Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wagner v. New York Marriott Marquis

March 19, 2007

JOHN P. WAGNER, PLAINTIFF,
v.
NEW YORK MARRIOTT MARQUIS, MARRIOTT INTERNATIONAL, INC., TIMES SQUARE HMC HOTEL, L.P.; AND HOST MARRIOT CORPORATION, DEFENDANTS.



The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge

MEMORANDUM - DECISION AND ORDER

I. INTRODUCTION

Currently pending before the Court is a motion for a change of venue brought by defendants, New York Marriott Marquis (the "Marquis"), Marriott International, Inc., Times Square HMC Hotel, L.P., and Host Marriott Corporation. Defendants seek an order pursuant to 28 U.S.C. § 1404(a) transferring this action from the United States District Court for the Northern District of New York ("Northern District") to the United States District Court for the Southern District of New York ("Southern District"). See Dkt. No. 5, Notice of Mot., Scher Aff. at ¶ 1. Plaintiff, John P. Wagner, has filed his opposition to defendants' motion. See Dkt. No. 7. For the reasons that follow below, the Court GRANTS defendants' motion to transfer venue to the Southern District.

II. PROCEDURAL HISTORY

On December 8, 2005, plaintiff, a sixty-eight year old retired Roman Catholic Priest, was a guest at the Marquis located at 1535 Broadway, New York, New York. See Dkt. No. 7, Sassani Aff. at ¶¶ 3, 5; Dkt. No. 1, Ex. 1 Compl. at ¶ 2. Plaintiff alleges that when he attempted to enter an in- house café/lounge on the eighth floor of the Marquis, defendants' negligence, carelessness, and recklessness caused him to slip on a coffee spill and fall to the ground. See Dkt. No. 1, Ex. 1, Compl. at ¶¶ 10-11; Dkt. No. 7, Sassani Aff. at ¶¶ 5 and 11. As a result of the slip and fall, plaintiff shattered his right elbow. See Dkt. No 1, Ex. 1, Compl. at ¶ 14; Dkt. No. 7, Sassani Aff. at ¶¶ 7-9. Emergency medical personnel transported plaintiff by ambulance to Lenox Hill Hospital in New York City where he underwent surgery. Dkt. No. 7, Sassani Aff. at ¶ 7.

Plaintiff commenced this action in the Supreme Court of New York for the County of Onondaga, with the filing of a summons and complaint, and defendants removed it to this Court pursuant to 28 U.S.C. § 1332 and 28 U.S.C. § 1441(a).*fn1 Dkt. No. 1. Shortly thereafter, defendants filed their answer and the instant motion. See Dkt. No. 4 and Dkt. No. 5.

III. DISCUSSION

The adjudication of a motion for a change of venue is "within the discretionary authority of the district courts," In re Manville Forest Products Corp., 896 F.2d 1384, 1391 (2d Cir. 1990), "according to an 'individualized, case-by-case consideration of convenience and fairness.' " Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2244, 101 L.Ed.2d 22 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964)). The operative statute in a motion for a change of venue is 28 U.S.C. § 1404(a), which provides that "[f]or 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." Thus, the Court must make two inquiries: (1) whether the action the movant seeks to transfer is one that "might have been brought" in the district court which stands to inherit the case; and (2) "whether, considering the convenience of parties and witnesses and the interest of justice, a transfer is appropriate." Oriska Ins. Co. v. Brown & Brown of Texas, Inc., 2005 WL 894912, at *4 (N.D.N.Y. April 8, 2005) (internal quotations and citation omitted). As to the first query, 28 U.S.C. § 1391(a)(1) and (2) make clear that plaintiff could have originally brought his action in the Southern District, and plaintiff does not argue otherwise. Thus, only the second inquiry requires the Court's examination.

In determining whether transfer is warranted "for the convenience of the parties and witnesses [and] in the interest of justice" under § 1404(a), courts generally consider several factors, including:

[(1)] the convenience of witnesses, [(2)] the location of relevant documents and the relative ease of access to sources of proof, [(3)] the convenience of the parties, [(4)] the locus of operative facts, [(5)] the availability of process to compel the attendance of unwilling witnesses, [(6)] the relative means of the parties, [(7)] the forum's familiarity with the governing law, [(8)] the weight accorded the plaintiff's choice of forum, and [(9)] trial efficiency and the interest of justice, based on the totality of the circumstances.

Wilshire Credit Corp. v. Barrett Capital Mgmt. Corp., 976 F.Supp. 174, 181 (W.D.N.Y. 1997) (citations omitted). "The moving party has the burden to establish a clear and convincing showing that a transfer is appropriate and that the motion should be granted." Matera v. Native Eyewear, Inc., 355 F.Supp.2d 680, 687 (E.D.N.Y. 2005) (citing Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir. 1950)). While a plaintiff's choice of forum is generally entitled to considerable weight, see Iragorri v. United Techs, Corp., 274 F.3d 65, 71 (2d Cir. 2001), the convenience of both party and non-party "witnesses is probably the single-most important factor in the analysis of whether transfer should be granted." Berman v. Informix Corp., 30 F.Supp.2d 653, 657 (S.D.N.Y. 1998) (citations omitted). With this in mind, the Court turns to apply the several factors.

A. Convenience of the Witnesses

Defendants submit that all of their witnesses, including their employees and non-party emergency medical personnel and medical staff--surgeons, nurses and emergency room personnel--from the Lenox Hill Hospital who attended to plaintiff after his injury, reside in the Southern District. See Dkt. No. 5, Scher Aff. at ¶ 5; Dkt. No. 6, Mem. of Law at 4 and 7; Dkt. No. 10, Scher Reply Aff. at ¶ 3. Plaintiff counters that the only eyewitnesses to his accident were his nephew, Kenneth Wagner, who resides in New York City, and Phillipe Walker, who resides in Banffshire, Scotland. See Dkt. No. 7, Sassani Aff. at ¶ 6. Plaintiff submits that his nephew is willing to travel to the Northern District to testify on his behalf, and that regardless of the outcome of this motion, Ms. Walker will need to travel a great distance if called upon to testify. See Dkt. No. 7, Sassani Aff. at ¶ 11. Plaintiff also notes that the physicians and other health care providers currently treating him are in the Northern District.

It appears that a greater number of witnesses reside in the Southern District, and thus a greater number of people would be inconvenienced if plaintiff's action were to remain in the Northern District. Plaintiff's nephew lives in New York City, and if Ms. Walker is to testify at trial, she would most likely fly directly to New York City as opposed to Syracuse. Moreover, on the record before it, the Court cannot conclude that plaintiff's physicians and other health care personnel would be any more inconvenienced by a transfer to the Southern District than the treating physicians and emergency personnel, who responded to plaintiff's injury in New York City, would be if plaintiff's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.