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denying transfer motion because "[t]he defendants have waited too long to make this motion for such a transfer to be in the interests of justice"
Summary of this case from Awolesi v. McDonaldOpinion
02 Civ. 7655 (RWS)
June 9, 2003
JANE BILUS GOULD, ESQ., LOVETT GOULD, White Plains, NY, Attorneys for Plaintiff
JONATHAN A. WEXLER, ESQ., VEDDER, PRICE, KAUFMAN KAMMHOLZ, New York, NY, Attorneys for Defendants Frank G. Straub, Elisabeth Wallace, George Gretsas and Edward Dunphy
JEFFREY K. VAN ETTEN, ESQ., KRAL, CLERKIN, REDMOND, RYAN, PERRY GIRVAN, New York, NY, Attorneys for Defendants John Dolce and Daniel Hickey
JOSEPH A. MARIA, ESQ., White Plains, NY, Attorneys for Defendants John Dolce and Daniel Hickey
O P I N I O N
Defendants Daniel Hickey ("Hickey") and John Dolce ("Dolce") have moved to transfer to White Plains, New York this action, in which plaintiff Dorothy Anne Brennan ("Brennan") alleges violations of her civil rights in contravention of Title VII of the Civil Rights Act of 1964 ("Title VII"), codified at 42 U.S.C. § 2000e et seq. and 42 U.S.C. § 1983. Defendant the City of White Plains (the "City") has joined in the defendants' request to transfer.
For the following reasons, that motion is denied.
Prior Proceedings The parties and proceedings discussed herein are described in greater detail in Brennan v. Straub, 246 F. Supp.2d 360 (S.D.N.Y. 2003), familiarity with which is presumed.
Brennan commenced this action on September 23, 2002. The defendants filed a motion to dismiss the action on December 11, 2002. On February 27, 2003, that motion was granted in part, and denied in part.
The defendants filed the instant motion on April 28, 2003. It was considered fully submitted on May 14, 2003.
Discussion
I. Section 1404 Does Not Apply
Although the City described the motion as one pursuant to 28 U.S.C. § 1404, and all the parties have utilized the applicable language contained therein, Section 1404 does not apply when parties seek to transfer a case from the Foley Square courthouse to the White Plains courthouse, both of which are located in the Southern District of New York. E.g., Thrower v. Pozzi, 2002 WL 91612 (S.D.N.Y. Jan. 24, 2002) (rejecting argument that § 1404 applies, and instead looking to Local Rules 21 and 22 of the Rules for the Division of Business Among District Court Judges); Muhammed v. C.O. Catletti, 2000 WL 1641246 (S.D.N.Y. Oct. 31, 2000) (same). As a result, this motion will be treated as one brought pursuant to Local Rules 21 and 22.
II. Rules 21 and 22
Rule 21 provides in pertinent part that "[a] civil case shall be designated for assignment to White Plains if: (i) the claim arose in whole or in major part in the Count[y] of . . . Westchester (the "Northern Counties") and at least one of the parties resides in the Northern Counties." Rule 22 provides in pertinent part that "[t]he attorney for any other party may move for the reassignment of the case to the other place of holding court . . . in the interest of justice or sound judicial administration."
The case originally could have been assigned to White Plains pursuant to Rule 21, as all of the parties reside in Westchester County, and the events alleged in the complaint occurred there. However, the Rules "do not create any right to such a transfer, even when the facts bring the case within the category of cases which, under Rule 21(a), `shall be designated for assignment to White Plains.'" Ginsberg v. Valhalla Anesthesia Assocs., 171 F.R.D. 159, 160 (S.D.N.Y. 1997) (citation omitted). As stated in the introduction to the Rules: "[t]hese Rules are adopted for the interior management of the case load of the court and shall not be deemed to vest any rights in litigants or their attorneys." Therefore, it must be determined whether the transfer should be effectuated "in the interest of justice."
The defendants have waited too long to make this motion for such a transfer to be in the interests of justice. It is true that the parties and potential witnesses to this action reside in Westchester County and the acts giving rise to the cause of action occurred there as well. Had the defendants made the motion to transfer prior to moving to dismiss the action pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, their plea may have been granted. Instead, they waited until after the motion to dismiss had been determined, and after approximately seven months had passed since the commencement of the action.
In addition, this action was accepted as one related to an earlier case filed by Brennan before this Court, Brennan v. City of White Plains, 97 Civ. 2709. The relatedness of the case also supports denial of this motion. E.g., Puglisi v. Underhill Taxpayers Ass'n, 159 F.R.D. 416, 418 (S.D.N.Y. 1994) (denying motion where case related to another case pending at Foley Square); Rodriguez v. County of Orange, No. 93 Civ. 6165, 1993 WL 427426 (S.D.N.Y. Oct. 18, 1993) (same).
Given the fact that the defendants delayed seven months before making this motion and that this Court has obtained some familiarity with the case and the parties because of both this and the prior action before it, the motion pursuant to Rule 22 must be denied as it is not in the interests of justice or sound judicial administration.
Conclusion
For the foregoing reasons, the defendants' motion to transfer is denied.
It is so ordered.