Arroyo-Pérez v. Demir Group Intern.

• Decision Date: 13 August 2010
• Docket Number: Civil No. 09-2231(JA)
• Citation: 733 F.Supp.2d 314
• Parties: Eunice ARROYO-PÉREZ, Plaintiff v. DEMIR GROUP INTERNATIONAL aka DGI Group; and Haygo Demir, aka Haygo Demirian, Defendants.
• Court: U.S. District Court — District of Puerto Rico

733 F.Supp.2d 314

Eunice ARROYO-PÉREZ, Plaintiff

v.DEMIR GROUP INTERNATIONAL aka DGI Group; and Haygo Demir, aka Haygo Demirian, Defendants.

Civil No. 09-2231(JA).

United States District Court,

D. Puerto Rico.

Aug. 13, 2010.

Judith Berkan, Mary Jo Mendez-Vilella, Berkan & Mendez, San Juan, PR, for Plaintiff.

Maria J. Marchand-Sanchez, Juan R. Rivera-Font, Ferraiuoli-Torres, Marchand & Rovira PSC, San Juan, PR, for Defendants.

OPINION AND ORDER

JUSTO ARENAS, United States Chief Magistrate Judge.

This matter is before the court on the defendants' motion to transfer venue to the District Court for the Southern District of Florida, filed on February 26, 2010. (Docket No. 8.) Plaintiff filed an opposition to the defendants' motion on March 12, 2010. (Docket No. 15.) On March 19, 2010 the defendants responded to plaintiff's opposition. (Docket No. 22.) On June 21, 2010, the court entered the following order:

As per the scheduling Order dated May 14, 2010 (Docket No. 24), the Court ordered the parties to inform, by June 4, 2010, whether they consented to a magistrate judge's jurisdiction. The Order indicated that failure to do so would be considered as an implied consent. (Docket No. 24 ¶ VII E, p. 19) None of the parties have done so, so the Courtwill consider their silence as an implied consent to full magistrate judge jurisdiction.

Therefore, this case is referred to a magistrate judge for all further proceedings, including the entry of judgment.

(Docket No. 25.)

On June 23, 2010, the Clerk issued order randomly assigning the case to me for all further proceedings, including the entry of judgment. (Docket No. 26.)

For the reasons set forth below, the defendants' motion is DENIED.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff filed the instant action on December 9, 2009. (Docket No. 1.) Plaintiff alleges that her employer, defendant, Demir Group International ("DGI") terminated her without good cause and discriminated against her due to her pregnancy and gender. (Docket No. 1, at 6.) Plaintiff seeks damages for the defendants' alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, as well as violations under Title VII's anti-retaliation provision, Puerto Rico's laws against discrimination and retaliation, Puerto Rico Law 80's statutory separation pay, Articles 1802 and 1803 of the Civil Code of Puerto Rico and for failure to pay full amount of salaries, bonuses, vacation pay and expenses. (Docket No. 1, at 8-12.)

Plaintiff was employed by DGI ¹ in August 2005. (Docket No. 8, at 3.) DGI is incorporated in Florida with its headquarters in Miami Beach. (Docket No. 8, at 2.) The defendant, Haygo Demirian, is the owner of DGI. (Docket Nos. 8-2 and 8-3.) According to the defendants, "DGI Florida is a sales agency representing numerous luxury jewelry and watch brands in certain markets in the Caribbean.... As a sales agency, DGI Florida solicits the retailer/client at their stores and takes orders from these retailers on behalf of the brands DGI represents." (Docket No. 8, at 2.)

In August 2005, DGI initially hired plaintiff as a Territory Assistant. In February 2007, DGI promoted her to Territory Manager. (Docket No. 8, at 3.) As Territory Manager, plaintiff's duties were to travel throughout the territory ², including Puerto Rico, procuring jewelry orders from retailers. (Docket No. 8, at 2-3.) In the summer of 2007, plaintiff notified her employer that she was pregnant with her second child. (Docket No. 1, at 5, ¶ 4.5.) She took maternity leave from approximately May to July 2008. (Docket No. 8, at 4.) Plaintiff alleges that she suffered adverse action from the time she notified her employer of her pregnancy, while she was on maternity leave and upon returning to work from maternity leave. (Docket No. 1, at 5, ¶¶ 4.6-4.12.) Such actions included placing limits on, and then eliminating, her travel, reducing her territory, demanding she reimburse the company for statutorily mandated paid pregnancy leave, and general hostility toward her maternal responsibilities. (Docket No. 1, at 5, ¶¶ 4.6-4.12.)

In October 2008, plaintiff was notified that she would be terminated from her job, effective November 30, 2008. (Docket No. 1, at 6, ¶ 4.13.) She then filed a claim with the Puerto Rico Department of Labor and the federal Equal Employment Opportunity Commission ("EEOC") alleging that she was not paid for work-related expenses, past commissions or bonuses earned and her employee did not liquidate her vacation days. (Docket No. 1, at 6, ¶¶ 4.16-4.18.) Her claim included allegations of pregnancy and gender discrimination and retaliation. (Docket No. 1, at 6, ¶ 4.19.)

The defendants, on the other hand, tell a different story. DGI asserts that in 2008, much like the rest of the world, it went through a financial crisis. (Docket No. 8, at 3.) Due to the financial hardship, DGI reduced its workforce. (Docket No. 8, at 3.) The defendants allege that plaintiff was not terminated because of her pregnancy or due to her gender, but was terminated due to the financial hardships DGI was facing. (Docket No. 8, at 3.)

Plaintiff bases jurisdiction both on diversity jurisdiction, pursuant to 28 U.S.C. § 1332 and on federal question jurisdiction, pursuant to 28 U.S.C. § 1331. (Docket No. 1, at 2, ¶ 2.1.) Plaintiff is a citizen of Puerto Rico and, according to plaintiff, the defendant DGI is a citizen of Florida, where it is incorporated and the defendant Haygo Demirian is a citizen of Canada and resides in Florida. (Docket No. 1, at 2-3, ¶¶ 2.2-2.4.) The defendants deny that this court is the proper venue and filed a motion to transfer the case. (Docket No. 8.)

DISCUSSION

The defendants filed a motion to transfer requesting that the instant case be transferred from this court to the Southern District of Florida. (Docket No. 8.) The defendants argue that a transfer of venue is appropriate because: (1) the action could have been brought in the Southern District of Florida; (2) the Southern District of Florida is more convenient for the defendants and witnesses; (3) the relevant documents are located in Florida; and (4) it is in the interest of judicial efficiency. (Docket No. 8.)

Alternatively, plaintiff opposed the motion and asserted that the District of Puerto Rico is the proper venue. (Docket No. 15.) In support of plaintiff's assertions, she argues that (1) the events giving rise to the instant action occurred in Puerto Rico, (2) the witnesses are not all located in Florida, (3) the documents are not primarily located in Florida, and (4) the convenience and cost to the defendants to litigate in the District of Puerto Rico is less burdensome than it would be for plaintiff to litigate her case in the Southern District of Florida. (Docket No. 15.)

A. Proper Venue Under Title VII

Title VII includes a broad venue provision that allows plaintiffs to choose a venue where the unlawful employment action is alleged to have taken place, where the employment records are maintained, or where the aggrieved person would have worked but for the alleged unlawful action. 42 U.S.C. § 2000e-5(f)(3). A plaintiff must comply with at least one of the requirements of the Title VII venue provisions for venue to be proper. For example, a former Park Ranger filed a Title VII action in the District of Puerto Rico against the Department of the Army when he was fired by the Army Corps of Engineers.See Dixon v. Brownlee, 313 F.Supp.2d 52, 54 (D.P.R.2004.) This court granted a motion to transfer the case to the Northern District of California because, despite the fact that plaintiff resided in the District of Puerto Rico, the plaintiff would have continued working as a Park Ranger in the Northern District of California, but for the alleged unlawful employment action. Id. ("Courts have recognized that Title VII's statutory scheme indicates that Congress intended to limit venue in these cases to those jurisdictions concerned with the alleged discrimination.")

The defendants contend that the case should be transferred because "[a]ll operative facts that gave rise to [plaintiff's] cause of action occurred outside of Puerto Rico." (Docket No. 8, at 7.) It is clear that the defendants reside in Florida and plaintiff is a resident of Puerto Rico and was employed by the defendants in Puerto Rico. Plaintiff would have continued working in the District of Puerto Rico, but for the alleged employment discrimination. Thus, plaintiff has met the Title VII venue provisions. See, e.g., Passantino v. Johnson & Johnson Consumer Prod., Inc., 212 F.3d 493, 505 (9th Cir.2000) ("[T]he statute itself and analogous case law suggest that venue should be found where the effect of the unlawful employment practice is felt: where the plaintiff works, and the decision to engage in that practice is implemented.")

Section 1404(a) of Title 28 allows a court to transfer an action to any other district where the case might have been brought, "[f]or the convenience of parties and witnesses, in the interest of justice...." 28 U.S.C. § 1404(a). Title VII's venue provision further provides that "[f]or purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought." 42 U.S.C. § 2000e-5(f)(3). As an initial matter, "the power of a District Court under § 1404(a) to transfer an action to another district is made to depend ... upon whether the transferee district was one in which the action 'might have been brought' by the plaintiff." Hoffman v. Blaski, 363 U.S. 335, 343-44, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). The case "might have been brought" in the Southern District of Florida because DGI is headquartered in Florida and Mr. Demirian resides in Florida. (Docket No. 8, at 9.)

The plaintiff's choice of forum is generally not disturbed. See Roman Martinez v. Potter, 383 F.Supp.2d 300, 302 (D.P.R.2005). A motion to transfer may be denied because the...