Moran et al v. Hard Rock Hotel and Casino Atlantic City

Filing 11

ORDER: For the reasons set forth in the attached Order, case transferred to District of New Jersey. Original file, certified copy of transfer order, and docket sheet sent. ALL FILINGS ARE TO BE MADE IN THE TRANSFER COURT, DO NOT DOCKET TO THIS CASE. Ordered by Judge Orelia E. Merchant on 1/6/2025. (RCC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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REBECCA MORAN; CASSANDRA LAWRENCE,
Plaintiffs,

MEMORANDUM & ORDER
24-CV-07026 (OEM) (TAM)

-againstHARD ROCK HOTEL and CASINO ATLANTIC CITY,
Defendant.
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ORELIA E. MERCHANT, United States District Judge:

This action, brought under Section 12182(a) and (b)(2)(A)(ii) of the Americans with
Disabilities Act (“ADA”) by Plaintiffs Rebecca Moran (“Moran”) and Cassandra Lawrence
(“Lawrence”) (together, the “Plaintiffs”) against Defendant Hard Rock Hotel and Casino Atlantic
City (“Defendant”), arises out of Plaintiffs’ stay at Defendant’s hotel, a public accommodation,
located in Atlantic City, New Jersey. Complaint (“Compl.”), ECF 1. On October 9, 2024, less
than a week after the complaint was filed, Magistrate Judge Merkl issued an order to show cause
directing Plaintiffs to show cause why this action should not be transferred to the United States
District Court for the District of New Jersey. See October 9, 2024 Order to Show Cause.
Magistrate Judge Merkl found that:
The allegations of Plaintiffs’ complaint (ECF No. 1) raise questions regarding
whether venue is proper in the Eastern District of New York. Venue is governed by
28 U.S.C. § 1391(b), which provides that an action may brought in the “judicial
district in which any defendant resides,” or “in which a substantial part of the events
or omissions giving rise to the claim occurred, or a substantial part of the property
that is the subject of the action is situated.” If an action is filed in the wrong district
court, a court “shall dismiss, or if it be in the interest of justice, transfer such case
to any district or division in which it could have been brought.” 28 U.S.C.
§ 1406(a). A transfer under § 1406(a) may be made upon motion or by a court sua
sponte. See Pisani v. Diener, No. 07-CV-5118, 2009 WL 749893, at *8 (E.D.N.Y.
Mar. 17, 2009) (collecting cases). The complaint indicates that the Defendant Hard
Rock Hotel and Casino Atlantic City maintains and operates a public
accommodation, a hotel, in the State of New Jersey, County of Atlantic, and all
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events alleged in the complaint occurred in Atlantic City, New Jersey. (See Compl.,
ECF No. 1, 3, 6-11.) Accordingly, it appears that the proper venue for this action is
United States District Court for the District of New Jersey. See 28 U.S.C. § 110.
See id. Magistrate Judge Merkl therefore ordered Plaintiffs to show cause by October 16, 2024,
“why venue is proper in this district and, if not, whether Plaintiffs object to a transfer of venue and
on what grounds.” Id. Magistrate Judge Merkl warned Plaintiffs that “fail[ure] to show cause as
to why venue is proper [in this District] or present argument as to where venue should lie by [that
date]” would result in the Court directing the Clerk of Court to transfer this action to the United
States District Court for the District of New Jersey. Id.
On October 14, 2024, Plaintiffs, represented by counsel, filed a response. See Letter re:
Venue (“Resp. to OSC”), ECF 6. Plaintiffs indicated that this Court has jurisdiction over this case
under 28 U.S.C. § 1331 and § 1332. Id. at 1. Plaintiffs relied on Zaltz v. JDATE, 952 F. Supp. 2d
439, 458 (E.D.N.Y. 2013) for the factors a court may consider on a motion for transfer of venue:
(1) the plaintiff’s choice of forum, (2) the convenience of witnesses, (3) the location of relevant
documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the
locus of operative facts, (6) the availability of process to compel the attendance of unwilling
witnesses, and (7) the relative means of the parties. Id. at 2 (citing Zaltz, 952 F. Supp. 2d at 45859). Plaintiffs argued that each of these factors supports venue in this District. Id.
On November 13, 2024, Defendant filed a letter motion for a pre-motion conference in
anticipation of its motion to transfer venue and requested in the alternative that the Court transfer
this action sua sponte. Defendant’s Letter Motion for a Pre-Motion Conference (“Def’s PMC
Ltr”), ECF 9. Defendant argued that Plaintiffs’ response addressed “issues of jurisdiction and not
venue” because Plaintiffs “only made reference to 28 U.S.C. § 1331 and § 1332” and did not
address the provisions of 28 U.S.C. § 1391. Def’s PMC Ltr at 3. Under the Court’s Individual

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Practices and Rules, Plaintiffs’ responsive letter was due November 20, 2024. See Individual
Practices and Rules III.B.2 (providing seven days for parties to file a responsive letter to a premotion conference request).
On December 11, 2024, the Court found that Plaintiffs had not filed a response to
Defendant’s pre-motion conference request and therefore ordered Plaintiffs to show cause by
December 18, 2024, “why venue is proper in this district and, if not, whether Plaintiffs object to a
transfer of venue and on what grounds” and to file responsive letter by that date. See December
11, 2024 Order to Show Cause. The Court warned Plaintiffs that failure to show cause by
December 18, 2024, “why venue is proper in this District or present argument in a responsive letter
to Defendant’s letter motion as to where venue should lie” would result in “transfer [of] this action
to the United States District Court for the District of New Jersey or dismiss[al] [of] this action
under Rule 41(b) for failure to prosecute.” Id. Plaintiffs filed a responsive letter making the same
arguments Plaintiffs previously made in their response to the Court’s October 9, 2024 order to
show cause. Plaintiffs’ Responsive Pre-Motion Conference Letter (“Pls’ PMC Opp.”), ECF 10.
Plaintiffs’ responsive letter does not cure the complaint’s failure to establish that venue is
proper in the Eastern District of New York. Indeed, the complaint alleges that Defendant “operates
a public accommodation, a hotel, in the State of New Jersey” Compl. ¶ 3; that Plaintiffs “arrived
at Defendant’s hotel” and that Defendant failed to provide adequate accommodations despite being
made aware “in advance” of Plaintiffs’ “disabilities [and] medical conditions” id. ¶ 6; that, as a
result, Moran “collapse[d]” in the lobby and suffered injuries and Lawrence’s medical conditions
“worsened” id. ¶¶ 9, 10; and that Defendant discriminated against them because of their medical
conditions, id. ¶ 15.

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Venue is governed by 28 U.S.C. § 1391(b), which provides that an action may be brought
in the judicial district “in which any defendant resides,” or “in which a substantial part of the events
or omissions giving rise to the claim occurred, or a substantial part of the property that is the
subject of the action is situated,” or “any judicial district in which any defendant is subject to the
court’s personal jurisdiction with respect to such action” if there is no district in which the action
may otherwise be brought. 28 U.S.C. § 1391(b). Thus, based on the allegations in the complaint,
it is clear that the Eastern District of New York does not satisfy any of these requirements and that
the proper venue for this action is the United States District Court for the District of New Jersey.
See 28 U.S.C. § 110 (“New Jersey constitutes one judicial district.”); see Pisani, 2009 WL 749893,
at *7-8.
Despite two opportunities to show that venue is proper in this District, Plaintiffs have not
in fact provided a basis for venue. Plaintiffs have alleged that Defendant resides in the State of
New Jersey for purposes of venue and acknowledged that “the events that prompted the subject
matter occurred in the State of New Jersey[.]” See Compl. ¶ 3; Resp. to OSC at 3; Pls’ PMC Opp.
at 3. Plaintiffs’ reliance on the factors set forth in Zaltz does not address the threshold question
for the Court, which is whether venue was improper in this District. Plaintiffs argue, inter alia,
that Plaintiffs reside in New York, that most of the documents related to their medical treatment
following the incident in New Jersey to prove her claims and the witnesses are located in New
York. However, the fact that Plaintiffs reside in New York, chose to file their action in this District,
the majority of the witnesses are located in New York, and the proof to substantiate Plaintiffs’
claims is in New York, “does not create venue in this District where all of the events relevant to
the claims took in place in [New Jersey].” Pisani, 2009 WL 749893, at *7. Plaintiffs therefore
have not met §§ 1391(b)(1) and (2)’s requirements and cannot meet § 1391(b)(3)’s requirements

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because Plaintiffs cannot show that there is no district in which this lawsuit could otherwise be
brought under the law. Further, consideration of the “discretionary factors” set in Zaltz and
Plaintiffs’ arguments, on balance, weigh in favor of transfer.
Moreover, a court “shall dismiss, or if it be in the interest of justice, transfer [a case filed
in the wrong district] to any district or division in which it could have been brought.” 28 U.S.C. §
1406(a). A transfer under § 1406(a) may be made upon motion or by a court sua sponte. See
Pisani, 2009 WL 749893, at *8 (E.D.N.Y. Mar. 17, 2009) (collecting cases). Given that the claims
arose in New Jersey and Defendant is located in New Jersey, the Court finds it to be in the interest
of justice to transfer the case.
Accordingly, the Clerk of Court is respectfully directed to transfer this action to the United
States District Court for the District of New Jersey. See 28 U.S.C. § 1406(a). Compliance with
the filing fee requirement is reserved for the transferee Court. The provision of Rule 83.1 of the
Local Rules of the Eastern District of New York, which requires the Clerk of Court to wait seven
days before effectuating the transfer of the case to the transferee court, is waived.
SO ORDERED.
/s/
ORELIA E. MERCHANT
United States District Judge

January 6, 2025
Brooklyn, New York

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