Lauer v. Saybolt LP et al, No. 1:2009cv03442 - Document 24 (E.D.N.Y. 2010)
Court Description: ORDER granting 8 Motion to Transfer Venue. Defendants motion pursuant to 28 U.S.C. §1404(a) to transfer venue of this action to the District of New Jersey is GRANTED. Ordered by Senior Judge I. Leo Glasser on 5/17/2010. (Keller, Matthew)
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Lauer v. Saybolt LP et al Doc. 24 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------x EDWARD LAUER, Plaintiff, -againstMEMORANDUM AND ORDER 0 9-CV-3442 (ILG) SAYBOLT LP, A Foreign Lim ited Partnership, CORE LABORATORIES LP, A Foreign Lim ited Partnership and CORE LABORATORIES, INC., A Foreign Corporation, Defendants. ------------------------------------------------x GLASSER, United States Senior District J udge: Plaintiff Edward Lauer (“Lauer”) brings this putative class action for unpaid overtim e against his form er em ployer, Saybolt LP, and related entities Core Laboratories LP and Core Laboratories, Inc.1 This Court’s jurisdiction is predicated on the diversity of the parties. Defendants m ove pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dism iss the com plaint on the grounds that this action is preem pted by federal law and, alternatively, that Lauer’s claim s are tim e-barred under New J ersey labor law. Defendants also m ove pursuant to 28 U.S.C. § 140 4(a) to transfer venue of this action to New J ersey. For the reasons discussed below, defendants’ m otion to transfer venue is granted and this action is transferred to the United States District Court for the District of New J ersey. 1 For convenience, this Order will refer to all of the defendants, collectively, as “Saybolt.” 1 Dockets.Justia.com BACKGROU N D Lauer, a resident of Staten Island, worked for Saybolt as an oil, gas and chem ical (“OGC”) inspector for at least two years.2 In this capacity Lauer would m easure the quality and quantity of oil sam ples from various sources. Plaintiff’s Mem o. of Law In Opposition (“Opp.”) at 3. He was “em ployed out of” Defendants’ Linden, New J ersey office, Compl. ¶ 24, which deployed OGC Inspectors to petroleum storage term inals and refineries in the New York and New J ersey harbor area. See Certification of J ohn Barbarise (“Barbarise Cert.”), dated Sept. 18, 20 0 9, at ¶ 6. One of these facilities to which Lauer was deployed was the “Stapleton Anchorage” located near the Verrazano Bridge in New York Harbor. Com pl. ¶ 24; Barbarise Cert. ¶ 23. Lauer alleges that he spent a “substantial” or “significant” am ount of tim e working for Saybolt in New York state. Com pl. ¶¶ 3, 24; Declaration of Edward Lauer (“Lauer Decl.”), dated Nov. 9, 20 0 9, at ¶ 5. According to Lauer’s tim e records subm itted by Saybolt in support of its m otion, Lauer worked in New York on 68 of the 439 days of his em ploy with Saybolt, or 15.5% of working days, the “bulk” of which was perform ed at the Stapleton Anchorage. See Barbarise Cert. ¶ 23, Ex. B. (Part 1). The nature of Lauer’s work often required him to work in excess of forty hours per week. Lauer claim s that under New York law he was thus entitled to, but did not 2 The parties disagree as to the length of Lauer’s em ploym ent with Saybolt. The com plaint contains blank spaces for the beginning and end dates. See Com pl. ¶¶ 23, 29. Lauer states in a declaration that he worked at Saybolt from March 20 0 1 to Decem ber 20 0 4. See Declaration of Edward Lauer (“Lauer Decl.”), dated Nov. 9, 20 0 9 (attached as Ex. C to Plaintiff’s Mem orandum of Law). Saybolt asserts that Lauer was em ployed there from Decem ber 20 0 2 to Decem ber 20 0 4. See Certification of J ohn Barbarise (“Barbarise Cert.”), dated Sept. 18, 20 0 9, at ¶ 20 . This discrepancy is irrelevant to the Court’s disposition of this m otion. 2 receive, overtim e compensation equal to one and one-half tim es his regular hourly rate, or “tim e and a half,” for each hour worked in excess of forty hours per week. Com pl. ¶¶ 33-37. Lauer also claim s that under New York law he was entitled to, but did not receive, “spread of hours” pay equal to one hour’s pay at m inim um wage for each workday exceeding ten hours. 3 Id. Finally, Lauer claim s that Saybolt failed to m aintain tim e records and to post inform ation concerning em ployees’ rights to a m inim um wage and to overtim e pay, as required by New York law and the federal Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 20 1 et seq.4 In addition to him self, Lauer seeks to represent a class pursuant to Rule 23 of the Fed. R. Civ. P. He defines this putative class as “all persons who were em ployed by Defendants at any tim e since May 26, 20 0 2, to the entry of judgm ent in this case (the “Class Period”), who were non-exem pt em ployees within the m eaning of the New York Labor Law and have not been paid for overtim e wages as required in violation of the New York Labor Law.” Com pl. ¶ 15. Lauer estim ates the size of the proposed class at approxim ately 10 0 m em bers but alleges that the necessary facts to determ ine the precise num ber of class m em bers “are presently within the sole control of the Defendants.” Id. ¶ 16. 3 Under New York law, em ployees are entitled to an additional one hour’s pay at m inim um wage for any day in which the spread of hours exceeds 10 hours. See N.Y. Com p. Codes R. & Regs. tit. 12, § 142-2.4 (20 0 9). “Spread of hours” is defined as “the interval between the beginning and end of an em ployee’s workday. The spread of hours for any day includes working tim e plus tim e off for m eals plus intervals off duty.” Id. § 142-2.18. 4 Lauer concedes in his m otion papers that his FLSA record-keeping claim s are tim ebarred. Opp. at 1 n.1. 3 Saybolt does not have an office in New York state and m ost of the petroleum storage facilities serviced by the New J ersey office are located in New J ersey. Barbarise Cert. ¶¶ 3, 6. On average, OGC Inspectors from the New J ersey office spend 85% of their tim e working in New J ersey, with the balance of work perform ed in New York and Connecticut. Id. ¶ 7. Saybolt hires its inspectors in New J ersey, and its supervisors, m anagers and paperwork are located there. Id. ¶ 9. Inspectors receive their assignm ents and pay, and file their paperwork, in New J ersey. Id. They subm it the sam ples they collect for testing in New J ersey. Id. In its m otion to dism iss, Saybolt asserts prim arily that Lauer’s state law claim s are preem pted by section 30 1 of the Labor Managem ent Relations Act (“LMRA”), 29 U.S.C. § 185. However, Saybolt also m oves to transfer this action to New J ersey pursuant to 28 U.S.C. § 140 4(a). Because the Court determ ines that a transfer of venue is appropriate, it will not address Saybolt’s m otion to dism iss. D ISCU SSION I. Stan d ard o f Re vie w fo r Mo tio n to Tran s fe r Ve n u e 28 U.S.C. § 140 4(a) gives a district court the discretion “to transfer any civil action to any other district or division where it m ight have been brought.” A m otion under § 140 4(a) is to be decided with reference to convenience and fairness under the circum stances of each particular case. See D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 10 6 (2d Cir. 20 0 6); In re Cuyahoga Equip. Corp., 980 F.2d 110 , 117 (2d Cir.1992). The purpose of § 140 4(a) is to “prevent waste of ‘tim e, energy and m oney’ and ‘to protect litigants, witnesses and the public against unnecessary inconvenience and expense . . . .’” 4 Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26, 27 (1960 )). To determ ine whether or not a venue transfer m otion should be granted, the Court m ust follow a two-step test. First, the Court m ust determ ine whether or not the action “m ight have been brought” in the proposed transferee district. See J ones v. United States, No. 0 2 Civ. 10 17, 20 0 2 WL 20 0 3191, at *2 (E.D.N.Y. Aug. 26,20 0 2); Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 986 (E.D.N.Y.1991). Second, the Court, using its discretion, m ust em ploy a m ulti-factor test to determ ine if, on balance, the equities favor transfer. Although not exhaustive, the factors include: (1) convenience of the parties; (2) convenience of witnesses; (3) relative m eans of the parties; (4) locusoperative facts and relative ease of access to sources of proof; (5) availability of process to com pel the attendance of witnesses to testify at trial; (6) the weight accorded the plaintiff’s choice of forum ; (7) calendar congestion; (8) the desirability of having the case tried by the forum fam iliar with the substantive law to be applied; (9) practical difficulties; and finally (10 ) the interests of justice. See Zaitsev v. State Farm Fire & Cas. Co., No. 0 5 Civ. 20 98, 20 0 5 WL 30 88326, at *1 (E.D.N.Y. Nov. 17, 20 0 5) (Glasser, J .) (citing United States Fidelity and Guaranty Co. v. Republic Drug Co., 80 0 F.Supp. 10 76 (E.D.N.Y.1992)). The Court analyzes the above factors in four categories: (1) Party considerations, (2) Witness and evidentiary considerations, (3) Forum considerations, and (4) Public Interest considerations. See Zaitsev, 20 0 5 WL 30 88326, at *1. In order to succeed on its m otion to transfer, Saybolt m ust m ake a “clear-cut showing” that venue should be transferred for the m otion to be granted. See, e.g., Merkur v. Wyndham Intern., Inc., No. 0 0 Civ. 5843, 20 0 1 WL 477268, at *2 (E.D.N.Y. 5 Mar. 30 , 20 0 1) (citing Schieffelin & Co. V. J ack Co. Of Boca, Inc., 725 F.Supp. 1314, 1321 (S.D.N.Y.1989)); Snyder v. Madera Broadcasting, Inc., 872 F.Supp. 1191, 1199 (E.D.N.Y. 1995) (citing St. Cyr v. Greyhound Lines, Inc., 486 F.Supp. 724, 727 (E.D.N.Y. 1980 )). Despite this dem and, it is well-established that the district court has broad discretion in deciding a m otion to transfer venue. See D.H. Blair & Co., 462 F.3d at 10 6 (citing In re Cuyahoga, 980 F.2d at 117)). II. Th is Actio n “Migh t H ave Be e n Bro u gh t” in th e D is trict Co u rt o f N e w Je rs e y Lauer does not dispute, and the Court finds, that the District of New J ersey is a district where this action “m ight have been brought” originally. In this civil action, the question of whether venue is initially proper is governed by 28 U.S.C. § 1391(a), which provides, in relevant part: A civil action wherein jurisdiction is founded only on diversity of citizenship m ay, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or om issions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the tim e the action is com m enced, if there is no district in which the action m ay otherwise be brought. It is undisputed that a substantial part of the events or om issions giving rise to Lauer’s claim s occurred in New J ersey. Saybolt has its principal place of business in New J ersey, from which it hires and m anages its workforce. Most of the job sites to which Saybolt sends its inspectors are located in New J ersey. The records subm itted by Saybolt in support of its m otion indicate that Lauer spent approxim ately 85% of his 6 working hours in New J ersey. Notwithstanding Lauer’s m any references to the “significant” or “substantial” am ount of tim e he spent working in New York, he does not dispute the accuracy of Saybolt’s num bers.5 Accordingly, the District of New J ersey a proper venue under § 1391(a)(2). III. D e fe n d an ts H ave Mad e A “Cle ar-Cu t Sh o w in g” Th at Ve n u e Sh o u ld Be Tran s fe rre d After consideration of the relevant factors the Court finds that Saybolt has m ade a clear-cut showing that this case should be transferred to New J ersey. As a prelude to its analysis of the relevant factors, the Court notes (as have the parties) the striking sim ilarities between the facts of this case and those before Chief J udge Dearie in Adeva v. Intertek USA Inc., No. 0 7 Civ. 50 12, 20 0 9 WL 648620 (E.D.N.Y. Mar. 10 , 20 0 9). In that case, a New J ersey resident brought a proposed collective and class action against his New J ersey-based em ployer alleging overtim e violations under New York Labor Law and the federal Fair Labor Standards Act. As in this case, the nam ed plaintiff was em ployed by the defendant’s New J ersey office but “allegedly perform [ed] som e of his duties in Richm ond County, New York,” received his assignm ents from New J erseybased m anagers, was paid in New J ersey, and spent m ost of his working tim e in New J ersey. Id. at *1. J udge Dearie granted the defendants m otion to transfer the case to the District of New J ersey, finding that the “tenuous ties between the case and New York m ust be severed.” Id. at *3. For the reasons discussed in m ore detail below, the Court 5 The parties dispute whether 15.5% am ounts to a “substantial” proportion of hours worked. See Opp. 15; Reply 15. There appears to be no dispute, however, that the 15.5% figure is the correct proportion of hours spent by Lauer working in New York state. 7 finds that the m ain difference between Adeva and this case – Lauer’s New York residence – does not suggest a different result and that, accordingly, this case is appropriately heard before the New J ersey district court. A. Party Co n s id e ratio n s Here, the Court considers the convenience to the parties, the relative m eans of the parties, and the weight accorded the plaintiff’s choice of forum . Lauer is an individual residing in this district. Saybolt is a lim ited partnership with offices in New J ersey but not in New York. Saybolt is clearly the party with greater econom ic m eans. However, this Court has previously taken judicial notice of the “scant” 13-m ile distance between this courthouse and the District of New J ersey’s Newark district court. Zaitsev, 20 0 5 WL 30 88326, at *2. Given this short distance, the Court finds that the convenience of either of the parties would not be substantially affected by a transfer to New J ersey. Lauer argues that a transfer to New J ersey would m erely shift the inconvenience of travel from Saybolt to him self. However, Friedm an v. Schwartz, No. 0 8 Civ. 280 1, 20 0 9 WL 70 1111 (E.D.N.Y. Mar. 13, 20 0 9) which Lauer cites in support of his position is hardly apposite as in that case the choice of fora was between the Eastern District of New York and the Southern District of Florida. Id. at *8. The distance between the Brooklyn and Newark courthouses is negligible in com parison to the distances involved in that case. Lauer correctly points out that, generally speaking, a plaintiffs’ choice of forum should be given “substantial consideration.” A. Olinick & Sons v.. Dem pster Bros. Inc., 365 F.2d 439, 445 (2d Cir.1966); In re McDerm ott Intern., Inc. Securities Litigation, 20 0 9 WL 10 10 0 39, at *2 (S.D.N.Y.Apr. 13, 20 0 9). However, the “plaintiff’s choice of 8 forum is a less significant consideration in a . . . class action than in an individual action.” In re Hanger Orthopedic Group, Inc. Securities Litigation, 418 F.Supp. 2d 164, 170 (E.D.N.Y. 20 0 6) (quoting Warrick v. General Electrict Co., 70 F. 3d 736, 741 n. 7 (2d Cir. 1995)). Lauer purports to represent a class of approxim ately 10 0 people who, like him self, were not paid overtim e wages in accordance with New York Labor Law. According to Saybolt, inspectors such as Lauer that are hired to work in the New J ersey Office spend on average 85% of their tim e working in New J ersey. Because any reasonably foreseeable class spends the substantial m ajority of its tim e working in New J ersey, the Court concludes that it would be m ore convenient were this case to be litigated in New J ersey. In light of these factors, party considerations favor a transfer of venue to New J ersey. B. W itn e s s an d Evid e n tiary Co n s id e ratio n s The Court m ust also consider the convenience of the witnesses to the case and the locus of operative facts and sources of proof. Consideration of such factors in this case tips in favor of a New J ersey venue. Neither Lauer nor Saybolt identify specific nonparty witnesses who could be expected to participate in this litigation. As with the likely class m em bers, one m ight reasonably infer that New J ersey is a preferable forum for any Saybolt em ployees who becom e nonparty witnesses in this case. However, the Court will not draw this inference based solely upon Saybolt’s supposition that this case “m ay com e to subsum e untold num bers of New J ersey residents who would prefer the m atter to proceed in the District of New J ersey.” Def. Reply Mem o. of Law (“Reply”) at 14-15. Such an assum ption neither assists the court in identifying specific nonparty witnesses nor in weighing the convenience to them of a transfer. 9 However, the location of the likely sources of proof in this case tips the balance of convenience in favor of a New J ersey venue. One m ay reasonably surm ise that the sources of proof in this case will consist largely of Saybolt em ployees’ tim e and activity records. Lauer alleges that Saybolt m aintain s “sole control” of the relevant docum ents in this m atter, Com pl. ¶¶ 16, 31, and it is undisputed that Saybolt keeps these records in New J ersey.6 Lauer approxim ates the size of the class he seeks to represent at approxim ately 10 0 em ployees and seeks dam ages for the period from May 26, 20 0 2 until entry of judgm ent. Docum entary evidence of tim es and locations worked for that num ber of em ployees over a period of eight or m ore years could easily becom e “so volum inous that their transport is a m ajor undertaking.” Cf. Met-L-Wood Corp. v. SWS Industries, Inc., 594 F.Supp. 70 6, 710 (N.D. Ill. 1984). Accordingly, evidentiary factors weigh in favor of a transfer to New J ersey. C. Fo ru m Co n s id e ratio n s Next the Court considers the im portance of having the case heard in the district in which it arose. Cases should be tried in a forum at hom e with the governing law. Zaitsev, 20 0 5 WL 30 88326, at *4. Here, the parties dispute whether New York or New J ersey labor law apply to Lauer’s claim s. In light of its ultim ate decision to transfer this case the Court leaves the choice of law determ ination to the New J ersey district court in the first instance. However, the Court shares the “fundam ental[ ]” concern expressed by J udge Dearie in the Adeva case as to “whether claim s under NY [labor law] exist for 6 Saybolt contends, and Lauer does not dispute, that copies of these records are kept in the New J ersey office, while the originals are sent to Core Laboratories’ headquarters in Houston, Texas. See Barbarise Aff. ¶ 9. This fact does not affect considerations of fairness and convenience in the choice between the Brooklyn and New J ersey fora in this case. 10 individuals em ployed in New J ersey who perform som e percentage of their duties in New York.” 20 0 9 WL 648620 , at *3. Lauer contends that he has a stronger claim to the application of New York law than did the plaintiffs in Adeva “based on [Lauer’s] New York residency, the substantial tim e he perform ed work in New York, and the fact that he paid New York State incom e taxes throughout his em ploym ent with Defendants.” Opp. 15. Yet the undisputed figures provided by Saybolt reveal that Lauer spent an even greater proportion of his tim e working in New J ersey – approxim ately 85% – than did the plaintiffs in Adeva. See Adeva, 20 0 9 WL 648620 , at *1. (“According to defendant’s calculations, plaintiff and m ost of the putative opt-in plaintiffs spent m ost of their tim e – an estim ated 66% – during the relevant period working in New J ersey”). With respect to Lauer’s New York residency and his paym ent of incom e taxes in New York, Lauer’s obligation to pay taxes in New York and his entitlem ent as a resident to services provided by the state derive independently from New York law, and Lauer cites no support for the proposition that any such obligations or entitlem ents have any bearing on which forum ’s labor laws should apply in this case. Accordingly, under the authority of the Adeva decision the forum considerations in this case tip in favor of a New J ersey forum . D . Pu blic In te re s t Co n s id e ratio n s Finally, public interest considerations include calendar congestion, and the interests of justice and fairness. Zaitsev, 20 0 5 WL 30 88326, at *4. The Court is not aware of a m eaningful difference between the respective caseloads of this Court and the District of New J ersey and is quite certain that the parties would receive a fair trial in either district. This Court has previously noted that, “cases should generally be tried where the 11 events giving rise to them have occurred, or where the parties involved live.” Id. Here, the residence of the parties at this stage of the litigation balances equally between New York and New J ersey. However, the events giving rise to this action occurred overwhelm ingly in New J ersey. Lauer and his proposed class worked out of Saybolt’s New J ersey office. Saybolt m aintains the relevant business records in New J ersey and conducts the substantial m ajority of its business operations, including the hiring of em ployees, in New J ersey. Saybolt does not m aintain an office in New York. Under these circum stances, the Court deem s it appropriate to exercise its discretion in favor of a transfer to the District of New J ersey. CON CLU SION For the foregoing reasons, defendants’ m otion for transfer of venue to the District of New J ersey is granted. SO ORDERED. Dated: Brooklyn, New York May 17, 20 10 / s/ I. Leo Glasser United States Senior District J udge Co p ie s o f th e fo re go in g m e m o ran d u m a n d o rd e r w e re e le ctro n ically s e n t to : Counsel for the Plaintiff Andrew R. Frisch Morgan & Morgan, P.A. 7450 Griffin Road, Suite 230 Fort Lauderdale, FL 33314 Counsel for the Defendant J oseph Maddaloni , J r. Trenk DiPasquale Webster Della Fera & Sodono P.C. 10 0 Southgate Parkway Morristown, NJ 0 7960 12
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