RULING RE: DEFENDANT’S MOTION TO SEVER PLAINTIFFS’ CLAIMS AND TRANSFER VENUE AND FOR A STAY (Doc. No. 55)
I. INTRODUCTION
Thirty-nine plaintiffs bring this case against Home Depot U.S.A., Inc. (“Home Depot”), alleging violations of the Fair Labor Standards Act, 29 U.S.C. §§ 201 et seq. (“FLSA”), and the wage and hour laws of New Hampshire, New York, and Vermont. Home Depot moves to sever the claims of the thirty-five non-Connecticut plaintiffs and transfer their claims to the six other states in which they reside. Home Depot also moves to stay this case pending the resolution of its Motion to Sever and Transfer. For the reasons that follow, the Motion to Sever and Transfer is granted, and the Motion to Stay is denied as moot.
II. BACKGROUND
In 2004, the forerunner of this case, Aquilino v. Home Depot, was filed in the District of New Jersey, alleging, inter alia, that Home Depot misсlassified merchandising assistant store managers (“MASMs”) as exempt employees to avoid paying overtime as required by the FLSA. Plaintiffs alleged that MASMs, in actuality, have little or no management responsibility and should have been paid overtime. In 2006, the Aquilino court conditionally certified a nationwide collective action by
The parties engaged in discovery, including “corporate level discovery from the Hоme Depot,” and depositions of about sixty of the opt-in plaintiffs. Tr. of Telephonic Status Conference (Doc. No. 65) at 11. After a period of discovery, the Aquilino court granted Home Depot’s Motion to Decertify the conditional FLSA collective action. See Aquilino v. Home Depot, No. CIV 04-CV-4100 PGS,
After decertifying the collective action, the court dismissed the opt-in рlaintiffs without prejudice. The former opt-in plaintiffs then filed six multi-plaintiff actions, one of which is the case before this court. Each of the six actions has between thirty-nine and 103 plaintiffs from a regional cluster of states. This case includes four plaintiffs who are or were employed in Connecticut,
After the Panel denied the Motion to Consolidate, this court lifted its stay, see Order (Doc. No. 19), and Home Depot subsequently filed the Motion before the court. See Mot. to Sever (Doc. No. 55).
III. MOTION TO SEVER
A. Standard
Rule 21 providеs that a court “may sever any claim against a party.” Fed.R.Civ.P. 21. The decision whether to sever a claim “is committed to the sound discretion of the trial court.” Greystone Cmty. Reinv. Ass’n v. Berean Capital, Inc.,
B. Same Transaction or Occurrence
Home Depot argues that plaintiffs’ claims do not arise out of the same transaction or occurrence because each plaintiff’s claim will require individual analysis. See Def.’s Mot. to Sever Claims and Transfer Venue and to Stay (Doc. No. 56) (“Def.’s Mot. to Sever and Transfer”) at 9-10. Plaintiffs argue that their claims meet the flexible standard that has been adopted by courts. See Pis.’ Opp’n (Doc. No. 64) at 8-12.
Courts take a case-by-case approach to determining whether “a particular situation constitutes a transaction or occurrence for the purposes of Rule 20(a).” Blesedell v. Mobil Oil Co.,
Plaintiffs’ claims arise out of their employment in different Home Depot stores, in different states, see Second Am. Compl. at 15-18, under different circumstances, see Aquilino v. Home Depot, No. CIV 04-CV-4100 PGS,
Plaintiffs argue that claims are logically related when they arise from the same type of transactions or occurrences, rather than the same transactions or occurrences. See Pis.’ Opp’n at 9. To support this argument, plaintiffs rely on four eases that find a logical relationship among plaintiffs’ claims sufficient to support joinder. See id. In each of these cases, however, plaintiffs alleged that defendants’ wrongdoing was pursuant to a policy or practice. See Puricelli v. CNA Ins. Co.,
In this case, plaintiffs do not seek to prove a pattern or practice, but rather must prove claims as to each plaintiff. See generally Second Am. Compl. Therefore, the court rejects the plaintiffs’ argument that the same type of transaction or occurrence satisfies the “same transaction or occurrence” prong of Rule 20(a) in this case.
C. Common Question of Law or Fact
“Rule 20(a) provides for a joinder of parties if there is any question of law or fact common to all.” Blesedell,
D. Judicial Economy and Overlap of Evidence
“ ‘The question [of judicial economy] in a severance ... motion is whether separate trials will require substantial ov
Although all of the plaintiffs shared the same job description, the substantial factual differences among the plaintiffs convinced each court considering this question that factual overlap among the plaintiffs’ claims does not warrant that they proceed together. See Aquilino v. Home Depot, U.S.A., Inc., No. 04-4100(PGS),
E. Avoiding Prejudice
Home Depot argues that it will be prejudiced if plaintiffs’ claims are not severed because of the potential for jury confusion. See Def.’s Mot. to Sever and Transfer at 11. Plaintiffs contend that carefully drafted jury instructions can avoid prejudice to Home Depot, and that they will be prejudiced by the additional expense caused by severance. See Pis.’ Opp’n at 16.
Severance is appropriate where a joint trial “could lead to confusion of the jury.” See, e.g., Deskovic v. City of Peeks-kill,
Plaintiffs cite several cases to support their argumеnt that clear jury instructions can cure the potential for prejudice in this case, each of which is distinguishable. In Epstein, for example, three plaintiffs alleged that they had been injured by the single defendant’s policy permitting discrimination. Epstein v. Kemper Ins. Co.,
Plaintiffs also argue that “[t]he added cost caused by severance, including, [sic] discovery and motion practice as well as retaining additional local counsel will be extremely prejudicial to the Plaintiffs, who for some have claims that are nоt very large.” Pis.’ Opp’n at 16. Because the remaining discovery is plaintiff-specific, see In re Home Depot U.S.A., Inc., Wage and Hour Litigation,
G. The Relevant Factors Favor Severance
The court concludes that, although the plaintiffs share the question of whether they were misclassified by Home Depot, their claims do not arise out of the same transaction or occurrence, and judicial eсonomy would not be served by trying them together. Further, it is likely that evidence as to the daily activities of thirty-nine different plaintiffs working in a great variety of locations would be confusing to a jury. Therefore, Home Depot’s Motion to Sever is GRANTED. This action is hereby severed into seven separate actions.
IV. MOTION TO TRANSFER
Home Depot moves to transfer the claims of the non-Connecticut plaintiffs to the six states in which those plaintiffs reside. Pursuant to section 1404(a) of Title 28 of the United States Code, “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district of division where it might have been brought.” 28 U.S.C. § 1404(a). The movant bears the burden of establishing the propriety of transfer by a clear and convincing showing. Excelsior Designs v. Shores,
A. Whether the Non-Connecticut Plaintiffs’ Claims Might Have Been Brought in the Districts in Which They Work or Worked
The parties agree that the non-Connecticut plaintiffs’ claims might have been
B. Whether the Transfer Promotes Convenience and Justice
In the second part of the section 1404(a) inquiry, the court must consider whether a transfer promotes convenience and justice. District cоurts have broad discretion to make case-by-case determinations of convenience and fairness, In re Cuyahoga Equipment Corp.,
1. Plaintiffs’ Choice of Forum
In considering a motion to transfer, a district court ordinarily affords the plaintiffs choice of forum substantial weight. See In re Warrick,
2. Convenience of Witnesses & Availability of Process to Compel Their Attendance
A party moving for transfer on the ground оf the convenience or availability of witnesses must specify the identity of key witnesses and the nature of their likely testimony, and support these statements with affidavits. See Factors Etc. v. Pro Arts,
Because neither party has identified any non-party witnesses, the availability of process tо compel attendance of unwilling witnesses is neutral. Cf. WorldCare Ltd. Corp. v. World Ins. Co.,
3.Location of Relevant Documents
The parties agree that “modern photocopying technology and electronic storage deprive this issue of practical or legal weight.” See Def.’s Mot. to Sever & Transfer at 16 (citing Wilson v. DirectBuy, Inc.,
4.Convenience of Parties
Transfer should not merely “shift the burden of inconvenience from one party to the other.” Pitney Bowes v. National Presort,
Plaintiffs argue under this factor that they would be inconvenienced because severance and transfer would double the number of fora in which plaintiffs from the original Aquilino action in New Jersey action would be pursuing their claims. See Pis.’ Opp’n at 22. Each individual plaintiff, however, would be litigating in only one forum — his home state. Plaintiffs’ argument, therefore, addresses the inconvenience to plaintiffs counsel that would result from severance and transfer. The convenience of counsel is not the appropriate consideration on a motion to transfer. See WorldCare Ltd. Corp. v. World Ins. Co.,
Further, plaintiffs seem to argue that the court should not grant Home Depot’s Motion to Transfer because it will be more inconvenient for Home Depot to litigate in twelve districts rather than the six districts in which plaintiffs have already brought cases. See Pis.’ Opp’n at 22-23. The court finds this argument unpersuasive. This factor clearly favors transfer.
5.Locus of Operative Facts
“The locus of operative facts is an important factor to be considered in deciding where a case should be tried.” MAX Marketing, Inc. v. Kalapos,
Plaintiffs argue that the court should not transfer the claims because Home Depot’s corporate policy of miselassifying MASMs was created at Home Depot’s corporate headquarters in Atlanta, and therefore “at least some of the operative facts are located outside of the forum where Home Depot argues Plaintiffs should be transferred.” See Pis.’ Opp’n at 24. Contrary to plaintiffs’ assertion, not every occurrence relevant to the non-Connecticut plaintiffs’ cases need have occurred in the transferee forum to make that forum the
6. Relative Means of Parties
Courts may consider the relative financial hardship to litigants in prosecuting or defending an action in a pаrticular forum, See MAK Marketing, Inc. v. Kalapos,
Although the court finds that this factor weighs against transfer, it weighs very little for two reasons. First, plaintiffs have not alleged or demonstrated undue burden from litigating in multiple fora, and indeed are already litigating in six fora. See Argent Funds Group v. Schutt, 3:05-CV-1456-SRU,
7. Forum’s Familiarity with Governing Law
The non-Connecticut plaintiffs make claims pursuant to federal law, as well as the labor laws of New Hampshire, New York, and Vermont. See Second Am. Compl. ¶¶ 76-96. Federal courts are presumed to be equally familiar with federal law. See WorldCare Ltd. v. World Ins.,
This final factor is “ ‘broad enough to covеr the particular circumstances of each case, which in sum indicate that the administration of justice will be advanced by a transfer.’ ” Charter Oak Fire Ins. v. Broan-Nutone, L.L.C.,
Plaintiffs argue that denying Home Depot’s Motion would avoid delay. Plaintiffs do not, however, explain why transferring the non-Connecticut plaintiffs’ claims would produce further delay. See Pis.’ Opp’n at 27. Where, as here, individualized discovery has not yet begun, courts have not found that transfer would result in further delay. See, e.g., Wilson v. DirectBuy, Inc.,
Plaintiffs also argue that the court should deny the Motion because Home Depot is forum shopping. See Pis.’ Opp’n at 27. It contends that the motivation for Home Depot’s Motion is to avoid this court’s prior ruling on the proper calculation of overtime pay pursuant to the FLSA. Id. Plaintiffs cite Van Dusen v. Barrack,
9. The Relevant Factors Favor Transfer of the Severed Claims
Based on the above analysis, the following factors weigh in favor of transfer of the non-Connecticut plaintiffs’ claims to the states where they worked: convenience of the parties; locus of the operative facts; and the forum’s familiarity with governing law. The following factors neither support nor oppose transfer: the convenience of non-party witnesses and the availability of process to compel their attendance; the location of relevant documentary evidence; and trial efficiency and the interests of justice. The following factors weigh slightly against transfer: the non-Connecticut plaintiffs’ choice of forum, and the relative means of the parties. On balance, and considering all of the relevant factors, the court finds that Home Depot has met its burden of showing that transfer of the non-Connecticut plaintiffs’ claims is warranted.
Home Depot moves this court to transfer non-Connecticut plaintiffs’ claims to the districts “in which they reside and in which the events underlying their claims occurred.” Defs.’ Mot. to Sever and Transfer at 13. The court can deduce from the pleadings that the non-Connecticut plaintiffs are or were employed in Massachusetts, New Hampshire, New York, Puerto Rico, Rhode Island, and Vermont. The plaintiffs assert that some non-Connecticut plaintiffs “may no longer live in the states where thеy worked.” Pis.’ Opp’n at 23 n. 11. Neither party provides the court with any information as to where the non-Connecticut plaintiffs live. In the absence of
Because Massachusetts, New Hampshire, Puerto Rico, Rhode Island, and Vermont each have only one district, the claims of plaintiffs who worked in those districts will be transferred to those districts. Because New York has four districts, the plaintiffs are hereby ORDERED to provide the court with information regarding the district of employment of the New York plaintiffs no later than April 25, 2012. In addition, plaintiffs are directed to clarify the issues discussed supra at 263 n. 8. Specifically, the plaintiffs should clarify whether James D. Costello worked in both Connecticut and Rhode Island, and if not, in which state he worked, and should clarify whether Liza Logan is a plaintiff in this action, and if so, in which state she worked.
V. MOTION TO STAY
Home Depot’s Motion to Stay pending the resolution of its Motion to Sever and Transfer is DENIED as moot.
VI. SCHEDULING ORDER
The parties in the Connecticut action are ORDERED to file an amended, Joint Proposed Scheduling Order with the court no later thаn April 25, 2012.
VII. CONCLUSION
For the foregoing reasons, Home Depot’s Motion to Sever this case into seven separate cases is GRANTED. Home Depot’s Motion to Sever the non-Connecticut plaintiffs’ claims to the districts in which they work or worked is GRANTED. The parties are ORDERED to file an amended Joint Proposed Scheduling Order no later than April 25, 2012. Plaintiffs are ORDERED to file information regarding plaintiffs Costello and Logan no later than April 25, 2012.
SO ORDERED.
Notes
. The "Connecticut plaintiffs” are James D. Costello, Aron J. Moore, Matthew Picco, and Aurora J. Rosentine.
. The "Massachusetts plaintiffs” are Jefferey Allan Caldwell, Jourden Johnson, Robert E. Kenney, Patricia La Flore, Connie M. Leathers, Herbert J. Lichtenstein, Richard A. Main, Philip J. Martinos, Karen J. Obey, Richard F. Pavao, Lawrence Joseph Silipigni Jr., Dudley A. Smith, David Starr, and Elizabeth J. Wad-den.
. The “New Hampshire plaintiffs” are William T. Gover and Frank Morris.
. The "New York plaintiffs” are Arthur R. Amash, Theodore Biagoiotti, Christopher Brehaut, Sheryl Glickman, Christin M. Holloway, Matthew C. Johnson, Shaun H. Kimball, Joseph L. Pancoine, Jefferey A. Repp, Charles R. Schneider, Richard A. Yingling Jr., Robert F. Yuskauskas, and Michael C. Zawadzki.
. The "Puerto Rico plaintiffs” are Myrna Garcia, Antonio Rivera Melinder, and Luis J. Soto.
. The "Rhode Island рlaintiffs” are James D. Costello and John L. Marine.
. The "Vermont plaintiff” is Richard A. Bessette.
. The court notes that James D. Costello is listed twice in the Complaint: once under Connecticut and once under Rhode Island. See Compl. (Doc. No. 1) at 1. The court further notes that Liza Logan, who is listed in the captions of both the Complaint and the Second Amended Complaint, is not included elsewhere in either document. See id.; Second Am. Compl. (Doc. No. 43) at 1.
. Plaintiffs cite Tritt v. Automatic Data Processing Inc. Long Term Disability Plan Adm'r, No. 06CV2065-CFD,
The plaintiffs have cited no authority to support the application of Tritt to FLSA actions, and courts in the Second Circuit have afforded slightly less deference to FLSA collective action plaintiffs’ choice of forum. See, e.g., Fairchild v. Eisai, Inc., No. 3:11cv452 MRK,
. Plaintiffs rely on Medisim Ltd. v. BestMed LLC, No. 10 Civ. 2463(SAS),