Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Marracco v. Kuder

September 9, 2008

MARIAN R. MARRACCO, PLAINTIFF,
v.
ROBERT KUDER AND, REHABILITATION PLANNING, INC.,: DEFENDANTS.



The opinion of the court was delivered by: Noel L. Hillman, District Judge

OPINION

Before the Court is defendants' motion to transfer venue pursuant to 28 U.S.C. § 1404(a) and to dismiss plaintiff's claim brought pursuant to New Jersey's Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1 et seq. For reasons explained below, defendants' motion to transfer venue is denied but its motion to dismiss plaintiff's CEPA claim is granted.

I. JURISDICTION

This action was filed in the Superior Court of New Jersey, Law Division and removed to this Court on the basis of diversity. This Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1332. Plaintiff is a citizen of New Jersey. Defendant Robert Kuder is a citizen of Pennsylvania and defendant Rehabilitation Planning, Inc. is a Pennsylvania corporation with a principal place of business in Plymouth Meeting, Pennsylvania. Defendants have alleged that plaintiff's damages claim of lost salary and compensatory damages exceeds $75,000.00.

II. BACKGROUND

Plaintiff states that she began her employment with Rehabilitation Planning, Inc. ("RPI") after she was approached by Mary Beth Miloszar, a supervisor at RPI in the summer of 2007. Plaintiff states that she was hired by RPI on the basis of her New Jersey client contacts, including her working relationship with New Jersey Manufacturers Inc. Co. ("NJM"), and having previously worked in New Jersey for RPI.

On Thursday, December 6, 2007, plaintiff met with NJM supervisors about a bill that had been sent by RPI without her knowledge in the amount of $832.00. She approached Ms. Miloszar and spoke to her about the bill. Plaintiff states that Ms. Miloszar first agreed to go with her to speak to the president of RPI, defendant Robert Kuder, but then later became unavailable and told plaintiff to approach Mr. Kuder herself. Plaintiff then met with Mr. Kuder to discuss the NJM bill. Plaintiff alleges that Mr. Kuder refused to discuss the bill with her, or review the bill. She alleges that at that time she accused defendants of engaging in fraudulent billing practices. She also alleges that she learned that RPI kept all billings locked away in a separate office and that she only learned of the bill sent to NJM because it was brought to her attention by NJM. She further alleges that she learned that Mr. Kuder's response to her complaints about the NJM bill was to "flat-rate" it to $450.00, and later to reduce it to zero. Defendants allege that plaintiff became "quite demonstrative" on December 6, 2007, because she had to wait three hours to speak with Ms. Miloszar. They also deny that plaintiff accused them of engaging in fraudulent billing practices.

Plaintiff states that Ms. Miloszar telephoned her repeatedly on Friday evening, December 7, 2007 and again on Sunday, December 9, 2007 and alleges that Ms. Miloszar induced her to send emails to Mr. Kuder and to another RPI employee, Barbara Stone, apologizing for plaintiff's "outburst" on Thursday, December 6, 2007. She states that after she was induced to send the emails, Ms. Miloszar emailed her a "written warning and probation extension" on Sunday evening and then came to her house in New Jersey on the morning of December 10, 2007, to deliver a hard copy of the document. Plaintiff alleges that Ms. Miloszar told her that if she refused to sign the warning she would be immediately terminated. Plaintiff refused to sign the warning and instead prepared a written response regarding her objections to the NJM billing and the events that had occurred over the past few days. Specifically, in her response plaintiff wrote that although Ms. Miloszar's email referred to a "probation extension," it was the first time plaintiff had learned of any reference to a probationary period which included newly created productivity goals.*fn1 On December 13, 2007, plaintiff resigned.

Plaintiff filed a complaint against defendants for violation of New Jersey's CEPA statute, as well as a claim sounding in common law defamation. Plaintiff also requested that the Court enjoin defendants from disseminating the correspondence written by plaintiff to defendants regarding the events at issue in this case. Defendants move to have this case transferred to the U.S. District Court for the Eastern District of Pennsylvania and, alternatively, to have plaintiff's CEPA claim dismissed.

III. DISCUSSION

A. Transfer of Venue Pursuant to § 1404(a)

Defendants argue that this case could have been brought in the United States District Court for the Eastern District of Pennsylvania and should be transferred to that Court. Under § 1404(a), a court may transfer an action to any other proper venue for the convenience of the parties or in the interest of justice. See 28 U.S.C.A. § 1404(a).*fn2 Unlike § 1406(a)*fn3 which requires transfer or dismissal because the case was brought in the wrong district, under § 1404(a), the venue is proper but the district court has the discretion to transfer a case for the convenience of the parties or in the interest of justice. See Sinochem Intern. Co. Ltd. v. Malaysia Intern., 127 S.Ct. 1184, 1990-91 (2007) (relying on Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962)); Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (finding that § 1404(a) was intended to place discretion in the district court to adjudicate motions for transfer according to an "individualized, case-by-case consideration of convenience and fairness.")(citing Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)); Lafferty v. St. Riel, 495 F.3d 72 (3d Cir. 2007)(stating that "Section 1404(a) transfers are discretionary determinations made for the convenience of the parties and presuppose that the court has jurisdiction and that the case has been brought in the correct forum.") (citing Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995) and 17A Moore's Federal Practice, § 111.02 (Matthew Bender 3d ed. 2006)). The burden of showing a need for transfer is on the movant. In re Amendt, 169 Fed.Appx. 93 (3d Cir. 2006)(citing Jumara, 55 F.3d at 879).

Generally, when considering a motion to transfer under § 1404(a), district courts not only weigh the enumerated factors in § 1404(a) (convenience of parties, convenience of witnesses, or interests of justice), but also can "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." Jumara, 55 F.3d at 879 (citing 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3847 (2d ed. 1986)). While there is no definitive formula or list of factors to consider for a motion to transfer under § 1404(a), often courts consider certain private and public factors. Id.

The private interests have included: plaintiff's forum preference as manifested in the original choice; the defendant's preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses-but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the location of books ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.