United States District Court, S.D. New York
OPINION AND ORDER
HENRY PITMAN, Magistrate Judge.
By notice of motion filed on or about August 19, 2013 (Docket Item 21), defendants the Metropolitan Transportation Authority (the "MTA"), the Long Island Rail Road (the "LIRR"), and the County of Suffolk (collectively, the "Movants" or "Movant Defendants") move for an order transferring this action to the Eastern District of New York, pursuant to 28 U.S.C. §§ 1404(a) and 1406(a). The remaining defendant the Town of Islip has not filed any papers in connection with the present motion. Plaintiff DeSean Allen has not filed opposing papers.
For the reasons set forth below, the motion to transfer is granted.
A. Factual Background
Plaintiff's claim arises from a trip-and-fall incident that occurred on a sidewalk adjacent to the Deer Park LIRR Station in West Brentwood, New York on the morning of July 28, 2012. Plaintiff alleges that on the date of the accident, he drove from Pennsylvania where he resides to the parking lot of the Deer Park LIRR Station to attend a truck driver training program (Tr. of Deposition of DeSean Allen, dated January 14, 2014 ("Allen Depo."), at 3, 7, annexed as Exhibit B to the Declaration of Christopher A. Jeffreys, Assistant County of Suffolk Attorney, dated August 14, 2013 ("Jeffreys Decl.") (Docket Item 22)). Shortly before 9:00 a.m., because it was raining, the course instructor directed plaintiff and the other attendants to register for the class inside the passenger area of the Station (Allen Depo. at 12). Plaintiff moved his car from its original parking spot and drove himself and three classmates closer to the passenger area of the train station (Allen Depo. at 12, 17). Plaintiff parked his vehicle parallel to a sidewalk (Allen Depo. at 15).
Plaintiff exited his vehicle and intended to walk around the rear of his car (Allen Depo. at 19-20). Plaintiff stepped onto the sidewalk that was adjacent to his car with his right foot, and as he brought his left foot up, plaintiff's right ankle twisted, causing him to fall (Allen Depo. at 23-24). Plaintiff alleges that the sidewalk he stepped onto was defective; specifically, he contends that the sidewalk was uneven, and that he stepped into a section of the sidewalk that was depressed two to three inches below the remainder of the sidewalk (Notice of Claim, dated September 6, 2012, ¶ 3, annexed as Exhibit A to Jeffreys Decl. (Docket Item 22)). The presence of a puddle in the depressed area of the sidewalk obscured the defective area (Notice of Claim ¶ 3).
The sole eye-witness to the accident was plaintiff's classmate, Kamar (Allen Depo. at 17, 26). Plaintiff testified that he has not been in touch with Kamar since the accident and that it was his belief that Kamar resided somewhere in Bronx County, New York (Allen Depo. at 18).
Immediately following the accident, plaintiff was taken by ambulance to a nearby emergency room at the Good Samaritan Hospital Medical Center (Allen Depo. at 26-28). The hospital took X-rays of plaintiff's ankle area, wrapped it and provided plaintiff with painkillers (Allen Depo. at 28). Plaintiff testified that he returned home to Pennsylvania shortly thereafter, and visited the Pocono Medical Center in Pennsylvania, where he was diagnosed and treated for a torn Achilles tendon (Allen Depo. at 32). Plaintiff underwent surgery on his right ankle, which required a muscle graft (Allen Depo. at 32-33; Complaint ¶ 36). He also underwent physical therapy for approximately four to five weeks at Mountain Valley Orthopedics in Pennsylvania and, as of January 2014, expected to have to continue the physical therapy exercises in his home (Allen Depo. at 44, 46-47).
Plaintiff testified that he has not returned to work since the accident (Allen Depo. at 41). He also cannot engage in certain physical activities that he was able to perform prior to the injury, such as running and jumping (Allen Depo. at 46).
B. Procedural Background
Plaintiff filed a Notice of Claim on September 6, 2012 against the MTA, the LIRR, the County of Suffolk, the Town of Islip and the Town of Babylon, pursuant to New York General Municipal Law Section 50-i (Ex. A to Jeffreys Decl.). Pursuant to New York General Municipal Law Section 50-h, defendants County of Suffolk and Town of Islip requested an oral examination of plaintiff (Complaint ¶ 29). Plaintiff appeared for the 50-h examination on January 14, 2014 (Ex. B to Jeffreys Decl.). It appears that the remaining defendants did not seek a deposition and that none of the defendants requested a physical examination of the plaintiff (Complaint ¶¶ 30, 31).
Plaintiff filed this lawsuit in the Southern District of New York against the MTA, the LIRR, the County of Suffolk, the Town of Islip and the Town of Babylon on May 8, 2013. Plaintiff alleges that venue in this district is proper because the MTA's principal place of business is located within this district (Complaint ¶ 24). Plaintiff also alleges that each named defendant owned, maintained and operated the sidewalk on which the accident occurred (Complaint ¶¶ 3-21). Plaintiff states that defendants were reckless, careless and negligent in their failure to maintain and repair the sidewalk despite sufficient prior notice (Complaint ¶ 35). As a result of defendants' inactions, plaintiff complains of permanent and continuing physical and emotional injuries (Complaint ¶ 36).
The Town of Islip answered plaintiff's complaint on May 29, 2013, asserting general denials of the allegations in the complaint (Docket Item 4). The Town of Islip also asserted cross-claims against the remaining defendants for contribution with respect to any award of damages (Docket Item 4 ¶ 17). On June 13, 2013, the Town of Babylon answered, also asserting general denials and cross-claims against the remaining defendants (Docket Item 11). The Movant Defendants answered plaintiff's complaint on July 12, 2013 (Docket Item 12). In their answer, they denied most of plaintiff's allegations, other than to admit that the County of Suffolk "performed management and operational services for the Deer Park Train Station" (Docket Item 12 ¶¶ 5, 6), asserted improper and/or inconvenient venue as an affirmative defense and listed the Eastern District of New York as the proper venue (¶ 15) and asserted cross-claims against the Towns of Islip and Babylon (¶ 16).
I held a conference on July 16, 2013, at which I set a schedule, including deadlines for a motion to transfer venue (Scheduling Order, dated July 16, 2013 (Docket Item 14), at 1). The parties subsequently entered into a stipulation on October 11, 2013, discontinuing the lawsuit against the Town of Babylon only (Docket Item 27). The Honorable J. Paul Oetken, United States District Judge, approved the stipulation on November 25, 2013 (Docket Item 32).
C. The Present Motion
The Movant Defendants contend that the Central Islip courthouse of the Eastern District of New York is both the more convenient and proper venue for this lawsuit, under 28 U.S.C. §§ 1404(a) and 1406 (Memorandum of Law, dated August 14, 2013 (Docket Item 23)). The Movants argue that the Eastern District of New York is the more convenient venue because the principal events at issue in this lawsuit all occurred there and certain key witnesses are located in that district (Docket Item 23 at 4). They also assert that venue in this district is improper because "the sole defendant within the Southern District of New York [i.e., the MTA] is actually not involved in this case at all" (Docket Item 23 at 7).
On August 27, 2013, I granted plaintiff's application for an extension of time to oppose the motion to transfer (Endorsed Letter, dated August 27, 2013 (Docket Item 24)). Thereafter, plaintiff requested a second extension, which I granted on October 2, 2013 (Docket Item 26). Plaintiff's third request was granted on November 8, 2013 (Docket Item 29), and the fourth on November 22, 2013, which extended plaintiff's deadline to file an opposition to December 6, 2013 (Docket Item 31). Despite these multiple extensions, as noted above, plaintiff has failed to file any opposition to the motion to transfer.
Pursuant to 28 U.S.C. § 1404(a), "[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 or to any district or division to which all parties have consented." "The determination whether to grant a change of venue requires a balancing of conveniences, which is left to the sound discretion of the district court.'" Forjone v. California , 425 F.Appx. 73, 74 (2d Cir. 2011), quoting Filmline (Cross-Cnty.) Prods., Inc. v. United Artists Corp. , 865 F.2d 513, 520 (2d Cir. 1989); see Red Bull Assocs. v. Best W. Intern., Inc. , 862 F.2d 963, 967 (2d Cir. 1988); Dunston v. N.Y. City Police Dep't, 10 Civ. 8117 (RJS), 2010 WL 5065903 at *1 (S.D.N.Y. Dec. 7, 2010) (Sullivan, D.J.). Moreover, "[t]he moving party carries the burden of making out a ...