State Dep't of Correctional Serv., 808 F. Supp. 1106, 1109 (S.D.N.Y. 1992) (Motley, J.), a nexus requirement was also imposed. The Berry court acknowledged that "while a state defendant may have more than one official residence due to having branch offices where substantial amounts of official business are conducted, their (sic) residence for purposes of 1391(b) is one of these official residences." Nonetheless, it held that venue was only appropriate in the districts where the activities occurred on which the suit was based. Its finding that there was no defensible basis for the plaintiff's selection of the Southern District, "where a regional arm of the State is being sued for activities which took place entirely outside the venue sought," because "the great majority of relevant evidence is most likely located in the Northern or the Western District," may have been determinative. In this vein, the court noted that even if it had held that "venue was proper in the Southern District, [it would have transferred the case because] trial elsewhere would be far more convenient for parties and witnesses." Id. at 1110-11.
However, as noted above, the court in St. Regis Mohawk Tribe, 774 F. Supp. at 186, held that venue was appropriate in the Southern District because the State "defendants reside in this judicial district," without requiring a nexus between the plaintiffs' claim and the State defendants' activities within the district. The St. Regis Mohawk Tribe decision illustrates how the absence of such a nexus, although it does not render venue invalid under the current rule, is relevant, among other factors, in consideration of a transfer request. The St. Regis Mohawk Tribe court exercised its jurisdiction and denied State defendants' motion to dismiss for improper venue, but then granted the State defendants' motion to transfer the case under 28 U.S.C. § 1404(a).
The conclusion may be warranted that a privilege for state officials with regard to venue is an anachronism after the 1988 and 1990 statutory amendment of the venue rules, as that privilege developed under statutory venue schemes no longer in effect. Hardship to state officials from the plaintiff's choice of district for suit with respect to the production of witness and documentary proof can be remedied by transfer of venue pursuant to 28 U.S.C. § 1404(a), a process presumably similar to that by which cases are transferred to different courthouses within districts in a single district state.
For instance, with respect to transfers to the Long Island courthouses of the Eastern District of New York, the local rule provides: "a party may move to designate a case as a Long Island case or to cancel such designation on the grounds that such action will serve the convenience of the parties and witnesses or is otherwise in the interests of justice." E.D.N.Y. Guidelines for the Division of Business R. 50.1(d)(3).
However, here the issue of whether there is any remaining basis under current venue rules for special limitations with regard to venue against State defendants need not be reached, because the State officials have declined to assert any possible privilege with respect to venue. All of the State defendants have waived their possible privilege under this body of case law to be deemed non-residents of the Eastern District. Here, the State defendant Thomas A. Maul, OMRDD Commissioner, has a substantial official presence in this district and thus, in his official capacity, "resides" in the Eastern District.
As § 1391(b)(1) requires only one resident defendant in the district, it is not necessary to inquire with respect to the others.
In an alternative view of the State defendants' waiver of their possible privilege with respect to venue, the provisions of the venue statute applicable to a corporation might appropriately be applied by analogy to the State defendants. "[A] corporation shall be deemed to reside in any district in [the] State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State." 28 U.S.C. § 1391(c). As noted above, the agency of State defendant, Commissioner Thomas Maul, OMRDD, has at least four offices within the Eastern District and thus he would be subject to personal jurisdiction in his official capacity at each, on the basis of presence in the district, were the district a separate State. Thus, clearly, under this test as well, were he a corporate agent sued in his official capacity, he would "reside" in the Eastern District for the purposes of the venue provision.
For the foregoing reasons, because at least one State defendant is a defendant resident in the Eastern District, venue may properly be exercised over other defendants resident in other districts also located in New York State. Therefore, this action was properly brought here against the Westchester County defendants, Westchester County, its Executive, Andrew P. O'Rourke, and its Commissioner of Social Services, Mary E. Glass.
2. The Interests of Justice Weigh Against Transfer
Although, based on the foregoing analysis, venue may be properly exercised in this district, the County's request for transfer must also be considered. Under 28 U.S.C. § 1404(a), "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." There is no question that plaintiffs might have brought this suit in the Southern District. However, when one compares the Manhattan and Brooklyn courthouses, the distance between the districts is less than two miles, and, when the White Plains and Brooklyn courthouses are compared, it is less than thirty miles. The latter distance is comparable to the distance between the Brooklyn and Hauppauge courthouses within the Eastern District.
The State has indicated that Brooklyn is just as convenient a location for it as is White Plains; plaintiffs selected this location; and no issues of fact must be resolved before deciding the plaintiffs' motion for a preliminary injunction. The Court permitted the County defendants to provide affidavits of fact following oral argument and neither these nor their submissions before the argument have raised any material issue of fact to the determination of the plaintiffs' motion nor, as the foregoing analysis demonstrates, to determination of the County defendants' cross-motion for change of venue or transfer.
Further, plaintiffs' situation is urgent as their care-providers have not been paid for nearly five months. Unless the status quo is assured, plaintiffs will have lost the object of their suit before they have had an opportunity to present their case. As Judge Walker, when sitting in the District Court, stated, in Sharif v. New York State Educ. Dep't, 709 F. Supp. 345, 358-59 (S.D.N.Y. 1989), finding venue appropriate, "the Southern District is at least an equally plausible forum,"
because speed of disposition is important in this case, the interests of justice weigh against a transfer. This Court is familiar with the detailed facts of the case, and substantial proceedings have already occurred before this Court. This is not a case where plaintiffs may have chosen their place of venue to harass defendants or to avoid [adverse] precedents in the [Southern] District.
Here, too, the interests of justice weigh against transfer. While, here, "the substantial proceedings" have been conducted in the other TCF cases, these proceedings and the documentation provided by the parties to these other cases, much of which is applicable here, have permitted this court to develop a substantial understanding of the TCF program and of the process constitutionally required to bring TCF recipients back to placements in New York State. TCF was a state-wide program monitored by the State under state-wide standards. TCF recipients were placed out-of-state as children only with the approval of the State Department of Education after no institutional placement within the state could be located. In the urban counties seen in these suits, no local factors distinguishing their TCF recipients from others state-wide have been asserted by the local defendants and local factors are not likely to be determinative. The Westchester County defendants dispute the court's conclusions of law, not its findings of fact.
Nor have plaintiffs brought suit in this district to harass the County defendants. The distance is not extraordinary -- Suffolk County is located at a comparable distance from the Brooklyn courthouse -- and the commonality of issues with the other TCF cases reduces the cost of litigation for all parties. The State defendants' waiver of their own potential objections to venue attests to the non-harassing quality of the chosen venue.
3. Equal protection Violated by TCF Program
In Brooks, because of the res judicata effect of the prior state litigation of plaintiffs' rights under TCF, the equal protection violation inherent in the State's denial of rights to out-of-state TCF recipients that it granted to other institutionalized mentally retarded and developmentally disabled persons, including in-state TCF recipients, was alluded to but could not form the basis of that order. This was acknowledged by the Second Circuit in its Brooks decision, 84 F.3d 1454, 1996 WL 285441 at *10:
The first four claims raised in plaintiffs' amended complaint, alleging denial of procedural due process, substantive due process and equal protection, are completely barred by res judicata, because the underlying factual predicate for each of these claims--which concern the TCF reimbursement mechanism, the TCF Statute, the City's termination of transitional care, and the plaintiffs' resulting predicament--is substantially identical to the allegations presented in state court.
As noted, the issue of whether the TCF withdrawal provision was constitutionally defective could not be reached in Brooks v. Pataki because of the res judicata effect of the judgment in New York State Supreme Court in the suit brought by the Brooks plaintiffs. It, therefore, was not considered by the Second Circuit in its vacating and remand of that decision. The State court result is also not binding in this case except with respect to its determination of the meaning of the New York State law. Thus, res judicata presents no bar to the consideration of the equal protection claim here and will be considered.
There are a number of ways in which out-of-state TCF recipients such as these plaintiffs were treated differently than other severely developmentally disabled adults institutionalized within the State, both under TCF and other State programs. The Supreme Court has recently summarized the difficult legal question presented by classification in state law:
The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must co-exist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.