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TISCHIO v. BONTEX

June 29, 1998

PATRICIA S. TISCHIO, Plaintiff,
v.
BONTEX, INC., JAMES C. KOSTELNI, and DOLORES S. KOSTELNI, Defendants.



The opinion of the court was delivered by: LECHNER

OPINION

 LECHNER, District Judge

 This is an action brought by the plaintiff, Patricia S. Tischio ("Patricia Tischio"), against the defendants, Bontex, Inc. ("Bontex"), James C. Kostelni ("James Kostelni") and Dolores S. Kostelni ("Dolores Kostelni") (collectively, the "Defendants"). The instant action asserts claims for, among other things, breach of an alleged lifetime employment contract, tortious interference with contract and discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq.

 The Defendants have filed a motion to transfer (the "Motion to Transfer") the action to the United States District Court for the Western District of Virginia (the "Western District of Virginia"), pursuant to 28 U.S.C. § 1404(a) ("Section 1404(a)"). *fn1"

 For the reasons set forth below, the Motion to Transfer is granted; the action is transferred to the Western District of Virginia.

 Background

 A. Procedural History

 On 11 March 1998, Patricia Tischio filed a complaint (the "Complaint") with the Superior Court of New Jersey, Law Division, Essex County. See Complaint.

 On 13 April 1998, the Defendants removed the action to this court by filing a notice of removal (the "Notice of Removal"). See Notice of Removal. On 15 April 1998, Bontex filed an amended notice of removal (the "Amended Notice of Removal"). See Amended Notice of Removal.

 On 5 May 1998, Bontex filed an answer (the "Bontex Answer") to the Complaint. See Bontex Answer. On the same day, James Kostelni filed an answer (the "James Kostelni Answer") to the Complaint. See James Kostelni Answer. On 6 May 1998, Dolores Kostelni filed an answer (the "Dolores Kostelni Answer") to the Complaint. See Dolores Kostelni Answer. The Motion to Transfer was then filed by the Defendants.

 B. Facts

 Patricia Tischio is a resident of the State of Connecticut and owns real estate in New Jersey. See Complaint; Patricia Tischio Aff. PP 6(i), 10. Bontex is a publicly owned corporation that is incorporated in the State of Virginia and maintains its principal place of business in Buena Vista, Virginia. See Complaint P 2; James Kostelni Aff. PP 2-3. James Kostelni is a resident of the State of Virginia and is the President, Chief Executive Officer and Chairman of the Board of Directors of Bontex. *fn2" See Complaint P 3; James Kostelni Aff. P 2. Dolores Kostelni is a resident of the State of Virginia. See Dolores Kostelni Aff. P 1. She is married to James Kostelni and is the sister of Patricia Tischio. See Complaint P 3; James Kostelni Aff. P 1; Dolores Kostelni Aff. P 1. Dolores Kostelni is neither a director, nor an officer nor an employee of Bontex. See Dolores Kostelni Aff. P 2.

 Bontex is the successor corporation to Georgia-Bonded Fibers, Inc. ("Georgia-Bonded"). See Complaint P 2. Georgia-Bonded was a manufacturing corporation founded in 1934 by the father of Patricia Tischio, Hugo N. Surmonte ("Hugo Surmonte"). It was incorporated under the laws of the State of New Jersey. See id. PP 1-2; Patricia Tischio Aff. P 2. According to Patricia Tischio, Georgia-Bonded/Bontex maintained its principal place of business in Newark, New Jersey until October 1997. See Complaint P 2; Patricia Tischio Aff. P 2. The Defendants dispute the assertion that Georgia-Bonded/Bontex maintained its principal place of business in Newark until 1997. See Reply Brief at 11 n.1.

 Bontex manufactures and markets blastomeric saturated cellulose fiberboard that is used in a variety of consumer products. See James Kostelni Aff. P 4. The sole manufacturing facility of Bontex is located in Buena Vista, Virginia (the "Virginia Facility"). See id. P 5. Approximately ninety-seven individuals are employed by Bontex at the Virginia Facility. See id. P 5. The majority of the corporate records of Bontex are located at the Virginia Facility. See Dugan Aff. PP 4-6, 8-10.

 Bontex currently maintains a sales office and warehouse facility in Newark, New Jersey (the "New Jersey Facility"). See James Kostelni Aff. P 8. Two full-time staff and one part-time warehouse employee are employed by Bontex at the New Jersey Facility. See id. The New Jersey Facility is scheduled to be permanently closed by Bontex before the end of 1998. See id. The closure of this facility is one of the reasons for this dispute. See Complaint.

 In 1989, allegedly at the request of Hugo Surmonte, Patricia Tischio joined Bontex as a full-time employee at the New Jersey Facility. See id. P 4; Patricia Tischio Aff. P 3. She later became a member of the Bontex Board of Directors (the "Bontex Board"). *fn3" See Complaint P 1; James Kostelni Aff. P 8. According to Patricia Tischio, Hugo Surmonte and James Kostelni promised her that, upon joining Bontex, she would assume the positions of Corporate Secretary and Office Manager and would be trained in those capacities. See Patricia Tischio Aff. P 4. Patricia Tischio also asserts Hugo Surmonte promised her that, if she left her then current employment to work for Bontex, she would have "employment with Bontex in Newark or the vicinity for as long as [she] desired." Id. P 3; see Complaint PP 4, 6.

 The promise to Patricia Tischio of lifetime employment appears to have been confirmed several years later in a letter, dated 24 January 1994, (the "24 January 1998 Letter") from Hugo Surmonte to Patricia Tischio. See Complaint P 8; Exhibit A to Patricia Tischio Aff. The mother of Patricia Tischio, Marie Surmonte ("Marie Surmonte"), also signed a statement (the "25 November 1994 Statement"), transcribed by one of her nurses, stating that James Kostelni had promised her and Hugo Surmonte that Patricia Tischio would have a lifetime job with Bontex. See Patricia Tischio Aff. P 6; Exhibit B to Patricia Tischio Aff.

 Patricia Tischio contends that, following the death of Hugo Surmonte in October 1994, James Kostelni began transferring the important operations of Bontex from the New Jersey Facility to the Virginia Facility. See Complaint P 9; Patricia Tischio Aff. P 5. Patricia Tischio contends her responsibilities at Bontex were diminished because of the transfer of these operations. See Patricia Tischio Aff. P 5. James Kostelni allegedly assured Patricia Tischio her responsibilities would be returned to the New Jersey Facility in the future. See id.

 On 25 June 1997, a meeting of the Bontex Board was held in Lexington, Virginia. See James Kostelni Aff. P 8. At the meeting, all members of the Bontex Board, with the exception of Patricia Tischio, voted to close the New Jersey Facility permanently. See id. PP 8, 11. Patricia Tischio attended the meeting but abstained from voting on the closure of the New Jersey Facility. See id. P 8. On the same day, Patricia Tischio was advised by Bontex that her position would be terminated, effective January 1998. See Complaint P 9; Patricia Tischio Aff. P 5. It appears she is still a member of the Bontex Board.

 Patricia Tischio contends her termination is, among other things, a breach of the alleged lifetime employment contract she had with Bontex. See Complaint PP 4-12. She also contends her termination is discriminatory because Bontex has decided to retain as an employee in New Jersey an individual employed at the New Jersey Facility, Simon Grubin ("Grubin"), who is male and younger than she. See id. PP 17-20.

 Discussion

 The Defendants argue the instant action should be transferred to the Western District of Virginia because it is the forum most convenient to the majority of the parties and witnesses and such transfer will best serve the interests of justice. See Moving Brief at 1. The Defendants also argue most of the sources of proof are located in the Western District of Virginia. See id.

 Patricia Tischio argues the transfer of the action to the Western District of Virginia would be "manifestly unjust and improper" because twelve potential non-party witnesses reside in or near New Jersey and also because she contends New Jersey law will govern the issues involved in the action. See Opposition Brief at 1.

 A. Proper Venue

 The Amended Notice of Removal asserts jurisdiction is based upon 28 U.S.C. § 1332 ("Section 1332"). *fn4" See Amended Notice of Removal P 5. Because jurisdiction is founded solely upon diversity of citizenship, subsection (a) of section 1391 of Title 28 ("Section 1391") of the United States Code governs in which district venue is proper for the adjudication of this action. See 28 U.S.C. § 1391(a).

 Section 1391(a) provides:

 
(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, 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 omissions 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 time the action is commenced, if there is no district in which the action may otherwise be brought.

 Id. (emphasis added). For purposes of Section 1391, "a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." 28 U.S.C. § 1391(c); see Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).

 Bontex appears to be a "resident" of the State of New Jersey because it is subject to personal jurisdiction here by virtue of, among other things, its maintenance of the New Jersey Facility. James Kostelni and Dolores Kostelni, however, are not residents of the State of New Jersey. See James Kostelni Aff. P 1; Dolores Kostelni Aff. P 1. Venue is not proper in this District pursuant to subsection (1) of Section 1391(a) because all of the Defendants do not reside in this District. See 28 U.S.C. § 1391(a)(1). Venue would be proper in this District only if a substantial part of the events or omissions giving rise to the claims by Patricia Tischio occurred in New Jersey. See 28 U.S.C. § 1391(a)(2).

 In determining where a substantial part of the events or omissions giving rise to a claim arises for purposed on Section 1391, three factors are relevant: (1) the place of injury; (2) the "weight of contacts"; and (3) whether a substantial part of the events or omissions giving rise to the claim occurred in the district. See Eason v. Linden Avionics, Inc., 706 F. Supp. 311, 329 (D.N.J. 1989).

 The central basis for the action by Patricia Tischio is that her alleged lifetime employment contract with Bontex was wrongfully terminated by Bontex when it decided to close the New Jersey Facility. See Complaint PP 4-12. Such decisions to close the New Jersey Facility and to terminate Patricia Tischio occurred in Virginia on 25 June 1997 at the meeting of the Bontex Board. See Patricia Tischio Aff. P 5; James Kostelni Aff. P 8.

 Patricia Tischio also alleges James Kostelni and Dolores Kostelni tortiously interfered with her alleged lifetime employment contract. See Complaint PP 21-23. Although unclear from the Complaint, such alleged tortious interference with the contract appears to have occurred in Virginia where James Kostelni and Dolores Kostelni reside. See James Kostelni Aff. P 1; Dolores Kostelni Aff. P 1.

 Patricia Tischio also contends she was discriminated against when Bontex decided to retain Grubin as an employee instead of retaining her. See Complaint PP 17-20. The corporate headquarters of Bontex, and presumably the place where employment decisions are made, is located in Virginia. See James Kostelni Aff. P 3. In addition, decisions regarding the duties of the employees of Bontex involve the Human Resources Department of Bontex which is also located in Virginia. See id. P 8.

 Based on the foregoing, it appears a substantial part of the events or omissions giving rise to the claims by Patricia Tischio did not occur in this District but rather occurred in Virginia. See Complaint. Venue appears to be improper in this District in accordance with Section 1391(a). See 28 U.S.C. § 1391(a). Accordingly, the action must either be dismissed, or, if it is in the interest of justice, it must be transferred to a district in which it could have been brought in the first place. See 28 U.S.C. § 1406(a) ("Section 1406(a)"); *fn5" see also Jumara, 55 F.3d at 878.

 Despite the foregoing, Patricia Tischio argues her cause of action arose in New Jersey and venue is therefore proper in this District. See Opposition Brief at 10-11. This contention is premised on the fact that the claims of Patricia Tischio arise out of her employment in New Jersey by a former New Jersey corporation and the fact that the alleged promise of a lifetime employment contract was made in New Jersey. See id. at 10. In addition, she argues her injury, namely the termination of her employment and violation of her employment rights, occurred in New Jersey. See id. at 11.

 Even if the contentions of Patricia Tischio are correct and venue is proper in this District pursuant to Section 1391(a), the action nevertheless may be transferred for the convenience of the parties and the witnesses and in the interests of justice. See 28 U.S.C. § 1404(a) ("Section 1404"). Such transfer appears appropriate for several reasons.

 First, it appears Dolores Kostelni is not subject to personal jurisdiction in New Jersey. *fn6" See Dolores Kostelni Aff. P 1. Thus, if this action were to proceed in this ...


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