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McDermott v. Semolic

October 20, 2006


The opinion of the court was delivered by: Joseph F. Bianco, District Judge


Defendants Ann L. Semolic, M.D., (hereinafter "Semolic") and Mansfield Center for Nursing and Rehabilitation (hereinafter "Mansfield")*fn1 bring the instant motions to dismiss plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(2) for lack of personal jurisdiction. Though plaintiff concedes that, based on defendants' representations, this Court does not have personal jurisdiction over defendants under New York's long-arm statute, plaintiff opposes defendants' motions to dismiss, instead seeking transfer of this action to the District of Connecticut.


Plaintiff Grace McDermott (hereinafter "McDermott") filed the complaint in this action on June 30, 2006. Plaintiff claims jurisdiction based on 28 U.S.C. § 1441 on the grounds that there is complete diversity of citizenship between plaintiff and defendants.

Plaintiff resides in East Islip, New York. Defendants are residents and citizens of the state of Connecticut and do business in Connecticut. (Compl. ¶¶ 1-3.) According to the complaint, from August 2, 2004 through September 3, 2004, plaintiff went to defendant Mansfield's facility "as a patient for the purpose of receiving medical care and attention." (Id. ¶ 27.) Plaintiff alleges that she was the victim of medical malpractice and negligent treatment during that period. (Id. ¶¶ 8-31.)

The defendants each move to dismiss plaintiff's complaint for lack of personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). Plaintiff opposes the motion and seeks transfer of the case to the District of Connecticut.


Plaintiff concedes, for purposes of this motion, that "if discovery were to be taken, it would confirm counsel's assertions that defendants neither do business in New York nor do they have sufficient New York contacts to subject them to long arm jurisdiction." (Pl.'s Opp. at 4.) Thus, in light of defendants' representations, plaintiff does not argue that this Court has personal jurisdiction over defendants. Instead, plaintiff argues that transfer of this case to the District of Connecticut is proper under 28 U.S.C. § 1406(a).*fn2 Defendants oppose transfer, arguing that transfer is improper because the interests of justice will not be served.*fn3 (Semolic Reply at 2.)

In addition to lack of personal jurisdiction, this Court lacks venue over this action.*fn4 Accordingly, the decision whether to transfer or dismiss is evaluated under 28 U.S.C. § 1406(a) and "lies within the sound discretion of the district Court." Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993); see Songbyrd, Inc. v. Estate of Grossman, 206 F.3d 172, 179 (2d Cir. 2000) ( "[W]hether or not venue [is] proper, lack of personal jurisdiction [can] be cured by transfer to a district in which personal jurisdiction could be exercised, with the transfer authority derived from either section 1406(a) or section 1404(a)."). 28 U.S.C § 1406(a) provides:

The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

Lack of personal jurisdiction does not prevent this Court from transferring the case. See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466 (1962) ("The language of § 1406(a) is amply broad enough to authorize transfer of cases, however wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not."); see also Hartman v. Low Sec. Correctional Institution Allenwood, No. 03-CV-5601 (DLC), 2004 WL 34514, at *3 (S.D.N.Y. Jan. 7, 2004) ("Section 1406(a) permits the transfer of a case even when the court in which the case was filed did not have personal jurisdiction over defendant."). Thus, the only issue in the instant motion is whether the interests of justice would be better served by transfer.

Defendants argue that the interests of justice will not be served by transfer because, according to defendants, plaintiff has failed to establish a good faith belief that this Court has personal jurisdiction over defendants or venue. Defendants cite a number of cases where courts have concluded that denying transfer in favor of dismissal is not an abuse of discretion. Defendants, however, point to no cases where granting a request to transfer has been found an abuse of discretion. In any event, for the reasons that follow, the Court finds that the interests of justice warrant transfer, rather than dismissal, of this case. The statue of limitations on claims of medical malpractice in Connecticut is two years from the date the injury is sustained or discovered. CONN. GEN. STAT. § 52-584.

Under New York law, the statute of limitations on claims of medical malpractice is two and a half years from the date of the act, omission or failure complained of, or last treatment where there is continuous treatment. N.Y.C.P.L.R. § 214-a. The allegedly negligent treatment complained of in the instant action occurred during the period August 2, 2004 through September 3, 2004. Plaintiff filed her complaint on June 30, 2006. Thus, the complaint was timely filed under both the Connecticut and New York statute of limitations. However, if plaintiff's case is dismissed, such that plaintiff is forced to refile in Connecticut, there is some concern that the action will be time-barred as the events that gave rise to the action occurred over two years ago.*fn5

Citing Spar, Inc. v. Information Resources, Inc., 956 F.2d 392 (2d Cir. 1992), defendants argue that the possible expiration of the statute of limitations does not justify transfer of this case. In Spar, plaintiff initiated an action in the Supreme Court of New York which was then removed by the defendant to federal court. Id. at 393. The defendant then moved to dismiss the complaint as barred by the statute of limitations and plaintiff cross-moved pursuant to § 1406 for transfer to the Northern District of Illinois. Id. The district court held that venue was proper and that the claim was timebarred because the applicable limitations period in New York had expired. Id. On appeal, plaintiff argued that, notwithstanding proper venue, the action should have been transferred to the District of Illinois because it would not have been barred under Illinois' longer statute of limitations period and would have allowed adjudication on the merits. Id. at 393-94. The Second Circuit disagreed and held, "[w]hile we believe that § 1406 should be read liberally, we cannot conclude that [plaintiff], whose own failure to pursue its claim diligently and to research New ...

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