Infanti v. Mandalay Bay Resort and Casino et al

Filing 8

OPINION. Signed by Judge Freda L. Wolfson on 4/14/2014. (gxh) [Transferred from New Jersey on 4/16/2014.]

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
__________________________________
:
VITTORIO INFANTI
:
:
Plaintiff,
:
:
v.
:
Civil Action No. 13-6934(FLW)
:
MANDALAY BAY RESORT
:
& CASINO, et al.
:
OPINION
:
Defendant.
:
__________________________________ :
WOLFSON, United States District Judge:
Plaintiff Vittorio Infanti’s (“Plaintiff’) three-count Complaint sounds in negligence, and
arises out of alleged injuries Plaintiff sustained while on the premises of the Mandalay Bay
Resort & Casino (“Mandalay Bay”) in Las Vegas, Nevada.

Presently before the Court is

Defendant Mandalay Corporation’s (“Defendant”)1 motion to dismiss the Complaint pursuant to
Fed. R. Civ P. 12(3) for improper venue, or in the alternative to transfer the action. For the
following reasons, the Court, pursuant to 28 U.S.C. § 1404(a), transfers this matter to the to the
United States District Court for the District of Nevada.
I.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY2

Plaintiff is a New Jersey resident. Compl. On or around October 25, 2011, Plaintiff was
staying as a guest at the Mandalay Bay in Las Vegas Nevada and, when returning to his room

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Plaintiff pled Defendant as “Mandalay Bay Resort & Casino,” which Defendant contends
not a proper defendant entity. Plaintiff has also voluntarily dismissed claims against all other
originally pled named defendants. See Dkt. No. 1 (Notice of Removal), Ex. C.
2
The following facts are taken from the Complaint and the parties’ affidavits submitted in
connection with the motion to dismiss.
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that night, was approached by two unknown male individuals. Id. at Count One, ¶ 1. These men
attacked Plaintiff,3 causing him to sustain serious injuries that required medical care. Id. at ¶¶ 13. On September 30, 2013, Plaintiff filed a three-count Complaint in the Superior Court of New
Jersey against Defendant. In Count One, Plaintiff brings a negligence claim against Defendant,
arising out of its failure to prevent Plaintiff’s injuries. In Count Two, Plaintiff brings the same
claim against unknown defendants who may also be liable for Plaintiff’s injuries. In Count
Three, Plaintiff brings the same claim against any predecessor or successor in interest to
Defendant. Defendant timely removed Plaintiff’s Complaint to this Court on November 15,
2013, see Dkt. No. 1, and on November 19, 2013, Defendant filed the instant motion to dismiss
based on forum non conveniens, or in the alternative, to transfer venue of this matter to the
United States District Court for the District of Nevada.
II.

STANDARD OF REVIEW

Pursuant to Federal Rule of Civil Procedure 12(b)(3), a district court may dismiss an
action for improper venue. See Fed. R. Civ. P. 12(b)(3). Alternatively, the court may elect to
transfer the action to a more appropriate venue. Jumara v. State Farm Ins. Co., 55 F.3d 873,
877, n.3 (3d Cir. 1995) The burden to show improper venue is on the moving party. Myers v.
Am. Dental Ass’n, 695 F.2d 716, 724-25 (3d Cir. 1982). In ruling on a Rule 12(b)(3) motion,
courts “accept as true all of the allegations in the complaint, unless those allegations are
contradicted by the defendants’ affidavits.” Bookman v. First Am. Marketing Corp., 459 F.
App’x 157 n.1 (3d Cir. 2012) (citing Pierce v. Shorty Small’s of Branson Inc., 137 F.3d 1190,
1192 (10th Cir. 1998)). The Federal Rules of Civil Procedure do not contain any specific venue
provisions or requirements. The Court must determine whether venue is proper in accordance
3

Although the Complaint uses the term “assault,” taken in the context of the pleadings, it
is clear that Plaintiff is alleging that these two men physically attacked Plaintiff.
2

with nature of the action when deciding a motion to dismiss for improper venue. Albright v.
W.L. Gord & Associates, Inc., No. 02-304, 2002 WL 1765340, at *3 (D. Del. July 31, 2002)
(citations omitted).
III.

DISCUSSION

Defendant argues, inter alia, that venue is improper in New Jersey and the Complaint
should be dismissed because, other than Plaintiff’s residence in New Jersey, all relevant facts
supporting the cause of action arose in another jurisdiction, to wit, Nevada. Defendant further
contends that most, if not all, witnesses other than Plaintiff are located in Nevada as well.
Plaintiff argues in opposition that both he and another key witness, John Semico, are located in
New Jersey, and further, that Defendant fails to carry its burden of demonstrating that it would
be more convenient to litigate the action in the District of Nevada. After review of the parties’
arguments, the Court determines that it is appropriate to transfer the instant action to the District
of Nevada. See Jumara v. State Farm Ins. Co., 55 F.3d at 877, n.3 (holding it proper for district
court to invoke § 1404(a) to transfer venue even where motion sought outright dismissal of the
action); Grier v. Univ. of Pennsylvania Health Sys., No. 07-2475, 2007 WL 2900394 (D.N.J.
2007) (same).
Under 28 U.S.C. § 1404(a), district court is vested with discretion “to adjudicate motions
to transfer according to an individualized, case by case consideration of convenience and
fairness.” Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 23 (1998) (quoting Van Dusen
v. Barrack, 376 U.S. 612, 616 (1964)).

Specifically, section 1404(a) provides: “for the

convenience of parties and witnesses, in the interest of justice, a district court may transfer any
civil action to any other district . . . where it might have been brought.” 28 U.S.C. § 1404(a). In
that regard, the purpose of section 1404(a) is to protect litigants, witnesses and the public against

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unnecessary inconvenience and expense. Van Dusen, 376 U.S. at 616.
When deciding whether transfer is appropriate, “courts have not limited their
consideration to the three enumerated factors in § 1404(a) (convenience of the parties,
convenience of witnesses, or interests of justice).” Jumara v. State Farm Ins. Co., 55 F.3d at
879. Instead, courts consider “all relevant factors to determine whether on balance the litigation
would more conveniently proceed and the interest of justice be better served by transfer to a
different forum.” Id.; see also Clark v. Burger King Corp., 255 F. Supp. 2d 334, 337 (D.N.J.
2003). Consequently, the “analysis is flexible and must be made on the unique facts of each
case.” Calkins v. Dollarland, Inc., 117 F. Supp. 2d 421, 428 (D.N.J. 2000) (citing Piper Aircraft
Co. v. Reyno, 454 U.S. 235, 249-50 (1981)).
The first step in a court’s analysis of a motion to transfer is to determine whether venue
would be proper in the proposed transferee district. Clark, 225 F. Supp. 2d at 337. If so, the
court must next establish whether the transfer is in the interest of justice by looking to “the
private and public interests affected by the transfer.” Id.; see also Gulf Oil v. Gilbert, 330 U.S.
501, 508-509 (1946) (evaluating private and public interest factors effected by transfer).
With respect to the threshold question of whether venue is proper in the proposed transfer
district, Defendant contends that it is both (i) amenable to process in the District of Nevada, and
(ii) Nevada recognizes the same cause of action that Plaintiff asserts in his Complaint. See Def.
Br., 5. Plaintiff does not challenge these assertions. In light of Defendant’s willingness to accept
service, and having reviewed Nevada case law that would support Plaintiff’s cause of action, the
Court finds that venue in the District of Nevada is proper. Lacey v. Cessna Aircraft Co., 932
F.2d 170, 180 (3d Cir. 1991).
The next step in my analysis is to determine whether the private and public interests

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under Jumara support transfer. Beginning with the private interests, these include: the plaintiff’s
forum preference; the defendant’s forum preference; whether the claim arose elsewhere; the
convenience of the parties as indicated by their relative physical and financial condition; the
convenience of the witnesses but only to the extent that the witnesses may actually be
unavailable for trial in one of the fora; and the location of books and records. Jumara, 55 F.3d at
879.
Plaintiff initiated this action in New Jersey, and maintains that preference. Courts have
considered a plaintiff’s choice of forum as a significant factor in any determination of a transfer
request, e.g., Shuttle v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970), and I give Plaintiff’s
preference the appropriate weight, weighing against transfer. On the other hand, Defendant
appears to have no connection to New Jersey in this action, other than the fact that Plaintiff is a
New Jersey resident who was a guest at one of Defendant’s hotels. Defendant’s preference
weighs in favor of transfer, although I give it lesser weight than Plaintiff’s preference. With this
in mind, I turn to the other relevant factors.
The Court must also consider the convenience of the parties and witnesses.

Here,

Plaintiff argues, that he its an 84 year old man who lives in New Jersey, and thus it would be
more convenient for him to litigate the matter close to home. The Court notes, however, that
while Plaintiff argues that transfer to Nevada would be a great inconvenience, Plaintiff recently
travelled to Nevada, and has not argued that he cannot physically or financially return.4
Defendant conversely contends that it has no property or bank accounts or other physical
presence in New Jersey. The Court finds these facts to weigh slightly in favor of transfer.

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Indeed, it bears noting that the majority of Plaintiff’s opposition brief—which itself is
only four pages long, and not organized consistent with the requirements of the Local Rules—
focuses on Plaintiff’s substantive claim of negligence rather than any forum transfer analysis.
5

The remaining public interest factors all weigh in favor of transfer. The cause of action
clearly arose in Nevada, not New Jersey. Furthermore, other than Plaintiff and one other witness
to the incident itself, it remains uncontroverted that all other witnesses and evidence are located
in Nevada, including the hospital where Plaintiff received medical attention following the
alleged attack.5 See Def. Br., Decl. of Barbara Collazo, ¶¶ 4-8 (noting that there would be at
least eight employee-witnesses of Defendant relevant to this matter, all of whom are located in
Nevada, as well as all video security evidence). In that vein, the Court must also consider the
location of books and records. Again, any records—such as Defendant’s security records and
Plaintiff’s hospital treating records—would be located in Nevada, not New Jersey. See id. at ¶ 8.
Accordingly, I find that each of these factors supports transfer.
Turning to the public interest factors, I must consider: “the enforceability of the
judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the
relative administrative difficulty in the two fora resulting from court congestion; the local
interest in deciding local controversies at home; the public policies of the fora; and the
familiarity of the trial judge with the applicable state law in diversity cases.” Jumara, 55 F.3d at
879-80 (internal citations omitted). Here, only Defendant has presented arguments concerning
the public interest factors, arguing that each factor supports transfer. Defendant contends, and
this Court agrees, that practical considerations, such as compelling the appearance in New Jersey
of witnesses who live in a foreign state, favors transfer. Similarly, although New Jersey has an
interest in ensuring its citizens are free from harm when travelling to another state, surely
Nevada has an equally strong, if not stronger, interest in ensuring that businesses operate safely
within its jurisdiction, thus this factor also favors transfer. Third, Nevada has an interest in
5

For that reason, the Court gives little weight to Plaintiff’s contention that medical
evidence would come from an unnamed and unidentified doctor located in New Jersey.
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having a local controversy decided at home, and, in that connection, the trial judge in the District
of Nevada is certainly more likely to have a better knowledge of Nevada tort law—that law that
appears to be applicable to Plaintiff’s case—than this Court, which further favors transfer. See,
e.g., Sandvik, Inc. v. Cont’l Ins. Co., 724 F. Supp. 303, 311 (D.N.J. 1989) (explaining that it is
preferable to have cases decided by a court familiar with the applicable substantive law).
Overall, review of these factors weighs heavily in favor of transfer.
After careful consideration of both the private and public interest factors given by the
Third Circuit in Jumara, the Court finds that the only factors weighing against transfer are
Plaintiff’s choice of forum and the convenience to Plaintiff. Although these factors must be
given appropriate weight in the transfer analysis, the Court nevertheless determines that because
the vast majority of the other factors favor transfer—and because, apart from Plaintiff’s
residence, there is virtually no connection between this action and New Jersey—transfer of this
matter to the District of Nevada is appropriate.
III.

CONCLUSION

For the foregoing reasons, the Court transfers this matter to the United States District
Court for the District of Nevada, pursuant to 28 U.S.C. § 1404(a). Accordingly, the Court
declines to address the other grounds for Defendant’s motion to dismiss.
An order will be entered consistent with this Opinion.

Dated: April 14, 2014

/s/ Freda L. Wolfson
_
Freda L. Wolfson, U.S.D.J.

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