# Brown v. XGen Pharmaceuticals DJB, Inc.

> District Court, E.D. New York · December 4, 2023

URL: https://www.frixlaw.com/law-library/cases/10310862

## Case

- **Court:** District Court, E.D. New York
- **Decided:** December 4, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------------------------------------x
DEBRA BROWN,

Plaintiffs,

-against- ORDER
22-CV-7294-NGG-SJB

XGEN PHARMACEUTICALS DJB, Inc.,

Defendant.
----------------------------------------------------------------x
BULSARA, United States Magistrate Judge:

Defendant XGEN Pharmaceuticals DJB, Inc. (“XGEN”) has filed a motion to
transfer this civil rights action, brought by Plaintiff Debra Brown (“Brown”), to the
Western District of New York. For the reasons explained below, the motion is granted.
The pertinent facts are as follows: Brown alleges that XGEN unlawfully
terminated her employment due to her disability and failed to give her a reasonable
accommodation, in violation of the Americans with Disabilities Act (“ADA”) and state
and local human rights laws. (Compl., Dkt. No. 1 ¶ 1). Brown allegedly worked for
XGEN for about six years. (Id. ¶ 21, 44). Brown lives in Chemung County, (Id. ¶ 8), and
XGEN is located and headquartered there. (Decl. of J. Robin Liles in Supp. of XGEN
Pharmaceuticals DJB, Inc.’s Mot. to Transfer Venue dated June 7, 2023 (“Liles Decl.”),
Dkt. No. 23-4 ¶ 5). Chemung County is in the Western District of New York.
A threshold question is whether venue was first proper in this District. “A civil
action may be brought” in a district in which either “any defendant resides, if all
defendants are residents” of New York or “a substantial part of the events or omissions
giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(1)–(2).
Brown’s opposition brief states, in essence, that XGEN is a resident of the
Eastern District because the Secretary of State’s website for the corporation gives a Long
Island address. (Pl.’s Mem. of Law in Opp’n to Def.’s Mot. to Transfer Venue dated June
28, 2023 (“Pl.’s Mem. of Law”), Dkt. No. 23-7 at 1–2); (June 1, 2023 N.Y. Department of
State Division of Corps. Entity Info. for XGEN Pharmaceuticals DJB, Inc., attached as

Ex. A to Liles Decl., Dkt. No. 23-5). XGEN states that the designation of a Long Island
address was in error because that location is the home of the company’s Chief Executive
Officer. (Liles Decl. ¶ 5). Section 1391(d) (“Residency of corporation in States with
multiple districts”)—which both parties fail to address—provides the straightforward
answer that the case was initially brought in a correct district. 14D Alan Wright &
Arthur R. Miller, Federal Practice and Procedure § 3811.1 (4th ed. 2023) (“The ‘multiple
district’ provision of Section 1391(d) addresses how personal jurisdiction is assessed in
states that have multiple districts. It requires the court to assess the entity's contacts
with a district as though that district [were] . . . a separate state. If that test is satisfied
with regard to more than one district in the state, the corporation resides in each such
district.”). For states like New York, with multiple federal districts, a corporation is

deemed to “reside in any district in that State within which its contacts would be
sufficient to subject it to personal jurisdiction if that district were a separate State.” 28
U.S.C. § 1391(d). Even if XGEN’s headquarters and sole office location are in the
Western District, it has not argued that its contacts with the Eastern District are so
insubstantial or nonexistent that it would not be subject to personal jurisdiction here if
this District were its own state. It repeatedly repeats the refrain that it is a resident of
the Western District only. But for corporations, section 1391(d) disposes of the concept
of residence in a single district. 14D Wright & Miller et al., supra at 2 (“Because an
entity defendant resides where the company is subject to personal jurisdiction,
corporations can reside in more than one district simultaneously.”). And by force of that
provision, XGEN “resides” not only in the Western District, but also here.
That venue was properly lodged in the first instance does not resolve whether the
case should remain here. On that score, it is Brown’s papers that fall short. “A district

court may exercise its discretion to transfer venue ‘for the convenience of parties and
witnesses, in the interest of justice.’” N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am.,
Inc., 599 F.3d 102, 112 (2d Cir. 2010) (quoting 28 U.S.C. § 1404(a)). “Among the factors
to be considered in determining whether to grant a motion to transfer venue ‘are, inter
alia: (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. (quoting D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106–7 (2d Cir. 2006)).
“[T]he party requesting transfer carries the ‘burden of making out a strong case for
transfer.’” Id. at 114 (quoting Filmline (Cross-Country) Prods., Inc. v. United Artists

Corp., 865 F.2d 513, 521 (2d Cir. 1989)) (noting district courts are correct in finding that
clear and convincing evidence is necessary to demonstrate transfer is appropriate).
XGEN prevails on the most significant of these factors. As to the first, plaintiff’s
choice of forum, “courts have noted that the weight given to this factor is diminished
where (1) the operative facts have ‘little or no connection’ with the forum chosen by the
plaintiff[.]” EasyWeb Innovations, LLC v. Facebook, Inc., 888 F. Supp. 2d 342, 348
(E.D.N.Y. 2012) (collecting cases); see also Dickerson v. Novartis Corp., 315 F.R.D. 18,
32 (S.D.N.Y. 2016) (“Where ‘the forum selected is not plaintiff’s home forum or the
place where the operative facts of the action occurred . . . this diminishes the weight
assigned to this factor.’”) (quoting McGraw-Hill Cos., Inc., v. Charles Jones, et al., No.
12-CV-7085, 2014 WL 988607, at *7 (S.D.N.Y. Mar. 12, 2014)) (c0llecting cases).
Although Brown has chosen to file here, her election carries little weight given that she
resides in the Western District and worked there exclusively. And while her brief and

declaration assert that “a substantial number of transactions” and “business operations”
took place in the Eastern District, (June 2023 Decl. of Debra Brown in Opp’n to Def.’s
Mot. to Transfer Venue (“Brown Decl.”), Dkt. No. 23-10 ¶¶ 7, 9), these are conclusory,
detail-less allegations. They simply lack any credibility without any details and in the
face of the proof and details provided by XGEN. Though Brown alleges she worked in
the accounting department and “all the main accounting business was conducted on
Long Island,” (Id. ¶ 6), she herself did so from the Western District, and never alleges
travelling or actually working in the Eastern District itself. (Reply Decl. of J. Robin Liles
in Further Supp. of Def. XGEN Pharmaceuticals DJB, Inc.’s Mot. to Transfer Venue
dated July 12, 2023 (“Liles Reply Decl.”), Dkt. No. 23-14 ¶¶ 12, 15). The fact that XGEN
was founded in Long Island, (Brown Decl. ¶ 8), does nothing to counter the proof that

XGEN is currently headquartered elsewhere, and has no office location other than in the
Western District of New York. (Liles Reply Decl. ¶ 3).
At best, her proof amounts to showing that one Executive Officer, albeit an
important one, worked from Long Island. (Id. ¶ 4.) But she does not allege that she
worked with the CEO, if at all, and does not dispute that the Long Island address is only
the CEO’s home, not a XGEN office. (Id. ¶¶ 4, 11–13). Finally, Brown was terminated
from employment in the Western District, and the decision to terminate her was made
there (as was the alleged decision to deny her a reasonable accommodation). (Id. ¶¶ 12,
16). Given the overwhelming set of facts and events taking place elsewhere, Brown’s
choice of forum is entitled to no weight. In contrast, the strong connection of these
events to the Western District suggest transfer is appropriate there. See e.g., Dickerson,
315 F.R.D. at 30 (“Here, the Court finds that the operative events giving rise to Plaintiff’s
allegations occurred in the Northern District of Texas—that is where she was employed;

where she complained of pay discrimination; where she was denied promotions and pay
raises; where she was given negative performance evaluations; where she took medical
leave; where she was investigated; and where she was ultimately terminated.”).
As to the second factor, witness convenience, this too favors transfer. “The
convenience of the witnesses is probably the single most important factor in the transfer
analysis.” Neil Bros. Ltd. v. World Wide Lines, Inc., 425 F. Supp. 2d 325, 329 (E.D.N.Y.
2006) (collecting cases). It appears that all the witnesses reside and work in the
Western District. Brown and most of the XGEN witnesses reside there. (Def.’s Mem. of
Law in Supp. of Def. XGEN Pharmaceuticals DJB, Inc.’s Mot. To Transfer Venue dated
June 8, 2023 (“Def.’s Mem. of Law”), Dkt. No. 23-6 at 7). All Brown can muster in
response is that XGEN’s brief fails to identify these individuals and only refers to them

as a group. (Pl.’s Mem. of Law at 4). But Brown herself identified them in her Rule
26(a) initial disclosures, (Pl.’s Rule 26(a) Disclosures, attached as Ex. 1 to Reply Decl. of
Amanda A. Tersigni in Further Supp. of Def. XGEN Pharmaceuticals DJB, Inc.’s Mot. to
Transfer Venue dated July 13, 2023, Dkt. No. 23-13 at 2–3), and those individuals are
indisputably tied to the Western District and have no connection here.
The remaining factors also favor transfer. While the location of documents is
perhaps less relevant in an era of largely electronic discovery, see Am. Steamship
Owners Mut. Prot. & Indem. Ass'n, Inc. v. Lafarge N. Am., Inc., 474 F. Supp. 2d 474,
484 (S.D.N.Y. 2007), aff'd sub nom. N.Y Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc.,
599 F.3d 102 (2d Cir. 2010), Brown does not, and cannot credibly, dispute that the
documents are located at XGEN’s headquarters (or her residence), again in the Western
District. For the same reasons that Brown’s choice of forum is entitled to no deference,
the factor regarding the locus of operative facts strongly favors transfer. Supra at 3–5.

The subpoena and process factor favors transfer, because although the non-party
witnesses may be executives (and supervisors), they are not all XGEN officers. And as
such, they are subject to the 100-mile bulge rule under Rule 45, meaning that they can
only be forced to testify (at trial or for a deposition) in the Western District. Assuming
XGEN does not produce the witnesses voluntarily or the witnesses no longer work for
the company, they cannot be subpoenaed to appear in the Eastern District. See Fed. R.
Civ. P. 45(c)(1). It is impossible to see how Brown could prosecute her case without the
testimony of these witnesses, who again were identified in the Rule 26(a) disclosures
and who took part in the allegedly unlawful discrimination. Frasca v. Yaw, 787 F. Supp.
327, 332 (E.D.N.Y. 1992) (“There is no indication from the parties that such witnesses
would be subject to the process of this Court to compel their attendance at a trial

conducted in this district.” (internal citation omitted)); cf. Kaufman v. Salesforce.com,
No. 20-CV-06879, 2021 WL 1687378, at *10 (S.D.N.Y. Apr. 29, 2021) (“To Salesforce's
point, the prior art witnesses and Salesforce's former employees in the San Francisco
Bay Area can be compelled to testify at trial by the District Court for the Northern
District of California, and not by this Court.”), aff’d, No. 20-CV-6879, 2021 WL 2269552
(June 3, 2021). And as to the final factor, Brown agrees that this factor is neutral. (Pl.’s
Mem. of Law at 8).
Given that all the factors, save one, favor transfer, the Clerk of Court is directed to
transfer this case to the Western District of New York. Because transfer is a non-
dispositive action, no report and recommendation is necessary, and the Clerk may
effectuate the transfer absent any action by a District Judge. Alexander v. Comm’r of
Soc. Sec., No. 23-CV-6964, 2023 WL 6125634, at *3 (S.D.N.Y. Sept. 19, 2023) (collecting

cases). To the extent, however, that Brown objects to the action, she must file objections
within 14 days. See Fed. R. Civ. P. 72(a) (noting objections to non-dispositive orders are
subject to clear error review). As such, the Clerk should transfer the case only upon the
expiration of the 14-day period or if objections are filed, upon the District Judge’s
resolution of such objections, whichever is later.

SO ORDERED.
/_s/_ _Sa_n_k_e_t _J_. B_u_l_sa_r_a_ _ D_e_c_em__b_er 4, 2023
SANKET J. BULSARA
United States Magistrate Judge
Brooklyn, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310862. Public record. Not legal advice.