United States District Court, N.D. California
ORDER RE: MOTION TO TRANSFER VENUE RE: DKT. NO.
JACQUELINE SCOTT CORLEY United States Magistrate Judge.
Robert Louis Gary brings this civil rights action against his
employer, Facebook, Inc., and Facebook managers Wayne Hawkins
and James Swenson alleging race discrimination. Gary worked
as an engineer at Facebook's Data Center Facility in
Forest City, North Carolina. The gravamen of the complaint is
that Defendants have intentionally discriminated against him
by denying him promotions on the basis of race, denying him
pay equal to similarly situated white employees, harassing
him and allowing a work environment hostile to African
Americans at the North Carolina Data Center. (Dkt. No.
Now pending before the Court is Defendants' motion to
transfer this action to the Western District of North
Carolina pursuant to 28 U.S.C. § 1404(a).(Dkt. No. 26.)
Having considered the parties' submissions, and having
had the benefit of oral argument on May 4, 2017, the Court
GRANTS the motion to transfer.
has its principle place of business in Menlo Park,
California. (Dkt. No. 1 ¶ 10.) Beginning in 2012,
Facebook built and operated a Data Center Facility in Forest
City, North Carolina. (Id. ¶ 4.) Plaintiff is
an African-American North Carolina resident who worked on
construction of the North Carolina Data Center then was hired
as a Facebook employee Facilities Maintenance technician in
2012. (Id. ¶¶ 9, 14-16.) Defendant Hawkins
was Plaintiff's manager at the North Carolina Data Center
from 2012 to 2014. (Id. ¶ 11, 15, 57; Dkt. No.
26-6 ¶ 2.) Hawkins has, at all relevant times, worked in
and resided in North Carolina and continues to reside there.
(Dkt. No. 26-6 ¶¶ 2, 4.) Defendant Swenson became
Plaintiff's supervisor at the North Carolina Data Center
in 2015. (Dkt. No. 1 ¶¶ 12, 57.) Swensen primarily
resides in Texas and Utah. (Dkt. No. 26-4 ¶ 3.)
alleges that throughout his employment at Facebook, he has
been denied promotions on the basis of race, denied pay equal
to similarly situated white employees, harassed and
retaliated against by his supervisors, and otherwise denied
equal terms and conditions of employment on the basis of
race, and that Defendants have “allow[ed] a work
environment hostile to African-Americans to fester at the
[North Carolina Data Center.]” (Dkt. No. 1 ¶ 81.)
The peers that received promotions, raises, or higher
salaries all worked at the North Carolina Data Center, and
most reside there or just across the border in South
Carolina. (Id. ¶¶ 22-28; Dkt. No. 26-6
¶¶ 5, 7; Dkt. No. 26-5 ¶ 7.) Plaintiff does
not expressly allege who had decision-making authority for
employee pay or promotions, but it appears to be
Plaintiff's direct managers in the North Carolina Data
Center, like Hawkins. (See, e.g., Dkt. No. 1 ¶
33.) According to Plaintiff, a number of his co-workers at
the North Carolina Data Center overheard comments regarding
race in the workplace or have knowledge about the pay rates
of employees who are similarly situated to Plaintiff
(See Dkt. No. 26-2 at 3-4), and those individuals
are North Carolina residents. (See Dkt. No. 26-6
¶ 5.) Former plaintiff Duffy, another witness to the
discrimination, resided in North Carolina during the time of
the discrimination but has since relocated to Reno, Nevada.
(Dkt. No. 26-2 at 3; Dkt. No. 28 at 9.)
initially reported the discrimination to his manager, Matt
Hamrick, who was and remains a North Carolina resident. (Dkt.
No. 1 ¶ 31; Dkt. No. 26-5 ¶ 7.) Plaintiff also
complained about his pay to Facebook global manager James
Faccone (Dkt. No. 1 ¶¶ 31-34); while Plaintiff
stated in his initial disclosures that Faccone worked out of
Facebook's Menlo Park headquarters, (Dkt. No. 26-2 at 5),
according to Facebook Faccone is a North Carolina resident.
(Dkt. No. 26-5 ¶ 7.)
his complaints “were not resolved locally, ”
Plaintiff complained to Facebook Human Resources in Menlo
Park. (Dkt. No. 28-1 ¶ 9; Dkt. No. 1 ¶ 34.) He
corresponded with a Menlo Park-based Facebook Human Resources
employee who informed him that the company's
investigation had found no discrimination. (Dkt. No. 1 ¶
35; Dkt. No. 28-1 ¶¶ 12-14, 16.) In the summer of
2015, Plaintiff again contacted Facebook Human Resources in
Menlo Park to report discrimination and filed an EEOC charge
of race discrimination. (Dkt. No. 1 ¶¶ 46-47; Dkt.
No. 28-1 ¶ 18.) Shortly thereafter, Facebook Human
Resources employees from Menlo Park visited the North
Carolina Data Center to investigate Plaintiff's claims.
(Dkt. No. 1 ¶ 50.) One of the Menlo Park-based employees
interviewed Plaintiff. (Dkt. No. 28-1 ¶ 27.) According
to Plaintiff, “all or most of the decisions affecting
[his] complaints of race discrimination have been made by
California-based employees of Facebook.” (Dkt. No. 28-1
filed suit in this District on November 22, 2016. (Dkt. No.
1.) Defendants subsequently filed the pending motion to
transfer venue to the Western District of North Carolina
pursuant to 28 U.S.C. § 1404(a).
Court has discretion to transfer a case to another district
pursuant to 28 U.S.C. § 1404(a), which provides:
“For the convenience of 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 or to any district or division to which all
parties have consented.” 28 U.S.C. § 1404(a).
deciding whether to transfer a case pursuant to Section
1404(a), “[t]he transferor court must first determine
whether the action might have been brought in the transferee
court, and then the court must make an individualized,
case-by-case consideration of convenience and
fairness.” Ctr. for Biological Diversity & Pac.
Env't v. Kempthorne, No. C-07-0894, 2007 WL 2023515,
at *3 (N.D. Cal. July 12, 2007) (internal quotation marks
omitted); see also i, 211 F.3d 495, 498 (9th Cir.
2000) (same). “The moving party bears the burden of
showing that jurisdiction and proper venue would exist in the
district to which a transfer is requested.”
Wireless Consumers Alliance, Inc. v. T-Mobile USA,
Inc., No. C 03-3711 MHP, 2003 WL 22387598, at *1 (N.D.
Cal. Oct. 14, 2003). To determine convenience and fairness,
this District commonly articulates the following relevant
factors in a motion to transfer venue:
(1) the plaintiff's choice of forum; (2) the convenience
of the parties; (3) the convenience of the witnesses; (4)
ease of access to evidence; (5) familiarity of each forum
with applicable law; (6) feasibility of consolidation of
other claims; (7) any local interest in the controversy; and
(8) the relative court congestion and time to trial in each
Martin v. Global Tel*Link Corp., No.
15-cv-00449-YGR, 2015 WL 2124379, at *2 (N.D. Cal. May 6,
2015); see also Jones, 211 F.3d at 498-99
(articulating additional factors to consider such as
“respective parties' contacts with the forum”
and “differences in the costs of litigation in the two
forums”). “No single factor is
dispositive.” Ctr. for Biological Diversity v.
Kempthorne, No. C 08-1339 CW, 2008 WL 4543043, at *2
(N.D. Cal. Oct. 10, 2008). Instead, “[w]eighing of
these factors for and against transfer involves subtle
considerations and is best left to the discretion of the
trial judge.” Ventress v. Japan Airlines, 486
F.3d 1111, 1118 (9th Cir. 2007). Further, “[t]his list
is non-exclusive, and courts may consider other factors, or
only those factors which are pertinent to the case at
hand.” Global Tel*Link, 2015 WL 2124379, at
is not enough for the defendant to merely show that it
prefers another forum, and transfer will also not be allowed
if the result is merely to shift the convenience from one
party to another.” Lax v. Toyota Motor Corp.,
65 F.Supp.3d 772, 776 (N.D. Cal. 2014); see also Catch
Curve, Inc. v. Venali, Inc., No. CV 05-04820 DDP, 2006
WL 4568799, at *2 (C.D. Cal. Feb. 27, 2006) (defendant
“must demonstrate that the present forum will result in
a clear balance of inconvenience to him or her”). In
connection with motions to transfer, courts should only
consider undisputed facts supported by affidavits,
depositions, stipulations, or other relevant documents.
See Midwest Precision Servs., Inc. v. PTM Indus.
Corp., 574 F.Supp. 657, 659 (N.D. Ill. 1983). Vague
generalizations or conclusory declarations are insufficient
to meet this burden. See Forte Capital Partners v. Harris
Cramer, No. C07-01237 MJJ, 2007 WL 1430052, at *2 (N.D.
Cal. May 14, 2007).
The Action Could Have Been Brought in the Western District of
do not dispute that the case might have been brought in the
proposed court. But Defendants bear the burden of showing
that jurisdiction and venue would be proper, and the Court
cannot assume or consider waiver of jurisdictional issues on
a 1404(a) transfer. See Hoffman v. Blaski, 363 U.S.
335, 343-44 (1960) (“[T]he power of a District Court
under [Section] 1404(a) to transfer an action to another
district is made to depend not upon the wish or waiver of the
defendant but, rather, upon whether the transferee district
was one in which the action ‘might have been
brought' by the plaintiff.”); see also Comm.
Lighting Prods., Inc. v. U.S. Dist. Ct., 537 F.2d 1078,
1079 (9th Cir. 1976) (finding “defendants' consent
to the transfer is irrelevant”). Instead, the Court may
only transfer after determining the transferee court's
propriety. See Int'l ...