Care One, LLC v. Nat'l Labor Relations Bd.

680 F.Supp.3d 540

CARE ONE, LLC, et al., Plaintiffs, v. NATIONAL LABOR RELATIONS BOARD, et al., Defendants.

Civil Action No. 23-3221 (MEF) (LDW)

United States District Court, D. New Jersey

Signed June 23, 2023

Christian Tullis Becker, Kasowitz Benson Torres & Friedman LLP, New York, NY, for Plaintiffs.

OPINION and ORDER

Michael E. Farbiarz, United States District Judge

The Plaintiffs sued the Defendants to enjoin a trial before the National Labor Relations Board, and, in response, the Defendants filed a Motion to Transfer Venue to the United States District Court for Connecticut. The motion is granted.

I. Procedural History

A National Labor Relations Board trial, already underway, is scheduled to continue in Connecticut on the morning of June 26, 2023. The trial relates to unfair labor practices that allegedly took place in Connecticut in 2012. More than forty days of trial testimony have been taken, including many during 2022.

The Plaintiffs sought to enjoin the trial by means of an Application for a Temporary Restraining Order and Injunctive Relief.

The Plaintiffs pressed two arguments. First, that the NLRB ALJ who has long presided over the NLRB trial was unconstitutionally appointed. See Memo, In Support of Plaintiffs' Application at 2 (citing Free Enter. Fund v. Pub. Co. Acct. Oversight Bd., 561 U.S. 477, 492, 130 S.Ct. 3138, 177 L.Ed.2d 706 (2010)). And second, that the NLRB ALJ's appointment was improper under Noel Canning. See id. at 3 (citing NLRB v. Noel Canning, 573 U.S. 513, 134 S.Ct. 2550, 189 L.Ed.2d 538 (2014)).

The application was filed during the evening of June 12, 2023 and was denied by the Court the next day. The Court directed the Plaintiffs to serve the Defendants "as soon as possible," thereby converting the application to a request for a preliminary injunction. The Court also directed the parties to propose a briefing schedule.

On June 14, the parties proposed an agreed-upon briefing schedule and the Court entered an Order reflecting the parties' agreement, directing the Defendants to file their papers by midnight on June 20 and the Plaintiffs to file theirs by midnight on June 21.

Along with their opposition to the application for a preliminary injunction, the Defendants filed, on June 20, a Motion to Transfer Venue, seeking transfer to the District of Connecticut of the Plaintiffs' motion to enjoin the Connecticut NLRB proceedings.

The Defendants opposed the Motion to Transfer. Their opposition papers were filed at 2:15 on June 23, and oral argument was held on June 23 at 3:00.

This Opinion and Order now follows, a few hours later.

II. The Motion To Transfer

The Defendants seek to transfer venue under 28 U.S.C. § 1404(a), Section 1404(a) provides that:

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.

In assessing a Section 1404(a) motion, the Court conducts a two-step analysis. See generally Interlink Prods. Int'l, Inc. v. Crowfoot, 2020 WL 6707946, at *6 (D.N.J. Nov. 16, 2020) (citing Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir. 1970)).

First, the Court determines whether the requested transferee venue is one where the action "might have been brought." Id.

Second, the Court determines "whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum[.]" Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).

A. Venue

The first step, as noted, is asking whether the requested transferee venue (here, Connecticut) is a place where the civil action "might have been brought." Jumara, 55 F.3d at 879.

The answer is: yes. The Defendants are a federal agency (the NLRB), and various federal agency officials acting in their official capacities (Lauren McFerran, Gwynne Wilcox, Marvin Kaplan, David Prouty, and Kenneth R. Chu). In such suits, venue is proper where a "substantial part of the events . . . giving rise to the claim occurred[.]" 28 U.S.C. § 1391(e)(1).

Here, that standard is met --- the Plaintiffs' claim is that they are being unlawfully subjected to an exercise of NLRB jurisdiction in Connecticut.¹

B. The Transfer Factors

As noted, the second factor is "whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum." Jumara, 55 F.3d at 879. The Court of Appeals has identified twelve factors to be considered as part of this analysis. See id. The so-called "private interest" factors:

[a] plaintiff's forum preference as manifested in the original choice; [b] the defendant's preference; [c] whether the claim arose elsewhere; [d] the convenience of the parties as indicated by their relative physical and financial condition; [e] the convenience of the witnesses-but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and [f] the location of books and records (similarly limited to the extent that the files could not be produced in the alternative forum).

Id. at 879. And the "public interest" factors:

[a] the enforceability of the judgment; [b] practical considerations that could make the trial easy, expeditious, or inexpensive; [c] the relative administrative difficulty in the two fora resulting from court congestion; [d] the local interest in deciding local controversies at home; [e] the public policies of the fora; and [f] the familiarity of the trial judge with the applicable state law in diversity cases.

Id. at 879-80.

These factors are not exclusive. See Jumara, 55 F.3d at 879 ("[C]ourts have considered many variants of the private and public interests."). And courts are vested with broad discretion to determine on an "individualized, case-by-case basis" whether the factors weigh in favor of transfer. See id., at 883; see also Zazzali v. Swenson, 852 F. Supp. 2d 438, 448 (D. Del. 2012); U.S. Fire Ins. Co. v. World Trucking, Inc., 2008 WL 413310, at *2 (D.N.J. Feb. 13, 2008).

The moving party bears the burden of establishing an entitlement to transfer. See Jumara, 55 F.3d at 879.

* * *

The Court now turns to analyze each of the factors.

The first factor is the plaintiff's forum choice. This choice should not be lightly disturbed. See Jumara, 55 F.3d at 879. But it is not dispositive. See Tischio v. Bontex, Inc., 16 F.Supp.2d 511, 521 (D.N.J. 1998); Am. Tel. & Tel. Co. v. MCI Commc'ns Corp., 736 F.Supp. 1294, 1306 (D.N.J. 1990).

Indeed, the plaintiff's preference is accorded relatively less weight when the plaintiff's preferred forum has "little connection with the operative facts of the lawsuit." See U.S. Fire Ins. Co. v. World Trucking, Inc., 2008 WL 413310, at *2 (D.N.J. Feb. 13, 2008) (quoting Tischio, 16 F.Supp.2d at 521); see also Am. Tel. & Tel. Co., 736 F. Supp. at 1306; Montgomery v. Schering-Plough Corp., 2007 WL 614156, at *2 (E.D. Pa. Feb. 22, 2007).

That is the case here. The National Labor Relations Board trial is underway in Connecticut. It relates to unfair labor practices that allegedly took place in Connecticut. It is being pressed forward by the Connecticut-based NLRB office. And the Plaintiffs argue that they are being subjected, in Connecticut, to an unlawful exercise of jurisdiction --- that will require them, in Connecticut, to appear before an NLRB ALJ.

Moreover, applications to enjoin a proceeding as unlawful typically go forward in the District where the allegedly unlawful proceeding is itself taking place. Indeed, at oral argument, the Plaintiffs stated that they were not aware of any case in which an application to enjoin an enforcement proceeding has gone forward in a District other than the District where the proceeding is taking place. For their part, at oral argument the Defendants indicated that this occasionally happens --- but that when it does, the NLRB's standard practice, dating back many years, is to seek to transfer the application to enjoin the proceeding to the District where the complained-of proceeding is going forward. See Lab'y Corp. of Am. Holdings v. N.L.R.B., 942 F. Supp. 2d 1 (D.D.C. 2013); Pac. Mar. Ass'n v. N.L.R.B., 905 F. Supp. 2d 55, 58-59 (D.D.C. 2012).

In short, the District of New Jersey is hardly a natural place for this lawsuit.²

Against this conclusion, the Plaintiffs note that there is pending in this District an appeal of certain Bankruptcy Court orders, that directly concern the nursing homes that are the locations where the alleged unfair labor practices occurred. The fact that these entities are the subject of the New Jersey bankruptcy proceeding provides some connection to New Jersey. But only a faint one. The issue in the instant litigation is whether the NLRB ALJ is proceeding in violation of the Appointments Clause of the Constitution and the Supreme Court's dictate in Noel Canning. This is separate from, and wholly collateral to, any issue that may come up in the New Jersey bankruptcy context.

In sum, the first factor, the Plaintiffs' choice of forum, is, as always, entitled to some weight. And this factor cuts against transfer. But here, for the reasons set out above, the Plaintiffs' choice of forum is entitled to much less weight than is typically the case.

The second factor is the Defendants' preference.

This factor favors transfer, and all the more so because of the natural and strong connections between Connecticut and this case.

The third factor is whether the claim arose in the proposed transferee District. It did.

The claim here is that the Plaintiffs are "here and now," Plaintiffs' Brief at 22, being subjected to an unlawful exercise of jurisdiction by a Connecticut ALJ who is requiring them to appear before a Connecticut NLRB tribunal. That claim arises in Connecticut.³

Accordingly, this factor favors transfer. See Snack Joint LLC v. OCM Group USA, NJ, Inc., 2021 WL 4077583, at *8 (D.N.J. Sept. 8, 2021) ("The third factor 'weighs in favor of transfer to the [...