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Cindrich v. Fisher

March 15, 2006

RITA J. CINDRICH, PLAINTIFF,
v.
MICHAEL FISHER, (ATTORNEY GENERAL) ) INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Ambrose, Chief District Judge.

OPINION and ORDER OF COURT SYNOPSIS

Defendants seek a change of venue for the within Whistleblower and First Amendment action pursuant to 28 U.S.C. §1404(a). Defendants contend that litigating this action in the Middle District of Pennsylvania, where there is currently a case pending by Plaintiff against some of the same Defendants, would be in the interest of justice. Plaintiff wants the litigation to remain here. After careful consideration of the submissions of the parties, said Motion (Docket No. 4) is denied.

I. BACKGROUND*fn1

This is an action brought by Plaintiff, Rita Cindrich, a former employee of the Pennsylvania Office of Attorney General, against several current and former officials of the Office of Attorney General (hereinafter referred to as "Cindrich II"). In Cindrich II, Plaintiff asserts that Defendants violated the Whistleblower Law, 43 P.S. §1422, et seq., and the First Amendment to the United States Constitution when they took certain employment actions against her. In 2003, Plaintiff filed a lawsuit in the Middle District against most, but not all, of the Defendants (hereinafter referred to as "Cindrich I"). Cindrich I and Cindrich II contain some of the same facts from 2000-2003, but Cindrich II contains addition allegations from 2000-2005, and also contains a Whistleblower claim. Thus, the cases are related, but not the same.

While Cindrich I is still pending in the Middle District, it is at a very different stage of litigation than Cindrich II. Summary judgment has been granted in favor of Defendants as to Plaintiff's First Amendment claim in Cindrich I. The case has not been closed, however, because the trial judge remanded it to the magistrate judge to consider jurisdiction over the remaining state law claims. Defendants filed a Motion (Docket No. 4) to change the venue of Cindrich II to the Middle District. Plaintiff responded thereto. The issue is now ripe for review.

II. LEGAL ANALYSIS

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 may have been brought.

28 U.S.C. § 1404(a). The party moving for a transfer of venue bears the burden of establishing the need for transfer. See, Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995); Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970), cert. denied, 401 U.S. 910 (1971). In so doing, the movant must prove that: (1) the case could have been brought initially in the proposed transferee forum; (2) the proposed transfer will be convenient for the parties and witnesses, and (3) the proposed transfer will be in the interests of justice. See, Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). Here, there is no dispute that this action could have been brought in the Middle District of Pennsylvania. What is in dispute is whether the proposed transfer will be convenient for the parties and witnesses, and would serve the interests of justice.

Although acknowledging that "there is no definitive formula or list of factors to consider," the Third Circuit court has identified potential factors it characterized as either public or private interests related to the convenience of parties and witnesses and the interests of justice. Jumara, 55 F.3d at 879. The private interests include: (1) plaintiff's choice of forum; (2) the defendant's preference; (3) where the claim arose; (4) the convenience of the parties as indicated by their relative physical and financial conditions; (5) the convenience of the witnesses, but only to the extent that the witnesses may be unavailable for trial in one of the fora; and (6) the location of books and records. Id. The public interest factors include: (1) the enforceability of the judgment; (2) practical considerations regarding trial; (3) docket congestion in the competing fora; (4) interests in deciding local controversies at home; (5) the public policies of the fora; and (6) the familiarity of the trial judge with the governing law. Jumara, 55 F.3d at 879.

Defendants do not engage in any analysis or weighing of these factors. Rather, Defendants state only two reasons, one private factor and one public factor, why this case should be transferred: 1) because "one or more of the defendants are in that district" and Defendant Corbett's official place of business is in Harrisburg; and 2) because there is a related case in the Middle District of Pennsylvania. After an analysis of the factors is performed, it is evident that Defendants have failed to meet their burden of establishing the need for transfer.

A. PRIVATE FACTORS

The first private factor is the plaintiff's choice of forum. Plaintiff's choice of venue is usually given paramount consideration. Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970). Plaintiff resides in Allegheny County. Thus, Plaintiff has a connection with this District and a legitimate reason for commencing suit here. Consequently, this factor weighs strongly in favor of denying a transfer.

The second factor obviously favors transfer since Defendants prefer that the case be transferred to the Middle District of Pennsylvania. Defendants' preference, however, "is entitled to considerably less weight than Plaintiff's." EVCO Technologies & Development Co., LLC v. Precision Shooting Equip., 379 F.Supp.2d 728, 730 (E.D. Pa. 2005), citing ...


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