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Rossi v. Ferring Pharmaceuticals

United States District Court, D. Connecticut

February 12, 2016




Plaintiff, Kristen Rossi (“Rossi”), brings this wrongful termination action against Defendant Ferring Pharmaceuticals, Inc. (“Ferring”). Currently before the Court are the Defendant’s motion to dismiss for improper venue or, in the alternative, to transfer to the District Court of New Jersey, and Plaintiff’s motion for an intra-district transfer to the federal court in Bridgeport, Connecticut. For the reasons that follow, the parties’ motions are DENIED.

I. Factual Background

Ferring is a Delaware corporation which maintains its corporate headquarters in Parsippany, New Jersey. [Dkt. #16-3, Shields Aff. at ¶ 4]. While residing in the state of Connecticut, Plaintiff was employed as a pharmaceutical sales representative by Ferring. [Dkt. #1-1, Compl. at ¶ 3]. She served as Ferring’s representative in the Great Neck, New York territory, covering portions of Long Island, New York. [Dkt. #16-3, Shields Aff. at ¶ 6]. As a sales representative, Plaintiff was expected to travel throughout her assigned territory and to sell and promote Ferring products within it. [Id. at ¶¶ 7-8].

Ferring outfitted an office for the Plaintiff in her Norwalk, Connecticut home. [Dkt. #1-1, Compl. at ¶ 3]. Plaintiff conducted administrative duties for Ferring from her Connecticut home office. [Dkt. #17-1, Rossi Aff. at ¶ 6]. Ferring also sent sales materials and drug samples to Plaintiff’s home in Connecticut, which Ferring audited. [Id. at ¶¶ 4-5].

In late June 2014, Plaintiff learned of a discrepancy between the dosage directions on the package of a Ferring product called Prepopik and a dosing instruction sheet provided by Ferring employee, David Ammonds, to Kelly, an employee of a medical office within Plaintiff’s sales territory, located in Garden City, New York. [Dkt. #1-1, Compl. at ¶¶ 5-9, 11-12; Dkt. #16-3, Shields Aff. at ¶ 13; Dkt. #17-1, Rossi Aff. at ¶ 14].[1] Plaintiff sent Ammonds a text message informing him of the discrepancy. [Dkt. #1-1, Compl. at ¶ 13].

On June 30, 2014, Jade Shields, Defendant Ferring’s Director of Compliance, and his assistant, Yasmin Silva, called Plaintiff from their New Jersey offices, told her that they were conducting an investigation, and asked her if she had given a gift card to any staff members of any of the doctors with whom she worked. [Dkt. #1-1, Compl. at ¶ 14].[2] Plaintiff told them that she purchased a gift card with her own money and gave it to a staff member named Kelly, after learning that Kelly’s home and personal belongings had been destroyed by a fire. [Id. at ¶ 15]. On July 7, 2014, Plaintiff had a telephone conversation from her home in Norwalk, Connecticut with Jade Shields, Defendant Ferring’s Director of Compliance, regarding the dosing instruction sheet Ammonds prepared and the gift card. [Id. at ¶¶ 17-18; Dkt. #17-1, Rossi Aff. at ¶ 7]. Four days later, on July 11, 2014, Plaintiff received a telephone call from Rick Rice, the National Sales Director for Ferring, in which she learned she had been terminated for giving the gift card. [Dkt. #1-1, Compl. at ¶ 21; Dkt. #17-1, Rossi Aff. at ¶ 8]. Rice works out of his home office, in St. Louis, Missouri. [Dkt. #17-1, Rossi Aff. at ¶ 8].

Plaintiff presently resides in Florida. [Id. at ¶ 9]. She also visits close friends in Connecticut, approximately three times per year. [Id.]. When Plaintiff visits her Connecticut friends, they drive her to and from the airport and provide housing accommodations. [Id.]. Plaintiff’s attorneys have submitted affidavits averring that they would not continue to represent Plaintiff in this case if the matter is transferred to the District of New Jersey. [Dkt. #17-2, De Toledo & Naylor Affs. at ¶ 3].

II. Legal Standard

Initially, Defendant Ferring incorrectly contends that the Complaint must be dismissed or transferred pursuant to the three-factor analysis articulated in 28 U.S.C. § 1391. See [Dkt. #16-1, Def.’s Memo. at 4-7]. This statute is inapplicable because this case was not originally brought in federal court, but was instead removed from state court. See [Dkt. #1, Notice of Removal]. When a case is removed, venue is determined by 28 U.S.C. § 1441(a). See PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 72 (2d Cir. 1998) (“The removal statute, and not the ordinary federal venue statute, 28 U.S.C. § 1391, governs venue in removed cases.”). Here, the case was properly removed from Connecticut Superior Court to the District of Connecticut. See [Dkt. #1, Notice of Removal, at¶ 1].[3]

Defendant Ferring’s remaining argument is that this action should be transferred to the District of New Jersey pursuant to 28 U.S.C. § 1404(a). See [Dkt. #16-1, Def.’s Memo. at 7-14]. Under this section, “[f]or 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.” 28 U.S.C. § 1404(a). The objectives of such a transfer are “to prevent the waste of time, energy and money and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense.” Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (internal quotations omitted). “The movant bears the burden of establishing the propriety of transfer by a clear and convincing showing.” MAK Mktg., Inc. v. Kalapos, 620 F.Supp.2d 295, 298 (D. Conn. 2009) (citing Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir. 1950)).

To determine whether a transfer under this section is appropriate, the Court must consider “(1) whether an action ‘might have been brought’ in the proposed transferee forum, and, if so, (2) whether the transfer promotes convenience and justice.” Costello v. Home Depot USA, Inc., 888 F.Supp.2d 258, 267 (D. Conn. 2012). In reaching the latter conclusion, “[d]istrict courts have broad discretion to make case-by-case determinations . . . .” Id. (citing In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992)). They exercise this discretion by considering nine factors:

(1) the plaintiff’s choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, (7) the relative means of the parties, (8) the forum’s familiarity with the governing ...

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