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United States District Court, Southern District of New York

April 24, 2003


The opinion of the court was delivered by: Lewis A. Kaplan, United States District Judge


On April 15, 2003, this Court directed plaintiffs to show cause why this negligence case brought on behalf of Staten Island plaintiffs with respect to an injury allegedly suffered in a retail store in New Jersey should not be transferred to the District of New Jersey pursuant to 28 U.S.C. § 1404(a). Plaintiffs' counsel has responded with a memorandum that argues at length that this Court has subject matter and personal jurisdiction and that venue is properly laid in this District, none of which is at issue. Beyond that, he argues that this district is essentially as convenient for the litigants as New Jersey and that it was improper for the Court to issue the order to show cause sua sponte. He does not dispute the fact that this action "might have been brought" in the District of New Jersey. See 28 U.S.C. § 1404(a).

To begin with, parties and witnesses are not the only participants in the litigation process that have an interest in determining w here controversies are adjudicated. Courts have an independent institutional concern to see to it that the burdens of litigation that is unrelated to the forum that a party chooses are not imposed unreasonably on jurors and judges who have enough to do in determining cases that are appropriately before them. The power of district courts to transfer cases under Section 1404(a) sua sponte therefore is well established. E.g., America Online Latino v. America Online, Inc., No. 02 Civ. 4796 (LAK), 2003 WL 1842874, at *1 n. 2 (S.D.N.Y. Apr. 2, 2003); Banco de Seguros del Estado v. Employers Insurance of Wausau, 171 F. Supp.2d 330, 332 n. 5 (S.D.N.Y. 2001); Diagnostic Radiology Associates, P.C. v. Brown, 193 F.R.D. 193, 195 n. 11 (S.D.N.Y. 2000); Clisham Management, Inc. v. American Steel Building Co., 792 F. Supp. 150, 157 (D.Conn. 1992); Kirby v. Mercury Savings and Loan Ass'n, 755 F. Supp. 445, 448 (D.D.C. 1990); Mobil Corp. v. SEC, 550 F. Supp. 67, 69 (S.D.N.Y. 1982); Riordan v. W.J. Bremer, Inc., 466 F. Supp. 411, 417 (S.D.Ga. 1979); see Stames v. McGuire, 512 F.2d 918 (D.C. Cir. 1974) (in banc).

In determining whether this action should be transferred, the Court is obliged to consider the convenience of the parties and witnesses and the interest of justice. "In consid ering whether a transfer would be for the convenience of the parties and witnesses and in the interest of justice, `[t]he plaintiff's choice of forum is entitled to substantial weight and will not be disturbed lightly.'" Schechter v. Tauck Tours, Inc., 17 F. Supp.2d 255, 260 (S.D.N.Y. 1998) (quoting Thunder Island, Inc. v. A.G. Sport, Inc., No. 97 Civ. 4136(LAK), 1997 WL 5994 14, at *1 (S.D.N.Y. Sept. 26, 1997)). Where, however, the plaintiff is an alien or a stranger to the forum with no connection to it, the degree of deference accorded its choice is diminished. See Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142, 145 (2d Cir. 2000); Capital Currency Exchange, N.V. v. Nat. Westminsterbank, PLC, 155 F.3d 603, 609 (2d Cir. 1998), cert. denied, 526 U.S. 1067 (1999); Murray v. British Broadcasting Corp., 81 F.3d 287, 289 (2d Cir. 1996); Revson v. Claire's Stores, Inc., 120 F. Supp. d 322, 327 (S.D.N.Y. 2000). Whatever the degree of deference, however, considerations pertinent to witnesses, (3) the relative ease of access to sources of proof, (4) the availability of process to compel the 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." Schechter, 17 F. Supp.2d at 260 (citing Karriem v. Amer. Kennel Club, 949 F. Supp. 220, 221 (S.D.N.Y. 1996)).

In this case, plaintiffs have no connection to this forum. They are residents of the Eastern District of New York. They have given no reason whatever for the choice of this district. Their choice of this venue therefore is entitled to diminish ed consideration. Moreover, the Court is well aware that it typically is easier and faster for most Staten Island residents to get to Newark than to the courthouse in this district.

As for the rest of it, it is reasonably plain — at least given plaintiffs' failure to make any factual showing in response to the order to show cause — that the fact witnesses in this case are likely to be the plaintiffs themselves, possibly a treating physician or two, and employees of the defendants' Iselin, New Jersey, store. Litigation in Newark would be more convenient for the defendants' employees and, in the Court's view, for plaintiffs as well. The lack of any factual submission in response to the order leaves the Court without information as to the location of any treating physicians, but there is no reason to suppose that they are in this district, given that the accident occurred in New Jersey and that plaintiffs reside in the Eastern District of New York.

Finally, the Court cannot ignore the fact that the choice of this district was completely arbitrary. There simply is no reason for the case to be here, a factor relevant to the interest of justice.

In all the circumstances, the action is transferred to the United States District Court for the District of New Jersey pursuant to 28 U.S.C. § 1404(a).



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