BRYAN v. BRISTOL-MYERS SQUIBB COMPANY

Filing 49

OPINION filed. Signed by Judge Michael A. Shipp on 6/28/2013. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

T. TERANCEBRYAN,
Plaintiff,
Civil Action No. 12-6584 (MAS) (TJB)

v.

BRISTOL-MYERS SQUIBB CO.,

MEMORANDUM OPINION

Defendant.

SHIPP, District Judge

This matter comes before the Court upon Defendant Bristol-Myers Squibb Company's
("BMS" or "Defendant") Motion to Transfer ("Defendant's Motion"), pursuant to 28 U.S.C.
§ 1404(a). (Def.'s Br., ECF No. 8.) Plaintiff T. Terance Bryan ("Mr. Bryan" or "Plaintiff'), filed
Opposition. (Pl.'s Opp'n, ECF No. 11.) Defendant filed a Reply. (ECF No. 16.) The Court has
carefully considered the submissions and decided the matter without oral argument pursuant to
Local Civil Rule 78.1. For the reasons stated below, and other good cause shown, Defendant's
Motion to Transfer Venue to the District of South Carolina is granted. 1

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There are several other applications/motions pending in this matter. Plaintiff's November 7, 2012
correspondence requested the Court to remand the matter to state court. The Court denies the
request. On November 30, 2012 and February 1, 2013, Plaintiff filed motions for summary
judgment. (ECF Nos. 12, 23.) The Court denies Plaintiff's motions without prejudice as
premature. On January 10, 2013, Plaintiff filed a motion to strike the answer to the Complaint/for
default judgment. (ECF No. 21.) The Court denies the motion. On May 7, 2013, Plaintiff filed an
appeal of the magistrate judge's April 5, 2013 decision. (ECF No. 39.) The Court denies the
appeal. Should Plaintiff seek to file motions following transfer of the case, he should file an
appropriate application to the transferee court.

I.

Background

Plaintiff, pro se, is an inmate at Broad River Correctional Institution in South Carolina.
(Notice of Removal ("NOR")

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8, ECF No. 1.) Plaintiff has been incarcerated in South Carolina

since 1998, is not currently eligible for parole, and is projected to be released in 2026. (Def.'s Br.
1-2.) Plaintiff originally filed his Complaint in the Superior Court of New Jersey, Law Division,
Mercer County.

(NOR~

1.) Plaintiff asserts that he "suffered serious pains in his liver & serious

mental distress" as a result of taking Buspirone, a drug he alleges was manufactured by Defendant.
(Compl. ~~ 3-5, ECF No. 1-1.)
BMS, a Delaware corporation with its principal place of business in New York, timely
removed the case to the District of New Jersey.

(NOR~

4, 9.) Defendant manufactures the drug

Buspar®. (Def.'s Br. 1 fn.l.) According to Defendant, buspirone hydrochloride is the generic
version of Buspar® and is not manufactured by BMS. (!d.) Defendant now seeks to transfer
venue to the District Court of South Carolina.
II.

Analysis

In federal court, transfer of venue when original venue is proper is governed by 28 U.S.C.

§ 1404(a). See Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995). Under section
1404(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."
The party moving for a transfer of venue bears the burden of demonstrating that the balance of
private and public factors weighs "strongly" in favor of transfer. See Gulf Oil Co. v. Gilbert, 330
U.S. 501, 508 (1947); Jumara, 55 F.3d at 879.
"Section 1404(a) transfers are discretionary determinations made for the convenience of
the parties and presuppose that the court has jurisdiction and that the case has been brought in the

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correct forum." Lafferty v. St. Riel, 495 F.3d 72, 76 (3d Cir. 2007). In exercising its discretion, the
transferor court must evaluate whether a venue transfer would further the goals of section 1404(a),
which are "to prevent the waste 'of time, energy and money' and 'to protect litigants, witnesses
and the public against unnecessary inconvenience and expense .... "' VanDusen v. Barrack, 376
U.S. 612, 616 (1964) (quoting Cont'l Grain Co. v. The FBL-585, 364 U.S. 19, 26-27 (1960)).
The "decision to transfer venue is committed to the discretion of the district court." Larami

Ltd. v. YES! Entm 't Corp., 244 B.R. 56, 61 (D.N.J. 2000). In conducting its evaluation, the Court
must balance various private and public interests related to the transfer. Jumara, 55 F.3d at 879.
The private interest factors include:
[1] plaintiffs forum preference as manifested in the original choice, [2] the
defendant's preference, [3] whether the claim arose elsewhere, [4] the convenience
of the parties as indicated by their relative physical and financial condition, [5] 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 [6] the location of books and records
(similarly limited to the extent that the files could not be produced in the alternative
forum) ....

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

Id. at 879-80 (internal citations omitted).
A.

The Private Interest Factors Favor Transfer
1.

Plaintiff's Choice of Forum

Plaintiffs choice of forum weighs against transfer. However, Plaintiff did not present
strong arguments in opposition to transfer. In his opposition to Defendant's motion, Plaintiff
asserts that Defendant "should be ESTOPPED from playing fast & loose with the Court." (Pl.'s

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Opp 'n 1.) In essence, Plaintiff argues that because Defendant removed the case from the Superior
Court of New Jersey to the District of New Jersey, it should now be estopped from transferring the
case to the District of South Carolina. (Jd. at 1-2.) Plaintiff additionally argues that he:
will not call any South Carolina witness(es), nor has defendant allege [sic] to call
any. Furthermore, South Carolina lacks jurisdiction, even long arm jurisdiction
over this defendant & this defendant & its' staff, who are the witnesses Plaintiff
intends to call, are not amenable to compulsory process in South Carolina, so
defendant, if removal is granted, has procedurally escape [sic] liability & already
won the case .... I pray defendant is ESTOP [sic] from changing venue AGAIN
&/or provide an affidavit stating the name(s) and address(es) of what South
Carolina witness(es) they [sic] plan to call at trial & state clearly why, what their
testimony would be.
(Id. at 2.)
In reply, Defendant argues that Plaintiff misstated BMS' position. (Def. 's Reply Br. 2.)
According to Defendant, "BMS has clearly stated that it is amenable to process in South
Carolina." (Def.'s Reply Br. 2.) In addition, BMS disputes Plaintiffs suggestion that transfer is
not required because neither he nor BMS intends to call any South Carolina witnesses. (Id.)
The Court agrees with Defendant that Plaintiff appears to have confused the concepts of
jurisdiction and venue. Plaintiff appeared to choose to file suit in New Jersey because he believed
that Defendant's home state was New Jersey. The first paragraph of the Complaint states, "BristolMyers Squibb Company is a resident at: Princeton, NJ 08543. BMSC is located in this county,
Mercer County.

THEREFORE, venue is proper in this Court & this Court is vested with

jurisdiction over the parties & the subject matter." (Compl.

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1.) Here, Defendant correctly asserts

that both the Districts of New Jersey and South Carolina properly have jurisdiction over the matter
and that by removing the case, BMS did not forego its right to seek a transfer. (Def.'s Reply Br.
3.) As such, the Court is not persuaded by Plaintiffs arguments in opposition to the motion.

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Moreover, Plaintiff is entitled to less deference in his choice of forum because New Jersey
is not the Plaintiffs home state. See In reConsolidated Parlodel Litig., 22 F. Supp. 2d 320, 324
(D.N.J. 1998). The pleadings reflect that Plaintiff is incarcerated in South Carolina and he ingested
the medication that is the subject of the dispute at the facility in South Carolina. Therefore, the
Court will afford minimal weight to Plaintiffs choice of forum and finds that the first factor
weighs only slightly against transfer.

2.

Other Private Interest Factors

In considering the other private interest factors, the Court finds that the location of the
books and records does not weigh in favor of either party, as it is likely that files could be
produced in either forum. See Wesley-Jessen Corp. v. Pilkington Visioncare, Inc., 157 F.R.D.
215, 218 (D. Del. 1993) (recognizing that modem technology has "substantially reduced" the
"burden of having to litigate in a distant forum."). However, the remaining factors weigh strongly
in favor of transfer. The Defendant's preference is South Carolina, where Plaintiff is incarcerated.
In addition, the claim arose in South Carolina. Moreover, venue in South Carolina would be more
convenient for both Parties because there would be a significant inconvenience to potential trial
witnesses if this Court were to deny transfer. Headon v. Colo. Boys Ranch, 2005 WL 1126962, at
*7 (E.D. Pa. May 5, 2005). Therefore, the Court finds that the private interest factors, as a whole,
strongly favor transfer in the present case.

B.

Public Interest Factors Favor Transfer

As to the public interest factors, the enforceability of the judgment does not weigh in favor
of either party. For the pretrial stage of the matter, the relative administrative difficulty in the two
fora resulting from court congestion most likely appears to weigh against transfer. Here, the
magistrate judge assigned to the matter has moved the pretrial proceedings forward during the

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pendency of this motion to transfer venue. Therefore, court congestion has not impacted the
pretrial proceedings in this matter. It is not clear whether court congestion would result in any
administrative difficulty in South Carolina. As such, this factor is neutral or weighs slightly
against transfer.
However, the other public interest factors weigh strongly in favor of transfer. Significantly,
practical considerations that could make the trial more expeditious or inexpensive strongly favor
transfer. While the magistrate judge in this matter has conducted conferences and moved the case
through pre-trial proceedings, the practical considerations as a whole strongly militate in favor of
transfer. Defendant persuasively argued that there are "practical, logistical issues presented by Mr.
Bryan's incarceration in South Carolina[.]" (Def.'s Br. 6.) Here,
critical witnesses in this case, including Mr. Bryan's medical providers who
allegedly prescribed buspirone to him, and who treated him, are located in South
Carolina and are not amenable to compulsory process in New Jersey. The
amenability of these potential witnesses (even if not called by Plaintiff) is a factor
to be weighted by the Court in its Section 1404(a) analysis. Moreover, Mr. Bryan
will be deposed. As he is incarcerated in South Carolina, as a practical matter, his
deposition can only be taken in South Carolina.
(De f.'s Reply Br. 2) (internal citations omitted).
Furthermore, South Carolina has a greater interest in this matter than New Jersey because
Plaintiff ingested the buspirone and allegedly sustained injuries in South Carolina. As discussed
above, Plaintiff is incarcerated in South Carolina and his medical providers are in South Carolina.
Here, New Jersey only has a remote interest in the lawsuit. In addition, it is likely that South
Carolina law will apply in the present matter. See In reConsolidated Parlodel Litig., 22 F. Supp.
2d 320, 324 (D.N.J. 1998). As such, the familiarity ofthe trial judge with South Carolina state law
favors transfer.

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III.

Conclusion
Defendant has established that transfer pursuant to 28 U.S.C. § 1404(a) is appropriate in

the present case. Therefore, for the reasons stated above, Defendants' Motion to Transfer is
granted. An Order consistent with this Opinion will be entered.

s/ Michael A. Shipp
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE

Dated: June 28, 2013

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