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Burgos v. United States

United States District Court, S.D. New York

June 27, 2017



          RONNIE ABRAMS, United States District Judge.

         Christopher 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.


         This 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.[2] 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.[3]

         While 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.


         "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 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).

         In 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, including:

(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).

         Plaintiff 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.

         The 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.").

         The 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).

         Furthermore, 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 ...

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