Mayer v. Time, Inc
OPINION AND ORDER.....The defendants December 8, 2018 motion to dismiss on the ground of forum non conveniens is granted, on the condition that TIME, Inc. will consent to service of process in the U.K. and submit to the jurisdiction of a U.K. tribunal, provided that the plaintiff files an action in the U.K. within 90 days of the entry of this Order. The Clerk of Court shall close this case. (Signed by Judge Denise L. Cote on 4/9/2018) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
For the plaintiff:
Frederic C. Weiss
125 East 55th Street, 4th Floor
New York, NY 10022
Stephen G. Grygiel
Silverman Thompson Slutkin White, LLC
201 N. Charles Street, Suite 2600
Baltimore, MD 21201
Ann McAllister Olivarius
63 Putnam Street PO Box 173
Saratoga Springs, NY 12866
For the defendant:
Lisa M. Griffith
Littler Mendelson, PC
290 Broadhollow Road, Suite 305
Melville, NY 11747
Jean L. Schmidt
Littler Mendelson, PC
900 Third Avenue
New York, NY 10022
OPINION AND ORDER
DENISE COTE, District Judge:
This employment discrimination suit alleges sex and age
discrimination and retaliation in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title
VII”) and the Age Discrimination in Employment Act of 1967, 29
U.S.C. § 621, et seq. (“ADEA”).
Defendant has moved to dismiss
the action under the doctrine of forum non conveniens.
reasons that follow the defendant’s motion to dismiss is
Plaintiff Catherine Mayer is a dual citizen of the United
States (“U.S.”) and of the United Kingdom (“U.K.”) and she
resides in the U.K.
In 2004, TMEL Time Magazine Europe Limited
(“TMEL”), a company organized under U.K. law and operating in
London, U.K., recruited and hired Mayer to work as a journalist
TMEL is a wholly-owned subsidiary of TIME Atlantic
Europe Holdings Limited (“Time Holdings”), a U.K. company
registered to the same U.K. address as TMEL.
Time Holdings is a
wholly-owned subsidiary of defendant TIME Inc. (“TIME”), a
company incorporated under Delaware law with its principal place
of business in New York.
When TMEL hired Mayer in 2004, she reported directly to
TIME’s International Editor in New York.
In 2006, plaintiff was
promoted to the role of London Bureau Chief.
In that role, she
continued to report to supervisors in New York.
In 2012, TIME’s
Managing Editor announced Mayer’s promotion to Europe Editor.
He had told Mayer that she would be able to recruit two new
Senior Editors to help her carry out her work.
As Europe Editor, Mayer managed all TMEL staff and budgets,
oversaw TMEL editions of the magazine, and commissioned and
She was assigned tasks and projects by her
supervisors in New York.
Instead of being able to select her
own Senior Editors, TIME’s Managing Editor informed her she
would be given just one Senior Editor and that it would be Matt
McAllester began working in London as Senior Editor
in June 2012.
In September 2012, TIME’s Managing Editor suggested to
Mayer that she undergo training with an Executive Coach at
Pegasus Partnership Ltd. (“Pegasus”), in the U.K.
ended successfully in 2013.
By May 2013, however, two TIME
executives effectively delegated all of Mayer’s duties to
On August 2, 2013, after all of her editing duties had been
reassigned to McAllester, plaintiff was informed by a TIME
executive that her title, Europe Editor, was to be eliminated.
In September, however, McAllester was promoted to Europe Editor.
Mayer took a sabbatical in 2014.
When she returned to TMEL
in November 2014, she reported to McAllester.
that McAllester created a hostile work environment.
On January 6, 2015, Mayer was informed by a London-based
Human Resources representative that her employment was at risk
Plaintiff retained counsel to pursue her claims
in the U.S; her lawyer contacted TIME and its attorneys on March
Mayer’s employment was formally terminated on April
Plaintiff filed an Intake Questionnaire alleging employment
discrimination and retaliation with the Equal Employment
Opportunity Commission (“EEOC”) on July 15, 2015.
notarized charge with the EEOC on August 19, 2015.
She filed a
On April 28,
2017, the EEOC issued a notice of a right to sue.
Plaintiff commenced this action on January 24, 2017.
November 3, the defendant moved to dismiss the plaintiff’s
On November 28, Mayer filed an amended complaint
On December 8, 2017, the defendant moved to dismiss
the FAC pursuant to the doctrine of forum non conveniens or, in
the alternative, to dismiss the complaint in part, pursuant to
12(b)(6), Fed. R. Civ. P.
The motion became fully submitted on
January 18, 2018.
A court has broad discretion in applying the principle of
forum non conveniens.
In exercising this discretion, it applies
the three-step analysis that the Court of Appeals described in
Iragorri v. United Techs. Corp., 274 F.3d 65, 72-76 (2d Cir.
[A] court considers (1) the degree of deference to be
afforded to the plaintiff's choice of forum; (2)
whether there is an adequate alternative forum for
adjudicating the dispute; and (3) whether the balance
of private and public interests tips in favor of
adjudication in one forum or the other.
Waldman v. Palestine Liberation Organization, 835 F.3d 317, 334
n.12 (2d Cir. 2016) (citing Norex Petroleum Ltd. V. Access
Indus., Inc., 416 F.3d 146, 153 (2d Cir. 2005)).
A court begins its analysis in step one with “a strong
presumption in favor of the plaintiff[s’] choice of forum.”
Norex, 416 F.3d at 154 (citation omitted).
balance is strongly in favor of the defendant, the plaintiff’s
choice of forum should rarely be disturbed.”
The degree of deference to be accorded a plaintiff’s choice
of forum “moves on a sliding scale” and is correlated with the
“degree of convenience” that the choice reflects.
“The more it appears that a domestic or foreign
plaintiff's choice of forum has been dictated by reasons that
the law recognizes as valid, the greater the deference that will
be given to the plaintiff's forum choice.”
Conversely, the more that a plaintiff’s choice of a
United States forum appears motivated by forum shopping, the
less deference that choice commands.
Factors considered in
determining whether a plaintiff’s choice of forum was likely to
have been motivated by convenience include:
(1) the convenience of the plaintiff’s residence in
relation to the chosen forum, (2) the availability of
witnesses or evidence to the forum district, (3) the
defendant’s amenability to suit in the forum district,
(4) the availability of appropriate legal assistance,
and (5) other reasons relating to convenience or
Id. at 155 (citing Iragorri, 274 F.3d at 72).
“[T]he choice of a United States forum by a foreign
plaintiff is entitled to less deference.”
Iragorri, 274 F.3d at
[T]he selection of a U.S. forum by a U.S. citizen living
abroad [is] entitled to less deference than the choice of
the same forum by a citizen residing in the forum because
with respect to the expatriate U.S. citizen it would be
less reasonable to assume the choice of forum is based on
Pollux Holding Ltd. V. Chase Manhattan Bank, 329 F.3d 64, 73 (2d
Cir. 2003) (citation omitted).
Further, a “plaintiff's choice
of the defendant's home forum” does not provide a “reliable
proxy for convenience.”
Id. at 74.
“[A] plaintiff's choice to
initiate suit in the defendant's home forum -- as opposed to any
other where the defendant is also amenable to suit -- only
merits heightened deference to the extent that the plaintiff and
the case possess bona fide connections to, and convenience
factors favor, that forum.”
The Court of Appeals has also identified factors indicative
of forum shopping:
(1) attempts to win a tactical advantage resulting
from local laws that favor the plaintiff’s case, (2)
the habitual generosity of juries in the United States
or in the forum district, (3) the plaintiff’s
popularity or the defendant’s unpopularity in the
region, or (4) the inconvenience and expense to the
defendant resulting from litigation in that forum.
Norex, 416 F.3d at 155 (citing Iragorri, 274 F.3d at 72).
A forum is generally adequate if defendants are amenable to
service of process there, but it may be inadequate if the remedy
it offers “is clearly unsatisfactory,” such as where the
alternative forum “does not permit litigation of the subject
matter of the dispute.”
235, 254 n.22 (1981).
Piper Aircraft Co. v. Reyno, 454 U.S.
The alternative forum is not inadequate
simply because it does not afford plaintiffs the identical
causes of action or relief available in the plaintiff’s chosen
Norex, 416 F.3d at 158.
Where a forum would otherwise be adequate, a plaintiff may
not escape forum non conveniens dismissal by taking actions that
render the alternative forum defective or imperfect.
Compania Naviera Joanna SA v. Koninklijke Boskalis Westminster
NV, 569 F.3d 189, 202-03 (4th Cir. 2009); see also MBI Grp.,
Inc. v. Credit Foncier du Cameroun, 616 F.3d 568, 572 (D.C. Cir.
2010) (“A conditional forum non conveniens dismissal protects a
plaintiff against the possibility that the foreign forum will
not hear his case.
It does not give the plaintiff license to
deliberately prevent his suit in the foreign court from going
forward in order to render an alternative forum defective.”); In
re Bridgestone/Firestone, Inc., 420 F.3d 702, 707 (7th Cir.
2005) (same); Veba–Chemie A.G. v. M/V Getafix, 711 F.2d 1243,
1248 n.10 (5th Cir. 1983) (same).
Finally, in step three, a court must balance both public
and private interest factors.
Private interest factors include:
the relative ease of access to sources of proof;
availability of compulsory process for attendance of
unwilling, and the cost of obtaining attendance of
willing, witnesses; possibility of view of premises,
if view would be appropriate to the action; and all
other practical problems that make trial of a case
easy, expeditious and inexpensive.
Iragorri, 274 F.3d at 73-74 (citing Gulf Oil Corp. V. Gilbert,
330 U.S. 501, 508 (1947)).
These factors are considered in
light of the particular issues likely to be tried, including
whether the plaintiff’s damages are disputed and where the
evidence of damages is likely to be more accessible.
weighing these factors, a court must determine whether or not
those hardships that the defendants would suffer if the case
were to remain in this district outweigh the hardships the
plaintiffs would suffer if the case were dismissed and the
plaintiffs forced to refile in an alternative forum.
329 F.3d at 75.
Public interest factors include administrative inefficiency
in trying a case in a busy court and away from the locus of the
injury; the burden that jury duty may impose on the community if
the case is tried in a venue with no connection to the issues in
dispute; for cases that affect many people, the public’s
interest in having easy access to the trial court proceedings; a
community’s interest in having a local case decided at home;
and, in a diversity case, the public interest in having the case
decided in the jurisdiction whose law will govern the case.
Iragorri, 274 F.3d at 74.
An action should be dismissed on the
ground of forum non conveniens “only if the chosen forum is
shown to be genuinely inconvenient and the selected forum
significantly preferable,” taking into account the balance of
private and public interests.
Id. at 74-75.
I. Deference to Plaintiff’s Choice of Forum
Applying the Iragorri factors, the plaintiff’s choice of
forum is entitled to significantly reduced deference.
Mayer is a United States citizen, she is also a citizen of the
United Kingdom and resides in London.
Her claims arise out of
work she performed in London for a U.K. employer.
not convenient for plaintiff.
This forum is
Plaintiff’s choice of forum
appears to have been motivated by forum shopping: an expectation
that any award of damages will be greater in the United States.
The plaintiff emphasizes that material events related to
this litigation took place in New York.
She contends that most
of those who hired her and those to whom she reported worked in
She alleges that the decisions that led to her firing
were also made in New York.
Defendant, however, submits that
the material events at issue took place in the U.K.: plaintiff
worked in London and was hired and fired in London.
of discrimination largely rests on her relationship with a U.K.
The defendant has succeeded in showing that any
deference to which the plaintiff’s choice of forum is entitled
is substantially reduced by the strong connections this
litigation has to a foreign venue, its limited connection to
this forum, the convenience of the parties, and the evidence
that the plaintiff has engaged in forum shopping.
II. The United Kingdom as an Adequate Forum
Plaintiff concedes that the United Kingdom would be an
adequate alternate forum “if TIME is amenable to service of
process there and the U.K. permits litigation of plaintiff’s
TMEL is unquestionably subject to service of process
in the U.K., and TIME has consented “to service in the UK.”1
Plaintiff argues that TIME’s consent to service comes too
late: TIME’s delay has caused the statute of limitations to run
on plaintiff’s claims.
The parties address only those claims
arising under The Equality Act as apparently time-barred.
The Equality Act 2010, c. 15, § 123 (“proceedings . . . may not
be brought after the end of the period of 3 months starting with
the date of the act to which the complaint relates”).2
argues, and plaintiff does not dispute, that her fraudulent
misrepresentation claim would not be time-barred.
To the extent that any of plaintiff’s claims are timebarred in the U.K., that limitation is a result of plaintiff’s
To the extent that there is any meaningful difference between
consenting to service in the U.K. and submitting to the
jurisdiction of the U.K. courts, the defendant has agreed to
comply with any condition of dismissal that it submit to
jurisdiction in the U.K.
The Equality Act’s statute of limitations provision apparently
offers a U.K. court the ability to set aside the time limit,
allowing a plaintiff to bring a proceeding “at the end of such
other period as the employment tribunal thinks just and
equitable.” The Equality Act 2010, c. 15, § 123(1)(b).
Although the parties do not discuss the statute of limitations
under the U.K.’s Employment Rights Act, any claims arising under
that law would likely be time-barred as well. See Employment
Rights Act 1996, c. 18, §111(2)(a) (requiring complaints to be
brought within three months of the effective date of
termination). That law, too, contains a provision that allows a
tribunal, in an exercise of its discretion, to hear claims that
would otherwise be time-barred.
decision to pursue legal remedies in the United States in the
months after her employment was terminated, rather than bring
claims in the United Kingdom.
for this choice.
Plaintiff should not be rewarded
Moreover, the plaintiff launched the EEOC
process more than three months after the April 9, 2015
termination of her employment: she filed an Intake Questionnaire
on July 15, 2015.
Accordingly, given her own delay in
initiating litigation in her chosen forum there is no unfairness
in observing that a dismissal here may well result in her loss
of a cause of action under The Equality Act.
Plaintiff protests that TIME was not amenable to service in
the U.K. and TMEL could not properly be brought before the EEOC.
It is unnecessary to engage with these issues in any detail.
TIME has consistently taken the position that TMEL is the
appropriate defendant in this suit.
consented to service in the U.K.
In any event, TIME has now
Because any U.K. statute of
limitations impediment to plaintiff’s prosecution of this case
in the U.K. is a result of her informed litigation strategy,
this Court will not refuse to dismiss this action on forum non
conveniens grounds because of the three month limitations period
for an Equality Act Claim.
Finally, plaintiff argues that the English Employment
Tribunal has limited power to compel the testimony of foreign
First, Mayer never directly addresses defendant’s
contention that the majority of the witnesses in this case are
based outside of the U.S. and, presumably, found in the U.K: she
argues only that defendant has inflated the number of witnesses.
She nevertheless concedes that at least sixteen of the witnesses
are in the U.K., including McAllester, the TMEL employee whose
actions are largely the basis of her discrimination claims.
This concern, therefore, is diminished.
Additionally, it is well-established that British courts
are an adequate alternative forum for resolving disputes that
may impact American corporations or citizens.
Pollux, 329 F.3d at 75 (finding UK an adequate alternative forum
that “permits litigation to resolve commercial disputes”); Wiwa
v. Royal Dutch Petroleum Co., 226 F.3d 88, 101 (2d Cir. 2000)
(“British courts [are] exemplary in their fairness and
commitment to the rule of law.”); Capital Currency Exchange N.V.
v. National Westminster Bank PLC, 155 F.3d 603, 610 (2d Cir.
1998) (finding the U.K. an adequate alternative forum even
though plaintiffs may not be able to recover certain kinds of
III. Balance of Factors
The private and public interest factors can be addressed
Collectively, they weigh in favor of transfer and
overcome any deference to which plaintiff’s choice of forum is
Regardless of where this lawsuit is finally litigated,
there are undoubtedly witnesses that will need to travel.
of the relevant evidence and witnesses, however, is either in
the U.K. or easily obtained in the U.K.3
The two key witnesses
in this employment discrimination case are the plaintiff and
McAllester, both of whom are U.K. citizens.
discrimination plaintiff alleges she faced took place in London.
Even if some decisions with respect to plaintiff’s employment
were made in New York, those decisions were implemented and felt
in the U.K.
Plaintiff was notified of the possibility and,
eventually, reality of her termination over several meetings in
Those meetings took place with London-based TMEL
The U.K. has a strong public interest in adjudicating this
case, evidenced by the country’s robust laws governing
The location of the tribunal is largely irrelevant to obtaining
electronically stored documents -- like emails and drafts of
articles -- which will presumably comprise most of the
documentary discovery in this case. See, e.g., BMR &
Associates, LLP v. SFW Capital Partners, LLC, 92 F. Supp. 3d
138, 142 (S.D.N.Y. 2015) (“Both parties have argued that they
will require documents from the forum other than the one in
which they wish to litigate; with most, if not all, of the
documentary evidence in electronic form, however, this has
little impact on the convenience of litigating in either
employment and gender discrimination.4
The target of the alleged
discrimination is a London-based, U.K. citizen who was employed
by a U.K. company.
She was allegedly the victim of
discrimination at the hands of another U.K. citizen.
surely has a strong interest in this case.
Plaintiff argues that New York has an “equally strong”
public interest in the case.
The alleged actual
discrimination was not felt or even implemented in New York.
Even if New York has an interest in the case because the
defendant is a corporation that has significant ties to New
York, New York’s interest is substantially less than the U.K.’s.
This is, at its core, a local case that should be tried at home,
in the U.K.
The defendant’s December 8, 2018 motion to dismiss on the
ground of forum non conveniens is granted, on the condition that
TIME, Inc. will consent to service of process in the U.K. and
submit to the jurisdiction of a U.K. tribunal, provided that the
plaintiff files an action in the U.K. within 90 days of the
entry of this Order.
Plaintiff herself has a keen interest in the U.K.’s gender
discrimination law and policies; she is a founding member of the
U.K.’s Women’s Equality Party.
The Clerk of Court shall close this case.
New York, New York
April 9, 2018
United States District Judge
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