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Timothy Askerneese v. Nisource

April 4, 2013

TIMOTHY ASKERNEESE
v.
NISOURCE, INC. AND COLUMBIA GAS OF PENNSYLVANIA, INC.



The opinion of the court was delivered by: Savage, J.

MEMORANDUM OPINION

In this employment discrimination case brought under Title VII of the Civil Rights Act of 1964 ("Title VII") and the Pennsylvania Human Relations Act ("PHRA"),*fn1 the defendants NiSource, Inc. ("NiSource") and Columbia Gas of Pennsylvania ("Columbia Gas"), both Ohio corporations with no connection to this district, have moved to dismiss or transfer the action to the Western District of Pennsylvania, where Columbia Gas has its principal place of business.*fn2 The defendants argue that the balancing of private and public factors favors transfer to the Western District of Pennsylvania for the convenience of the parties and the witnesses. They cite, undisputedly, that the Western District is where the plaintiff resides, defendants conduct business, and all conduct and evidence giving rise to the claims alleged in this action occurred.

Opposing the motion, plaintiff, Timothy Askerneese, who resides in the Western District of Pennsylvania, argues that venue under Title VII lies in any district in Pennsylvania, including the Eastern District of Pennsylvania. He contends that because the wrongful conduct occurred within the Commonwealth of Pennsylvania, he may file suit in any district in the state. Additionally, he argues that the defendants have failed to meet their burden to justify transfer from the plaintiff's preferred forum.

After weighing all relevant factors and giving due consideration to the plaintiff's preference, we conclude that the private and public interests favor transferring this action to the Western District of Pennsylvania. Therefore, the motion to transfer will be granted.

Discussion

The defendants bear the burden of demonstrating that (1) the case could have been brought initially in the proposed transferee forum; (2) the proposed forum will be more convenient for the parties and witnesses; and, (3) transfer will be in the interest of justice. 28 U.S.C. § 1404(a); Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995); Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970).

Venue in Title VII actions lies in: (1) any district in the State where the unlawful employment practice was allegedly committed; (2) the district where the relevant employment records are maintained and administered; or, (3) the district where the aggrieved person would have worked but for the alleged unlawful employment practice. 42 U.S.C. § 2000e--5(f)(3). If the defendant cannot be found in any of these districts, the action may be brought in the judicial district where the defendant has its principal place of business. Id.

No one questions that the action could have been brought in the Western District of Pennsylvania. It is the district where the alleged discriminatory and retaliatory conduct took place, where the relevant employment records are, and where the plaintiff was working and would have continued to work but for the alleged unlawful employment practice. Accordingly, we must weigh the private and public interest factors to determine whether the balance of convenience tips in favor of transfer. Jumara, 55 F.3d at 879-80.

Factors considered when determining whether transfer is more convenient for the parties and in the interest of justice are: (1) the plaintiff's choice of forum; (2) the defendant's preferred forum; (3) the place where the claim arose; (4) the relative ease of access to the sources of proof; (5) the convenience of the parties as demonstrated by relative financial status and physical location; (6) the availability of compulsory process for the attendance of witnesses; (7) the convenience of the witnesses; (8) the practical problems that make trial of a case expensive and inefficient; and, (9) public interest factors, such as congestion of court dockets and the local interest in deciding the controversy. Jumara, 55 F.3d at 879-80. Depending on the nature and facts of the case, these factors overlap and are intertwined.

Because the analysis involved is "flexible and individualized," the district court has broad discretion in deciding a motion for transfer of venue. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). Despite this wide latitude, a transfer motion is not to be granted without a careful weighing of factors favoring and disfavoring transfer. See Shutte, 431 F.2d at 24-25.

Here, the only factor favoring this forum is that the plaintiff has chosen it. All other factors are neutral or weigh in favor of transfer to the Western District of Pennsylvania.

Plaintiff's Choice of Forum

The plaintiff's choice of forum typically receives "paramount consideration." Shutte, 431 F.2d at 25; see also Jumara, 55 F.3d at 879 (observing that plaintiff's choice of venue "should not be lightly disturbed" (citation and quotation omitted)). However, the plaintiff's choice is given less deference because none of the operative facts underlying the claim occurred there. See TaiDoc Technology Corp. v. Diagnostics Devices, Inc., No. 12-2457, 2012 WL 3627423, at *2 (E.D. Pa. Aug 23, 2012); Lindley v. Caterpillar, Inc., 93 F.Supp.2d 615, 617 (E.D. Pa. 2000). It is certainly entitled to even less deference where the plaintiff does not reside there and none of the alleged unlawful acts occurred there.

The plaintiff does not offer any reason why he filed his action in this district rather than in the Western District of Pennsylvania. Apparently, this forum was chosen because his attorneys have their office here. There is no other connection to this district. Under these circumstances, where there are no operative facts that occurred in this district and the ...


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