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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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JOHN DAVID KRULISKY, on behalf of 

himself and others similarly situated,

Plaintiff, 

-vBRISTOL-MYERS SQUIBB COMPANY, 

Defendant.

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10 Civ. 8700 (DLC)

OPINION AND ORDER

APPEARANCES

For plaintiff:

Charles Edward Joseph

Daniel Maimon Kirschenbaum

Joseph, Herzfeld, Hester, & Kirschenbaum

233 Broadway, 5th Floor

New York, NY 10017

Richard Jennings Burch

James A. Jones

Bruckner Burch LLP

1415 Louisiana Street

Suite 2125

Houston, TX 77002

For defendant:

Thomas Anton Linthorst

Prashanth Jayachandran

Joseph Alan Nuccio

Morgan, Lewis & Bockius LLP

101 Park Avenue

New York, NY 10178

DENISE COTE, District Judge:

Plaintiff Jeffrey Bethune filed a complaint initiating this 

purported collective action under the Federal Labor Standards 

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Act (“FLSA”) on November 18, 2010 against Bristol-Myers Squibb 

Company (“BMS”). The action is brought for the benefit of BMS 

territory business managers, associate territory business 

managers, pharmaceutical representatives and pharmaceutical 

sales representatives. After several individuals filed consent 

forms to sue under the FLSA, an amended complaint was filed on 

April 25, 2011 replacing Jeffrey Bethune with John David 

Krulisky (“Krulisky”) as the named plaintiff. On May 9, BMS 

filed a motion to transfer this action to the District of New 

Jersey, or, in the alternative, to the Western District of 

Washington or the Southern District of Florida, pursuant to 28 

U.S.C. § 1404(a). The motion was fully submitted on June 10. 

For the following reasons, BMS’s motion to transfer this action 

to the District of New Jersey is granted. 

DISCUSSION

Section 1404 provides: “For 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). 

District courts have “broad discretion in making determinations 

of convenience under Section 1404(a) and notions of convenience 

and fairness are considered on a case-by-case basis.” D.H. 

Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106 (2d Cir.

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2006). The movant bears the burden of establishing, by “clear 

and convincing evidence,” that a transfer of venue is warranted. 

N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 

102, 114 (2d Cir. 2010).

If the transferee court would also have jurisdiction over 

the case, the court must determine whether, considering the 

“convenience of parties and witnesses” and the “interest of 

justice,” a transfer is appropriate. In making that 

determination, a court considers:

(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, and (7) 

the relative means of the parties.

Id. at 112 (citation omitted). A court may also consider “the 

forum’s familiarity with the governing law” and “trial 

efficiency and the interest of justice, based on the totality of 

the circumstances.” Berman v. Informix Corp., 30 F. Supp. 2d 

653, 657 (S.D.N.Y. 1998).

I. Venue is Appropriate in New Jersey

The plaintiff does not dispute that this action could 

have been brought in New Jersey. As discussed below, a 

substantial part of the events giving rise to the 

plaintiff’s claim took place in New Jersey, and BMS is 

subject to personal jurisdiction in that District.

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II. Relevant Factors in Considering Transfer to Another 

Appropriate Forum

A. Convenience of the Parties

Krulisky is a resident of Florida, and none of the other 

plaintiffs that have opted in are resident or worked in this 

District. Instead, four are residents in the State of 

Washington, two others are residents of Florida, one is a 

resident of Maryland and one is a resident of Michigan.

Although BMS maintains its corporate headquarters in New York, 

the home office and headquarters for its U.S. Pharmaceutical 

Group (“USP”), the group for which plaintiffs work or worked, is 

located in Plainsboro, New Jersey. The Plainsboro office 

includes the senior executives of USP, and indeed all those 

involved in sales or supporting sales for USP other than the 

field sales managers located across the country. Neither party 

has argued that the BMS employees relevant to the claims in this 

action work in the New York office. Therefore, the Southern 

District of New York is not a particularly convenient forum for 

any of the parties, and the District of New Jersey is more 

convenient for the defendant.

Although the plaintiff argues that BMS has not shown that 

New York is significantly more inconvenient than New Jersey, 

because the test for a transfer of venue is a multi-factor test, 

this is not a standard that a party seeking a transfer must 

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meet. As BMS points out, if one seeking a transfer must always 

prove that one district is significantly more inconvenient than 

the requested forum, it would be rare for a case to be 

transferred between adjoining districts.

Plaintiff also points out that BMS has initiated suits in 

the Southern District of New York concerning its pharmaceutical 

products. This is irrelevant, as the locus of facts, witnesses, 

and documents for actions regarding BMS’s intellectual property 

in its products or other corporate functions may be centered in 

New York, and is separate from the issue presented here –-

policies regarding and compensation of its USP sales force.

B. Locus of Operative Facts

The plaintiff’s claims arise from an alleged failure 

to pay overtime to him and other people in his and similar

positions. The resolution of this issue will require a 

review of the job duties of the plaintiff and others like 

him, including as they were set and reviewed by the 

managers at BMS in its Plainsboro, New Jersey office, as 

well as the mangers in the field around the country. BMS 

argues that any relevant compensation decisions also took 

place in Plainsboro, New Jersey. The plaintiff does not 

object to this assessment. Therefore, none of the 

operative facts occurred in the Southern District of New 

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York, and many of them took place in the District of New 

Jersey.

C. Plaintiff’s Choice of Forum

Although a plaintiff’s choice of forum is ordinarily 

given substantial weight, that choice is entitled to “less 

significant consideration in a []putative[] class action 

than in an individual action.” In re Warrick, 70 F.3d 736, 

741 n.7 (2d Cir. 1995). This principle has been applied to 

collective actions under the FLSA. E.g., Amick v. American 

Exp. Travel Related Services Co., Inc., No. 09 Civ.

9780(AKH), 2010 WL 307579, at *2 (S.D.N.Y. Jan. 26, 2010).

Furthermore, a plaintiff’s choice of forum is also not 

accorded much weight where, as here, the plaintiffs’

residence and the locus of operative facts are not in the 

selected forum. See Iragorri v. United Technologies Corp., 

274 F.3d 65, 71-72 (2d Cir. 2001) (forum non conveniens 

analysis); Amick, 2010 WL 307579, at *2 (§1404 analysis).

The plaintiff’s argument that his choice of forum 

should be given greater weight because future possible optin plaintiffs may include a large number from the State of 

New York is unavailing. This argument is based on an 

assumption that the distribution of USP’s sales staff 

mirrors the distribution of the national population. Even 

if that were a valid assumption, the plaintiff provides an 

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estimate for how many potential opt-in plaintiffs would 

reside in the State of New York, which is, of course, 

larger than the Southern District of New York. 

Furthermore, the argument ignores that, thus far, not a 

single plaintiff from this District has opted in to this 

case.

D. Convenience of Witnesses

The likely witnesses are currently or formerly employed by 

BMS as managers in human resources, compensation, training, and 

other departments of USP who work and live in the District of 

New Jersey, or nearby in Pennsylvania. New Jersey is therefore 

somewhat more convenient for these witnesses.

Insofar as some of these witnesses are current BMS 

employees, the inconvenience is mitigated because, as partyemployed witnesses, they can be made available by BMS, who can 

pay for their transport to this District. But this does not 

mean, as the plaintiff implies, that this District is equally 

convenient as the District where those employees live and work. 

Indeed, the case law cited by plaintiff himself indicates that 

when party-employed witnesses are located outside a plaintiff’s 

chosen forum, this is a factor that weighs in favor of transfer.

Although the plaintiffs are not alleged to work or live in 

New Jersey, neither do they live in or near New York. 

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Therefore, the District of New Jersey is no less convenient for 

the plaintiffs than the Southern District of New York. 

E. Location of Documents and Other Sources of Proof

The majority of the relevant documents in this case 

are likely to be supplied by BMS, and these are located at 

its Plainsboro, New Jersey location. As the cases cited by 

both plaintiff and BMS indicate, because these documents 

might be easily transportable, this factor weighs in favor 

of transfer, but only slightly.

F. Availability of Process

BMS suggests that some of its witnesses might be 

former employees that worked at its Plainsboro office and 

may still live in New Jersey. This factor weighs in favor 

of transfer, as the District of New Jersey will be better 

able to compel their attendance at trial.

G. Trial Efficiency and the Interests of Justice

BMS claims that the interests of justice favor 

transfer because jury duty should not be imposed on a 

community which has no connection to a case; the Southern 

District of New York has one of the heaviest caseloads in 

the nation and has no special subject matter specialty in 

this type of action; and the plaintiff appears to be forum 

shopping by choosing the Southern District of New York. 

The plaintiff counters that BMS has not shown that this 

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District is any more burdened than the District of New 

Jersey and that BMS is the party that is forum shopping 

through this motion to transfer. 

At this early stage in the litigation, it is hard to 

assess the impact of the Circuit cases that the parties 

suggest have caused their opponent to seek a more favorable 

forum. While this District’s docket is large, there is no 

basis to find that this action cannot be addressed 

efficiently here. On the other hand, there is no basis to 

find forum shopping by BMS. The District of New Jersey has 

the strongest connection to this action. On balance, the 

interests of justice favor transfer because of New Jersey’s 

connection to the issues that will be litigated in this 

lawsuit.

H. Other Factors

The parties did not brief other factors typically 

included in the transfer analysis, such as their relative 

means and the transferee forum’s familiarity with the 

governing law. Therefore, these factors will be considered 

neutral.

In sum, this case could properly have been initiated in the 

District of New Jersey, and all of the factors in the transfer 

analysis either favor transfer or are neutral. The plaintiff’s 

choice of forum is entitled to very little weight in this 

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analysis because no plaintiffs are resident in this District and 

the locus of facts is centered in New Jersey and, to a lesser 

extent, in the districts around the country where the plaintiff 

and opt in plaintiffs worked. BMS therefore was not required to 

overcome a strong presumption in favor of this District, but 

still presented clear and convincing evidence in favor of 

transfer of this action to the District of New Jersey. 

CONCLUSION 

BMS's May 9, 2011 motion to transfer venue is granted. 

This action will be transferred to the District of New Jersey. 

SO ORDERED: 

Dated: 	 New York, New York 

June 27, 2011 

Judge 

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