HO v. RUBY S LLC et al

Filing 32

OPINION and ORDER denying 20 Motion to Transfer Case to the Camden Vicinage. Signed by Magistrate Judge Cathy L. Waldor on 3/23/16. (jr)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NANCY NGUYEN HO, Individually and
as the Personal Representative and
Executor of the Estate of KHANH VAN
HO and the legal guardian of the minors
MONICA HO NGUYEN and LUCY HO
NGUYEN,

Civil Action No. 15-cv-3390 (KSH)(CLW)

OPINION & ORDER

Plaintiffs,
vs.
RUBY S LLC, LAM K. HUYNH, THE
LOBSTER HOUSE and the FV MEKONG
her engines, tackle and fishing permits in
rem,
Defendants.

THIS MATTER comes before the Court on the motion to transfer venue filed by
Defendants Ruby S LLC, Lam K. Huynh, and FV Mekong and joined by Defendant The Lobster
House. (ECF Nos. 20-23, 25, 27.) In short, Defendants seek transfer to the Camden Vicinage while
Plaintiffs maintain that the matter was properly assigned to the Newark Vicinage. The Court
declined to hear oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure and,
for the reasons set forth below, the Court denies the motion. 1
This wrongful death action arises out of the death of Khanh Van Ho (decedent), who while
intoxicated accidentally drowned when moving between The Lobster House restaurant and its
nearby pier. (Am. Compl., ECF No. 18.) Defendants argue that transfer is appropriate pursuant to

1

The Court considers the instant motion to be a non-dispositive pretrial matter and accordingly issues this Opinion &
Order as a final decision on a non-dispositive matter. See Plotnick v. Computer Scis. Corp. Deferred Comp. Plan for
Key Executives, 2015 WL 4716116, at *1 (D.N.J. 2015) (citing Prinir (HADAS 1987) Ltd. v. ConAgra Food Packaged
Foods Co., 2008 WL 5169118, at *1 (D.N.J. 2008)).

28 USC § 1404(b) or, in the alternative, pursuant to Local Civil Rule 40.1(d). (Motion, ECF Nos.
20-21.) In particular, Defendants contend that the matter is not properly in the Newark Vicinage
because “[a]all of the events giving rise to this action occurred in Cape May, New Jersey, which
is located within the Camden Division’s territorial jurisdiction[.]” (Brief, ECF No. 21, at 4;
Karpousis Aff., ECF No. 22.) By reference to the Amended Complaint, Defendants emphasize that
immovable physical evidence—such as the restaurant, the pier, and the vessel in question—is in
Cape May and numerous witnesses are in close proximity to Cape May. (Brief, at 2-5 (citing Am.
Comp., ¶¶ 3-12).) In addition, Defendants assert that the Camden Vicinage and Newark Vicinage
are about eighty (80) and one hundred fifty (150) miles, respectively, “from the location where the
incident giving rise to this action took place[.]” (Id., at 4.)
Plaintiffs, who are the widow and minor daughters of decedent and residents of Virginia,
maintain that “[v]enue was properly placed in the Newark Vicinage” and contend that Defendants
offer insufficient evidence to warrant transfer. (Opp., ECF No. 26, at 2-5; Am. Compl.. ¶¶ 8-10.)
Plaintiffs argue that, although they are Virginia residents, “[t]he extreme financial and physical
limitations of [decedent’s widow] would be exacerbated by moving this action to Camden” and,
furthermore, “she has provided evidence that she would have a place to stay [in Newark] at no cost
as well as a person who could transport her where she would have to go and assist her with her
physical limitations again at no cost.” (Opp., ECF No. 26, at 5; Ho Aff., ECF No. 26-1, ¶¶ 4-19.)
Plaintiffs further contend that “Newark is not some remote distant place and the witnesses would
have only a short extra distance to travel to Newark rather than Camden.” (Opp., at 4.) Plaintiffs
also argue that Defendants incorrectly rely on § 1404(b) in support of their motion because that
subsection requires consent. (Id., at 2-3.)

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In reply, Defendants reiterate that “the operative facts, immovable evidence and other
sources of proof, and a substantial number of witnesses in this matter are located in or around Cape
May[.]” (Reply, ECF No. 27 at 2; Adler Aff., ECF No. 27-1.) Defendants deny that § 1404(b) is
an inappropriate vehicle by which to seek the instant relief and, in the alternative, submit that
transfer is appropriate pursuant to § 1404(a). (Reply, at 1-4.)
Section 1404 of Title 28 of the United States Code provides, in pertinent part:
(a) 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.
(b) Upon motion, consent or stipulation of all parties, any action,
suit or proceeding of a civil nature or any motion or hearing thereof,
may be transferred, in the discretion of the court, from the division
in which pending to any other division in the same district. Transfer
of proceedings in rem brought by or on behalf of the United States
may be transferred under this section without the consent of the
United States where all other parties request transfer.
As a preliminary matter, a plain reading of the statute reveals that inter-district transfer may not be
achieved by stipulation, whereas consent of all parties may be sufficient, though not necessary, to
achieve intra-district transfer. See White v. ABCO Eng’g Corp., 199 F.3d 140, 143-44 (3d Cir.
1999) (noting that a § 1404(b) transfer “is much less cumbersome than its inter-district
counterpart”). Thus, contrary to Plaintiffs’ assertion, Opp., at 3, the Court may entertain a
contested motion to transfer under § 1404(b).
To decide a motion to transfer pursuant to § 1404(a), the Court examines the factors
enumerated in that subsection, i.e., the convenience of parties and witnesses as well as the interests
of justice. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). The Court may also
consider private interests such as: 1) the plaintiff’s forum preference; 2) the defendant’s forum
preference; 3) whether the claim arose elsewhere; and 4) the location of books and records. Id. The

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Court may also consider public interests such as practical considerations that could make the trial
easy, expeditious, or inexpensive, and the relative administrative difficulty in the two fora from
court congestion. Id. at 879-80 (citations omitted).
To determine whether to transfer a case between divisions pursuant to § 1404(b), the Court
is guided by the same factors that apply to transfers between districts and, at a minimum, must
consider whether a transfer would be convenient to the parties and witnesses and in the interests
of justice. See In re Bishop, 2014 WL 1266363, at *3 (D.Del. 2014) (citing Zanghi v. Freight Car
Am., Inc., 2014 WL 130985, at *9 (W.D.Pa. 2014)); see also Cottier v. Schaeffer, 2011 WL
3502491, at *1 (D.S.D. Aug. 10, 2011) (collecting cases and observing that transfers under §
1404(b) are subject to fewer guidelines than transfers under § 1404(a)).
Importantly, the moving party bears the burden to establish that the transfer is appropriate
and more convenient. Jumara, 55 F.3d at 879. “The decision of whether to transfer a case is
committed to the trial court’s sound discretion.” Prudential Ins. Co. of Am. v. Brimberry, 2013
WL 5340378, at *2 (D.N.J. 2013) (citations omitted).
On the particular facts presented, and even upon application of the more lenient inquiry
under § 1404(b), the Court finds that transfer to the Camden Vicinage is unwarranted. 2 First,
although Plaintiffs reside in Virginia, Plaintiffs prefer the Newark Vicinage and the Court is
mindful of the financial and physical limitations underpinning this preference. See Ho Aff., ECF
No. 26-1, ¶¶ 4-19; see also Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970) (“It is
black letter law that a plaintiff’s choice of a proper forum is a paramount consideration in any

2

It must be noted that Defendants’ request for transfer pursuant to § 1404(a) is first set forth—and at length—in reply.
Compare Brief, ECF No. 20, with Reply, ECF No. 27. While the Court appreciates that Defendants raise these
arguments somewhat in response to the position articulated by Plaintiffs in opposition, it must be emphasized that it
is the duty of a movant to fully disclose, in the first instance, the specific statutory avenues by which relief is sought.
See Aiellos v. Zisa, 2009 WL 3486301, at *1 (D.N.J. 2009) (citing Ghana v. Holland, 226 F.3d 175, 180 (3d Cir.
2000)). Nevertheless, as described herein, § 1404(a) imposes a more restrictive standard for reviewing a request to
transfer and, in any event, the Court has duly considered and rejected all of Defendants’ arguments.

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determination of a transfer request, and that choice should not be lightly disturbed.” (internal
quotations omitted)). Next, while Defendants prefer the Camden Viciniage and emphasize that
Cape May is central to this action in terms of immovable evidence and witnesses in proximity, the
exact addresses of such witnesses are not disclosed and, furthermore, Defendant Ruby S LLC
maintains a registered office in Plainfield and Defendant Huynh resides in Plainfield. See
Karpousis Aff., ECF No. 22, ¶¶ 3-6; Adler Aff., ECF No. 27-1, ¶¶ 8-9. Moreover, the Court is not
convinced that the additional distance to Newark favors transfer, as the distance is not substantial
and transfer to the Camden Vicinage would work considerable inconvenience against Plaintiffs
while adding marginal convenience to others. In addition, the Court finds that transfer to the
Camden Vicinage is not in the interest of judicial economy since this Court is well-acquainted with
the matter and discovery is ongoing. See Rappoport v. Steven Spielberg, Inc., 16 F.Supp.2d 481,
497 (D.N.J. 1998) (stating that § 1404 is designed “to avoid the waste of time, energy and money
and, in addition, to safeguard litigants, witnesses, and the public against avoidable inconvenience
and expense”). The Court therefore concludes that Defendants have not demonstrated that transfer
to the Camden Viciniage is appropriate pursuant to § 1404 and similarly concludes for the same
reasons that transfer is not appropriate pursuant to Local Civil Rule 40.1.

ACCORDINGLY, IT IS on this 23rd day of March, 2016,
ORDERED that Defendants’ motion to transfer venue (ECF No. 20) is DENIED; and
FURTHER ORDERED that the Clerk shall terminate ECF No. 20.

s/ Cathy L. Waldor
CATHY L.WALDOR
UNITED STATES MAGISTRATE JUDGE

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