The opinion of the court was delivered by: Joseph N. Laplante United States District Judge
The plaintiff, Martha Schoendorf, moves to transfer this employment discrimination action from this court, where she originally filed it, to the United States District Court for the District of Maine--where she lives, where all of the allegedly unlawful conduct took place, and where most of the third-party witnesses to that alleged conduct reside. Despite these undisputed facts, the defendant, RTH Mechanical Contractors, Inc., located in New Hampshire, opposes the transfer, arguing that Schoendorf has failed to carry her burden of showing that transfer is appropriate. For the reasons explained infra, the court disagrees, and grants Schoendorf's motion to transfer.
Schoendorf, who lives in Augusta, Maine, worked as an apprentice pipefitter for RTH on its job at a Veterans Administration facility there. She alleges that her foreman "made frequent degrading sex-based comments" about her, beginning with his arrival on the job site in early October 2009 and culminating in an incident in late November 2009 when he "lost his temper" with Schoendorf and called her a "c--t" and a "bitch." Schoendorf alleges that, in response, she told the project manager to "document the hostile comments or she would contact the Human Rights Commission." She further alleges that, at a subsequent meeting with the project manager, the foreman, and a union representative, the project manager "threatened [Schoendorf] that if she wanted to document the incident," he would "write [her] up for everything and document all of it."
Schoendorf, proceeding pro se, filed a charge of discrimination with the Equal Employment Opportunity Commission, alleging that RTH had discriminated against her on the basis of her sex, and retaliated against her for opposing the discrimination, in violation of Title VII of the Civil Rights Act of 1964. See 42 U.S.C. §§ 2000e-2(a)(1), 2000e-3(a). While the form used to file the charge lists the New Hampshire Human Rights Commission ("NHRC") as the "State or local agency," Schoendorf attributes this to an error by the EEOC, and has submitted an affidavit from the NHRC's executive director supporting that conclusion, and attesting that the NHRC never took any action on the charge. For its part, the EEOC conducted an investigation that, in its view, failed to show a violation of Title VII. The EEOC accordingly issued Schoendorf a notice of her right to sue.
Schoendorf then commenced this action on December 7, 2011, bringing separately numbered claims against RTH for a discriminatory hostile environment and retaliation in violation of both Title VII and the analogous provisions of the New Hampshire Law Against Discrimination, N.H. Rev. Stat. Ann. § 354-A:7 ("NHLAD"). RTH responded by filing a motion to dismiss the hostile environment claim under federal law and both the hostile environment and retaliation claims under New Hampshire law (but not the retaliation claim under federal law). See Fed. R. Civ. P. 12(b)(6). RTH argued, among other things, that the New Hampshire Law Against Discrimination "does not extend extraterritorially to allegations of a resident of Maine for acts occurring at a workplace in Maine."
In response, counsel for Schoendorf contacted the NHRC, asking "why the Charge of Discrimination had been accepted at the [NHRC] if the allegedly discriminatory acts had occurred in Maine." It was in response to this inquiry that Schoendorf says she learned, for the first time, that her charge had erroneously listed the NHRC as the responsible state or local agency and that "the NHLAD likely does not apply to the events of discrimination that gave rise to her complaint" in this action.
Schoendorf then filed an amended complaint, see Fed. R. Civ. 15(a)(1)(B), asserting hostile environment and retaliation claims against RTH under the employee protections of the Maine Human Rights Act, Me. Rev. Stat. tit. 5, § 4572(1)(A), rather than the NHLAD (and maintaining her Title VII claims). Two days later, Schoendorf moved to transfer the action to the District Court for the District of Maine. RTH responded by moving to dismiss the amended complaint--this time, including the federal retaliation claim--and opposing the motion to transfer.
II. Applicable legal standard
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district . . . where it might have been brought." 28 U.S.C. § 1404(a). These factors include, as this provision notes, the convenience of the parties and witnesses, see, e.g., Coady v. Ashcraft & Gerel, 223 F.3d 1, 11 (1st Cir. 2000), as well as where the events at issue in the litigation took place, the relative cost of trying the case in each forum, and the public interest in having local controversies adjudicated locally, CFTC v. Cromwell Fin. Servs., 2006 DNH 019, 5-6 (citing 17 James William Moore et al., Moore's Federal Practice § 111.13[b], at 111-67 (3d ed. 1997 & 2000 supp.).
The party seeking to transfer a case bears the burden of showing that transfer is appropriate. See Coady, 223 F.3d at 11 (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).
There is no dispute that this case "might have been brought" in the District of Maine. As Schoendorf points out, Title VII has its own venue provision to the effect that an action claiming a violation of the statute "may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed," 42 U.S.C. § 2000e-5(3), which in this case is Maine.*fn1 RTH also does not contest that the Maine District Court would have personal jurisdiction over it. Instead, ...