The opinion of the court was delivered by: Robert P. Patterson, Jr., U.S.D.J.
The parties of this wrongful death action are in dispute as to which state's choice of law analysis and substantive law of damages should apply to the claim. On June 1, 2007, Plaintiffs filed a Motion for Application of Connecticut Law, asserting that, since the case was transferred from the District of Connecticut pursuant to 28 U.S.C. § 1404(a), the Connecticut choice of law rules must apply, and Connecticut substantive law of damages should apply to the claims. On July 2, 2007, Defendant responded with an Affirmation in Opposition and a Memorandum of Law in Opposition to Plaintiff's Motion for the Application of Connecticut Law, in which Defendant asserted improper venue in the District of Connecticut and argued that the application of New York choice of law rules is proper and further that, applying those rules, New York substantive law would apply. Plaintiffs' motion is denied.
Decedent Robert Forlastro was killed after being struck by a large utility vehicle, driven by Defendant James Collins, in a deli parking lot in Carmel, NY. (Compl. ¶¶ 1, 2, 4, 6.) Mr. Forlastro was a resident of Danbury, Connecticut, while Mr. Collins was and is a resident of Brewster, New York.*fn1 (Id. at "Jurisdictional Statement.") Mr. Forlastro's employer was a waste disposal company located and operating in Danbury, Connecticut. (Pls.' Mem. at 1.) Mr. Collins was an employee of New York State Electric and Gas Corp. (Compl. ¶ 1.) On the morning of the accident, Mr. Forlastro was assigned to work in Carmel, New York. (Id.) After his death, Mr. Forlastro's parents petitioned to have Mr. Forlastro's estate opened in Connecticut for the purpose of seeking a wrongful death claim. (Pls.' Mem. at 2.) Additionally, service of process on Mr. Collins was effected in Connecticut. (Id.)
Plaintiffs brought this claim against Defendant in the United States District Court for the District of Connecticut on October 2, 2006.*fn2 The Complaint was filed by Mr. Forlastro's parents, as Co-Administrators of his estate, alleging a cause of action for negligence. On February 23, 2007, the parties conferred for a "planning meeting," as required by Federal Rules of Civil Procedure 16(b) and 26(f), and pursuant to Local Civil Rule 26(e) of the District of Connecticut, and filed a subsequent report to the district court, dated February 27, 2007, stating:
The Plaintiffs contend that this Court has jurisdiction over the claims presented in this action pursuant to 28 U.S.C. § 1332. The Defendant denies the Plaintiff's allegation and intends to contest the Plaintiff's claim by filing a Motion to Dismiss and/or Motion to Transfer on the basis that venue in this district is improper pursuant to 28 U.S.C. § 1391(a). (Report of Parties' Planning Meeting ("Report") 2.) A stipulation to transfer the action to the Southern District of New York pursuant to § 1404(b) was executed by attorneys for both the Plaintiffs and Defendant and converted to a transfer pursuant to § 1404(a) by Judge Chatigny on April 13, 2007. Defendant filed his answer on April 27, 2007, in the Southern District of New York, contesting the propriety of venue in the District Court of Connecticut.
On June 1, 2007, Plaintiffs filed a Motion for Application of Connecticut Law in this Court, asserting that, based on the § 1404(a) transfer and the Supreme Court cases of Farens v. John Deere Co., 494 U.S. 516 (1990) and Van Dusen v. Barrack, 376 U.S. 612 (1964), the Connecticut choice of law analysis must apply, and under that analysis, Connecticut substantive law should apply to the claims. On July 2, 2007, Defendant responded with an Affirmation in Opposition and a Memorandum of Law in Opposition to Plaintiffs' Motion for the Application of Connecticut Law, in which Defendant argued that because venue was improper in the District of Connecticut, New York choice of law rules apply and, further, that under that analysis, New York substantive law would apply. Finally, Plaintiffs, on July 9, 2007, filed a Reply Memorandum in Support of Motion for Application of Connecticut Law, responding to the Defendant's challenge of improper venue in the transferor court.
A. Transfers Pursuant to 28 U.S.C. § 1404(a)
A federal court sitting in diversity must apply the choice of law analysis of the state where the district court sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). The Supreme Court has held, however, that "following a transfer under § 1404(a) the transferee court must follow the choice of law rules that prevailed in the transferor court." Ferens, 494 U.S. at 519; see Van Dusen, 376 U.S. at 639. Requiring the transferee court to apply the law of the transferor court protects the parties' expectations of the relevant and applicable law and the plaintiff's right to select the forum in which to adjudicate the claim, while allowing all parties to have their claims potentially heard in a convenient place. See Farens, 494 U.S. at 529-30.
Critically, the rule of Van Dusen and Farens is limited to cases that could have been maintained in their original forum. Van Dusen, 376 U.S. at 633-34 ("There is nothing, however, in the language or policy of § 1404(a) to justify its use by defendants to defeat the advantages accruing to plaintiffs who have chosen a forum which, although it was inconvenient, was a proper venue.") (emphasis added); Farens, 494 U.S., at 525 (stating that § 1404(a) "exists to eliminate inconvenience without altering permissible choices under the venue statutes"); see also Levy v. Pyramid Co. of Ithaca, 687 F. Supp. 48, 52 (N.D.N.Y. 1988) (holding that "to remove the incentive to forum shop, several circuits have held that the Van Dusen rule applies only if the action could have been maintained in the original forum") (internal quotes omitted) aff'd, 871 F.2d 9, 10 (2d Cir. 1989). "[W]hen a transferor court has not ruled on the propriety of venue, the transferee court must determine whether venue would have been proper in the transferor court in order to decide which forum state's law will apply under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)]."Levy, 687 F. Supp. at 52 (citations omitted);see also Martin v. Stokes, 623 F.2d 469, 474-75 (6th Cir. 1980); Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1107 (5th Cir. 1981); Roofing & Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 992-93 (11th Cir. 1982). If a transfer is the result of, or incident to, the initial forum being an improper venue, the transferee court must apply the choice of law analysis of the state in which the transferee court sits, as required by Klaxon, 313 U.S. at 496. Von Grabe v. Ziff Davis Publ'g Co., 1995 WL 688912, at *4 (S.D.N.Y. Nov. 20, 1995).
The present case was transferred from the District of Connecticut to the Southern District of New York as a result of an order by Judge Chatigny, approving a stipulation of transfer pursuant ...