United States District Court, S.D. New York
MEMORANDUM OPINION & ORDER
ABRAMS, United States District Judge.
Burgos a/k/a Eric Burgos brings this medical malpractice
action against the United States of America and the Federal
Bureau of Prisons (together, the "Government")
under the Federal Tort Claims Act ("FTCA"). Before
the Court is the Government's motion to transfer the case
to the District of New Jersey. For the reasons that follow,
the motion is granted.
case concerns medical treatment that Plaintiff received while
he was incarcerated at the Federal Correctional Institution
in Fairton, New Jersey ("FCI Fairton").
See Am. Compl. ¶¶ 8-17. While he was an
inmate there, Plaintiff fractured his left scaphoid bone
during a game of baseball. Id. ¶ 9. On or about
December 12, 2014, Plaintiff underwent surgery to repair the
injury. Id. ¶¶ 9-10. During the surgery,
metal plates and screws were implanted into his left wrist.
Id. ¶ 10. Plaintiff had a serious allergic
reaction to the metals in the implants, which caused him to
develop urticaria, angioedema, and contact dermatitis over
most of his body. Id. ¶¶ 12-13. Plaintiff
alleges that the Government never tested him to determine
whether he was allergic to the metals, that the Government
failed to have him sign an informed consent prior to the
surgery, and that the Government provided inadequate
post-operative care by failing to properly address the
allergic reaction. Id. ¶¶ 11,
14(2)-16. Plaintiff left FCI Fairton on June 30,
2015. Angud Decl. ¶ 5 & Ex. A. He currently resides
in the Bronx, Am. Compl. ¶ 5, and in November 2016, he
underwent a second surgery to remove the implants from his
wrist at Bronx-Lebanon Hospital Center, id. ¶
17; Laufer Decl. Ex. A; see also Id. Ex. B
("Burgos Aff."), at 3.
Plaintiff was incarcerated at FCI Fairton, he received
medical treatment from in-house clinicians and off-site
specialists in the local community. Angud Decl. ¶¶
6-7. All of his off-site care appears to have been provided
in New Jersey. Prior to the 2014 surgery, Plaintiff was seen
by an orthopedist at Cohanzick Orthopedics, P.A. in
Bridgeton, New Jersey. See Id. Ex. C, at 15, 111-14;
Teleanu Decl. ¶ 2 & Ex. A. The surgery itself was
performed by Dr. Sean Bidic, whom Plaintiff saw before and
several times after the surgery and whose office is located
in Vineland, New Jersey. See Angud Decl. Ex. C, at
1, 10-11, 80-95, 100-03; id. Ex. D, at 2-4, 96,
148-51, 190-92, 207-08, 217-20, 223-24; Teleanu Decl. ¶
4 & Ex. C. After the surgery, Plaintiff also saw Dr.
Peter Sarkos, an orthopedist at Premier Orthopaedic
Associates (which has offices in Vineland, Elmer, Mullica
Hill, and Woolwich, New Jersey), and Dr. Robert Coifman, an
allergist at Allergy & Asthma of South Jersey, P.A.
(which has offices in Millville and Galloway, New Jersey).
See Angud Decl. Ex. D, at 29-31, 154-65, 173-89,
213-14; Teleanu Decl. ¶¶ 6, 8 & Exs. E, G. The
off-site providers who treated Plaintiff are not Government
employees; they provide specialty care to FCI Fairton inmates
pursuant to a contract between the Bureau of Prisons and
NaphCare, Inc., a non-party entity that partners with local
clinicians. Angud Decl. ¶ 7.
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." 28 U.S.C. § 1404(a). The party
requesting transfer bears the burden of establishing by clear
and convincing evidence that transfer is warranted. N.Y.
Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc., 599
F.3d 102, 114 (2d Cir. 2010). Nevertheless, "[d]istrict
courts have broad discretion in making determinations of
convenience under Section 1404(a) and notions of convenience
and fairness are considered on a case-by-case basis."
D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106
(2d Cir. 2006).
deciding a motion to transfer venue, the inquiry is two-fold.
"First, the court must determine whether the action
could have been brought in the proposed transferee
forum." Freeplay Music, LLC v. Gibson
Brands, Inc., 195 F.Supp.3d 613, 616 (S.D.N.Y. 2016).
Second, "the court must . . . determine whether transfer
is appropriate." Id. In determining whether
transfer is appropriate, courts consider several factors,
(1) the locus of the operative facts; (2) convenience of the
parties; (3) the convenience of the witnesses; (4) the
location of relevant documents and relative ease of proof;
(5) the relative means of the parties; (6) the availability
of process to compel attendance of unwilling witnesses; (7) a
forum's familiarity with the governing law; (8) the
weight accorded to plaintiffs choice of forum; and (9) trial
efficiency and the interests of justice based on the totality
of the circumstances.
Am. Eagle Outfitters, Inc. v. Tala Bros. Corp., 457
F.Supp.2d 474, 477 (S.D.N.Y. 2006). "The factors do not
comprise an exclusive list, and they should not be applied
mechanically or formulaically but rather to guide the
Court's exercise of discretion." Matthews v.
Cuomo, No. 16-CV-4210 (NRB), 2017 WL 2266979, at *2
(S.D.N.Y. May 1, 2017).
does not dispute that this case could have been brought in
the District of New Jersey. Thus, the only question before
the Court is whether transfer is appropriate.
Court concludes that it is. "[L]ittle or nothing
connects this case to New York other than Plaintiffs
domicile, " Larca v. United States, No. 1
l-CV-3952 (JMF), 2012 WL 6720910, at *3 (S.D.N.Y. Dec. 16,
2012), and cases are routinely transferred where, as here,
"the principal events occurred in another district and
the principal witnesses are located there, "
Guccione v. Harrah's Mktg. Servs. Corp., No.
06-CV-4361 (PKL), 2009 WL 2337995, at *8 (S.D.N.Y. July 29,
2009); see also Liberty Mut. Ins. Co. v. Fairbanks
Co., 17 F.Supp.3d 385, 396 (S.D.N.Y. 2014) ("The
convenience of the witnesses and the locus of the operative
facts of the case are typically regarded as primary factors
in the balance-of-convenience inquiry.").
locus of operative facts is New Jersey. Although Plaintiff
has received medical treatment in this District, the
"acts or omissions for which Defendants could be held
liable occurred" in New Jersey. Solar v.
Annetts, 707 F.Supp.2d 437, 442 (S.D.N.Y. 2010); see
also Donde v. Romano, No. 09-CV-4407 (DLI), 2010 WL
3173321, at *2 (E.D.N.Y. Aug. 10, 2010) (holding that the
locus of operative facts was where the alleged misconduct
occurred, not where the plaintiff received subsequent medical
treatment); Guccione, 2009 WL 2337995, at *8 (same).
nearly all of the key witnesses are located in New Jersey.
When considering the convenience of witnesses, courts look at
"the materiality, nature, and quality of each witness,
in addition to the number of witnesses in each District,
" Guccione, 2009 WL 2337995, at *7, and
generally accord greater weight to the convenience of
non-parties, Capitol Records, LLC v. VideoEgg, Inc.,611 F.Supp.2d 349, 366 (S.D.N.Y. 2009). Defendants have
identified eight individuals who provided relevant medical
care to Plaintiff at FCI Fairton and four who provided care
off-site. Of these twelve individuals, ten are in New Jersey,
and none are in the Southern District of New York.
See Teleanu Decl. ¶¶ 2, 4, 6, 8, 10 &
Exs. A, C, E, G, I. Plaintiff is correct that not all of
these witnesses are likely to provide critical testimony.
See PL's Opp. at 7. But the fact remains that
Plaintiff is the only individual in this District who
witnessed the acts or omissions that will determine
liability. Nearly every other liability witness-including the
non-party off-site providers whose care is at the very heart
of this case-is located in southern New Jersey. To the extent
Plaintiff is ...