The opinion of the court was delivered by: Denise Cote, District Judge
The City of New York ("City") and two defendant police officers have moved pursuant to 28 U.S.C. § 1404 to transfer this action to the Eastern District of New York. The plaintiff objects. For the following reasons, the motion to transfer is granted.
A recent decision by the United States Court of Appeals for the Second Circuit regarding the impact of the "forum rule" in making an award of attorney's fees has created an incentive to file all civil rights litigation against the City in the Southern District of New York. See Simmons v. N.Y. City Transit Auth., 575 F.3d 170, 175 (2d Cir. 2009). Where the events underlying the litigation arise and the plaintiff resides in the Eastern District of New York, the plaintiff's decision to file the lawsuit in the Southern District of New York likely reflects impermissible forum shopping and, in the absence of countervailing factors, must be rejected.
The plaintiff, a resident of Brooklyn, alleges that on August 9, 2009, he was illegally arrested by defendants Quiroz and Ortiz in the vicinity of Nostrand Avenue and Carroll Street in Brooklyn, New York. Quiroz and Ortiz were and still are assigned to the 71st Precinct of the New York City Police Department ("NYPD"), which is also located in Brooklyn. The City is a municipal corporation organized under the laws of the State of New York and operates the NYPD in all five boroughs of the City, two of which fall within the Southern District of New York and three of which fall within the Eastern District of New York. Brooklyn is in the Eastern District of New York.
According to the complaint, Quiroz, dressed in plain clothes, approached and asked the plaintiff and the plaintiff's friend for identification. A third individual, named Reggie, approached them and asked what was going on, and was subsequently arrested. Reggie then urged others to take photographs of his arrest. The plaintiff used his cellular telephone to take pictures of Reggie's arrest and was himself arrested. The arrest report tells a different story. It states that the plaintiff was stopped for questioning in a robbery investigation. According to the report, the plaintiff argued with Quiroz, who then informed the plaintiff that he was under arrest, at which point the plaintiff yelled to a gathering crowd that the crowd should take pictures of the arrest.
The plaintiff was transported to the 71st precinct station house, where he alleges that he was kept in a cell for approximately five hours. The Brooklyn District Attorney's office ultimately declined to prosecute the case, stating in a Declined Prosecution Report that the plaintiff "has a freedom of speech and there is nothing inappropriate with telling a crowd to take pictures of an arrest. Insufficient evidence [exists] to prosecute for disorderly conduct."
On November 20, the plaintiff filed a complaint in this district seeking relief under 42 U.S.C. §§ 1983 and 1988, and the First, Fourth, Fifth and Fourteenth Amendments to the Constitution of the United States. The plaintiff contends that the defendants violated his constitutional rights by illegally arresting him and falsely imprisoning him. On January 15, 2010, the defendants moved to transfer this case to the Eastern District of New York.
The standard for a motion to transfer venue pursuant to 28 U.S.C. § 1404 is well established. Section 1404 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." 28 U.S.C. § 1404(a). A district court has broad discretion to grant or deny motions to transfer and makes its determination based on "notions of convenience and fairness on a case-by-case basis." D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006); see also Saccoccio v. Relin, Goldstein & Crane, LLP, No. 06 Civ. 14351(DLC), 2007 WL 1334970, at *1 (S.D.N.Y. May 7, 2007). The movant bears the burden of establishing that transfer is warranted. Saccoccio, 2007 WL 1334970, at *1. If the transferee court also has jurisdiction over the case, the court must determine whether, considering the "convenience of parties and witnesses" and the "interest of justice," a transfer is appropriate. Id. (citation omitted). The factors a court considers in making that determination include:
(1) the plaintiff's choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, [and] (7) the relative means of the parties.
D.H. Blair, 462 F.3d at 106-07 (citation omitted). A court may also consider "the forum's familiarity with the governing law" and "trial efficiency and the interest of justice, based on the totality of the circumstances." Berman v. Informix Corp., 30 F.Supp.2d 653, 657 (S.D.N.Y. 1998). The location of counsel is not ordinarily entitled to any weight in this analysis. Frobes v. Stryker Corp., No. 08 Civ. 1897(NG), 2009 WL 3387037, at *2 (E.D.N.Y. Aug. 5, 2009); Azari v. B&H Photo Video, No. 06 Civ. 7825(DLC), 2007 WL 13101, at *3 (S.D.N.Y. Jan. 3, 2007).
Ordinarily, the plaintiff's choice of forum should not be disturbed "unless the defendants make a clear and convincing showing that the balance of convenience favors defendants' choice." Berman, 30 F.Supp.2d at 656 (citation omitted). The plaintiff's choice is entitled to less deference, however, where the forum is not the plaintiff's home and the cause of action did not arise in the forum. See Iragorri v. United Tech. Co., 274 F.3d 65, 71 (2d Cir. 2001) (forum non conveniens analysis); see also Amick v. Am. Exp. Travel Related Servs. Co., No. 09 Civ. 9780(AKH), 2010 WL 307579, at *2 (S.D.N.Y. Jan. 26, 2010) (§ 1404 analysis); AIG Fin. Prods. Corp. v. Pub. Util. Dist. No. 1, --- F.Supp.2d ----, No. 09 Civ. 6795, 2009 WL 4823895(LMM), at *11 (S.D.N.Y. Dec. 15, 2009) (same); Erick Van Egeraat Associated Architects B.V. v. NBBJ LLC, No. 08 Civ. 7873(JSR), 2009 WL 1209020, at *5 (S.D.N.Y. Apr. 29, 2009) (same).
The plaintiff does not dispute that the Eastern District of New York would have jurisdiction over this action. The defendants argue that venue is also more proper in the Eastern District under 28 U.S.C. § 1391(b), which provides venue for claims under 42 U.S.C. § 1983, because the defendant police officers were and are assigned to a precinct in Brooklyn, the plaintiff is a ...