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finding that Georgia would present a more convenient forum for the witnesses than New York in part because some witnesses resided "in the adjacent states of Alabama or Florida" and noting that "[t]hese witnesses would be greatly inconvenienced by having to travel to New York to testify"
Summary of this case from Starr Indem. & Liab. Co. v. Brightstar Corp.Opinion
02 CV 1017 (JG)
August 26, 2002
MARK JACOB JONES, Far Rockaway, NY, Plaintiff Pro Se.
ALAN VINEGRAD, United States Attorney Eastern District of New York, Brooklyn, NY, By: Richard T. Lunger Assistant United States Attorney, Attorneys for Defendant United States
MEMORANDUM AND ORDER
Plaintiff Mark Jacob Jones brings this action against defendant Marvin Guia alleging constitutional claims pursuant to Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), arising from dental care Jones received while incarcerated, and against the United States alleging liability for Guia's actions pursuant to the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. The Government now moves under 28 U.S.C. § 1391(b) 1404(a) to transfer venue to the United States District Court for the Southern District of Georgia. At oral argument, Plaintiff voluntarily withdrew his Bivens claim against Guia. That claim is accordingly dismissed. The government's motion to transfer the remaining claims to the Southern District of Georgia is granted.
Facts
The following facts are drawn from the complaint. In June of 1999, while incarcerated at the Federal Correctional Institution in Jesup, Georgia ("FCI Jesup"), for bank fraud and filing a fraudulent claim against the United States, Jones requested dental care. He allegedly told Dr. Guia, who answered his request for care, that two of his teeth caused him "extreme pain"; Jones specifically requested that they be restored with fillings. Guia allegedly told Jones that he would have to wait until he was released from segregated housing, where he was currently assigned, before he could receive dental treatment. In July of that year, Jones saw a Dr. Hsua, who declined to restore the tooth, and instead told Jones the tooth's condition meant that he could only extract it. Jones claims that the dentists at the Duval County Jail (in Jacksonville, Florida), where he had been previously incarcerated, had planned to restore the tooth, but he was transferred to FCI Jesup before they could do so. Therefore, he refused to allow the extraction. Jones alleges that he was left untreated and in pain, despite repeated requests for treatment, until April of 2000, when his tooth was restored. Jones further claims that defendants exhibited extreme indifference to his needs, in violation of the Eighth Amendment to the United States Constitution, and that they intentionally inflicted emotional distress upon him.
The complaint describes a Dr. "Hsua" as the treating dentist. See Complaint at 10. The government indicates that this is an typographical error, and that the treating dentist is the same Dr. Guia. who initially saw Jones. See Government's Mem. at 6. Since Jones is dropping his claim against Guia, and since the identity of the dentist is not at issue in this motion, I follow the usage of the complaint.
Discussion
Motions to transfer venue from one federal district court to another are governed by 28 U.S.C. § 1404(a), which reads: "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." The party making the motion bears the burden of "clearly" establishing that transfer is appropriate and that the motion should be granted. See Factors Etc., Inc. v. Pro Arts. Inc., 579 F.2d 215, 218-19 (2d. Cir. 1978), cert. denied 440 U.S. 908 (1979). The moving party must provide, usually in an affidavit, detailed factual statements relevant to the factors discussed below, including potential principal witnesses and the substance of their testimony. See id. at 218.
The inquiry on a motion to transfer has two steps. First, the court must establish that the action "might have been brought" in the district to which the moving party seeks transfer. If it could have been brought there, the court inquires as to whether, considering "the convenience of parties and witnesses" and "the interest of justice," a transfer is appropriate. See Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 986 (E.D.N.Y. 1991) (citing Schneider v. Sears, 265 F. Supp. 257, 261 (S.D.N.Y. 1967)).
In this instance, the parties do not dispute, and I find, that this action could have been brought in the Southern District of Georgia. I therefore turn to the issue of whether the convenience of witnesses and parties and the interest of justice make transfer appropriate. This question is "left to the sound discretion of the district court." Filmline Prods., Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989).
In making this determination, courts have considered a variety of factors, none of which is individually dispositive. These factors include: (1) the convenience of the parties; (2) the relative means of the parties; (3) the locus of operative facts; (4) the plaintiffs choice of forum; (5) calendar congestion; (6) the convenience of non-party witnesses; (7) any practical difficulties; (8) the forum court's familiarity with the substantive law; and (9) the interests of justice. See Longo v. Wal-Mart Stores. Inc., 79 F. Supp.2d 169, 171 (E.D.N.Y. 1999) (citing Pall Corp. v. PTI Technologies, Inc., 992 F. Supp. 196, 199 (E.D.N.Y. 1998)). I discuss each of these factors in turn.
A. The Convenience of the Parties and Witnesses
This factor is probably the most important one, although not dispositive. See Wine Markets Int'l. Inc. v. Bass, 939 F. Supp. 178, 183-84 (E.D.N.Y. 1996). As to the parties, the United States is able to litigate in any district. Jones resides in New York, and would be inconvenienced by litigating his claims in Georgia. However, this inconvenience is mitigated somewhat by Jones's other pending actions in the Middle District of Florida and in Georgia, which he described in some detail at oral argument. Since, as of the argument date, August 2, 2002, Jones had at least three other federal cases pending in either Florida or Georgia, he is clearly accustomed to traveling to the southeastern United States for court appearances.
The convenience of the witnesses is another matter. The government has identified ten party or non-party witnesses whom it believes it may need to call at trial. Nine of these witnesses reside in Georgia, or in the adjacent states of Alabama or Florida. These witnesses would be greatly inconvenienced by having to travel to New York to testify. On balance, although I note the inconvenience to Jones of litigating in Georgia, I find that this factor weighs in favor of transfer.
B. The Relative Means of the Parties
The government correctly notes in its brief that "`a party arguing.., against transfer because of inadequate means must offer documentation to show that transfer . . . would be unduly burdensome to his finances."' Advance Relocation Storage Inc. v. Wheaton Van Lines Inc No. 99-2491, 2000 WL 33155640, at *8 (E.D.N.Y., Sept. 15, 2000) (quoting Felderman Assocs. v. Paradigm Medical Indus., Inc, No. 96-8545, 1997 WL 811539, at *4 (S.D.N.Y. April 8, 1997)). However, in this case I presume Jones's means are modest as compared with the United States. This factor weighs against transfer.
C. The Locus of Facts
"Where the operative facts occurred is an obvious factor to consider." Pall Corp., 992 F. Supp. at 900. If the "principal events occurred and the principal witnesses are located in another district," the locus of facts provides a strong reason to transfer. Berman v. Informix, 30 F. Supp.2d 653, 658 (S.D.N.Y. 1998). In this case, all of the legally operative events took place within the Southern District of Georgia. That district, unlike this one, has the power to compel the production of material documents and almost all of the material witnesses, both of which are either in the district of within the 100-mile reach of subpoena power. This factor weighs heavily in favor of transfer.
D. The Plaintiff's Choice of Forum
In a transfer motion, as in a forum non conveniens motion, plaintiffs initial choice of forum is entitled to weight. See Hernandez, 761 F. Supp. at 990; see also Avers v. Arabian Am. Oil Co., 571 F. Supp. 707, 709 (S.D.N.Y. 1983) ("[W]here the balance of convenience is in equipoise, plaintiffs choice of forum should not be disturbed."). However, many courts accord this factor less weight in the transfer context than in a forum non conveniens motion, since a transfer motion does not seek dismissal of the complaint. See Hernandez, 761 F. Supp. at 990-91 (citing 1A Moore's Federal Practice ¶ 0.345[5], 4360-62 (2d Ed. 1990)). The weight given to plaintiffs choice is also less when the operative facts have little connection to the forum. See Cain v. New York State Bd. of Elections, 630 F. Supp. 221, 227 (E.D.N.Y. 1986). Therefore, although I accord some weight to plaintiffs' choice of forum, and find that it weighs against transfer, I do not give it great deference.
E. Calendar Congestion
The government has submitted undisputed evidence that the calendar in this district is more crowded than that in the Southern District of Georgia, and that this action would almost certainly come to trial there before it would here. Therefore, this factor weighs in favor of transfer.
F. The Convenience of Non-Party Witnesses
"The convenience of both the party and non-party witnesses is probably considered the single-most important factor in the analysis of whether a transfer should be granted." Hernandez, 761 F. Supp. at 988. When a moving party can demonstrate that important witnesses would be beyond the subpoena power of the court, that fact weighs heavily in favor of a transfer. See Longo v. Wal-Mart Stores. Inc., 79 F. Supp.2d 169, 171 (E.D.N.Y. 1999) (citing Hernandez, 761 F. Supp. at 990). The Government asserts that all witnesses other than plaintiff are located in Georgia or Florida, and thus are beyond the subpoena power of this court.
G. Practical Difficulties
The only practical difficulties entailed by transferring the case would be the extra burden on plaintiff of litigating in an out-of-state forum. The difficulties of not transferring, however, would be considerable, given that much of the material evidence would be beyond the reach of this court. Accordingly, this factor weighs in favor of transfer.
H. The Forum Court's Familiarity with Governing Law
This factor is "not generally considered a significant one." Hernandez, 761 F. Supp. at 991. When adjudicating a Federal Tort Claims Act claim, courts apply "the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b); see also Federal Deposit Ins. Corp. v. Meyer, 510 U.S. 471, 478 (1994) ("[W]e have consistently held that § 1346(b)'s reference to the `law of the place' means law of the State — the source of substantive liability under the FTCA.") (citing cases). Accordingly, this action will be tried under Georgia law. A federal district court sitting in Georgia would certainly be more familiar with Georgia law than a district court sitting in New York. This factor weighs in favor of transfer.
I. Interests of Justice
Balancing all of the factors set forth above, I find that the interests of justice would be best served by transferring this case to the Southern District of Georgia. Although I am not unmindful of the added burden placed on Jones in litigating out of his resident district, the overwhelming weight of the other factors demonstrates that the case should be transferred.
Conclusion
The complaint against Guia is dismissed pursuant to plaintiffs voluntary dismissal at oral argument. The rest of the case is hereby transferred to the Southern District of Georgia. The Clerk is directed that this order closes the case.
So ordered.