Opinion
04 Civ. 0643 (DAB).
July 7, 2005
MEMORANDUM ORDER
Plaintiff Michael Cower ("Cower") originally filed this action in the Supreme Court of New York, New York County. The case was removed to the Southern District of New York, pursuant to 28 U.S.C. § 1441(b). The Complaint alleges violations of Title IX of the Education Amendments Act of 1972, New York State Human Rights Law, the Code of the City of Albany, and state contract and tort law. Defendants now move to transfer the action to the Northern District of New York, pursuant to 28 U.S.C.A. § 1404(a). Plaintiff's counsel also has filed a Notice of Motion to withdraw as counsel and requests that a retaining lien be fixed. Plaintiff has filed a Statement in Opposition to said motion to withdraw. For the following reasons, Defendants' motion to transfer is GRANTED; Plaintiff's counsel's motion to withdraw is GRANTED; and Plaintiff's counsel's request for a retaining lien is DENIED.
I. BACKGROUND
Plaintiff, a resident of New York City, is a former student of Albany Law School. (Compl. ¶ 9.) Defendant Albany Law School of Union University ("ALS") is an accredited educational institution (Compl. ¶ 2), and Defendant Union University ("Union") is comprised of several higher education institutions in the Albany area, including ALS. (Compl. ¶ 3.) Defendant Thomas Guernsey ("Guernsey") is and was President and Dean of ALS. (Compl. ¶ 4.) Defendant John Springsteen is and was at all times employed by ALS in the Office of Administrative Services. (Compl. ¶ 5.)
In 2002, the Plaintiff enrolled at ALS as a first-year law student. (Compl. ¶ 9.) The plaintiff alleges that, beginning at the first-year student orientation on or about August 19, 2002, Defendant Springsteen and other employees of ALS commenced a pattern of harassing behavior and discrimination against Plaintiff based on his sex, sexual orientation and sex stereotyping. (Compl. ¶ 11.) Plaintiff alleges that his photograph appeared in the "Class of 2005 Student Register," which is distributed to the law school community, with a "sex-based derogatory innuendo" printed beneath his photo. (Compl. ¶ 12.) Plaintiff alleges that Defendant Springsteen, joined by other ALS employees, engaged in a pattern of harassment, which included ridiculing, harassing, gender stereotyping and making derogatory comments and threats to the Plaintiff. (Compl. ¶¶ 14-16.) On or about December 5, 2002, Plaintiff attempted to meet with Defendant Guernsey regarding how he was being treated, and he also filed a written complaint. (Compl. ¶ 20.) Plaintiff contends that Defendant Guernesey was indifferent to his complaints and that ALS failed to respond to his concerns. (Compl. ¶ 21.) Plaintiff withdrew from ALS after his first semester, "because he could no longer tolerate the hostile environment" (Compl. ¶ 23.)
II. DISCUSSION
A. Defendants' Motion to Transfer Venue
Defendants move to transfer this suit to the Northern District of New York pursuant to 28 U.S.C. § 1404(a). "[M]otions for transfer lie within the broad discretion of the district court and are determined upon notions of convenience and fairness on a case-by-case basis." In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). Courts make a two-pronged inquiry when deciding whether transfer is proper: first, the court must determine whether the action could have been brought in the proposed transfer forum; second, the court must determine whether the interest of justice and the convenience of witnesses make transfer appropriate. Berman v. Informix Corp., 30 F.Supp.2d 653, 656 (S.D.N.Y. 1998).
This statute states: "For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a).
1. Appropriateness of Venue in Northern District of New York
Under 28 U.S.C. § 1391(b), this suit initially could have been brought in the Northern District of New York. All the Defendants reside or are located in the Northern District of New York. (Compl. ¶¶ 2-3; Defs.' Mem. Law at 3.) Furthermore, Plaintiff contends that the bases of his claim "arise out of plaintiff's enrollment, attendance and termination of his attendance at ALS" as well as "ALS' and Union's improper and wrongful hiring and retention of inappropriate individuals unsuitable to work in an academic setting." (Compl. ¶ 7.) As all of the Defendants reside in the Northern District of New York, which is where the events that underlie Plaintiff's claim occurred, this action clearly could have been brought initially in the Northern District of New York. Accordingly, the first prong of the inquiry is satisfied and the Court will address the second prong regarding whether transfer is appropriate.
28 U.S.C. § 1391(b) reads in pertinent part:
A civil action wherein jurisdiction is not founded solely 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 (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
2. Interest of Justice and Convenience of Witnesses
Once a determination has been made that the case could have been brought in the transferee forum, the Court considers whether transfer is appropriate based on 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 governing law; (8) the weight accorded the plaintiff's choice of forum; and (9) trial efficiency and the interest of justice. Clesi v. Zinc Corp. of America, No. 00 Civ. 6786, 2001 U.S. Dist. LEXIS 2128, at *5. (S.D.N.Y. Mar. 6, 2001) (citing Berman, 30 F.Supp. 2d at 657).
The first factor, that of convenience of witnesses, "is probably the single-most important factor in the analysis of whether transfer should be granted." Berman, 30 F.Supp. 2d 653, 657 (quoting Frene N.V. v. Kmart Corp., No. 96 Civ. 9585, 1998 WL 427688, at *2, 1998 U.S. Dist. LEXIS 11572 (S.D.N.Y. July 29, 1998)) (quoting Frasca v. Yaw, 787 F.Supp. 327, 331 (E.D.N.Y. 1992)). Plaintiff contends that defendants moving for transfer must submit the names of witnesses who will be inconvenienced, a statement of what their testimony will cover, and the specific hardships they would suffer if compelled to travel to the original venue, which Defendants here did not do. (Pl.'s Mem. Law at 9) (citing Capitol Records v. Kuang Dyi Co. of RM, No. 03 Civ. 0520, 2004 WL 405961, at *3 (S.D.N.Y. March 4, 2004); Arrow Electronics, Inc. v. Ducommun, Inc., 724 F. Supp. 264, 267 (S.D.N.Y. 1989)). However, in cases where the events demonstrate that the majority of witnesses are located in the transferee district, it is unnecessary to submit a statement naming the witnesses who will specifically be inconvenienced by maintaining the present venue. See MBCP Peerlogic LLC v. Critical Path, Inc., No. 02 Civ. 3310, 2002 U.S. Dist. LEXIS 23268, at *10 (S.D.N.Y. Dec. 4, 2002). Defendants have provided an initial list of five witnesses, all of whom are employees of the law school, and who live in the Northern District. (Defs.' Reply Mem. Law at 9.) There is a distinct possibility that making the witnesses and Defendants travel for a trial to the Southern District during the school year could "overly disrupt their professional lives as well as innumerable others, such as students and administrative staff." Watkins v. Harvard Univ., No. 89 Civ. 2602, 1989 U.S. Dist. LEXIS 19122, at *8 (E.D.N.Y. Nov. 3, 1989). See also Douglas v. Syracuse University College of Law, No. 94 Civ. 9195, 1995 WL 555693 (S.D.N.Y. Sept. 18, 1995) (granting defendant Syracuse Law School's motion transfer to the Northern District of New York from the Southern District, in part because defendant was prepared to call former student's first-year professors as witnesses, which would disrupt several first-year classes). Furthermore, ALS is located in the Northern District of New York, individual Defendants are ALS employees, and the alleged events occurred in the Northern District, so it is logical to conclude that most, if not all, of any additional witnesses also will be from the Northern District. Accordingly, based on the convenience of the witnesses, this factor weighs heavily in favor of transfer.
With respect to the convenience of the parties, this factor is not dispositive for either party, as one side will be inconvenienced in whichever district the case is litigated.
The third consideration is the location of relevant documents and the relative ease of access to sources of proof. "[A]ccess to documents and other proof is not a persuasive factor in favor of transfer without proof that documents are particularly bulky or difficult to transport, or proof that it is somehow a greater imposition for defendant to bring its evidence to New York than for plaintiff to bring its evidence to [the moving party's proposed forum]." Constitution Reinsurance Corp. v. Stonewall Ins. Co., 872 F.Supp. 1247, 1251 (S.D.N.Y. 1995) (quotingSunshine Cellular v. Vanguard Cellular Systems, Inc., 810 F.Supp. 486 (S.D.N.Y. 1992)). Because all the events occurred in the Northern District of New York, it is probable that all of the documentation and proof is there. There is no evidence that transportation of such documents to the Southern District would be extraordinarily inconvenient or impossible, but certainly doing so would inconvenient.
As to the fourth factor, the locus of operative facts, "[o]ne party's residence in a chosen forum, without more connecting a case to that forum, is insufficient to keep a case in that forum." Watkins v. Harvard Univ., No. 89 Civ. 2602, 1989 U.S. Dist. LEXIS 19122, at *10 (E.D.N.Y. Nov. 3, 1989). It is undisputed that all the alleged events took place at ALS, which is located in the Northern District of New York, and it is undisputed that the only connection to the Southern District is that the Plaintiff resides here. Accordingly, this factor weighs heavily in favor of transfer.
The fifth factor is the availability of process to compel the attendance of unwilling witnesses. Albany is approximately 135 miles from New York City, and outside the 100-mile subpoena range to compel any available witnesses. There is no reason to believe there will be any witnesses that require a subpoena in this case, however, as it is most likely that the majority of the witnesses called will be residents of the Northern District, the ability to compel those witnesses, if necessary, favors transfer.
Fed.R.Civ.Pro. 45(b)(2) states in pertinent part, "a subpoena may be served at any place within the district of the court by which it is issued, or at any place without the district that is within 100 miles of the place of the deposition, hearing, trial, production, or inspection specified in the subpoena . . .".
Regarding the sixth factor, that of the relative means of the parties, "[w]here disparity exists between the parties, such as an individual plaintiff suing a large corporation, the relative means of the parties may be considered." Berman, 30 F.Supp.2d 653, 659 (citing Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 987 (E.D.N.Y. 1991)). In the instant case, the Plaintiff and the Defendants are of disparate means. At the time the transfer motion was made, Plaintiff was unemployed and had less than $2,000 in savings. (Cower Aff. at 2.) As institutional Defendants, ALS and Union certainly have greater financial resources, and the individual Defendants are ALS employees. Accordingly, this factor opposes transfer.
As to the forum's familiarity with the governing law, this factor is neutral with respect to the parties, as both venues have equal means of researching the relevant statutes and case law.
The next factor is the weight accorded the plaintiff's choice of forum. While significant deference is normally accorded to the plaintiff's choice of forum, the "plaintiff's choice of forum is given less weight where the case's operative facts have little connection with the chosen forum." UFH Endowment, Ltd. v. Nevada Manhattan Mining, Inc., No. 98 Civ. 5032, 2000 WL 1457320, at *5 (S.D.N.Y. Sept. 28, 2000) (quoting 1-800 Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.Supp. 128, 134 (S.D.N.Y. 1994)). In this instance, all the events in question occurred in the Northern District, while the Plaintiff resided in the Northern District. (Compl. ¶ 7.) Furthermore, the Defendants, witnesses, and documents concerning the allegations are in the Northern District. (Defs.' Reply Mem. Law at 8-9.) The sole connection to the Southern District is that the Plaintiff resides here (Compl. ¶ 1) and the weight afforded Plaintiff's choice of forum is justifiably diminished with respect to these circumstances.
The final factor to be analyzed is trial efficiency and the interest of justice based on a totality of the circumstances. The Plaintiff asserts that, due to the large number of attorneys and judges in Albany who attended ALS and the school's prestige and history in the Capital District, he will not be able to receive a fair trial in the transfer forum (Cower Aff. at 8), and that the "potential for bias against a litigant in a case against ALS and Union — particularly when the litigant is a homosexual male complaining of sex-based and sexual orientation discrimination — cannot be overstated." (Pl.'s Mem. Law at 7.) The Plaintiff also argues that he might not be able to find counsel to represent him in Albany if the matter is transferred, because of potential bias in the legal community in favor of ALS. (Pl.'s Aff. at 3.)
To compel a case to remain in a certain district requires proof of improper bias, which Plaintiff has failed to show here.Clesi, 2001 U.S. Dist. LEXIS 2128, at *7 (citing Berry v. New York State Dep't of Corr. Servs., 808 F.Supp. 1106, 1109-10 (S.D.N.Y. 1992); Salomon Bros. Inc. v. West Virginia State Bd. Of Investments, No. 89 Civ. 7088, 1990 U.S. Dist. LEXIS 2244 (S.D.N.Y. Mar. 1, 1990)). This Court will not indulge in speculation about why people sworn to uphold the tenets of justice would be prone to bias based on where they live or what school they attended. However, the Court acknowledges that potential for bias exists in any forum, and notes that the adversarial system contains mechanisms to address such concerns.
For example, the process of voir dire serves to identify potential jurors' attitudes toward the issues in a case to be tried, and the option for peremptory challenges serves to eliminate unfavorable or biased jurors.
Considering the totality of the circumstances, and in particular the location of the witnesses and the locus of operative facts, and considering that Plaintiff will not be unduly burdened by traveling from New York City to Albany, in the interest of justice, the motion to transfer is granted.
B. Plaintiff's Counsel's Motion to Withdraw
Plaintiff's counsel has filed a Notice of Motion to withdraw as counsel, and requests that a retaining lien be fixed. In his accompanying Declaration of Counsel, filed pursuant to Local Rule 1.4, Robert Herbst states:
Nowhere in Plaintiff's counsel's submissions does he specify what exactly he would keep as security in the event the Court were to grant the lien, but the Court presumes he wishes to keep his client's file and relevant papers related to the lawsuit.
This Declaration was filed ex parte and under seal in an attempt to avoid prejudicing counsel's client. Defendants opposed the ex parte application by letter to the Court. As Plaintiff's "Statement in Opposition of Motion to Withdraw as Counsel," which details the content of the Declaration, was served on Defendants, such secrecy now appears to be unnecessary.
In early July 2004 we sent Mr. Cower a letter an itemized bill for $6,817.88 reflecting the time spent and disbursements accrued for our work preparing the complaint and opposition papers and related work. Mr. Cower did not pay this bill, nor did he respond to our letter.
In January 2005, we sent Mr. Cower another itemized bill reflecting the additional time spent and expenses incurred for our work on his case from July through December 2004, including time spent filing the defendants' executed waivers of service of summons and reviewing the defendants' reply in further support of their motion to transfer venue and the defendants' answer to the complaint. Our January 2005 letter also reminded Mr. Cower of the money he owed us from last July. We advised Mr. Cower that he owed our firm in total $8,506.88 for our work on his case.
(Herbst Decl. ¶¶ 10-11.)
It is well settled that nonpayment of fees is a legitimate ground for granting counsel's motion to withdraw. E.g., Emile v. Browner, 95 Civ. 3836, 1996 U.S. Dist. LEXIS 18654, *2-*3, 1996 WL 724715 at *1 (S.D.N.Y. Dec. 17, 1996) ("When a client fails to pay legal fees, fails to communicate or cooperate with the attorney, . . . these are more than sufficient reasons for counsel to be relieved."); Allstate Insurance Co. v. Administratia Asigurarilor de Stat, 86 Civ. 2365, 1993 U.S. Dist. LEXIS 4853, 1993 WL 119708, at *1, *2 (S.D.N.Y. Apr. 15, 1993). It appears that whatever disputes exist between Plaintiff and his counsel, Plaintiff has not alleged that he has paid his counsel the outstanding balance his counsel claims he is owed. The Court cannot force Plaintiff's counsel to proceed pro bono, accordingly, standing alone, this is sufficient grounds to grant leave to withdraw. In light of counsel's representations to the Court that the Plaintiff has not paid legal fees already incurred, the Court GRANTS Plaintiff's counsel's application to withdraw, on the condition that Plaintiff's counsel serve copies of this Order upon Plaintiff and Defendants, and file proof of such service.
Counsel also requests that a retaining lien be fixed in the amount of $8,506.88. Under New York State law, "From the commencement of an action . . . the attorney who appears for a party has a lien upon his client's cause of action . . .". NY CLS Jud § 475. "[A] retaining lien entitles an attorney to keep, as security against payment of fees, all client papers . . . that come into the attorney's possession in the course of employment, unless the attorney is discharged for good cause." Resolution Trust Corp. v. Elman, 949 F.2d 624, 626 (2d Cir. 1991); see also, In re San Juan Gold Inc., 96 F.2d 60 (2d Cir. 1938) (stating that an attorney has a right to claim a lien on a client's records related to legal representation). Absent exigent circumstances, it is an abuse of a court's discretion to require a discharged attorney, claiming a lien, "to turn over papers subject to the lien upon the client's payment of his outstanding charges or posting of adequate security for payment." Pomerantz v. Schandler, 704 F.2d 681, 683 (2d Cir. 1983).
However, in certain actions, brought under federal statutes that contain fee-shifting provisions, federal law governs retaining liens, and such liens rarely are granted. See, e.g., Resolution Trust Corp. v. Elman, 949 F.2d 624, 627 (2d Cir. 1991); Wynn v. AC Rochester, 982 F. Supp. 926, 927 (W.D.N.Y. 1997). "Where a fee-shifting statute is involved, there is an implicit bargain between attorneys who undertake such cases and the public. . . . In federal question cases of this type [brought under the Rehabilitation Act and the Americans with Disabilities Act], retention of files should rarely if ever be permitted."Misek-Falkoff v. International Business Machs Corp., 829 F. Supp. 660, 64 (S.D.N.Y. 1993).
The present case is brought in part to remedy violations of Title IX of the Education Amendments Act of 1972. The Civil Rights Attorney's Fees Awards Act of 1976, Pub.L. 94-559, 90 Stat. 2641, as set forth in 42 U.S.C. § 1988, permits the award of attorney's fees to a prevailing party in certain federal civil rights actions, including those brought to enforce a provision under title IX of Public Law 92-318. Accordingly, as this is a civil rights case that involves a federal statute with a fee-shifting provision, counsel's request that a retaining lien be fixed is hereby DENIED.
III. CONCLUSION
Defendants' motion to transfer venue to the Northern District of New York is granted and the clerk of the court is directed to transfer the action. Furthermore, pursuant to Local Rule 1.4, Plaintiff's counsel is relieved as counsel. There shall be no retaining lien. Plaintiff SHALL (1) retain new counsel who shall file a notice of appearance with the Court in the Northern District of New York, OR (2) advise the Clerk of Court and Defendants that he has chosen to proceed pro se.
SO ORDERED.