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Avent v. Herbert

March 31, 2009

RUBEN AVENT, 01-A-5796, PLAINTIFF,
v.
HERBERT, ET AL. DEFENDANTS.



The opinion of the court was delivered by: H. Kenneth Schroeder, Jr. United States Magistrate Judge

DECISION AND ORDER

By Summary Order entered January 19, 2006, the Court of Appeals for the Second Circuit vacated the dismissal of plaintiff's claim of denial of access to the courts during his incarceration at the Attica Correctional Facility ("Attica"), with instructions to afford plaintiff an opportunity to amend his complaint to state an actionable claim of denial of access to the courts and to allege the personal involvement of defendants Goord and Conway. Dkt. #6.

In addition to his original claim of denial of access to the court during his incarceration at Attica in 2002, plaintiff's amended complaint also alleges denial of access to the court during his incarceration at the Auburn Correctional Facility ("Auburn"), in 2005 and 2006, as well as retaliation for his complaints regarding that denial. Dkt. #10, ¶¶ 58-102. Auburn is located in Cayuga County, which is in the Northern District of New York. 28 U.S.C. § 112(a).

DISCUSSION AND ANALYSIS

Defendants Smith, Graham, Bellnier, Stallone, Sharples, Lupo, Parmiter, Connors and Shorr, employees at the Auburn ("Auburn defendants"), move to sever the claims against them pursuant to Rules 20 and 21 of the Federal Rules of Civil Procedure and transfer those claims to the Northern District of New York pursuant to 28 U.S.C. §§ 1391 and 1404. Dkt. ##16 & 19.

Plaintiff failed to respond to defendants' motions as directed. Dkt. #21.

Severance

Rule 20 of the Federal Rules of Civil Procedure provides that: Persons . . . may be joined in one action as defendants if:

(A) any right to relief is asserted against them jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and

(B) any question of law or fact common to all defendants will arise in the action.

Rule 21 of the Federal Rules of Civil Procedure provides that

Misjoinder of parties is not a ground for dismissing an action. On motion or on its own, the court may at any time, on just terms, add or drop a party. The court may also sever any claim against a party. "The decision whether to sever a party or claim from an action is within the broad discretion of the district court." German v. Federal Home Loan Mortgage Corp., 896 F. Supp. 1385, 1400 (S.D.N.Y. 1995). In deciding whether severance is appropriate, courts generally consider: (1) whether the issues sought to be tried separately are significantly different from one another; (2) whether the severable issues require the testimony of different witnesses and different documentary proof; (3) whether the party opposing the severance will be prejudiced if it is granted; and (4) whether the party requesting the severance will be prejudiced if it is not granted. Id.

Venue

28 U.S.C. ยง 1404(a) provides ...


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