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Stephen Berndt v. Deloitte & Touche Llp et al.

July 25, 2012

STEPHEN BERNDT
v.
DELOITTE & TOUCHE LLP ET AL.



The opinion of the court was delivered by: Legrome D. Davis, J.

MEMORANDUM ORDER

AND NOW, this 25th day of July, 2012, upon consideration of Plaintiff's Motion to Transfer Venue (Doc. No. 23), Defendants' opposition thereto (Doc. No. 25), and Plaintiff's reply (Doc. No. 28), it is hereby ORDERED that Plaintiff's transfer motion (Doc. No. 23) is DENIED WITHOUT PREJUDICE. It is further ORDERED that counsel for both parties shall furnish Judge Engelmayer (S.D.N.Y.) and Judge Berman (S.D.N.Y.) with a copy of this Order no later than July 27, 2012. If circumstances change, e.g., either Judge Berman or Judge Engelmayer manifests a willingness to consolidate this matter with his respective parallel proceeding, Plaintiff may renew his § 1404(a) transfer motion.

I. Factual Background and Procedural History

This case is one of several putative class actions in which plaintiffs complain that Defendants, Deloitte & Touche LLP and Deloitte LLP (together, "Deloitte"), misclassified plaintiffs and other non-licensed audit employees as exempt and accordingly failed to pay them overtime compensation in violation of various labor laws. A brief chronology follows.

Date Case Number and Jurisdiction Summary of Action 4/11/11 Gersten v. Deloitte & Touche Filing of class action complaint alleging LLP, No. 11-cv-2461 (S.D.N.Y.) violations of Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL). Case assigned to Judge Richard Berman. 4/26/11 James v. Deloitte & Touche Filing of collective action complaint alleging LLP, No. 11-cv-2027 (N.D. violations of FLSA only. Case assigned to Cal.). Judge James Ware. 6/23/11 James v. Deloitte & Touche Judge Ware transfers the James action to the LLP, No. 11-cv-2027 (N.D. Southern District of New York (11-cv-4554) Cal.). 11/22/11 In re Deloitte & Touche LLP Judge Berman consolidates the Gersten and Overtime Litigation, No. 11-cv- James actions under the name In re Deloitte & 2461 (S.D.N.Y.) Touche LLP Overtime Litigation. 12/16/11 In re Deloitte & Touche LLP Judge Berman issues an Order granting Overtime Litigation, No. 11-cv- plaintiffs' motion for conditional class 2461 (S.D.N.Y.) certification. 2/20/12 Berndt v. Deloitte & Touche Filing of class action complaint in Philadelphia LLP, Case ID: 120202193 Court of Common Pleas alleging claims under (Phila. C.P.) the Pennsylvania Minimum Wage Act (PMWA) only (no FLSA claim). 4/20/12 Berndt v. Deloitte & Touche Defendants remove Berndt action to this Court (CAFA).

5/30/12 Bukhari v. Deloitte & Touche Filing of class action complaint alleging Ohio state labor laws only (no FLSA claim).

Case referred to Judge Berman as potentially related to the now-consolidated James action. 5/31/12 Berndt v. Deloitte & Touche Plaintiff moves pursuant to 28 U.S.C. § District of New York for potential consolidation with In re Deloitte & Touche LLP Overtime Litigation and/or Bukhari. Defendants oppose the transfer. 6/13/12 Bukhari v. Deloitte & Touche Judge Berman declines Bukhari as a related LLP, No. 12-cv-2157 (E.D. Pa.) pursuant to the Class Action Fairness Act LLP, No. 12-cv-4290 (S.D.N.Y.) violations of Massachusetts, Minnesota, and LLP, No. 12-cv-2157 (E.D. Pa.) 1404(a) to transfer this matter to the Southern LLP, No. 12-cv-4290 (S.D.N.Y.) case. The case is subsequently assigned to Judge Paul Engelmayer. As a result, two different judges in the Southern District of New York are now handling these parallel suits.

6/28/12 Berndt v. Deloitte & Touche On Defendants' request, this Court issues an LLP, No. 12-cv-2157 (E.D. Pa.) Order holding Plaintiff's transfer motion in abeyance until July 19, 2012 pending developments in Bukhari. In making this request, Defendants strongly implied that they may seek to transfer Bukhari to Massachusetts, Minnesota, and/or Ohio. (See Doc. No. 25, at 3-4, 7-8). Defendants made no mention of moving to transfer Bukhari to this Court.

7/17/12 Bukhari v. Deloitte & Touche Without prior notice to this Court, Defendants LLP, No. 12-cv-4290 (S.D.N.Y.) move to transfer Bukhari (a putative class action brought by Massachusetts, Minnesota, and Ohio plaintiffs under Massachusetts, Minnesota, and Ohio law against a company headquartered in New York) to the Eastern District of Pennsylvania.

Given the above, we face a rather unusual situation. Through his counsel, Plaintiff Berndt, who (1) lives in Pennsylvania, (2) seeks to represent a class of Pennsylvania employees, (3) complains only of violations of Pennsylvania law, and (4) originally brought this suit in Pennsylvania state court, has asked us to transfer this matter to the Southern District of New York for consolidation, even though Judge Berman, our colleague in New York handling the consolidated matter, has already declined Bukhari (a parallel state-law-only case) as unrelated. What's more, Defendant Deloitte, a New York-based corporation that previously argued in James that the Southern District of New York was a more convenient forum,*fn1 not only opposes our transfer of the instant matter to New York but has also moved to transfer Bukhari, a case with no discernable ties to Pennsylvania, from New York to the Eastern District of Pennsylvania.

It seems to us that both parties are forum shopping for strategic reasons and actually care little about the "convenience of parties and witnesses." 28 U.S.C. § 1404(a). After all, each side wants to litigate this matter in what would appear to be a forum less convenient for the party making the request: the Pennsylvania Plaintiff (or at least his lawyer) wants to litigate in New York, and the New York Defendants want to litigate in Pennsylvania. As explained herein, we exercise our discretion and decline to transfer this matter to the Southern District of New York. Considering the current procedural posture of the parallel New York cases, as well as the differences among the wage and hour laws of the relevant states as highlighted by Deloitte (see Doc. No. 25, at 7), we see little chance of consolidation of the state-law-focused cases against Deloitte (in New York or elsewhere) absent a formal MDL. Under the circumstances, we will not burden a (potentially third different) New York judge with our Pennsylvania-specific case.

II. Legal Analysis

Pursuant to 28 U.S.C. § 1404(a), we may transfer a civil action to another judicial district "[f]or the convenience of parties and witnesses, in the interest of justice . . . ." In analyzing a § 1404(a) transfer motion, we consider "all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum." Salovaara v. Jackson Nat'l Life Ins. Co., 246 F.3d 289, 297-98 n.5 (3d Cir. 2001) (quoting Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995)). Such, factors may include, e.g., the "plaintiff's forum preference as manifested in the original choice"; the defendant's preference; where the claim arose; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses; the location of books and records; the enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; the public policies of the fora; and the familiarity of the trial judge with the applicable state law in diversity cases. Jumara, 55 F.3d at 879-80. "The burden of establishing the need for transfer . . . rests with the movant." Id. at 879.

Here, Plaintiff's primary argument for transfer sounds in judicial economy, i.e., "practical considerations that could make the trial easy, expeditious, or inexpensive." (See Doc. No. 24, at 5-7; Doc. No. 28). Specifically, Plaintiff argues that we should transfer this case to the Southern District of New York so that it can be consolidated with Bukhari, a case concerning facts and circumstances similar to those in our matter. As the Plaintiff sees it, "[c]onsolidation of these actions in a single federal court would therefore be easier, more expeditious, and less expensive -- and less ...


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