Bell v. K Mart Corp.

848 F. Supp. 996, 1994 U.S. Dist. LEXIS 4753, 64 Empl. Prac. Dec. (CCH) 43,038, 64 Fair Empl. Prac. Cas. (BNA) 335
CourtDistrict Court, N.D. Georgia
DecidedFebruary 25, 1994
Docket1:94-cv-00459
StatusPublished
Cited by12 cases

This text of 848 F. Supp. 996 (Bell v. K Mart Corp.) is published on Counsel Stack Legal Research, covering District Court, N.D. Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell v. K Mart Corp., 848 F. Supp. 996, 1994 U.S. Dist. LEXIS 4753, 64 Empl. Prac. Dec. (CCH) 43,038, 64 Fair Empl. Prac. Cas. (BNA) 335 (N.D. Ga. 1994).

Opinion

ORDER

CARNES, District Judge.

This case is presently before the Court on defendant’s Motions for Change of Venue [65-2], The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendant’s motion should be granted.

BACKGROUND

The eleven plaintiffs in this case are former store managers of defendant K Mart Corporation (“K Mart”) who are, or were, employed in defendant’s stores located in Alabama, Florida, Georgia, and North Carolina. Each plaintiff seeks relief for alleged age discrimination, pursuant to the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq. (“ADEA”). Each plaintiff also seeks relief for common law intentional infliction of emotional distress pursuant to the applicable law of each plaintiffs home state.

Plaintiffs have alleged that each plaintiff was subjected to some adverse employment action by defendant due to the respective plaintiffs age at the time of the adverse actions. In support of their claims, plaintiffs point to evidence they believe indicates that each plaintiff was subjected to such adverse action as part of a “pattern and practice” of illegal treatment of K Mart’s older employees at all levels. All the plaintiffs were over forty years old at the time of the alleged adverse employment actions and, thus, protected by the ADEA. Notwithstanding plaintiffs’ allegations, defendant alleges that the employment decisions made regarding each plaintiff were made based upon the individual circumstances of each plaintiffs employment record and job performance. Plaintiffs, in turn, cite to evidence which tends to indicate that defendant’s stated reasons for each employment decision are mere pretext.

Although the Complaint purported to include the claims of each of eleven plaintiffs “and other similarly situated persons,” (Compl. at ¶ 92), it was not brought as a class action, and plaintiffs have made no effort to seek representative status or to certify any proposed class. 1 Prior to bringing the instant action, each plaintiff filed an individual complaint with the Equal Employment Opportunity Commission office in his respective state. According to the allegations in the Complaint, the plaintiffs reside as follows:

Plaintiff Residence

Bell Jacksonville Beach, FI.

Kondrad Fayetteville, N.C.

Mixon St. Petersburg, FI.

Navickas Castleberry, FI.

Taper Raleigh, N.C.

The plaintiffs still reside in the same locales as they did at the time of the acts complained of in the Complaint. The stores to which the plaintiffs were assigned are likewise near their current places of residence and in their respective home states. At the time of the adverse employment actions complained of, pursuant to K Mart’s management structure, each plaintiff reported to a District Manager and Regional Manager located in each plaintiffs home state. 2 K Mart is a Michigan corporation presently doing business in all four states in which the plaintiffs reside.

DISCUSSION

I. Introduction,

In its motions currently before the Court, defendant seeks to change venue with respect to plaintiffs Bell, Kondrad, Mixon, Navickas, and Taper pursuant to 28 U.S.C. *998 1404(a). 3 Defendant argues that the Northern District of Georgia is an inconvenient forum for trying the cases of the Florida and North Carolina plaintiffs, as virtually all the witnesses with personal knowledge regarding these plaintiffs’ cases, including the plaintiffs themselves, live and work near each plaintiffs respective place of residence. Defendant has presented evidence that none of these witnesses lives or works anywhere in Georgia. Plaintiffs argue, in response, that all the plaintiffs’ claims share common statistical and pattern and practice evidence which could be presented once in one location if the cases had remained joined. Plaintiffs further argue that any inconvenience to the parties and witnesses caused by having the trial at a distant location is mitigated by the fact that some of the witnesses travel as part of their jobs anyway. Plaintiffs have argued that their choice of venue is paramount to this Court’s determination but have presented no evidence tending to demonstrate inconvenience to the parties or witnesses by transferring venue.

For the reasons discussed below, the Court conclude that it should grant defendant’s motion for change of venue with respect to the Florida and North Carolina plaintiffs’ eases.

II. Change of Venue.

Defendant has moved the Court, pursuant to 28 U.S.C. § 1404(a) (“§ 1404(a)”), to transfer venue with respect to the Florida and North Carolina plaintiffs. Plaintiffs oppose this motion by arguing that venue is proper in the Northern District of Georgia pursuant to 28 U.S.C. § 1391(c) and that defendant has failed to make a sufficient showing to disturb plaintiffs’ choice of forum. Defendant does not dispute that venue is currently proper; rather, it argues that the current venue is exceedingly inconvenient and that the plaintiffs impacted by their motion to change venue have no contacts with the present forum. The Court concludes that the present forum is inconvenient for the parties and the witnesses and, thus, that it should grant defendant’s motion to change venue in these plaintiffs’ cases.

Defendant relies on 28 U.S.C. § 1404(a) to support its motion for a change of venue with respect to the Florida and North Carolina plaintiffs. Section 1404(a) provides that:

[f]or the convenience of the parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought.

This “change of venue statute applies by its express terms to ‘any civil action,’ which would include an action under the ADEA.” Adkins v. Kellwood Co., 36 Fair Empl. Prac.Cas. (BNA) 1062 (W.D.N.C.1984). When seeking a change of venue pursuant to § 1404(a), “[t]he movant has the burden of making a strong case for transfer and if the transfer would merely shift inconvenience from one party to the other, or if the balance of all factors is but slightly in favor of the movant, plaintiffs choice of forum should not be disturbed and transfer should be denied.” Grey v. Continental Marketing Associates, Inc., 315 F.Supp. 826, 831 (N.D.Ga.1970) (Edenfield, J.) (footnote omitted). In these cases, defendant has carried its burden.

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848 F. Supp. 996, 1994 U.S. Dist. LEXIS 4753, 64 Empl. Prac. Dec. (CCH) 43,038, 64 Fair Empl. Prac. Cas. (BNA) 335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-k-mart-corp-gand-1994.