MERCEDES MERIDA v. ABRAHAM STARK (2024)

MEMORANDUM & ORDER

Plaintiff Mercedes Merida, a New Jersey resident, brings this negligence action against Defendant Abraham Stark, a Brooklyn resident and the landlord of Plaintiff's New Jersey apartment building. Plaintiff alleges that she was injured on June 16, 2021 due to a purported defect in the staircase in her New Jersey apartment building, which is owned, controlled, managed and repaired by Defendant. Before the Court is Defendant's motion to transfer venue of this action to the District of New Jersey pursuant to 28 U.S.C. § 1404(a).

For the reasons stated below, Defendant's motion to transfer venue is granted.¹

A. Factual and Procedural Background

Plaintiff filed the Complaint in this action on March 23, 2023. See Dkt. No. 1. According to the Complaint, Plaintiff “was, and still is, a citizen of the State of New Jersey.” Dkt. No. 1 ¶ 2. Plaintiff alleges that Defendant “was, and still is, a resident of Kings [County]” in New York. Id. ¶ 3. Plaintiff alleges that the amount in controversy in this action exceeds the sum of $75,000.00. Id. ¶ 4.

On June 16, 2021, Plaintiff claims that “she was caused to trip and/or slip and fall and sustain serious and permanent injuries” at her apartment building, which is located at 36 E. 17th Street in Bayonne, New Jersey (“the New Jersey Premises”). See Dkt. No. 16-3; see also Dkt. No. 1 ¶¶ 6, 12. Plaintiff claims that Defendant owned the New Jersey Premises, as well as the appurtenances and fixtures therein. Dkt. No. 1 ¶ 6. Plaintiff also claims that Defendant controlled, maintained, and repaired the New Jersey Premises. See Dkt. No. 1 ¶¶ 7, 8, 9, and 10. Plaintiff claims that “[b]ecause of the negligence of [Defendant] and the manner in which he maintained the apartment, [she] was caused to fall down the stairs and sustain a fracture to [her] right leg.” Dkt. No. 16-2.

There is no dispute that the June 16, 2021 fall occurred on the New Jersey Premises. Additionally, there is no dispute that, at the time of the June 16, 2021 fall, Plaintiff had previously entered into a lease agreement for her apartment on the New Jersey Premises. See Dkt. Nos. 16-2, 16-3. Plaintiff claims that during her “tenancy [in the New Jersey Premises], [she] continued to maintain a residence in Bronx, New York” with her brother. Dkt. No. 16-2.

Defendant asserts that, following the June 16, 2021 fall, Plaintiff “sought emergency medical treatment at Jersey City Medical Center in New Jersey,” where she “subsequently underwent two surgical procedures.” Dkt. No. 14-1, see also Dkt. No. 14-5. Plaintiff acknowledges that while she obtained “initial treatment at a hospital in Jersey City” for her purported injuries, she received subsequent medical treatment from White Plains Hospital in White Plains, New York, and the Sans Souci Rehabilitation and Nursing Center in Yonkers, New York. See Dkt. No. 16-2.

Defendant filed his Answer on November 21, 2023. See Dkt. No. 7. In the Answer, Defendant asserts, as an affirmative defense, that “Plaintiff's causes of action are and should be limited to New Jersey law and should be venued in New Jersey given the situs of the fall and the claims made in this suit.” Dkt. No. 7 at 6.

On November 21, 2023, Defendant moved to transfer venue to the District of New Jersey. See Dkt. Nos. 14-15. In her opposition to Defendant's motion, Plaintiff notes, inter alia, that her primary care doctors are located in the Bronx, New York and that her preferred pharmacy is in Yonkers, New York. See Dkt. No. 16-2. Plaintiff currently lives at the New Jersey Premises but also maintains a residence in the Bronx. See id. Plaintiff notes that her daughter is enrolled “in the excellent public school system in Bayonne,” New Jersey. Id.

B. Legal Standard

A civil action may be brought in “(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.” 28 U.S.C. § 1391(b)(1)-(3). “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 or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a).

District courts in the Second Circuit “appl[y] a two-part test to motions to transfer venue under § 1404(a).” United States v. Rare Breed Triggers, LLC, No. 23-CV-369 (NRM) (RML), -- F. Supp. 3d --, 2023 WL 2984391, at *6 (E.D.N.Y. Apr. 18, 2023) (citation omitted). “The initial inquiry is whether the case could have been brought in the proposed transferee district.” Herbert Ltd. P'ship v. Elec. Arts Inc., 325 F. Supp. 2d 282, 285 (S.D.N.Y. 2004). “An action might have been brought in the forum to which the movant seeks to transfer it if subject matter jurisdiction, personal jurisdiction, and venue would have been proper in the transferee court at the time of filing.” City of Pontiac Gen. Employees Ret. Sys. v. Dell Inc., No. 14-cv-3644 (VSB), 2015 WL 12659925, at *2 (S.D.N.Y. Apr. 30, 2015) (internal quotation marks omitted); see also Giuliani, S.p.A. v. Vickers, Inc., 997 F. Supp. 501, 502 (S.D.N.Y. 1998) (“[T]he court may transfer pursuant to § 1404(a) only if the transferee forum is one where, at the time the suit was brought, the defendants were subject to jurisdiction and venue was proper.”).

If that threshold inquiry is satisfied, the Court proceeds to the second step. See id. at *3. “To that end, the court may consider a host of equitable factors, including (1) convenience of witnesses; (2) convenience of the parties; (3) location of relevant documents and the relative ease of access to sources of proof; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the comparative familiarity of each district with the governing law; (8) the weight accorded to plaintiff's choice of forum; and (9) judicial economy and the interests of justice.” Rare Breed Triggers, 2023 WL 2984391, at *7 (citation and quotation marks omitted). These factors are “nonexclusive” and the “relative weight of each factor depends on the particular circumstances of the case.” Id. (citations and quotation marks omitted).

“Motions for transfer lie within the broad discretion of the district court and are determined upon notions of convenience and fairness on a case-by-case basis.” Nat'l Experiential, LLC v. Nike, Inc., No. 20-CV-3197 (ENV) (SIL), 2021 WL 9678642, at *3 (E.D.N.Y. July 31, 2021) (cleaned up) (citing In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992)). A court has the power to transfer venue even if it lacks personal jurisdiction over the defendant. Fort Knox Music Inc. v. Baptiste, 257 F.3d 108, 112 (2d Cir. 2001). Generally, the moving party “bears the burden of establishing the propriety of transfer by clear and convincing evidence.” Nat'l Experiential, 2021 WL 9678642, at *3.

C. Discussion

Defendant does not appear to contest that venue is proper in the Eastern District of New York under 28 U.S.C. § 1391(b)(1), as Defendant does not challenge Plaintiff's assertion that Defendant lives in Kings County.² Rather, Defendant seeks discretionary transfer of this action to the District of New Jersey under 28 U.S.C. § 1404(a). See Dkt. No. 14. As discussed further below, transfer to the District of New Jersey is appropriate.

1. The case could have been brought in the District of New Jersey

The parties do not explicitly address the first part in the two-part inquiry, namely, “whether the case could have been brought in the proposed transferee district” of New Jersey. See Herbert Ltd. P'ship, 325 F. Supp. 2d at 285. Nonetheless, the Court concludes that this action could have originally been brought in the District of New Jersey.

First, the District of New Jersey has subject matter jurisdiction because the Complaint alleges that the parties are diverse and that the amount in controversy exceeds $75,000. These allegations sufficiently establish diversity jurisdiction. 28 U.S.C. § 1332(a).

Next, the District of New Jersey could have exercised personal jurisdiction over Defendant at this case's inception. “Federal courts’ personal jurisdiction over parties is authorized by the long-arm statute of the state in which they sit.” Erickson, 2014 WL 12774971, at *2 (citing Fed. R. Civ. P. 4(k)(1)(A)). In this case, “New Jersey's long-arm statute provides for jurisdiction coextensive with the due process requirements of the United States Constitution.” Pena v. New Jersey Manufacturers Ins. Co., No. 20-CV-3445 (BMC), 2021 WL 2986512, at *4 (E.D.N.Y. July 15, 2021) (quoting Ragner Tech. Corp. v. Berardi, 287 F. Supp. 3d 541, 550 (D.N.J. 2018)). “Constitutional requirements are met only when a defendant has sufficient contacts with the sovereign such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.” Maxum Petro., Inc. v. Hiatt, No. 3:16-CV-1615 (VLB), 2017 WL 11447166, at *5 (D. Conn. Feb. 27, 2017) (cleaned up) (citing J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011)).

Defendant easily meets this standard. Defendant owned, managed, controlled, and repaired the New Jersey Premises—the site of the fall at issue. He is the landlord of the New Jersey Premises. Defendant entered into a lease agreement with Plaintiff regarding said premises in New Jersey.

Because Defendant is subject to jurisdiction in the District of New Jersey, the Court finds that this action could have originally been brought in that district. Consequently, the Court moves to the next step in the two-step inquiry.

2. Equitable factors favor transfer to the District of New Jersey

A balanced review of the relevant nine equitable factors also supports transfer to the District of New Jersey based on convenience and in the interests of justice. See 28 U.S.C. § 1404(a).

a. Six factors favor transfer to the District of New Jersey

Six factors favor transfer of this action to the District of New Jersey: the locus of operative facts; the location of relevant documents and the relative ease of access to sources of proof; the proposed forum's relative familiarity with the governing law; the convenience of the witnesses; the convenience of the parties; and the choice of forum.

Importantly, the locus of operative facts is, unquestionably, in New Jersey and is the factor that most strongly favors transfer to the District of New Jersey. See ZPC 2000, Inc. v. SCA Grp., Inc., 86 F. Supp. 2d 274, 279 (S.D.N.Y. 2000) (“the location of operative events is a primary factor in determining a motion to transfer venue”) (citation and quotation marks omitted). Plaintiff concedes that “[t]he facts supporting the liability portion of the [ ] claim did occur at [P]laintiff's residence in Bayonne, New Jersey” and that “the liability facts would favor a transfer to New Jersey.” Dkt. No. 16. Indeed, Plaintiff's fall occurred on the New Jersey Premises. Defendant is the landlord of the New Jersey Premises. Defendant is alleged to have engaged in negligence on the New Jersey Premises, as the allegedly defective condition was on property located in New Jersey. Taking notice of these facts, the “center of gravity” is indisputably in New Jersey. See ZPC 2000, Inc., 86 F. Supp. 2d at 279.

Plaintiff, however, contends that transfer is inappropriate because “the bulk of [P]laintiff's medical treatment, and therefore the bulk of the damages portion of her case, occurred in New York.” Dkt. No. 16. But Plaintiff fails to articulate any connection to the Eastern District of New York, even with respect to her medical treatment. Plaintiff sought emergency medical treatment at the Jersey City Medical Center in New Jersey. See Dkt. No. 16-2. Plaintiff's other alleged medical treatment occurred in the Southern District of New York, to wit: at medical facilities or pharmacies in Yonkers, White Plains, and the Bronx, respectively. See Dkt. No. 16-2; see also Dkt. No. 12 (“Besides her initial emergency treatment, all of [P]laintiff's extensive medical care was received in Westchester County, New York.”).

Thus, the facts in this case strongly support transfer to the District of New Jersey. See, e.g., Delacruz v. Giermak, No. 21-CV-3877 (ALC) (OTW), 2021 WL 5871424, at *2 (S.D.N.Y. Nov. 12, 2021) (“The locus of operative facts, which is a primary factor in determining a section 1404(a) motion to transfer, is New Jersey, where the accident giving rise to Plaintiff's claims occurred.”) (internal citations omitted); Wagner v. New York Marriott Marquis, 502 F. Supp. 2d 312, 316 (N.D.N.Y. 2007) (transferring case to the Southern District of New York where the gravamen of plaintiff's claim was a slip-and-fall at a Times Square hotel and noting that “[t]he stronger connection between the operative facts and the Southern District cannot be denied”); Transatlantic Reinsurance Co. v. Cont'l Ins. Co., No. 03-CV-3227 (CBM), 2003 WL 22743829, at *5 (S.D.N.Y. Nov. 20, 2003) (“In determining the locus of operative facts, a court must look to the site of events from which the claim arises.”).

And, for the same reason that the operative facts are in New Jersey, the relative ease of access to sources of proof—namely, the location of the alleged defect on the New Jersey Premises—further support transfer to the District of New Jersey.

Additionally, as Defendant argues and Plaintiff appears to concede, New Jersey substantive law applies to this action since the actual tortious conduct alleged, to wit, Defendant's purported failure to properly maintain the New Jersey Premises, occurred entirely in New Jersey. See Hodges v. United States, No. 16-CV-1339 (RLM) (AMD), 2017 WL 7038174, at *3 (E.D.N.Y. Apr. 5, 2017), report and recommendation adopted, 2017 WL 4277156 (E.D.N.Y. Sept. 26, 2017) (finding that New Jersey law applied to a medical malpractice claim in which the surgery and related treatment took place in New Jersey); De La Rosa Martinez v. Harbor Express, LLC, No. 15-CV-7458 (GBD) (DF), 2021 WL 6211687, at *5 (S.D.N.Y. Feb. 8, 2021), report and recommendation adopted, 2021 WL 1051623 (S.D.N.Y. Mar. 18, 2021) (“Under the choice-of-law rules of New York (the forum state), negligence claims, like the ones asserted by Plaintiffs, are generally governed by the law of the state where the injury occurred—in this case, New Jersey.”). “It is therefore New Jersey that has the greatest interest in the implementation and interpretation of the law that applies in this case.” Ryan v. Tseperkas, No. 07-CV-1850 (LDW), 2008 WL 268716, at *3 (E.D.N.Y. Jan. 28, 2008) (“While this court can certainly ascertain and apply the law of the State of New Jersey, consideration of the relative familiarity of the forum with the governing law weighs in favor of transfer.”).

The convenience of the witnesses also supports a transfer to the District of New Jersey, or, alternatively, a transfer out of the Eastern District of New York. Plaintiff argues that Defendant's Fed. R. Civ. P. 26(a)(1)(A) disclosures only identify Plaintiff, Defendant, and Plaintiff's doctors as having discoverable information, and that, therefore, Defendant has not met his burden to show that transfer is warranted. See Dkt. No. 16. But Plaintiff's argument misses the mark. Apart from Defendant (who is seeking the transfer), there is no indication that any witnesses are located or reside in the Eastern District of New York. As noted above, any medical witnesses are located in the District of New Jersey or the Southern District of New York. Should this case proceed to expert discovery, potential biomechanics or accident reconstruction experts are likely to examine the alleged defect at the New Jersey Premises, which would be in the District of New Jersey.

The convenience of the parties likewise favors transfer. Plaintiff lives in New Jersey and reports having a child in New Jersey schools. Plaintiff does not argue that litigating in the District of New Jersey would be inconvenient for her.

Moreover, Plaintiff's choice of forum is not entitled to great weight because the operative facts are not tied to this district. “To be sure, the Court recognizes that a plaintiff's choice of forum is accorded considerable weight in the § 1404(a) balancing test.” Everlast World's Boxing Headquarters Corp. v. Ringside, Inc., 928 F. Supp. 2d 735, 748 (S.D.N.Y. 2013). “But that choice merits less deference ‘where the connection between the case and the chosen forum is minimal.’ ” Id. (quoting Chiste v. Hotels.com L.P., 756 F.Supp.2d 382, 401 (S.D.N.Y.2010)); see also D'Anton Jos, S.L. v. Doll Factory, Inc., 937 F. Supp. 320, 323 (S.D.N.Y. 1996) (“[A]lthough a plaintiff's choice of forum is generally given substantial weight, this presumption does not apply in cases such as this one where there is little material connection between the chosen forum and the facts and issues of the case.”). The operative events took place entirely in New Jersey and the alleged property defect is in New Jersey. Plaintiff's reliance on her medical treatment in the Southern District of New York as a basis for her venue in the Eastern District of New York is inapposite. See Guccione v. Harrah's Mktg. Servs. Corp., No. 06-CV-4361 (PKL), 2009 WL 2337995, at *7-8 (S.D.N.Y. July 29, 2009) (declining to grant significant weight to the plaintiff's choice of the Southern District of New York as the forum, finding New Jersey the locus of operative facts, and transferring the case to the District of New Jersey, even though all of plaintiff's treating physicians practice in New York, as the accident occurred in New Jersey).

Plaintiff's choice of forum simply does not favor retaining this case in the Eastern District of New York.

b. Two factors are neutral and do not favor or disfavor transfer

Two factors are neutral and therefore neither favor nor disfavor transfer to the District of New York. Defendant does not proffer facts to show that the process to compel attendance of unwilling witnesses, will be necessary in either forum. The relative means of the parties is also neutral because both parties have the capability to litigate in either New Jersey or New York.

c. The interests of justice favor transfer to the District of New Jersey

Finally, with respect to the interests of justice, “[t]he appropriate considerations for this factor have been largely, if not entirely, developed while discussing the preceding eight factors.”³ Nat'l Experiential, LLC, 2021 WL 9678642, at *7; cf. Bakken Res., Inc. v. Edington, No. 15-CV-8686 (ALC), 2019 WL 1437273, at *6 (S.D.N.Y. Mar. 29, 2019) (denying transfer as “contrary to the interests of justice” when “plaintiff did not produce any factual or party nexus connecting the present case” to the requested transfer forum). “When the events giving rise to a claim occurred in another district, it is reasonable to transfer the case to the district in which the events occurred.” Donde v. Romano, No. 09-CV-04407 (DLI) (VVP), 2010 WL 3173321, at *3 (E.D.N.Y. Aug. 10, 2010) (noting that “because the accident at issue occurred entirely in New Jersey, New Jersey ‘has the greatest interest in the implementation and interpretation of the law that applies in this case.’ ” (quoting Ryan, 2008 WL 268716, at *3); see also Delacruz, 2021 WL 5871424, at *2 (“[A] significant share of non-party witnesses and evidence necessary to litigate this case are presumably located in New Jersey, and no party has argued that litigating in New Jersey would pose an inconvenience.”). Judicial economy also favors transfer, as this litigation remains in its early stages in this district.

In sum, because all of the relevant factors either weigh in favor of transfer or are neutral, and no factor weighs against transfer, the Court finds that transfer to the District of New Jersey is appropriate.

D. Conclusion

For the foregoing reasons, Defendant's motion to transfer venue is granted. The Clerk of Court is respectfully directed to transfer this case to the United States District Court for the District of New Jersey within seven days of the date of this Order, pursuant to Local Civil Rule 83.1.

FOOTNOTES

1.   Because a motion to transfer venue is non-dispositive, this Court will adjudicate it by order pursuant to 28 U.S.C. § 636(b)(1)(A), rather than by issuing a report and recommendation. See Hobby Lobby Stores Inc. v. Obbink, No. 21-CV-3113 (RPK) (MMH), 2023 WL 6214240, at *1 (E.D.N.Y. Sept. 23, 2023); see also Atari Interactive, Inc. v. Target Corp., No. 19-CV-03111 (LAK) (OTW), 2019 WL 6728860, at *2 (S.D.N.Y. Dec. 10, 2019) (“Venue motions filed in the context of 28 U.S.C. § 1404(a) have been treated as non-dispositive motions that can be decided by a magistrate judge.”) (citing cases); Adams v. Barnhart, No. 03–CV–1362 (KMW) (GWG), 2003 WL 21912543, at *1 (S.D.N.Y. Aug. 8, 2003). Under Fed. R. Civ. P. 72(a), a district judge may modify or set aside any portion of a magistrate judge's non-dispositive order only if it is found to be “clearly erroneous or contrary to law.” Fed R. Civ. P. 72(a); 28 U.S.C. § 636(b)(1)(A).

2.   The Court notes, however, that Defendant's Answer to the Complaint is not clear on this point. Compare Dkt. No. 1 ¶ 3 (“That at all times herein [Defendant] was, and still is, a resident of the county of Kings, City and State of New York”) with Dkt. No. 7 ¶ 3 (“Deny any knowledge and information thereof sufficient to form a belief as to the allegations set forth in paragraph designated ‘3’ of the Complaint”).

3.   In Plaintiff's opposition to Defendant's motion to transfer venue, Plaintiff notes that she originally filed an action in New York State Supreme Court, County of Kings, against Defendant arising out of the same fall as the instant action; Plaintiff states that the state court action “was dismissed on forum non conveniens grounds.” Dkt. No. 16. Plaintiff attaches a March 17, 2023 order from the New York State Supreme Court, County of Kings, which states that the Court found Plaintiff to be a resident of New Jersey and that the complaint was therefore dismissed pursuant to N.Y. C.P.L.R. § 327(a). See Dkt. No. 16-1. It is not clear why Plaintiff subsequently decided to file the instant action in this district, rather than the District of New Jersey.

JOSEPH A. MARUTOLLO United States Magistrate Judge