Sir v. Diagnostica Stago, Inc.
MEMORANDUM signed by Chief Judge Waverly D. Crenshaw, Jr on 9/28/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(ab)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
DIAGNOSTICA STAGO, INC.,
CHIEF JUDGE CRENSHAW
Rachel Sir filed this action against Diagnostica Stago, Inc. (“Diagnostica Stago”) asserting
claims for hostile work environment and retaliation in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Before the Court is Diagnostica Stago’s
Motion to Transfer Venue (Doc. No. 7) to the District of New Jersey on the basis of forum non
conveniens. Plaintiff filed a response. (Doc. No. 12.) For the following reasons, this motion will
Sir, a Tennessee resident, interviewed for a job with Diagnostica Stago in Parsippany, New
Jersey on September 8, 2009, and began her employment with Diagnostica Stago on September
28, 2009. (Doc. No. 8-1, Townsend Declaration, at 1.) On September 29, 2009, Sir signed a
Confidentiality Agreement in which she agreed not to disclose proprietary information and
consented to personal jurisdiction in New Jersey for actions relating to that agreement. (Id. at 8.)
Sir worked remotely in Diagnostica Stago’s Southeast territory as a Telesales
Representative. (Id. at 1.) She alleges that a coworker sexually harassed throughout her
employment, and that she reported her coworker’s behavior to human resources in April 2015.
(Doc. No. 1 at 2-3.) That same month, Sir’s manager put her on a 90-day performance
improvement plan (“PIP”). (Id. at 3.) On July 7, 2015, Diagnostica Stago terminated Sir’s
“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 or
to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). Under section
1404(a), “district courts have ‘broad discretion’ to determine when party ‘convenience’ or ‘the
interest of justice’ make a transfer appropriate.” Reese v. CNH Am. LLC, 574 F.3d 315, 320 (6th
Cir. 2009). The moving party has the burden of proving that “the relevant factors weigh strongly
in favor of transfer.” Winnett v. Caterpillar Inc., No. 3:06-cv-00234, 2006 WL 1722434, at *2
(M.D. Tenn. June 20, 2006) (citing Van Dusen v. Barrack, 376 U.S. 612, 645-46 (1964)).
The first step when analyzing a motion to transfer is ensuring that the case originally “might
have been brought” in the proposed alternative venue. Id. (citing Van Dusen, 376 U.S. at 645-46).
Here, parties do not dispute that venue is proper in this Court and the District of New Jersey.
To determine the more convenient forum, the Court “should consider the private interests
of the parties, including their convenience and the convenience of potential witnesses, as well as
other public-interest concerns, such as systemic integrity and fairness, which come under the rubric
of ‘interests of justice.’” Moore v. Rohm & Haas Co., 446 F.3d 643, 647 n.1 (6th Cir. 2006) (citing
Moses v. Bus. Card Express, Inc., 929 F.2d 1131, 1137 (6th Cir. 1991)).
Sir’s Choice of Forum
A plaintiff’s choice of forum is given significant consideration when balancing these
factors, particularly where the plaintiff brings claims under Title VII. Smith v. Kyphon, Inc., 578
F. Supp. 2d 954, 961-62 (M.D. Tenn. 2008) (finding that Title VII’s venue provision “embodies a
public policy determination that Title VII plaintiffs should have a choice of where to bring suit”)
(discussing Thomas v. Rehab. Servs. of Columbus, Inc., 45 F. Supp. 2d 1375 (M.D. Ga. 1999)).
Valid forum selection clauses are enforced through § 1404(a) transfer and typically given
controlling weight. Atlantic Marine Const. v. US Dist. Ct., 134 S. Ct. 568, 579 (2013). Diagnostica
Stago concedes, however, that the forum selection clause in the Confidentiality Agreement does
not govern here due to the nature of this action. (Doc. No. 8 at 7.) Diagnostica Stago nonetheless
contends that the forum selection clause in the Confidentiality Agreement “evinces [Sir’s]
willingness to accept the requested jurisdiction and venue in Federal Court in New Jersey.” (Doc.
No. 8 at 7.) The Court does not consider the forum selection clause in the Confidentiality
Agreement to weigh in favor of transfer. The Court will give weight to Sir’s choice of forum.
Private Interest Factors
“Private-interest factors include ‘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; and all other practical problems that make trial of a case easy, expeditious and
inexpensive.’” Hefferan v. Ethicon Endo-Surgery Inc., 828 F.3d 488, 498 (6th Cir. 2016) (quoting
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). The number and location of non-party
witnesses are also weighed more heavily than those of party witnesses. Dan’s Gourmet Spot, LLC
v. Versa Mktg., Inc., No. 3:16-CV-02487, 2017 WL 897547, at *6 (M.D. Tenn. Mar. 7, 2017)
(citing Smith, 578 F. Supp. 2d at 963).
Diagnostica Stago identifies several potential witnesses for whom New Jersey would be
more convenient than the Middle District of Tennessee. It specifically identifies two such nonparty witnesses—Terri Freeman, the individual who conducted the independent investigation of
Sir’s sexual harassment complaint, and Reginald Matthews, its former Director of Sales. (Doc. No.
8 at 7.) Freeman performed all of the witness interviews in New Jersey. (Doc. No. 8-1 at ¶ 5.)
Diagnostica Stago also notes that its corporate and human resource employees are based in New
Jersey. (Doc. No. 8 at 7.) This includes Jeffrey Bambling, Sir’s Regional Sales Manager, who
issued the PIP in response to Sir’s allegedly poor performance on April 27, 2015. (Doc. No. 8- at
¶ 4.) Bambling also recommended that Sir be terminated. (Id. at ¶ 8.) All of these potential
witnesses are highly relevant and critical to the disposition of this case, and would likely be
deposed and to appear at trial.
Sir argues that the New Jersey witnesses may not need to travel to the Middle District of
Tennessee because they can sit for video depositions (Doc. No. 12 at 4), but “trial by video tape is
simply not preferable to live examination in front of a jury.” Kay v. Nat’l City Mortg. Co., 494 F.
Supp. 2d 845, 853 (S.D. Ohio 2007) (footnote omitted). The only specific witness that Sir identifies
as residing in the Middle District of Tennessee is an unnamed former supervisor. (Doc. No. 12 at
4.) Based on the information that Sir has provided, the Court cannot determine the relevance of
Sir’s unnamed former supervisor to this action. Accordingly, the convenience of both party and
non-party witnesses weighs significantly in favor of transfer.
The parties have not identified any other practicality factors in this case. The Court notes
that Sir’s employment records are likely located in New Jersey because that is where Diagnostica
Stago is headquartered. This factor also weighs in favor of transfer.
Public Interest Factors
Public interest factors include: “(1) the enforceability of the judgment; (2) practical
considerations affecting trial management; (3) docket congestion; (4) the local interest in deciding
local controversies at home; [and] (5) the public policies of the fora.” Smith, 578 F. Supp. 2d at
962 (quoting Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995)).
Diagnostica Stago argues that Tennessee does not have an interest in a citizen’s
employment dispute with a New Jersey company. (Doc. No. 8 at 8.) As stated above, this Court
has found a “significant public interest, as embodied in the venue provision contained in Title VII,
in protecting [a] Plaintiff’s ability to have her case tried by a jury of peers drawn from the
community in which the discrimination allegedly occurred.” Id. at 968-69. Sir alleges that a coworker made inappropriate comments to her “via texts during meetings” and while travelling
together for work assignments. (Doc. No. 1 at ¶¶ 11-12.) Thus, while the Middle District of
Tennessee has an interest in deciding controversies regarding its residents, the extent to which the
alleged discrimination actually occurred in this district is unclear. Accordingly, the local interest
and public policy of Tennessee are neutral factors in the transfer analysis.
Diagnostica Stago also notes “the burdens on this court [would be] exacerbated” by this
action (Doc. No. 8 at 8), and the Court weighs the factor concerning docket congestion slightly in
favor of transferring this action.
In sum, although the Court gives weight to Sir’s choice of forum, all other factors weigh
in favor of transfer. For these reasons, the Court concludes that it is in the interest of justice and
substantially more convenient for the parties and witnesses for this action to proceed in the United
States District Court for the District of New Jersey. Diagnostica Stago’s Motion to Transfer (Doc.
No. 7) will be granted.
An appropriate Order will enter.
WAVERLY D. CRENSHAW, JR.
CHIEF UNITED STATES DISTRICT JUDGE
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