Phillips v. S. Gumpert Co., Inc., C-C-85-575-P.
| Decision Date | 05 February 1986 |
| Docket Number | No. C-C-85-575-P.,C-C-85-575-P. |
| Citation | 627 F. Supp. 725 |
| Court | U.S. District Court — Western District of North Carolina |
| Parties | Garlon R. PHILLIPS, Plaintiff, v. S. GUMPERT COMPANY, INC., Defendant. |
William L. Rikard, Jr., H. Carey Strickland, III, Parker, Poe, Thompson, Bernstein, Gage & Preston, Charlotte, N.C., for plaintiff.
Lawrence Hewitt, Berry, Hogewood, Edwards & Freeman, Charlotte, N.C., for defendant.
THIS MATTER was heard before the undersigned on January 31, 1986 at Charlotte, North Carolina on the Defendant's Motion to transfer this action pursuant to 28 U.S.C. § 1404(a).1 The Defendant was represented by Lawrence W. Hewitt, Attorney at Law. The Plaintiff was represented by H. Carey Strickland, III and William L. Rikard, Jr., Attorneys at law.
The Plaintiff, Garlon R. Phillips, is a resident of Louisiana and a former employee of the Defendant in North Carolina. The Defendant, S. Gumpert Co., Inc., is a New York corporation with its principal place of business in Jersey City, New Jersey. It has been doing business continuously in this District at all times relevant to this lawsuit.
During the first half of 1984, two officers of the Defendant approached the Plaintiff in Louisiana about working in North Carolina as a sales representative for the Defendant. The Plaintiff alleges that he entered an employment contract with the Defendant through a series of correspondence. According to the Plaintiff, the contract provided that the Defendant would employ the Plaintiff as a sales representative for a fixed term of two years at an annual salary of $65,000.00; pay him $10,000.00 annually in expenses; assign him the territory of North Carolina, South Carolina, and Virginia; and pay the cost of his move from Louisiana to Charlotte, North Carolina.
Nineteen weeks after the Plaintiff moved to Charlotte and assumed his position as the Defendant's sales representative, the Defendant allegedly reduced the Plaintiff's salary by a substantial amount. After the Plaintiff protested, the Defendant allegedly terminated his employment.
Upon receiving notification of the reduction in his salary, the Plaintiff consulted counsel in Charlotte about the matter. He continued to consult with and to assert his rights through his Charlotte counsel in attempts to resolve the dispute without litigation. After his termination and after it had become evident that his dispute with the Defendant could not be resolved without litigation, the Plaintiff returned to Louisiana.
Since he had already spent considerable time and effort conferring with the North Carolina attorneys he had engaged when the dispute first arose, the Plaintiff decided that this District would be the most convenient forum for his lawsuit. In addition, a number of the witnesses he plans to call live in or near this District, making this forum more convenient for them and enabling the Plaintiff to compel the attendance of some of those who may be unwilling to appear. Those witnesses include customers on whom the Plaintiff called while employed by the Defendant and the sales representative the Plaintiff was hired to replace but who remained in his position when the Defendant unilaterally changed its plans.
The Defendant disagrees with the Plaintiff's assessment of the convenience of this forum, and seeks pursuant to 28 U.S.C. § 1404(a)2 to have the case transferred to a district closer to its principal place of business in New Jersey, i.e., the Southern District of New York. The Defendant contends that it would be no less convenient for the Plaintiff to conduct his litigation in New York since he is no longer a North Carolina resident, and that it would be much more convenient for the Defendant to litigate in New York. The Defendant points out that its cost of litigation would be reduced if the case were transferred to New York, as it would no longer require the services of North Carolina counsel in addition to its regular general New York counsel. The Defendant further states that none of its witnesses reside in North Carolina, but rather within close proximity to the courthouse for the Southern District of New York. It maintains that there would be easier access to documentary evidence if the case were litigated in the Southern District of New York, since the documents relevant to this action are located in the Defendant's corporate office in Jersey City, New Jersey.3 Finally, the Defendant claims that a transfer would be appropriate because the Western District of North Carolina has no interest in this lawsuit at this point in time.
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