FRAGOLA v. PLAINVILLE POLICE DEPARTMENT et al
OPINION fld. Signed by Magistrate Judge Mark Falk on 5/20/16. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 15-6281 (CCC)
PlAINVILLE POLICE DEPARTMENT,
SERGEANT NICHOLAS MULLINS,
PROSECUTING ATTORNEY DAVID
LEE, PROSECUTING ATTORNEY
This matter come before the Court upon Defendants Plainville Police Department,
Nicholas Mullins, and David Posada’s (collectively “Defendants”) motion to dismiss the
Complaint for improper venue, or in the alternative, to transfer the case to the United States
District Court of Connecticut, pursuant to 28 U.S.C. § 1404(a). [ECF No. 7.]1 For the reasons
stated below, the motion to transfer venue is GRANTED.
As explained herein, the Court does not need to resolve Defendant’s motion to dismiss
arguments, which if necessary would be accomplished by way of Report & Recommendation.
See 28 U.S.C. § 636 (b) (1) (B).
This action arises from the arrest and subsequent criminal conviction in Connecticut of
plaintiff, Dean Fragola. Plaintiff is a resident of Newton, New Jersey. (Compl., ¶ 1.) Plaintiff
alleges that he is somehow involved in the production of adult films. According to Defendants
the underlying criminal charges against Plaintiff stem from his purported attempt to help a young
woman from Connecticut become a pornographic movie star (Def. Br. p.1). Without the victims
permission, Plaintiff allegedly created posters using the victims photographs that were on her
website and tweeted them on his account. (Compl., 7.)
The victim contacted the Connecticut authorities and explained that Plaintiff hacked into
her accounts and posted pictures of her. (Compl., 9.) The Connecticut police charged Plaintiff
with harassment, stalking and criminal impersonation. (Compl., 12.) At the behest of the
Connecticut authorities, and pursuant to a search warrant signed by a New Jersey Superior Court
Judge, Connecticut police officers searched and seized cell phones, computer, modem, and disc
devices from Plaintiff. (Compl. 19.) Plaintiff was arrested in New Jersey and was held here for
some time until he appeared in Connecticut. (Compl., 13(d).) Plaintiff was charged with thirddegree theft, second-degree harassment, second degree stalking, and being a fugitive from
Connecticut. (Compl., 14.) Plaintiff eventually pled guilty to certain of the charges. (Compl., 18.)
As a result of Plaintiff’s arrest and subsequent conviction in Connecticut, Plaintiff
instituted this action in the District of New Jersey, asserting various civil rights claims under 42
U.S.C. § 1983 against the Plainville Police Department (“PPD”), Connecticut police officers
Nicholas Mullins and David Posadas, and two Connecticut state’s attorneys. More specifically,
Plaintiff alleges, violations of the Fourth Amendment, Fifth Amendment Taking, and a civil
conspiracy to violate Plaintiff’s Constitutional rights. (Compl., 25-32.)
Defendants move to dismiss the case for improper venue, or in the alternative, transfer the
case to the United States District Court of Connecticut.
Defendants seek to dismiss the case for improper venue, or in the alternative to transfer
the case to Connecticut. 28 U.S.C. § 1391 is the venue statute and it provides three bases for
proper venue. Since all defendants are Connecticut citizens and residents, specifically
Connecticut public entities and their employees, venue does not lie under 28 U.S.C. § 1391(1). It
appears that most if not all of the complained of activities occurred in Connecticut, not in New
Jersey. However, some events did occur in New Jersey. Thus, it seems unlikely that venue is
proper under 28 U.S.C. § 1391 (2). Venue under 28 U.S.C. §1391(3) is not meaningfully
addressed by the parties. Thus, under the circumstances, and since it is presented as an alternative
request, the Court will focus on transfer pursuant to 28 U.S.C. § 1404(a).
A. Transfer of Venue pursuant to 28 U.S.C. 1404(a)
Section 1404(a) provides broad authority to transfer a case to another district “where it
may have been brought,” when doing so is “in the interest of justice” and serves “the
convenience of parties and witnesses.” 28 U.S.C. § 1404(a). The decision to transfer a case
under Section 1404(a) is highly discretionary. See Plum Tree, Inc. v. Stockment, 488 F.2d 754,
756 (3d Cir. 1973); Cadapult Graphic Sys., Inc.v. Tektronix, Inc., 98 F. Supp. 2d 560, 564
(D.N.J. 2000). The purpose of section 1404(a) “is to prevent the waste of ‘time, energy, and
money’ and to ‘protect litigants, witnesses and the public against unnecessary inconvenience and
expenses...’” Ricoh Co., ltd. v. Honeywell, Inc., 817 F. Supp. 473, 479 (D.N.J. 1993) (quoting
Van Dusen v. Barrack, 376 U.S. 612, 616 (1964)).
As a threshold matter, the Court must decide whether the transferee district has proper
jurisdiction and venue, such that the case could have been brought in the transferee district in the
first instance. Lawrence v. Xerox Corp., 56 F. Supp. 2d 442, 450 (D.N.J. 1999). Here, there is no
doubt that this case could have been properly brought in the District of Connecticut. All of the
Defendants are public entities of Connecticut, and a substantial portion, if not all, of the events
giving rise to plaintiff’s claim occurred in Connecticut.
B. Balance of Interests
The transfer statute identifies certain criteria to be considered: the convenience of parties;
the convenience of witnesses; and the interests of justice. 28 U.S.C. § 1404(a). The Third
Circuit has articulated a more comprehensive list of public and private concerns implicated by §
1404(a). Private concerns include but are not limited to: (1) plaintiff’s original choice of venue;
(2) defendant’s forum preference; (3) where the claim arose; (4) convenience to the parties in
light of their financial and physical condition; (5) availability of witnesses in each of the fora;
and (6) the location of books and records. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d.
Public concerns include but are not limited to: (1) the ability of each forum to enforce the
judgment; (2) practical considerations that would make trial more expeditious or inexpensive; (3)
court congestion; (4) local interest in deciding the controversy; (5) public policies of each fora;
and (6) familiarity with state law in diversity cases. Id. Thus, 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). 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)
1. Private Factors
The transfer analysis here is remarkably simple. Nearly everything about this case
emanated from Connecticut and is in Connecticut. New Jersey’s only connection is that plaintiff
resides here and was arrested here, pursuant to a Connecticut formal legal request. While
plaintiffs choice of forum is entitled to some consideration it is certainly not conclusive and
when the bulk of plaintiffs claim occurred in the transferee venue, plaintiffs choice of forum may
be disregarded. Moreau v. Wallgreens, Civ. No. 06-3347 (JLL), 2009 WL 192467 (D.N.J. Jan
Convenience of the witnesses and access to sources of proof are important considerations
in the 1404(a) analysis. See Teleconference Sys. v. Proctor & Gamble Pharm., Inc, 676 F.
Supp.2d 321, 331 (D. Del. 2009). All of the defendants are Connecticut public entities and their
employees. It is questionable whether certain are even subject to suit in New Jersey. Certainly, it
would be demonstrably inconvenient for Connecticut public entities to litigate in New Jersey.
Conversely, plaintiff, who apparently voluntarily appeared in Connecticut for his criminal
proceedings, has not demonstrated any meaningful inconvenience from having to prosecute this
case in Connecticut. Also, all of the relevant documents, including law enforcement records
detailing the investigation outlining the history of plaintiff’s criminal conduct along with the
property taken from plaintiff’s home, are located in Connecticut. Indeed, nearly all of the
witnesses appear to be in Connecticut and no New Jersey witnesses have been identified. Thus
there is no need to address each of the private factors individually, since they overwhelmingly
demonstrate that transfer is warranted.
2. Public Factors
The public interest factors also mandate transfer. The primary locus of the dispute is in
Connecticut. The principal events giving rise to plaintiff’s claims took place in Connecticut and
plaintiff’s alleged criminal acts which gave rise to the instant action were directed to a victim in
Connecticut. Thus, nearly all of the operative facts occurred in Connecticut. See Delta Air Lines,
Inc. v. Chimet, S.P.A., 619 F.3d 288, 300 (3d Cir. 2010) (quotations omitted) (“In evaluating the
public interest factors the district court must consider the locus of the alleged culpable conduct,
often a disputed issue, and the connection of that conduct to plaintiff’s chosen forum.”). Thus,
Connecticut has the primary interest in resolving the issues in this dispute.
Although not decisive here, it should be mentioned that the public factor of court
congestion also weighs in favor of transfer. Official Court statistics maintained by the
Administrative Office of the U.S. Courts indicate that New Jersey is a heavily trafficked district,
and that it takes longer for a case to reach trial in New Jersey than in Connecticut. See United
States Courts, Statistics & Reports; see also McNulty v. J.H. Miles & Co., Inc., 913 F. Supp. 2d
112, 122 (D.N.J. 2012) (“[W]hen considered in relation to the lack of substantial events
occurring in this District, this factor [relative court congestion] weighs rather strongly in favor of
transfer.”). Therefore, a transfer to the District of Connecticut may permit the matter to proceed
to resolution more quickly.
In sum, all of the private and public factors are better served by transfer. Based on
consideration of the totality of the circumstances and in the interests of justice, the District of
Connecticut is by far the most appropriate and perhaps only convenient forum for this case.2
For the reasons set forth above, Defendants’ motion to transfer is granted. The Clerk’s
Office shall take no action on transfer of this case for 14 days. See L. Civ. R. 72.1(c)(1)(C). A
A purported Amicus Curiae brief was submitted without permission by pro se Mary
Fragola, who is apparently plaintiff’s sister. The brief attempts to support New Jersey venue for
reasons apparently relating to a family estate matter in Pennsylvania. It does not alter the transfer
analysis in any way.
separate Order accompanies this Opinion.
s/ Mark Falk
United States Magistrate Judge
DATED: May 20, 2016.
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