United States District Court, W.D. New York
GRIGORIY N. VOROBEY and VERA VOROBEY, Plaintiffs,
CLEVELAND BROTHERS EQUIPMENT CO., INC. and KEITH W. BRYSON, Defendants.
DECISION AND ORDER
KENNETH SCHROEDER, JR. United States Magistrate Judge
case was referred to the undersigned by the Hon. Lawrence J.
Vilardo, in accordance with 28 U.S.C. § 636(b)(1)(A),
for all pretrial matters. Dkt. #3.
filed this personal injury action in New York State Supreme
Court, County of Erie, following a multi-vehicle accident
with fatalities in Tioga County, Pennsylvania on August 3,
2016. Dkt. #1. The action was removed to this Court based on
diversity jurisdiction. Dkt. #1.
before the Court is defendants' motion to transfer venue
to the Middle District of Pennsylvania. Dkt. #4. In support
of the motion, defendants argue that this action could have
been commenced in the Middle District of Pennsylvania, given
that defendants are subject to personal jurisdiction there
and there is complete diversity of citizenship between the
parties and a sufficient amount in controversy. Dkt. #6.
Cleveland Brothers Equipment Company is incorporated in
Delaware with its principal place of business located in
Murraysville, Pennsylvania and Keith Bryson is a resident of
Watsontown, Pennsylvania. Dkt. #1, p.2 & Dkt. #5, pp.2-3.
Moreover, defendants argue that transfer of this action to
the Middle District of Pennsylvania would promote convenience
and justice because the accident occurred there and the
witnesses and the state police and emergency personnel who
responded to the accident reside there. Dkt. #6.
Specifically, defendants note that thirteen witnesses have
been deposed in related state court actions in Pennsylvania,
all of whom, with the exception of Mr. Vorobey, reside and/or
work within the jurisdiction of the Middle District of
Pennsylvania. Dkt. #5, ¶ 14. Defendants argue that they
would be unable to secure the testimony of these witnesses in
this action if venue is not transferred. Dkt. #6.
Furthermore, defendants argue that the applicable law is that
of Pennsylvania. Dkt. #6. Finally, defendants note that the
Western District of New York has one of the most congested
civil dockets in the nation, with a median time from filing
to trial of 66.3 months, as compared to 25.5 months in the
Middle District of Pennsylvania. Dkt. #6.
opposition to the motion, plaintiffs argue that liability is
not disputed in this action and that the only genuine issue
to be resolved is the appropriate amount of damages, an issue
which will be decided by testimony of Mr. Vorobey's
medical providers, plaintiffs, and their family members, all
of whom reside in this district. Dkt. #8. Counsel argues that
plaintiffs have limited means while defendants are
represented by assigned insurance defense counsel who can
litigate this matter in any venue. Dkt. #8. As evidence of
their belief that liability is not disputed, plaintiffs filed
a motion for summary judgement as to liability (Dkt. #9),
which has been stayed pending resolution of the motion to
transfer venue. Dkt. #16.
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. In assessing
whether such transfer is appropriate, district courts engage
in a two-part inquiry: (1) whether an action might have been
brought in the proposed forum, and if so, (2) whether
transfer to that forum promotes convenience and justice. Ward
v. Stewart, 133 F.Supp.3d 455, 460 (N.D.N.Y. 2015).
respect to the first part of the inquiry, the court must
determine whether the defendants are subject to personal
jurisdiction in that forum and whether venue would be proper
there. Id. As defendants are residents of the Middle
District of Pennsylvania and the alleged tort occurred within
the Middle District of Pennsylvania, the action could have
been commenced in the Middle District of Pennsylvania.
the second part of the inquiry, the court should weigh the
following factors: (1) plaintiffs' choice of forum; (2)
convenience of the witnesses; (3) location of relevant
documents and ease of access to evidence; (4) convenience of
the parties; (5) locus of operative facts; (6) availability
of process to compel attendance of unwilling witnesses; (7)
relative means of the parties; (8) proposed forum's
familiarity with the governing law; and (9) trial efficiency
and the interests of justice. Id. at 461. Although
there is no strict formula for the application of these
factors, and no single factor is determinative, the movant
bears the burden of establishing the propriety of the
transfer. Id. In the absence of a clear and
convincing showing that the balance of factors favors the
proposed forum, the plaintiffs' choice of forum will not
be disturbed. Id.
plaintiffs' choice of forum is presumptively entitled to
substantial deference. Id. This presumption is even
stronger where, as here, the chosen forum is also
plaintiffs' home. Id. at 462. However, the
weight ordinarily afforded this factor should be somewhat
diminished where, as here, the operative facts underlying the
lawsuit have little or no connection to the forum chosen by
plaintiffs. Id. In this case, all of the factual
witnesses (with the exception of Mr. Vorobey), reside in the
Middle District of Pennsylvania where the accident occurred
and evidence collected from the accident scene was analyzed.
Given the distance between the location of the accident and
this district, none of those witnesses would be subject to
subpoena in this court. Moreover, the applicable law is
Pennsylvania common law, the nuances of which the Middle
District of Pennsylvania is clearly more familiar. In
addition, the Middle District of Pennsylvania is in a
superior position to provide the parties with a swift
resolution of these claims. Thus, while the court recognizes
that plaintiffs' witnesses regarding damages are located
within this district, those individuals are within
plaintiffs' control and the distance between here and the
Middle District of Pennsylvania is not so great as to impose
an undue burden upon them. Accordingly, the Court finds that
the balance of factors favors transfer of this action to the
Middle District of Pennsylvania.
it is hereby ORDERED that the motion to transfer venue to the
Middle District of Pennsylvania be GRANTED.
Clerk of the Court is directed to take such action as is
necessary to effectuate the transfer of this action to ...