New York.
Indeed, Plaintiff’s addition of the second plaintiff after the transfer motion practice was initiated
is strongly indicative of forum shopping. The Middle District of Florida is just as capable as the
Southern District of New York of adjudicating FLSA claims arising from employment in New
Jersey. The Middle District of Florida is also equally capable of evaluating any pendent New
Jersey state wage and hour law claims.
The Court accordingly finds that the relevant factors weigh in favor of
transferring this action to the United States District Court for the Middle District of Florida. The
Defendants have demonstrated that the interests of justice and convenience to the parties and
witnesses strongly favor transfer of this case to the United States District Court for the Middle
LEWISGURSKYTRANSFERVENUE.WPD
VERSION 12/11/15
6
District of Florida.
CONCLUSION
For the foregoing reasons, Defendants’ motion to transfer venue is granted. The
Clerk of Court is requested to transfer the above-captioned action to the United States District
Court for the Middle District of Florida and close this case.
This Memorandum Opinion and Order resolves Docket Entry Number 23.
SO ORDERED.
Dated: New York, New York
December 11, 2015
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
LEWISGURSKYTRANSFERVENUE.WPD
VERSION 12/11/15
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?