Cerussi v. Union College, 01 CIV 3711 WCC.

• Decision Date: 06 June 2001
• Docket Number: No. 01 CIV 3711 WCC.,01 CIV 3711 WCC.
• Citation: 144 F.Supp.2d 265
• Parties: Michael A. CERUSSI, III, Plaintiff, v. UNION COLLEGE, Kathleen Schurick, Patricia G. Williams and Sarah Handler, Defendants.
• Court: U.S. District Court — Southern District of New York

144 F.Supp.2d 265

Michael A. CERUSSI, III, Plaintiff, v. UNION COLLEGE, Kathleen Schurick, Patricia G. Williams and Sarah Handler, Defendants.

No. 01 CIV 3711 WCC.

United States District Court, S.D. New York.

June 6, 2001.

Clark, Gagliardi & Miller, P.C. (Lawrence T. D'Aloise, Jr., Of Counsel), White Plains, NY, for Plaintiff.

Nixon Peabody LLP, (James P. O'Brien, Jr., Christopher J. Porzio, Andrew C. Rose, Of Counsel), Garden City, NY, for Defendants Union College, Kathleen Schurick and Patricia G. Williams.

MacCartney, MacCartney, Kerrigan & MacCartney, (Mary E. Marzolla, Of Counsel), Nyack, NY, for Defendant Sarah Handler.

OPINION AND ORDER

WILLIAM C. CONNER, Senior District Judge.

Plaintiff Michael A. Cerussi III moves for a preliminary injunction ("PI") pursuant to FED. R. CIV. P. 65 against Union College ("UC"), Kathleen Schurick and Patricia G. Williams, both Associate Deans of Students at UC, and Sarah Handler, a freshman at UC (collectively, "defendants"), and defendants move to transfer the action to the Northern District of New York pursuant to 28 U.S.C. § 1404.

Plaintiff, formerly a senior at UC, was expelled in February 2001 after an investigative report written by Schurick led to disciplinary hearings overseen by Williams, at which he was found guilty of raping Handler. Plaintiff alleges that because he is male, Schurick and Williams discriminated against him and pre-determined his guilt, thereby violating both UC's Disciplinary Procedural Guidelines ("DPG") and Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 ("Title IX"). Plaintiff sues Handler for defamation and intentional infliction of emotional distress, and seeks, inter alia, immediate reinstatement at UC. For the following reasons, defendants' motion to transfer venue is granted.

BACKGROUND

The following facts are either undisputed or alleged by plaintiff and accepted as true for the purpose of this motion. Plaintiff and Frederik Bailey¹ met Handler at a bar near UC late Friday night, November 11, 2000. Handler accompanied them back to their fraternity house and had sexual intercourse with both men. Plaintiff and Handler talked afterwards, he drove her home, and she kissed him good-night. Handler then joked with her roommate, Rosie Drennan, about having sex with both men, and did not state that she had been raped.

At brunch the next morning, Handler told a girlfriend, Lindsay Homenick, that she had sex with two men, but did not claim that she had been raped. But shortly thereafter, when some of plaintiff's fraternity brothers laughed as they passed her table, Handler assumed they had been told that she had sex with plaintiff and Bailey. That evening, Handler received a phone call from John Gregory, another of plaintiff's fraternity brothers, and inferred from the conversation that Gregory knew she had sex with plaintiff and Bailey. Sometime later, Handler concluded that she had been raped, went to Ellis Hospital and reported the same. Nurse Carol Fritz Braungart examined Handler and observed redness at the vaginal base, but Handler did not allow Braungart to examine her internally, take pictures or complete a full rape collection kit.

On the following day, November 13, 2000, Handler reported to Schurick that she had been raped. Plaintiff and Bailey were suspended and charged with violating provisions of the UC Student Conduct Code ("SCC"). Schurick investigated Handler's claims and interviewed Handler, plaintiff, Bailey, Braungart and several other students who had various roles in the incident. Schurick took notes of her interviews and drafted an investigative report but did not include all her notes in that report. Plaintiff claims Schurick herself unilaterally conducted an administrative review of the alleged incident without offering plaintiff and Bailey the option of a hearing before a sub-council of their peers, as is provided for by the SCC. Based on her investigative report, Schurick found plaintiff and Bailey guilty and reported her finding to Dean of Students Frederick Alford. Alford informed plaintiff of his expulsion by letter dated December 12, 2000.

Pursuant to the DPG, plaintiff appealed to Roger H. Hull, President of UC. Hull determined that plaintiff was not afforded a proper hearing, vacated Alford's expulsion and ordered a hearing at which plaintiff could confront Handler and call witnesses. On December 29, 2000, plaintiff received written notice from Alford that his hearing would take place on January 2, 2001 with Williams overseeing it, which plaintiff claims again deprived him of the option to have a student sub-council hear his case. Plaintiff states that at the hearing Williams deprived him of his right to review all the information, to confront and call all the relevant witnesses, to question Handler specifically about certain details and to consult with his attorney and parents. Williams found plaintiff guilty, and Alford accepted Williams's determination and upheld plaintiff's expulsion.

Plaintiff again appealed to Hull, who remanded the matter for a limited hearing, allowing plaintiff only to question Drennan and Homenick, and plaintiff objected to the hearing's limited scope. On February 1, 2001, both Drennan and Homenick testified that although Handler told both of them that she had sex with plaintiff and Bailey, she never told either of them that she had been raped. Nonetheless, Williams stated that she did not hear any information that would change her initial determination, and again found plaintiff guilty. Alford accepted Williams's finding and affirmed plaintiff's expulsion.

On April 11, 2001, plaintiff filed the Complaint in New York State Supreme Court for the County of Westchester. Defendants removed the action to this Court on May 2, 2001 pursuant to 28 U.S.C. § 1441. We held an initial conference on May 11, 2001, heard oral arguments and set an expedited briefing schedule for both motions.

DISCUSSION

I. Transfer of Venue Standard

28 U.S.C. § 1404(a) allows for a transfer of venue "[f]or the convenience of parties and witnesses, [and] in the interest of justice." Furthermore, "[venue transfer] motions are in the Court's discretion to grant or deny and are `determined upon notions of convenience and fairness on a case-by-case basis.'" Clesi v. Zinc Corp. of America, No. 00 Civ. 6786, 2001 WL 225241, at *2 (S.D.N.Y. Mar. 6, 2001) (quoting Hall v. South Orange, 89 F.Supp.2d 488, 493 (S.D.N.Y.2000)). A court deciding a transfer motion must engage in a two-step analysis. "[T]he Court must first determine whether the case could have properly been brought in the transferee court." Id. (citing Berman v. Informix Corp., 30 F.Supp.2d 653, 656 (S.D.N.Y.1998)). It is undisputed that this action could have been brought in the Northern District. All the defendants presently reside there, all of the events giving rise to plaintiff's claims occurred there, and UC, the site where the events took place, is located there (in Schenectady, New York). See 28 U.S.C. § 1391(b).

The transferee court's jurisdiction having been established, "the [transferor] Court must next consider whether the transfer is appropriate based upon several factors." Clesi, 2001 WL 225241, at *2. These factors include:

(1) the locus of operative facts;

(2) the convenience to parties;

(3) the convenience of witnesses;

(4) the location of relevant documents and the relative ease of access to sources of proof;

(5) the availability of process to compel attendance of unwilling witnesses;

(6) the relative means of the parties;

(7) the weight accorded to plaintiff's choice of forum;

(8) the forum's familiarity with the governing law; and

(9) trial efficiency and the interest of justice, based on the totality of the circumstances.

See Handler v. Regents of the Univ. of Michigan, No. 00 Civ. 6314, 2000 WL 1635701, at *2 (S.D.N.Y. Nov. 1, 2000); Douglas v. Syracuse Univ. Coll. of Law, No. 94 Civ. 9195, 1995 WL 555693, at *1 (S.D.N.Y. Sept. 18, 1995). The burden is on the moving party to establish that a transfer is appropriate. See id. Based on the totality of circumstances, we find that defendants have carried their burden.

A. Locus of Operative Facts

As is stated above, all the facts took place in or around UC, and thus in the Northern District. Moreover, the Southern District has only minimal connections to the case. Plaintiff currently resides in Westchester County, but has done only since his expulsion (i.e., less than 6 months). He was a UC student and thus a Northern District resident at the time of the alleged rape, and resided in Riverside, Connecticut throughout the disciplinary process. See Watkins v. Harvard Univ., No. 89 CV. 2602, 1989 WL 135181, at *4 (S.D.N.Y. Nov. 3, 1989) ("One party's residence in a chosen forum, without more connecting a case to that forum, is insufficient to keep a case in that forum."). Plaintiff argues that three potential witnesses also live in Westchester County. However, as will be explained below in greater detail, more key witnesses live in the Northern District than the Southern District. (See infra Sections C., D.) Therefore, this factor clearly favors transfer.

B. Convenience to Parties

Plaintiff lives in the Southern District and all defendants presently live and work in the Northern District; thus, "one party or the other must travel." Douglas, 1995 WL 555693, at *1. Plaintiff argues that because Handler's parents reside in Manchester, Connecticut, which is 20 miles closer to White Plains than to Albany, New York (site of the Northern District courthouse in which the case will likely be heard), the Southern District is more convenient for her. However, because Handler is a student at UC, she obviously is not inconvenienced by traveling to Albany. Moreover, plaintiff's argument assumes both that all depositions and court appearances will occur when UC is not in session and that Handler will live at her parents' house during that time. However, because...