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Santi v. National Business Records Management

July 7, 2010


The opinion of the court was delivered by: Rodriguez, Senior District Judge



Presently before the Court is Defendant's motion to transfer venue pursuant to 28 U.S.C. § 1404, or in the alternative to dismiss pursuant to the doctrine of forum non conveniens. [Dkt. Entry No. 6.] Defendant, National Business Records Management, LLC ("BRM"), seeks transfer of Plaintiff's employment discrimination claims from this Court to the United States District Court for the Western District of Pennsylvania. BRM concurrently filed a motion to dismiss Counts II, III, IV, and VI of Plaintiff's Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) [Dkt. Entry No. 7], but asked that this Court not consider that motion until it resolved the issue of forum. The Court heard oral argument on the motions on May 10, 2010. For the reasons expressed on the record that day, as well as those set forth below, Defendant's motion to transfer venue pursuant to 28 U.S.C. § 1404(a) [6] is GRANTED. Accordingly, the motion to dismiss pursuant to the doctrine of forum non conveniens [6] and the motion to dismiss under Fed.R.Civ.P 12(b)(6) [7] are not considered herein.


Plaintiff, Frank Santi ("Santi" or "Plaintiff") was employed by BRM for three days, at which point he alleges his employment was unlawfully terminated. Santi is a citizen of the state of New Jersey, and BRM is a Pennsylvania company with its principal place of business in Pittsburgh, Pennsylvania. On or about April 19, 2008, Santi completed an "on-line interview" for employment with Defendants on his home computer. (Amended Compl. at ¶ 19.) Santi subsequently spoke on the telephone with BRM's Chief Executive Officer, Christopher Neefus ("Neefus"), regarding the position of Executive Vice President. (Aff. of Pl., Frank Santi in Support of Pl.'s Opposition to Def.'s Motion to Transfer Venue at ¶ 4.) On or about May 12, 2008, Neefus, acting on behalf of Defendant, indicated that BRM would make Santi an offer of employment. (Amended Compl. at ¶ 20.) It was contemplated that Santi would work mainly from his home in New Jersey until Defendant opened an office in Philadelphia, Pennsylvania at which time Santi would work there. (Amended Compl. at ¶22.) Negotiations continued, but Santi ultimately accepted Defendant's offer of employment and began working on Monday, June 16, 2008. (Amended Compl. at ¶ 21.)

Santi and Neefus met in person on two occasions prior to June 16, 2008, in order to discuss the terms of plaintiff's employment. Their first meeting took place in Conshohocken, Pennsylvania, near Neefus's home. Santi and Neefus met a second time at a diner in New Jersey near Santi's home. (Aff. of Pl., Frank Santi in Support of Pl.'s Opposition to Def.'s Motion to Transfer Venue at ¶ 5.)

On June 16, 2008, Santi traveled to Pittsburgh, Pennsylvania where he met with Neefus, Steven Wright, BRM's president, and Joe Gross, Defendant's sales manager. (Amended Compl. at ¶ 24.) During that meeting he was told that even though he was being hired as Executive Vice President, as part of his orientation he would have to do each job in the warehouse, which included climbing ladders and moving boxes. (Amended Compl. at ¶ 25.) Mr. Neefus asked Plaintiff if he would be able to do the physical activities despite his "bum knee," referring to a slight limp that occasionally affects Plaintiff's right knee. (Amended Compl. at ¶ 26.) At the mention of a knee problem, Mr. Wright accused Plaintiff of knowingly concealing a condition from them and taking the job only for health benefits. (Amended Compl. at ¶ 27.) He said words to the effect of Plaintiff wanting to have surgery on Defendant's benefits, which would cause premiums to go up. (Amended Compl. at ¶ 27.) Wright referred to Santi as a "workmen's comp [sic] case waiting to happen." (Amended Compl. at ¶ 27.)

Santi attempted to explain that he had no diagnosis of any problems in his knee, had no significant problems with the use of his knee, and had no intention of having his knee examined by a doctor as it was simply not a significant impediment. (Amended Compl. at ¶ 30.) Plaintiff pointed out that any problem with his knee did not interfere with his active physical life, such as mountain biking. (Amended Compl. at ¶ 30.) However, despite Santi's assurances, Neefus indicated that Santi's "bum knee" concerned Defendant. (Amended Compl. at ¶ 32.) In that same conversation, Neefus also advised Santi that Defendant was troubled by a prior lawsuit Santi brought in December of 2007 against his former employer alleging age discrimination and retaliation. (Amended Compl. at ¶¶ 18, 31.)

On June 18, 2008, Santi's third day of employment, he was called into a meeting with Neefus and the Director of Finance and Human Resources, Linda Mottern. (Amended Compl. at ¶ 32.) In that meeting Neefus notified Santi that he was being terminated, effective immediately. He explained, "[b]etween the knee thing and the [litigation] thing, I just don't have the trust level for you." (Amended Compl. at ¶ 32.) Later in the meeting Neefus repeated his fear that Santi would sue the company if they kept him on as an employee. (Amended Compl. at ¶ 32.) At this termination meeting, Santi was presented with a release agreement, which he was told, he could have reviewed by a lawyer. Neefus commented sarcastically that he knew Santi would. (Amended Compl. at ¶ 33.)

On or about December 11, 2008, Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging BRM unlawfully terminated his employment. (Amended Compl. at ¶ 15.) Santi cross-filed his claim with the Pennsylvania Human Relations Commission. (Aff. of David M. Walsh, Pl.'s Election Option to Dual File with the Pennsylvania Human Rights Commission, Ex. B.) The EEOC subsequently issued Plaintiff a notice of dismissal and right to sue on or about July 6, 2009. (Amended Compl. at ¶ 16.) On September 30, 2009, Santi then filed this action in the Federal District Court for the District of New Jersey alleging he was terminated in violation of the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 (Amended Compl., Count I), the New Jersey Law Against Discrimination (NJLAD), N.J. Stat. Ann. § 10:5-1 (Amended Compl., Count II), the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 (Amended Compl., Count III), the Pennsylvania Human Relations Act (PHRA), 43 P.S. § 951 (Amended Compl., Count IV), Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 (Amended Compl., Count V), and Pennsylvania common law (Amended Compl., Count VI). Santi specifically alleges that Defendant retaliated against him because he had previously filed a lawsuit alleging violations of the ADEA and the NJLAD; that Defendant terminated him because it regarded him as having a disability in violation of the ADA and the PHRA; that Defendant terminated him with an intent to deprive him of benefits to which he otherwise would have been entitled in violation of Section 510 of ERISA; and that Defendant terminated him because he had filed a civil lawsuit and because it believed that he was likely to file a workers compensation claim in violation of the public policy of the Commonwealth of Pennsylvania.

First the Court must determine whether the case should be here, or whether it should be transferred to the Western District of Pennsylvania where the alleged discrimination giving rise to this cause of action took place and where Defendant is located.


Pursuant to Section 1404, a court may transfer a civil action to any other district where the case might have been brought if the transfer serves "the convenience of parties and witnesses, [and is] in the interest of justice." 28 U.S.C. § 1404(a). The moving party bears the burden of establishing that the transfer is appropriate and must establish that the alternate forum is more convenient than the present forum. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). The Court has broad discretion in making determinations under Section 1404(a), and convenience and fairness are considered on a case-by-case basis. Commodity Futures Trading Comm'n v. Perkins, No. 06-4674, 2007 WL 2122029, at *3 (D.N.J. July 18, 2007).

Section 1404 requires a two-pronged analysis. The threshold inquiry is whether the proposed forum is one in which Plaintiff could have originally brought suit. In this case jurisdiction is predicated on the diversity of the parties under 28 U.S.C. ยง 1332. Where jurisdiction ...

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