Foster v. Marriott Resorts Hospitality Corporation, et al.

Filing 38

OPINION. Signed by Judge Noel L. Hillman on 7/10/2018. (tf, ) [Transferred from njd on 7/10/2018.]

UNITED STATE DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
CHERI A. FOSTER,
Plaintiff
v.

Civil No. 17-12901 (NLH/AMD)
OPINION

MARRIOTT RESORT HOSPITALITY
CORPORATION, GRANDE VISTA OF
ORLANDO CONDOMINIUM
ASSOCIATION, INC., MARRIOTT
VACATIONS WORLDWIDE
CORPORATION,
MARRIOTT VACATION CLUB
INTERNATIONAL,
Defendants.
______________________________
APPEARANCES:
RICHARD GRUNCO, JR.
GRUNCO COLARULO
1926 GREENTREE ROAD, SUITE 210
CHERRY HILL, NJ 08003
On behalf of Plaintiff
CATHLEEN KELLY REBAR
JEANNIE PARK LEE
REBAR BERNSTIEL
470 NORRISTOWN ROAD, SUITE 210
BLUE BELL, PA 19422
On behalf of Defendants

HILLMAN, District Judge
Presently before the Court is Defendants’ motion to
transfer the venue of Plaintiff’s case to Florida.

For the

reasons expressed below, Defendants’ motion will be granted.

BACKGROUND
Plaintiff, Cheri Foster, sustained injuries from a slip and
fall on March 24, 2016, at the Marriott Grande Vista, a hotel
owned by Defendant Marriott Resort Hospitality Corporation and
located at 5925 Avenida Vista, Orlando, Florida.

As a result of

the fall, Plaintiff suffered comminuted fractures of the right
tibia and fibula. 1

These injuries required open reduction

surgery resulting in external fixation of the fractures with a
rod, a plate, and screws.

Plaintiff claims that dangerous

conditions on the walkway of the hotel caused her fall.
Plaintiff commenced this action on December 11, 2017, in
this Court. 2

Defendant Marriott seeks to transfer venue to the

United State District Court for the Middle District of Florida
pursuant to 28 U.S.C. § 1404(a).

Plaintiff opposes Defendant’s

motion.
DISCUSSION
A. Standard for Jurisdiction

1

A comminuted fracture is where the bone shatters into three or
more pieces.
2

Before any answers were filed, Plaintiff filed an Amended
Complaint on December 12, 2017, and a Second Amended Complaint
on December 29, 2017. (Docket No. 3, 9.) By agreement of the
parties, Defendants Marriott Vacation Club International,
Marriott Vacations Worldwide Corporation, and Grande Vista of
Orlando Condominiums, Inc. were dismissed without prejudice.
(Docket No. 14.) The only remaining defendant is the moving
defendant, Marriott Resorts Hospitality Corp (“Marriott”).

Plaintiff’s Second Amended Complaint states that this Court
has diversity jurisdiction pursuant to 28 U.S.C. § 1332 because
Plaintiff’s claims are in excess of $75,000 and complete
diversity of citizenship exists between the parties.

Plaintiff

is a citizen of New Jersey, and Defendant is a South Carolina
corporation with its principal place of business in Florida.
B. Standard for Motion to Transfer Venue
Section 1404(a) states that “[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.”
1404(a).

28 U.S.C. §

Analysis of whether a transfer is appropriate under §

1404(a) is flexible, and based on the unique facts of the case.
Ricoh Co. v. Honeywell, Inc., 817 F. Supp. 473, 479 (D.N.J.
1993).
The Court of Appeals for the Third Circuit has provided
interest factors, both public and private, for a court to
consider when undertaking analysis of whether to transfer under
§ 1404(a).
Cir. 1995).

Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d
The private interest factors are: (1) the

plaintiff’s forum preference; (2) the defendant’s forum
preference; (3) where the claim arose; (4) the convenience of

the parties; (5) the convenience of the witnesses; and (6) the
location of books and records.

Id.

The public interest factors are: (1) the enforceability of
the judgment; (2) practical considerations that could make the
trial easy, expeditious, or inexpensive; (3) the relative
administrative difficulty from court congestion; (4) local
interest in deciding local controversies at home; (5) public
policies of the fora; and (6) the familiarity of the trial judge
with applicable state law in diversity cases.

Id. at 879-80.

C. Analysis
The application of the private and public interest factors
on balance weigh in the favor of transferring this case to
Florida.
All of the private factors, except for Plaintiff’s forum
preference, either weigh in the favor of Defendant or are
neutral.

With regard to the parties’ forum preferences,

Defendant prefers the venue of Florida, while Plaintiff prefers
New Jersey.

As a general matter, the plaintiff’s preference is

afforded greater weight under § 1404.

Ricoh, 817 F. Supp. at

480 (quoting Sandvik v. Continental Ins. Co., 724 F. Supp. 303,
307 (D.N.J. 1989)).

But the choice of forum by a plaintiff is

“simply a preference; it is not a right.”
omitted).

Id. (citation

A plaintiff’s forum choice is given less deference where
the operative events giving rise to the complaint did not occur
in a plaintiff’s chosen district.

Id. at 481.

This court has

frequently disregarded a plaintiff’s preferred venue when New
Jersey has little connection to the operative facts.

See Wm. H.

McGee & Co. v. United Arab Shipping Co., 6 F. Supp. 2d 283, 290
(D.N.J. 1997) (finding that in a cargo damage suit, the
plaintiff’s preferred venue of New Jersey could be overridden
when operative facts occurred in Louisiana); Ricoh, 817 F. Supp.
at 481 (stating that “[w]hen the central facts of a lawsuit
occur outside the forum state, a plaintiff’s selection of that
forum is entitled to less deference”); Rappoport v. Steven
Spielberg, Inc., 16 F. Supp. 2d 481, 500 (D.N.J. 1998) (stating
that the forum a film-maker’s complaint against Steven
Spielberg, Inc. was not entitled to deference and was improperly
placed in New Jersey because the plaintiff’s chosen forum had no
connection to the facts underpinning plaintiff’s case, other
than being the plaintiff’ state of residence).
In this case, because the injury underlying the complaint
occurred in Florida, the deference normally afforded to
Plaintiff’s venue choice is curbed, and is weighed against the
other interest factors identified in Jumara.
As for the other private and public interest factors, in
Florida is: (1) the building where Plaintiff fell; (2)

Defendants’ employee who responded to the incident; (3) the
first responders who responded to the incident; (4) the medical
staff who performed Plaintiff’s surgery; (5) the staff
responsible for the upkeep and inspection of the hallway in
which Plaintiff was injured; (6) the records relating to the
maintenance of the hallway, and any prior concerns or incidents
at the Grande Vista; and (6) most of the key post-accident
witnesses.
Plaintiff argues that the majority of the witnesses to the
fall and its immediate aftermath live in or near New Jersey.
Those witnesses are Plaintiff’s adult children, Alexis Foster
and Thomas Foster, and Plaintiff herself.

Although important to

Plaintiff’s case, the Court does not view Plaintiff’s children
as the most pertinent witnesses in the venue analysis.
Transfer is favored where the most pertinent witnesses are
found in the transferee district.

See Mancini v. Benihana, No.

13-cv-03167, 2013 WL 6147808, at *4 (D.N.J. Nov. 22, 2013)
(finding that transfer of a slip and fall case from New Jersey
to Colorado was appropriate, even though the only eye-witness to
the fall resided in New Jersey, because the staff of the
Benihana where the plaintiff fell were residents of Colorado).
The medical responders, and Defendant’s staff responsible for
the upkeep of the walkway where the incident occurred, all of
whom reside in Florida, have more probative value than

Plaintiff’s eye-witness children because of their technical
knowledge of Plaintiff’s injury immediately after the fall and
the state of the walkway when the injury occurred.

Thus, the

majority of private factors weigh in favor of transferring
Plaintiff’s case to Florida.
The public interest factors also weigh in favor of
transferring venue.

Plaintiff fell in a hotel in Florida, and

received initial treatment for these injuries in Florida.
Florida has a local interest in determining negligence cases
that occur within its boundaries.

Mancini, 2013 WL 6147808 at

*4 (concluding that transferring venue from New Jersey to
Colorado for a negligence case for a slip and fall at a Colorado
Benihana was appropriate because the state of Colorado had an
interest in ensuring that local restaurants maintain safe
premises).

Also, while a district court sitting in diversity is

able to interpret any state’s law, a Florida court will be more
familiar with Florida negligence law.

See Lauria v. Mandalay

Corp., No. 07-cv-817, 2008 WL 3887608, at *5 (D.N.J. Aug. 18,
2008) (deciding that transferring a negligence claim arising in
a Nevada hotel from New Jersey to Nevada was appropriate because
the District of Nevada was likely more familiar with Nevada
law).

Court decisions applying Florida law impact Florida

citizens.

Consequently, Florida’s citizens have a stake in the

outcome, and the jury should be chosen from their numbers.

See

Lind v. Nat’l Railroad Passenger Corp., No. 08-cv-2678, 2009 WL
113458, at *1 (D.N.J. Jan. 9, 2009) (granting motion seeking
transfer from New Jersey to New York due to New York citizens’
stake in the outcome of an application of New York state law).
Additionally, transferring venue to Florida would make the jury
inspection of the site of the incident easier.

Lastly, due to

the operative facts occurring in Florida, it would be improper
for the burden of jury duty to be imposed on the citizens of New
Jersey.

See Ziemkiewicz v. R+L Carriers, Inc., 12-cv-1923, 2013

WL 505798, at *4 (D.N.J. Feb. 8, 2013) (“Jury duty is a burden
that ought not to be imposed upon the people of a community
which has no relation to the litigation”) (quoting Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)).
Plaintiff’s two main arguments to keep her case here are
that she received much of her post-surgery medical treatment in
New Jersey, and that the superior financial resources of
Defendant make it easier for them to litigate in New Jersey than
it is for the Plaintiff to litigate in Florida.

This District

has routinely transferred similar cases, and our case law favors
transfer to the Florida venue under these circumstances.
Subsequent medical treatment in New Jersey for injuries that
occurred in other venues is not dispositive when the injury
underlying the claim occurred in another state.

See Peller v.

Walt Disney World Co., No. 09-cv-6481, 2010 WL 2179569, at *2

(D.N.J. May 28, 2010) (concluding that transfer from New Jersey
to Florida for a personal injury claim was appropriate, despite
plaintiff receiving medical treatment in New Jersey, because New
Jersey had little connection to the operative facts of the
case); Green v. Desert Palace, Inc., No. 10-cv-908, 2010 WL
1423950, at *2 (D.N.J. Apr. 8, 2010) (finding that transfer from
New Jersey to Nevada of a personal injury case was appropriate,
despite inconvenience to the plaintiff, and plaintiff’s medical
treatment occurring in New Jersey); Rahwar v. Nootz, No. 94-cv2674, 1994 WL 723040, at *2 (D.N.J. Dec. 27, 1994) (transferring
venue for a personal injury claim from New Jersey to New York,
despite the plaintiff’s doctor residing in New Jersey).
Plaintiff argues that New Jersey is a more appropriate
venue because of Defendant’s superior financial status and
ability to absorb the costs of litigating in a foreign venue.
Financial inequity between the two parties, however, cannot
override all other factors for determining venue in the case.
Lauria v. Mandalay Corp., No. 07-cv-817, 2008 WL 3887608, at *5
(D.N.J. Aug. 18, 2008) (concluding that transfer of a claim
arising from a slip and fall in a Nevada hotel from New Jersey
to Nevada was appropriate, despite the inconvenience and
economic harm to the plaintiff).

In similar personal injury

cases, courts have routinely rejected plaintiffs’ efforts to
argue against transferring venue on the grounds it would be

easier for the defendants to incur the cost of litigating in the
plaintiff’s foreign venue.

See Gambil v. Wal-Mart Stores, Inc.,

No. 08-cv-4297, 2009 WL 90137 (D.N.J. Jan. 12, 2009)
(transferring venue from New Jersey to New Mexico, despite
inconvenience to plaintiff, and large gulf in resources between
plaintiff, a New Jersey citizen, and defendant corporation);
Skyers v. MGM Grand Hotel LLC, No. 14-cv-4631, 2015 WL 1497577,
at *3 (D.N.J. Apr. 1, 2015) (“The financial inequity of the
parties, however, cannot override all the other factors in this
case, especially when many non-party witnesses are located in
Nevada, and the situs of the accident is in Nevada and cannot be
brought to New Jersey for inspection”); Goldstein v. MGM Grand
Hotel & Casino, No. 15-cv-4173, 2015 WL 9918414, at *2 (D.N.J.
Nov. 4, 2015) (finding that transfer of venue from New Jersey to
Nevada was appropriate, even in light of plaintiff alleging that
they lacked the means to litigate in a foreign venue for time
and financial reasons).

Although the Court considers the

relative financial strength of the two parties, and accepts that
Defendant is more financially robust, in this case the other
factors tip the scale in favor of transfer.
CONCLUSION
The decision to transfer falls within the sound discretion
of the trial court.

Long v. E. I. DuPont de Nemours & Co., 886

F.2d 628, 632 (3d Cir. 1989).

The trial court is given broad

discretion and flexibility to decide if a transfer under §
1404(a) is appropriate.

In light of the public and private

factors largely favoring the venue change, and case law
overwhelmingly favoring transferring venue to where an injury
occurred, transfer to the Middle District of Florida is
appropriate.

Consequently, the Court will grant Defendant’s

Motion to Transfer Case to the Middle District of Florida.

An

appropriate Order will be entered.

Date: July 10, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.