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Dey v. Innodata, Inc.

United States District Court, N.D. Illinois, Eastern Division

January 22, 2018

ANINDO DEY, Plaintiff,
v.
INNODATA INC., Defendant.

          MEMORANDUM OPINION AND ORDER

          Hon. Virginia M. Kendall United States District Judge.

         Plaintiff Anindo Dey filed this employment discrimination suit pursuant to Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Illinois Human Rights Act, and the Illinois Whistleblower Act, [1] against Defendant Innodata Inc. (Dkt. No. 1.) Dey seeks money damages as a result of purported employment discrimination and retaliation. (Id. at 13.) Innodata filed a motion to dismiss for improper venue pursuant to Fed.R.Civ.P. 12(b)(3) and 28 U.S.C. § 1391 or, in the alternative, to transfer venue pursuant to 28 U.S.C. § 1404(a). (Dkt. No. 9.) The Defendant's motion is granted in part, and the case is transferred to the United States District Court for the District of New Jersey. [9.]

         BACKGROUND

         The Court takes the allegations from the Plaintiff's Complaint as true for purposes of evaluating the motion to dismiss for improper venue. See Faulkenberg v. CB Tax Franchise Sys., LP, 637 F.3d 801, 806 (7th Cir. 2011) (citing Kochert v. Adagen Med. Int'l, Inc., 491 F.3d 674, 677 (7th Cir. 2007)).

         Innodata is a Delaware corporation with headquarters in Hackensack, New Jersey, that provides content solutions, data analytics and related services to publishers and information providers, and is registered to conduct business in the State of Illinois. (Dkt. No. 1, ¶¶ 9, 12.) In July 2013, Innodata India Pvt. Ltd., a subsidiary of the Defendant, employed Dey as Vice President of Business Development in Noida, India.[2] (Id. ¶ 11.) In February 2016, Innodata sponsored Dey's relocation to the United States and changed his title to Client Partner. (Id. ¶ 3.) Once in the United States, Dey worked out of his home in Buffalo Grove, Illinois, although he reported to Innodata's headquarters in New Jersey. (Id.) At all relevant times, Dey reported to Lisa Indovino, Innodata's Senior Vice President of Digital Data Solutions. (Id. ¶ 15.)

         As a part of the relocation process Dey received an Offer of Employment letter (the “Offer”), a copy of which is provided by Innodata in its motion to dismiss. (Dkt. No. 14, Ex. A.) The Offer, while noting it was not an employment contract, expressly required Dey to sign an Agreement Concerning Confidentiality and Non-Disclosure (the “Agreement”) prior to starting the job. (Id. at 3.) The Offer contained a provision that stated in relevant part: “The terms of this Offer of Employment and the resolution of any disputes will be governed by New Jersey law.” (Id. at 4.) The Agreement, which also accompanies Innodata's motion, included provisions on Jurisdiction and Governing Law, which stated:

6. Jurisdiction. Employee hereby consents to the jurisdiction of the courts of the State of New Jersey, County of Bergen, and the United States District Court, District of New Jersey with respect to any claims or disputes arising from or in connection with Employee's employment with Innodata Inc. . . . The foregoing shall govern, among other claims and disputes, claims or disputes with respect to discrimination based on age, sex, race, color or creed or sexual or other harassment at the workplace.
7. Governing Law. This Agreement shall be governed by the internal laws of the State of New Jersey without giving effect to its principles of conflicts of law.

(Id. Ex. B, at ¶¶ 6 -7.)

         Dey, who is of Asian ethnicity and Indian origin, alleges that his supervisors at Innodata subjected him to discrimination based on his national origin, color, and race. (Dkt. No. 1, at ¶¶ 16; 31.) Specifically, Dey alleges that Indovino subjected him to “a campaign of harassment, an intimidating and threatening work environment, and verbal and racial abuse upon his relocation to the United States.” (Id. ¶ 18.) He also claims Indovino made racist comments regarding the inability of Asian operations to conduct business, that she “can barely understand” what the offshore teams say on phone calls, and that “Indians have no ability to speak in short sentences clearly.” (Id. ¶¶ 21, 22, 25.) Dey initially reported these incidents in an email to Innodata's Chairman and Chief Executive Officer on September 12, 2016, indicating that the current work environment threatened his family's security in the United States. (Id. ¶¶ 19, 28.)

         Sometime in 2016, Dey suffered a silent heart attack. (Id. ¶ 29.) On November 8, 2016, Dey filed a charge of discrimination against Innodata with the Chicago District Office of the Equal Employment Opportunity Commission (“EEOC”). (Id. ¶ 31.) The following day, he underwent emergency heart surgery. (Id. ¶33.) As a result of the surgery, Dey requested ten days of medical leave in order to recover. (Id. ¶ 34.) Meanwhile, on November 30, 2016, the EEOC Office of Chicago transferred Plaintiff's charge to its New Jersey office. (Id. ¶ 38.) Two days after becoming aware of Dey's EEOC complaint, Innodata terminated his employment. (Id. ¶ 39.) He filed this complaint on July 28, 2017, alleging that Innodata subjected him to a hostile work environment and a discriminatory work culture based on his national origin, color, and race and that Innodata retaliated against him for engaging in a protected activity. (Id. ¶ 31.)

         STANDARD OF REVIEW

         Under Fed.R.Civ.P. 12(b)(3), a defendant may file a motion to dismiss the case for improper venue. A 12(b)(3) motion is also the appropriate mechanism for challenging venue based upon a forum-selection clause. Cont'l Ins. Co. v. M/V ORSULA, 354 F.3d 603, 606-07 (7th Cir. 2003); see also Auto. Mechanics Local 701 Welfare & Pension Fund v. Vanguard Car Rental USA, 502 F.3d. 740, 745-46 (the court follows the majority rule that a motion seeking dismissal based on forum-selection clause … is conceptualized better as objection to venue, and hence properly raised under Rule 12(b)(3)). Where venue is improper, the district court “shall dismiss, or if it be in the interest of justice, transfer such case to any district [] in which it could have been brought.” 28 U.S.C. § 1406(a). Where venue is proper, a district court has the authority to transfer venue to another district “[f]or the convenience of parties and witnesses” or “in the interest of justice” 28 U.S.C. § 1404(a). The movant bears the burden of establishing by reference to particular circumstances, that the transferee forum is clearly more convenient. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986). The Supreme Court directs that section 1404(a) “is intended to place discretion in the ...


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