Opinion
Case No. 5:18-cv-266-TKW/MJF
2020-05-20
Stephen COMBS, Plaintiff, v. FLORIDA DEPARTMENT OF CORRECTIONS, et al., Defendants.
Johana Elaine Nieves, John M. Vernaglia, Ryan Joshua Andrews, Law Offices of Steven R. Andrews PA, Tallahassee, FL, for Plaintiff. Anthony Dean Johnson, Office of the Attorney General, Christopher Claudio Torres, Office of the Attorney General Civil Torts Section, Tallahassee, FL, for Defendant Florida Department of Corrections. Brian Alexander Wahl, Bradley Arant Boult etc., Birmingham, AL, Eliot Bradford Peace, Robert Craig Mayfield, Bradley Arant Boult etc. LLP, Tampa, FL, for Defendant Centurion of Florida LLC.
Johana Elaine Nieves, John M. Vernaglia, Ryan Joshua Andrews, Law Offices of Steven R. Andrews PA, Tallahassee, FL, for Plaintiff.
Anthony Dean Johnson, Office of the Attorney General, Christopher Claudio Torres, Office of the Attorney General Civil Torts Section, Tallahassee, FL, for Defendant Florida Department of Corrections.
Brian Alexander Wahl, Bradley Arant Boult etc., Birmingham, AL, Eliot Bradford Peace, Robert Craig Mayfield, Bradley Arant Boult etc. LLP, Tampa, FL, for Defendant Centurion of Florida LLC.
ORDER
Michael J. Frank, United States Magistrate Judge
This matter is before this court on Plaintiff's "Motion to Transfer Venue to the Northern District of Florida, Tallahassee Division." For the reasons set forth below, this motion will be denied.
I. Background
Plaintiff, while proceeding pro se , commenced this section 1983 action in the Panama City Division of the United States District Court for the Northern District of Florida. Plaintiff alleged that Defendants acted with deliberate indifference by denying him treatment for Hepatitis C ("HCV"). On July 18, 2019, counsel made an appearance for Plaintiff. On September 16, 2019, Plaintiff filed an amended complaint alleging that the Defendants' conduct violated: (1) the American with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ; (2) the Rehabilitation Act of 1973, 29 U.S.C. § 701, et seq. ; and (3) Plaintiff's Eighth Amendment right to appropriate medical care while imprisoned.
In his amended complaint, Plaintiff alleges that during his initial health screening, he was diagnosed with chronic HCV. He avers that despite regularly inquiring about obtaining medication for his HCV, Defendants denied him necessary treatment. From October 2016 through November 2018, Defendants purportedly denied Plaintiff essential medication and failed to monitor his medical condition. Defendants allegedly informed Plaintiff that he did not qualify for HCV treatment, his liver was fine, and that treatment was not "clinically indicated." Plaintiff asserts that Defendants' denial of treatment and medication was motivated by a desire to minimize expenses and was not based on sound medical judgment. II. Discussion
A. Intra-District Transfer Under Section 1404(b)
28 U.S.C. § 1404(b) authorizes district courts to transfer a civil action from one division in the district to another such division. PT United Can Co. Ltd. v. Crown Cork & Seal Co., Inc. , 138 F.3d 65, 72 (2d Cir. 1998). Section 1404(b) states in relevant part: "Upon motion, consent or stipulation of all parties , any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district." 28 U.S.C. § 1404(b) (emphasis added). " Section 1404(b) applies only when all parties agree to the transfer." 15 CHARLES ALAN WRIGHT , ET AL. , FEDERAL PRACTICE AND PROCEDURE § 3842, at 13 (4th ed. 2013) ; see In re Gibson , 423 F. App'x 385, 390 (5th Cir. 2011) (noting that section 1404(b) "authorizes intra-district transfers of proceedings only when all of the parties consent or agree"); Lead Indus. Ass'n, Inc. v. Occupational Safety & Health Admin. , 610 F.2d 70, 79 n.17 (2d Cir. 1979) (noting the limitation in section 1404(b) ). "If any party objects to a change of division, the general transfer standards of Section 1404(a) must be met." 15 WRIGHT , ET AL. , FEDERAL PRACTICE AND PROCEDURE § 3842, at 14. Here, Defendants oppose Plaintiff's motion to transfer venue to the Tallahassee Division. Therefore, this court must consider whether a transfer is warranted under Section 1404(a).
B. Transfer Under Section 1404(a)
When addressing opposed motions for an intra-district transfer, courts analyze such motion using the applicable factors relevant to inter-district transfers pursuant to 28 U.S.C. § 1404(a). Zanghi v. FreightCar Am., Inc. , 38 F. Supp. 3d 631, 643 (W.D. Penn. 2014) ; Hanning v. New England Mut. Life Ins. Co. , 710 F. Supp. 213, 214-15 (S.D. Ohio 1989) ; see generally Steshenko v. McKay , 735 F. App'x 298, 301 (9th Cir. 2018). Section 1404(a), provides that "[f]or 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." 28 U.S.C. § 1404(a).
" Section 1404(a) is merely a codification of the doctrine of forum non conveniens for the subset of cases in which the transferee forum is within the federal court system; in such cases, Congress has replaced the traditional remedy of outright dismissal with transfer." Atlantic Marine Constr. Co., Inc. v. U.S. Dist. Court for the W.D. of Tex. , 571 U.S. 49, 60, 134 S. Ct. 568, 580, 187 L.Ed.2d 487 (2013) ; Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp. , 549 U.S. 422, 430, 127 S. Ct. 1184, 1190-91, 167 L.Ed.2d 15 (2007) ("For the federal court system, Congress has codified the doctrine and has provided for transfer, rather than dismissal, when a sister federal court is the more convenient place for trial of the action."). Because an intra-district transfer generally has milder ramifications than transfer to another district, courts are less rigorous in applying the section 1404(a) analysis. K.B. by T.B. v. Mich. Dep't of Health & Human Servs. , 367 F. Supp. 3d 647, 654 (E.D. Mich. 2019). " Section 1404(a) ... exists to make venue convenient" for parties, witnesses, and the courts. Ferens v. John Deere Co. , 494 U.S. 516, 528, 110 S. Ct. 1274, 1282, 108 L.Ed.2d 443 (1990). It "reflects an increased desire to have federal civil suits tried in the federal system at the place called for in the particular case by considerations of convenience and justice." Van Dusen v. Barrack , 376 U.S. 612, 616, 84 S. Ct. 805, 809, 11 L.Ed.2d 945 (1964). Section 1404(a) is designed to minimize the cost—in "time, energy and money"—that may result from litigating an action in an inconvenient forum. Cont'l Grain Co. v. The FBL-585 , 364 U.S. 19, 26, 80 S. Ct. 1470, 1474, 4 L.Ed.2d 1540 (1960).
District courts have substantial discretion to adjudicate motions to transfer consistent with an "individualized, case-by-case consideration of convenience and fairness." Stewart Org. v. Ricoh Corp. , 487 U.S. 22, 29, 108 S. Ct. 2239, 2244, 101 L.Ed.2d 22 (1988) (quoting Van Dusen , 376 U.S. at 622, 84 S. Ct. at 812 ). The movant bears the burden of establishing that transferring venue to another division clearly would be more convenient for the parties and/or witnesses, or would best serve the interest of justice. In re Ricoh , 870 F.2d 570, 573 (11th Cir. 1989) ; Coady v. Ashcraft & Gerel , 223 F.3d 1, 11 (1st Cir. 2000) ; Time, Inc. v. Manning , 366 F.2d 690, 698 (5th Cir. 1966).
Merely demonstrating that litigating the case in another division or district would be equally convenient will not suffice. Van Dusen , 376 U.S. at 645-46, 84 S. Ct. at 824. To justify transferring a case, a court must conclude that "some other forum is a better location to hear the dispute." 15 WRIGHT , ET AL. FEDERAL PRACTICE AND PROCEDURE § 3841, at 4 (emphasis added). Courts called upon to address a motion to transfer should be mindful that § 1404 is not designed to transfer the inconvenience from one party to another. S.E.C. v. Lauer , 478 F. App'x 550, 554 (11th Cir. 2012) ; Smithfield Packing Co., Inc. v. V. Suarez & Co., Inc. , 857 F. Supp. 2d 581, 588-89 (E.D. Va. 2012). "[M]erely shifting inconvenience from one party to another is not a sufficient basis for transfer." Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc. , 626 F.3d 973, 978 (7th Cir. 2010).
"In ruling on § 1404(a) motions, courts have not limited their consideration to the three enumerated factors in § 1404(a) (convenience of parties, convenience of witnesses, or interests of justice) ...." Jumara v. State Farm Ins. Co. , 55 F.3d 873, 879 (3d Cir. 1995). As the Supreme Court has stated, a "district court considering a § 1404(a) motion ... must evaluate both the convenience of the parties and various public-interest considerations." Atlantic Marine Constr. Co., Inc. , 571 U.S. at 62, 134 S. Ct. at 581 ; Stewart Org. , 487 U.S. at 29, 108 S. Ct. at 2244 ("A motion to transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case-specific factors."); In re Apple, Inc. , 602 F.3d 909, 912 (8th Cir. 2010) (stating that "district courts should weigh ‘any case-specific factors’ relevant to convenience and fairness to determine whether transfer is warranted"). "The three statutory factors—convenience of parties, convenience of witnesses, and the interest of justice—are broad generalities that take on a variety of meanings in the context of specific cases." 15 WRIGHT , ET AL. , FEDERAL PRACTICE AND PROCEDURE § 3847, at 129.
To the extent they are relevant to a particular case, courts typically consider at least the following public and private factors:
(1) the convenience of the witnesses;
(2) the location of relevant documents and the relative ease of access to sources of proof;
(3) the convenience of the parties;
(4) the locus of operative facts;
(5) the availability of process to compel the attendance of unwilling witnesses;
(6) the relative means of the parties;
(7) a forum's familiarity with the governing law;
(8) the weight accorded a plaintiff's choice of forum; and
(9) trial efficiency and the interest of justice, based on the totality of the circumstances.
Atlantic Marine Constr. Co., Inc. , 571 U.S. at 62 n.6, 134 S. Ct. at 581 n.6 ; Piper Aircraft Co. v. Reyno , 454 U.S. 235, 241 n.6, 102 S. Ct. 252, 258 n.6, 70 L.Ed.2d 419 (1981) ; Manuel v. Convergys Corp. , 430 F.3d 1132, 1135 n.1 (11th Cir. 2005) (citations omitted); see generally Gulf Oil Corp. v. Gilbert , 330 U.S. 501, 508, 67 S. Ct. 839, 843, 91 L.Ed. 1055 (1947). The list is non-exhaustive insofar as the statutory language is "broad enough to allow the court to take into account all factors relevant to convenience and/or the interests of justice." Research Automation, Inc. , 626 F.3d at 978.
The enactment of § 1404 as part of the Judicial Code of 1948 superseded the common law forum non conveniens doctrine articulated in Gulf Oil Corp. v. Gilbert. See Am. Dredging Co. v. Miller , 510 U.S. 443, 449 n.2, 114 S. Ct. 981, 986 n.2, 127 L.Ed.2d 285 (1994). Courts continue to look to the so-called "Gilbert factors," however, in addressing motions to transfer pursuant to § 1404(a). Atlantic Marine Constr. Co., Inc. , 571 U.S. at 61, 134 S. Ct. at 580 (noting that "both § 1404(a) and the forum non conveniens doctrine from which it derives entail the same balancing-of-interests standard"). Because transfer of a case under section 1404(a) does not result in a dismissal of the action, courts have broader discretion "to grant transfers upon a lesser showing of inconvenience" than when applying the forum non conveniens analysis. Norwood v. Kirkpatrick , 349 U.S. 29, 32, 75 S. Ct. 544, 546, 99 L.Ed. 789 (1955) ; In re Volkswagen of Am., Inc. , 545 F.3d 304, 314 (5th Cir. 2008) (noting that "the burden that a moving party must meet to justify a venue transfer is less demanding than that a moving party must meet to warrant a forum non conveniens dismissal").
1. The Convenience of the Witnesses
Section 1404 was designed to protect witnesses, among others, "against unnecessary inconvenience and expense ...." Cont'l Grain Co. , 364 U.S. at 27, 80 S. Ct. at 1475 ; see Ferens , 494 U.S. at 529, 110 S. Ct. at 1283 (" Section 1404(a) also exists for the benefit of the witnesses ...."). Courts have repeatedly recognized "the key role of the testimony of witnesses in the judicial process." United States v. Nixon , 418 U.S. 683, 710 n.18, 94 S. Ct. 3090, 3108 n.18, 41 L.Ed.2d 1039 (1974). Because witnesses typically are essential to establishing a claim or defense, and they frequently have nothing to gain from testifying, courts carefully consider the convenience of witnesses in analyzing a motion to transfer. Indeed, various courts have identified the convenience of the witnesses as the most important factor in the section 1404(a) analysis. See Emp'rs Mut. Cas. Co. v. Bartile Roofs, Inc. , 618 F.3d 1153, 1169 (10th Cir. 2010) ("The convenience of witnesses is the most important factor in deciding a motion under § 1404(a)."); In re Genentech, Inc. , 566 F.3d 1338, 1343 (Fed. Cir. 2009) ("The convenience of the witnesses is probably the single most important factor in a transfer analysis."); Neil Bros. Ltd. v. World Wide Lines, Inc. , 425 F. Supp. 2d 325, 329 (E.D.N.Y. 2006) ("The convenience of the witnesses is probably the single most important factor in transfer analysis."). Accordingly, a party seeking to transfer venue "must make a specific showing of inconveniences to witnesses to support transfer." Harvard v. Inch , 408 F. Supp. 3d 1255, 1263 (N.D. Fla. 2019) ; Elec. Transaction Network v. Katz , 734 F. Supp. 492, 501-02 (N.D. Ga. 1989) ("The most important factor under § 1404(a) is the convenience of witnesses, and the moving party must make a specific showing of inconvenience to witnesses.").
In cases where witnesses are employees of a party, however, their convenience is entitled to less weight because the respective party will be able to compel their attendance and testimony at trial. Nat'l Tr. Ins. Co. v. Pa. Nat'l Mut. Cas. Ins. Co. , 223 F. Supp. 3d 1236, 1243 (M.D. Fla. 2016) ; Trinity Christian Ctr. of Santa Ana, Inc. v. New Frontier Media, Inc. , 761 F. Supp. 2d 1322, 1327 (M.D. Fla. 2010) (noting that this factor's "significance is diminished when the witnesses ... are employees of a party."); Allstar Mktg. Grp., LLC v. Your Store Online, LLC , 666 F. Supp. 2d 1109, 1132 (C.D. Cal. 2009) ("The court accords less weight to the inconvenience of party witnesses, however, as they can be compelled to testify regardless of the forum in which the lawsuit is ultimately litigated."); Mason v. Smithkline Beecham Clinical Labs. , 146 F. Supp. 2d 1355, 1362 (S.D. Fla. 2001) ("Thus, transfer may be denied when the witnesses, although in another district, are employees of a party and their presence can be obtained by that party."). Indeed, "it is not so much the convenience of the witnesses but the possibility of having their testimony at trial that is important." Dale v. United States , 846 F. Supp. 2d 1256, 1257-58 (M.D. Fla. 2012) (quoting Mason , 146 F. Supp. 2d at 1361 ). Thus, the court must consider whether transferring a case would increase or decrease the probability of important witnesses being able to testify at a trial. See Holmes v. Freightliner, LLC , 237 F. Supp. 2d 690, 694 (M.D. Ala. 2002).
Not all witnesses are equal for purposes of this factor. Courts should focus on the inconvenience of essential or important witnesses who likely would testify but for the location of the forum, rather than merely potential witnesses who might be called to testify about nonessential details. Scheidt v. Klein , 956 F.2d 963, 966 (10th Cir. 1992) (noting that courts addressing this factor should consider the materiality of a witness's testimony, the reasons for his purported inability to testify, and whether other means—such as deposition testimony—would be appropriate). A court should afford greater deference to the inconvenience of witnesses whose testimony is essential to a claim or defense and those whose credibility might be a key factor in the dispute. comScore, Inc. v. Integral Ad Science, Inc. , 924 F. Supp. 2d 677, 688 (E.D. Va. 2013). This factor "should not be determined solely upon a contest between the parties as to which of them can present a longer list of possible witnesses located in the respective districts; the party seeking the transfer must clearly specify the essential witnesses to be called and must make a general statement of what their testimony will cover." Hammann v. 1-800 Ideas.com, Inc. , 455 F. Supp. 2d 942, 962 (D. Minn. 2006) (quoting Nelson v. Master Lease Corp. , 759 F. Supp. 1397, 1402 (D. Minn. 1991) ).
Thus, "vague statements about the convenience of unknown and unnamed witnesses is insufficient to convince" a court to transfer venue. Smith v. Colonial Penn Ins. Co. , 943 F. Supp. 782, 784 (S.D. Tex. 1996). Rather, under this factor, the movant should provide at least: (a) a list of the key witnesses and where they reside; (b) a summary of their testimony; (c) a statement as to why their testimony is material; (d) the specific nature and extent of the inconvenience faced by the respective witnesses; (e) how transfer to the preferred forum would ameliorate the witnesses' inconvenience; (f) whether the witnesses can be compelled to testify in the current and preferred fora; (g) whether some other mechanism—such as videotaped deposition testimony—could be utilized instead; and (h) whether a transfer to the movant's preferred district or division would create substantial inconvenience for other key witnesses. See Emp'rs Mut. Cas. Co. , 618 F.3d at 1169 ; Scheidt , 956 F.2d at 966 ; Gen. Portland Cement Co. v. Perry , 204 F.2d 316, 320 (7th Cir. 1953).
In this case, Plaintiff identified as key witnesses only two FDC employees: (1) Thomas Reimers (FDC's Health Service Director); and (2) Mark Tallent (FDC's Budget Director). Plaintiff argues that because Defendant FDC is located in the Tallahassee Division, Tallahassee would be a more convenient venue for Reimers and Tallent. Defendant FDC argues, however, that the majority of the relevant witnesses reside in and around the Panama City and Pensacola Divisions of this District.
Plaintiff has failed to show that the majority—or even a significant minority—of the essential witnesses would be substantially inconvenienced by a trial in the Panama City or Pensacola Divisions. Plaintiff certainly has not established that Reimers and Tallent would be substantially inconvenienced. But even if they would be inconvenienced, Plaintiff has not demonstrated that these witnesses would be "unwilling to testify" or that compulsory process would be necessary to secure their testimony. See Trinity Christian Ctr. of Santa Ana, Inc. , 761 F. Supp. 2d at 1329 ("[B]ecause there is no evidence that either party will be deprived of live testimony of any witness due to an individual's distance from either forum, this factor is neutral.").
In October 2018, Hurricane Michael, a category five hurricane, substantially damaged the federal courthouse in Panama City, Florida. Currently there is no functioning federal courthouse in Panama City, and it is unlikely that Panama City will have a federal courthouse before this civil action is concluded. Should this case proceed to trial, therefore, it likely would occur at the federal courthouse in Pensacola, Florida.
Furthermore, these witnesses are employees of one of the Defendants, the FDC. Tellingly, the FDC does not complain that its employees would be inconvenienced significantly by a trial in the Panama City or Pensacola Divisions. In any event, the FDC should be able to ensure its employees' presence at any trial. See 15 WRIGHT , ET AL. , FEDERAL PRACTICE AND PROCEDURE § 3851, at 278 (noting that "the convenience of witnesses who are employees of a party is entitled to less weight because that party can obtain their presence at trial"). For these reasons, this factor does not support Plaintiff's motion for a transfer.
2. The Location of Relevant Documents and the Relative Ease of Access to Sources of Proof
A court also should consider the location of relevant documents and the relative ease by which the parties can gain access to sources of proof in the relevant fora. Canatelo, LLC v. Bosch Sec. Sys., Inc. , 959 F. Supp. 2d 220, 224 (D. P.R. 2013). As to photographic and documentary evidence, in light of current technology that affords parties the ability to transmit rapidly large volumes of data even to remote locations, courts tend to give this factor relatively little weight. EasyWeb Innovations, LLC v. Facebook, Inc. , 888 F. Supp. 2d 342, 352 (E.D.N.Y. 2012) ("[T]he Court does not view this factor as particularly significant given the technological age in which we live, with the widespread use of, among other things, electronic document production."); Am. S.S. Owners Mut. Prot. & Indem. Ass'n, Inc. v. Lafarge N. Am., Inc. , 474 F. Supp. 2d 474, 484 (S.D.N.Y. 2007) ("The location of relevant documents is largely a neutral factor in today's world of faxing, scanning, and emailing documents."). Because most records and documents can be stored and transmitted electronically, "their location is entitled to little weight. This is particularly true with the development of photo-duplication, facsimile transmission, the Internet, and the easy availability, excellent reproducibility, and relatively low cost of hard and electronic copies." Boateng v. Gen., Dynamics Corp. , 460 F. Supp. 2d 270, 276 (D. Mass. 2006) (internal citations omitted). To establish that this factor militates in favor of a transfer, the movant must "establish the location of the documents" or pieces of evidence, "their importance to the resolution of the case, and the inability to move or copy them easily." 15 WRIGHT , ET AL. , FEDERAL PRACTICE AND PROCEDURE § 3853, at 312.
Plaintiff asserts that documents regarding relevant FDC policies are located in Tallahassee. But Plaintiff has not shown that these documents could not be produced electronically and transmitted easily to Panama City, Pensacola, or any other location that Plaintiff desired. Plaintiff has not demonstrated, therefore, that this factor supports a transfer.
3. The Convenience of the Parties
In assessing the propriety of a transfer to another district or division, courts also should consider the convenience of the parties. Emp'rs Ins. of Wausau v. Fox Entm't Grp., Inc. , 522 F.3d 271, 275 (2d Cir. 2008). This factor concerns, among other things, the "appearance of employees at court, and, to some extent, the appearance of counsel." Trinity Christian Ctr. of Santa Ana, Inc. , 761 F. Supp. 2d at 1328.
Plaintiff asserts that these factors weigh in favor of transferring this case to the Tallahassee Division. Specifically, Plaintiff asserts that there are several cases pending in the Tallahassee Division which involve similar claims against the FDC and Centurion. In contrast, Defendants argue that Tallahassee is not a more convenient forum insofar as Plaintiff currently is incarcerated in a facility located in the Pensacola Division. It also appears that a transfer simply would shift inconvenience from Plaintiff to Defendants. Transfer to the Tallahassee Division would inconvenience Centurion insofar as relevant employees purportedly are located in the Panama City Division. In the event of a trial, transfer to the Tallahassee Division would result in some inconvenience for the FDC insofar as it would be required to transport Plaintiff from the Pensacola Division to the Tallahassee Division. At best, therefore, a transfer would be more convenient for Plaintiff, but not for the two Defendants. Section 1404(a) was not designed to reallocate burdens among the parties. See Research Automation, Inc. , 626 F.3d at 978 ("[M]erely shifting inconvenience from one party to another is not a sufficient basis for transfer."); Decker Coal Co. v. Commonwealth Edison Co. , 805 F.2d 834, 843 (9th Cir. 1986) (holding that a transfer was not appropriate when it "would merely shift rather than eliminate the inconvenience"). Accordingly, this factor does not support a transfer to the Tallahassee Division.
4. Locus of the Operative Facts
" ‘The location of operative facts underlying a claim is a key factor in determining a motion to transfer venue.’ " Harvard , 408 F. Supp. 3d at 1262 (quoting Nat'l Tr. Ins. Co. , 223 F. Supp. 3d at 1245 ); Starr Indem. & Liab. Co. v. Brightstar Corp. , 324 F. Supp. 3d 421, 435 (S.D.N.Y. 2018) ("The locus of operative facts is a primary factor in determining whether to transfer venue.") (citation omitted). "To determine the locus of operative facts, courts look to where the events from which the claim arises occurred." Costello v. Home Depot U.S.A., Inc. , 888 F. Supp. 2d 258, 268 (D. Conn. 2012) (internal quotation marks omitted).
Some cases will entail multiple loci of operative facts, especially complex cases involving multiple parties. Everlast World's Boxing Headquarters Corp. v. Ringside, Inc. , 928 F. Supp. 2d 735, 745 (S.D.N.Y. 2013). Accordingly, not every occurrence relevant to a claim need have occurred in a particular forum to make that forum the locus of operative facts. Costello , 888 F. Supp. 2d at 268-69. When there are multiple loci of operative facts and no single locus is primary in this respect, courts treat this factor neutral in the Section 1404(a) analysis. Gubarev v. Buzzfeed, Inc. , 253 F. Supp. 3d 1149, 1166 (S.D. Fla. 2017) ("[B]ecause there are arguably multiple loci of operative facts ... this factor does not support transfer."); Traveler's Property Cas. Co. of Am. v. Ocean Reef Charters, LLC , 324 F. Supp. 3d 366, 381 (W.D.N.Y. 2018) ("Where the locus of operative facts is split amongst several forums ... courts have, at minimum, viewed this factor neutrally."); Atlantic Recording Corp. v. Project Playlist, Inc. , 603 F. Supp. 2d 690, 697 (S.D.N.Y. 2009) ("Because both districts are loci of operative facts, this factor is neutral in the analysis."). When there are multiple loci of operative facts, a court should attempt to determine if there is one primary locus with the strongest connection to the operative facts. Sheet Metal Workers' Nat'l Pension Fund v. Gallagher , 669 F. Supp. 88, 92-93 (S.D.N.Y. 1987).
The parties dispute whether Plaintiff's claim arose in the Panama City Division or the Tallahassee Division. Plaintiff argues that the event giving rise to his claim was the Defendants' creation and implementation of a statewide policy that resulted in withholding treatment for HCV-positive inmates, including Plaintiff. (Doc. 49 at 6-7). Plaintiff asserts, therefore, that the events giving rise to this case occurred in Tallahassee, Florida. Defendants argue that the events giving rise to this action occurred in the Panama City and Pensacola Divisions—not the Tallahassee Division. Specifically, the treatment—or lack thereof—of Plaintiff's HCV occurred where he was incarcerated: the Santa Rosa Correctional Institution and the Northwest Florida Reception Center. These facilities are located, respectively, in the Pensacola and Panama City Divisions.
When enactment of a policy is the "actus reus " element of a constitutional or statutory tort, the location where the policy was promulgated clearly would be the locus of the operative facts. In this case, although the relevant policy apparently was created in Tallahassee, Florida, the alleged deprivation of Plaintiff's Eighth Amendment or statutory rights took place because of the individualized application of this policy to Plaintiff. Absent application of the policy to Plaintiff, mere promulgation of this policy would not have deprived Plaintiff of his constitutional and statutory rights and he would have had neither an injury nor a claim. The alleged constitutional and statutory tort in this case, therefore, occurred in the Pensacola and Panama City Divisions. Therefore, a substantial part of the events or omissions giving rise to Plaintiff's claim occurred in these Divisions. See Sanchez v. Pingree , 494 F. Supp. 68, 70 (S.D. Fla. 1980) (holding that although state statute was administered in the Northern District of Florida, venue was proper in the Southern District of Florida because plaintiffs suffered their injuries from administration of the statute in the Southern District).
Nevertheless, according to Plaintiff's allegations, but for the policy precluding treatment, he would have been provided the medical care he needed. That policy, as noted above, was promulgated in the Tallahassee Division. Thus, there is some sense in which at least one "operative fact" occurred in the Tallahassee Division: enactment of the policy. That does not alter the calculus here insofar as it simply would mean that there are three loci of operative facts. When a case entails multiple loci of operative facts and no single one is predominant in this category, courts view this factor neutrally and not as favoring any one of the multiple fora. Traveler's Prop. Cas. Co. of Am. , 324 F. Supp. 3d at 381. Accordingly, even if enactment of the policy was an operative fact, this would simply mean that the Panama City, Pensacola, and Tallahassee Divisions are three equally-suitable fora.
5. The availability of Process to Compel the Attendance of Unwilling Witnesses
A court also must consider whether one venue affords a party the ability to compel unwilling witnesses to testify. Plaintiff has not identified any unwilling witness who could be compelled to attend a trial in Tallahassee but who otherwise could not be compelled to attend a trial in Panama City or Pensacola. This factor, therefore, offers Plaintiff no support for his motion to transfer.
6. The Relative Means of the Parties
Courts also should consider the relative means—including the financial means—of the parties. Hernandez v. Graebel Van Lines , 761 F. Supp. 983, 989 (E.D.N.Y. 1991) ("[W]here a disparity between the parties exists, such as an individual plaintiff suing a large corporation, the court may also consider the relative means of the parties in determining whether to transfer."); Vaughn v. Am. Basketball Ass'n , 419 F. Supp. 1274, 1277 (S.D.N.Y. 1976) (noting that courts should consider the "relative financial hardship on the litigants" in litigating in competing fora). Plaintiff asserts that the relative means of the parties favor transfer because the Plaintiff is indigent and incarcerated whereas the FDC is a state agency with a $2.4 billion annual budget and Centurion is a large corporation. (Doc. 49 at 9). Defendants, however, argue that these facts do not make Tallahassee the more convenient forum insofar as Plaintiff currently is incarcerated in the Okaloosa Correctional Institution, which is located in the Pensacola Division.
Additionally, because Plaintiff remains incarcerated, in the event this case proceeds to trial, Defendant would bear the cost of transporting Plaintiff to a federal courthouse, unless Plaintiff waived his right to attend the trial. Furthermore, because Plaintiff is incarcerated in Okaloosa County—which is in the Pensacola Division—it would entail less expense to transport Plaintiff to the federal courthouse in Pensacola than the federal courthouse in Tallahassee. In any event, Plaintiff will not bear any expense for transporting Plaintiff regardless of the location of any trial. Furthermore, Plaintiff has not demonstrated that—due to his limited financial means—he would be forced to abandon this action if it remained in the Panama City Division. See Race Safe Sys., Inc. v. Indy Racing League , 251 F. Supp. 2d 1106, 1110 (N.D.N.Y. 2003) (holding that a court should not order a "transfer to a forum which is financially out of reach of a plaintiff in strained pecuniary circumstances"). This factor, therefore, also does not support Plaintiff's motion to transfer venue to the Tallahassee Division.
7. A Forum's Familiarity with the Governing Law
Courts addressing a motion to transfer venue also should consider a forum court's familiarity with the governing law. This factor is seldom, if ever, relevant in cases involving motions for an intra-district transfer, however. Indeed, Plaintiff concedes that this factor does not support his motion for a transfer.
8. The Weight Accorded to Plaintiff's Choice of Forum
A court "must also give some weight to the plaintiff's choice of forum." Atlantic Marine Constr. Co., Inc. , 571 U.S. at 62 n.6, 134 S. Ct. at 581 n.6. Generally, there is a strong presumption in favor of the plaintiff's initial forum choice, and the plaintiff's initial "choice of forum should not be disturbed unless it is clearly outweighed by other considerations." Robinson v. Giarmarco & Bill, P.C. , 74 F.3d 253, 260 (11th Cir. 1996) ; SME Racks, Inc. v. Sistemas Mecanicos Para Electronica, S.A. , 382 F.3d 1097, 1101 (11th Cir. 2004) (noting that "the plaintiffs' choice of forum should rarely be disturbed ‘unless the balance is strongly in favor of the defendant’ "). This is especially true when the operative facts giving rise to the action occurred in the chosen forum and the plaintiff is a resident of that forum. See SME Racks, Inc., S.A. , 382 F.3d at 1101 ; Adidas Am., Inc. v. Cougar Sport, Inc. , 169 F. Supp. 3d 1079, 1096 (D. Or. 2016) ("The plaintiff's choice of forum is especially given deference where the plaintiff is a resident of the forum in which the action is brought."); Berman v. Informix Corp. , 30 F. Supp. 2d 653, 659 (S.D.N.Y. 1998) ("[T]he plaintiff's choice is generally accorded more deference where there is a material connection or significant contact between the forum state and the underlying events allegedly underlying the claim, or where the plaintiff is a resident of the forum district.").
On the other hand, when a plaintiff is not a resident of the forum district—or forum division in the case of an intra-district transfer—courts accord plaintiff's choice of a forum less weight. Emp'rs Mut. Cas. Co. , 618 F.3d at 1168 ("The plaintiff's choice of forum receives less deference ... if the plaintiff does not reside in the district."); Sunbeam Prods., Inc. v. Homedics, Inc. , 587 F. Supp. 2d 1055, 1057 (W.D. Wis. 2008) (holding that a plaintiff's choice of a forum is not entitled to deference when it is not the plaintiff's home forum); Fuji Photo Film Co. v. Lexar Media, Inc. , 415 F. Supp. 2d 370, 376 (S.D.N.Y. 2006) (noting that a plaintiff's choice of forum was entitled to "little deference" where one of the two plaintiffs did not reside in the district).
Similarly, when the conduct at issue did not occur in plaintiff's chosen forum, court's give less deference to plaintiff's desired forum. See Rowles v. Hammermill Paper Co., Inc. , 689 F. Supp. 494, 496 (E.D. Pa. 1988) (noting that a "plaintiff's choice of forum merits less deference when none of the conduct complained of occurred in plaintiff's selected forum") (citations omitted); Greene v. Nat'l Head Start Ass'n, Inc. , 610 F. Supp. 2d 72, 75 (D.D.C. 2009) (noting that plaintiff's choice of forum is accorded less deference when "plaintiff is not a resident of the forum and most of the relevant events occurred elsewhere"). Furthermore, plaintiff's choice of a forum warrants less deference if "there is any indication that plaintiff's choice of forum is the result of forum shopping." Williams v. Bowman , 157 F. Supp. 2d 1103, 1106 (N.D. Cal. 2001).
To guard against forum shopping, when a plaintiff seeks to transfer a case from the venue he initially selected, courts carefully consider a plaintiff's explanation for his change of heart.
A motion to transfer venue is not ordinarily granted at the request of the party who chose the forum in the first place. A plaintiff moving to transfer venue has already had an opportunity to choose the venue when filing the action. Therefore, a plaintiff moving to transfer must demonstrate, inter alia , that after the action was filed there was a change of circumstances that warrants transferring the action to the transferee forum.
Ferrostaal, Inc. v. Union Pac. R.R. Co. , 109 F. Supp. 2d 146, 151 (S.D.N.Y. 2000) (citation and internal quotations omitted); see Samaan v. St. Joseph Hosp. , 685 F. Supp. 2d 163, 168 (D. Me. 2010) (denying a motion to transfer forum where plaintiff gave no reason for his change in choice of forum); Rappoport v. Steven Spielberg, Inc. , 16 F. Supp. 2d 481, 501 (D.N.J. 1998) (noting that a "plaintiff seeking to transfer the venue of an action pursuant to § 1404 typically must demonstrate a change in circumstance that has occurred since the filing of the action which warrants a change of venue").
Here, Plaintiff originally selected the Panama City Division as his preferred forum. He was incarcerated in that Division when he initiated this case. Plaintiff now is incarcerated in another Division—the Pensacola Division—but he does not currently reside in the Tallahassee Division to which he seeks to transfer this action. The facts underlying this case also largely occurred in the Panama City Division and Pensacola Division. Namely, Plaintiff's diagnosis of HCV and the subsequent treatment—or lack thereof—occurred at correctional facilities located within the Panama City Division and Pensacola Division.
Plaintiff asserts that a change in circumstances resulted in the Tallahassee Division becoming his preferred forum. (Doc. 49 at 6). Namely, Plaintiff asserts that in his amended complaint he "added FDC as a defendant." Id. Not so. In his original complaint, Plaintiff sued the Secretary of the FDC—at that time, Julie Jones—in her official capacity. (Doc. 1 at 1). Thus, when Plaintiff filed his amended complaint, the FDC already was a defendant in this action. See Kentucky v. Graham , 473 U.S. 159, 165-66, 105 S. Ct. 3099, 3105, 87 L.Ed.2d 114 (1985) ("Official-capacity suits ... ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’ ") (quoting Monell v. New York City Dept. of Soc. Servs. , 436 U.S. 658, 690 n.55, 98 S. Ct. 2018, 2035 n.55, 56 L.Ed.2d 611 (1978) ). Plaintiff has failed to demonstrate that any changed circumstances warrants a transfer of this case to the Tallahassee Division. Plaintiff has not rebutted the strong presumption in favor of Plaintiff's initial choice of forum—the Panama City Division. This factor, therefore, does not support Plaintiff's motion to transfer this case to the Tallahassee Division.
9. Trial Efficiency and the Interest of Justice, Based on the Totality of the Circumstances
"The ‘interest of justice’ is a separate element of the transfer analysis that relates to the efficient administration of the court system." Research Automation, Inc. , 626 F.3d at 978. In analyzing this factor, courts consider: (1) where the action is more likely to be expeditiously and efficiently litigated; (2) judicial economy and docket congestion in the competing districts or divisions; (3) each party's ability to enforce a judgment; (4) whether transfer would allow for a consolidation of litigation; (5) the relationship of each community to the controversy; and (6) any obstacles to a fair trial that the parties may encounter in the competing venues. Id. ; Terra Int'l, Inc. v. Miss. Chem. Corp. , 119 F.3d 688, 696 (8th Cir. 1997) ; Heller Fin., Inc. v. Midwhey Powder Co., Inc. , 883 F.2d 1286, 1293 (7th Cir. 1989). Because the "interest of justice" factor is a distinct component of the § 1404(a) analysis, it "may be determinative in a particular case, even if the convenience of the parties and witnesses might call for a different result." Coffey v. Van Dorn Iron Works , 796 F.2d 217, 220 (7th Cir. 1986).
Plaintiff has not shown that a transfer would serve the interest of justice. At best, he has shown that there are similar cases pending in the Tallahassee Division. He claims that this case could be consolidated with the Tallahassee cases. But it appears that at least some of the Tallahassee cases are at a different stages of litigation and less likely to be consolidated with this case. Furthermore, as Centurion notes, Plaintiff's counsel previously opposed FDC's motion to consolidate cases in the Tallahassee Division. (Doc. 52 at 14) (citing Morrison v. Florida Dep't of Corr. , No. 4:18-cv-576-RH-CAS, ECF Nos. 48, 52, 53 (N.D. Fla. Dec. 17, 2018)). Plaintiff has not shown that transfer to the Tallahassee Division would result in substantially greater efficiency.
III. Conclusion
Plaintiff has not demonstrated that the convenience of the parties and witnesses and the interest of justice clearly warrant a transfer of this case from the Panama City Division to the Tallahassee Division. Accordingly, Plaintiff's motion to transfer venue to the Tallahassee Division is DENIED .