"alternative" view. Courts rejecting the hierarchical
interpretation primarily have focused on the plain language of
the statute. See Gregory, 35 F. Supp.2d at 298 (statutory
language "clearly provides for alternative bases for venue");
Market Transition Facility v. Twena, 941 F. Supp. 462, 465
(D.N.J. 1996) ("[T]he plain language of § 1391(a) indicates that
venue . . . is proper, regardless of circumstances, in either a
district within the state where all defendants reside or in a
district where a substantial part of the events or omissions
giving rise to the claim occurred. There is nothing on the face
of the statute to support [the] interpretation that venue must be
in a district where a defendant resides, when all defendants
reside in the same state."); School Dist. of Philadelphia, 877
F. Supp. at 249 ("[W]e find that even though venue would be
appropriate in the Middle District based on (b)(1), it can also
be proper here if the requirements of (b)(2) are met."); accord
Merchants Nat'l Bank v. Safrabank, 776 F. Supp. 538, 541 (D.Kan.
1991). The statute clearly offers two possibilities for an
appropriate venue. If Congress had intended to make (b)(2)
available only if (b)(1) could not be satisfied, presumably
language indicating this limitation would have been included in
the statute. It was not. See Gregory, 35 F. Supp.2d at 298.
Furthermore, a leading commentator has endorsed the
"alternative" view of § 1391(b) subsections. "The provision for
residential venue, in paragraph (1) of subdivisions (a) and (b),
and the provision for transactional venue in paragraph (2) of
those subdivisions, are in the alternative. Venue is proper if
either one of those conditions is met." 15 Charles Alan Wright,
Arthur R. Miller and Edward H. Cooper, Federal Practice and
Procedure § 3804 (2d ed. Supp. 1999); see also Gregory, 35
F. Supp.2d at 298 (citing 15 Charles A. Wright, Arthur R. Miller &
Edward E. Cooper § 3804, at 16 (2d ed. Supp. 1998)).
Accordingly, under this "alternative" view, venue is proper in
this district under (b)(2) because the abduction of Hall by Young
— a substantial part of events giving rise to his claims —
occurred in the Southern District of New York. See Bates, 980
F.2d at 868 (Under § 1391(b)(2) court does not have to determine
the best venue, but "only whether a substantial part of the
events giving rise to the claim" occurred in a particular
district); Neufeld v. Neufeld, 910 F. Supp. 977, 986 (S.D.N Y
1996) ("This provision does not require that plaintiffs establish
that [a district] has the most substantial contacts to the
dispute; rather it is sufficient that a substantial part of the
events occurred [there], even if a greater part of the events
occurred elsewhere."). Having determined that venue is proper
here, defendant's motion to dismiss for improper venue is denied.
II Transfer of Venue
As this case demonstrates, the "alternative" reading of §
1391(b) often results in there being more than one appropriate
forum for a case. A district court in New Jersey would be a
proper venue and would satisfy both sections (b)(1) and (b)(2).
Defendants move to transfer venue pursuant to 1406(a) or in the
alternative pursuant to 1404(a). We find that, although this
Court has jurisdiction, this action should be transferred in the
interests of justice pursuant to § 1404(a).
28 U.S.C. § 1404(a) permits the Court in its discretion to
transfer an action "[f]or the convenience of parties and
witnesses, in the interest of justice." Section 1404(a) serves to
"`prevent the waste of time, energy and money and to protect
litigants, witnesses and the public against unnecessary
inconvenience and expense.'" Pianelli v. Hershey, No. 99 Civ.
64(FJS)(GJD), 2000 WL 98098, at *4 (N.D.N.Y. Jan. 28, 2000)
(quoting Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805,
11 L.Ed.2d 945 (1964)). "[M]otions 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." In
Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101
L.Ed.2d 22 (1988)); see also A. Olinick & Sons v. Dempster
Brothers, Inc., 365 F.2d 439 (2d Cir. 1966) (stating that
appellate courts have a strong reluctance "to interfere with the
District Court's exercise of its discretion under" § 1404(a)).
"Section 1404(a) is concerned with both private interest
factors affecting the convenience of the litigants and public
interest factors affecting the convenience of the forum."
Garrel, 1999 WL 459925, at *6 (citing Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)
(internal quotations omitted)). The factors for evaluating a
motion for transfer include: (1) the convenience to parties; (2)
the convenience of witnesses; (3) the relative ease of access to
sources of proof; (4) the availability of process to compel
attendance of unwilling witnesses; (5) the cost of obtaining
willing witnesses; (6) the practical problems indicating where
the case can be tried more expeditiously and inexpensively; and
(7) the interests of justice, a term broad enough to cover the
particular circumstances of each case, which in sum indicate that
the administration of justice will be advanced by a transfer.
Dollinger v. State Insurance Fund, No. 98 Civ. 0173(AGS), 1998
WL 321442, at *2 (S.D.N.Y. June 18, 1998) (citing Schneider v.
Sears, 265 F. Supp. 257, 263 (S.D.N.Y. 1967)); see also
Totonelly v. Cardiology Associates of Corpus Christi, Inc.,
932 F. Supp. 621, 623 (S.D.N.Y. 1996) ("The core determination under §
1404(a) is the center of gravity of the litigation. . . . Courts
routinely transfer cases where the principal events occurred, and
the principal witnesses are located in another district.")
(citations omitted). "The burden of demonstrating the
desirability of transfer lies with the moving party, and in
considering the motion for transfer, a court should not disturb a
plaintiff's choice of forum unless the defendant makes a clear
and convincing showing that the balance of convenience favors the
defendant's choice." Student Advantage, Inc. v.
CollegeClub.Com, No. 99 Civ. 8604(JSR), 1999 WL 1095601, at 3
(Dec. 3, 1999) (internal quotations omitted). Defendants have met
Hall argues that this action should remain here because a
plaintiff's choice of forum generally should not be disturbed and
because a substantial part of the events giving rise to his
claims occurred in this District since he was abducted here.
First, Hall resides in the Eastern, not the Southern District of
New York. "The case law recognizes that a plaintiff's choice of
forum is accorded less weight . . . when that forum is `neither
the [plaintiff's] home nor the place where the operative facts of
the action occurred.'" Hill v. Golden Corral Corp., No. 98 Civ.
9872(JG), 1999 WL 342251, at *3 (E.D.N.Y. May 21, 1999) (quoting
Dwyer v. General Motors Corp., 853 F. Supp. 690, 695 (S.D.N Y
1994)); see also American Alliance Ins. Co. v. Sunbeam Corp.,
No. 98 Civ. 4703, 1999 WL 38183, at *9 (S.D.N.Y. Jan.28, 1999)
("[P]laintiff's choice of forum is ordinarily entitled to
substantial deference, unless the forum is neither its home forum
nor the locus of operative facts.").
Second, although some events giving rise to plaintiff's claims
occurred in the Southern District, a substantial part of the
events also occurred in Newark, New Jersey, where plaintiff was
tied up in a warehouse for several hours. The majority of events
giving rise to the federal claims occurred in New Jersey and the
bulk of discovery will have to occur there. Plaintiff's § 1983
claim against detective Collum is based on allegations that
Collum improperly allowed Young to use or see resources located
in the police department in Franklin Township, New Jersey.
Similarly, plaintiff asserts a Monell claim against the
municipal defendants alleging, inter alia, that they failed to
implement constitutional policies or to properly discipline or
train police officers under their control, resulting in
violations of plaintiff's rights.
See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978) (holding that local government units
may be sued pursuant to § 42 U.S.C. § 1983). Any policy decisions,
acts or omissions by the municipalities or their agents resulting
in any constitutional violations of plaintiff's rights,
apparently took place in New Jersey.
Plaintiff concedes that many of the witnesses in this case
reside in New Jersey. Even for those witnesses located in New
York, including plaintiff, traveling to New Jersey will pose
little inconvenience. This Court has carefully considered
plaintiff's other arguments opposing transfer of venue and reject
them. The relative ease of access to all sources of proof weighs
heavily in favor of transferring this case to New Jersey.
For the reasons stated above defendants' motion to transfer
this action pursuant to 28 U.S.C. § 1404(a) is granted. The Clerk
of the Court is ordered to transfer this action to the District
of New Jersey.