UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CARLO FARRUGIA,

Plaintiff,

v.

NOVINIUM, INC.,

Defendant.

 /

Case No. 14-14090

Honorable Nancy G. Edmunds

OPINION AND ORDER DENYING DEFENDANT’S MOTION TO TRANSFER [5]

This matter is before the Court on Defendant Novinium, Inc.’s (“Defendant”) motion

to transfer this action to the United States District Court for the Western District of

Washington pursuant to 28 U.S.C. § 1404(a). (Dkt.# 5). Plaintiff Carlo Farrugia (“Plaintiff”)

opposes this motion, arguing that the Eastern District of Michigan is a convenient forum for

this litigation. For the reasons set forth below, the Court agrees with Plaintiff and DENIES

Defendant’s motion to transfer. 

I. BACKGROUND

The core facts of this case spring from Plaintiff’s employment with Defendant.

Defendant is a Delaware corporation with its headquarters in Auburn, Washington.

Defendant also maintains a laboratory in Midland, Michigan. (Def.’s Answer ¶ 2). Defendant

describes itself as a “cable rejuvenation company that provides rehabilitation solutions that

extend the life of underground cables. Using proprietary technology, Novinium injects fluids

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into underground cables to restore and repair deteriorating infrastructure.” (Def.’s Mot.

Transfer). 

Plaintiff was employed by Defendant starting in approximately June 2010. Plaintiff’s

work was predominately performed in Canada, and on short-term assignments in other

locations within the United States. (Def.’s Mot. Transfer; Pl.’s Resp. & Opp.). There is no

allegation by either party that Plaintiff ever performed work for Defendant within the state

of Michigan. Plaintiff lives in Michigan and alleges that he “worked primarily in Canada

because of an arrangement he made with management that he be stationed close to his

wife and young children.” (Pl.’s Resp. & Opp.). Defendant denies any such arrangement,

alleging that Plaintiff lived in Maryland when he was hired. (Def.’s Reply Br.). Plaintiff

alleges that he “was forced out of his employment when he refused to lie to the Canadian

customs about the purpose for his travel to Canada. Defendant re-assigned him to Arizona,

knowing he could not leave his family long-term.” (Pl.’s Resp. & Opp.). Plaintiff brings this

action alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. §§ 201, et

seq. Plaintiff alleges that despite an employment offer letter than indicated that he was a

“Team Manager,” his job was actually as a laborer and he was labeled as an “Injection

Tech” when assigned to jobs. Therefore, he argues, he was not an exempt employee

pursuant to FLSA and he was entitled to overtime compensation. (Pl.’s Resp. & Opp.).

II. ANALYSIS

Defendant’s motion raises the issue of whether the Court should transfer this lawsuit

to the Western District of Washington for the convenience of the parties and witnesses and

in the interest of justice. (Def.’s Mot. Transfer). Defendant moves for a change of venue

under 28 U.S.C. § 1404(a), which provides that “[f]or the convenience of parties and

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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 or to any district or division to which

all parties have consented.” 28 U.S.C. § 1404(a). 

A. Jurisdiction

This Court has subject matter jurisdiction over this matter by way of the FLSA claim

in the complaint, that is to say, the Court has federal question jurisdiction over this matter.

Defendant does not challenge personal or subject matter jurisdiction in this motion. “[A]s

a preliminary matter, the Sixth Circuit holds that a district court cannot consider a motion

to transfer under § 1404(a) unless the court first has personal jurisdiction.” D.C. Micro Dev.,

Inc. v. Lange, 246 F. Supp. 2d 705, 709 n.3 (W.D.Ky. 2003) (citing Pittock v. Otis Elevator

Co., 8 F.3d 325 (6th Cir. 1993)). To determine personal jurisdiction, the court must apply

the law of the state in which it sits. 

Michigan Comp. Laws Ann. § 600.711 provides that there is a “sufficient basis of

jurisdiction . . . to exercise personal jurisdiction over [a] corporation” when the corporation

is involved in “[t]he carrying on of a continuous and systematic part of its general business

within the state.” Mich. Comp. Laws § 600.711(3). Defendant has a research and

development facility in Midland, Michigan, and the County of Midland is within the Eastern

District of Michigan.

B. Defendant Is A Resident Of Auburn, Washington, located in the Western

District of Washington

An initial inquiry in a motion to transfer is deciding whether the case could have been

brought in the proposed transferee district. See Cont’l Grain Co. v. The Barge FBL– 585,

364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960). Defendant argues that venue is proper

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in the Western District of Washington. The statutory language governing venue is found at

28 U.S.C. § 1391, and in pertinent part, it states that “[a] civil action may be brought in– (1)

a judicial district in which any defendant resides, if all defendants are residents of the State

in which the district is located; . . . .” 28 U.S.C. § 1391(b)(2).

For purposes of venue pursuant to 28 U.S.C. § 1391,

[A]n entity with the capacity to sue and be sued in its common name under

applicable law, whether or not incorporated, shall be deemed to reside, if a

defendant, in any judicial district in which such defendant is subject to the

court's personal jurisdiction with respect to the civil action in question and, if a

plaintiff, only in the judicial district in which it maintains its principal place of

business; . . . .

 28 U.S.C. § 1391(c)(2). Defendant’s headquarters is in Auburn, Washington. Auburn is

within King and Pierce counties, both within the Western District of Washington. This action

could have been brought there. 

C. The Factors Relevant to a Motion to Change Venue Under 28 U.S.C. § 1404

Do Not Weigh in Favor of a Change of Venue

The district court deciding a § 1404(a) motion to transfer "has broad discretion to

grant or deny" that motion. Phelps v. McClellan, 30 F.3d 658, 663 (6th Cir. 1994) (internal

quote and citation omitted). 

In the typical case not involving a forum-selection clause, a district court

considering a § 1404(a) motion (or a forum non conveniens motion) must

evaluate both the convenience of the parties and various public-interest

considerations. Ordinarily, the district court would weigh the relevant factors

and decide whether, on balance, a transfer would serve ‘the convenience of

parties and witnesses’ and otherwise promote ‘the interest of justice.’ 

Atl. Marine Constr. Co. v. U.S. Dist. Ct. for W. Dist. of Tex., 134 S. Ct. 568, 581, 187 L. Ed.

2d 487 (2013)(citation omitted). Those “relevant factors” relating to private interests are: 

[R]elative ease of access to sources of proof; availability of compulsory

process for attendance of unwilling, and the cost of obtaining attendance of

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willing, witnesses; possibility of view of premises, if view would be

appropriate to the action; and all other practical problems that make trial of

a case easy, expeditious and inexpensive.

Public-interest factors may include ‘the administrative difficulties flowing from

court congestion; the local interest in having localized controversies decided

at home; [and] the interest in having the trial of a diversity case in a forum

that is at home with the law.” . . . The Court must also give some weight to

the plaintiffs' choice of forum.

Id. at 581 n.6 (internal citations omitted).

The moving party must show “by a preponderance of the evidence” that the

requirements of § 1404(a) are satisfied. See Crestmark Fin. Corp. v. OMO Sci., Energy and

Tech., Inc., 2010 WL 3702371 (E.D.Mich. Sept. 16, 2010) (citing Perceptron, Inc. v. Silicon

Video, Inc., 423 F. Supp. 2d 722, 729 (E.D.Mich. 2006)). 

1. Private Interest Factors

a. Plaintiff’s Choice of Forum

“[C]ourts grant substantial deference to a plaintiff’s chosen forum, especially where,

as here, the plaintiff lives in his chosen jurisdiction.” Thomas v. Home Depot, U.S.A., Inc.,

131 F. Supp. 2d 934, 937 (E.D.Mich. 2001)(citing Brandon Apparel Group, Inc. v. Quitman

Mfg. Co., 42 F. Supp. 2d 821, 833 (N.D.Ill. 1999)). However, a plaintiff’s chosen forum “will

not defeat a well-founded motion for a change of venue.” Id. (citation omitted). 

Neither party alleges the existence of a forum-selection clause. Defendant points out

that section 6.8 of its Employee Employment Agreement provides that the “Agreement shall

be interpreted in accordance with the laws of the State of Washington.” (Def.’s Mot.

Transfer Ex. 3). As Plaintiff counters, he brings his claim pursuant to federal law, the FLSA.

Absent a valid forum selection clause, this factor weighs heavily in Plaintiff’s favor. 

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b. Convenience of Witnesses and Cost of Attendance

Defendant argues that “Witnesses’ convenience is one of the most important factors

in determining whether to grant a motion to change venue under § 1404(a).” Thomas, 131

F. Supp. 2d at 937. The only two witnesses identified with specificity by either party were

identified by Defendant and are residents of neither Michigan nor Washington. They are: 

1. Kurt Wangenheim, Vice President of Operations for Defendant and Plaintiff’s

second-level supervisor. Mr. Wangenheim resides in Milton, Georgia, and travels

to Washington approximately twice per month. According to Defendant, although

Mr. Wangenheim travels frequently for work, his job duties do not require him to

travel to Michigan. (Wangenheim Decl., Def.’s Mot. Transfer Ex. 1).

2. Steven DeFalco, Eastern Regional Manager for Defendant and Plaintiff’s direct

supervisor. Mr. DeFalco resides in Simpsonville, South Carolina, and travels to

Washington approximately twice per year. Despite traveling for work, Mr. DeFalco

declared that he has no reason to travel to Michigan or any of the surrounding

areas. (DeFalco Decl., Def.’s Mot. Transfer Ex. 4) 

Defendant also argues that because Plaintiff’s claims challenge Defendant’s corporate

policies, the “[o]ther individuals with information relevant to those policies are likely located

in Washington, not Michigan.” (Def.’s Reply Br., at 5). Neither party has specifically

identified these additional witnesses or their locations and Defendant’s argument is

speculative. 

In the balance of convenience analysis, decisions within this district “have considered

the convenience of witnesses who were also employees of the defendant corporation.”

Thomas, 131 F. Supp. 2d at 938. Defendant argues that “attending a single day of trial

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would require witnesses to be away from their duties (client sites, teams in the field) for at

least three days, due to the inconvenience of traveling three times zones with relatively few

direct flights from Seattle to Detroit.” (Def.’s Mot. Transfer).

Plaintiff cites two cases from the Southern District of New York to support his

assertion that “the convenience of witnesses who reside in neither the current nor the

transferee forum is not relevant when considering a motion to transfer.” Eres N.V. v. Citgo

Asphalt Ref. Co., 605 F. Supp. 2d 473, 480 (S.D.N.Y. 2009) (citing Herbert Ltd. v. Elec.

Arts Inc., 325 F. Supp. 2d 282, 288 (S.D.N.Y. 2004)). While these cases are not controlling,

Defendant has not provided law to the contrary and in this instance, as Plaintiff points out,

the two witnesses specifically identified by Defendant are both in the same time zone as

this Court and geographically closer to Michigan. 

In this instance, the only witnesses who were identified with specificity are located in

neither the transferor nor transferee district or state, are located within the same time zone

as this Court and geographically closer to Michigan, are accustomed to traveling for work,

and each of them travels to Washington only infrequently (twice per month and twice per

year). The consideration of convenience to the witnesses weighs in neither party’s favor.

c. Availability of Compulsory Attendance

Neither party has made a showing that this factor weighs in its favor. Defendant

argues only generally that “potential witnesses that might be ‘unwilling’ [to attend] include

those located at or near client sites” and that “[t]o the extent former . . . employees with

relevant facts might be unwilling to testify (on behalf of either party), there is a greater

likelihood that they are located within 100 miles of the Western District of Washington.”

(Def.’s Mot. Transfer at 12 n.8). Generalizations are not enough to establish that

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compulsory attendance favors Defendant’s motion. See Thomas, 131 F. Supp. 2d at 940

(the defendant “made no showing that [witness’s] live testimony is necessary, nor has it

shown that she would be unwilling to testify voluntarily”); AMF Inc., v. Computer

Automation, Inc., 532 F. Supp. 1335, 1341 (S.D.Ohio 1982) (“because there is no indication

that compulsory process would be required to compel the attendance of any witnesses for

either party, the [c]ourt does not find [it] . . . to be a relevant consideration herein”). “The

Court will not consider the availability of compulsory process as it relates to a defendant's

employees.” Thomas, 131 F. Supp. 2d at 940; see also Micromuse, Inc. v. Aprisma Mgmt.

Techno., Inc., 2005 WL 1241924, at *5 (S.D.N.Y. May 24, 2005) (“Because the parties can

compel their own employees to testify without the need for a subpoena, the location of

party witnesses is irrelevant to consideration of this factor.”)

Neither party has identified potential witnesses who would be unwilling to testify

voluntarily and whose testimony would need to be obtained through a subpoena. The

compulsory process factor weighs in neither party’s favor.

d. Ease of Access to Sources of Proof

Defendant argues that “documents related to Plaintiff’s employment are located in

Auburn, Washington.” (Def.’s Mot. Transfer, at 5). Defendant points out that none of these

documents are in Michigan. Defendant also argues that when Plaintiff’s employment ended,

Plaintiff “sent his laptop and other equipment to Auburn, Washington.” (Def.’s Mot.

Transfer, at 10). The parties cite contradictory support for the relevance of the location of

documents, including electronic documents. Compare B.E. Tech., LLC v. Facebook, Inc.,

957 F. Supp. 2d 926, 936 (W.D.Tenn. 2013) (disagreeing with the plaintiff’s “contention that

advances in electronic document transfer reduce the importance of the location-of-sources8

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of-proof factor”), with Aerotel, Ltd. v. Sprint Corp., 100 F. Supp. 2d 189, 197 n.9 (S.D.N.Y.

2000) (“The location of documents factor is neutral ‘[i]n today’s era of photocopying, fax

machines and Federal Express.’”) (citing Coker v. Bank of Am., 984 F. Supp. 757, 766

(S.D.N.Y. 1997)). 

“There is no suggestion that the documents involved will be very voluminous or

difficult to convert into electronic form for electronic distribution, or otherwise difficult to

send . . . . Accordingly, this factor does not support a transfer.” Eres N.V., 605 F. Supp. 2d

at 481; see also Hummingbird USA, Inc. v. Tex. Guaranteed Student Loan Corp., 2007 WL

163111, at *3 (S.D.N.Y. Jan. 22, 2007) (the defendant’s argument fails where defendant

fails “to identify a single document it would require that is bulky or difficult to transport”).

This factor weighs minimally in Defendant’s favor where there is no allegation that any

relevant documents or other proofs are located in Michigan. 

e. Locus of Operative Facts. 

As with the location of relevant documents, this factor weighs slightly in Defendant’s

favor. Plaintiff performed no work for Defendant within the state of Michigan or this district.

Yet here is no evident or alleged reason to visit Defendant’s premises in Washington (one

of the factors to be considered). To the extent that Plaintiff’s claims challenge decisions

made at the corporate level, Defendant argues that the decision-makers were located in

Auburn, Washington. (Def.’s Mot. Transfer, at 9). Defendant’s argument regarding the

location of decision-makers was addressed in the factors above: convenience of witnesses,

cost of attendance, and availability of compulsory attendance. 

f. Relative Means of The Parties

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Plaintiff argues that he is an individual of limited means, compared to Defendant

corporation with “unlimited resources” that “routinely” flies its employees across the United

States. Neither party has provided proof to support this factor, yet the Court could conclude

that Plaintiff “would have more financial difficulty in transporting witnesses than would a

corporation . . . .” Thomas, 131 F. Supp. 2d at 941. Other than his own travel to

Washington, Plaintiff did not identify or provide evidence that he has material fact witnesses

needing transport to Washington. Arguably, witnesses that are current employees of

Defendant have a better chance of being located in Washington, if only infrequently, than

in Michigan. This factor weighs minimally in Plaintiff’s favor.

2. Public Interest Factors 

a. Court Congestion

Defendant argues that “the Western District of Washington is significantly less

congested than the Eastern District of Michigan” and cites statistics for a twelve month

period that show 5,410 pending cases for 25 judges (or 216.4 cases per judge) in the

Eastern District of Michigan compared with 2,298 pending cases for 13 judges (or 176.8

cases per judge) in the Western District of Washington. The Western District of Washington

judges have on average approximately 82% of the case load of the Eastern District of

Michigan judges. While this is not an extreme gap, this factor is given some slight weight

in Defendant’s favor. 

b. Choice of Law

The Employee Employment Agreement Section 6.8 states that the “Agreement shall

be interpreted in accordance with the laws of the State of Washington.” (Def.’s Mot.

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Transfer Ex. 3). Although Plaintiff alleges that he “refused” to sign the agreement,

Defendant points out that when Plaintiff accepted employment with Defendant, Plaintiff

signed and returned an offer letter which specifically states “I agree with these terms of

employment.” (Pl.’s Resp. & Opp. 2; Def.’s Mot. Transfer Ex. 2). The Letter further noted

that the enclosures included the Employee Employment Agreement. Plaintiff argues that

because his claims allege a wage and hour violation, the same law is applicable in

Michigan as it is in Washington. Defendant has not addressed this issue. This factor is

neutral. 

III. CONCLUSION

For the above-stated reasons Defendant’s motion to transfer is DENIED. 

s/Nancy G. Edmunds 

Nancy G. Edmunds

United States District Judge

Dated: February 27, 2015

I hereby certify that a copy of the foregoing document was served upon counsel of record

on February 27, 2015, by electronic and/or ordinary mail.

s/Carol J. Bethel 

Case Manager

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