Sousa v . TD Banknorth Ins. CV-05-421-PB 03/20/06

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kathleen A . Sousa

v. Case N o . 05-cv-421-PB Opinion N o .

TD Banknorth Ins. Agency, Inc. and TD Banknorth, Inc.

MEMORANDUM AND ORDER

Kathleen A . Sousa claims that her former employer, TD

Banknorth Insurance Agency, Inc.1 (“Banknorth Insurance”)

harassed her and discriminated against her based on her gender.

Before me are Banknorth Insurance’s motion for transfer of venue

(Doc. N o . 7 ) and its motion to dismiss (Doc. N o . 8 ) . For the

following reasons, I deny the motion for transfer and grant the

motion to dismiss.2

I. FACTUAL BACKGROUND

1 TD Banknorth, Inc., has filed a motion to dismiss (Doc. N o . 9 ) to which Sousa has responded with a notice of non- objection (Doc. N o . 1 2 ) . Accordingly, TD Banknorth, Inc.’s motion to dismiss is granted. 2 I have not relied on any of the submissions challenged by Banknorth Insurance’s motion to strike (Doc. N o . 20) in ruling on the other pending motions. Thus, the motion to strike is denied as moot. In October 1998, Sousa began working for A.D. Davis, Inc.,

an insurance agency located in North Conway. Compl. ¶ 7 . After

a series of acquisitions and name changes, A.D. Davis became

Banknorth Insurance. Id. ¶¶ 8-9. Banknorth Insurance is a Maine

corporation with its principal place of business in Portland,

Maine. Def.’s Mot. for Transfer at 5 . Sousa continued to work

at the North Conway Banknorth Insurance office until August 2001,

when she was transferred to the Springfield, Massachusetts

Banknorth Insurance office. Id.; Compl. ¶ 1 0 . Following her

transfer, Sousa worked from her home in Amherst, as well as at

the Springfield, Massachusetts and Methuen, Massachusetts

Banknorth Insurance offices. Pl.’s O b j . to Mot. for Transfer at

2.

In July 2003, Banknorth Insurance hired Joseph Fico as the

president of Banknorth Insurance’s Massachusetts region. Compl.

¶ 1 3 . Fico, who worked at the Springfield office, was Sousa’s

direct supervisor. Pl.’s O b j . to Mot. for Transfer at 3 ; Def.’s

Motion for Transfer at 5 . Sousa alleges that Fico discriminated

against her based on her gender by, inter alia, screaming at her,

speaking to her in a condescending fashion,

-2- treating her more harshly than male employees, and terminating

her employment without justification. Compl. ¶ 1 4 . In July

2004, Fico terminated Sousa’s employment. Id. ¶ 2 5 .

Sousa filed charges of discrimination with the Massachusetts

Commission Against Discrimination (“MCAD”) and the United States

Equal Employment Opportunity Commission (“EEOC”) in January 2005.

The EEOC issued a right to sue notice in July 2005, and Sousa

voluntarily withdrew her MCAD charge in August 2005. Sousa also

filed a non-payment of wage complaint with the Office of the

Massachusetts Attorney General, which gave her permission to

proceed with a private right of action. In October 2005, Sousa

filed a six-count complaint in New Hampshire state court,

alleging violations of federal and Massachusetts anti-

discrimination law, a Massachusetts statutory wage claim, and

common law claims including breach of the implied duty of good

faith and fair dealing, intentional infliction of emotional

distress, and wrongful termination. Banknorth Insurance removed

the action to this court.

-3- II. TRANSFER OF VENUE

A. Standard of Review

Under

(a) 3 , a district court has discretion

to transfer a civil action to another federal district court “in

which the action ‘might have been brought.’” Van Dusen v .

Barrack,

1 2 , 616 (1964) (quoting

(a)).

Transfer is only appropriate if it “is warranted by the

convenience of parties and witnesses and promotes the interest of

justice.”

If a case might have been brought in the proposed transferee

court, the transferor court has wide latitude in determining

whether to transfer i t . Auto Europe, LLC v . Conn. Indem. Co.,

0 , 64 (1st Cir. 2003) (district court’s judgment as to

transfer “entitled to considerable deference”). In evaluating

whether the transfer “promotes the interest of justice,” the

transferor court should weigh a variety of relevant factors,

including the convenience of parties; the convenience of

witnesses; the availability of process to compel unwilling

3 Banknorth Insurance has not argued that venue in the District of New Hampshire is improper. Thus, I need not address

(a), which applies where venue is improper in the transferor court.

-4- witnesses; the cost of procuring willing witnesses; the ease with

which evidence can be accessed; and any other “practical problems

associated with trying the case most expeditiously and

inexpensively.” Robbins Motor Transp. Inc. v . U.S. Sea Launch

Ltd. P’ship, N o . C-01-191-B,

, at *7

(D.N.H. October 1 1 , 2001); see also Adam v . Haw. Prop. Ins.

Ass’n, N o . 04-342-SM,

, at *7 (D.N.H.

March 2 1 , 2005). The convenience of witnesses is “‘probably the

most important factor.’” Fairview Mach. & Tool C o . v . Oakbrook

Int’l, Inc.,

3 4 , 141 (D. Mass. 1999) (quoting

Princess House, Inc. v . Lindsey,

6 , 18 (D. Mass.

1991)).

“[T]here is a strong presumption in favor of the plaintiff’s

choice of forum,” Coady v . Ashcraft & Gerel,

, 11 (1st

Cir. 2001), particularly where the plaintiff has chosen her home

state as the forum. Piper Aircraft C o . v . Reyno,

(1981) (discussing forum non conveniens). The burden is on

the defendant seeking transfer to show that “the factors

‘predominate’ in favor of transfer.” Robbins,

(quoting Buckley v . McGraw-Mill, Inc.,

3 0 , 439 (D.N.H. 1991)).

-5- B. Analysis

Banknorth Insurance argues that Sousa might have brought the

action in the District of Massachusetts and that a transfer of

venue promotes the convenience of parties and witnesses and the

interest of justice.

Sousa has chosen to bring this action in her home state,

and, as I have noted, there is a strong presumption that her

choice of forum should not be disturbed. Coady,

1 .

Banknorth Insurance’s proffered reasons for seeking a transfer

include the following: (1) Massachusetts is a more convenient

forum for the parties; (2) witnesses and evidence are located in

Massachusetts; (3) it will be costly for Banknorth to produce

willing witnesses; (4) process may not be available in New

Hampshire to compel unwilling witnesses to appear; and (5)

Massachusetts courts are better suited to apply Massachusetts

law. I conclude that these factors do not predominate in favor

of a transfer to the District of Massachusetts.

The convenience of the parties does not weigh in favor of a

transfer to the District of Massachusetts. While it may be more

convenient for Banknorth Insurance to litigate in Massachusetts,

-6- Sousa lives in New Hampshire and it is more convenient for her to

litigate here.

Ease of access to documents and other sources of proof does

not weigh in favor of a transfer. Aside from the testimony of

current and former Banknorth Insurance employees, the relevant

evidence will probably consist of Sousa’s employment records,

which are unlikely to be so voluminous as to preclude

reproduction and transport to New Hampshire.

The availability and convenience of witnesses is the most

important factor in this balancing test. Fairview Mach. & Tool

Co.,

. Each of the parties has provided a

list of potential witnesses; fifteen witnesses appear on both

Sousa’s list and Banknorth Insurance’s list. Of these fifteen,

six either live or work in New Hampshire or Maine. The remaining

nine live and work in Massachusetts. See Ex. B to Def.’s Reply

Br. The percentage of witnesses who would prefer to testify in

Massachusetts is not so high, and the burden of traveling from

Massachusetts to New Hampshire is not so great, as to weigh

heavily in favor of a transfer to Massachusetts. C f . Adam,

at *10 (convenience of witnesses favored

transfer to Hawaii where the plaintiff and his family lived in

-7- New Hampshire, but “[v]irtually all other material witnesses”

resided in Hawaii).

Banknorth Insurance’s concern that some of its witnesses

will be outside this court’s subpoena power is overstated. Many

of the witnesses who live and work in Massachusetts are current

Banknorth employees who are likely to comply with their

employer’s request to testify. In addition, many parts of

Massachusetts are within 100 miles of Concord and therefore

within this court’s subpoena power. See Fed. R. Civ. P.

45(b)(2).

Finally, the potential need for me to apply Massachusetts

law to some of Sousa’s claims is insufficient to justify a

transfer of venue. I acknowledge the “‘local interest in having

localized controversies decided at home’” as well as the benefits

of having a trial “‘in a forum that is at home with the state law

that must govern the case.’” Adam,

at

*8 (quoting Gulf Oil v . Gilbert,

0 1 , 508-9 (1947)).

Nonetheless, this is not a case that is singularly suited to

adjudication in Massachusetts. I will apply federal law to

Sousa’s Title VII claims, and courts in New Hampshire are

-8- familiar with Massachusetts law. See Milford Lumber C o . v . RCB

Realty,

5 , 17 (2001) (looking to Massachusetts law for

guidance in interpreting a New Hampshire statute). In addition,

although some of the allegedly actionable conduct occurred in

Massachusetts, Sousa is a New Hampshire resident who claims to

have worked from her home. Therefore this controversy is not

localized in Massachusetts.

III. MOTION TO DISMISS

Banknorth Insurance next argues that count III of Sousa’s

complaint should be dismissed because she has failed to state an

actionable claim for breach of the implied duty of good faith and

fair dealing.4

A. Standard of Review

“A district court may grant a 12(b)(6) motion to dismiss for

failure to state a claim upon which relief can be granted only if

‘it clearly appears, according to the facts alleged, that the

4 Sousa concedes that counts IV (intentional infliction of emotional distress) and V (wrongful termination) may be dismissed. Accordingly, I dismiss those counts without additional analysis. See Jacobson v . City of Nashua, N o . 01-165- B ,

, at *2 n.3 (D.N.H. June 1 9 , 2002).

-9- plaintiff cannot recover on any viable theory.’” Nathan P. v . W .

Springfield Pub. Sch.,

(1st Cir. 2004) (quoting

Correa-Martinez v . Arrillaga-Belendez,

9 , 52 (1st Cir.

1990)). My “task is not to decide whether the plaintiff

ultimately will prevail but, rather, whether [s]he is entitled to

undertake discovery in furtherance of the pleaded claim.” Rodi

v . S . New Eng. Sch. of Law,

, 13 (1st Cir. 2004). In

considering a motion to dismiss, I “accept as true the well-

pleaded factual allegations of the complaint, draw all reasonable

inferences therefrom in the plaintiff’s favor and determine

whether the complaint, so read, sets forth facts sufficient to

justify recovery on any cognizable theory.” Martin v . Applied

Cellular Tech.,

, 6 (1st Cir. 2002).

B. Analysis

The parties agree that I should apply Massachusetts law to

Sousa’s claim for breach of the implied duty of good faith and

fair dealing. See Pl.’s O b j . to Mot. to Dismiss at 2 . Under

Massachusetts law, “employers . . . have been held liable for

breach of the implied covenant of good faith and fair dealing

only in circumstances when an at-will employee has been

-10- terminated in bad faith.”5 Ayash v . Dana-Farber Cancer Inst.,

6 7 , 385 (2005), cert. den., 126 S . C t . 397 (2005).

The seminal case on the topic is Fortune v . Nat’l Cash Register

Co.,

6 , 102 (1977), in which the Massachusetts Supreme

Judicial Court held “that an employer is accountable to a

discharged employee for unpaid compensation if the employee were

terminated in bad faith and the compensation is clearly connected

to work already performed.” Harrison v . NetCentric Corp.,

(2001). “To prevail under the Fortune doctrine, a

plaintiff must demonstrate that the employer terminated the

plaintiff for the purposes of depriving the employee of money

that he fairly earned and legitimately expected.” Sands v .

Ridefilm Corp.,

5 7 , 662-63 (1st Cir. 2000) (quotation

omitted). 6

Sousa has not alleged that Banknorth Insurance terminated

5 Sousa has not alleged that her employment was anything other than at-will. 6 Sousa cites several Massachusetts decisions for the proposition that the implied covenant of good faith and fair dealing prohibits a wider range of conduct by employers. None of these decisions calls into question the First Circuit’s explication of the Fortune doctrine in Sands because none deals with an at-will employment relationship.

-11- her employment in order to deprive her of compensation she had

already earned. Accordingly, her claim for breach of the implied

duty of good faith and fair dealing must be dismissed.

IV. CONCLUSION

For the reasons described above, Banknorth Insurance’s

motion for transfer of venue is denied. Banknorth Insurance’s

motion to dismiss count III is granted.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

March 2 0 , 2006

cc: Peter Callaghan, Esq. William Hannum, I I I , Esq. G. Michael Palladino, Esq. Dyana Tull, Esq.

-12-