From Casetext: Smarter Legal Research

Ring v. Executive Jet Aviation, Inc.

United States District Court, S.D. New York
May 8, 2001
01 CIV. 738 (DLC) (S.D.N.Y. May. 8, 2001)

Summary

finding that the totality of the circumstances supported the defendant's motion to transfer where the "material facts that support plaintiff's allegations occurred in Ohio, and the documents and witnesses that can prove or disprove these claims are in Ohio"

Summary of this case from Travelers Prop. Cas. Co. of Am. v. Ocean Reef Charters LLC

Opinion

01 CIV. 738 (DLC)

MAY 8, 2001

Andrew Ring, Pro Se, Staten Island, N.Y. for plaintiff.

Robert Piliero, Pihero, Goldstein, Jenkins Sullivan, LLP, New York, N.Y. for defendant.


OPINION AND ORDER


In his complaint, filed January 30, 2001, plaintiff pro se Andrew Ring ("Ring") asserts that defendant Executive Jet Aviation, Inc. ("Executive Jet") discriminated against him on the basis of national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), and on the basis of age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA") Defendant has moved to dismiss for improper venue and insufficiency of service of process. In the alternative, defendant has moved to transfer venue to the Southern District of Ohio pursuant to either 28 U.S.C. § 1406 (a) or § 1404(a). For the reasons set forth below, defendant's motion to transfer is granted.

BACKGROUND

The following facts are either undisputed or are alleged by plaintiff and accepted as true for purposes of this motion. Plaintiff is a New York State resident who lives in Staten Island, New York. Defendant is a Delaware Corporation with its principal place of business in Columbus, Ohio. In October 1999, Ring applied for a position as a pilot with Executive Jet. On or about January 11, 2000, Executive Jet made Ring a conditional offer of employment as a First Officer in a Citation VII aircraft. Regular, full-time employment was contingent upon the successful completion of Executive Jet's training program.

The parties do not address the fact that Staten Island is in the Eastern District of New York.

The academic portion of Ring's training with Executive Jet was conducted in Columbus, Ohio. After Ring completed the academic portion, he was sent to a training facility in Toledo, Ohio, to receive a "type rating" in the Citation VII aircraft. After he received the type rating, Ring returned to Executive Jet's facility in Columbus, Ohio, for the actual flight portion of his training.

The flight portion of the training program consisted of test flights ("check rides"), during which the trainee performed with an Executive Jet pilot who had been approved by the Federal Aviation Administration as a check airman. Ring participated in three check rides. Each check ride departed from and returned to Executive Jet's facility in Columbus, Ohio. Executive Jet pilot Don Ross ("Ross") served as the check airman on the first and second check rides, and Bill Greenwald ("Greenwald"), also an Executive Jet pilot, served as the check airman on the third check ride. Executive Jet pilot Joe Traudt observed the second ride, and Executive Jet Captain and Assistant Program Manager Peter Versloot observed the third check ride. Ross, Joseph Traudt, and Peter Versloot reside in Franklin County, Ohio. Greenwald resides in Cincinnati, Ohio.

Plaintiff asserts that Ross and Greenwald, "American[s]" who were "significantly younger" than he, were unduly critical of him during the check flights. Plaintiff asserts that they were not as critical of another pilot trainee, Joe Arton ("Arton"), who is also younger than Ring and an "American." Arton is now a pilot for Executive Jet. Because of reported errors during his three check rides, Ring did not successfully complete the flight portion of his training. On May 5, 2000, Executive Jet terminated Ring's employment.

Plaintiff received a right to sue letter from the Equal Employment Opportunity Commission on or about November 29, 2000. Plaintiff filed this complaint in the Southern District of New York on January 30, 2001.

DISCUSSION

A. Transfer of Venue

Section 1404(a) of Title 28, United States Code, allows for a transfer of venue "[f]or the convenience of parties and witnesses, [and] in the interest of justice." Such motions are in the Court's discretion to grant or deny and are "`determined upon notions of convenience and fairness on a case-by-case basis.'" Hall v. South Orange, 89 F. Supp.2d 488, 493 (S.D.N Y 2000) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992)). Courts should, ordinarily, defer to plaintiff's choice of venue, but may give the plaintiff's choice of forum substantially less deference when the "`operative facts upon which the litigation is brought bear little material connection to the chosen forum.'" Berman v. Informix Corp., 30 F. Supp.2d 653, 659 (S.D.N.Y. 1998) (citation omitted); see also Invivo Research, Inc. v. Magnetic Resonance Equip. Corp., 119 F. Supp. 2 d 433, 438 (S.D.N.Y. 2001); ZPC 2000, Inc. v. SCA Group, Inc., 86 F. Supp.2d 274, 280 (S.D.N.Y. 2000).

To determine whether a transfer is warranted, the Court must first determine whether the case could have properly been brought in the transferee court. Berman, 30 F. Supp.2d at 656. If the transferee court appears to have jurisdiction over the case, the Court must next consider whether the transfer is appropriate based upon several factors:

(1) the convenience of witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts, (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum's familiarity with the governing law, (8) the weight accorded the plaintiff's choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances.
Id. at 657.

It is undisputed that this case could have been brought in the Southern District of Ohio. The defendant's principal place of business is there, and a substantial part of the events giving rise to the claim occurred there. See 28 U.S.C. § 1391 (b).

The most important witnesses for plaintiff's case, with the exception of plaintiff himself, are in Ohio. All of the people mentioned in plaintiff's complaint reside in Ohio, and it is doubtful that plaintiff could prove his case without their testimony. All of the documents relevant to this case are also located in the Southern District of Ohio. Because the primary witnesses and documents in this case are in the Southern District of Ohio. transfer would make litigation of this case more convenient and less expensive.

Neither party states where Arton resides, but as a pilot for Executive Jet, he presumably resides in Ohio.

At issue in this case are the actions taken by defendant in terminating Ring's employment while he was a pilot in training with Executive Jet. All of Ring's academic and flight training occurrence Ohio. New York has no connection to this case beyond the fact that plaintiff resides in New York. Therefore, the locus of the operative facts is in the Southern District of Ohio.

Although plaintiff asserts that trial in Michigan would be "impossible" because of plaintiff's work schedule, he makes no showing of financial hardship that would prevent him from fully litigating this case there. The fact that plaintiff resides in New York and is bringing this actionpro se is in itself insufficient to shift the balance in favor of keeping the action in the Southern District of New York. See Berman, 30 F. Supp.2d at 657-58; Barge v. Daily Journal Corp., No. 95 Civ. 8135 (MBM), 1996 WL 434561, at *3-5 (S.D.N.Y. Aug. 2, 1996).

The interest in judicial efficiency and the interests of justice, based on the totality of the circumstances, further support defendant's request to transfer venue. A federal court in Ohio will be as familiar with the provisions of Title VII and the ADEA as a court sitting in New York. Each of plaintiff's claims is based on his assertion that defendant discriminated against him during Executive Jet's pilot training program. The material facts that support plaintiff's allegations occurred in Ohio, and the documents and witnesses that can prove or disprove these claims are in Ohio. The totality of circumstances, therefore, support defendant's motion to transfer. See, e.g., Invivo Research, 119 F. Supp.2d at 437-41; Douglas v. Syracuse Univ. Coll. of Law, No. 94 Civ. 9195 (LAP), 1995 WL 555693, at *3 (S.D.N.Y. Sept. 18, 1995).

B. Sufficiency of Service of Process

Defendant also argues that the complaint should be dismissed pursuant to Rule 12(b)(5), Fed.R.Civ.P., because plaintiff's service of process was improper. Rule 4(h)(1), Fed.R.Civ.P., provides that where a waiver of service has not been obtained, service upon a corporation shall be accomplished "by delivering a copy of the summons and of the complaint to an officer, a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process."

Plaintiff sent the summons and complaint to "Executive Jet Aviation, Inc." by certified mail. There was no indication on the face of the envelope that the certified mail was intended for an officer or agent of defendant, and the summons does not identify an officer or agent authorized to accept service of process. The summons and complaint were signed for and received by a mail room clerk employed by defendant's sister company, Executive Jet Services, Inc. Plaintiff does not dispute defendant's description of these events, but contends that he followed the instructions that he received from the Pro Se Office of the Southern District of New York.

As the time limit prescribed by Rule 4(m), Fed.R.Civ.P., has not yet expired, plaintiff may cure any defects in service by serving a copy of the summons and complaint on the defendant. The Court directs plaintiff's attention to the requirements of Rule 4, Fed.R.Civ.P., and in particular to Rule 4(h), Fed.R.Civ.P. If, at the expiration of the period prescribed in Rule 4(m), Fed.R.Civ.P., it appears that plaintiff has not properly served the defendant, the defendant may renew his motion in the Southern District of Ohio. Accordingly, the Court declines to dismiss the complaint against Executive Jet on the ground of improper service.

CONCLUSION

For the reasons stated, the defendant's motion to dismiss for insufficiency of service of process is denied. The defendant's motion to transfer venue is granted. The Clerk of Court shall send a certified copy of this Opinion and any original documents to the Clerk of Court for the Southern District of Ohio.

SO ORDERED:


Summaries of

Ring v. Executive Jet Aviation, Inc.

United States District Court, S.D. New York
May 8, 2001
01 CIV. 738 (DLC) (S.D.N.Y. May. 8, 2001)

finding that the totality of the circumstances supported the defendant's motion to transfer where the "material facts that support plaintiff's allegations occurred in Ohio, and the documents and witnesses that can prove or disprove these claims are in Ohio"

Summary of this case from Travelers Prop. Cas. Co. of Am. v. Ocean Reef Charters LLC
Case details for

Ring v. Executive Jet Aviation, Inc.

Case Details

Full title:ANDREW RING, Plaintiff, v. EXECUTIVE JET AVIATION, INC., Defendant

Court:United States District Court, S.D. New York

Date published: May 8, 2001

Citations

01 CIV. 738 (DLC) (S.D.N.Y. May. 8, 2001)

Citing Cases

Travelers Prop. Cas. Co. of Am. v. Ocean Reef Charters LLC

’ " Royal & Sunalliance , 167 F.Supp.2d at 579 (quoting Kanbar v. U.S. Healthcare, Inc. , 715 F.Supp. 602,…

TM Claims Service v. KLM Royal Dutch Airlines

(Def.'s Reply at 1). See, e.g., Ring v. Executive Jet Aviation, No. 01 Civ. 738, 2001 WL 492428, at *3…