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Bini S. Park v. John Mcgowan

December 16, 2011

BINI S. PARK, PLAINTIFF,
v.
JOHN MCGOWAN, WENDY MORRIS AND PATRICK J. ABBOTT, DEFENDANTS.



The opinion of the court was delivered by: John Gleeson, United States District Judge:

MEMORANDUM AND ORDER

Defendants John McGowan and Wendy Morris removed this case from the Supreme Court of New York, Bronx County. After I denied Plaintiff Bini S. Park's motion to remand the case to state court, McGowan and Morris moved to transfer this case to the United States District Court for the Southern District of New York. They seek transfer on the grounds that should have removed the case to that court and it is a more convenient forum. For the reasons set forth below, the motion to transfer is denied.

BACKGROUND

Park commenced this case in state court in Bronx County, New York, seeking to recover damages for injuries he allegedly sustained during a three-car accident in Manhattan. Park is a New Jersey domiciliary, McGowan and Morris are Canadian domiciliaries, and Abbott, who has not appeared in this action, is a New York domiciliary. McGowan and Morris removed the action to this Court, asserting there is federal subject-matter jurisdiction pursuant to 28 U.S.C. § 1332(a)(2) due to the diverse citizenship of the parties.

Park moved to remand the case to state court, asserting several non-jurisdictional defects in the removal. Although I agreed with Park that the removal was procedurally defective, I denied the motion to remand as untimely on October 19, 2011.*fn1 See Park v. McGowan, No. 11-CV-3454 (JG) (CLP), 2011 WL 4963759, at *2, *6--7 (E.D.N.Y. Oct. 19, 2011).

In denying the motion to remand, I noted that McGowan and Morris had removed this case to the wrong federal court. Cases removed from state courts located in Bronx County should be removed to the United States District Court for the Southern District of New York. Id. at *6. However, since removal to the wrong federal court was a defect in venue, I concluded that Park had waived any challenge to the removal on this ground by failing to timely raise it. See id. at *6--7.

The day after I denied the remand motion, McGowan and Morris filed a letter requesting that I transfer the case to the Southern District of New York and, in particular, that the case be heard in White Plains. Park objected to the requested transfer, and I directed the parties to submit briefs addressing whether transfer to the Southern District was warranted.

DISCUSSION

Several statutory provisions and procedural rules authorize one federal court to transfer a case to another. McGowan and Morris invoke two of them. The first authorizes transfer, as an alternative to dismissal, in order to correct a defect in venue. See 28 U.S.C. § 1406(a) ("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."). The second authorizes transfer, even if there are no defects in venue or jurisdiction, to a district court that is a more convenient forum.

28 U.S.C. § 1404(a) ("For 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."). The propriety of transfer pursuant to each provision is addressed below.

A. Transfer Pursuant to § 1406(a)

As noted above, if a party commences suit in an improper venue, § 1406(a) authorizes, in appropriate circumstances, a transfer to a proper federal court as an alternative to dismissal. Courts have held that a case removed to the wrong federal court from a state court may also be transferred under § 1406(a) instead of remanded. See, e.g., Corporate Visions, Inc. v. Sterling Promotional Corp., No. 00-CV-4663 (FB), 2000 WL 33217350, at *1 (E.D.N.Y. Aug. 16, 2000); Mortensen v. Wheel Horse Prods., Inc., 772 F. Supp. 85, 89--91 (N.D.N.Y. 1991).

The parties do not dispute that, under 28 U.S.C. § 1441(a), this case was removed to the wrong federal court. Section 1441(a) authorizes removal of a state court action "to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a) (emphasis added). As I explained in denying Park's remand motion:

According to the notice of removal and the state court pleadings, this action was removed from state court in Bronx County. The removal to this Court was therefore "forbidden, as a case that may be removed from a state court in Bronx County must be removed to the district in ...


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