Amberslie v. Prisoner Transport Service of America, LLC et al

Filing 50

ORDER, REPORT, AND RECOMMENDATIONS : It is hereby respectfully RECOMMENDED that defendant's motion to dismiss (Dkt. No. 39 ) be GRANTED in part to the extent outlined in this report and recommendation, and that plaintiff's amended compla int (Dkt. No. 35 ) be DISMISSED, without leave to replead. It is further hereby ORDERED, that the clerk of the court is respectfully directed to modify the court's records to change defendant Prisoner Transport Service of America, LLC name on the docket to "Prisoner Transportation Services of America, LLC." Signed by Magistrate Judge David E. Peebles on 3/4/2019. (Objections to R&R due by 3/21/2019. Case Review Deadline 3/25/2019). (Served plaintiff by regular mail). (sal )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
AKANNI AMBERSLIE,
Plaintiff,
v.

Civil Action No.
9:17-CV-0564 (TJM/DEP)

PRISONER TRANSPORT SERVICE
OF AMERICA, LLC, 1
Defendant.
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
AKANNI AMBERSLIE, Pro Se
17-B-2005
Livingston Correctional Facility
P.O. Box 91
Sonyea, NY 14556
FOR DEFENDANT:
GOLDBERG SEGALLA LLP
8 Southwoods Boulevard
Suite 300
Albany, NY 12211-2526

JONATHAN M. BERNSTEIN, ESQ.

Defendant's motion papers reflect that the proper name of defendant is
"Prisoner Transportation Services, LLC," rather than "Prisoner Transport Service of
America, LLC," the name under which it was sued. Dkt. No. 39-3 at 2. The clerk of the
court will respectfully be directed to modify the court's records to reflect this change.
1

GOLDBERG SEGALLA LLP
5786 Widewaters Parkway
Syracuse, NY 13214-1840

SHANNON T. O'CONNOR, ESQ.

DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
ORDER, REPORT, AND RECOMMENDATION
This is a civil rights action brought by pro se plaintiff Akanni
Amberslie, an inmate currently confined in a New York State prison facility,
pursuant to 42 U.S.C. § 1983, against defendant Prisoner Transportation
Services, LLC ("PTS"), a corporation organized under Tennessee law, and
with its principal place of business near Nashville, Tennessee. In his
amended complaint, plaintiff alleges that defendant was engaged to
transport him in custody from Fayetteville, Georgia to Broome County,
New York as a pretrial detainee, and that during the course of the
transport, he was exposed to inhumane conditions rising to a level of
constitutional significance.
Currently pending before the court is a motion brought by defendant
seeking dismissal of the amended complaint pursuant to Federal Rules of
Civil Procedure 12(b)(3) and 12(b)(6), without leave to replead. In the
motion, defendant argues that (1) plaintiff's complaint fails to set forth facts
sufficient to demonstrate the existence of a plausible due process claim;
(2) plaintiff's amended complaint fails to allege facts to support that his
2

constitutional rights were violated pursuant to an official policy or custom
under the criteria set forth in Monell v. Dep't of Soc. Servs., 436 U.S. 658
(1978); and (3) venue is improper in the Northern District of New York.
Alternatively, defendant seeks a transfer of the action to the Middle District
of Tennessee, where defendant is headquartered, pursuant to 28 U.S.C. §
1404(a). For the reasons set forth below, I recommend that defendant's
motion to dismiss be granted, and plaintiff’s complaint be dismissed.
I.

BACKGROUND 2
On March 14, 2017, plaintiff was transferred into the custody of

defendant PTS to be transported from Georgia to New York.3 Dkt. No. 35
at 3. In the ensuing days that he was in defendant's custody, plaintiff was

In light of the procedural posture of this case, the following recitation is drawn
principally from plaintiff's amended complaint, the contents of which have been
accepted as true for purposes of the pending motion. See Erickson v. Pardus, 551 U.S.
89, 94 (2007) ("[W]hen ruling on a defendant's motion to dismiss, a judge must accept
as true all of the factual allegations contained in the complaint." (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007)); see also Cooper v. Pate, 378 U.S. 546, 546
(1964).
I have also considered plaintiff's opposition to the pending motion to the extent
that it is consistent with, and elaborates upon, the factual allegations contained in the
amended complaint. See Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170 n.1 (2d Cir.
1998) ("[W]e deem [the plaintiff]’s complaint to include the facts contained in his
memorandum of law filed in response to [the defendant]’s 1996 motion to dismiss.").
2

Defendant's transport of plaintiff from Georgia to New York was conducted
pursuant to the Interstate Transportation of Dangerous Criminals Act of 2000, or
"Jeanna's Act", Pub. L. 106-560, S.18998 (Dec. 21, 2000), codified at 34 U.S.C. §
60601 et seq., and the regulations promulgated under that Act and found at 28 C.F.R.
Pt. 97.
3

3

confined to a cramped prisoner transport van, where he was unable to
move or stretch for forty or fifty hours at a time. Dkt. No. 45 at 7. Plaintiff
alleges that he was not provided with his medication in a timely fashion,
that he was not given three meals per day, and that he was deprived of
the use of the bathroom for up to seven hours at a time, resulting in his
having to use a water bottle to relieve himself. Id. at 4-7; see also Dkt. No.
35.
Plaintiff alleges that he suffered these conditions as a result of
defendant's "policies" and the lack of training of its personnel. Dkt. No. 35.
In further support of his claim, plaintiff details the treatment of other
individuals he claims were transported by defendant and subjected to
either unsafe or inhumane treatment as a result of defendant's policies
and lack of training. Dkt. No. 35 at 2-3. As a result of the conditions of his
interstate transport, plaintiff alleges that he suffers from a variety of
ailments, including anxiety, stress, headaches, night terrors, bladder
issues, depression, and pain in his knees. Dkt. No. 45 at 1.
II.

PROCEDURAL HISTORY
Plaintiff commenced this action on May 23, 2017. Dkt. No. 1. His

original complaint named defendant PTS, the State of New York, and
Broome County as defendants. Id. at 1-2. Following the grant of plaintiff's
4

application for leave to proceed in forma pauperis and the court's review of
his complaint pursuant to 28 U.S.C. §§ 1915(e), 1915A, Senior District
Judge Thomas J. McAvoy issued a decision and order on June 8, 2017, in
which he (1) dismissed all claims against the State of New York, with
prejudice; (2) dismissed plaintiff's claims against the Broome County,
without prejudice; (3) dismissed plaintiff's Fourteenth Amendment equal
protection claim against defendant PTS, without prejudice; and (4) ordered
that only plaintiff's Fourteenth Amendment cruel and unusual punishment
claim against defendant PTS survived the court's sua sponte review. See
generally Dkt. No. 4.
In lieu of answering plaintiff’s complaint, defendant moved on August
31, 2017 seeking dismissal of his remaining claims for failure to state a
cognizable claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. See generally Dkt. No. 23. Defendant also moved to dismiss
on the ground that venue was improper pursuant to Rule 12(b)(3) of the
Federal Rules of Civil Procedure and argued, in the alternative, that the
action should be transferred to the United States District Court for the
Middle District of Tennessee. See generally id. As a result of that motion,
and following my issuance of a report and recommendation, Judge

5

McAvoy issued a decision and order on February 22, 2018 dismissing
plaintiff’s complaint, but granting him leave to replead. Dkt. Nos. 33, 38.
Plaintiff availed himself of the opportunity to replead and filed an
amended complaint on February 1, 2018. Dkt. No. 35. On March 6, 2018,
defendant again moved for dismissal of plaintiff’s amended complaint
pursuant to Rule 12(b)(3) and 12(b)(6) of the Federal Rules of Civil
Procedure, arguing in the alternative that the action should be transferred
to the United States District Court for the Middle District of Tennessee,
and on May 31, 2018, submitted additional materials in support of its
motion. Dkt. Nos. 39, 46. Plaintiff filed papers in opposition to the motion
on May 25, 2018. Dkt. No. 45. Defendant's motion, which is now fully
briefed and ripe for determination, has been referred to me for the
issuance of a report and recommendation, pursuant to 28 U.S.C. §§
636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See
also Fed. R. Civ. P. 72(b).
III.

DISCUSSION
A.

Motion to Dismiss for Improper Venue4

As a magistrate judge, although I lack the authority, absent consent of the
parties, to order dismissal of an action, a venue transfer is regarded as a nondispositive matter, which falls within the scope of my non-consensual jurisdiction under
28 U.S.C. § 636(b)(1)(A). Because defendant's motion to transfer venue is raised in
conjunction with its motion to dismiss, however, I have chosen to format my response
to that motion as a recommendation to Judge McAvoy.
4

6

In its motion, defendant asserts that venue is improperly laid in the
Northern District of New York, and that it is therefore entitled to dismissal
of the amended complaint pursuant to Rule 12(b)(3) of the Federal Rules
of Civil Procedure. Dkt. No. 39-10 at 18-22. As an alternative to dismissal,
defendant requests that the matter be transferred to the Middle District of
Tennessee. See generally id. Plaintiff opposes the motion to dismiss, as
well as defendant's alternative argument to transfer. See generally Dkt.
No. 45.
1.

Legal Standard Governing Motions to Dismiss for
Improper Venue - Generally

To survive a motion to dismiss for improper venue pursuant to Rule
12(b)(3) of the Federal Rules of Civil Procedure, it is the plaintiff's burden
to plead that venue is proper in the district in which the case has been
brought. Zaltz v. JDATE, 952 F. Supp. 2d 439, 447 (E.D.N.Y. 2013).
Where, as here, the parties have not yet engaged in discovery, the plaintiff
must only make a prima facie showing of venue being proper, with all the
pleadings and affidavits being construed in plaintiff's favor. Starr v. Michael
Stars, Inc., No. 12-CV-860, 2013 WL 12291517, at *2 (N.D.N.Y. Mar. 21,
2013) (Mordue, J.).5 Thus, in analyzing defendant’s claim of improper

Copies of all unreported decisions cited in this document have been appended
for the convenience of the pro se plaintiff.
5

7

venue, the court must view all facts in the light most favorable to the
plaintiff. Phillips v. Audio Active Ltd., 494 F.3d 378, 384 (2d Cir. 2007).
The court "may consider evidentiary matters outside the pleadings 'by
affidavit or otherwise[.]' " TradeComet.com LLC v. Google, Inc., 693 F.
Supp. 2d 370, 375 n.3 (S.D.N.Y. 2010) (quoting Kamen v. Am. Tel. & Tel.
Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). The question of whether to
dismiss on the basis of improper venue is entrusted to the sound
discretion of the district court. Minnette v. Time Warner, 997 F.2d 1023,
1026 (2d Cir. 1993).
To determine whether venue in this district is "improper," and if a
plaintiff’s complaint is therefore subject to dismissal under Rule 12(b)(3),
the court is guided by 28 U.S.C. § 1391(b), which is applicable to claims
filed pursuant to section 1983. See, e.g., Phillips v. PTS of Am., LLC, No.
16-CV-0466, 2017 WL 9325623, at *2 (E.D. Ky. Sept. 12, 2017) ("There is
no special venue statute for § 1983 civil rights actions."). Pursuant to
section 1391(b), a civil action may be brought in:
(1) a judicial district in which any defendant resides,
if all defendants are residents of the State in which
the district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim
occurred, or a substantial part of property that is the
8

subject of the action is situated; or
(3) if there is no district in which an action may
otherwise be brought as provided in this section,
any judicial district in which any defendant is subject
to the court's personal jurisdiction with respect to
such action.
28 U.S.C. § 1391(b)(1)-(3). 6 As can be seen, "[i]n cases where the plaintiff
brings a civil action in a district other than the one where any defendant
lives, venue will be proper 'if a substantial part of the events or omissions
giving rise to the claim occurred' in that judicial district." E. Mishan & Sons,
Inc. v. Smart and Eazy Corp., No. 18-CV-3217, 2018 WL 6528496, at *7
(S.D.N.Y. Dec. 12, 2018) (quoting 28 U.S.C. § 1391(b)(2)) (finding
plaintiff's choice of venue proper in the Southern District of New York
where defendants, two California corporations, advertised, shipped, and
marketed products to New York residents).
"In the event a court in which an action is pending finds that venue is
improper, a court 'shall dismiss, or if it be in the interest of justice, transfer
[the] case to any district or division in which it could have been brought.' "

6

Subsection (3) of the venue statute is inapplicable unless application of
subsections (1) or (2) do not yield a judicial district in which the action may be brought.
See, e.g., Grasso v. Bakko, 570 F. Supp. 2d 392, 397 (N.D.N.Y. 2008) (Hurd, J.)
("Section (3) is inapplicable because there are other districts in which this action could
have been brought.").
9

Stern v. Westerman Ball Ederer Miller & Sharfstein, LLP, No. 17-CV-0034,
2017 WL 7411022, at *7 (N.D.N.Y. Mar. 23, 2017) (Peebles, M.J) (quoting
28 U.S.C. § 1406(a)); see Goldlawr, Inc. v. Heiman, 369 U.S. 463, 465-67
(1962).
2.

Venue Pursuant to 28 U.S.C. § 1391(b)(1)

A civil action may be brought in "a judicial district in which any
defendant resides[.]" 28 U.S.C. § 1391(b)(1). For purposes of the present
motion, defendant argues that plaintiff cannot rely on residence to
establish venue in the Northern District of New York. Dkt. No. 39-10 at 19.
In particular, defendant asserts that because it is incorporated in the State
of Tennessee and is headquartered in Whites Creek, Tennessee, a
neighborhood of Nashville, it "resides" in the Middle District of Tennessee
for purposes of section 1391(b)(1). Id.; see also Dkt. No. 39-3.
Defendant's argument, however, ignores the contours of 28 U.S.C. §
1391(c)(2), which provides that for purposes of determining proper venue,
a business entity "shall be deemed to reside, if a defendant, in any judicial
district in which such defendant is subject to the court's personal
jurisdiction with respect to the civil action in question[.]" As a result, the
venue question turns not on the location of incorporation or principal place
of business, but on whether the district court can properly assert personal
10

jurisdiction over the corporate defendant. See, e.g., Gonsalves-Carvalhal
v. Aurora Bank, FSB, No. 12-CV-2790, 2014 WL 201502, at *4 (E.D.N.Y.
Jan. 16, 2014).
Personal jurisdiction is determined by "a two-step inquiry." Licci ex
rel. Licci v. Lebanese Canadian Bank, SAL, 732 F.3d 161, 169 (2d Cir.
2013)). First, the court "look[s] to the law of the forum state" to determine
whether there is personal jurisdiction. Id.; see Brown v. Lockheed Martin
Corp., 814 F.3d 619, 624 (2d Cir. 2015). If there is personal jurisdiction
under state law, the court still must consider whether the exercise of
personal jurisdiction over the out-of-state defendant "comports with due
process protections established under the United States Constitution."
Licci, 732 F.3d at 169; see Whitaker v. Am. Telecasting, Inc., 261 F.3d
196, 208 (2d Cir. 2001).
Here, although defendant indicates that it does not have any offices
or employees in the State of New York, see Dkt. No. 39-2 at 5, because it
has ignored the contours of 28 U.S.C. § 1391(c)(2), it has not provided
any additional information from which the court could meaningfully analyze
whether it is subject to the personal jurisdiction of the court for purposes of
venue. I note, however, that defendant has not moved to dismiss the
complaint for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the
11

Federal Rules of Civil Procedure. Moreover, it does appear that defendant
"transacts . . . business" inasmuch as it provides comprehensive prisoner
transportation services for law enforcement agencies across the State of
New York. See N.Y. C.P.L.R. § 302(a)(1).
At this stage, when construing all pleadings and affidavits in
plaintiff's favor, as the court must, particularly in the absence of additional
information from defendant, I am inclined to conclude that venue is proper
in the Northern District of New York pursuant to 28 U.S.C. § 1391(b)(1).
Accordingly, although I recommend that defendant's motion on this basis
be denied, I will proceed to subsection (2) of the venue statute.
3.

Venue Pursuant to 28 U.S.C. § 1391(b)(2)

A challenge to venue pursuant to section 1391(b)(2) is informed by a
two-part inquiry. Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432
(2d Cir. 2005). "First, a court should identify the nature of the claims and
the acts or omissions that the plaintiff alleges give rise to those claims." Id.
Second, a court must determine whether a "substantial part of the events
of omissions giving rise" to plaintiff's claim occurred in this district. Id.; 28
U.S.C. § 1391(b)(2).
In 2005, the Second Circuit joined several other circuits in clarifying
that the phrase "a substantial part" does not mean "the substantial part,"
12

and, accordingly, venue may properly lie in more than one district pursuant
to section 1391(b)(2). Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 356-57
(2d Cir. 2005). The court cautioned, however, that the venue statute must
be strictly construed, and the term "significant" implies that "for venue to
be proper, significant events or omissions material to the plaintiff's claim
must have occurred in the district in question, even if other material events
occurred elsewhere." Id. at 357 (emphasis in original); see also Daniel,
428 F.3d at 432.
"Substantiality is intended to preserve the element of fairness so that
a defendant is not haled into a remote district having no real relationship to
the dispute." Cottman Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294
(3d Cir. 1994). When the material acts or omissions bear a "close nexus to
the claims," they are properly considered "significant" under the statute.
Daniel, 428 F.3d at 433. For events to be considered "substantial,"
however, "does not require a majority of the events to take place here, nor
that the challenged forum be the best forum for the lawsuit to be venued."
Hayes v. Transcor Am., LLC, No. 08-CV-0293, 2009 WL 1795309, at *2
(E.D. Pa. June 23, 2009) (quoting Fellner ex rel. Estate of Fellner v.
Philadelphia Toboggan Coasters, Inc., No. 05-CV-2052, 2005 WL
2660351, at *3 (E.D. Pa. Oct. 18, 2005)). In other words, "significant
13

events or omissions material to the plaintiff's claim must have occurred in
the district in question, even if other material events occurred elsewhere."
Glasbrenner, 417 F.3d at 357; see Fen Wang v. Tavernier, 621 F. App'x.
83, 84 (2d Cir. 2015).
Addressing the first part of the inquiry pertaining to the nature of
plaintiff's claims, and drawing all reasonable inferences in his favor, I note
that plaintiff alleges the following in his amended complaint: (1) defendant
violated plaintiff's Fourteenth Amendment rights during his transfer from
Georgia to New York in which he was "depriv[ed] of food, bathroom,
unreasonable safety and medical attention"; and (2) defendant violated his
Fourteenth Amendment rights through unconstitutional policies and
inadequate training. See generally Dkt. No. 35. In effect, the acts or
omissions giving rise to plaintiff's claims stem from defendant's allegedly
unconstitutional policies and inadequate training, resulting in plaintiff's
"deprivation of food," denial of bathroom breaks, "unreasonable safety,"
and defendant's failure to provide necessary medication. Id.; see also Dkt.
No. 45.
Defendant contests venue in this district, arguing that "a substantial
part" of the events did not occur in New York, and thus venue in this
district is improper. See Dkt. No. 39-10 at 20-22. Although plaintiff does
14

not specifically plead each state through which he was transported,
viewing the facts in the light most favorable to plaintiff, it appears likely that
the alleged acts or omissions giving rise to plaintiff's claims occurred
throughout the duration of his transfer, which spanned through multiple
districts from Georgia to New York. See Dkt. No. 35 at 3 (stating that
plaintiff was subjected to the alleged harm "during his transport . . . from
Georgia to Broome County"). According to the affidavit of defendant's
president and general counsel, Joel W. Brasfield, plaintiff's transport
traversed through the following states: Georgia on March 14 and 15, 2017;
North Carolina, South Carolina, Virginia, and Maryland on March 16, 2017;
Pennsylvania, New York, and New Jersey on March 17, 2017; New Jersey
on March 18, 2017; and New Jersey and Pennsylvania on March 19,
2017. Dkt. No. 39-2 at 7-10. Plaintiff, for the second time, entered the state
of New York in the early morning hours of March 20, 2017, reaching
Buffalo, New York at approximately 12:30 a.m. Dkt. No. 39-2 at 10. The
transport then continued through Syracuse, Oriskany, and Rome before
dropping plaintiff off at his final destination in Binghamton, New York at
approximately 9:00 p.m. Dkt. No. 39-2 at 10.
Despite the fact that the quantity of the acts or omissions alleged to
have occurred in this district is relatively small considering the duration of
15

his interstate transport, those acts or omissions alleged to have been
committed by defendant are not insignificant. " 'Substantiality' for venue
purposes is more a qualitative than a quantitative inquiry, determined by
assessing the overall nature of the plaintiff's claims and the nature of the
specific events or omissions in the forum, and not by simply adding up the
number of contacts." Daniel, 428 F.3d at 432-33; see also Katz v. Mogus,
538 F. Supp. 2d 538, 543 (E.D.N.Y. 2007) (finding venue proper where
less than one-fifth of the conduct giving rise to plaintiff's claimed damages
occurred within the district).
The court is guided by similar cases involving claims against
companies in the primary business of transporting prisoners. In those
cases, several courts have found that although the time spent in the forum
state was minimal, the defendant-transport companies' acts or omissions
in the forum state still bore a "close nexus" to the plaintiffs' claims such
that venue was proper. See, e.g., Hayes, 2009 WL 1795309, at *1
(quoting Leone v. Cataldo, 574 F. Supp. 2d 471, 484 (E.D. Pa. 2008)); see
also Daniel, 428 F.3d at 433 ("When material acts or omissions within the
forum bear a close nexus to the claims, they are properly deemed
"significant" and, thus, substantial.").

16

For example, in Hayes v. Transcor America, LLC, plaintiff was
transported by the defendant over six days, beginning in North Carolina
and ending in Philadelphia, Pennsylvania. Hayes, 2009 WL 1795309, at
*1. The plaintiff alleged that during the course of the transport and in
accordance with its unconstitutional policies, the defendant refused to
provide the plaintiff with his medications and denied his requests to use
bathroom facilities, resulting in the plaintiff defecating on himself. Id.
Applying the "substantial part" test of section 1391(b)(2), the district court
found that venue was proper in the Eastern District of Pennsylvania. Id. at
*2-4. Reasoning that the "within-[d]istrict acts or omissions" bore a close
nexus to plaintiff's claims and were "qualitatively central to [p]laintiff's
claims and comprised[d] part of the historical predicate" for the action, the
court found venue proper in the Eastern District of Pennsylvania. Id. at *3
(quoting Estate of Moore v. Dixon, 460 F. Supp. 2d 931, 936 (E.D.Wis.
2006)) (internal quotation marks omitted); see also Hastings v. Inmate
Servs. Corp., No. 2:17-CV-145, 2017 WL 5138272, at *5 (M.D. Fla. Nov.
6, 2017) (finding venue proper pursuant to section 1391(b)(2) in the Middle
District of Florida on plaintiff's section 1983 claims alleging inadequate
medical care during plaintiff's fifteen-day trip from California to Florida
because plaintiff alleged the misconduct continued while in defendant's
17

custody in the state of Florida and plaintiff claimed he was treated for his
injuries in Florida); Schilling v. Transcor Am., LLC, No. 08-CV-0941, 2009
WL 3334889, at *4 (N.D. Cal. Oct. 14, 2009) (finding venue proper
pursuant to section 1391(b)(2) because "it [was] undisputed that at least
some portion of [the prisoner's] route was in the Northern District.").
Drawing all reasonable inferences in plaintiff's favor, I find that a
substantial portion of the events or omissions giving rise to plaintiff's
claims occurred in this district, and that venue is therefore proper in the
Northern District of New York pursuant to 29 U.S.C. § 1391(b)(2).
Accordingly, I recommend that defendant's motion on this basis also be
denied.
B.

Motion to Transfer Venue

In the alternative, defendant has requested that the court, in the
exercise of its discretion, transfer the case to the Middle District of
Tennessee, where PTS is headquartered, pursuant to 28 U.S.C. 1404(a).
Dkt. No. 39-10 at 24-29. That section provides, in relevant part, as follows:
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.
28 U.S.C. § 1404(a); see Gottlieb v. U.S. Sec. & Exch. Comm'n, 723 F.
18

App'x 17, 19 (2d Cir. 2018) (summary order)). "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
expense." Flaherty v. All Hampton Limousine, Inc., 01 Civ 9939, 2002 WL
1891212, at *1 (S.D.N.Y. Aug. 16, 2002) (internal quotation marks omitted)
(quoting Eskofot A/S v. E.I. Du Pont De Nemours & Co., 872 F. Supp. 81,
94 (S.D.N.Y. 1995)); see also Van Dusen v. Barrack, 376 U.S. 612, 616
(1964). The decision of whether to grant a requested transfer under
section 1404(a) is addressed to the sound discretion of the court. Nelson
A. Taylor Co., Inc. v. Tech. Dynamics Grp. Inc., No. 95-CV-0431, 1997 WL
176325 (N.D.N.Y. Apr. 7, 1997) (Pooler, J.) (citing Minnette v. Time
Warner, 997 F.2d 1023, 1026 (2d Cir. 1993)).
In this circuit, the decision of whether to grant a requested transfer
under section 1404 is informed by several relevant factors, including
(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.
D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106-07 (2d Cir. 2006)
(alteration in original) (quoting Albert Fadem Trust v. Duke Energy
19

Corp., 214 F. Supp. 2d 341, 343 (S.D.N.Y. 2002)); see also N.Y. Marine &
Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 112 (2d Cir. 2010);
Wagner v. N.Y. Marriot Marquis, 502 F. Supp. 2d 312, 314 (N.D.N.Y.
2007) (Mordue, J.).
A party seeking to transfer under section 1404(a) bears the " 'burden
of making out a strong case for a transfer.' " Filmline Prods., Inc. v. United
Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989) (quoting Ford Motor Co. v.
Ryan, 182 F.2d 329, 330 (2d Cir. 1950). Although the Second Circuit has
never explicitly approved a district court's use of the
'clear and convincing evidence' standard in ruling on
a motion to transfer venue . . . [i]t is . . . appropriate
that the district courts in [this] Circuit have
consistently applied the clear and convincing
evidence standard in determining whether to
exercise discretion to grant a transfer motion.
N.Y. Marine, 599 F.3d at 113-14. Thus, the court should not "disturb a
plaintiff's choice of forum 'unless [the d]efendants make a clear and
convincing showing that the balance of convenience favors [their] choice.'"
View 360 Sols., LLP v. Google, Inc., 12-CV-1352, 2013 WL 998379, at *1
(N.D.N.Y. Mar. 13, 2013) (Dancks, M.J.), report and recommendation
adopted by 2013 WL 12130430 (N.D.N.Y. Aug. 13, 2013) (Suddaby, C.J.).
Here, because this case could have been brought in the proposed
transferee district, the determination of whether the action should be
20

transferred to the Middle District of Tennessee will turn on the balance of
the convenience and interest of justice factors. While plaintiff's choice of
forum is afforded considerable weight, "[c]onvenience of both party and
non-party 'witnesses is probably the single-most important factor in the
analysis of whether transfer should be granted.' " In re Bennett Funding
Grp., Inc., 259 B.R. 243, 249 (N.D.N.Y. 2001) (Kahn, J.) (quoting Berman
v. Informix Corp., 30 F. Supp. 2d 653, 657 (S.D.N.Y. 1998)). An evaluation
of this factor typically involves weighing the materiality of testimony
witnesses may provide, the number of witnesses, and where those
witnesses are located. See View 360, 2013 WL 12130430, at *5. To that
end, the Second Circuit has stated that when a party seeks to rely on the
"convenience of witnesses" factor, the party "must clearly specify the key
witnesses to be called and must make a general statement of what their
testimony will cover." Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218
(2d Cir. 1978), abrogated on other grounds by Pirone v. MacMillan, Inc.,
894 F.2d 579, 586 (2d Cir. 1990). This requirement exists so that the court
may appropriately assess the inconvenience of a particular forum. See
Beatie & Osborn LLP v. Patriot Sci. Corp., 431 F. Supp. 2d 367, 396
(S.D.N.Y. 2006).

21

Here, through the affidavit of Mr. Brasfield, defendant PTS states
that it expects to call James Carder, an individual whom they identify as
the "Officer in Charge" and one of the drivers participating in plaintiff's
transport, as a witness. Dkt. No. 39-2 at 5. Defendant acknowledges,
however, that Mr. Carder does not reside in Tennessee, but is based in
Florida. Id. Although the Middle District of Tennessee is somewhat closer
to Mr. Carder's residence, either district would be equally inconvenient for
that witness.
Defendant also states that "the number of witnesses relevant to this
action is unknown, but witnesses with knowledge of extradition transports
such as this one . . . are located in Tennessee." Id. at 6. Plaintiff, on the
other hand, has identified numerous witnesses who he believes will testify
on his behalf regarding the conditions of his transportation, including one
of the two drivers of the transport. See Dkt. No. 45 at 7-9. Plaintiff claims
his witnesses are located in the northeast, including in Syracuse, New
York, Pennsylvania, and New Jersey, although he does provide the
specific location of each witness listed. See Dkt. No 45 at 7-9. While the
"convenience of witness" factor would normally weigh in favor of defendant
in light of plaintiff's allegations regarding the unconstitutional policies of
defendant, considering plaintiff's identification of specific witnesses that he
22

intends to call at trial, I do not find that this factor weighs heavily in favor of
one party over the other such that it should disturb plaintiff's choice of
venue.
With respect to the third convenience and interest of justice factor,
including the location of documents, defendant recognizes that "[a]lthough
documents in this case may be available electronically, . . . it will be easier
to access in the Middle District of Tennessee since all of the original
documents are housed at Defendants home office located in Whites
Creek, Tennessee." Dkt. No. 39-10 at 26-27. Although the documents are
physically located in Tennessee and this factor would weigh in favor of
transfer, "the [c]ourt does not view it as particularly significant given that
we live in a technological age, where electronic production has become
the norm in litigation." Zaltz, 952 F. Supp. 2d at 462. In addition, this factor
is not entitled to great weight because defendant has not indicated that
transporting the original documents from Tennessee would be particularly
burdensome. See, e.g., Larew v. Larew, 11-CV-5771, 2012 WL 87616, at
*5 (S.D.N.Y. Jan. 10, 2012); see also Weintraub v. Advanced Corr.
Healthcare, Inc., 161 F. Supp. 3d 1272, 1283 (N.D. Ga. 2015) ("Since the
predominance of electronic discovery in the modern era, most courts have

23

recognized that the physical location of relevant documents is no longer a
significant factor in the transfer inquiry").
Turning next to the fourth factor and considering the convenience of
the parties, it is true that defendant will suffer some inconvenience if the
case remains in the Northern District of New York. The reality, however, is
that the plaintiff is currently incarcerated in a facility located within the
Western District of New York, and therefore will suffer considerable
hardship if the case were to be transferred to the Middle District of
Tennessee. " '[W]here transfer would merely shift the inconvenience from
one party to the other,' the court should leave plaintiff's choice of venue
undisturbed." Wagner, 502 F. Supp 2d at 316 (quoting Wilshire Credit
Corp. v. Barrett Capital Mgmt. Corp., 976 F. Supp. 174, 182 (W.D.N.Y.
1997)). Accordingly, this factor favors the action remaining in the Northern
District of New York and against transferring the action to the Middle
District of Tennessee.
When examining the locus of operative facts, "courts look to the 'site
of the events from which the claim arises.' " Oubre v. Clinical Supplies
Mgmt., Inc., No. 05-CV-2062, 2005 WL 3077654, at *4 (S.D.N.Y. Nov. 17,
2005) (quoting 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.
Supp. 128, 134 (S.D.N.Y. 1994)). While the alleged harm suffered by
24

plaintiff may ultimately have flowed from defendant's policies, which were
likely drafted and originated in Tennessee, where PTS is headquartered,
the relevant events themselves are alleged to have occurred as a
continuum over the course of plaintiff’s journey from Georgia to New York.
This factor is thus neutral, at best.
As for the availability of process to compel the attendance of
unwilling witnesses, this court has the authority to compel the attendance
of a non-party witness within one hundred miles of where the individual
resides, is employed, or regularly conducts business. Fed. R. Civ. P.
45(c)(1)(A). For party witnesses, the court may compel a witness's
compliance within the state where the person resides, is employed, or
regularly transacts business. Fed. R. Civ. P. 45(c)(1)(B). Defendant has
indicated that the witnesses it intends to call either reside in Florida or
Tennessee, and thus the court is not convinced it may compel those
witnesses, if they were unwilling, to attend a trial in the Northern District of
New York. See Dkt. 39-2 at 4-5 (identifying defendant's potential
witnesses). Plaintiff has stated that he believes one potential witness lives
in Syracuse, whereas another potential witness may reside in New Jersey.
See Dkt. No 45 at 7-9. For the remainder of the witnesses listed by
plaintiff, no residence was provided. See Dkt. No 45 at 9 (listing the names
25

of thirteen witnesses). Considering that the location of plaintiff's witnesses
is likely speculative, the court is not convinced it has the authority to
compel the attendance of any witnesses listed by plaintiff. Thus, this factor
weighs in favor of defendant's requested transfer where the majority its
witnesses may be compelled to attend in the Middle District of Tennessee.
Finally, with respect to the relative means of the parties, I find that
this factor weighs heavily in favor of plaintiff. "Where a disparity exists
between the means of the parties, such as in the case of an individual
suing a large corporation, the court may consider the relative means of the
parties in determining where a case should proceed." 800-Flowers, Inc.,
860 F. Supp. at 135. In response to defendant's motion to transfer, plaintiff
asserts that he is proceeding pro se and has limited resources. Dkt. No.
45 at 8. Plaintiff further notes that travel to Tennessee is hindered by his
incarceration. Id. Where a party argues against transfer based on
inadequate means, he must offer documentation to demonstrate that
transfer would be unduly burdensome on his or her finances. See Zaltz,
952 F. Supp. 2d at 463-64 (citing cases); see also Weintraub, 161 F.
Supp. 3d at 1284 (concluding that because the defendant was "a large
and established company" and plaintiff was "retired and of modest
means," this factor weighed against transfer). As plaintiff is proceeding in
26

forma pauperis in this matter, documentation is before the court regarding
plaintiff's financial status. See generally Dkt. No. 2. In light of the apparent
disparity in the financial means of the parties, the court finds that this
factor weighs heavily in favor of keeping the case in this district.
Finally, defendant argues that in the interest of justice and trial
efficiency, this matter should be transferred. While courts often consider
this factor in making a transfer determination, see, e.g., 800-Flowers, 860
F. Supp. at 135 (discussing application of the "interest of justice" factor),
defendant has not offered any meaningful points for consideration beyond
the factors already discussed herein. See Dkt. No. 39-10 at 29. Thus, I
find no compelling reason as to why the matter should be transferred to
the Middle District of Tennessee.
On consideration of the relevant factors, I find that notions of
convenience and fairness weigh in favor of upholding plaintiff’s choice of
venue in this district. While defendant has demonstrated that it would
suffer some inconvenience should the matter remain here, other factors
weigh heavily in plaintiff's favor, namely plaintiff's choice of forum,
plaintiff's residence, and the relative means of the parties. Accordingly, I
recommend that defendant's motion to transfer be denied.
C.

Defendant's Motion to Dismiss Pursuant to Rule 12(b)(6)
27

1.

Legal Standard

A motion to dismiss a complaint, brought pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, calls upon a court to gauge the
facial sufficiency of that pleading using a standard which, though
unexacting, "demands more than an unadorned, the-defendant-unlawfullyharmed me accusation" in order to withstand scrutiny. Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 554,
555 (2007)). Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, "a
pleading must contain a 'short and plain statement of the claim showing
that the pleader is entitled to relief.' " Iqbal, 556 U.S. 677-78 (quoting Fed.
R. Civ. P. 8(a)(2)). While modest in its requirements, that rule commands
that a complaint contain more than mere legal conclusions. See Iqbal, 556
U.S. at 679 ("While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.").
In deciding a Rule 12(b)(6) dismissal motion, the court must accept
the material facts alleged in the complaint as true and draw all inferences
in favor of the non-moving party. Erickson v. Pardus, 551 U.S. 89, 94
(2007) (citing Twombly, 550 U.S. at 555-56); see also Cooper, 378 U.S. at
546; Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir.
2003); Burke v. Gregory, 356 F. Supp. 2d 179, 182 (N.D.N.Y. 2005)
28

(Kahn, J.). To withstand a motion to dismiss, "a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is
plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S.
at 570); see also Ruotolo v. City of N.Y., 514 F.3d 184, 188 (2d Cir. 2008).
As the Second Circuit has observed, "[w]hile Twombly does not require
heightened fact pleading of specifics, it does require enough facts to
'nudge plaintiffs' claims across the line from conceivable to plausible.'" In
re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (quoting
Twombly, 550 U.S. at 570) (alterations omitted).
When assessing the sufficiency of a complaint against this backdrop,
particular deference should be afforded to a pro se litigant, whose
complaint merits a generous construction by the court when determining
whether it states a cognizable cause of action. Erickson, 551 U.S. at 94
("'[A] pro se complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.'" (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976) (citation omitted)); Sealed
Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) ("[W]hen a
plaintiff proceeds pro se, a court is obliged to construe his pleadings
liberally." (quotation marks and alterations omitted)); Kaminski v. Comm'r
of Oneida Cty. Dep't of Soc. Servs., 804 F. Supp. 2d 100, 104 (N.D.N.Y.
29

2011) (Hurd, J.) ("A pro se complaint must be read liberally.").
2.

Plaintiff's Due Process Claim

Section 1983 "establishes a cause of action for 'the deprivation of
any rights, privileges, or immunities secured by the Constitution and laws'
of the United States." German v. Fed. Home Loan Mortg. Corp., 885 F.
Supp. 537, 573 (S.D.N.Y. 1995) (citing Wilder v. Virginia Hosp. Ass'n, 496
U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983)). It " 'is not itself a source
of substantive rights[,] . . . but merely provides 'a method for vindicating
federal rights elsewhere conferred[.]' " Patterson v. Cty. of Oneida, 375
F.3d 206, 225 (2d Cir. 2004) (quoting Baker v. McCollan, 443 U.S. 137,
144 n.3 (1979)). In order to state a claim pursuant to section 1983, a
plaintiff must allege "(1) 'that some person has deprived him of a federal
right,' and (2) 'that the person who has deprived him of that right acted
under color of state . . . law.' " Velez v. Levy, 401 F.3d 75, 84 (2d Cir.
2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640 (1980)); accord, Byng
v. Delta Recovery Servs. LLC, 568 F. App'x 65, 65-66 (2d Cir. 2014).
State action is an essential element of any claim that is brought
pursuant to section 1983. Gentile v. Republic Tobacco Co., No. 95-CV1500, 1995 WL 743719, at *2 (N.D.N.Y. Dec. 6, 1995) (Pooler, J.) (citing
Velaire v. City of Schenectady, 862 F. Supp. 774, 776 (N.D.N.Y. 1994)
30

(McAvoy, J.)). A private entity becomes a state actor when there is " 'such
a close nexus between the [s]tate and the challenged action' that the state
is 'responsible for the specific conduct." Fabrikant v. French, 691 F.3d 193,
206 (2d Cir. 2012) (alteration and emphasis in original) (quoting Cranley v.
Nat'l Life Ins. Co. of Vt., 318 F.3d 105, 111 (2d Cir. 2003)). Courts employ
three main tests to determine whether private actions are attributable to
the states:
(1) [when] the entity acts pursuant to the coercive
power of the state or is controlled by the state ("the
compulsion test"); (2) when the state provides
significant encouragement to the entity, the entity is
a willful participant in joint activity with the state, or
the entity's functions are entwined with state
policies ("the joint action test" or "close nexus test");
or (3) when the entity has been delegated a public
function by the state ("the public function test").
Id. at 207 (quoting Sybalski v. Indep. Grp. Home Living Program Inc., 546
F.3d 255, 257 (2d Cir. 2008)).
Notably, numerous district courts have permitted a plaintiff to
proceed with section 1983 claims against private corporations engaged in
offering prison transport services. See, e.g., McCorvey v. Prison Transp.
Servs. of Am., LLC, No. CV 16-16993, 2017 WL 2270024, at *3 n.5 (Apr.
25, 2017), report and recommendation adopted by 2017 WL 2256778
(E.D. La. May 23, 2017); Lewis v. Extradition Transp. of Am., No. 13-CV31

0138, 2014 WL 494573, at *4 & n.2 (D. Mont. Feb. 5, 2014); Nave v.
Trans-Cor of Am., No. 06-CV-1065, 2007 WL 2156670, at *4 (D.S.C. July
26, 2007). Here, all parties acknowledge that defendant is a private entity.
Dkt. 35 at 1; Dkt. 39-2 at 4. At this juncture, however, defendant does not
dispute that it is a state actor for purposes of a claim brought pursuant to
section 1983. See Dkt. 39-10 at 14.
Defendant does argue that plaintiff's allegations, even if accepted as
true, do not rise to a level of constitutional significance nor do the facts as
pled support a finding that any PTS employee acted with the requisite
state of mind necessary to establish a due process violation. Dkt. No. 3910 at 12-13. As a state pretrial detainee, plaintiff's claims are subject to
analysis under the due process clause of the Fourteenth Amendment,
which governs claims of unconstitutional conditions of confinement of nonsentenced prisoners. Darnell v. Pineiro, 849 F.3d 17, 29 (2d Cir. 2017);
Brown v. City of New York, No. 13-CV-06912, 2017 WL 1390678, at *10
(S.D.N.Y. Apr. 17, 2017). To establish such a claim under the Fourteenth
Amendment, a pretrial detainee must demonstrate that the defendant
responsible for the allegedly unconstitutional conditions of confinement
acted with deliberate indifference to the plaintiff's circumstances. Darnell,
849 F.3d at 29; Brown, 2017 WL 1390678, at *10. This, in turn, entails a
32

two-prong inquiry, including both "an 'objective prong' showing that the
challenged conditions were sufficiently serious to constitute objective
deprivations of the right to due process, and a 'subjective prong'—perhaps
better classified as a 'mens rea prong' or 'mental element prong'—showing
that the [defendant] acted with at least deliberate indifference to the
challenged conditions." Darnell, 849 F.3d at 29.
To satisfy the objective prong at the pleading stage, plaintiff must
allege facts that plausibly demonstrate, either alone or in combination, that
he faced conditions posing an unreasonable risk of serious damage to his
health. Darnell, 849 F.3d at 29. There is no bright-line "test" to determine
whether the deprivation is sufficiently serious; rather, the objective prong is
" 'evaluated in light of contemporary standards of decency.' " Id. (quoting
Blissett v. Coughlin, 66 F.3d 531, 537 (2d Cir. 1995)); see also Rhodes v.
Chapman, 452 U.S. 337, 346 (1981). Applying this standard, I note that
the Second Circuit has held a prisoner may not be deprived of basic
human needs, including, for example, food, shelter, medical care, and
reasonable safety. Darnell, 849 F.3d at 29 (quoting Jabbar v. Fischer, 683
F.3d 54, 57 (2d Cir. 2012)). Under Darnell, the second prong is ultimately
informed through an objective lens as
the pretrial detainee must prove that the defendantofficial acted intentionally to impose the alleged
33

condition, or recklessly failed to act with reasonable
care to mitigate the risk that the condition posed to
the pretrial detainee even though the defendantofficial knew, or should have known, that the
condition posed an excessive risk to health or
safety. In other words, the 'subjective prong' (or
'mens rea prong') of a deliberate indifference claim
is defined objectively.
Id. at 35.
Plaintiff alleges that defendant subjected him to "the deprivation of
food, bathroom, unreasonable safety and medical attention," and was
provided "a fast food sandwich for days when a prisoner is provided 3
meals a day." Dkt. No. 35 at 3 (internal quotation marks omitted). In his
opposition to defendant's motion, plaintiff elaborates that "everytime [sic]
myself or anyone on the van requested permission to use the bathroom[,]
[O]fficer Carder would say that he had to call a local precinct or jail to see
if they would allow us to stop at their jail and allow us to use the
bathroom." Dkt. No. 45 at 7. Plaintiff further states that although he cannot
recall every bathroom break during the course of the transport, he
remembers "several occasions where [he and fellow prisoners] weren't
allowed to use the bathroom for several hours," and he used "water bottles
for a urinal for most of this trip." Id. Regarding food, plaintiff recounted one
occasion where he was fed by hospital staff from Oneida Hospital as
opposed to being provided food by PTS drivers. Id. at 3. In his response,
34

plaintiff does not elaborate any further regarding his alleged "deprivation of
food," nor does he elaborate upon his allegation of "unreasonable safety."
See generally Dkt. No. 45; Dkt. No. 35 at 3.
With respect to the allegation that he was deprived of medical
attention, plaintiff provides additional facts in his opposition, alleging that
"[b]etween the time of March 14th- March 19 2016 [he] was denied [his]
blood pressure medication when [he] was having serious problems due to
hypertension"; "[t]he PTS officers were told by the nurse at fayetteville
county jail that it was extremely important that [he] was given [his]
medication every morning at 8:00 a.m. consistently"; "[he] was only given
[his] medication in Georgia and Maryland"; [he] only received [his]
medication in Maryland while using the restroom at a police station on the
16th at 11:00 p.m. [He] didn't receive medication until leaving Kearney NJ
in the morning 3 days after"; "[t]he mishandling of [his] medication could
have resulted in [his] having a stroke or a heart attack while on the
highway traveling through a number of different states." Dkt. No. 45 at 4-5.
Plaintiff's broad allegations regarding the deprivation of food,
bathroom breaks, and unreasonable safety, over a relatively brief, finite
period, which have been accepted as true as they must at this procedural
stage, fail to rise to a level sufficient to sustain claim for a due process
35

violation under the Fourteenth Amendment. See e.g., Walker v. Schriro,
2013 WL 1234930, at *12-*13 (S.D.N.Y. Mar. 26, 2013) (finding that a twoday confinement without access to "access to food, shower, linens,
running water, and a bathroom" did not amount to a constitutional
deprivation); Dzwonczyk v. Syracuse City Police Dep't, 710 F. Supp. 2d
248, 269 (N.D.N.Y. 2008) (McCurn, J.) (finding that an overnight
deprivation of food and water did not amount to a constitutional
deprivation). Although plaintiff's amended complaint appears to allege that
defendant had knowledge of the alleged prohibited conduct through its
application of unconstitutional policies, as discussed herein, the harm
alleged by plaintiff does not rise to a level of constitutional significance.
Thus, the court need not analyze the second, mens rea prong of the test
for plaintiff's allegations regarding the deprivation of food and bathroom
breaks and unreasonable safety. 7
Plaintiff's allegations claiming deprivation of medical care require
closer examination, as plaintiff elaborates to a greater extent regarding
defendant's alleged failure to provide plaintiff his medication. Although not

I note that plaintiff's amended complaint states documents are attached to his
pleading "in substantiation of this objective prong." See Dkt. No. 35. However, no such
documents are attached to his amended complaint.
7

36

specifically set forth, the court liberally construes plaintiff's amended
complaint, in conjunction with his opposition to defendant's motion to
dismiss, to assert a claim for deliberate indifference to his medical needs.
To plead a cognizable medical deprivation claim under the Fourteenth
Amendment, plaintiff's allegations must still meet the two-prong analysis
discussed above—that is, plaintiff must establish that the deprivation was
"sufficiently serious" and that defendant was aware of plaintiff's medical
needs and "consciously disregarded a substantial risk of serious harm" to
plaintiff's health. See, e.g., Dzwonczyk, 710 F. Supp. 2d at 268 (internal
citations omitted). At this juncture, I am unable—given the paucity of
factual allegations in his amended complaint—to determine whether
plaintiff's medical condition constitutes a "sufficiently serious" condition.
See Araujo v. City of New York, No. 08-CV-3715, 2010 WL 1049583, at *7
(E.D.N.Y. Mar. 19, 2010) (stating that "[a]lthough the Second Circuit has
articulated factors that are relevant to whether a medical condition is
'sufficiently serious,' . . . the [c]ourt cannot make a conclusive
determination on that issue in this case at the motion to dismiss stage,
based upon the allegations in the complaint" where plaintiff alleged he
needed various medications for his diabetes, high blood pressure, and
post-traumatic stress disorder).
37

However, even assuming that plaintiff has satisfied the first prong of
the analysis, plaintiff has not sufficiently pled facts reflecting that
defendant acted with reckless indifference to plaintiff's medical condition.
Despite plaintiff's allegation that a nurse from the Fayetteville County Jail
informed defendant of plaintiff's need to take blood pressure medication,
plaintiff has not alleged he informed defendant that he had a lifethreatening medical condition, made requests to defendant for his
medications, or requested immediate medical care at any of the stops
during the transport. See Dkt. Nos. 35, 45. At best, plaintiff’s allegations
tend to show little more than an inadvertent failure to provide him with
adequate medical care over a brief period, and thus fail to rise to a level of
constitutional magnitude. See, e.g., Araujo, 2010 WL 1049583, at *7
(finding only inadvertent failure to provide medical care where plaintiff
failed to request immediate emergency care while in custody and failed to
inform an official that he had a "serious medical condition that caused
extreme pain, was life-threatening or fast-degenerating"). Moreover,
despite the fact that plaintiff was to take his medication daily, plaintiff
admits that his need for his medication did not go completely ignored by
defendant. See Dkt. No. 45 at 4 (noting that he received his medication in
Georgia, Maryland, and New Jersey); see also Dzwonczyk, 710 F. Supp.
38

2d at 269 (finding that "because [the p]laintiff's alleged injury is not
sufficiently serious, and because he alleges that his medical concerns
were addressed by at least one person, he fails to state a claim against
[the d]efendants for deliberate indifference to a medical need.").
Accordingly, since plaintiff has failed to allege facts to support a
cognizable due process claim under the Fourteenth Amendment, I
recommend a finding that his remaining claim is subject to dismissal.
2.

Plaintiff's Supervisory Claims Under Monell

As an alternative basis for seeking dismissal under Rule 12(b)(6),
defendant argues that plaintiff's allegations fail to satisfy the criteria set
forth under Monell.
Even assuming plaintiff could meet his burden to demonstrate a
plausible due process claim, this would not carry the day for plaintiff.
Similar to holding a municipality liable for a constitutional tort, when
attempting to hold a private entity accountable, plaintiff must allege that
actions of defendant's employees were taken pursuant to some official
policy or custom of defendant that caused the constitutional violation to
occur. Rojas v. Alexander's Dep't Store, 924 F.2d 406, 408 (2d Cir. 1990);
see, e.g., Karn v. PTS of Am., LLC, No. 16-CV-3261, 2017 WL 4162251,
at *5 (D. Md. Sept. 19, 2017) (noting that the plaintiff could "proceed only
39

against the PTS employees in their personal capacities, or seek to
establish that the employees were acting pursuant to an official policy or
custom of PTS."); Bess v. City of New York, No. 11-CV-7604, 2013 WL
1164919, at *2 (S.D.N.Y. Mar. 19, 2013) ("Despite the fact that it is a
private entity, [the private defendant] enjoys the benefit of the Monell
requirements for the same reason it may be named as a defendant in a
[section] 1983 suit."). In the absence of such a showing, a private entity,
such as defendant, cannot be held liable for the constitutional torts of its
employees because there is no respondeat superior liability under section
1983, whether the defendant is a municipality or a private entity acting for
the state. See Rojas, 924 F.2d at 40; Whalen v. Allers, 302 F. Supp. 2d
194, 202-03 (S.D.N.Y. 2003).
An entity may be held accountable for a constitutional violation that
has occurred pursuant to "a policy statement, ordinance, regulation, or
decision officially adopted and promulgated by [the municipality's] officers .
. . [or] pursuant to governmental 'custom' even though such a custom has
not received formal approval through the body's official decision-making
channels." Monell., 436 U.S. at 690-91. Such liability can be established in
various ways, including through "proof of an officially adopted rule or
widespread, informal custom[] [demonstrating] 'a deliberate government
40

policy of failing to train or supervise its officers.' " Bruker v. City of N.Y. 337
F. Supp. 2d 539, 556 (S.D.N.Y. 2004) (quoting Anthony v. City of N.Y.,
339 F.3d 129, 140 (2d Cir. 2003)). A plaintiff may also show that the
allegedly unconstitutional action was "taken or caused by an official whose
actions represent official policy," Jeffes v. Barnes, 208 F.3d 49, 57 (2d Cir.
2000), or when municipal officers have acquiesced in or condoned a
known policy, custom, or practice that violates federal law. Amnesty Am. v.
Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004); see also Reynolds
v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007) ("Monell's policy or custom
requirement is satisfied where a local government is faced with a pattern
of misconduct and does nothing, compelling the conclusion that the local
government has acquiesced in or tacitly authorized its subordinates'
unlawful actions.").
A state actor's failure to act "satisfies the policy or custom
requirement only where the need to act is so obvious, and the inadequacy
of current practices [is] so likely to result in a deprivation of federal rights[]
that the municipality . . . can be found deliberately indifferent to the need."
Reynolds, 506 F.3d at 192 (citing City of Canton, Ohio v. Harris, 489 U.S.
378, 390 (1989)). Assuming a plaintiff can prove that a state action has
acquiesced to a pattern of conduct that may result in a violation of federal
41

law, "for liability to attach[,] . . . the identified deficiency . . . must be closely
related to the ultimate injury." City of Canton, 489 U.S. 391; accord,
Amnesty Am., 361 F.3d at 130 ("City of Canton requires that plaintiffs
establish not only that the officials' purported failure to train occurred under
circumstances that could constitute deliberate indifference, but also that
plaintiffs identify a specific deficiency in the city's training program and
establish that . . . it actually caused the constitutional deprivation." (internal
quotation marks omitted)).
Plaintiff's complaint fails to allege facts that would plausibly establish
Monell liability on the part of defendant PTS. See generally Dkt. No. 35.
The Supreme Court’s decision in Twombly and Iqbal both require that
Monell-like liability claims provide a "factual description of such a policy,
not just bald allegations that such a thing existed." Bess, 2013 WL
1164919, at *2 (citing Davis v. City of New York, 07-CV-1395, 2008 WL
2511734 (S.D.N.Y. June 19, 2008)); see also Dilworth v. Goldberg, 914 F.
Supp. 2d 433, 454 (S.D.N.Y. 2012) (requiring more than simply conclusory
allegations that an employee did not receive proper training and
unexplained implications that additional training would have resulted in
better conditions).

42

Here, plaintiff alleges that defendant employs multiple policies that
result in the endangerment of passengers' lives during transport. Dkt. No.
35 at 2. These purported "policies" on behalf of defendant include a policy
to "operate vans without bathrooms," lack of adequate bathroom breaks,
and a lack of seatbelts in the prisoner transport vans. Id. (internal
quotation mark omitted). Plaintiff alleges that with respect to the lack of
seatbelt policy, it has resulted in over ten "crashes involving injuries and
even death . . . because prisoners are shackled, but without [seatbelts
and] unable to brace themselves." Id. However, plaintiff simply alleges that
because certain conditions existed, they result from unidentified policies,
as opposed to providing a factual description of the alleged policies.
Likewise, plaintiff has also failed to plead sufficient facts to show that such
customs constitute a deprivation of federal rights such that defendant may
be found deliberately indifferent to plaintiff's needs.
Moreover, plaintiff contends that although defendant provides
training to its employees, that training is wholly inadequate. Dkt. No. 35 at
1-2. Plaintiff contends that defendant's employees do not receive training
in "medical and mental health education," which would plaintiff alleges
would "prevent[ the] deprivation of life, [and] minimize[] the risk of injuries"
suffered by prisoners during transport. Id. at 2. Yet, plaintiff has not
43

pleaded any facts with respect to how this alleged failure to train resulted
in a deprivation of plaintiff's rights.
Plaintiff also points to specific instances where passengers were
allegedly injured during the course of their transportation by defendant,
including a 2009 crash that resulted in the death of an unidentified
passenger due to lack of seatbelt; the 2014 death of William Weintraub
due to lack of medical attention; the 2014 death of Denise Isaacs due to
lack of medical attention; and the 2016 death of William Culpepper due to
lack of medical attention. Dkt. No. 35 at 3. These isolated instances devoid
of any further context, while perhaps indicating negligence on the part of
individual drivers, do not amount to a pattern of misconduct. Reynolds,
506 F.3d at 192 ("Such a pattern, if sufficiently persistent or widespread as
to acquire the force of law, may constitute a policy or custom within the
meaning of Monell."). There are no allegations as to when the training
occurred, what training was provided to the driver on plaintiff's transport, or
most notably, any connection to the ultimate injury alleged in this case.
Accordingly, as an alternative basis for dismissal of plaintiff's
remaining claim, I recommend a finding that plaintiff's amended complaint
fails to allege facts that would demonstrate a plausible basis to find
Monell-type liability on the part of defendant PTS.
44

D.

Whether to Permit Amendment

Ordinarily, a court should not dismiss a complaint filed by a pro se
litigant without granting leave to amend at least once "when a liberal
reading of the complaint gives any indication that a valid claim might be
stated." Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also
Fed. R. Civ. P. 15(a) ("The court should freely give leave when justice so
requires."); see also Mathon v. Marine Midland Bank, N.A., 875 F. Supp.
986, 1003 (E.D.N.Y.1995) (permitting leave to replead where court could
"not determine that the plaintiffs would not, under any circumstances, be
able to allege a civil RICO conspiracy"). An opportunity to amend is not
required, however, where "the problem with [the plaintiff's] causes of
action is substantive" such that "better pleading will not cure it." Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v.
Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) ("Of course, where a
plaintiff is unable to allege any fact sufficient to support its claim, a
complaint should be dismissed with prejudice."). Stated differently,
"[w]here it appears that granting leave to amend is unlikely to be
productive, . . . it is not an abuse of discretion to deny leave to amend."
Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord,

45

Brown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept.
22, 1997) (Pooler, J.).
In this instance, the deficiencies identified in this report are
substantive in nature and extend beyond the mere sufficiency of plaintiff's
complaint. Moreover, plaintiff has already been afforded one opportunity to
amend his complaint and failed to cure the deficiencies there were
identified by the court. See Dkt. Nos. 33, 38. Because I find that any
amendment that might be offered by plaintiff would be futile, I recommend
against granting him leave to further amend his complaint.
IV.

ORDER, SUMMARY, AND RECOMMENDATION
While plaintiff's experience during his transport from Georgia to New

York may have been unpleasant and uncomfortable, he has failed to
plausibly allege that defendant's policies resulted in a deprivation of a
constitutional magnitude. Accordingly, it is hereby respectfully
RECOMMENDED that defendant's motion to dismiss (Dkt. No. 39)
be GRANTED in part to the extent outlined in this report and
recommendation, and that plaintiff's amended complaint (Dkt. No. 35) be
DISMISSED, without leave to replead.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge
written objections to the foregoing report. Such objections must be filed
46

with the clerk of the court within FOURTEEN days of service of this
report. 8 FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE
APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d),
72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993). It is further hereby
ORDERED that the clerk of the court is respectfully directed to
modify the court's records to change defendant Prisoner Transport Service
of America, LLC name on the docket to "Prisoner Transportation Services
of America, LLC"; and it is further hereby
ORDERED that the clerk of the court serve a copy of this report and
recommendation upon the parties in accordance with this court's local
rules.

Dated:

March 4, 2019
Syracuse, New York

If you are proceeding pro se and are served with this order, report and
recommendation by mail, three additional days will be added to the fourteen-day
period, meaning that you have seventeen days from the date the report and
recommendation was mailed to you to serve and file objections. Fed. R. Civ. P. 6(d). If
the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then
the deadline is extended until the end of the next day that is not a Saturday, Sunday, or
legal holiday. Fed. R. Civ. P. 6(a)(1)(C).
8

47

Araujo v. City of New York, Not Reported in F.Supp.2d (2010)
2010 WL 1049583

KeyCite Yellow Flag - Negative Treatment
Distinguished by Fogelman v. Donato, E.D.N.Y., June 16, 2015

2010 WL 1049583
Only the Westlaw citation is currently available.
This decision was reviewed by West editorial
staff and not assigned editorial enhancements.
NOT FOR PUBLICATION
United States District Court,
E.D. New York.
William ARAUJO, Plaintiff,
v.
The CITY OF NEW YORK, the New York City
Police Department, The New York City Department
of Corrections, Detective Tammie Ordonez and
Detective “john Doe” (said name being fictitious, as
his true name is presently unknown), individually
and in their official capacities, Defendants.
No. 08-CV-3715 (KAM)(JMA).
|
March 19, 2010.
Attorneys and Law Firms
Arnold Jay Levine, Arnold J. Levine, Esq., New York,
NY, for Plaintiff.
Elizabeth M. Daitz, Max Oliver McCann, New York City
Law Department, New York, NY, for Defendants.

MEMORANDUM & ORDER
MATSUMOTO, District Judge.
*1 Plaintiff William Araujo commenced this action on
September 12, 2008 against the City of New York (the
“City”), the New York City Police Department (the
“NYPD”), the New York City Department of Corrections
(the “DOC”) (collectively, the “Municipal Defendants”),
and NYPD Detectives Tammie Ordonez and “John
Doe” (collectively, the “Individual Defendants”). 1
Plaintiff claims that (1) the Individual Defendants
deprived him of his rights under the Fourth, Fifth, Sixth,
Eighth and Fourteenth Amendments to the Constitution,
in violation of 42 U.S.C. § 1983 (“Section 1983”); and

(2) the constitutional violations occurred as a result
of a custom, policy, usage, or rule maintained by
the Municipal Defendants. (See generally, Doc. No. 1,
Complaint (“Compl.”) ¶¶ 1, 7-13.) Plaintiff also alleges
violations of 42 U.S.C. §§ 1981 and 1988. 2 (Id. ¶¶ 1-2.)
Plaintiff claims that the Individual Defendants are liable
in their individual and official capacities. (Id. ¶ 10.)
1

2

This case was initially assigned to the Honorable
Charles P. Sifton and subsequently reassigned to the
undersigned on November 24, 2009.
Although the Complaint cites 42 U.S.C. §§ 1981
and 1988 in the sections titled “Preliminary
Statement” (Compl.¶ 1) and “Jurisdiction” (id. ¶¶
2-3), neither the Complaint nor plaintiff's opposition
to defendant's instant motion make further mention
of, or allege any claim for relief under, either section.
Section 1981 was “meant, by its broad terms, to
proscribe discrimination in making or enforcement
of contracts against, or in favor of, any race.”
Gratz v. Bollinger, 539 U.S. 244, 276 n. 23, 123
S.Ct. 2411, 156 L.Ed.2d 257 (2003) (citation and
internal quotation marks omitted). Section 1981 is
inapplicable to this action because plaintiff does not
allege that he was discriminated against based on
his race or that any contract is involved in this suit.
Moreover, Section 1988 does not confer a substantive
right; rather, it permits the recovery of attorney's fees
by prevailing parties in civil rights actions. Guadagni
v. New York City Transit Auth., No. 08-CV-3163
(CPS), 2009 WL 1910953, at *10 (E.D.N.Y. June
30, 2009). Accordingly, to the extent plaintiff alleges
claims under Sections 1981 and 1988, those claims
are dismissed as to all defendants. defendants' motion
and has filed opposition papers addressing arguments
relating to all defendants.

Presently before this court is the Municipal Defendants'
motion for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c). Although defendants'
Notice of Motion indicates that only the Municipal
Defendants seek judgment on the pleadings, defendants'
memorandum of law in support of the motion seeks
dismissal of plaintiff's Complaint in its entirety, including
as against the Individual Defendants. (See Doc. No.
20, Defendants' Memorandum of Law (“Defs.Mem.”) at
5-11, 13.) Plaintiff's counsel received notice of defendant'
motion and has filed opposition papers addressing
arguments relating to all defendants. (See Doc. No. 22
Plaintiff's Memorandum of Law (“Pl.Mem.”).) The court
considers the motion as one made by all defendants and,

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for the reasons set forth herein, the motion is granted in
part and denied in part.

BACKGROUND
The following facts are drawn from plaintiff's Complaint
and are taken as true for purposes of this motion.
Plaintiff is a resident of Queens County in the State of
New York. (Compl.¶ 6.) Defendant City of New York
is a municipality of the State of New York. (Id. ¶ 7.)
Defendants NYPD and DOC are municipal agencies of
defendant City. (Id. ¶¶ 8-9.) Defendants Tammie Ordonez
and “John Doe” are detectives employed by defendant
NYPD. (Id. ¶ 10.)
On October 5, 2006, at approximately 12:00 p.m., plaintiff
was arrested at his home by defendant detectives Ordonez
and Doe. (Id . ¶ 14.) Plaintiff alleges that the arrest was
made without a warrant, based on a complaint by a
3

seven-year-old girl, J.D., made two days earlier, that
plaintiff had sexually abused her on several occasions
approximately three and one-half to four and one-half
years earlier. (Id. ¶ 15.) According to the Complaint,
“[a]mong the allegations made by the complainant [J.D.]
against Plaintiff was the claim that Plaintiff on some
occasions” masturbated and ejaculated. (See Compl. ¶
17.) Plaintiff alleges that J.D.'s father is a retired NYPD
officer. (Id. ¶ 16.)
3

Plaintiff's Complaint refers to the alleged infant
complainant by her full name, in contravention
of the Federal Rules of Civil Procedure and an
Administrative Order of this court requiring parties
to refer to minors in court filings by their initials.
See Fed.R.Civ.P. 5.2 (adopted in compliance with EGovernment Act of 2002, Pub L. 107347, 116 Stat.
2899 § 205(c)(3) (2002)) (directing the Supreme Court
to prescribe rules to protect privacy and security
concerns relating to electronic filing of documents);
E.D.N.Y. Administrative Order 2004-09, available
at http:// www.nyed.uscourts.gov /pub/docs/
adminorders/adminorder04-09.pdf
[last
visited
March 19, 2010]. Plaintiff shall immediately contact
the Clerk's Office and arrange for the substitution
of the present Complaint with one that refers to the
complainant only by her initials.

*2 After plaintiff was arrested, he was transported to the
Queens Special Victims Unit of the NYPD, where he was

questioned for approximately two hours. (Id. ¶¶ 18, 24.)
Plaintiff alleges that prior to being questioned, he asked
the Individual Defendants whether he needed an attorney
and was told that he did not. (Id. ¶ 22.) Plaintiff also
asserts that he was not read his Miranda rights before his
custodial interrogation. (Id. ¶ 23.) During the questioning,
plaintiff informed the Individual Defendants that he had
been “impotent for more than ten years, including during
the time he allegedly sexually abused the complainant, and
was unable during the time of the alleged abuse to have an
erection or to ejaculate.” (Id. ¶ 25.) According to plaintiff,
Detective Ordonez telephoned plaintiff's wife and inquired
whether plaintiff was then currently, and was at the time
of the alleged incidents, impotent. (Id. ¶ 27.) Plaintiff's wife
confirmed that plaintiff was impotent and had been so
during the relevant time period. (Id.) Notwithstanding the
statements by plaintiff's wife, plaintiff was handcuffed and
placed in a cell in the precinct. (Id. ¶ 28.)
Plaintiff then informed the Individual Defendants that he
needed various medications for his diabetes, high blood
pressure, and post traumatic stress disorder. (Id. ¶ 29.)
Plaintiff alleges that the Individual Defendants returned
to plaintiff's home and retrieved his medications. (Id. ¶ 30.)
Plaintiff was then transported from the Special Victim's
Unit to the 112th police precinct and fingerprinted, and
subsequently taken to Queens Central Booking, where
he remained for “several hours” before being arraigned
on a felony complaint. (Id. ¶¶ 31-33 .) The court set bail
at $25,000 and issued an Order of Protection requiring
plaintiff to stay away from the complainant. (Id. ¶ 33-34.)
At approximately 1:00 a.m. the following morning,
October 7, 2006, plaintiff was released from a DOC facility
in the Bronx upon the payment of bail. (Id. ¶¶ 35-36.)
Plaintiff alleges that “[d]espite his numerous requests of
members of [the] NYPD and DOC,” he was not permitted
“to take his required medications while in the custody
of NYPD or DOC, resulting in high blood sugar and
worsening and aggravation of diabetes, blood pressure,
and post traumatic stress disorder.” (Id. ¶ 37.)
Plaintiff alleges that as a result of the criminal charges,
he was obligated to appear in Queens Criminal Court on
approximately seven occasions, check in weekly with a
bail bondsman, was prevented by the Order of Protection
from attending his church and shopping at certain stores
which he previously had frequented, and was required to

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spend $7,700 to retain counsel to represent him in the
criminal case. (Id. ¶¶ 39-42.) Plaintiff contends that he did
not commit the alleged criminal acts, and has suffered
embarrassment, humiliation and reputational harm. (Id.
¶ 43, 48.) On September 10, 2007, the criminal charges
against plaintiff were dismissed and sealed on motion of
the prosecutor. (Id. ¶ 46.)

DISCUSSION
A. Standard of Review
*3 In deciding a Rule 12(c) motion for judgment on
the pleadings, courts apply the same standard as that
applicable to a motion to dismiss for failure to state
a claim under Rule 12(b)(6), accepting the allegations
contained in the complaint as true and drawing all
reasonable inferences in favor of the non-moving party.
See LaFaro v. New York Cardiothoracic Group, PLLC,
570 F.3d 471, 475-76 (2d Cir.2009). Accordingly, courts
must determine whether the complaint has pled “enough
facts to state a claim to relief that is plausible on its
face.” Ruotolo v. City of New York, 514 F.3d 184, 188
(2d Cir.2008) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).
A claim is plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, --- U.S. ----, ----, 129 S.Ct.
1937, 1949, 173 L.Ed.2d 868 (2009) (citing Twombly, 550
U.S. at 556). “Threadbare recitals of the elements of the
cause of action” do not suffice; “[w]hile legal conclusions
can provide the framework of a complaint, they must be
supported by factual allegations.” Id. at 1949-50.

B. Claims Arising under Section 1983
The plaintiff brings this action pursuant to 42 U.S.C. §
1983 for the alleged deprivation of his rights under the
Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments
to the Constitution. In relevant part, Section 1983
provides that

Every person who, under color of
any statute, ordinance, regulation,
custom, or usage, of any State ...
subjects, or causes to be subjected,
any citizen of the United States or

other person within the jurisdiction
thereof to the deprivation of any
rights, privileges, or immunities
secured by the Constitution and
laws, shall be liable to the party
injured in an action at law, suit in
equity, or other proper proceeding
for redress ....

42 U.S.C. § 1983.
Section 1983 “is not itself a source of substantive rights,
but merely provides a method for vindicating federal
rights elsewhere conferred.” Graham v. Connor, 490
U.S. 386, 393-94, 109 S.Ct. 1865, 104 L.Ed.2d 443
(1989) (internal quotation marks and citation omitted).
To establish liability under Section 1983, a plaintiff
must demonstrate that “(1) the challenged conduct was
attributable at least in part to a person who was acting
under color of state law and (2) the conduct deprived the
plaintiff of a right guaranteed under the Constitution of
the United States.” Snider v. Dylag, 188 F.3d 51, 53 (2d
Cir.1999) (citation omitted).
Liberally construing the Complaint, plaintiff alleges that
defendants, while acting under the color of state law,
violated his constitutional rights by subjecting him to
an unreasonable seizure, in violation of the Fourth
Amendment; unlawful interrogation, in violation of the
Fifth Amendment; cruel and unusual punishment, in
violation of the Eight Amendment; and that a municipal
policy or custom caused a deprivation of plaintiff's
constitutional rights. (See Compl. ¶¶ 66-69.) Defendants
contend that each allegation fails to state a claim. (Defs.
Mem. at 4.)

C. Alleged Constitutional Violations by the Individual
Defendants
*4 Plaintiff purports to raise claims under Section 1983,
but fails to specify, as required to state a valid Section 1983
cause of action, which substantive constitutional rights
defendant allegedly violated. In this regard, plaintiff's
complaint does not appear to “give the defendant fair
notice of what the plaintiff's claim is and the grounds
upon which it rests[,]” as required by Fed.R.Civ.P. 8(a).
See Jackson v. Onondaga County, 549 F.Supp.2d 204, 212
(N.D.N.Y.2008) (quoting Dura Pharm., Inc. v. Broudo,

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Araujo v. City of New York, Not Reported in F.Supp.2d (2010)
2010 WL 1049583

544 U.S. 336, 346, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005));
Fed.R.Civ.P. 8(a)(2) (requiring that a pleading contain “a
short and plain statement of the claim showing that the
pleader is entitled to relief ....”).
Moreover, it appears that plaintiff has incorrectly sued
NYPD Detectives Tammie Ordonez and “John Doe” in
their “individual and official capacities.” (See Compl. ¶
10.) It is, however, well settled that a “state official sued in
his official capacity is not a person within the meaning of
Section 1983, and, consequently, is not subject to liability
for depriving a person of constitutional rights.” Perez
v. City of New York, No. 07-CV-10319, 2009 U.S. Dist.
LEXIS 50066, 2009 WL 4901732 at *11 (S.D.N.Y. June
8, 2009) (citing Will v. Michigan Dep't of State Police, 491
U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989)).
Notwithstanding, the court liberally construes plaintiff's
Complaint to allege three separate acts potentially
giving rise to constitutional violations by the Individual
Defendants: (1) false arrest; (2) unlawful interrogation;
and (3) indifference to plaintiff's medical needs. 4 In
briefing this motion, plaintiff argues only that judgment
on the pleadings is not warranted with respect to the
false arrest claim, and appears to abandon the remaining
claims. (See generally, Pl. Mem.) Notwithstanding, each
claim is addressed below.
4

The court liberally construes plaintiff's Complaint
because he would be permitted to replead. See Cortec
Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48
(2d Cir.1991) (“It is the usual practice upon granting
a motion to dismiss to allow leave to replead”)
(citations omitted).

1. False Arrest Claim
Plaintiff was arrested and endured detention and
interrogation on a charge which was ultimately dismissed.
The issue before the court, however, is not whether
plaintiff is innocent of the crime charged-which he is
presumed to be-but rather, whether there was probable
cause for plaintiff's arrest.
The elements of a false arrest claim are that “(1) the
defendant intended to confine the plaintiff, (2) the plaintiff
was conscious of the confinement, (3) the plaintiff did not
consent to the confinement, and (4) the confinement was
not otherwise privileged.” Savino v. City of New York, 331
F.3d 63, 75 (2d Cir.2003) (citation omitted); see also Hygh

v. Jacobs, 961 F.2d 359, 366 (2d Cir.1992) (“The elements
of a claim of false arrest under § 1983 are ‘substantially the
same’ as the elements of a false arrest claim under New
York law.”) (citing Posr v. Doherty, 944 F.2d 91, 96 (2d
Cir.1991)). Only the last element is in dispute.
“There can be no federal civil rights claim for false arrest
where the arresting officer had probable cause” to arrest.
Singer v. Fulton County Sheriff, 63 F.3d 110, 118 (2d
Cir.1995) (citing Bernard v. United States, 25 F.3d 98, 102
(2d Cir.1994)). “Probable cause is established when the
arresting officer has knowledge or reasonably trustworthy
information sufficient to warrant a person of reasonable
caution in the belief that an offense has been committed
by the person to be arrested.” Id. at 119 (citations and
internal quotation marks omitted). “To find that probable
cause for an arrest existed, it is not necessary to show
evidence beyond a reasonable doubt, ... [n]or do police
officers need to demonstrate that it is more probable than
not [that] an offense has been committed to make a prima
facie showing of criminal activity. Instead, the standard of
probable cause requires only the probability of criminal
activity.” Miloslavsky v. AES Eng'g Soc., Inc., 808 F.Supp.
351, 354 (S.D.N.Y.1992) (citations and internal quotation
marks omitted). “Whether or not there was probable
cause to arrest depends on the information available at
the time of the arrest, judged against the totality of the
circumstances ....” Morgan v. Nassau County, No. 03CV-5109 (SLT), 2009 U . S. Dist. LEXIS 79180, 2009 WL
2882823 at *12-13 (E.D.N.Y. Sept. 2, 2009) (citations and
internal quotation marks omitted).
*5 “Even where probable cause is not found to exist,
a police officer sued for false arrest is immune from suit
under the doctrine of qualified immunity where ‘arguable
probable cause’ exists.” Rodriguez v. New York City
Transit Auth., No. 06-CV-13762 (RJS), 2009 U.S. Dist.
LEXIS 106464, 2009 WL 3817298 at *19 (S.D.N.Y. Nov.
10, 2009) (citing Escalera v. Lunn, 361 F.3d 737, 743 (2d
Cir.2004)). “While arguable probable cause should not be
understood to mean almost probable cause, it exists where
officers of reasonable competence could disagree on the
legality of the defendant's actions.” Id. (citing Jenkins v.
City of New York, 478 F.3d 76, 87 (2d Cir.2007); Lennon v.
Miller, 66 F.3d 416, 420 (2d Cir.1995)) (internal quotation
marks omitted). “The essential inquiry in determining
whether qualified immunity is available to an officer
accused of false arrest is whether it was objectively

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Araujo v. City of New York, Not Reported in F.Supp.2d (2010)
2010 WL 1049583

reasonable for the officer to conclude that probable cause
existed.” Jenkins, 478 F.3d at 87 (citations omitted).
“[I]t is well-established that a law enforcement official has
probable cause to arrest if he received his information
from some person, normally the putative victim or
eyewitness, unless the circumstances raise doubt as to
the person's veracity.” Panetta v. Crowley, 460 F.3d 388,
395 (2d Cir.2006) (citations and internal quotation marks
omitted). Absent specific facts suggestive of prevarication
or unreliability, “[t]he veracity of citizen complaints who
are the victims of the very crime they report to the police is
assumed.” Miloslavsky, 808 F.Supp. at 355 (citing Adams
v. Williams, 407 U.S. 143, 146-47, 92 S.Ct. 1921, 32
L.Ed.2d 612 (1972)).
Here, plaintiff contends that probable cause for his arrest
was lacking because a reasonable officer would not have
credited the unsubstantiated complaint of a seven-yearold child, reporting events that allegedly occurred when
she was between two and one-half and three and one-half
years of age. (See Pl. Mem. at 6; see also Compl. ¶ 15.)
Further, plaintiff contends that (1) there is no evidence
that the alleged victim's claims were corroborated in any
way; (2) the claims were not made under oath; and (3)
there is no evidence that the child informant appreciated
the difference between truth and falsehood. (See Pl. Mem.
at 6-7.)
Based on a review of the Complaint, the court concludes
that plaintiff has pled sufficient facts to state a false arrest
claim against the Individual Defendants that is plausible
on its face. The court does not conclude that an arrest
is unreasonable as a matter of law based on a statement
of a seven-year-old child about events that reportedly
occurred when the child was between two and one-half
and three and one-half years of age. Plaintiff, however, has
pled sufficient facts to cross “the line between possibility
and plausibility” concerning whether the circumstances
should have raised doubts as to complainant's reliability
or veracity. See Iqbal, 129 S.Ct. at 1949; see also Twombly,
550 U.S. at 557. Discovery may plausibly reveal that
the Individual Defendants lacked a reasonable basis for
believing either (1) that a crime had been committed, or
(2) that plaintiff was the perpetrator. 5
5

At oral argument, plaintiff's counsel stated that
plaintiff might seek discovery concerning, among
other things, whether the complainant was shown

a photo array, or whether plaintiff's name was first
mentioned by the complainant or by the Individual
Defendants. (See Transcript of Oral Argument on
Oct. 8, 2009 (“Tr.”) at 4-7.)

*6 Defendants cite to a number of distinguishable cases
which dismissed false arrest claims where law enforcement
officers were presented with different accounts from
the complainant and arrestee. (See Defs. Mem. at 7-9.)
Defendants' reliance on Cabble v. City of New York,
No. 04-CV-9413 (LTS), 2009 U.S. Dist. LEXIS 26478,
2009 WL 890098 (S.D.N.Y. Mar. 30, 2009), is misplaced.
There, the court, inter alia, dismissed without prejudice
to replead, plaintiff's false arrest claim, finding that
plaintiff alleged no facts to suggest that the police had
any reason to doubt the complaints of two adult women
that had been sexually assaulted by the plaintiff. See Id.,
at *15-16. Similarly, in Silver v. Kuehbeck, 05-6316-cv,
217 Fed. Appx. 18 (2d Cir. Feb.8, 2007), the Second
Circuit affirmed the dismissal of a false arrest claim
based on a finding that the defendant officer “clearly”
had probable cause to arrest the plaintiff for aggravated
harassment where the complaint alleged that plaintiff's
“agitation had grown to anger” and he attempted to
contact the complainant and left telephone messages
“about her evident lack of consideration and disrespect[.]”
Id. Further, in Obilo v. City Univ. of New York, No. 01CV-5118 (DGT), 2003 U.S. Dist. LEXIS 2886, 2003 WL
715749 at *26 (E.D.N.Y. Feb. 28, 2003), the plaintiff was
arrested for sexual assault reported by a female college
student whom plaintiff alleged was his girlfriend. The
court granted the arresting officer's motion to dismiss
a false arrest claim where the pleadings indicated that
the arresting officer relied on an exhaustive investigation
by college campus security officers and had interviewed
the complainant “one day after she filed her police
complaint.” Id. at *24. In Jouthe v. City of New York, No.
05-CV-1374 (NGG), 2009 U.S. Dist. LEXIS 18163, 2009
WL 701110 (E.D.N.Y. Mar. 10, 2009), the court granted
the arresting officer summary judgment dismissing the
plaintiff's false arrest claim after the parties had conducted
discovery.
Further, based upon the Complaint, the Individual
Defendants have not established the existence of
“arguable probable cause” for purposes of qualified
immunity. Plaintiff has plausibly alleged that under the
circumstances, it would not have been reasonable for an
officer to have believed he or she was justified in arresting
plaintiff. Accordingly, defendants have not established

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5

Araujo v. City of New York, Not Reported in F.Supp.2d (2010)
2010 WL 1049583

that “the only conclusion a rational jury could reach is
that reasonable officers would disagree about the legality
of the defendant's conduct under the circumstances.” See
Lee v. Sandberg, 136 F.3d 94, 102 (2d Cir.1997) (citation
and internal quotation marks omitted). Thus, the court
declines to dismiss plaintiff's false arrest claim against the
Individual Defendants.

2. Unlawful Interrogation Claim
Plaintiff claims that he suffered constitutional injury by
being interrogated without having a lawyer present, and
without having been first read his Miranda rights, in
violation of the Fifth Amendment. (See Compl. ¶¶ 23-24,
61, 68.) “The Supreme Court concluded [in Chavez v.
Martinez, 538 U.S. 760, 123 S.Ct. 1994, 155 L.Ed.2d 984
(2003) ] that an officer could not be subjected to civil
liability for an alleged violation of the privilege against
compelled self-incrimination where the coerced statement
is not thereafter used against the person who gave the
statement.” Higazy v. Templeton, 505 F.3d 161, 171 (2d
Cir.2007). “[A] run-of-the-mill Miranda violation, ... can
taint the evidence but is not independently actionable as
a civil rights claim.” Jocks v. Tavernier, 316 F.3d 128, 138
(2d Cir.2003).
*7 In Higazy, government officials used allegedly
coerced statements by plaintiff Higazy as the basis for
filing a criminal complaint and opposing bail. 505 F.3d
at 167. The government later withdrew its complaint,
and Higazy was released. Id. Higazy subsequently filed
a federal civil rights action against officials. Id. at 168.
The Second Circuit held that although Higazy's coerced
statements were never used against him at a criminal trial,
the government's use of his statements against him at the
preliminary bail hearing provided a sufficient basis for
alleging a violation of his Fifth Amendment rights. Id. at
170.
Here, plaintiff does not allege that the statements he
made to the Individual Defendants were used against
him in the criminal prosecution, in violation of the Fifth
Amendment. Indeed, plaintiff asserts that he was arrested
in spite of his statements that he could not have sexually
assaulted the complainant in the manner described by
the complainant. Accordingly, plaintiff's allegation that
he was interrogated in violation of Miranda, and without
being afforded counsel, fails to state a Section 1983 claim.

3. Medical Indifference Claim
Plaintiff claims that he was not permitted by the
Individual Defendants to take necessary medications
while he was in the custody of NYPD or DOC, “resulting
in high blood sugar and worsening and aggravation
of diabetes, blood pressure, and post traumatic stress
disorder.” (Compl.¶ 37.) Although not specifically pled,
the court liberally construes the Complaint to allege
a claim of inadequate medical care or treatment and
deliberate indifference in violation of the Due Process
Clause of the Fourteenth Amendment. 6
6

A pretrial detainee's claims of inadequate medical
treatment and deliberate indifference to serious
medical needs are analyzed under the Fourteenth
Amendment's Due Process Clause as opposed to the
Cruel and Unusual Punishment Clause of the Eighth
Amendment, but the tests are the same under the
Eighth and Fourteenth Amendments. See Cuoco v.
Moritsugu, 222 F.3d 99, 106 (2d Cir.2000) (citing
Weyant v. Okst, 101 F.3d 845, 856 (2d Cir.1996);
Dzwonczyk v. Syracuse City Police Dep't, No. 08CV557 (NPM), 2008 U.S. Dist. LEXIS 103315, at
*37-38, 2008 WL 5459147 (N.D.N.Y. Dec. 22, 2008).

To establish a claim for deliberate indifference to a
medical need, a plaintiff must allege facts demonstrating
both an objective and a subjective element: (1) objectively,
a deprivation must be “sufficiently serious,” i.e., “a
deprivation that presents a condition of urgency, one
that may produce death, degeneration, or extreme pain[;]”
and (2) subjectively, the defendant officials must act
with a reckless indifference, “that is, defendants were
aware of plaintiff's serious medical needs and consciously
disregarded a substantial risk of serious harm.” See
Dzwonczyk, 2008 U.S. Dist. LEXIS 103315, at 38-39
(internal quotation marks and citations omitted); see also
Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.1998)).
With respect to the first element-that plaintiff was
detained under conditions posing a substantial risk
of serious harm-plaintiff alleges that the Individual
Defendants failed to provide him with prescribed
medications from the time of his arrest, at approximately
12:00 p.m. on October 5, 2006, until his release,
at approximately 1:00 a.m. on October 7, 2006, or
approximately 37 hours. (See Compl. ¶¶ 14, 36-37.)
Defendants contend that plaintiff has failed to “plead
that he suffers from an objectively serious medical

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6

Araujo v. City of New York, Not Reported in F.Supp.2d (2010)
2010 WL 1049583

condition sufficient to state a claim for deliberate [medical]
indifference.” (Defs. Mem. at 12.) Although the Second
Circuit has articulated factors that are relevant to
whether a medical condition is “sufficiently serious,”
such as whether a reasonable doctor or patient would
find it important and whether it causes chronic and
substantial pain, see, e.g., Brock v. Wright, 315 F.3d
158, 162 (2d Cir.2003), “the Court cannot make a
conclusive determination on that issue in this case at
the motion to dismiss stage, based upon the allegations
in the complaint.” See Thomas v. Tisch, No. 08-CV-400
(JFB), 2009 WL 701009, at *7 (E.D.N.Y. Mar.11, 2009).
Thus, liberally construing plaintiff's Complaint, the court
declines to dismiss plaintiff's medical indifference claim on
defendant's contention that plaintiff has not alleged that
he suffers from an objectively serious medical condition.
See id. at *7-8 (holding that complaint stated a claim
where plaintiff alleged, inter alia, that a twenty-hour delay
in receiving medication for diabetes and epilepsy resulted
in mental anguish, pain and suffering and ridicule from
other inmates and officers).
*8 Even assuming that plaintiff has satisfied the
first element that he suffered substantial harm from
the Individual Defendants' failure to treat a serious
medical condition, plaintiff has not plausibly alleged
that the defendants acted with reckless or deliberate
indifference toward plaintiff's medical condition. Plaintiff
alleges that he did not alert officers that he suffered
from any medical condition until approximately two
hours after his arrest. (See Compl. ¶¶ 24, 29.) After
being informed of plaintiff's condition, the Individual
Defendants returned to plaintiff's home and retrieved his
medications. (Compl.¶ 30.) While in custody, plaintiff
was transferred numerous times: he was moved from
the Special Victim's Unit to the 112th Precinct to be
fingerprinted, then to Queens Central Booking to await
arraignment, then to Queens Criminal Court to be
arraigned, and ultimately to a DOC facility in the Bronx
from which he was released. (See Compl. ¶¶ 18, 31, 35.)
Plaintiff does not allege that he requested immediate
emergency care at any of these locations, or that he
informed an official at any of the locations that he
had a serious medical condition that caused extreme
pain, was life-threatening or fast-degenerating. Thus,
plaintiff's Complaint does not allege anything more than
an inadvertent failure to provide adequate medical care.
See Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S.Ct. 285,
50 L.Ed.2d 251 (1976) (“inadvertent failure to provide

adequate medical care” does not constitute “deliberate
indifference”); Smith v. Carpenter, 316 F.3d 178, 184
(2d Cir.2003). Accordingly, plaintiff's medical indifference
claim is dismissed.

D. Alleged Constitutional Violations by the Municipal
Defendants
As an initial matter, although plaintiff purports to name
the NYPD and DOC as defendants, both are non-suable
agencies of defendant City. See Wray v. City of New York,
340 F.Supp.2d 291, 303 (E.D.N.Y.2004) (“All actions and
proceedings for the recovery of penalties for the violation
of any law shall be brought in the name of the city of
New York and not in that of any agency, except where
otherwise provided by law.”) (quoting NYC Charter § 396)
(judgment vacated on other grounds); see also Jenkins v.
City of New York, 478 F.3d 76, 93 n. 19 (2d Cir.2007)
(noting that “[t]he district court correctly noted that the
NYPD is a non-suable agency of the City.”) (citing Wray,
340 F.Supp.2d at 303); Adams v. Galletta, 966 F.Supp.
210, 212 (S.D.N.Y.1997) ( “where a plaintiff has named
the Department of Corrections as a defendant he has
sued a non-suable entity”). Accordingly, all claims are
dismissed against the NYPD and the DOC. See Maier v.
New York City Police Dep't, No. 08-CV-5104 (ILG), 2009
U.S. Dist. LEXIS 78821, at *6, 2009 WL 2915211 (Sept. 1,
2009) (dismissing all claims against the NYPD and DOC
as non-suable entities).
Plaintiff alleges that the Municipal Defendants are liable
for constitutional violations under Section 1983. To
impose liability under Section 1983 on a municipality for
the acts of its employees, a plaintiff must “plead and
prove ... (1) an official policy or custom that (2) causes the
plaintiff to be subjected to (3) denial of a constitutional
right.” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d
Cir.1995) (citation omitted); see Monell v. Department of
Soc. Servs. of City of New York, 436 U.S. 658, 694, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). 7
7

Plaintiff's memorandum of law in opposition to
defendants' motion does not mention municipal
liability or cite any theory under which the Municipal
Defendants would be liable. The Complaint,
however, alleges municipal liability arising out of
the Municipal Defendants' “customs, policies, usages,
practices, procedures and rule[s],” suggesting an

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7

Araujo v. City of New York, Not Reported in F.Supp.2d (2010)
2010 WL 1049583
intent to invoke liability under the theory of Monell.
(Compl.¶ 64.)

*9 “Following Monell and its progeny, a municipality
cannot be held liable under § 1983 under a theory of
respondeat superior.” Abreu v. City of New York, 657
F.Supp.2d 357, 360 (E.D.N.Y.2009) (citations omitted).
“Rather, there must be a ‘direct causal link between a
municipal policy or custom and the alleged constitutional
deprivation.’ ” Id. (quoting City of Canton v. Harris, 489
U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)).
“[A] plaintiff may establish this required causal link by
showing that a defendant was deliberately indifferent to
the training, supervision, or discipline of its employees.”
Id. (citing Amnesty Am. v. Town of W. Hartford, 361 F.3d
113, 127-130 (2d Cir.2004)); see also Jenkins, 478 F.3d at
94 (“[T]he inadequacy of police training may serve as the
basis for § 1983 liability only where the failure to train
amounts to deliberate indifference to the rights of persons
with whom the police come into contact.”) (citing Harris,
489 U .S. at 388).
In the context of a motion to dismiss, “[t]o allege the
existence of an affirmative municipal policy, a plaintiff
must make factual allegations that support a plausible
inference that the constitutional violation took place
pursuant either to a formal course of action officially
promulgated by the municipality's governing authority or
the act of a person with policymaking authority for the
municipality.” Missel v. County of Monroe, No. 09-0235cv, 2009 U.S.App. LEXIS 24120, at *4, 2009 WL 3617787
(2d Cir. Nov. 4, 2009) (citing Vives v. City of New York,
524 F.3d 346, 350 (2d Cir.2008)); see also Iqbal, 129 S.Ct.
at 1951; Twombly, 550 U.S. at 555. Mere “boilerplate”
assertions that a municipality has such a custom or policy
which resulted in a deprivation of the plaintiff's rights is
insufficient to state a Monell claim. See Bradley, 2009 U.S.
Dist. LEXIS 51532, at *8-9 (citations omitted).

to properly train, screen, supervise, or discipline
employees ... [which] were a direct and proximate cause of
the unconstitutional conduct alleged.” (Compl.¶ 58.) “In
this regard, [plaintiff's] complaint succinctly states one of
the core legal concepts animating Monell liability. But it
does absolutely nothing else.” See Abreu, 657 F.Supp.2d
at 360-61. Plaintiff alleges no facts to indicate any
deliberate choice by municipal policymakers to engage in
unconstitutional conduct. Moreover, plaintiff's allegation
that the Municipal Defendants acted pursuant to “de facto
policies, practices, customs, and usages” (Compl.¶ 58),
without any facts suggesting the existence of the same, are
plainly insufficient to state a Section 1983 claim against
the Municipal Defendants. See Abreu, 657 F.Supp.2d
at 360-61; Bradley, 2009 U.S. Dist. LEXIS 51532, at
*8-9 (dismissing municipal liability claim where the
“[c]omplaint's conclusory, boilerplate language-that the
City ‘fail[ed] to adequately train, discipline, and supervise’
employees and ‘fail[e]d to promulgate and put into effect
appropriate rules and regulations applicable to the duties
and behavior’ of its employees”-[was] insufficient to raise
an inference of the existence of a custom or policy).
Accordingly, plaintiff's Section 1983 claim against the
Municipal Defendants is dismissed.

CONCLUSION
*10 For the foregoing reasons, defendants' motion for
judgment on the pleadings is denied with respect to
plaintiff's claim for false arrest against the Individual
Defendants, and granted in all other respects. The parties
are respectfully referred to Magistrate Judge Azrack, to
whom this case is assigned for pretrial supervision.

SO ORDERED.
All Citations

Here, plaintiff's Complaint contains only a conclusory
allegation that the Municipal Defendants had “de
facto policies, practices, customs, and usages of failing
End of Document

Not Reported in F.Supp.2d, 2010 WL 1049583

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8

Bess v. City of New York, Not Reported in F.Supp.2d (2013)
2013 WL 1164919

2013 WL 1164919
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Curtis BESS, Plaintiff,
v.
CITY OF NEW YORK, et al., Defendant.
No. 11 Civ. 7604(TPG).
|
March 19, 2013.

OPINION
THOMAS P. GRIESA, District Judge.
*1 Curtis Bess, pro se, brings this action under 42 U.S.C.
§ 1983 alleging that defendants, the City of New York and
Corizon Health Services, failed to provide him adequate
medical care during his detention at Otis Bantum
Correctional Center on Rikers Island. Bess originally sued
the New York City Department of Corrections and Prison
Health Services but the court subsequently substituted the
City of New York as a party for NYCDOC, and Prison
Health Services has subsequently changed its name to
Corizon Health Services.
Defendants move to dismiss the complaint. The motion is
granted.

The Complaint
Bess alleges that, on an undisclosed date, he was taken
into custody by the police, presumably the New York
Police Department, and placed in the backseat of a police
vehicle. The police vehicle he was riding in, however, was
involved in an accident with a taxi cab and, therefore,
he was transferred to another vehicle which took him
to the police station. Bess alleges that, throughout this
process, he made several requests for medical attention, all
of which were ignored.
Eventually, for reasons Bess does not explain, he became
an inmate at Otis Bantum Correctional Center under the
care of NYCDOC. Bess alleges that, while in prison, he

continued to seek medical care. But he alleges that he was
repeatedly denied care and at one point was told “that's
not our problem. You should've fixed the problem when
you [were] in police custody.” It appears that Bess was seen
by a doctor at least once as evidenced by the “request for
a second opinion” form attached to his complaint and his
statement on that form that the treatment he received up
to that point had not been medically appropriate.
Bess alleges that, due to the automobile accident and
lack of subsequent medical care, he suffers from severe
back and neck pain as well as nausea, headaches, and
sleeplessness. He seeks damages of $3,000,000.

Discussion
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)
(6), a complaint must plead sufficient facts to state a claim
to relief that is plausible on its face. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556
U.S. 662, (2009). In deciding such a motion, a court must
accept as true the facts alleged in the complaint, but it
should not assume the truth of its legal conclusions. Iqbal,
556 U.S. at 678–79. A court must also draw all reasonable
inferences in the plaintiffs favor, and it may consider
documents attached to the complaint, incorporated by
reference into the complaint, or known to and relied on
by the plaintiff in bringing the suit. ATSI Commc'ns, Inc.
v. Shaar Fund. Ltd., 493 F.3d 87, 98 (2d Cir.2007). A
complaint filed by a pro se plaintiff is to be construed
liberally and, therefore, interpreted to raise the strongest
arguments that it suggests. See Harris v. Mills, 572 F.3d
66, 72 (2d Cir.2009); Triestman v. Fed. Bureau of Prisons,
470 F.3d 471, 474 (2d Cir.2006).
*2 It is well established that a municipality may not be
sued under 42 U.S.C. § 1983 for acts of its employees
unless a plaintiff can show that these actions were caused
by an official policy or custom of the municipality. Monell
v. Dep't of Soc. Services of City of New York, 436 U.S. 658
(1978). And, in keeping with the pleading requirements
imposed by Twombly and Iqbal, a plaintiff must give
a factual description of such a policy, not just bald
allegations that such a thing existed. See Davis v. City
of New York, 07 Civ. 1395, 2008 WL 2511734 (S.D.N.Y.
June 19, 2008).

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

1

Bess v. City of New York, Not Reported in F.Supp.2d (2013)
2013 WL 1164919

Here, plaintiff brings claims against a municipality, the
City of New York, and a private entity performing a
municipal function, Corizon. Despite the fact that it is a
private entity, Corizon enjoys the benefit of the Monell
requirements for the same reason it may be named as a
defendant in a § 1983 suit. In providing medical care in
prisons, Corizon performs a role traditionally within the
exclusive prerogative of the state and therefore, in this
context, is the functional equivalent of the municipality.
See Buckner v. Toro, 116 F.3d 450, 452 (11th Cir.1997);
Conner v. Donnelly, 42 F.3d 220, 224 (4th Cir.1994);
Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th
Cir.1982); Mercado v. City of New York, 8 Civ. 2855, 2011
WL 6057839 at *7 n. 10 (S.D.N.Y. Dec. 5, 2011).
Thus, to bring a § 1983 action against either the City
of New York or Corizon, Bess must plausibly allege
that the constitutional violations he alleges were caused
by official policies or customs of those entities. But he
has not done so. Bess's only allegation that speaks to
defendants' liability for the actions of their employees is
End of Document

that “NYCDOC is directly responsible for my well-being
and healthcare while in their custody. They employ the
services of [Corizon] and all of its staff.” But this contains
no allegation at all that these employees were acting
pursuant to anything like an official policy. Therefore, the
allegations in Bess's complaint are not adequate to support
an action against the City of New York or Corizon under
§ 1983.

Conclusion
Defendants' motion to dismiss is granted and the
complaint is therefore dismissed.

So ordered.
All Citations
Not Reported in F.Supp.2d, 2013 WL 1164919

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2

Brown v. City of New York, Not Reported in Fed. Supp. (2017)
2017 WL 1390678

3
2017 WL 1390678
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.

For purposes of this motion to dismiss, the court
accepts Brown’s factual allegations as true and draws
all reasonable inferences in his favor. See Gonzalez v.
Hasty, 651 F.3d 318, 321 (2d Cir. 2011).

Brown was arrested in April 2012 following a domestic
dispute with his ex-wife. Compl. ¶ 22. After his
arraignment, Brown was held as a pretrial detainee at
the Otis Bantum Correctional Center, a DOC facility on
Rikers Island. Id. ¶ 23-24. On July 7, 2012, the DOC
moved Brown to a different facility on Rikers Island: the
George Motchan Detention Center (“GMDC”). Id. ¶ 24.

Shone BROWN, Plaintiff,
v.
The CITY OF NEW YORK, et al., Defendants.
13-cv-06912
|
Signed 04/17/2017
Attorneys and Law Firms
Ugochukwu Uzoh, UGO Uzoh, P.C., Brooklyn, NY, for
Plaintiff.
Ashley Rebecca Garman, New York City
Department, New York, NY, for Defendants.

Law

OPINION
THOMAS P. GRIESA, United States District Judge:
*1 Plaintiff Shone Brown brings this action pursuant to
42 U.S.C. § 1983 against the City of New York (the “City”)
and eleven individuals employed by the New York City
Department of Correction (the “DOC”). 1 Brown alleges
that Defendants violated his constitutional rights while
he was a pretrial detainee at Rikers Island. Brown also
brings claims against Defendants under New York State
law. Defendants move to partially dismiss the complaint 2
pursuant to Federal Rule of Civil Procedure 12(b)(6). For
the reasons stated below, Defendants' motion is granted
in part and denied in part.
1

2

The court will refer to all defendants, collectively, as
“Defendants,” and the individuals, collectively, as the
“Individual Defendants.”
All references to the complaint refer to the amended
complaint filed on November 17, 2015 (ECF No. 52).

BACKGROUND
I. The Complaint

3

A. Attack on Brown in GMDC’s Dayroom
At approximately 4:30 PM on July 15, 2012, Brown
entered a dayroom at GMDC and sat down in a chair. Id.
¶¶ 46-47. After Brown sat down, four inmates who were
members of the Bloods gang approached him and told him
to get up because “the chair belonged to Bloods.” Id. ¶ 48.
Brown did not get up and instead asked why he could not
sit in the chair. Id. ¶ 49. The four inmates then attacked
him. Id. The attack lasted for about twenty minutes and
rendered Brown unconscious. Id. ¶¶ 50-51.
Correction Officer (“CO”) Regina James and CO
Kenyonda Grinkley witnessed the attack but did not
intervene. Id. ¶¶ 52, 54. They “merely stood idly by
and watched.” Id. ¶ 54. After Brown had been severely
wounded, CO James and CO Grinkley called for aid.
Id. Brown’s attackers then left the area. Id. ¶ 57. Before
assistance arrived, Brown regained consciousness and
asked CO James why she did not protect him. Id. ¶ 55.
A group of additional DOC personnel, known as a “probe
team,” responded to the dayroom. Id. ¶ 56. The probe
team was led by Captain Ronald Rudolph. Id. ¶ 16. Brown
told Captain Rudolph that he had been attacked by four
members of the Bloods. Id. ¶ 58. Brown also told Captain
Rudolph that he wanted to press charges against the four
Bloods members, but Brown did not know their names
because he had just been transferred to GMDC. Id. ¶
60-61. Brown asked Captain Rudolph and CO James to
help him identify the four inmates who attacked him. Id. ¶
61. Brown also complained to Captain Rudolph that CO
James saw the attack but did not intervene. 4 Id. ¶ 59.

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1

Brown v. City of New York, Not Reported in Fed. Supp. (2017)
2017 WL 1390678

4

It is unclear why Brown did not also complain to
Captain Rudolph that CO Grinkley saw the attack
but did not intervene.

*2 DOC personnel took Brown to GMDC’s medical
clinic. The doctor who saw Brown at the clinic noted
that Brown had visible injuries to his back, lips, jaw, and
ankle. Id. ¶ 72. At approximately 6:15 PM, Brown was
transported from GMDC to Elmhurst Hospital Center,
and later to Bellevue Hospital, for additional treatment.
Id. ¶¶ 73, 132-33. Brown was diagnosed with a broken jaw
and a fractured ankle. Id. ¶¶ 50, 134. Doctors performed
surgery on Brown and implanted a plate, wires, and screws
into his ankle. Id. ¶¶ 142-143. Brown was confined to a
wheelchair for several months. Id. ¶ 144.
Captain Edwin Skepple was a supervisor on duty at the
time of the incident. Id. ¶¶ 15, 105. Assistant Deputy
Warden Raymond Beltz was the commanding officer on
duty. Id. ¶¶ 14, 105. Assistant Deputy Warden Beltz tasked
Captain Skepple with investigating the incident. Id. ¶ 105.
Brown contends, however, that Captain Skepple did not
conduct an investigation. Id. ¶ 106.

B. Post-Attack Events and Incident Reports
After the incident, CO James prepared and signed a
handwritten report, dated July 15, 2012, detailing what
she had observed. Id. ¶ 62. In the report, CO James wrote
that she saw Brown and another inmate, “D.T.,” engaged
in a fist fight. Id. CO James said she ordered Brown and
D.T. to stop fighting but they ignored her commands.
Id. ¶ 63. According to the report, CO James then warned
Brown and D.T. that she would use pepper spray if they
continued fighting. Id. ¶ 64. CO James wrote that the fight
then ended, and both inmates were escorted out of the
area without further incident. Id. ¶¶ 64, 67. CO James also
noted in her report that CO Grinkley witnessed the fight.
Id. ¶ 65. Brown claims that CO James lied in this report
to cover up the attack and to retaliate against him for his
complaint about her to Captain Rudolph. Id. ¶ 62.
A similar report about the incident, also dated July 15,
2012, bears CO Grinkley’s signature. Id. ¶ 69-70. Brown
says this report, despite purporting to be authored by CO
Grinkley, was really prepared by CO James as well. Id. ¶
69.

On July 20, 2012, CO Jose Freire met with Brown to
discuss the incident. Id. ¶ 166. At this meeting, Brown
prepared a handwritten complaint stating that he was
attacked by four members of the Bloods while CO James
stood by and watched. Id. ¶ 79. Brown also wrote that he
wanted to press charges against CO James and the gang
members. Id. CO Freire told Brown that he would show
Brown a photo array of GMDC inmates to help Brown
identify his attackers. Id. ¶ 166. CO Freire also said he
would investigate Brown’s complaint and assist Brown in
pressing charges against CO James and the gang members.
Id. ¶ 167.
Brown speculates that, after this exchange, CO Freire
met with CO James, CO Grinkley, and Captain Skepple
(the supervisor) to discuss the situation. Id. ¶ 168.
Brown claims that, during this discussion, CO James, CO
Grinkley, and Captain Skepple told CO Freire that they
were working with other DOC personnel to cover up the
truth about the incident. Id. ¶ 169. Specifically, Brown
contends that CO James, CO Grinkley, and Captain
Skepple informed CO Freire that Captain Rudolph (the
probe team leader), Assistant Deputy Warden Beltz (the
commanding officer), Deputy Warden Daniel O'Connell,
and Deputy Warden Felipe Laboriel 5 were all part of
the conspiracy to cover up the incident. Id. According to
Brown, once CO Freire learned that these seven DOC
personnel were working together to hide the truth, CO
Freire agreed to join the effort to conceal the actual facts
of the incident. Id. ¶ 170. Thus, after the discussion, CO
Freire refused to meet with Brown again, did not provide
Brown with the promised photo array, and did not assist
Brown in pressing charges against CO James and the four
gang members. Id. ¶ 171.
5

Brown lists Laboriel as “Acting Warden” in the case
caption. Defendants, however, refer to Laboriel as a
“Deputy Warden.” The court assumes Defendants'
description of Laboriel’s DOC rank is correct, and
thus the court will use “Deputy Warden” throughout
this opinion.

*3 On July 23, 2012, Captain Rudolph filed a report
about the incident. Id. ¶ 77. Captain Rudolph wrote that
he responded to the dayroom with the probe team on July
15, and Brown told him at the scene that he was involved
in a fight with one other inmate. Id. ¶ 78. Brown contends
that Captain Rudolph submitted this false report as part
of his collusion with CO James, CO Grinkley, Captain
Skepple, and other DOC personnel. Id. ¶¶ 77, 79.

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On July 30, 2012, Captain Skepple submitted a report
detailing the findings of his investigation. 6 Id. ¶ 107. In
his report, Captain Skepple wrote that he attempted to
question Brown on July 15 at GMDC’s medical clinic but
Brown refused to provide a statement or any information
as to how he got hurt. Id. ¶ 108. Captain Skepple also
noted that he told Brown that fighting was not tolerated in
DOC facilities, and that Brown would be “infracted” for
violating DOC rules. Id. ¶ 109. Captain Skepple wrote that
he tried to give Brown a formal notice of the infraction
during the morning of July 20, 2012—i.e., just before
CO Freire went to meet with Brown—but Brown refused
to sign and take a copy. Id. ¶¶ 110-11. Captain Skepple
concluded in his report that no other inmates besides
Brown and D.T. were involved in the altercation. Id. ¶¶
113, 118. Captain Skepple speculated that Brown lied in
his statement to CO Freire on July 20 because Brown
had just been given notice of the infraction and wanted
to make himself look like a victim to avoid discipline. Id.
¶¶ 115-17. Moreover, Captain Skepple praised CO James
for her quick response to the situation. Id. ¶ 120. Brown
claims that he never spoke to Captain Skepple and that
this report, like the others, is inaccurate. Id. ¶¶ 107, 110.
6

As mentioned above, Brown alleges that Captain
Skepple did not actually conduct an investigation.

Deputy Warden Laboriel, Deputy Warden O'Connell,
and Assistant Deputy Warden Beltz reviewed all of the
reports, agreed with their findings, and “signed off” on
them. Id. ¶ 150. Deputy Warden Laboriel, Deputy Warden
O'Connell, and Assistant Deputy Warden Beltz also
praised their staff for responding quickly to the incident,
exonerated CO James of any wrongdoing, and summarily
dismissed Brown’s complaint against CO James and the
gang members. Id. ¶ 151. As the commanding officer,
Assistant Deputy Warden Beltz submitted a final report
about the incident. Id. ¶ 152. Beltz wrote that Brown and
D.T. were “horse playing” when the situation escalated
and turned into a fist fight. Id. ¶ 154. Brown contends that
Beltz’s report contains numerous lies and was fabricated
to cover up the incident.
Brown supports his allegation that Defendants' fist-fight
theory is implausible by highlighting D.T.’s physical traits
and medical records. D.T. is 5 feet, 7 inches tall and weighs
140 pounds. Id. ¶ 140. Brown, on the other hand, is 5
feet, 9 inches tall and weighs 180 pounds. Id. ¶ 139. Like

Brown, D.T. was seen by a doctor at GMDC’s clinic after
the incident. Id. ¶ 135. But unlike Brown, D.T. did not
sustain any visible injuries and did not need treatment.
Id. ¶¶ 135-36. Brown says it is impossible that D.T., who
weighs less than Brown, inflicted such severe injuries on
Brown without sustaining any injuries of his own. Id. ¶
146.
On September 18, 2012, Brown met with Captain Rudolph
to complete an application for protective custody. Id. ¶
81. Brown wrote that he was attacked by four members
of the Bloods gang, and that he was worried the Bloods
would target him again. Id. ¶ 84. Captain Rudolph
signed Brown’s application as a witness. Id. ¶ 85. Captain
Rudolph wrote in his own separate form, though, that
Brown was involved in an altercation with just one other
inmate who is a known member of the Bloods. Id. ¶¶ 86-87.
*4 The DOC did not hold a hearing to adjudicate the
merits of the misbehavior report filed against Brown. Id.
¶¶ 157, 159, 163. The infraction remained in Brown’s
official inmate file. Id. ¶¶ 161-62. Defendants relied on
the misbehavior report to maintain Brown’s custody
level at a classification that deprived him of several
benefits available to inmates with a lower custody level
classification. Id. ¶ 164.

C. Screening for Gang Membership
Brown claims that D.T. did not belong in GMDC’s
general population. Brown says CO Tietjen, 7 who
processed D.T.’s inmate classification, failed to screen
D.T. for gang membership. Id. ¶ 187. Further, Brown
alleges that Warden Brian Suprenant, the individual
responsible for approving D.T.’s initial placement, also
improperly reviewed D.T.’s criminal history and missed
D.T.’s gang membership. Id. ¶¶ 188-89. According to
Brown, had CO Tietjen and Warden Suprenant properly
evaluated D.T., then D.T. would have been placed in a
special housing area away from the general population. Id.
¶¶ 190-92.
7

Brown refers to this defendant as “Tretjen,” and
the case caption includes that spelling. Defendants,
however, refer to this individual as “Tietjen.” The
court assumes Defendants' spelling is correct, and will
thus use “Tietjen” throughout this opinion.

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D. Allegations of Violence and Corruption at GMDC
Brown further alleges that GMDC is known for inmate
assaults. Brown says that DOC Commissioner Joseph
Ponte and other DOC officials are aware of gang-related
violence at GMDC but do not take corrective action. Id.
¶¶ 35-44, 197-98. Moreover, Brown claims that correction
officers regularly recruit inmates who are gang members
to help control the general prison population. Id. ¶¶ 27-28,
45. Brown contends that correction officers give these
gang members exclusive use of common areas, including
dayrooms and chairs, and allow gang members to attack
other inmates who attempt to use these areas. Id. ¶ 32-34.
According to Brown, a few days before he was attacked,
another inmate at GMDC was attacked by the Bloods in
a similar manner. Id. ¶ 193.

II. Procedural History
Brown brought this lawsuit on September 30, 2013.
Defendants answered the original complaint and, on April
16, 2015, moved for partial judgment on the pleadings
pursuant to Federal Rule of Civil Procedure 12(c). Brown
responded on June 2, 2015 by moving for leave to amend
his complaint. The court granted Brown’s motion for
leave to file an amended complaint on November 13, 2015.
ECF No. 49. In light of that decision, the court denied
Defendants' motion for partial judgment on the pleadings.
Brown filed his amended complaint on November 17,
2015 and listed the following parties as defendants:
the City, Commissioner Ponte, Warden Suprenant,
Deputy Warden Laboriel, Deputy Warden O'Connell,
Assistant Deputy Warden Beltz, Captain Skepple,
Captain Rudolph, CO James, CO Grinkley, CO Tietjen,
and CO Freire. Each of the Individual Defendants is
named in his or her official capacity and individual
capacity. Six of these defendants—Ponte, Suprenant,
Laboriel, O'Connell, Rudolph, and Tietjen were not listed
in the original complaint. On the other hand, some
defendants listed in the original complaint were not
named in the amended complaint, including former DOC
Commissioner Dora Schriro and numerous “John Doe”
and “Jane Doe” defendants.
In his amended complaint, Brown brings various claims
against Defendants through eight causes of action. The

first four causes of action arise under 42 U.S.C. § 1983 and
allege as follows:
*5 (1) Commissioner Ponte, Warden Suprenant,
Deputy Warden Laboriel, Deputy Warden
O'Connell, Assistant Deputy Warden Beltz, Captain
Skepple, CO James, CO Grinkley, and CO Tietjen
engaged in conduct that “amounted to deliberate
indifference to a serious threat to the health or safety,
cruel and inhuman treatment, cruel and unusual
punishment and denial of due process rights.” Id. ¶¶
204-07.
(2) Deputy Warden Laboriel, Deputy Warden
O'Connell, Assistant Deputy Warden Beltz, Captain
Skepple, CO James, CO Grinkley, and Captain
Rudolph engaged in conduct that “amounted to first
amendment retaliation and denial of due process
rights.” Id. ¶¶ 208-11.
(3) Deputy Warden Laboriel, Deputy Warden
O'Connell, Assistant Deputy Warden Beltz, Captain
Skepple, CO James, CO Grinkley, Captain Rudolph,
and CO Freire engaged in conduct that “amounted
to conspiracy, denial of equal protection of the laws
and denial of due process rights.” Id. ¶¶ 212-15.
(4) The City is liable for having an unconstitutional
municipal policy or custom, and for failing to
properly train, supervise, or discipline its correction
officers. Id. ¶¶ 216-45.
The remaining four causes of action arise under state law
and make the following allegations:
(5) All defendants violated Brown’s rights under various
provisions of the New York State Constitution. Id. ¶¶
246-50.
(6) All defendants are liable for “other New York
torts,” including “negligence, assault and battery,
and breach of special duty or relationship.” Id. ¶¶
251-53.
(7) Unspecified defendants are liable for intentional
infliction of emotional distress and negligent
infliction of emotional distress. Id. ¶¶ 254-57.
(8) The City negligently hired and retained DOC
employees. Id. ¶¶ 258-62.

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On March 16, 2016, all defendants except for CO
James and CO Grinkley moved to dismiss the complaint
pursuant to Federal Rule of Civil Procedure 12(b)
(6). Specifically, the City, Commissioner Ponte, Warden
Suprenant, Deputy Warden Laboriel, Deputy Warden
O'Connell, Assistant Deputy Warden Beltz, Captain
Skepple, Captain Rudolph, CO Tietjen, and CO Freire
seek dismissal of all Brown’s claims against them.

DISCUSSION
I. Standard of Review
“To survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim
to relief that is plausible on its face.’ ” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Iqbal, 556 U.S. at
678. However, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.” Id.

II. Claims Against the Individual Defendants in their
Official Capacities
The court notes that Brown has sued the Individual
Defendants in both their official and individual capacities.
Compl. ¶¶ 10-20. Brown’s claims against the Individual
Defendants in their official capacities are duplicative of
his claims against the City because “a suit against a
governmental officer in his official capacity is the same
as a suit against the entity of which the officer is an
agent.” McMillian v. Monroe Cty., 520 U.S. 781, 785 n.2
(1997) (internal quotation marks and citations omitted).
“As long as the government entity receives notice and an
opportunity to respond, an official-capacity suit is, in all
respects other than name, to be treated as a suit against
the entity.” Kentucky v. Graham, 473 U.S. 159, 166 (1985);
see also Davis v. Stratton, 360 Fed.Appx. 182, 183 (2d
Cir. 2010) (“[I]n a suit against a public entity, naming
officials of the public entity in their official capacities
add[s] nothing to the suit.” (internal quotation marks and
citation omitted)). “Within the Second Circuit, where a
plaintiff names both the municipal entity and an official in
his or her official capacity, district courts have consistently
dismissed the official capacity claims as redundant.”

Phillips v. Cty. of Orange, 894 F. Supp. 2d 345, 384
n.35 (S.D.N.Y. 2012). Thus, Brown’s claims against the
Individual Defendants in their official capacities are
dismissed.

III. Section 1983 Claims
*6 As outlined above, Brown asserts four causes of
action against Defendants pursuant to 42 U.S.C. § 1983.
“Section 1983 provides a civil claim for damages against
any person who, acting under color of state law, deprives
another of a right, privilege or immunity secured by the
Constitution or the laws of the United States.” Sykes
v. James, 13 F.3d 515, 519 (2d Cir. 1993). “Section
1983 itself creates no substantive rights; it provides only
a procedure for redress for the deprivation of rights
established elsewhere.” Id. (citing City of Oklahoma City v.
Tuttle, 471 U.S. 808, 816 (1985)). The City, Commissioner
Ponte, Warden Suprenant, Deputy Warden Laboriel,
Deputy Warden O'Connell, Assistant Deputy Warden
Beltz, Captain Skepple, Captain Rudolph, CO Tietjen,
and CO Freire (i.e., all defendants except for CO James
and CO Grinkley) move to dismiss Brown’s § 1983 claims.

A. Timeliness
As a preliminary matter, the six individuals added as
defendants in the amended complaint—Commissioner
Ponte, Warden Suprenant, Deputy Warden Laboriel,
Deputy Warden O'Connell, Captain Rudolph, and CO
Tietjen contend that all of Brown’s claims against them are
time-barred. The statute of limitations for claims brought
pursuant to § 1983 is determined by state law. Owens v.
Okure, 488 U.S. 235, 249-51 (1989). In New York State,
the statute of limitations for personal injury actions under
§ 1983 is three years. Shomo v. City of New York, 579
F.3d 176, 181 (2d Cir. 2009). The incident that is the
subject of this lawsuit occurred on July 15, 2012. Brown
filed his original complaint on September 30, 2013—well
within the limitations period. But the original complaint
did not name Commissioner Ponte, Warden Suprenant,
Deputy Warden Laboriel, Deputy Warden O'Connell,
Captain Rudolph, and CO Tietjen as defendants. On
June 2, 2015, Brown moved to amend his complaint to
add these six individuals. The court granted Brown’s
motion to amend on November 13, 2015, and Brown
promptly filed his amended complaint on November 17,
2015. 8 Commissioner Ponte, Warden Suprenant, Deputy

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Warden Laboriel, Deputy Warden O'Connell, Captain
Rudolph, and CO Tietjen argue that Brown’s § 1983
claims against them are time-barred because the amended
complaint was filed more than three years after the date
of the incident.
8

Brown attempted to file his amended complaint on
November 16, 2015, but due to a filing error, it was
not properly docketed until November 17, 2015.

“When a plaintiff seeks to add a new defendant in an
existing action, the date of the filing of the motion to
amend constitutes the date the action was commenced
for statute of limitations purposes.” Nw. Nat'l Ins. Co.
v. Alberts, 769 F. Supp. 498, 510 (S.D.N.Y. 1991). Here,
Brown filed his motion to amend on June 2, 2015, which
was within the three-year limitations period that began
to run on July 15, 2012. The fact that the amended
complaint was not actually filed until November 17,
2015 is irrelevant. Brown’s § 1983 claims against the six
new defendants in the amended complaint are, therefore,
timely.
Having determined that all of the § 1983 claims in Brown’s
amended complaint are timely, the court turns to their
merits. The court first considers Brown’s claims against
the Individual Defendants, followed by his claims against
the City.

Deputy Warden Laboriel, Deputy Warden O'Connell,
Assistant Deputy Warden Beltz, Captain Skepple,
Captain Rudolph, and CO Freire were “were working in
cahoots ... to cover up the actual facts of the incident.”
Compl. ¶¶ 169. This broad assertion does not establish
their personal involvement.
*7 “To state a legal truism, just because a litigant
posits the existence of a conspiracy does not make it
plausible.” McIntosh v. United States, No. 14-cv-7889,
2016 WL 1274585, at *15 (S.D.N.Y. Mar. 31, 2016).
“A complaint containing only conclusory, vague, or
general allegations of conspiracy to deprive a person
of constitutional rights cannot withstand a motion to
dismiss.” Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir.
1983). Thus, Brown’s assertion that Deputy Warden
Laboriel, Deputy Warden O'Connell, Assistant Deputy
Warden Beltz, Captain Skepple, Captain Rudolph, and
CO Freire were part of a conspiracy is insufficient to state
a claim under § 1983 because it is conclusory, vague, and
unsupported by specific factual allegations.
Having disposed of Brown’s vague allegations about a
conspiracy, the court turns to his specific allegations about
each of the Individual Defendants seeking dismissal.

a. Commissioner Ponte
B. Claims Against the Individual Defendants
1. Personal Involvement
“It is well settled in this Circuit that personal involvement
of defendants in alleged constitutional deprivations is
a prerequisite to an award of damages under § 1983.”
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal
quotation marks and citation omitted). Commissioner
Ponte, Warden Suprenant, Deputy Warden Laboriel,
Deputy Warden O'Connell, Assistant Deputy Warden
Beltz, Captain Skepple, Captain Rudolph, CO Tietjen,
and CO Freire argue that Brown cannot state claims
against them under § 1983 because they were not
personally involved in any violation of his constitutional
rights. The court will address the personal involvement
of each of these defendants in turn. Before examining
the specific allegations about each defendant, though,
the court notes that Brown alleges generally that

Ponte became DOC Commissioner in April 2014—
i.e., nearly two years after the incident. Accordingly,
Commissioner Ponte could not conceivably have had
any personal involvement in the constitutional violations
Brown claims to have suffered in July 2012. Brown’s §
1983 claims against Commissioner Ponte are therefore
dismissed.

b. Deputy Warden Laboriel, Deputy Warden O'Connell,
Assistant Deputy Warden Beltz, and Captain Skepple
Brown contends that he has “adequately pleaded
supervisory liability” against Deputy Warden Laboriel,
Deputy Warden O'Connell, Assistant Deputy Warden
Beltz, and Captain Skepple. Pl.'s Br. 23. Brown cannot,
however, state § 1983 claims against these defendants
merely because they were supervisors at GMDC. See
Hernandez v. Keane, 341 F.3d 137, 144-45 (2d Cir.
2003) (noting that a supervisory official cannot be held

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liable under § 1983 simply because he had a position of
authority). Instead, to establish their liability, Brown must
show that they were personally involved in the allegedly
unlawful conduct. See id. Proof of “linkage in the prison
chain of command” is insufficient. Ayers v. Coughlin, 780
F.2d 205, 210 (2d Cir. 1985). 9
9

The Second Circuit has previously held that the
personal involvement of a supervisory defendant can
be shown in five ways: (1) the defendant participated
directly in the alleged constitutional violation; (2)
the defendant, after being informed of the violation
through a report or appeal, failed to remedy the
wrong; (3) the defendant created a policy or custom
under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom;
(4) the defendant was grossly negligent in supervising
subordinates who committed the wrongful acts; or
(5) the defendant exhibited deliberate indifference to
the rights of inmates by failing to act on information
indicating that unconstitutional acts were occurring.
See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
The Supreme Court’s 2009 decision in Iqbal, though,
may have nullified all or part of Colon’s holding. See
Hollins v. City of New York, No. 10-cv-1650, 2014
WL 836950, at *13 (S.D.N.Y. Mar. 3, 2014) (“The
district courts of the Second Circuit disagree about
what remains of Colon after Iqbal.”). Iqbal addressed
supervisory liability claims, and held that “[b]ecause
vicarious liability is inapplicable to ... § 1983 suits,
a plaintiff must plead that each Government-official
defendant, through the official’s own individual
actions, has violated the Constitution.” 556 U.S. at
676. “Accordingly, some courts in this Circuit have
found that Iqbal abrogated all of the Colon categories
except for the first and either all or part of the third.”
Doe v. New York, 97 F. Supp. 3d 5, 11 (E.D.N.Y.
2015).
This court need not make a ruling on whether
all of the Colon categories remain after Iqbal
because, as will be discussed below, Brown has pled
facts sufficient to establish that Deputy Warden
Laboriel, Deputy Warden O'Connell, Assistant
Deputy Warden Beltz, and Captain Skepple directly
participated in an alleged constitutional violation.

*8 Brown alleges that Deputy Warden Laboriel, Deputy
Warden O'Connell, Assistant Deputy Warden Beltz,
and Captain Skepple (1) allowed the Bloods to control
aspects of GMDC, (2) authored or “signed off” on false
reports, and (3) failed to hold a hearing to adjudicate
the misbehavior reports. Compl. ¶¶ 32, 75, 150, 157.

Brown’s first allegation about these defendants—that they
created or acquiesced in an unconstitutional policy by
allowing the Bloods to control GMDC’s common areas
—is insufficient to establish personal involvement. “[T]o
hold supervisors liable for creating a custom or policy
fostering a constitutional violation, courts in this Circuit
have required that plaintiffs plead more than conclusory
allegations of the existence of the custom or policy.”
Lindsey v. Butler, 43 F. Supp. 3d 317, 330 (S.D.N.Y.
2014); see also Burgis v. Dep't of Sanitation City of New
York, No. 13-cv-1011, 2014 WL 1303447, at *6 (S.D.N.Y.
Mar. 31, 2014) (“[I]ncluding boilerplate language alleging
the existence of a policy, without factual allegations
to support it, is not enough at the pleading stage.”).
“Allegations involving only a single incident are generally
insufficient to demonstrate the existence of an official
policy or custom for purposes of establishing personal
involvement under § 1983.” Parris v. N.Y. State Dep't
Corr. Servs., 947 F. Supp. 2d 354, 364 (S.D.N.Y. 2013).
Brown contends that Deputy Warden Laboriel, Deputy
Warden O'Connell, Assistant Deputy Warden Beltz, and
Captain Skepple gave gang members special privileges and
responsibilities at GMDC. But Brown has not pled any
specific facts that, if accepted as true, would establish
that these defendants created this policy or allowed it to
continue under their watch. For example, Brown does
not allege that Deputy Warden Laboriel, Deputy Warden
O'Connell, Assistant Deputy Warden Beltz, and Captain
Skepple instructed specific correction officers to behave
this way, nor does Brown claim that Laboriel, O'Connell,
Beltz, and Skepple learned of and ignored specific
instances of correction officers condoning attacks by the
Bloods. The complaint’s conclusory statements that these
defendants' created an unconstitutional policy are thus
insufficient to demonstrate their personal involvement in
this case.
Brown’s allegation that Deputy Warden Laboriel, Deputy
Warden O'Connell, Assistant Deputy Warden Beltz, and
Captain Skepple failed to arrange a disciplinary hearing
is also insufficient to establish their personal involvement.
Although a prisoner has “a due process right to a hearing
before he may be deprived of a liberty interest on the
basis of a misbehavior report,” Boddie v. Schnieder, 105
F.3d 857, 862 (2d Cir. 1997), the complaint here does
not contain any specific description of the liberty interest
that Brown allegedly lost. In fact, all Brown says is
that he was deprived of “several benefits available to

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an inmate with lower custody level classification.” See
Compl. ¶ 164. This vague assertion does not establish a
constitutional violation. Moreover, there is no indication
that these defendants were even responsible for scheduling
disciplinary hearings at GMDC. Thus, Brown’s claim that
Deputy Warden Laboriel, Deputy Warden O'Connell,
Assistant Deputy Warden Beltz, and Captain Skepple
failed to arrange a disciplinary hearing is insufficient to
establish their personal involvement in a constitutional
violation.
Brown’s allegations about the false reports, though,
are sufficient to establish the personal involvement of
Deputy Warden Laboriel, Deputy Warden O'Connell,
Assistant Deputy Warden Beltz, and Captain Skepple.
Brown contends that Assistant Deputy Warden Beltz
and Captain Skepple authored false reports, and that
Deputy Warden Laboriel, Deputy Warden O'Connell,
and Assistant Deputy Warden Beltz “signed off” on false
reports prepared by others. Compl. ¶¶ 75, 150. Defendants
cite the Second Circuit’s decision in Williams v. Smith,
781 F.2d 319, 324 (2d Cir. 1986) for the proposition
that “the creation of an inaccurate report alone” does
not constitute a constitutional violation. Defs, Br. 15.
Here, however, Brown alleges not only that the incident
reports were inaccurate, but also that the Individual
Defendants who authored and reviewed them did so to
retaliate against him for his complaint about CO James.
Although “a prison inmate has no general constitutional
right to be free from being falsely accused in a misbehavior
report,” the creation of a false report can infringe on an
inmate’s constitutional rights when it is used to retaliate
against him for exercising a constitutional right. Boddie,
105 F.3d at 862. Since the complaint here plausibly
suggests that Deputy Warden Laboriel, Deputy Warden
O'Connell, Assistant Deputy Warden Beltz, and Captain
Skepple had a retaliatory motive, the court cannot dismiss
Brown’s § 1983 claims against them for lack of personal
involvement. Cf. Heyliger v. Gebler, No. 06-cv-6220L,
2010 WL 7746201, at *2 (W.D.N.Y. July 30, 2010)
(dismissing a § 1983 claim against a correction officer
that was premised on the officer filing a false report
because there was “no suggestion in the complaint that
[the defendant] acted out of any retaliatory motive”).
*9 To summarize, at this stage in the litigation,
Brown’s allegation that Deputy Warden Laboriel, Deputy
Warden O'Connell, Assistant Deputy Warden Beltz, and
Captain Skepple had a retaliatory motive in drafting

and approving false reports is sufficient to establish
their personal involvement in a constitutional violation.
Brown’s other allegations about these defendants, though,
are insufficient to show personal involvement.

c. Captain Rudolph
Brown alleges that Captain Rudolph was personally
involved in violating his constitutional rights in two ways.
First, Brown contends that Captain Rudolph filed a false
report to cover up the attack and to retaliate against him.
Compl. ¶¶ 75, 95. Second, Brown alleges that Captain
Rudolph lied on the protective custody application. Id. ¶¶
86-87.
As discussed above, “a prison inmate has no general
constitutional right to be free from being falsely accused
in a misbehavior report.” Boddie, 105 F.3d at 862. “There
must be more, such as retaliation against the prisoner
for exercising a constitutional right.” Id. Here, Brown
claims that Rudolph lied in the incident report and on
the protective custody application to retaliate against
him for complaining about CO James. At this point in
the litigation, these allegations are sufficient to establish
Captain Rudolph’s personal involvement in a violation of
Brown’s constitutional rights.

d. CO Freire
Brown contends that CO Freire violated his constitutional
rights by failing to investigate the incident. Brown alleges
that CO Freire originally promised to provide him with
a photo array to help identify the attackers and press
charges against them, but decided not to after speaking
with other DOC personnel and agreeing “to work in
cahoots” with them. There is, however, no constitutional
right to an investigation by government officials. See
Hayes v. Cty. of Sullivan, 853 F. Supp. 2d 400, 433
(S.D.N.Y. 2012); Carrasquillo v. City of New York, 324
F. Supp. 2d 428, 438 (S.D.N.Y. 2004). “Furthermore,
a victim of allegedly criminal conduct is not entitled
to a criminal investigation or the prosecution of the
alleged perpetrator of the crime.” Johnson v. Ruiz, No.
3:11-cv-542, 2012 WL 90159, at *4 (D. Conn. Jan. 10,
2012). Accordingly, Brown cannot establish CO Freire’s
personal involvement in any violation of his constitutional

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rights by alleging that CO Freire failed to properly
investigate Brown’s complaint.
Brown makes a related argument that, because CO Freire
did not uncover the identities of the Bloods members,
Brown has been deprived of his opportunity to sue them,
which he says is a violation of his constitutional rights.
To support his claim, Brown cites the Supreme Court’s
decision in Bounds v. Smith, 430 U.S. 817 (1977), and the
Second Circuit’s decision in Ayers v. Ryan, 152 F.3d 77 (2d
Cir. 1998). These cases, though, do not support Brown’s
claims.
In Bounds, the Supreme Court held that “the fundamental
constitutional right of access to the courts requires prison
authorities to assist inmates in the preparation and
filing of meaningful legal papers by providing prisoners
with adequate law libraries or adequate assistance from
persons trained in the law.” 430 U.S. at 828. Brown
does not allege that he was hindered from accessing legal
materials or lawyers, so Bounds is irrelevant.
In Ayers, the Second Circuit held that a prison official
violated an inmate’s due process rights by not following
through on a promise to assist the inmate in preparing his
defense for a disciplinary hearing. 152 F.3d at 80-81. Ayers
is distinguishable because Brown does not allege that CO
Freire promised to help with a disciplinary hearing, but
rather that CO Freire promised to act as Brown’s personal
investigator for a potential civil lawsuit or criminal action.
Even assuming CO Freire made this promise, it would
be insufficient to make him personally involved in any
violation of Brown’s constitutional rights.
*10 Brown, therefore, has not pled facts sufficient
to establish CO Freire’s personal involvement in any
violation of his constitutional rights. The § 1983 claims
against CO Freire are dismissed.

e. Warden Suprenant and CO Tietjen
Brown says that Warden Suprenant and CO Tietjen
caused D.T. to be improperly placed in the general
prison population, which jeopardized Brown’s health and
safety. This allegation plausibly suggests that Warden
Suprenant and CO Tietjen were personally involved
in a violation of Brown’s rights under the Fourteenth
Amendment. Whether their conduct actually amounted to

a constitutional violation is discussed below. The court
cannot, however, dismiss the complaint against them for
lack of personal involvement.

f. Summary
Having determined that Brown has alleged facts
sufficient to support the personal involvement of Warden
Suprenant, Deputy Warden Laboriel, Deputy Warden
O'Connell, Assistant Deputy Warden Beltz, Captain
Skepple, Captain Rudolph, and CO Tietjen, the court
will now address the substance of Brown’s § 1983 claims
against them.

2. Deliberate Indifference
In his first cause of action pursuant to § 1983, Brown
alleges, among other things, that Warden Suprenant,
Deputy Warden Laboriel, Deputy Warden O'Connell,
Assistant Deputy Warden Beltz, Captain Skepple, and CO
Tietjen engaged in conduct that amounted to deliberate
indifference to his health or safety. Brown’s deliberate
indifference claims arise under the Due Process Clause
of the Fourteenth Amendment because he was a pretrial
detainee at the time of the incident. See Darnell v.
Pineiro, 849 F.3d 17, 29 (2d Cir. 2017). While a convicted
prisoner’s claim of deliberate indifference arises under the
Eighth Amendment’s prohibition on cruel and unusual
punishment, this proscription does not apply to a pretrial
detainee because a pretrial detainee is not being punished.
Id. A pretrial detainee’s rights under the Fourteenth
Amendment, though, “are ‘at least as great as the
Eighth Amendment protections available to a convicted
prisoner.” ’ Id. (quoting City of Revere v. Mass. Gen.
Hosp., 463 U.S. 239, 244 (1983)).
“A pretrial detainee may establish a § 1983 claim for
allegedly unconstitutional conditions of confinement by
showing that the officers acted with deliberate indifference
to the challenged conditions.” Darnell, 849 F.3d at 29. The
claim consists of two prongs. The first is the “objective
prong,” which requires the pretrial detainee to show
“that the challenged conditions were sufficiently serious
to constitute objective deprivations of the right to due
process.” Id. The second is the “subjective prong,” under
which the pretrial detainee must prove “that the officer
acted with at least deliberate indifference to the challenged

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conditions.” Id. The Second Circuit has suggested that the
subjective prong is “perhaps better classified as a ‘mens rea
prong’ or ‘mental element prong.’ ” Id.
To establish an objective deprivation under the first
prong, a plaintiff must show that he was detained
under conditions posing an unreasonable risk of serious
damage to his health, including his “physical and mental
soundness.” Id. at 30 (citations omitted). The parties here
dispute whether Brown was subject to an unreasonable
risk of serious harm. Defendants argue that such a
risk can only be demonstrated where there is evidence
of a previous altercation between an inmate and his
attacker, coupled with a request by the inmate to be
separated from the attacker. Brown counters that evidence
of a specific risk is not required. The court need not
decide this issue because, as explained below, Brown has
not sufficiently alleged that Warden Suprenant, Deputy
Warden Laboriel, Deputy Warden O'Connell, Assistant
Deputy Warden Beltz, Captain Skepple, and CO Tietjen
acted with deliberate indifference as contemplated by the
subjective prong.
*11 To show deliberate indifference under the subjective
prong, “the pretrial detainee must prove that the
defendant-official acted intentionally to impose the
alleged condition, or recklessly failed to act with
reasonable care to mitigate the risk that the condition
posed to the pretrial detainee even though the defendantofficial knew, or should have known, that the condition
posed an excessive risk to health or safety.” 10 Id. at
35. Therefore, the pretrial detainee must prove that the
prison official acted with “a mens rea greater than mere
negligence,” id. at 36, because “liability for negligently
inflicted harm is categorically beneath the threshold of
constitutional due process,” Kingsley v. Hendrickson,
135 S. Ct. 2466, 2472 (2015). “Absent clear notice
of a risk of harm to the prisoner, [c]ourts routinely
deny deliberate indifference claims based upon surprise
attacks.” Fernandez v. New York City Dep't of Corr., No.
08-cv-4294, 2010 WL 1222017, at *4 (S.D.N.Y. Mar. 29,
2010) (internal quotation marks and citation omitted).
10

“In other words, the ‘subjective prong’ (or ‘mens rea
prong’) of a deliberate indifference claim is defined
objectively.” Darnell, 849 F.3d at 35.

Here, Brown has not pled facts to establish that Warden
Suprenant, Deputy Warden Laboriel, Deputy Warden
O'Connell, Assistant Deputy Warden Beltz, Captain

Skepple, and CO Tietjen acted with the state of mind
necessary to establish deliberate indifference. None of
these individuals was present at the time of the attack,
and thus none of them could have actually intervened to
stop it. Further, none of these defendants was on notice
that an attack was imminent because there had been no
prior altercations involving Brown, and Brown had not
complained to any prison officials that he was in danger.
At worst, Warden Suprenant and CO Tietjen improperly
placed Brown and D.T. together in the general prison
population. Brown himself describes this conduct as mere
negligence. See Compl. ¶ 194 (“The defendants negligently
placed the plaintiff in GMDC....”) (emphasis added); id.
¶ 199 (“The defendants negligently placed the plaintiff in
GMDC....”) (emphasis added). Because “any § 1983 claim
for a violation of due process requires proof of a mens
rea greater than mere negligence,” Darnell, 849 F.3d at
36, Brown’s deliberate indifference claims against Warden
Suprenant and CO Tietjen are dismissed.
Brown’s allegations regarding Deputy Warden Laboriel,
Deputy Warden O'Connell, Assistant Deputy Warden
Beltz, and Captain Skepple primarily relate to post-attack
investigations and reports. Brown says that Assistant
Deputy Warden Beltz and Captain Skepple prepared
false reports, and that Deputy Warden Laboriel, Deputy
Warden O'Connell, and Assistant Deputy Warden Beltz
“signed off” on false reports. Brown also claims that
Assistant Deputy Warden Skepple failed to conduct a
proper investigation. Even if these allegations are true,
they do not support a claim for deliberate indifference
because they occurred after the attack, and thus in no
way imply that these defendants knew of and disregarded
an excessive risk to Brown’s safety leading up to
the incident. Finally, Brown’s allegations that Deputy
Warden Laboriel, Deputy Warden O'Connell, Assistant
Deputy Warden Beltz, and Captain Skepple acted with
deliberate indifference to his safety by allowing the Bloods
to control common areas at GMDC is insufficient to
state a claim under § 1983 because, as discussed above,
Brown has pled no specific facts to support the theory.
See Iqbal, 556 U.S. at 678 (holding that a complaint fails
if it “tenders naked assertion[s] devoid of further factual
enhancement”) (internal quotation marks and citation
omitted). Accordingly, Brown’s deliberate indifference
claims against Deputy Warden Laboriel, Deputy Warden
O'Connell, Assistant Deputy Warden Beltz, and Captain
Skepple are dismissed.

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*12 To summarize, Brown brought a deliberate
indifference claim against Commissioner Ponte, Warden
Suprenant, Deputy Warden Laboriel, Deputy Warden
O'Connell, Assistant Deputy Warden Beltz, Captain
Skepple, CO James, CO Grinkley, and CO Tietjen.
See Compl. ¶¶ 204-07. The claim is dismissed as to
Commissioner Ponte for lack of personal involvement.
For the reasons described above, the claim is also
dismissed as to Warden Suprenant, Deputy Warden
Laboriel, Deputy Warden O'Connell, Assistant Deputy
Warden Beltz, Captain Skepple, and CO Tietjen. Brown’s
deliberate indifference claim, then, only remains as to CO
James and CO Grinkley.

3. Other Claims Under § 1983
Against the Individual Defendants
As described in the procedural history, Brown asserts a
variety of other claims against the Individual Defendants
pursuant to § 1983. Commissioner Ponte, Warden
Suprenant, Deputy Warden Laboriel, Deputy Warden
O'Connell, Assistant Deputy Warden Beltz, Captain
Skepple, Captain Rudolph, CO Tietjen, and CO Freire
(i.e., all defendants except for CO James and CO Grinkley)
move to dismiss these claims. Their only argument,
though, is lack of personal involvement. Because the
court has found that neither Commissioner Ponte nor CO
Freire was personally involved in any violation of Brown’s
constitutional rights, all of Brown’s § 1983 claims against
Commissioner Ponte and CO Freire are dismissed. But
to the extent the complaint asserts other claims under §
1983—i.e., claims not for deliberate indifference—against
Warden Suprenant, Deputy Warden Laboriel, Deputy
Warden O'Connell, Assistant Deputy Warden Beltz,
Captain Skepple, Captain Rudolph, and CO Tietjen,
those claims remain.

C. Monell Claim Against the City
Brown alleges that the City has failed to properly train,
supervise, or discipline its correction officers. Brown
also contends that the City has a policy or custom of
encouraging false reports and allowing the Bloods and
other gangs to operate DOC facilities. According to
Brown, the City’s policy/custom and inadequate training
program resulted in a deprivation of his constitutional

rights, and he seeks to hold the City liable pursuant to
Monell v. Department of Social Services, 436 U.S. 658
(1978). The City moves to dismiss the claim.
In Monell, the Supreme Court held that a municipality
may not be held liable under § 1983 for its employees'
conduct solely on the basis of respondeat superior. Id.
at 694. Instead, to state a claim for relief against a
local government under § 1983, a plaintiff must show
that the violation of his constitutional rights resulted
from a municipal policy or custom. Ricciuti v. N.Y.C.
Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991). “Official
municipal policy includes the decisions of a government’s
lawmakers, the acts of its policymaking officials, and
practices so persistent and widespread as to practically
have the force of law.” Connick v. Thompson, 563 U.S.
51, 61 (2011). Additionally, in limited circumstances, a
municipality’s failure to train its employees about their
legal duty to avoid violating citizens' rights may rise to
the level of an official government policy for purposes of
§ 1983. Id.
“Ultimately, the burden is on the plaintiff to ‘demonstrate
that, through its deliberate conduct, the municipality was
the ‘moving force’ behind the alleged injury.’ ” Whitfield
v. City of Newburgh, No. 08-cv-8516, 2015 WL 9275695,
at *28 (S.D.N.Y. Dec. 17, 2015) (quoting Roe v. City of
Waterbury, 542 F.3d 31, 37 (2d Cir. 2008)). The plaintiff
must also establish a causal connection, or an “affirmative
link,” between the municipal policy and the deprivation of
his constitutional rights. Tuttle, 471 U.S. at 823.
*13 Brown offers two avenues for relief under Monell.
First, Brown says that the City has failed to properly
train and supervise its correction officers. Second, Brown
contends that the City has an unofficial custom of
engaging gangs to operate DOC jails and using false
reports to cover up incidents involving inmates. The City
counters that Brown has failed to state a plausible Monell
claim under either of these theories. Alternatively, the
City argues that even if Brown has sufficiently alleged
the existence of a municipal policy, he has not plausibly
alleged that a particular violation of his constitutional
rights was directly caused by such a policy.

1. Failure to Properly Train, Supervise, or Discipline

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To state a claim against a municipality for its failure
to properly train, supervise, or discipline its employees,
a plaintiff must show that the local government acted
with “deliberate indifference to the rights of persons with
whom the [untrained employees] come into contact.”
Connick, 563 U.S. at 61 (quoting City of Canton v. Harris,
489 U.S. 378, 388 (1989)). The “deliberate indifference”
test “is a stringent standard of fault, requiring proof
that a municipal actor disregarded a known or obvious
consequence of his action.” Bd. of Cty. Comm'rs v. Brown,
520 U.S. 397, 410 (1997). “The operative inquiry is
whether the municipality was on notice that ‘a particular
omission in their training program causes city employees
to violate citizens constitutional rights.’ ” Williams v. City
of New York, 121 F. Supp. 3d 354, 373-74 (S.D.N.Y. 2015)
(quoting Connick, 563 U.S. at 61).
Here, Brown has not offered any specific factual
allegations regarding the City’s training, supervision, or
discipline programs for DOC personnel. In fact, there
is only one reference to the City’s training program in
the complaint, and it simply alleges in conclusory terms
that the City’s training is inadequate. See Compl. ¶ 217.
Since a plaintiff cannot “unlock the doors of discovery”
with “nothing more than [his] unsupported supposition,”
5 Borough Pawn, LLC v. City of New York, 640 F. Supp.
2d 268, 299 (S.D.N.Y. 2009), the court dismisses Brown’s
Monell claim to the extent it is based on the City’s alleged
failure to properly train its employees.

2. Unconstitutional Policy or Custom
Brown also alleges that the City, acting through the
DOC, unofficially delegates duties to gangs at Rikers,
fails to protect inmates from attacks by other inmates,
and encourages false reports to cover up incidents. A
municipal “policy” is generally defined as a regulation
that has been officially promulgated through a formal act
by the municipality’s governing body. Monell, 436 U.S.
at 690. A municipal “custom,” on the other hand, is not
formally approved but “may fairly subject a municipality
to liability on the theory that the relevant practice is so
widespread as to have the force of law.” Brown, 520 U.S.
at 404. “Monell’s policy or custom requirement is satisfied
where a local government is faced with a pattern of
misconduct and does nothing, compelling the conclusion
that the local government has acquiesced in or tacitly

authorized its subordinates' unlawful actions.” Reynolds
v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007).
Here, Brown concedes that he “does not have any evidence
at this time” to suggest that the DOC had an official or
formal policy of turning over control of DOC facilities
to the Bloods. Pl.'s Br. 11. Brown argues, however, that
the City’s “tolerance” of the Bloods and their activities
at DOC jails is so well settled that City policymaking
officials can be said to have either actual or constructive
knowledge of it. In essence, Brown contends that the City
has a custom of allowing gangs to control certain aspects
of DOC facilities.
*14 To sustain a claim for municipal liability under
§ 1983 based on the existence of a custom, a plaintiff
must do more than simply state that a municipal custom
exists. Santos v. New York City, 847 F. Supp. 2d 573,
576 (S.D.N.Y. 2012). “Rather, a plaintiff must allege
facts tending to support, at least circumstantially, an
inference that such a municipal policy or custom exists.”
Id. A single instance of unconstitutional conduct is
generally insufficient to infer that a municipality has an
unlawful policy or custom. Tuttle, 471 U.S. at 823-24.
However, courts in this Circuit have held that a plaintiff
may state a plausible Monell claim by citing cases
or newspapers articles containing allegations of similar
repeated misconduct. See, e.g., Gonzalez v. New York City,
No. 16-cv-00254, 2016 WL 7188147, at *8 (S.D.N.Y. Dec.
2, 2016) (collecting cases).
Brown alleges numerous times that the DOC allows—
even invites the Bloods to control DOC facilities such as
GMDC. See, e.g., Compl. ¶¶ 27-28, 32-38, 44-45. Standing
alone, these allegations are conclusory and are insufficient
to support a plausible Monell claim based on Brown’s
single incident. But Brown also claims that the Bloods
perpetrated a similar attack on another inmate a few days
before he was attacked, Compl. ¶ 193, and he cites an
assortment of cases and articles reporting on corruption
and gang-related violence at Rikers. Granted, many of
these reports offer no support for Brown’s allegation that
the City has an unofficial custom of allowing gang activity
to occur at GMDC. Certain ones, however, bear enough
factual similarity to the incident that is the subject of this
lawsuit to allow Brown’s Monell claim to survive the City’s
motion to dismiss.

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For example, Brown cites a New York, Times article
about the killing of a teenage inmate at Rikers by other
inmates in 2008. Compl. ¶¶ 229-33. In that case, the teen’s
attackers had allegedly been enlisted by correction officers
to act as enforcers to help maintain control over the
jail. The scheme, nicknamed “the Program,” also gave
certain inmates special privileges such as deciding who was
allowed to use chairs in common rooms.
Brown also cites a 2007 Village Voice article reporting
on violence at Rikers. Id. ¶¶ 240-41. That article, which
quotes deposition testimony by a former correction
officer, describes how certain inmates were deputized as
enforcers by correction officers to control other inmates.
The article also discussed an alleged practice known as
“write with us,” in which DOC personnel conspired to
make false reports on incidents involving inmates.
These articles, which contain allegations that are
strikingly similar to the factual allegations here, plausibly
support Brown’s contention that the DOC has not
adequately responded to a pattern of misconduct. At this
stage in the litigation, the court finds that Brown has
adequately alleged the existence of a municipal policy or
custom.

3. Causal Connection
To state a claim for municipal liability under § 1983,
a plaintiff must not only establish the existence of a
municipal policy or custom, but also show a causal
connection, or “affirmative link,” between the policy and
the deprivation of his constitutional rights. Vippolis v.
Village of Haverstraw, 768 F.2d 40, 44 (2d Cir. 1985). The
City argues that, even if Brown has sufficiently alleged
the existence of a municipal policy, he has not plausibly
alleged that his constitutional rights were violated as a
result of that policy.
If the City has a custom of enlisting gang members to
help control other inmates, it is plausible that the attack
on Brown—and the correction officers' lack of response
—was directly connected to this policy. Accordingly, the
City’s motion to dismiss Brown’s claim for municipal
liability based on an unofficial custom or practice is
denied.

IV. State Law Claims
*15 In addition to his federal claims, Brown brings
various state law claims against Defendants. The court
addresses these claims below.

A. Claims Under the New York State Constitution
Brown asserts that Defendants violated his rights under
the New York State Constitution. There is, however,
no private right of action under the New York State
Constitution for claims that can be brought under § 1983.
Davis v. City of New York, No. 15-cv-08575, 2016 WL
4532203, at *10 (S.D.N.Y. Aug. 29, 2016). Here, § 1983
provides a remedy for all of the claims Brown brings under
the New York State Constitution against the Individual
Defendants. Brown’s state constitutional claims against
the Individual Defendants are therefore dismissed. See
Allen v. Antal, 665 Fed.Appx. 9, 13-14 (2d Cir. 2016)
(affirming a district court’s dismissal of claims brought
under the New York State Constitution where alternative
remedies were available).
But § 1983 does not provide an alternative remedy
for Brown’s state constitutional claims against the City
because § 1983 does not recognize respondeat superior
liability. See Campbell v. City of New York, No. 09cv-3306, 2011 WL 6329456, at *5 (E.D.N.Y. Dec. 15,
2011). Thus, to the extent Brown asserts claims under
the New York State Constitution against the City, those
claims survive.

B. Claim Against the City for
Negligent Hiring and Retention
Brown also brings a claim against the City for negligent
hiring and retention. The City seeks dismissal of this claim,
and Brown voluntarily withdraws it with prejudice. This
claim is therefore dismissed with prejudice.

C. Remaining State Law Claims
Brown further alleges that Defendants are liable
for various torts under New York State law. The
City, Commissioner Ponte, Warden Suprenant, Deputy
Warden Laboriel, Deputy Warden O'Connell, Assistant

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Brown v. City of New York, Not Reported in Fed. Supp. (2017)
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Deputy Warden Beltz, Captain Skepple, Captain
Rudolph, CO Tietjen, and CO Freire move to dismiss
these claims.
The City, Assistant Deputy Warden Beltz, Captain
Skepple, and CO Freire offer no argument in support
of their motion to dismiss these state law claims. Their
motion is thus denied.
Commissioner Ponte, Warden Suprenant, Deputy
Warden Laboriel, Deputy Warden O'Connell, Captain
Rudolph, and CO Tietjen (i.e., the six individuals added
in the amended complaint) argue that Brown’s state law
claims against them are time barred. Brown’s state law tort
claims against the City and its employees are subject to a
one-year and ninety-day statute of limitations. See N.Y.
Gen. Mun. § 50-i(l)(c); Jones v. City of New York, No.
13-cv-929, 2016 WL 1322443, at *5 (S.D.N.Y. Mar. 31,
2016). Brown does not dispute the length of the limitations
period or its application to these claims but he contends
that, despite the limitations period, his state law claims are
nonetheless timely.
In support of his argument that the state law claims
against Commissioner Ponte are timely, Brown points to
Federal Rule of Civil Procedure 25(d), which provides
that when a public officer who is a party in an official
capacity ceases to hold office while a lawsuit against
him is pending, the officer’s successor is automatically
substituted as a party. See Fed. R. Civ. P. 25(d);
Gusler v. City of Long Beach, No. 10-cv-2077, 2015
WL 3796328, at *1 (E.D.N.Y. June 18, 2015). Brown’s
original complaint listed Commissioner Schriro as a
defendant. Ponte replaced Schriro as DOC Commissioner
in April 2014. Under Rule 25(d), Ponte was automatically
substituted—in his official capacity—as a party in this
litigation at that time. But as discussed above, Brown’s
claims against the Individual Defendants in their official
capacities are duplicative of his claims against the City.
To the extent Brown asserts claims against Commissioner
Ponte in his individual capacity, Rule 25(d) is irrelevant.
Thus, Brown’s state law claims against Commissioner
Ponte in his individual capacity are untimely.
*16 With respect to Warden Suprenant, Deputy Warden
Laboriel, Deputy Warden O'Connell, Captain Rudolph,
and CO Tietjen, Brown argues that his state law claims
against them are timely due to the “relation back”
doctrine. Both the Federal Rules of Civil Procedure and

New York State law allow, in certain circumstances,
an amended pleading to relate back to the date of the
original pleading for purposes of the statute of limitations.
“Federal courts choosing between federal and state
relation back doctrines should pick the more forgiving
principle of relating back.” Fisher v. Cty. of Nassau, No.
10-cv-0677, 2011 WL 4899920, at *4 (E.D.N.Y. Oct. 13,
2011) (internal quotation marks and citations omitted).
Here, the federal relation back doctrine allows Brown
to proceed with his state law claims against Deputy
Warden Laboriel. However, neither the federal relation
back doctrine nor the New York relation back doctrine
saves Brown’s untimely state law claims against Warden
Suprenant, Deputy Warden O'Connell, Captain Rudolph,
and CO Tietjen.
The federal relation back doctrine is governed by Rule
15(c)(1) of the Federal Rules of Civil Procedure. An
amended complaint that adds a party to the litigation
after the statute of limitations has run relates back to the
original complaint if (1) the amendment asserts a claim
or defense that arose out of the conduct, transaction, or
occurrence set forth in the original complaint, and (2)
within the time for serving the original complaint, the new
party both (i) received such notice of the action that it will
not be prejudiced in defending on the merits, and (ii) knew
or should have known that the action would have been
brought against it, but for a mistake concerning the proper
party’s identity. Fed. R. Civ. P. 15(c)(1)(C); Fisher, 2011
WL 4899920, at *4; Abdell v. City of New York, 759 F.
Supp. 2d 450, 454 (S.D.N.Y. 2010).
It is clear that the new claims against Warden Suprenant,
Deputy Warden Laboriel, Deputy Warden O'Connell,
Captain Rudolph, and CO Tietjen arise out of the same
occurrence set forth in the original complaint, namely
the attack on Brown at GMDC. Only Deputy Warden
Laboriel, though, received timely notice of the action.
Rule 15 requires that the party to be added receive
notice of the action within the time period provided
by Rule 4(m), which—at the time this lawsuit began in
2013—was 120 days after the filing of the complaint. 11
See Fed. R. Civ. P. 4(m); Fed. R. Civ. P. 15(c)(1)(C).
Notice for purposes of Rule 15 can be either actual or
constructive. Girau v. Eurpower, Inc., 317 F.R.D. 414, 421
(S.D.N.Y. 2016). “Under the constructive notice doctrine,
the court can impute knowledge of a lawsuit to a new
defendant government official through his attorney, when

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the attorney also represented the officials originally sued,
so long as there is some showing that the attorney[s] knew
that the additional defendants would be added to the
existing suit.” Muhammad v. Pico, No. 02-cv-1052, 2003
WL 21792158, at *20 (S.D.N.Y. Aug. 5, 2003) (internal
quotation marks and citations omitted). “The relevant
inquiry for determining whether such constructive notice
should be based on ‘sharing of counsel’ is whether counsel
‘knew or should have known’ within the limitations period
that the additional defendants would be added.” Samuels
v. Dalsheim, No. 81-cv-7050, 1995 WL 1081308, at *14
(S.D.N.Y. Aug. 22, 1995) (quoting Gleason v. McBride,
869 F.2d 688, 693 (2d Cir. 1989)).
11

Rule 4(m) has since been amended to reduce the
presumptive time for serving a defendant from 120
days to 90 days. See Fed. R. Civ. P. 4(m) advisory
committee’s note to 2015 amendment. The court will
apply the 120-day period here since that rule was in
effect at the time service was originally made.

In the caption of his original complaint, Brown listed
“Deputy Warden John Doe [Shield# 561]” as a defendant.
See ECF No. 1. In his amended complaint, Brown
replaced this John Doe defendant with “Acting Warden
Felipe Laboriel [Shield # 561].” 12 See ECF No. 52.
Because Brown specifically identified Laboriel by his
shield number in the original complaint, counsel knew
or should have known within the limitations period that
Laboriel would be added as a defendant. Further, this
knowledge can be imputed to Laboriel within 120 days of
when the original complaint was filed on September 20,
2013 because defense counsel appeared in this matter on
January 7, 2014. See ECF Nos. 1, 3. Accordingly, Brown’s
state law claims against Deputy Warden Laboriel relate
back under Rule 15.
12

Since Laboriel does not dispute whether this is his
actual shield number, the court assumes it is correct.

*17 Rule 15, however, is of no help to Brown with
respect to Warden Suprenant, Deputy Warden O'Connell,
Captain Rudolph, and CO Tietjen. These defendants were
not identified in any manner in the original complaint’s
caption. Moreover, the original complaint contained no
factual allegations regarding these defendants' alleged
conduct. Thus, there is no indication that counsel knew
or should have known that Warden Suprenant, Deputy
Warden O'Connell, Captain Rudolph, and CO Tietjen
would be named as defendants in an amended complaint.

New York’s relation back doctrine also fails to save
Brown’s untimely state law claims against Warden
Suprenant, Deputy Warden O'Connell, Captain Rudolph,
and CO Tietjen. The relation back doctrine under New
York law allows claims against a new defendant to relate
back to timely filed claims previously asserted against
a co-defendant when (1) the new claims arose out of
the same conduct, transaction, or occurrence as the
original allegations; (2) the new defendant is “united in
interest” with the original defendant, and by reason of
that relationship can be charged with such notice of the
institution of the action that he will not be prejudiced in
maintaining his defense on the merits; and (3) the new
defendant knew or should have known that, but for a
mistake as to the identity of the proper parties, the action
would have been brought against him as well. Buran v.
Coupal, 661 N.E.2d 978, 981 (N.Y. 1995), see also N.Y.
C.P.L.R. § 203; Strada v. City of New York, No. 11cv-5735, 2014 WL 3490306, at *6 (E.D.N.Y. July 11,
2014). “This test was patterned largely after the Federal
relation back rule ... and, at least with respect to its
third prong, it uses the same standard as Federal Rule
15.” Fisher, 2011 WL 4899920, at *5 (internal quotation
marks and citations omitted). As discussed above, there
is no indication here that Warden Suprenant, Deputy
Warden O'Connell, Captain Rudolph, and CO Tietjen
knew or should have known that they would be added as
defendants. Thus, New York’s relation back doctrine is
unavailing as well.
Nor can Brown simply substitute Warden Suprenant,
Deputy Warden O'Connell, Captain Rudolph, and CO
Tietjen for the “John Doe” and “Jane Doe” defendants
listed in the original complaint. Section 1024 of the New
York Civil Practice Law and Rules allows a plaintiff
to replace a John Doe defendant with a named party
after the statute of limitations has run if (1) the plaintiff
exercised “due diligence, prior to the running of the
statute of limitations, to identify the defendant by name,”
and (2) the plaintiff described “the John Doe party in
such form as will fairly apprise the party that [he] is the
intended defendant.” See Hogan v. Fischer, 738 F.3d 509,
518-19 (2d Cir. 2013). Here, regardless of whether Brown
exercised due diligence, he cannot rely on § 1024 because
he did not provide any identifying information whatsoever
about any of the John Doe defendants listed in the original
complaint.

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15

Brown v. City of New York, Not Reported in Fed. Supp. (2017)
2017 WL 1390678

In sum, Brown’s state law claims are dismissed as
to Commissioner Ponte, Warden Suprenant, Deputy
Warden O'Connell, Captain Rudolph, and CO Tietjen.
These claims remain, however, as to the City, Deputy
Warden Laboriel, Assistant Deputy Warden Beltz,
Captain Skepple, and CO Freire.

amended complaint. The motion for reconsideration is,
therefore, denied. If Brown wishes to amend his complaint
a second time, he may file a motion seeking leave to do so
pursuant to Federal Rule of Civil Procedure 15(a).

CONCLUSION
V. Brown’s Motion for Reconsideration
Brown was able to file his amended complaint in this
action because the court granted him leave to do so
on November 13, 2015. ECF No. 49. Brown now
asks the court to reconsider that November 13, 2015
decision because, when he filed his amended complaint,
he mistakenly deleted former DOC Commissioner Schriro
as a defendant. ECF No. 73. Brown’s motion for
reconsideration is denied.
*18 Brown’s motion for reconsideration is governed by
Local Rule 6.3. Under Local Rule 6.3, a motion for
reconsideration must be served within fourteen days after
the court’s determination of the original motion. Here, the
underlying decision was entered on November 13, 2015.
Brown’s request for reconsideration, however, was not
filed until April 21, 2016. Thus, the motion is untimely,
and it can be denied on that basis alone. See Garcia v.
BAE Cleaners Inc., No. 10-cv-7804, 2012 WL 98511, at *1
(S.D.N.Y. Jan. 11, 2012).
But even if the motion were timely made, it would still be
denied. “[R]econsideration will generally be denied unless
the moving party can point to controlling decisions or
data that the court overlooked matters, in other words,
that might reasonably be expected to alter the conclusion
reached by the court.” Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir. 1995). Here, Brown does not
point to any controlling decisions or data that the court
overlooked; he only says that he erred while drafting his
End of Document

For the foregoing reasons, Defendants' motion to dismiss
certain claims in the amended complaint is granted in
part and denied in part. All of Brown’s claims against
the Individual Defendants in their official capacities
are dismissed. All of Brown’s § 1983 claims against
Commissioner Ponte and CO Freire are dismissed for
lack of personal involvement. Brown’s § 1983 claims
for deliberate indifference only are also dismissed as to
Warden Suprenant, Deputy Warden Laboriel, Deputy
Warden O'Connell, Assistant Deputy Warden Beltz,
Captain Skepple, and CO Tietjen. Brown’s claims under
the New York State Constitution against the Individual
Defendants are dismissed. Brown’s claim against the
City for negligent hiring and retention is dismissed.
Brown’s state law tort claims against Commissioner
Ponte, Warden Suprenant, Deputy Warden O'Connell,
Captain Rudolph, and CO Tietjen are dismissed. All other
claims in the amended complaint remain.
Brown’s motion for reconsideration is denied.
This opinion resolves the items listed at docket numbers
63 and 73.

SO ORDERED.
All Citations
Not Reported in Fed. Supp., 2017 WL 1390678

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16

Brown v. Peters, Not Reported in F.Supp. (1997)
1997 WL 599355

1997 WL 599355
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Kenneth BROWN, Plaintiff,
v.
Andrew PETERS, Warden, Watertown Correctional
Facility; Joseph Williams, Warden, Lincoln Work–
Release Center; Francis J. Herman, Senior Parole
Officer Interstate Bureau; T. Stanford, Senior Parole
Officer; Deborah Stewart, Parole Officer; John
Doe # 1, Parole Agent, Watertown Correctional
Facility; John Doe # 2, Parole Agent, Lincoln
Work Release Center; Susan Bishop, Director of
Interstate Compact, South Carolina; Cecil Magee,
Parole Officer, South Carolina; Frank Barton,
Parole Officer, South Carolina; John McMahan,
Parole Officer, South Carolina, Defendants.
No. Civ.A. 95CV1641RSPDS.
|
Sept. 22, 1997.
Attorneys and Law Firms
Kenneth Brown, State Court
Waynesburg, PA, plaintiff, pro se.

Institute–Greene,

Dennis C. Vacco, New York State Attorney General,
The Capitol Albany, NY, for defendants Peters, Herman
Stewart, Doe # 1, Doe # 2, and Williams, Jeffrey M.
Dvorin, Assistant Attorney General, Carl N. Lundberg,
Chief Legal Counsel, South Carolina Department of
Probation, Columbia, SC, for defendants Bishop, Magee,
Barton, McMahan, and Stanford, Carl N. Lundberg, of
Counsel.

DECISION AND ORDER
POOLER, J.
*1 The above matter comes to me following a Report–
Recommendation by Magistrate Judge Daniel Scanlon,
Jr., duly filed on April 17, 1997. Following ten days from
the service thereof, the Clerk has sent me the entire file,
including any and all objections filed by the parties herein.

Plaintiff Kenneth Brown commenced this Section 1983
civil rights action on November 17, 1995. On February
12, 1996, Magistrate Judge Scanlon ordered Brown to
submit an amended complaint alleging the specific acts
committed by the individuals named as defendants which
Brown claimed violated his constitutional rights. Brown
filed an amended complaint on March 21, 1996. In
his amended complaint, Brown alleged that defendants
violated his rights under the Eighth and Fourteenth
Amendments by failing to process properly his interstate
compact paperwork, resulting in Brown being imprisoned
pursuant to a parole hold when in fact he had never
violated the conditions of his parole. For a more complete
statement of Brown's claims, see his amended complaint.
Dkt. No. 5.
On August 5, 1996, defendants Peters and Williams made
a motion to dismiss for failure to state a claim pursuant
to Fed.R.Civ.P. 12(b)(6). Dkt. No. 13; Dkt. No. 14, at 2.
On August 19, 1996, defendants Bishop, Magee, Barton,
and McMahan made a motion to dismiss the complaint
against them or, in the alternative, for summary judgment.
Dkt. No. 20. On October 17, 1996, defendants Herman,
Stewart, and Stanford made a motion to dismiss for failure
to state a claim. Dkt. No 34. On April 17, 1996, Magistrate
Judge Scanlon recommended that all defendants' motions
to dismiss be granted and that the complaint be dismissed.
Dkt. No. 50.
On June 9, 1997, Brown filed objections to the magistrate
judge's report-recommendation, having been granted
additional time in which to do so. Dkt. No. 52. In addition,
Brown filed on June 9, 1997, a motion for leave to file a
second amended complaint and a copy of his proposed
amended complaint. Dkt. No. 53. I turn first to the last
motion filed, Brown's motion for leave to amend his
complaint a second time.
Brown seeks to file a second amended complaint “setting
forth in detail the personal involvement of each defendant
and how their acts of commission and omission served to
deprive plaintiff of Constitutionally secured rights.” Dkt.
No. 53. The district court has discretion whether to grant
leave to amend. Ruffolo v. Oppenheimer & Co., 987 F.2d
129, 131 (2d Cir.1993). In exercising that discretion, the
court should freely grant leave to amend when justice so
requires. Fed.R.Civ.P. 15(a). However, the court need not
grant leave to amend where it appears that amendment

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1

Brown v. Peters, Not Reported in F.Supp. (1997)
1997 WL 599355

would prove to be unproductive or futile. Ruffolo, 987
F.2d at 131.

would be futile, and I deny Brown's motion for leave to
amend his complaint.

Here, Brown moved to amend his complaint to add
additional allegations against the named defendants.
However, the additional allegations fail to cure the
deficiency which forms the basis of defendants' motion to
dismiss—the absence of defendants' personal involvement
in a constitutional deprivation. Section 1983 imposes
liability upon an individual only when personal
involvement of that individual subjects a person to
deprivation of a federal right. See Monell v. Dep't of Soc.
Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
A complaint is fatally defective if it fails to allege personal
involvement sufficient to establish that a supervisor was
“directly and personally responsible for the purported
unlawful conduct.” Alfaro Motors, Inc. v. Ward, 814 F.2d
883, 886 (2d Cir.1987).

I turn now to the magistrate judge's reportrecommendation and defendants' motions. The
magistrate judge recommends that I grant defendants'
motions and dismiss the complaint as to all defendants.
The report-recommendation clearly describes the grounds
on which the magistrate judge recommends dismissal as
to each defendant. Fed.R.Civ.P. 72(b) requires the district
judge to make a de novo determination on “any portion
of the magistrate's disposition to which specific, written
objection has been made.” Brown's objections fail to
address directly any of the analysis. Brown's objections
state (1) that he has been deprived of his constitutional
rights; (2) that he has stated a cause of action; (3) that the
court wrongly refused to appoint an attorney for him and
wrongly stayed discovery pending the outcome of these
motions; (4) that he seeks to file an amended complaint;
(5) the standard of review for a Fed.R.Civ.P. 12(b)(6)
motion; (6) that he disagrees with the magistrate judge's
recommendation to grant defendants' motions because the
allegations in his complaint, which he repeats, show that
his rights were violated; and (7) the text of the Fourteenth
and Eighth Amendments.

*2 Brown's proposed amended complaint alleges in
conclusory fashion that defendants acted “in a grossly
negligent and concerted manner which breached their
duties owed to Plaintiff and is the proximate cause of [the
violation of plaintiff's constitutional rights].” Proposed
Am. Compl., at 3. Brown continues in the same vein,
stating that defendants owed duties to plaintiff to carry
out their jobs in a professional manner and they failed
to carry out those duties appropriately. The complaint
states that defendants held specific responsibilities, such
as checking for outstanding warrants, which if performed
properly should have alerted them to a problem. However,
nowhere does the complaint set forth allegations that
these defendants either participated directly in any
constitutional infraction or that they were even aware
of such an infraction. The proposed amended complaint
merely alleges that these defendants failed in performing
their supervisory and ministerial functions. “These bare
assertions do not state a claim under 42 U.S.C. § 1983.”
Smiley v. Davis, 1988 WL 78306, *2 (S.D.N.Y.).
This plaintiff previously has had the opportunity to
amend his complaint for the same reason asserted
here, to allege personal involvement on the part of
defendants. Brown's first amended complaint failed to
accomplish that task, and it appears that even if allowed
to amend again Brown would be unable to make the
requisite allegations with sufficient specificity to sustain
his complaint. Consequently, I find that amendment

Even affording the objections the liberal reading required
for pro se pleadings, I find that these objections fail to
state any basis whatsoever, much less a specific one, for
the court not to adopt the magistrate judge's rulings.
They simply re-state the relief sought and the facts
on which Brown grounds his complaint and conclude
that the magistrate judge's conclusions are wrong. When
the parties make only frivolous, conclusive, or general
objections, the court reviews the report-recommendation
for clear error. See Camardo v. General Motors Hourly–
Rate Employees Pension Plan, 806 F.Supp. 380, 382
(W.D.N.Y.1992) (court need not consider objections
which are frivolous, conclusive, or general and constitute
a rehashing of the same arguments and positions taken
in original pleadings); Chambrier v. Leonardo, 1991 WL
44838, *1 (S.D.N.Y.) (restatement of allegations already
before the court and assertion that valid constitutional
claim exists insufficient to form specific objections);
Schoolfield v. Dep't of Correction, 1994 WL 119740, *2
(S.D.N.Y.) (objections stating that magistrate judge's
decisions are wrong and unjust, and restating relief sought
and facts upon which complaint grounded, are conclusory
and do not form specific basis for not adopting report-

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2

Brown v. Peters, Not Reported in F.Supp. (1997)
1997 WL 599355

recommendation); Vargas v. Keane, 1994 WL 693885,
*1 (S.D.N.Y.) (general objection that report does not
address violation of petitioner's constitutional rights is
a general plea that report not be adopted and cannot
be treated as objection within the meaning of 28 U.S.C.
§ 636), aff'd, 86 F.3d 1273 (2d Cir.), cert. denied, 519
U.S. 895, 117 S.Ct. 240, 136 L.Ed.2d 169 (U.S.1996). See
also Scipio v. Keane, 1997 WL 375601, *1 (1997) (when
objections fail to address analysis directly, court reviews
report-recommendation for clear error); Fed.R.Civ.P.
72(b), Advisory Comm. Note (when no specific, written
objections filed, “court need only satisfy itself that there is
no clear error on the face of the record in order to accept
the recommendation”).
*3 Because Brown fails to make specific objections or
provide any basis for his general objections, I review
the report-recommendation for clear error. After careful
review, I conclude that the magistrate judge's reportrecommendation is well-reasoned and is not clearly
erroneous. 1 The magistrate judge employed the proper
standard, accurately recited the facts, and reasonably
applied the law to those facts. Consequently, I adopt the
report-recommendation.
1

I note, however, that the report-recommendation
would survive even de novo review.

CONCLUSION
Because plaintiff's proposed amendment demonstrates
that amendment would be futile, I deny plaintiff's motion
for leave to amend his complaint. I approve the magistrate
judge's recommendation and grant defendants' motions to
dismiss. Plaintiff's complaint is dismissed in its entirety.
IT IS SO ORDERED.

ORDER and REPORT–RECOMMENDATION
This matter was referred to the undersigned for report and
recommendation by the Hon. Rosemary S. Pooler, United
States District Judge, by Standing Order dated November
12, 1986. Currently before this Court are a number of
motions. Defendants Peters and Williams have filed a
motion to dismiss (dkt.13); defendants Bishop, Magee,
Barton and McMahan have filed a motion for summary

judgment, or in the alternative to dismiss (dkt.20); and
defendants Herman, Stewart and Stanford also have filed
a motion to dismiss (dkt.34). Plaintiff opposes these three
motions (dkts.27, 29, 33, 38). Defendants Bishop, Magee
and McMahan have filed a motion to stay discovery
(dkt.41) and plaintiff has filed a motion to extend time
(dkt.44) in which to file opposition to the latter motion for
a stay of discovery.
The Court addresses these issues seriatim.

BACKGROUND
Plaintiff's amended complaint, which he has brought
pursuant to 42 U.S.C. § 1983, alleges the following
facts. In October, 1991, plaintiff was incarcerated in
the Watertown Correctional Facility in Watertown, New
York. He applied for an interstate compact because he
wanted to return to South Carolina to live with his
common law wife, Pamela Reid. During the application
process, he was interviewed by the facility's parole officer,
identified only as defendant John Doe # 1. After signing
the necessary papers, his application was forwarded to
defendant Andrew Peters, the facility's superintendent,
who reviewed, signed and forwarded the papers to the
Interstate Bureau. Amend. Compl. at ¶¶ 1–2; Exs. A, B.
On or about January 15, 1992, while his compact was
waiting for review at the Interstate Bureau, plaintiff was
approved for work release and sent to the Lincoln Work
Release Center in New York City. While at the center,
plaintiff spoke to a parole officer, defendant John Doe #
2, and told him that he was seeking a compact that would
return him to South Carolina upon his conditional release.
Plaintiff claims the parole officer told him that he would
handle the necessary paperwork, although the officer had
had no experience with an interstate compact. Amend.
Compl. at ¶¶ 3, 4.
*4 Plaintiff, meanwhile, asked Reid whether any officials
had contacted her in South Carolina regarding his
prospective residence in that state. Upon discovering no
one had contacted her, plaintiff asked a lawyer he knew,
Navron Ponds, to inquire as to his compact status. In
March, 1992, the lawyer spoke with defendant Susan
Bishop, who is the director of the interstate compact
program in South Carolina. Bishop allegedly told Ponds
that plaintiff “was disapproved because there was a

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3

Brown v. Peters, Not Reported in F.Supp. (1997)
1997 WL 599355

discrepancy about approving plaintiff['s] compact.” The
“discrepancy” was the fact that plaintiff owed the state
of South Carolina eighty-six days of confinement from
a previous sentence. Plaintiff claims Bishop told Ponds
to contact defendants Cecil Magee and Frank Barton,
who worked for the South Carolina Parole Department.
Sometime in March, 1992, Ponds made some calls to
Barton and Magee. A verbal agreement was reached, and
plaintiff, upon speaking with Barton and Magee was told
that his compact had been approved. He also was told
that he should report to the South Carolina Department
of Parole upon being released. Amend. Compl. at ¶¶ 5–7.
Prior to leaving the Lincoln Work Release Center,
plaintiff processed paperwork related to his interstate
compact. His paperwork was sent by Doe # 2 to defendant
Joseph Williams, the superintendent of the center.
Williams reviewed, signed and returned the paperwork to
plaintiff. On May 1, 1992, upon his release from the center,
plaintiff traveled to South Carolina. Three days later, he
entered a South Carolina parole office and promptly was
arrested because of the eighty-six days of confinement
that he owed the state. Plaintiff's paperwork was given
to defendant John McMahan, a parole officer. Plaintiff
claims that McMahan never returned this paperwork
to him. On May 20, 1992, the state of South Carolina
revoked plaintiff's parole and plaintiff was returned to
prison to serve the eighty-six days that he owed. When
he asked McMahan what would happen to his one year
of parole from New York, the officer allegedly told him
that his New York parole would run concurrently with
his South Carolina parole, and that when he finished
his South Carolina parole, he would not owe any parole
whatsoever. Plaintiff served the eighty-six days he owed
and was released on July 31, 1992. Amend. Compl. at ¶¶
8–10.
In February, 1993, plaintiff was arrested on robbery
charges in South Carolina. The charges ultimately were
dropped, but he apparently encountered some difficulties
regarding this arrest as a result of a parole hold that New
York state had placed upon him. Bishop's office told him
that it had nothing to do with his parole hold and that
any problem that he had was between him and the state of
New York. He talked to authorities in Albany, New York
regarding the parole hold, but was not successful in his
efforts to have the hold removed. On September 30, 1993,
after had been extradited to New York as a fugitive from
justice, plaintiff was given a preliminary hearing at Riker's

Island, New York. The hearing officer found no probable
cause that plaintiff had violated any condition of parole.
He was released. Amend. Compl. at ¶¶ 11–14; Exs. C–J.
*5 Plaintiff claims that he would not have suffered
hardships if his interstate compact had been handled
correctly. He alleges that defendant Deborah Stewart
failed to follow up and see whether plaintiff had arrived
in South Carolina. If she had, he argues, she would have
discovered that he had been arrested upon his arrival. He
alleges that defendant Francis Herman, a parole officer
at the Interstate Bureau failed to do his job by not
investigating plaintiff's violation reports. Amend. Compl.
at ¶¶ 15–17; Exs. F–I.
Plaintiff asserts that the foregoing amounts violations of
his Eighth and Fourteenth Amendment rights, wherefore
he both compensatory and declaratory relief.

DISCUSSION
A. Motion to Dismiss by Williams and Peters.
Williams and Peters have filed a motion to dismiss
plaintiff's complaint pursuant to FED.R.CIV.P. 12(b)(6)
on the grounds that it fails to state a claim upon which
relief may be granted. In a Rule 12(b)(6) motion, all
factual allegations in the complaint must be taken and
construed in plaintiff's favor. See LaBounty v. Adler, 933
F.2d 121, 122 (2d Cir.1991) (citing Ortiz v. Cornette,
867 F.2d 146, 149 (1989)). The Court's role is not to
assess whether plaintiffs have raised questions of fact or
demonstrated an entitlement to a judgment as a matter
of law, as in a motion made pursuant to FED.R.CIV.P.
56 for summary judgment, but rather to determine
whether plaintiff's complaint sufficiently alleges all of
the necessary legal elements to state a claim under the
law. See Christopher v. Laidlaw Transit, Inc. 899 F.Supp.
1224, 1226 (S.D.N.Y.1995), (citing Ricciuti v. New York
City Transit Authority, 941 F.2d 119, 124 (2d Cir.1991)).
Factual allegations in brief or memoranda may not be
considered. Fonte v. Board of Managers of Continental
Towers Condominium, 848 F.2d 24, 25 (2d Cir.1988). The
Court now turns to the issues presented.
Personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award
of damages under § 1983. Wright v. Smith, 21 F.3d
496, 501 (2d Cir.1994). As superintendents at New York

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4

Brown v. Peters, Not Reported in F.Supp. (1997)
1997 WL 599355

State Correctional facilities, Williams and Peter may be
found personally involved in the alleged deprivation of
plaintiff's constitutionally protected rights by a showing
that they: (1) directly participated in the infraction; (2)
knew of the infraction, but failed to remedy the wrong;
(3) created or continued a policy or custom under which
unconstitutional practices occurred; or (4) were grossly
negligent in managing subordinates who caused unlawful
conditions or events. Id., (quoting Williams v. Smith,
781 F.2d 319, 323–24 (2d Cir.1986)). Supervisory liability
also may be imposed against Williams or Peters with a
showing of gross negligence or deliberate indifference to
plaintiff's constitutional rights. Id. Absent some personal
involvement by Williams or Peters in the allegedly
constitutionally infirm conduct of their subordinates,
neither can be held liable under § 1983. Gill v. Mooney, 824
F.2d 192, 196 (2d Cir.1987).
*6 Plaintiff has not provided any evidence linking
either Williams or Peters to his alleged constitutional
deprivations. All that plaintiff has alleged is that Williams
and Peters, as superintendents, have reviewed and signed
paperwork relating to plaintiff's compact. Though it
has long been held that pro se complaints are held to
“less stringent standards than formal pleadings drafted
by lawyers” for the purpose of a motion to dismiss
under Rule 12(b)(6), Haines v. Kerner, 404 U.S. 519, 520,
92 S.Ct. 594, 595–96, 30 L.Ed.2d 652 (1972), plaintiff
has not explained how the ministerial conduct of these
two defendants was violative of the Constitution. Their
motion to dimiss should be granted.

B. Motion for Summary Judgment or to Dismiss by
Bishop, Magee, Barton and McMahan.
Bishop, Magee, Barton and McMahan have filed a
motion for summary judgment, or in the alternative a
motion to dismiss. The Court will treat their motion as
a motion to dismiss. “[C]omplaints relying on the civil
rights statutes are insufficient unless they contain some
specific allegations of fact indicating a deprivation of
rights, instead of a litany of general conclusions that shock
but have no meaning.” Barr v. Adams, 810 F.2d 358,
363 (2d Cir.1987). Plaintiff has not alleged specifically
how the conduct of these four defendants infringed
upon his constitutional rights. In his amended complaint,
he contends that defendants violated the Constitution
by “continuously breaching [[[their] duty” to him. This
language underscores the defect with the complaint: if
it alleges anything at all, it alleges that defendants were

negligent in handling plaintiff's interstate compact and
parole. To state a cognizable § 1983 claim, the prisoner
must allege actions or omissions sufficient to demonstrate
deliberate indifference; mere negligence will not suffice.
Hayes v. New York City Dept. of Corrections, 84 F.3d
614, 620 (2d Cir.1996); Morales v. New York State Dep't
of Corrections, 842 F.2d 27, 30 (2d Cir.1988) (section
1983 does not encompass a cause of action sounding in
negligence).
The Court finds that the claims against Bishop, Magee,
Barton and McMahan should be dismissed.

C. Motion to Dismiss by Herman, Stewart and Stanford.
Plaintiff's claim against Stewart is that she failed to
follow up and see whether plaintiff had arrived in South
Carolina. Herman, he likewise asserts, failed to do his job
because he did not investigate plaintiff's violation reports.
Plaintiff has not alleged how these actions run afoul of the
Constitution; and again, these claims seem to be grounded
in negligence, which is not actionable under § 1983. Hayes,
84 F.3d at 620.
Plaintiff's claim against Stanford must fail because his
complaint literally fails to state a claim against that
defendant. Aside from naming Stanford as a defendant,
and alleging that he was the appointed Senior Parole
Officer at plaintiff's September 30, 1993 revocation
hearing at Riker's Island, plaintiff does not detail
how Stanford violated his constitutional rights. Absent
some personal involvement by Stanford in the allegedly
constitutionally infirm conduct of his subordinates, he
cannot be held liable under § 1983. Gill, 824 F.2d at 196.
*7 Accordingly, the Court finds that Stanford, Stewart
and Herman's motion to dismiss should be granted.

D. Plaintiff's “John Doe” Claims.
In so far as neither John Doe # 1 nor John Doe # 2 have
been identified and served in this matter, the Court does
not have jurisdiction over these parties and does not reach
the merits of plaintiff's claims against them.

E. Discovery Motions.
Defendants Bishop, Magee and McMahan have filed a
motion to stay discovery until the Court has made a
ruling on their motion to dismiss. Plaintiff has filed a

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5

Brown v. Peters, Not Reported in F.Supp. (1997)
1997 WL 599355

motion to extend the time in which he may file opposition
to defendants' motion. Plaintiff, however, has filed his
opposing response (dkt.47), therefore his instant discovery
motion is denied as moot. In that the Court recommends
granting defendants' motion to dismiss, discovery in
this matter would be fruitless. Accordingly, defendants'
motion for a stay of discovery pending the resolution of
their motion to dismiss is granted.

RECOMMENDED, that defendants Peters and
Williams' motion to dismiss (dkt.13) be granted; and it is
further

CONCLUSION

Pursuant to 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c),
the parties have ten (10) days within which to file written
objections to the foregoing report. Such objections shall be
filed with the Clerk of the Court. FAILURE TO OBJECT
TO THIS REPORT WITHIN TEN (10) DAYS WILL
PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir.1993) (citing Small v. Secretary of
Health and Human Services, 892 F.2d 15 (2d Cir.1989)); 28
U.S.C. § 636(b)(1); FED.R.CIV.P. 6(a), 6(e) and 72.

WHEREFORE, based upon the foregoing analysis, it is
hereby
ORDERED, that plaintiff's motion to extend the time to
file an opposing reply (dkt.44) is denied as moot; and it is
further
ORDERED, that defendants Bishop, Magee and
McMahan's motion to stay discovery until their motion to
dismiss is decided (dkt.41) is granted; and it is further

RECOMMENDED, that defendants Bishop, Magee,
Barton and McMahan's motion to dismiss (dkt.20) be
granted; and it is further
RECOMMENDED, that defendants Herman, Stewart
and Stanford's motion to dismiss (dkt.34) be granted.

All Citations
Not Reported in F.Supp., 1997 WL 599355

End of Document

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6

Davis v. City of New York, Not Reported in F.Supp.2d (2008)
2008 WL 2511734

2008 WL 2511734
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Gregory DAVIS, Plaintiff,
v.
CITY OF NEW YORK, New York City Police
Department, Police Officer George Lopez
Police Officer “John Doe”, Defendants.
No. 07 Civ. 1395(RPP).
|
June 19, 2008.
Attorneys and Law Firms
Mark Lubelsky & Associates, Attn: Mark L. Lubelsky,
New York, NY, for Plaintiff.
Office of the Corporation Counsel, New York City Law
Dep't, Attn: Sabrina Melissa Tann, New York, NY, for
Defendants.

OPINION AND ORDER
ROBERT P. PATTERSON, JR., District Judge.
*1 Plaintiff Gregory Davis filed a complaint against
Defendants City of New York, New York City Police
Department (“NYPD”), Police Officer George Lopez and
Police Officer “John Doe” alleging a cause of action
under 42 U.S.C. § 1983. Defendants City of New York
and NYPD move to dismiss the complaint in its entirety
pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure. For the following reasons, Defendants' motion
for summary judgment (Doc. No. 12) is granted.

BACKGROUND
On February 26, 2007, Plaintiff initiated this action by
filing the complaint with the Court. (Defs.' Rule 56.1 Stmt.
¶ 4; Pl.'s Rule 56.1 Stmt. ¶ 4.) The complaint alleges that
on or about March 16, 2004, Police Officers George Lopez
and “John Doe” used excessive force while arresting
Plaintiff near the intersection of Broadway and 136th
Street for minor drug possession, caused him physical
injury, and subsequently denied him medical treatment

in violation of Plaintiff's constitutional rights. (Compl. ¶¶
15-34; Defs.' Rule 56.1 Stmt. ¶ 2; Pl.'s Rule 56.1 Stmt.
¶ 2.) The complaint also alleges that the City of New
York failed to properly train and supervise its officers,
resulting in the deprivation of Plaintiff s constitutional
rights. (Compl. ¶¶ 65-66; Defs.' Rule 56.1 Stmt. ¶ 3; Pl.'s
Rule 56.1 Stmt. ¶ 3.
By letter dated April 25, 2007 and copied to Plaintiff's
counsel, Sabrina Tann, Esq., counsel for Defendant City
of New York, requested an adjournment of the initial
pretrial conference scheduled for the following day on
the grounds that “none of the named defendants in this
action have been served with a copy of the summons and
complaint.” (Tann Decl., Ex. C; Defs.' Rule 56.1 Stmt. ¶
6.) On May 10, 2007, Plaintiff served Corporation Counsel
of the City of New York, located at 100 Church Street,
New York, New York 10007, with two copies of the
summons and complaint. (Tann Decl. ¶ 7; Defs.' Rule
56.1 Stmt. ¶ 7; Pl.'s Rule 56.1 Stmt. ¶ 7.) Each of the
two summons, dated February 26, 2007, were addressed
to “Police Officer George Lopez,” “Police Officer John
Doe,” “City of New York,” and “The New York City
Police Department” at “100 Church Street, Fourth Floor,
New York, New York 10026.” 1 (Tann Decl., Ex. D; id.
¶ 8; Defs.' Rule 56.1 Stmt ¶ 8; Pl.'s Rule 56.1 Stmt. f
8.) Plaintiff never filed any affidavits of service of the
summons and complaint with the Court. (Tann Decl. ¶ 11;
Defs.' Rule 56.1 Stmt. ¶ 10; Pl.'s Rule 56.1 Stmt. ¶ 10.)
1

Plaintiff acknowledges that the zip code was written
as “10026” in error and that the correct zip code is
10007. (Tann Decl. at 2 n. 1.)

On June 12, 2007, Defendants City of New York and
NYPD filed their answer to the complaint. (Tann Decl.
¶ 12; Defs.' Rule 56.1 Stmt. ¶ 11; Pl.'s Rule 56.1 Stmt.
¶ 11.) In their answer, Defendants City of New York
and NYPD stated “[u]pon information and belief, the
individual identified in the caption of the complaint as
George Lopez, has not been served with a copy of the
Summons and Complaint or requested representation
from the office of Corporation Counsel.” (Tann Decl., Ex.
E; Defs.' Rule 56.1 Stmt. ¶ 12; Pl.'s Rule 56.1 Stmt. ¶ 12.)
*2 On September 11, 2007, at an initial conference
with both counsel present before the Court, Defendants'
counsel stated that service of process had not been effected
on the named defendant George Lopez. (Tann Decl. ¶ 13;
Defs.' Rule 56.1 Stmt. ¶ 13.) At that conference, the Court

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1

Davis v. City of New York, Not Reported in F.Supp.2d (2008)
2008 WL 2511734

set a briefing schedule for Defendants' proposed motion
to dismiss the complaint pursuant to Federal Rule of Civil
Procedure 12(c). (Tann Decl. ¶ 15; Defs.' Rule 56.1 Stmt.
¶ 15; Pl.s' Rule 56.1 Stmt. ¶ 15.) By letter dated September
26, 2007, Defendants withdrew their request to submit the
motion to dismiss, and by order dated September 26, 2007,
the Court directed the parties to complete discovery by
January 1, 2008 and submit a proposed Pre-Trial order
by January 18, 2008. (Tann Decl., Ex. F; Defs.' Rule 56.1
Stmt. ¶¶ 16-17; Pl's Rule 56.1 Stmt. ¶¶ 16-17.)
Following the Court's September 27, 2007 Order, Plaintiff
failed to seek leave from the Court for a further period
in which to serve Defendant George Lopez with process.
(Tann Decl. ¶ 18; Defs.' Rule 56.1 Stmt. ¶ 18.) Ms. Tann,
counsel for Defendants City of New York and NYPD,
has not contacted Mr. Lopez with respect to the claims
asserted against him in the complaint, nor has Mr. Lopez
contacted the office of Corporation Counsel to request
legal representation in this matter. (Tann Decl. ¶ 19; Defs.'
Rule 56.1 Stmt. ¶ 19.) Upon information and belief of
Defendants, to date, George Lopez has had no notice of
this action. (Tann Decl. ¶ 20; Defs.' Rule 56.1 Stmt. ¶ 20.)
On November 19, 2007, Plaintiff served the City of New
York with a first demand for production of documents
and first set of interrogatories. (Pl.s' Affirmation, Ex. C.)
On December 12, 2007, Plaintiff's counsel sought a twomonth stay of discovery on the grounds that counsel,
despite ardent efforts, was unable to contact Plaintiff to
assist him with the prosecution of this matter. (Tann
Decl., Ex. G; Defs.' Rule 56.1 Stmt. ¶ 23; Pl's Rule
56.1 Stmt. ¶ 23.) By letter dated December 18, 2007,
Defendants opposed Plaintiff's application for a stay and
sought leave to file a motion pursuant to Federal Rule
of Civil Procedure 56. (Tann Decl., Ex. H; Defs.' Rule
56.1 Stmt. ¶ 24; Pl.'s Rule 56.1 Stmt. ¶ 24.) By order
dated December 20, 2007, the Court granted Plaintiff's
application in part and stayed discovery until February 12,
2008. (Pl.s' Affirmation, Ex. B; Pl.s' Rule 56.1 Stmt. ¶ 25.)
Defendants City of New York and NYPD filed the instant
motion for summary judgment on January 18, 2008. At
the time the motion was filed, Plaintiff had not sought to
depose any witnesses in this matter or identified “Police
Officer John Doe.” (Tann Decl. ¶¶ 21, 22; Defs.' Rule 56.1
Stmt. ¶ 21, 22; Pl.s' Rule 56.1 Stmt. ¶ 21, 22.) Nor had
Defendants responded to Plaintiffs' document demands
and interrogatories. (Pl.s' Rule 56.1 Stmt. ¶ 21 .)

Defendants City of New York and NYPD move for
summary judgment on the grounds that the NYPD is not
a suable entity and that the complaint fails to state a
claim against the City of New York for failure to properly
train and supervise the defendant officers. Defendants
also argue that the claims against Officers Lopez and
“John Doe” should be dismissed pursuant to Federal Rule
of Civil Procedure 4(m) because Plaintiff failed properly
to serve Officer Lopez within 120 days of filing this action
despite having notice that his service was defective and
also failed to apply for an order extending the 120-day
period.

DISCUSSION
I. Summary Judgment Standard
*3 A court may grant summary judgment only where the
“pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,
show there is no genuine issue as to any material fact and
the moving party is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(c). When considering a motion for
summary judgment, the court must view the facts in the
light most favorable to the nonmoving party and draw
all reasonable inferences in its favor. Anderson v. Liberty
Lobby, 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986); Braham v. Clancy, 425 F.3d 177, 181 (2d Cir.2005).
Summary judgment is inappropriate if, after resolving all
ambiguities and drawing all inferences against the moving
party, there remains a dispute about a material fact “such
that a reasonable jury could return a verdict for the
nonmoving party.” Anderson, 477 U.S. at 248.

II. Plaintiff's Claim against Police Officers George
Lopez and “John Doe”
Defendants move for summary judgment in favor of the
individual police officers against whom Plaintiff alleges
§ 1983 violations on the grounds that they were never
served with the summons and complaint. Defendants
argue that the claim against the defendant officers should
be dismissed with prejudice because Plaintiff cannot show
good cause for his failure to timely serve, the statute of
limitations ran on Plaintiff's claim on March 16, 2007, and
Officer Lopez would be prejudiced by an extension for
service at this time.

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2

Davis v. City of New York, Not Reported in F.Supp.2d (2008)
2008 WL 2511734

A. Whether service was effected on the defendant
officers
Federal Rule of Civil Procedure 4(e)(1) provides that
service of process is effected on an individual in one of
three ways: (1) pursuant to the law of the state in which the
district court is located, or in which the service is effected;
(2) by delivering a copy of the summons and complaint
to the individual personally, or by leaving copies at the
individual's “dwelling house or usual place of abode with
some person of suitable age and discretion then residing
therein”; or (3) by delivering a copy of the summons and
complaint to an agent authorized by law to receive service
of process. Under New York law, service can be made by
delivering the summons “to a person of suitable age and
discretion at the actual place of business ... and by either
mailing the summons to the person to be served at his or
her last known residence or by mailing the summons by
first class mail to the person to be served at his or her
actual place of business.” N.Y. C.P.L.R. 308 (McKinney
2007). Under this section, “ ‘actual place of business' shall
include any location that the defendant, through regular
solicitation or advertisement, has held out as its place of
business.” Id.
Plaintiff argues that he complied with New York law by
serving Police Officers George Lopez and “John Doe”
at the office of Corporation Counsel. Under C.P.L.R.
§ 311, Corporation Counsel is an authorized agent
permitted to accept service on behalf of the City of New
York. N.Y. C.P.L.R. § 311. Plaintiff contends because
the police officers are employees of the City of New
York, service on the City is proper. Section 311 of the
C.P.L.R., however, pertains to “personal service upon
a corporation or governmental subdivision” and does
not authorize the City of New York to accept service
on behalf of individuals. See id. Nor is the office of
Corporation Counsel the “actual place of business” for
Officer Lopez or the unnamed officer “John Doe,” under
C.P.L.R. § 308. The police precinct to which they report
and where they conduct their business is their actual
place of business. Moreover, Plaintiff made no effort to
serve the officers personally or at their actual residences.
Under these circumstances, service on the City of New
York constitutes improper service on the defendant
police officers. See Moultry v. City of Poughkeepsie, 154
F.Supp.2d 809, 811 (S.D.N.Y.2001) (holding that service
on the police officers who allegedly violated plaintiff's civil
rights was not proper where the summons and complaint
were served on an official in a city office never frequented

by the officers, and no effort was made to serve them
personally or leave papers at their residences).

B. Whether an extension for service should be granted
*4 Under Rule 4(m) of the Federal Rules of Civil
Procedure, a plaintiff must properly serve the defendants
within 120 days of filing of the complaint. Fed.R.Civ.P.
4(m). If a plaintiff fails to timely serve, the district court
must either “dismiss the action without prejudice as to
that defendant or direct that service is effected within a
specified time.” Id. The district court is required to grant
an appropriate extension of time to effect service if the
plaintiff shows good cause for failure to serve and has
discretion to grant such an extension even in the absence
of good cause. Id.; Zapata v. City of New York, 502
F.3d 192, 197 (2d Cir.2007) (holding that under Rule
4(m) “district courts have discretion to grant extensions
even in the absence of good cause” but are not required
to do so). The policy behind Rule 4(m) and the statute
of limitations is to promote the “diligent prosecution of
civil cases.” Nat'l Union Fire Ins. Co. v. Sun, No. 93 Civ.
7170, 1994 U.S. Dist. LEXIS 11934, at *7 (S.D.N.Y. Aug.
18, 1994); accord Gordon v. Hunt, 116 F.R.D. 313, 320
(S.D.N.Y.1987) (noting that the policy behind Rule 4(m)
and the statute of limitations is “to encourage prompt
movement of civil actions in the federal courts”).
In this case, Plaintiff cannot show good cause for failure
to serve the defendant police officers within the 120-day
period. Plaintiff and Plaintiff's counsel were put on notice
on June 8, 2007, when Defendants filed their answer,
and again on September 11, 2007, at the initial pretrial
conference before the Court, that the defendant police
officers had not been served. (Tann Decl. ¶¶ 12, 13.)
Despite this notice, Plaintiff took no steps to serve Officer
Lopez, request an extension of the 120-day period (Tann
Decl. ¶ 18), or request assistance in locating the officers.
An attorney's inadvertence, neglect, or ignorance of the
rules does not constitute good cause for untimely service.
McKibben v. Credit Lyonnais, No. 98 Civ. 3358, 1999 U.S.
Dist. 12310, at *9 (S.D.N.Y. Aug. 9, 1999) (citing Klein v.
Williams, 144 F.R.D. 16, 19-20 (E.D.N.Y.1992)). Under
the circumstances in this case, Plaintiff fails to establish
good cause for untimely service. See Bogle-Assegai v.
Connecticut, 470 F.3d 498, 508 (2d Cir.2006) (holding that
the plaintiff failed to establish good cause where she knew
that defendants thought service was improper and made
no effort to remedy this defect or ask the court to extend
her time to effect service).

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3

Davis v. City of New York, Not Reported in F.Supp.2d (2008)
2008 WL 2511734

Nor is this a case where an extension should be granted in
the Court's discretion despite the absence of good cause. In
considering whether or not to grant an extension absent a
showing of good cause, the Court must weigh the impact a
dismissal or extension would have on the parties. Zapata,
502 F.3d at 197. Dismissing the complaint without
prejudice in this case would have serious consequences
for Plaintiff because the statute of limitations would bar
him from re-filing. On the other hand, these consequences
are attributable in large part to Plaintiff and his counsel's
neglect and failure to prosecute. Plaintiff's counsel filed
the complaint on February 16, 2007, only three weeks shy
of the expiration of the three-year statute of limitations
on his § 1983 claims. Even after being notified that the
defendant officers had not been served, Plaintiff's counsel
failed to make any further attempts to effect service or
seek an extension of the 120-day period. Importantly,
Plaintiff's counsel did not inform the Court that he had
lost contact with Plaintiff until his December 12, 2007
letter requesting a stay of discovery, which the Court
had ordered completed by January 1, 2008. In his letter,
Plaintiff's counsel stated that he had “recently attempted
to contact Mr. Davis on numerous occasions in order
to respond to defendant's [discovery] demands” but had
been unable to reach him by either phone or mail. (PL's
Affirmation, Ex. B.) Although the Court granted counsel's
request for a 60-day stay of discovery to “provide plaintiff
the needed time to effectuate contact” (id.), counsel has
not informed the Court that any contact has been restored.
Furthermore, more than four years have passed since the
alleged incident took place. Officer Lopez never received
notice of this litigation, as he was never served and
no depositions were ever taken to make him aware of
the case against him. Were Plaintiff granted leave to
effect service at this point, Officer Lopez would suffer
considerable prejudice in defending against the case, as
the facts would have certainly faded from memory. Under
these circumstances, the Court declines to exercise its
discretion to grant an extension for service under Zapata.

III. Plaintiff's Claim against the City of New York
*5 Plaintiff alleges that the City of New York failed
to properly train and supervise the police officers who
deprived Plaintiff of his constitutional rights. (Compl.¶¶
65-66.) Defendants seek to dismiss Plaintiff's claim against
the City of New York on the grounds that the complaint
fails adequately to state a claim for municipal liability and

that, even if the claim is adequately plead, Plaintiff fails to
proffer any evidentiary support for the claim.
A municipality may not be held liable under 42 U.S.C. §
1983 for the conduct of its employees based on a theory
of respondeat superior. Monell v. Dep't of Social Servs.,
436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
Municipal liability attaches only if the plaintiff can show
that a municipal policy or custom caused the deprivation
of his constitutional rights. Id. at 690-91. Where a plaintiff
alleges municipal liability based on a failure to train and
supervise, “the inadequacy of police training may serve as
the basis for § 1983 liability only where the failure to train
amounts to deliberate indifference to the rights of persons
with whom the police come into contact,” and therefore
amounts to an actionable city “policy or custom.” City of
Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1989).
In Leatherman v. Tarrant County Narcotics Intelligence
& Coordination Unit, 507 U.S. 163, 113 S.Ct. 1160, 122
L.Ed.2d 517 (1993), the Supreme Court held that district
courts may not apply a “heightened pleading standard”
beyond what is generally required by Federal Rule of
Civil Procedure 8(a) to Section 1983 complaints alleging
municipal liability. Id. at 164. Leatherman appears to
reject the pleading standard applied by the Second Circuit
in Dwares v. City of New York, 985 F.2d 94, 100 (2d
Cir.1993), which held that the allegation of a single
incident involving only actors below the policymaking
level does not suffice to state a claim of municipal liability
under Section 1983. See Simpkins v. Bellevue Hosp., 832
F.Supp. 69, 73 n. 3 (S.D.N.Y.1993); see also Cooper v.
Metro. Transp. Auth., 2006 U.S. Dist. LEXIS 47970, at
*9-10 (S.D.N.Y. July 13, 2006). Since Leatherman. courts
in this district have denied motions to dismiss complaints
alleging that an individual officer's conduct conformed
to official policy or custom or that an individual officer
was empowered to make policy decisions on behalf of the
municipality. See, e.g., Cooper, 2006 U.S. Dist. LEXIS
47970, at *9-10 (holding that “[u]nder the Leatherman
rule ... Plaintiff's bare allegations that Harrington was
a “policy maker” and that both Harrington and Paul
were empowered to make policy decisions on behalf of
Metro-North/MTA are sufficient” to withstand a motion
to dismiss); Lucas v. New York City, 1995 U.S. Dist.
LEXIS 17017, at *7, 1995 WL 675477 (S.D.N.Y. Nov.
14, 1995) (denying the motion to dismiss plaintiff's § 1983
claim under Leatherman to the extent plaintiff alleges

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4

Davis v. City of New York, Not Reported in F.Supp.2d (2008)
2008 WL 2511734

he was arrested pursuant to the long established policy
of racially selective law enforcement attributable to the
City). Plaintiff, represented by counsel in this case, fails
adequately to plead a claim of municipal liability against
the City of New York. Even the usual pleading standard of
Rule 8(a) still requires more than conclusory allegations.
Bell Atlantic v. Twombly, --- U.S. ----, ----, 127 S.Ct.
1955, 1964, 167 L.Ed.2d 929 (2007) (stating that Rule
8(a) “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do”); see also Papasan v. Allain, 478 U.S. 265, 286,
106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (stating that on a
motion to dismiss, a district court is “not bound to accept
as true a legal conclusion couched as a factual allegation”).
Plaintiff makes only the conclusory allegation that the
City of New York “failed to properly train the person(s)
who deprived [Plaintiff] of his civil rights” and “failed to
properly supervise the person(s) who deprived [Plaintiff]
of his civil rights .”

*6 Such conclusory allegations that a municipality failed
to train and supervise its employees is insufficient to
state a Monell claim. See McAllister v. New York City
Police Dep't, 49 F.Supp.2d 688, 705 (S.D.N.Y.1999)
(“Conclusory allegations of a municipality's pattern or
policy of unconstitutional behavior are insufficient to
establish a Monell claim, absent evidence to support such
an allegation.”); Oparaji v. City of New York, 1997 U.S.
Dist. LEXIS 23686, *10, 1997 WL 139160 (E.D.N.Y.
Mar. 21, 1997) (dismissing a Monell claim for failure to
state a claim where plaintiff alleged only that the City had
a policy, practice or custom of failing to adequately screen,
hire and train police officers which resulted in the violation
of his constitutional rights).
Plaintiff argues that summary judgment is inappropriate
at this stage because no discovery has taken place. The
Court granted Plaintiff's request for a stay of discovery
from December 20, 2007 to February 12, 2008, and
prior to the stay, Defendants had not responded to
Plaintiff's document demands and interrogatories served
on November 19, 2007.
Generally, before summary judgment may be granted,
the nonmoving party “must have had the opportunity to
discover information that is essential to his opposition
to the motion ... [and] only in the rarest of cases may
summary judgment be granted against a plaintiff who has
not been afforded the opportunity to conduct discovery.”
Hellstrom v. U.S. Dep't of Veteran Affairs, 201 F.3d 94, 97

(2d Cir.2000) (internal quotations omitted). If, however,
the allegations of a plaintiff's Section 1983 claim are
insufficient as a matter of law or could not be aided by
discovery, a district court may grant summary judgment
even without discovery. M.B. v. Reish, 119 F.3d 230,
232 (2d Cir.1997) (concluding that the district court's
denial of discovery was within its discretion because
plaintiff's claims were insufficient as a matter of law
and plaintiff failed to present a credible basis to suggest
discovery would produce favorable evidence). In rejecting
the heightened pleading standard for Section 1983 claims
in Leatherman, the Supreme Court noted that “federal
courts and litigants must rely on summary judgment
and control of discovery to weed out unmeritorious
claims sooner rather than later.” Leatherman, 507 U.S. at
168-169.
In this case, Plaintiff has not made any showing that
further discovery is likely to lead to evidence supporting
Plaintiff's claim against the City of New York. Moreover,
because Plaintiff's complaint fails to state a claim of
municipal liability upon which relief may be granted,
Plaintiff's claim against the City of New York is
insufficient as matter of law. On these grounds, Defendant
City of New York's motion for summary judgment is
granted.

IV. Plaintiff's Claim against NYPD
It is well settled that NYPD, as an agency of the City
of New York, lacks independent legal existence and is
therefore not a suable entity. Jenkins v. City of New
York, 478 F.3d 76, 93 n. 19 (2d Cir.2007); see also
N.Y.C. Charter § 396 (“All actions and proceedings for
the recovery of penalties for the violation of any law
shall be brought in the name of the city of New York
and not in that of any agency, except where otherwise
provided by law.”). In his memorandum of law in
opposition to Defendants' motion for summary judgment,
Plaintiff concedes that NYPD is a non-suable entity and
discontinues his claim against NYPD. Accordingly, the
claim against NYPD is dismissed.

CONCLUSION
*7 For the foregoing reasons, Defendants' motion for
summary judgment (Doc. No. 12) is granted. The claims
against Defendant Police Officers George Lopez and “John
Doe” are dismissed for non-service, the claims against
Defendant City of New York for failure to state a claim

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5

Davis v. City of New York, Not Reported in F.Supp.2d (2008)
2008 WL 2511734

and insufficiency as a matter of law, and the claims against
NYPD because it is not a suable entity.

All Citations

IT IS SO ORDERED.

Not Reported in F.Supp.2d, 2008 WL 2511734

End of Document

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© 2019 Thomson Reuters. No claim to original U.S. Government Works.

6

E. Mishan & Sons, Inc. v. Smart and Eazy Corp., Slip Copy (2018)
2018 WL 6528496

2018 WL 6528496
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
E. MISHAN & SONS, INC., Plaintiff,
v.
SMART AND EAZY CORP., and
Masterpan, Inc., Defendants.
18 Civ. 3217 (PAE)
|
Signed 12/12/2018
Attorneys and Law Firms
Brian Joseph Doyle, John Zaccaria, Alan Federbush,
Notaro, Michalos & Zaccaria P.C., Orangeburg, NY, for
Plaintiff.
Christopher Robert Kinkade, Fox Rothschild LLP,
Lawrenceville, NJ, for Defendants.

OPINION & ORDER
PAUL A. ENGELMAYER, United States District Judge
*1 Plaintiff E. Mishan & Sons (“Emson”) brings this
action against defendants Smart and Eazy Corp. (“S&E”),
and Masterpan, Inc. (“Masterpan”). Emson alleges unfair
competition due to false advertising in violation of 15
U.S.C. § 1125(a) of the Trademark Act of 1946 (“Lanham
Act”).
Masterpan and S&E now move for dismissal, based on
lack of personal jurisdiction under Federal Rule of Civil
Procedure 12(b)(2), failure to state a claim under Rule
12(b)(6), and improper venue under Rule 12(b)(3). In the
alternative, defendants move for transfer of venue to the
Central District of California pursuant to 28 U.S.C. §§
1404(a), 1406(a), and 1631.
For the reasons that follow, the Court denies defendants'
motions, with one exception: The Court grants the motion
to dismiss Emson’s claims against S&E for failure to state
a claim.

A. Facts 1
1

This account is drawn from the Complaint. Dkt. 1
(“Compl”). For the purpose of resolving the motion
to dismiss, all factual allegations in the Complaint
are presumed true. See Koch v. Christie’s Int'l PLC,
699 F.3d 141, 145 (2d Cir. 2012). For the purposes
of resolving the motions under Rules 12(b)(1) and
12(b)(3), the Court also considered the following
factual submissions: the declarations of Christopher
Kikade, Dkt. 17 (“Kikade Decl.”), Leo Lee, Dkt. 15-4
(“Lee Decl.”), Raejndra Nagrani, Dkt. 18 (“Nagrani
Decl.”), Brian Doyle, Dkt. 25-5 (“Doyle Decl.”), and
the exhibits thereto. The Court cites here the parties'
memoranda of law as follows: Dkt. 16 (“D. Mem.”);
Dkt. 25 (“P. Mem.”); and Dkt. 26 (“D. Rep.”).

1. Emson
Emson is a New York corporation with its principal place
of business in New York. Compl. ¶ 7. Emson markets
and sells consumer products throughout the United States
both to wholesalers and directly to customers via print
media, the Internet, and television advertising. Id. ¶ 11.
Since at least 2015, Emson has marketed and sold
“Gotham Steel,” a line of nonstick cookware and
bakeware that includes pots and pans. Id. ¶ 12. “The
Gotham Steel pots and pans are made of aluminum and
have a copper-colored, non-stick ceramic and titanium
coating.” Id. ¶ 13.
Emson advertises and sells the Gotham Steel pots and
pans through direct response (“DRTV”) commercials
broadcast on various cable network channels. Id. ¶ 14.
Emson “has spent over ten million dollars on advertising
Gotham Steel cookware on television.” Id. ¶ 15. Emson
also “sells the Gotham Steel pots and pans throughout
the United States, including New York and this district,
directly to consumers through Internet websites and to
nationwide retailers ... for resale to consumers.” Id. ¶ 16.
The “retail packaging and label inserts for the Gotham
Steel pots and pans include” an “As Seen On TV” logo.
Id. ¶ 18. Emson also displays this logo both “on its
Internet websites” and “in printed advertisements and
promotional materials.” Id. ¶ 19. Gotham Steel claims that
it “has sold hundreds of thousands of Gotham steel pots

I. Background

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and pans labelled and/or packaged in retail boxes printed
with the ‘As Seen on TV logo.’ ” Id. ¶ 20.

2. S&E’s and Masterpan’s Marketing
of Their “Original” Copper Pan
*2 Defendants S&E and Masterpan are each California
corporations with a principal place of business in
California. Id. ¶¶ 8–9.
Emson alleges that, in or about 2016, “long after Emson
introduced the Gotham Steel pots and pans,” defendants
began marketing and selling a product bearing the
trademark “The Original Copper Pan” (the “OCP”). Id.
¶¶ 24, 69. According to Emson, Dreambiz Ltd. of Hong
Kong owns the trademark “The Original Copper Pan,”
Registration No. 5390167. Id., Ex. D. Emson alleges
that Dreambiz Ltd. “has shipped non-stick cookware on
several occasions to, and only to, defendant S&E.” Id. ¶
35.
Emson claims that defendants sell the OCP “directly
to consumers, including consumers in [the Southern
District of New York], via the Internet and, as well,
to retailers for resale to consumers, in competition
with Emson’s Gotham Steel Cookware.” Id. ¶ 25.
Specifically, Emson alleges, defendants own and operate
the website, www.theoriginalcopperpan.com, through
which they market and sell the OCP. Id. ¶ 33. Defendants
also allegedly sell and market OCP cookware on
Groupon.com. Id. ¶ 43.
Emson alleges that, by branding its product as the
“original” copper pan, defendants “are attempting to
deceive the public by falsely and deceptively conveying to
consumers that its cookware is the first of its kind and that
Emson’s (and other’s) products are not the originals but
are instead mere imitations of Defendants' cookware.” Id.
¶ 28. Emson alleges that defendants' allegedly “false and
deceptive use of the descriptor ‘original’ is part of a pattern
and practice of false advertising on its part.” Id.
Emson further alleges that defendants falsely advertise
certain versions of the OCP as being made of, and not
merely coated with, copper. Id. ¶ 48. According to Emson,
defendants hold out the OCP line of cookware as “copperinfused,” “made of ultra-tough copper,” and featuring
“copper construction.” Id. ¶¶ 29, 41–42. Although each

pan has a copper-colored cooking surface, Emson alleges
that it ran tests on samples of the 12-inch OCP, which the
OCP website describes as “nonstick ceramic plus copper”
and having a “durable, copper-infused nonstick ceramic
cooking surface.” Id. ¶ 38. According to Emson, the “test
results indicate that the cores of each of the tested Original
Copper Pans had undetectable levels of copper” and that
the inner coating on the samples also lacked the presence
of copper. Id. ¶ 46.
Finally, Emson claims that although defendants, like
Emson, “use an ‘As Seen On TV logo in their advertising,’
” id. ¶ 30, “[d]efendants have not advertised any of [the
OCP] cookware on television or any television advertising
for [d]efendants' cookware has been miniscule.” Id.
¶ 50. Accordingly, Emson alleges, “the use of the
‘As seen on TV slogan by [d]efendants is a material
misrepresentation.’ ” Id. ¶ 52.
Emson contends that the false claims in defendants'
advertising—the claim to have been the “original” copper
pan, the claim that the OCP is made of copper, and
the claim that defendants' products have been “seen on
TV” —have “divert[ed] sales from Emson, trade[d] off
the goodwill built up by Emson’s extensive television
advertising campaign to create public recognition of its
products, and deceive[d] the buying public.” Id. ¶ 55. 2
2

Emson’s Complaint largely treats the two defendants
collectively. In litigating the motions to dismiss,
the parties cast differently the relationship between
them. Defendants acknowledge that Masterpan sells
products to the OCP website for resale to consumers.
See D. Mem. at 6. Emson contends that because
the defendants share a principal place of business,
S&E is accountable for Masterpan’s advertising. See
P. Mem. at 7. Defendants counter that “S&E is an
independent, third party package delivery company
that provides shipping services to individuals and
businesses” and that it merely “provides mailing
addresses for some customers, including Masterpan.”
D. Mem. at 2.

B. Procedural History
*3 On April 12, 2018, Emson filed its Complaint.
Dkt. 1. It brings four claims under the Lanham
Act, 15 U.S.C. §§ 1125(a)(1)(A) & (B): for falsely
advertising that defendants' copper pan is the “original”
of its kind, Compl. ¶¶ 66–76; for falsely advertising
that defendants' pan is “copper,” “copper-infused,”

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of “copper-construction,” and “made of ultra-tough
Copper,” id. ¶¶ 77–85; for falsely advertising that
plaintiffs' product have been “seen on TV,” id. ¶¶ 86–94; as
well as claims for unfair competition, false designation of
origin, false description of fact, and misrepresentation of
fact, also based on the defendants' advertising claim that
their products are “as seen on TV,” id. ¶¶ 95–103.
On June 4, 2018, Masterpan and S&E filed a joint motion
to dismiss on the grounds identified above, Dkt. 15, a
supporting memorandum of law, Dkt. 16, and factual
materials, Dkts. 17–18. On July 16, 2018, Emson filed a
brief in opposition, Dkt. 25. On July 23, 2018, defendants
filed a reply. Dkt. 26.

II. Overview
Defendants move to dismiss on multiple grounds. The
Court first considers defendants' argument that the Court
lacks personal jurisdiction. The Court then considers the
other asserted grounds for dismissal: improper venue and
failure to state a claim. Because Emson’s claims against
Masterpan survive these motions, the Court last considers
the motion to transfer these surviving claims to the Central
District of California.

III. Motion to Dismiss for Lack of Personal Jurisdiction
A. Applicable Legal Standards
“[T]he plaintiff bears the burden of establishing that the
court has jurisdiction over the defendant.” DiStefano v.
Carozzi N. Am., Inc., 286 F.3d 81, 84 (2d Cir. 2001)
(citation omitted); see also In re Terrorist Attacks on Sept.
11, 2001, 714 F.3d 659, 673 (2d Cir. 2013). What a plaintiff
must show “to defeat a defendant’s claim that the court
lacks personal jurisdiction over it ‘varies depending on
the procedural posture of the litigation.’ ” Dorchester Fin.
Sec., Inc. v. Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir.
2013) (per curiam) (quoting Ball v. Metallurgie HobokenOverpelt, S.A., 902 F.2d 194, 197 (2d Cir. 1990) ). In the
posture here, where a case is prior to discovery, a plaintiff
may defeat such a jurisdiction testing motion “by pleading
in good faith[ ] legally sufficient allegations of jurisdiction.
At such a preliminary stage, the plaintiff’s prima facie
showing may be established solely by allegations.” Id.;
see also In re Terrorist Attacks, 714 F.3d at 673 (“In
order to survive a motion to dismiss for lack of personal
jurisdiction, a plaintiff must make a prima facie showing
that jurisdiction exists.” (citation omitted) ).

A plaintiff may make this showing through its “
‘own affidavits and supporting materials, containing an
averment of facts that, if credited, would suffice to
establish jurisdiction over the defendant.’ ” S. New Eng.
Tel. Co. v. Glob. NAPs Inc., 624 F.3d 123, 138 (2d Cir.
2010) (quoting Whitaker v. Am. Telecasting, Inc., 261
F.3d 196, 208 (2d Cir. 2001) ). The Court “construe[s]
the pleadings and affidavits in the light most favorable
to [the] plaintiff[ ], resolving all doubts in [the plaintiff’s]
favor.” Dorchester, 722 F.3d at 85 (quoting S. New Eng.
Tel, 624 F.3d at 138); accord A.I. Trade Fin., Inc. v. Petra
Bank, 989 F.2d 76, 79–80 (2d Cir. 1993) (“[W]here the issue
is addressed on affidavits, all allegations are construed
in the light most favorable to the plaintiff and doubts
are resolved in the plaintiff’s favor, notwithstanding a
controverting presentation by the moving party.” (citation
omitted) ). The Court, however, will neither “draw
argumentative inferences in the plaintiff’s favor” nor
“accept as true a legal conclusion couched as a factual
allegation.” In re Terrorist Attacks, 714 F.3d at 673
(citations omitted).
*4 “In a federal question case, where the defendant
resides outside the forum state, federal courts apply the
forum state’s personal jurisdiction rules if the applicable
federal statute does not provide for national service of
process.” Sunward Elecs., Inc. v. McDonald, 362 F.3d 17,
22 (2d Cir. 2004) (citation omitted). The Lanham Act does
not provide for national service of process. Accordingly,
New York’s long-arm statute, New York Civil Practice
Law and Rules (“CPLR”) § 302(a), governs the instant
action. See id.; Fort Knox Music Inc. v. Baptiste, 203 F.3d
193, 196 (2d Cir. 2000).
Under CPLR § 302(a)(1), two conditions must be met
for a court to exercise personal jurisdiction over a
non-domiciliary defendant. First, the defendant must
“transact[ ] [ ] business within the state or contract[ ]
anywhere to supply goods or services in the state.”
C.P.L.R. § 302(a)(1) (2006). Second, the cause of action
must arise from the “act[s] which are the basis of
jurisdiction.” Id. The Second Circuit has held that this
second condition requires a showing that the contacts with
the state had a “substantial relationship” to the cause of
action. Sole Resort, S.A. de C.V. v. Allure Resorts Mgmt.,
LLC, 450 F.3d 100, 103 (2d Cir. 2006).

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Section 302(a)(1) is a “single act” statute; therefore, the
defendant need not have engaged in more than one
transaction in, or directed to, New York for New York
courts to invoke jurisdiction. See Deutsche Bank Sec., Inc.
v. Montana Bd. of Investments, 7 N.Y.3d 65, 70 (2006).
Such jurisdiction exists even if “the defendant never enters
New York, so long as the defendant’s activities here
were purposeful and there is a substantial relationship
between the transaction and the claim asserted.” Kreutter
v. McFadden Oil Corp., 71 N.Y.2d 460, 467 (1988)
(citations omitted); see also Bank Brussels Lambert v.
Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 787 (2d Cir.
1999) (finding jurisdiction based on a single transaction
where defendant was not physically present in state). A
court may also find jurisdiction based on the totality
of the defendant’s conduct. See, e.g., CutCo Indus., Inc.
v. Naughton, 806 F.2d 361, 365 (2d Cir. 1986) (“No
single event or contact connecting defendant to the forum
state need be demonstrated; rather, the totality of all
defendant’s contacts with the forum state must indicate
that the exercise of jurisdiction would be proper.”)
(citations omitted).
Section 302(a)(2) provides an alternative basis for
personal jurisdiction over a defendant who “in person or
through an agent ... commits a tortious act within the
state, except as to a cause of action for defamation of
character arising from the act.” As with Section 302(a)
(1), “there is no minimum threshold of activity required
so long as the cause of action arises out of the allegedly
infringing activity in New York.” Citigroup Inc. v. City
Holding Co., 97 F. Supp. 2d 549, 567 (S.D.N.Y. 2000).
Even “[o]ffering one copy of an infringing work for sale
in New York ... constitutes commission of a tortious
act within the state sufficient to imbue [the] Court with
personal jurisdiction over the infringers.” Id. (quoting
Editorial Musical Latino Americana, S.A. v. Mar Int'l
Records, Inc., 829 F. Supp. 62, 64 (S.D.N.Y. 1993) ).

B. Discussion
Emson argues that the Court has specific jurisdiction over
defendants under New York’s long-arm statute, C.P.L.R.
§§ 302(a)(1), based on defendants' having caused sales in
New York of the products at issue. P. Mem. at 9–15.
For purposes of analyzing the competing arguments as
to this question, the Court treats Masterpan and S&E
collectively (and refers to them together as “Masterpan”),
recognizing, as developed in the discussion of the motions
under Rule 12(b)(6), that Emson’s allegations linking

Masterpan to the sale of the OCP are substantially more
fulsome.
*5 Masterpan does not dispute Emson’s assertion that
Masterpan’s products are sold within New York. In
contesting personal jurisdiction, Masterpan counters that
it “has never sold any accused products to consumers
or businesses within New York.” D. Mem. at 8. Rather,
Masterpan represents, it sells its products “to third party
OCP website [sic], which is a generally-available website
and not domiciled in New York or directed at New York
consumers.” Id. at 8. Masterpan emphasizes that it does
not “advertise[ ] in New York[ ] or receive[ ] funds from
any individual business in New York,” and that it is not
“licensed or registered to do business in New York and
do[es] not pay New York taxes.” Id. Masterpan further
disputes that it “own[s] or controls marketing statements
on the third-party websites from which Plaintiff purchased
the accused products.” Id., at 1.
The Court holds that Emson has made both showings
required under CPLR § 302(a)(1) to demonstrate personal
jurisdiction over Masterpan in New York.

1. Masterpan Transacts Business in New York
Under the long-arm statute, Emson must first establish
that Masterpan “transacts [ ] business within the state
or contracts anywhere to supply goods or services in the
state.” C.P.L.R. § 302(a). Emson has made this showing
in two ways.
First, Emson purchased three products from the OCP
website, which, Emson alleges, Masterpan controls.
Because New York’s long-arm statute is a single-act
statute, Deutsche Bank Sec., Inc., 7 N.Y.3d at 70, these
three sales and deliveries constitute more than sufficient
business contact with New York to satisfy the threshold
requirement that the defendant conduct business within
the state. This showing would suffice, in fact, even if the
OCP website used by Masterpan to facilitate its sales
were outside of Masterpan’s ownership and control. See
EnviroCare Techs., LLC v. Simanovsky, No. 11 Civ. 3458
(JS) (ETB), 2012 U.S. Dist. LEXIS 78088, at *13, 2012
WL 2001443 (E.D.N.Y. June 4, 2012) (“[E]ven though
Defendants did not personally manage the websites
through which they sold their products, their internet-

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based activities established regular business with foreign
jurisdictions, including New York.”).
That Masterpan does not operate a brick and mortar
store in New York is also not determinative. What
matters is that Masterpan, via the OCP website and/or
Groupon.com, marketed its products to residents of New
York and sold those products, through at least one of
those websites, to people within that state, appreciating
that the products would be sent to New York residents.
By advertising its product on interactive websites through
which users make purchases, Masterpan purposefully
availed itself of the privilege of conducting business in
New York. See, e.g., Citigroup Inc. v. City Holding Co., 97
F. Supp. 2d 549, 567 (S.D.N.Y. 2000) (denying motion to
dismiss for lack of personal jurisdiction based on finding
that operating an interactive website that is accessible in
New York constitutes transacting business under Section
302(a)(1) ).
Second, Emson plausibly alleges that Masterpan has
shipped products into the state. Even if the Court accepts
as true Masterpan’s assertions that it has not sold products
in New York, Emson’s allegation that Masterpan has
shipped infringing products to New York is sufficient to
show that Masterpan conducts business in New York.
See Pearson Education, Inc. v. Shi, 525 F. Supp. 2d 551
(S.D.N.Y. 2007). In Pearson, the district court found
personal jurisdiction with respect to plaintiffs' Lanham
Act claims where the defendant sold infringing works
through third-party websites and shipped those products
into the forum where plaintiff filed the lawsuit. Id.
at 554. Similarly here, Emson alleges that Masterpan
does ship products to New York. Masterpan notably
does not dispute—indeed, it appears to confirm—this
point. In his declaration, Masterpan chief financial officer
Rajendra Nagrani attests that “Masterpan ships its
products through an independently-owned, third party
freight shipping company, Smart & Eazy.” Nagrani
Decl. at 2. Similarly, the exhibits attached to Emson’s
Complaint drawn from the Groupon.com website suggest
that seller Masterpan handles the pricing and shipping
of its products purchased through that website. See
Compl. Exs. I–K (“The merchant is solely responsible
to purchasers for the fulfillment, delivery, care, quality,
and pricing information of the advertised goods and
services.” (emphasis added) ).

*6 Both Groupon.com and the OCP website list
Masterpan’s principal place of business, in California,
as the return address for products purchased on those
websites. This fact does not defeat Emson’s showing of
personal jurisdiction, as it is inconsistent with neither
Masterpan’s role in causing these websites to sell its
products to New Yorkers nor Masterpan’s role of
sending its products to New York buyers. And while
Emson, pre-discovery, does not yet have access to
Masterpan’s contractual agreement with the OCP website
and Groupon.com, it is fair to infer that Masterpan
derives some financial or business benefit from the sale
to customers of its products through these sites, including
the sale of the three products to Emson in New York.
Masterpan does not proffer otherwise. Accordingly, the
Court holds, the shipment of the allegedly infringing
cookware into New York “constituted the transacting of
business.” John Wiley & Sons, Inc. v. Treeakarabenjakul,
No. 09 Civ. 2108 (CM), 2009 WL 1766003, at *4
(S.D.N.Y. June 18, 2009) (citing Pearson Educ., 525 F.
Supp. at 558) (emphasis in original).

2. The Cause of Action Arises From Business
Masterpan Transacted in New York
Emson must also show that its claims here arise from
the “act[s] which are the basis of jurisdiction.” C.P.L.R.
§ 302(a). Emson easily clears this bar. Its claim is
that Masterpan has engaged in false advertising as to
Masterpan’s pots, including by falsely terming them
“original,” by falsely hyping their copper content, and
by falsely claiming that its products had been “seen on
TV.” Those claims broadly implicate Masterpan’s sales,
including those to New York consumers. And Emson
adequately pleads that three units of Masterpan cookware
were sold to New York residents and shipped to New
York. This showing is sufficient to demonstrate that
Emson’s claims arise from the conduct that gives rise to
personal jurisdiction.

3. The Exercise of Jurisdiction
is Consistent with Due Process
Having held that New York’s long-arm statute authorizes
the exercise of jurisdiction over Masterpan, the Court
finally must satisfy itself that this exercise is consistent
with due process. To do so, the Court applies a minimum-

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contacts test and a reasonableness inquiry. See Bank
Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 305
F.3d 120, 127 (2d Cir. 2002).
To determine whether a defendant has sufficient minimum
contacts with the New York venue, the Court considers
whether the defendant “ ‘purposefully availed itself’ of
the privilege of doing business in the forum state and
could ‘reasonably anticipate being haled into court there.’
” Pearson Educ., Inc. v. Shi, 525 F. Supp. 2d 551, 557
(S.D.N.Y. 2007) (quoting Burger King Corp. v. Rudzewicz,
471 U.S. 462, 474–75 (1985) ). Here, Masterpan’s contacts
with New York—causing its cookware to be marketed to,
and then shipped to, New York residents—readily qualify
as purposeful availment so as to satisfy the minimum
contacts test.
Although a plaintiff’s showing of “minimum contacts”
will generally satisfy due process, the defendant can
present a “compelling case that the presence of some other
considerations would render jurisdiction unreasonable.”
Metro. Life Ins. Co. v. Robertson–Ceco Corp., 84 F.3d
560, 568 (2d Cir. 1996) (quoting Burger King, 471 U.S.
at 477). The reasonableness inquiry “hinges on whether
the assertion of jurisdiction comports with ‘traditional
notions of fair play and substantial justice.’ ” Chatwal
Hotels & Resorts LLC v. Bollywood Co., 90 F. Supp. 3d
97, 107 (quoting Int'l Shoe Co. v. State of Washington, 326
U.S. 310, 316 (1945) ). The Court weighs five factors when
determining reasonableness:

(1) the burden that the exercise
of jurisdiction will impose on the
defendant; (2) the interests of the
forum state in adjudicating the
case; (3) the plaintiffs interest in
obtaining convenient and effective
relief; (4) the interstate judicial[ ]
system’s interest in obtaining the
most efficient resolution of the
controversy; and (5) the shared
interest of the states in furthering
social substantive policies.

*7 Kernan v. Kurz–Hastings, Inc., 175 F.3d 236, 244 (2d
Cir. 1999) (internal quotations and citations omitted).

These factors make the exercise of jurisdiction entirely
reasonable. Masterpan allegedly sold and shipped
products to New York. Having chosen to do so,
Masterpan could reasonably have expected to be subject
to suit in New York in connection with such sales and
deliveries to New York buyers. Masterpan has not made
any showing of countervailing considerations, such as a
burden that trying this case in New York might pose to it
or a unique interest that California has in this controversy.
And the New York long-arm statute does not by nature
tempt due process limits; on the contrary, “[t]he New
York long-arm statute does not extend in all respects to
the constitutional limits.” Licci ex rel. Licci v. Lebanese
Canadian Bank, SAL, 673 F.3d 50, 60–61 (2d Cir. 2012).
Accordingly, the Court holds that both the minimum
contacts and reasonableness requirements of due process
have been met.
The Court therefore finds the exercise of personal
jurisdiction here proper.

IV. Motion to Dismiss for Improper Venue
A. Applicable Legal Standards
The plaintiff also “bears the burden of demonstrating
that [its] chosen venue is proper.” Vann v. Fischer, No.
11 Civ. 1958 (JPO), 2012 WL 2384428, at *4 (S.D.N.Y.
June 21, 2012). In ruling on a motion to dismiss pursuant
to Rule 12(b)(3), the Court accepts as true all factual
allegations in the non-moving party’s pleadings, including
the complaint and supporting affidavits, and draws all
reasonable inferences in that party’s favor. See Blakely
v. Lew, No. 13 Civ. 2140 (JMF), 2013 WL 6847102,
at *1 (S.D.N.Y. Dec. 30, 2013). If the Court chooses
not to hold an evidentiary hearing and, instead, relies
only “on pleadings and affidavits, the plaintiff need only
make a prima facie showing of [venue].” Gulf Ins. Co. v.
Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005) (alteration
in original).

B. Discussion
In cases where the plaintiff brings a civil action in a district
other than the one where any defendant lives, venue will
be proper if “a substantial part of the events or omissions
giving rise to the claim occurred” in that judicial district.
28 U.S.C. § 1391(b)(2).

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Emson makes the requisite prima facie showing of
venue here. The events giving rise to Emson’s claim
are the advertisement of products that are marketed
by defendants to New York residents and the shipping
of products to venues including New York. Emson’s
Complaint sufficiently alleges both that these products
were marketed to individuals in New York through the
interactive OCP website and through Groupon.com, and
that they thereafter were shipped by Masterpan and
delivered to Emson’s address in New York. There is a
sufficiently substantial nexus between Emson’s claims and
this forum to make venue here proper under § 1391(b)(2).

[a]ny person who, on or in connection with any goods or
services, or any container for goods, uses in commerce
any ... false or misleading description of fact, or false or
misleading representation of fact, which—
(A) is likely to cause confusion, or to cause mistake,
or to deceive as to the affiliation, connection, or
association of such person with another person, or
as to the origin, sponsorship, or approval of his
or her goods, services, or commercial activities by
another person, or
(B) in commercial advertising or promotion,
misrepresents the nature, characteristics, qualities,
or geographic origin of his or her or another
person’s goods, services, or commercial activities[.]

V. Motion to Dismiss for Failure to State a Claim
A. Applicable Legal Standards
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). A claim is facially
plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009). A complaint must be
dismissed where, as a matter of law, “the allegations in
a complaint, however true, could not raise a claim of
entitlement to relief.” Twombly, 550 U.S. at 558. When
resolving a motion to dismiss, the Court must assume
all well-pleaded facts to be true, “drawing all reasonable
inferences in favor of the plaintiff.” Koch, 699 F.3d at 145.
That tenet, however, does not apply to legal conclusions.
See Iqbal, 556 U.S. at 678. Pleadings that offer only
“labels and conclusions” or “a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550
U.S. at 555.

B. Discussion
*8 As noted, Emson brings false advertising claims under
15 U.S.C. §§ 1125(a)(1)(A)–(B). The analysis as to whether
these state claims differ by defendant.

1. Masterpan
The Complaint states a claim under the Lanham Act
against Masterpan. The Act makes liable:

15 U.S.C. § 1125(a)(1).
Here, the Complaint plausibly alleges that Masterpan
falsely describes its products in several respects. First, it
claims that Masterpan falsely describes its pots as being
made of copper construction (e.g., “having a durable,
copper-infused nonstick ceramic cooking surface”) when
in fact they are not. ¶¶ 38, 44. Emson’s basis for
asserting falsehood are tests that it ran to determine the
composition of the OCP, which did not detect any level
of copper in the “cores of each of the tested [OCPs].”
Id. ¶ 46. This allegation of a central factual falsehood
as to the composition of Masterpan’s product is clearly
sufficient to state a claim under the Lanham Act. In
addition, Emson plausibly alleges two other falsehoods:
that (1) Masterpan’s “branding of its products as The
Original Copper Pan” is deceptive in that it suggests it
“is the first of its kind,” when in fact other copper pots
and pans preceded it on the market, Id. ¶ 27; and (2)
Masterpan misrepresents its products as having been “As
Seen on TV,” Id. ¶ 53, when in fact they—unlike Emson’s
competing products—were not. 3
3

To be sure, Emson contradictorily alleges that
Masterpan does not market the OCP on television or
that it does so minimally. See Compl. ¶ 50. Discovery
will determine whether in fact the OCP has never been
marketed on television, or whether it has been, in
which case Masterpan may have available a defense,
at least as to this claim, of literal truthfulness.

Masterpan’s attempts to distance itself from the
statements on the OCP website and Groupon.com do not

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gain traction on a motion to dismiss. It is conceivable
that Masterpan had no agency over or awareness of
the statements made to market its product in these
fora, and Masterpan will be at liberty to attempt to
develop such theories in discovery. But on a motion
to dismiss, the Court cannot so assume. Viewing the
facts in the light most favorable to the plaintiff, it is
plausible that Masterpan controls or is party to the
marketing statements regarding its products that appear
on both websites. The OCP website bears the name of
the product that Masterpan manufactures and sells. Even
if, as defendants note, the domain is not registered to
Masterpan, D. Mem. at 7, it is plausible that Masterpan
has had a say in the words used to market its products as
sold through that website. Masterpan’s control over the
advertising on Groupon.com is even more plausible. The
Groupon.com webpage explicitly states that the product
is “[s]old by Master[p]an” and that “the merchant is solely
responsible to purchasers for the fulfillment, delivery,
care, quality, and pricing information of the advertised
goods and services.” Compl. Exs. I, K (emphasis added).
These allegations easily make plausible the claim that
Masterpan is responsible for the advertisements made
in connection with the OCP on the OCP website and
Groupon.com.

2. S&E
*9 Emson’s Complaint, however, does not adequately
plead Lanham Act claims against S&E.
The Complaint persistently lumps both Masterpan and
S&E together as “defendants.” See, e.g., Compl. ¶ 25
(“On information and belief, Defendants sell The Original
Copper Pan cookware products directly to consumers,
including consumers in this district, via the Internet and,
as well, to retailers for resale to consumers....”). It recites
sufficient basis on which to conclude that Masterpan
markets and sells the OCP. For example, it alleges, with
documentary support, that the Groupon.com website
explicitly states that the OCP is “[s]old by Master[p]an.”
Id., Ex. I. The Complaint also attaches documentary
evidence that Masterpan shares directors with Dreambiz,
Ltd., which owns the trademark “The Original Copper
Pan.” See id. Exs. B–C.
The Complaint, however, does not contain any such
specific pleadings as to S&E. The only connection Emson

articulates between S&E and the allegedly misleading
statements is that S&E shares an address with Masterpan.
See Compl. ¶ 8–9. That is not a sufficient basis on which
to tie S&E to the actionable conduct alleged here. And
the Complaint’s allegations that S&E falsely described or
advertised any relevant product are conclusory. Pleadings,
however, “must contain something more than ... a
statement of facts that merely creates a suspicion [of] a
legally cognizable right of action,” Twombly, 550 U.S. at
555. Accordingly, the Court grants the motion to dismiss
the claims against S&E.

VI. Motion to Transfer Venue
The Court, finally, considers Masterpan’s motion to
transfer venue to the Central District of California, the site
of its principal place of business.

A. Applicable Legal Standards
A district court has broad discretion when deciding
a motion to transfer venue. N. Y. Mar. & Gen. Ins.
Co. v. Lafarge N.A., Inc., 599 F.3d 102, 112 (2d Cir.
2010). However, the party seeking transfer “carries the
‘burden of making out a strong case for transfer.’ ” Id.
at 114 (quoting Filmline (Cross-Country) Prods., Inc. v.
United Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989)
). To prevail, the moving party must make a “clear and
convincing” showing that transfer is proper. See id. at
113–14; see also Hershman v. UnumProvident Corp., 658
F. Supp. 2d 598, 600 (S.D.N.Y. 2009); Schieffelin & Co. v.
Jack Co. of Boca, Inc., 725 F. Supp. 1314, 1321 (S.D.N.Y.
1989) (“The moving party must make a clear-cut showing
that transfer is in the best interests of the litigation.”).
When evaluating a motion to transfer, the Court’s
principal consideration is “the convenience of parties and
witnesses, in the interest of justice.” 28 U.S.C. § 1404(a).
Courts undertake a two-step inquiry to decide motions to
transfer venue under § 1404(a). Everlast World’s Boxing
Headquarters Corp. v. Ringside, Inc., 928 F. Supp. 2d 735,
743 (S.D.N.Y. 2013).
At the first step, the Court must determine “ ‘whether the
action could have been brought in the transferee district.’
” Id. (quoting Robertson v. Cartinhour, No. 10 Civ. 8442
(LTS) (HBP), 2011 WL 5175597, at *3 (S.D.N.Y. Oct. 28,
2011) ). If so, the Court then must determine “ ‘whether
transfer would be an appropriate exercise of the Court’s
discretion.’ ” Everlast, 928 F. Supp. 2d at 743 (quoting

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Robertson, 2011 WL 5175597, at *3). This second step
entails weighing the following factors: “(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.” Lafarge, 599 F.3d at
112 (quoting D.H. Blair & Co., Inc. v. Gottdiener, 462
F.3d 95, 106–07 (2d Cir. 2006) ). The moving party must
show by clear and convincing evidence that these seven
factors favor the new venue. Otherwise, the action must
be maintained in this District. See id.

B. Discussion
*10 The Court considers first whether Emson could have
brought this action in the Central District of California.
Venue is proper in “a judicial district in which any
defendant resides, if all defendants are residents of the
State in which the district is located.” 28 U.S.C. § 1391(b)
(1). Because Masterpan resides in California, venue is
proper there. See Compl. ¶ 19; 28 U.S.C. § 1391(c).
The Court next applies the multi-factor balancing test.
The Court finds that one factor favors a transfer of venue
(the locus of operative fact) and another favors denying
transfer (the plaintiff’s choice of forum). The remaining
factors, however, are neutral or nearly so.
Locus of operative facts: This factor is a primary one
in determining a § 1404(a) motion to transfer. Smart v.
Goord, 21 F. Supp. 2d 309, 316 (S.D.N.Y. 1998) (citation
omitted). It “substantially favors transfer from this district
when a party ‘has not shown that any of the operative facts
arose in the Southern District of New York.’ ” SBAV LP
v. Porter Bancorp, Inc., No. 13 Civ. 372 (PAE), 2013 WL
3467030, at *4 (S.D.N.Y. July 10, 2013) (quoting Dr. Boy
GmbH v. Nationwide Ins., No. 96 Civ. 3217 (AGS), 1996
WL 350699, at *2 (S.D.N.Y. June 25, 1996) ). “[W]here
there is no material connection between this district and
the operative facts[,] the interests of justice require the
transfer of the action.” Cohn v. Metro. Life Ins., Co., No.
07 Civ. 0928 (HB), 2007 WL 1573874, at *3 (S.D.N.Y.
May 31, 2007) (citation omitted). “To determine the locus
of operative facts, a court must look to the site of the
events from which the claim arises.” AVEMCO Ins. Co.
v. GSV Holding Corp., No. 96 Civ. 8323 (LAP), 1997 WL
566149, at *6 (S.D.N.Y. Sept. 11, 1997) (citation omitted).
In assessing this factor, the Court focuses on “the degree of

relationship between the forum and the cause of action.”
CYI, Inc. v. Ja–Ru, Inc., 913 F. Supp. 2d 16, 21 (S.D.N.Y.
2012).
Here, important facts giving rise to Emson’s claims
occurred in California. That is because Emson claims false
advertising by Masterpan. The inquiries as to Masterpan’s
causal role in making the allegedly false representations,
the basis on which these representations were made, and
the development of the company’s marketing plan, as
relevant, are likely to turn on events occurring in or
around Masterpan’s principal place of business.
But the pertinent evidence will not uniformly come
from there. Some of the proof used to test the
validity of Masterpan’s claims will derive from elsewhere.
Masterpan’s claim that its product was the “original”
of its kind will largely be proven, or disproven, based
on plaintiffs' ability to muster evidence as to prior
incarnations of this cookware including, presumably,
Emson’s own. Masterpan’s claim that its product is
copper-based will presumably turn on expert analyses
like the one Emson claims to have conducted. There is
no reason to assume that such extrinsic-to-Masterpan
proof is uniquely situated, if at all, in California. And
the truthfulness of Masterpan’s claim that its product
has been “seen on TV” will presumably turn on analyses
drawn from its business records but also from those of
the television networks or station on which Masterpan
may claim to have aired its advertisements. Separately,
to the extent that Masterpan may carry through on the
suggestion in its briefs that it does not manufacture
the product at issue, its proof would presumably turn
on evidence from the actual manufacturer. Masterpan,
however, has not represented who that entity is or where
it is situated, but presumably, in light of its motion to
transfer venue, would have done so had that entity been
California-based.
*11 There will also be some proof derived from this
District. Emson alleges, and represents that it will show,
that New York consumers were among those who bought
the OCR Of necessity, some such proof will be presented
at trial. However, such proof will presumably be limited
in scope. Emson has not alleged facts indicating that sales
by Masterpan to New York consumers are unique. 4
4

One or both parties presumably may also seek
testimony and documents from Dreambiz, Ltd., the

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Hong Kong-based company that owns the trademark
“The Original Copper Pan.” Compl. ¶ 34.

Accordingly, the Court finds that the locus of operative
facts, on balance, weighs in favor of transferring venue to
the Central District of California.
Plaintiff’s choice of forum: This factor, like the locus of
operative facts, is given considerable weight. See SBAV
LP v. Porter Bancorp, Inc., No. 13 Civ. 372 (PAE),
2013 WL 3467030, at *11 (S.D.N.Y. July 10, 2013) (“A
plaintiff’s choice of forum is accorded considerable weight
in the § 1404(a) balancing test.”). And there are no
offsetting facts. Plaintiffs have grounded their decision
to sue here on, as alleged, Masterpan’s having marketed
and caused multiple sales of its product to occur in this
District. This factor thus strongly favors denial of the
motion to transfer. See, e.g., Atlantic Recording Corp. v.
Project Playlist, Inc., 603 F. Supp. 2d 690, 698 (S.D.N.Y.
2009) (finding that plaintiffs' choice of forum merited
substantial deference where “three out of six of them
maintain their principal place of business [there], and
because defendant conducts business [there]”); Hershman
v. UnumProvident Corp., 658 F. Supp. 2d 598, 601
(S.D.N.Y. 2009) (finding that “plaintiff’s choice of forum
weighs against a transfer” where defendant has offered
“no evidence that plaintiff chose the Southern District to
give him an improper advantage or put defendants at a
tactical disadvantage”).
Other factors: On close consideration, the Court’s
judgment is that all other factors are neutral or close to
it. Indeed, neither party fulsomely litigated this motion—
each side’s submissions as to various factors were sparse.
In many cases, the convenience of witnesses is a key factor.
Neither party, however, has provided a list of witnesses
to demonstrate the greater suitability of one forum over
the other. See, e.g., Am. Eagle Outfitters, Inc. v. Tala
Bros. Corp., 457 F. Supp. 2d 474, 479 (S.D.N.Y. 2006)
(“Having failed to identify particular unwilling witnesses
who might be more available in California than in New
York, the Defendants have failed to establish that this
factor weighs in their favor.”); Kiss My Face Corp. v.
Bunting, No. 02 Civ. 2645 (RCC), 2003 WL 22244587, AT
*2 (S.D.N.Y. Sept. 30, 2003) (finding that convenience of
witnesses weighed against transfer because movant “failed
to supply the Court with any list, detailed or otherwise,”
of witnesses inconvenienced by the current forum); Orb
Factory, Ltd. v. Design Sci. Toys, Ltd., 6 F. Supp. 2d

203, 208–09 (S.D.N.Y. 1998) (“Vague generalizations and
failure to clearly specify the key witnesses to be called,
along with a statement concerning the nature of their
testimony, are an insufficient basis upon which to grant a
change of venue under § 1404(a).”). And the nature of the
claims here, which appears largely to turn largely on the
truth or falsity of Masterpan’s marketed claims about its
product, is such that this case is inherently less likely than
many to require a lengthy autopsy of corporate decisionmaking and a consequent long line of corporate witnesses.
*12 Nor has either party argued, let alone shown,
that the location of relevant documents presents a
material convenience issue. And, in an era of electronic
maintenance and transmission of discovery, this factor is
widely and rightly regarded as of diminished importance.
See ESPN, Inc. v. Quicksilver, Inc., 581 F. Supp. 2d 542,
548 (S.D.N.Y. 2008) (“In an era of electronic documents,
easy copying and overnight shipping, this factor assumes
much less importance than it did formerly.” (citing
Angelov v. Wilshire Bancorp, No. 06 Civ. 4223 (CM), 2007
WL 237513, at *4 (S.D.N.Y. Aug. 14, 2007) ) ).
Nor has either party identified unique issues as to its
convenience or as to why an imbalance in the parties'
financial or other means make a transfer (or the lack
thereof) in the interests of justice. Cf. Am. Steamship
Owners Mut. Protection and Idem. Ass'n, Inc. v. Lafarge
N.A., Inc., 474 F. Supp. 2d 474, 485 (S.D.N.Y. 2007)
(finding that the relative means favors plaintiff’s choice
of forum where plaintiff’s “revenue and size are dwarfed”
by defendant); Herbert Ltd. Partnership v. Electronic
Arts, Inc., 325 F. Supp. 2d 282, 290 (S.D.N.Y. 2003)
(finding that relative means favors plaintiff’s choice of
forum where defendant’s “annual revenue appears to have
exceeded [plaintiff’s] annual revenue by a factor of more
than one thousand in 2003”). 5
5

Under the case law, the convenience of counsel is not
germane to a motion to transfer. See, e.g., Fuji Photo
Film Co., Ltd. v. Lexar Media, Inc., 415 F. Supp.
2d 370, 374 (S.D.N.Y. 2006) (“[T]he convenience
of counsel is not an appropriate factor to consider
on a motion to transfer.”) (quoting Invivo Research,
Inc. v. Magnetic Resonance Equip. Corp., 119 F.
Supp. 2d 433, 438 (S.D.N.Y. 2000) ); Cento Grp.,
SPA. v. OroAmerica, Inc., 822 F. Supp. 1058, 1061
(S.D.N.Y. 1993) (“The convenience of counsel is
of relatively little consequence....”). In any event,
Emson is represented by New York area counsel

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and Masterpan is represented by New York (and
California) counsel.

On balance, therefore, one important factor (locus of
events) favors transfer and another important factor (the
plaintiff’s choice of forum) favors the current venue.
The Court therefore cannot, and does not, find that
the balance of factors clearly favors transfer or that
transfer, in any real sense, is necessary here to further
“the convenience of parties and witnesses, in the interest
of justice.” 28 U.S.C. § 1404(a); see, e.g., Ramirez v.
SupportBuddy Inc., 2018 WL 2089362 (S.D.N.Y. May
4, 2018) (denying motion to transfer case to Eastern
District of California, even though all defendants resided
in California, because, inter alia, “plaintiff resides in New
York and accessed defendants' website from New York”
and “defendants do not provide any reasons for why
it would be inconvenient for them to litigate in New
York”); Karam v. N. Y. Power Auth., No. 16 Civ. 6286
(VB), 2017 WL 1424568, at *2 (S.D.N.Y. 2017) (finding
that plaintiff’s choice of forum should not be disturbed
where all other factors were neutral and locus of operative
facts was split between multiple fora); Hershman, 658
F. Supp. 2d at 603 (denying motion to transfer venue
where locus of operative facts favored transfer, plaintiff’s
choice weighed against transfer, and all other factors
End of Document

were neutral). Accordingly, the Court denies defendants'
motion to transfer venue.

CONCLUSION
For the foregoing reasons, the Court denies all of
defendants' motions to dismiss, with the exception of
the motion to dismiss the claims against defendant S&E
for failure to state a claim. The Court further denies
defendants' motion to transfer venue to the Central
District of California. The Clerk of Court is respectfully
requested to terminate the motions pending at Dkt. 15.
*13 Discovery will now commence. By Monday,
December 17, 2018, the parties are to submit a proposed
case management plan, consistent with the Court’s
individual rules, that provides for the close of fact
discovery by the end of April 2019.
SO ORDERED.

All Citations
Slip Copy, 2018 WL 6528496
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11

Fellner ex rel. Estate of Fellner v. Philadelphia Toboggan..., Not Reported in...
2005 WL 2660351

2005 WL 2660351
Only the Westlaw citation is currently available.
United States District Court,
E.D. Pennsylvania.
Azriel C. FELLNER, In his capacity as
Personal Representative of the Estate
of Tamar Etana Fellner, Plaintiff,
v.
PHILADELPHIA TOBOGGAN COASTERS, INC.
and Koch Development Corporation, Defendants.
No. Civ.A.05-2052.
|
Oct. 18, 2005.
Attorneys and Law Firms
Keith W. Vonderahe, Patrick A. Shoulders, Ziemer,
Stayman, Weitzel & Shoulders, LLP, Evansville, IN,
Robert A. Nicholas, Tracy G. Weiss, Krista Ayn Schmid,
Reed Smith LLP, Philadelphia, PA, for Plaintiff.
Carol Ann Murphy, Matthew J. Zamites, Margolis,
Edelstein & Scherlis, Heather M. Eichenbaum, Spector
Gadon & Rosen PC, Philadelphia, PA, Stephen J. Tasch,
Thomas M. Sheehan, Sheehan & Lower PC, Cary, IL, for
Defendants.

MEMORANDUM AND ORDER
SCHILLER, J.
*1 This case arises out of the tragic death of Tamar
Etana Fellner resulting from a roller coaster accident at an
Indiana amusement park. Defendant Koch Development
Corporation (“Koch”) owns and operates the amusement
park, and Defendant Philadelphia Toboggan Coasters,
Inc. (“PTC”) designed and manufactured the roller
coaster cars. Plaintiff Rabbi Azriel C. Fellner (“Plaintiff”),
as the Personal Representative of Ms. Fellner's Estate,
brings negligence and strict product liability claims
against Defendants. Presently before the Court are
Defendants' motions to dismiss. For the reasons that
follow, Defendants' motions are granted in part and
denied in part, and this case is transferred to the Southern
District of Indiana.

I. BACKGROUND
On April 29, 2005, Plaintiff brought this wrongful death
and survival action against Defendants. (Compl.¶¶ 50-51,
53-55.) Plaintiff alleges that Ms. Fellner was killed on
May 31, 2003, when she was ejected from a wooden roller
coaster ride that was negligently designed, manufactured,
and operated by Defendants. (Compl.¶¶ 14, 16-18, 22-24.)
The roller coaster, named the Raven, is located at Holiday
World, an amusement park in Santa Claus, Indiana. (Id.
¶¶ 6-7, 11-12.) Koch owns and operates both Holiday
World and the Raven roller coaster. (Id. ¶¶ 11-12.)
PTC, a corporation with its principal place of business
in Hatfield, Pennsylvania, designed and manufactured
the roller coaster cars for the Raven. (Id. ¶¶ 5, 13.)
Plaintiff asserts negligence, strict liability, and breach of
implied warranty claims against Defendants, and seeks
compensatory as well as punitive damages. (Id. ¶¶ 15-56.)
Plaintiff alleges jurisdiction under 28 U.S.C. § 1332 based
on complete diversity of the parties. (Id. ¶ 8.) Plaintiff,
as Personal Representative of Ms. Fellner's Estate, is a
citizen of New York; PTC is a citizen of Pennsylvania; and
Koch is a citizen of Indiana. (Id. ¶¶ 1, 3, 4.) Defendants
seek to dismiss this action based on improper venue,
or in the alternative, seek to transfer the case to the
Southern District of Indiana. 1 (Mot. to Dismiss of Def.
Koch ¶¶ 34-45; Mot. to Dismiss of Def. PTC ¶¶ 10-20.)
Additionally, Defendant Koch seeks to dismiss the strict
liability and breach of implied warranty claims for failure
to state a claim, and Defendants jointly move to strike
Plaintiff's request for punitive damages and costs of suit.
(Mot. to Dismiss of Def. Koch ¶¶ 46-61; Mot. to Dismiss
of Def. PTC ¶¶ 21-26.)
1

In its initial motion, Defendant Koch also sought
dismissal based on lack of personal jurisdiction. (Mot.
to Dismiss of Def. Koch ¶¶ 13-33.) Defendant Koch
has since withdrawn this objection. (Pl.'s Resp. in
Opp'n to Def. PTC's Mot. to Dismiss Ex. C; R. at
21 (Oral Arg. Sept. 15, 2005)). Therefore, Koch's
motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(2) is denied as moot.

II. STANDARD OF REVIEW
In considering a motion to dismiss for improper venue
under Federal Rule of Civil Procedure 12(b)(3), the
court must generally accept as true the allegations in the
complaint, although the parties may submit affidavits in

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2005 WL 2660351

support of their positions. See Heft v. AAI Corp., 355
F.Supp.2d 757, 762 (M.D.Pa.2005) (citing Myers v. Am.
Dental Ass'n, 695 F.2d 716, 724 (3d Cir.1982). The court
may examine facts outside the complaint to determine
proper venue, but must draw all reasonable inferences
and resolve all factual conflicts in the plaintiff's favor.
See id.; Quarles v. Gen. Inv. & Dev. Co., 260 F.Supp.2d
1, 8 (D.D.C.2003). The Third Circuit has determined
that “the movant (the defendant) bears the burden of
demonstrating that venue is improper.” Simon v. Ward,
80 F.Supp.2d 464, 467 (E.D.Pa.2000) (citing Myers, 695
F.2d at 724). The defendant also bears the burden of
establishing that a venue transfer is warranted. Id. at
470. Furthermore, “in ruling on defendant's [transfer]
motion the plaintiff's choice of venue should not be lightly
disturbed.” Id. (quoting Jumara v. State Farm Ins. Co., 55
F.3d 873, 879 (3d Cir.1995)) (internal citations omitted).

III. DISCUSSION
A. Proper Venue in This District
*2 Pursuant to 28 U.S.C. § 1406, a court faced with “a
case laying venue in the wrong division or district 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) (2005). Venue is proper
in a diversity case only in “(1) a judicial district where
any defendant resides, if all defendants reside in the same
state, (2) a judicial district in which a substantial part of
the events or omissions giving rise to the claim occurred,
or a substantial part of property that is the subject of
the action is situated....” See 28 U.S.C. § 1391(a). For
venue purposes, a defendant corporation “shall be deemed
to reside in any judicial district in which it is subject to
personal jurisdiction at the time the action is commenced.”
28 U.S.C. § 1391(c).
Although the parties focus solely on the propriety of
venue under § 1391(a)(2), the Court first considers whether
venue is proper in this District under § 1391(a)(1). As
a corporation, Koch is deemed to reside in any judicial
district in which it is subject to personal jurisdiction. See
28 U.S.C. § 1391(c). Because Koch has represented to
this Court that it does not contest the Court's personal
jurisdiction over it in this matter, the Court need not
belabor this point. (R. at 21.) The Court finds that Koch
is subject to personal jurisdiction in this District, and may
be considered a resident of this District for the purpose
of assessing proper venue. Pursuant to § 1391(a)(1), with

PTC and Koch both residing in Pennsylvania, venue is
proper in this District. See 28 U.S.C. § 1391(a)(1); see, e.g.,
George Young Co. v. Bury Bros., Inc., Civ. A. No. 03-3353,
2004 WL 1173129, at *7 (E.D.Pa. Apr. 2, 2004); Zippo
Mfg. Co. v. Zippo Dot Com, Inc., 952 F.Supp. 1119, 1128
(W.D.Pa.1997).
Furthermore, the Court finds that venue is also proper
under § 1391(a)(2), as a substantial part of the events
or omissions giving rise to Plaintiff's claims occurred
in this District. See 28 U.S.C. § 1391(a)(2). Generally,
venue must be proper as to each specific claim, except in
“cases in which the claims are parts of the same cause
of action.” Phila. Musical Soc'y, Local 77 v. Am. Fed'n
of Musicians of the U.S. and Can., 812 F.Supp. 509, 517
(E.D.Pa.1992); see also Lomanno v. Black, 285 F.Supp.2d
637, 641 (E.D.Pa.2003). When the plaintiff seeks relief
based upon separate legal theories for a single wrong,
the claims constitute one cause of action. See Christian
Dalloz S.A. v. Holden, Civ. A. No. 90-0835, 1990 WL
121342, at *2 (E.D.Pa. Aug.20, 1990) (“Claims can only
be characterized as separate causes of action if they
do not simply allege a single wrong with two separate
grounds for relief.”) (citing Beattie v. United States, 756
F.2d 91, 100 (D.D.C.1985); see also Klauder and Nunno
Enters., Inc. v. Hereford Assocs., Inc., 723 F.Supp. 336,
341 (E.D.Pa.1989) (describing the issue as “whether the
relief sought is ‘to put an end to an essentially single
wrong, however differently characterized ...’ ”) (quoting
Hurn v. Oursler, 289 U.S. 238, 246, 53 S.Ct. 586, 77
L.Ed. 1148 (1933)). Here, Plaintiff asserts multiple claims
against Koch and PTC, but only seeks relief arising out of
a single injury. Thus, venue need not be proper as to each
claim individually, but only as to the action as a whole.
*3 The Third Circuit has noted that while the events
or omissions giving rise to the plaintiff's claims must be
substantial to make venue proper, “the statute no longer
requires a court to select the ‘best’ forum.” Cottman
Transmission Sys., Inc. v. Martino, 36 F.3d 291, 294 (3d
Cir.1994) (noting that pre-1990 version of 1391(a)(2) laid
venue in district “in which the claim arose,” suggesting
only one proper district for venue). “Events or omissions
that might only have some tangential connection with
the dispute in litigation are not enough. Substantiality
is intended to preserve the element of fairness so that a
defendant is not haled into a remote district having no real
relationship to the dispute.” Id. Yet the statute “does not
require a majority of the events take place here, nor that

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the challenged forum be the best forum for the lawsuit to
be venued.” Park Inn Int'l, L.L.C. v. Mody Enters., Inc.,
105 F.Supp.2d 370, 376 (D.N.J.2000).
According to Plaintiff, the alleged defective design and
manufacture of the roller coaster cars, which occurred in
this District, constitute a substantial part of the events or
omissions giving rise to this claim. (Pl.'s Resp. in Opp'n to
Def. Koch's Mot. to Dismiss at 6.) The Court agrees that
such activities represent a substantial part of the product
liability claims Plaintiff asserts. See, e.g., Elam v. Ryder
Auto Operations, Civ. A. No. 94-151A, 1994 WL 705290,
at *8 (W.D.N.Y. Nov.1, 1994) (venue proper where design
and manufacture of product occurred). Moreover, as the
statute does not require that a majority of the events giving
rise to the claims occurred in this District, nor that this
District is the best forum for laying venue, venue is proper
in this District. See Cottman, 36 F.3d at 294; Park Inn Int'l,
105 F.Supp.2d at 376. Thus, under either provision of §
1391(a), venue is proper in this District, and Defendants'
motions to dismiss for improper venue are denied.

B. Transfer of Venue to the Southern District of
Indiana
Pursuant to 28 U.S.C. 1404(a), “[f]or 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.” 28 U.S.C. §
1404(a). An action may be transferred to another district
even if venue is proper where initially brought, provided
venue is also proper in the transferee district. See Simon
v. Ward, 80 F.Supp.2d 464, 470 (E.D.Pa.2000). Here,
venue would be proper in the Southern District of Indiana
pursuant to § 1391(a)(2), because a substantial part of
the events or omissions giving rise to Plaintiff's negligence
claims occurred at Koch's amusement park in Indiana, the
site of the accident. (Compl.¶¶ 6, 11-12, 22-26.); see also §
1391(a)(2).
The venue transfer analysis adopted by the Third Circuit
incorporates and elaborates upon the three factorsconvenience of parties, convenience of witnesses, and
interests of justice-explicitly mentioned in § 1404(a). See
Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d
Cir.1995). The Third Circuit has outlined various private
and public interests that are also relevant to the transfer
inquiry. See id. Private interests include: (1) plaintiff's
forum preference; (2) defendant's preference; (3) whether
the claim arose elsewhere; (4) convenience of the parties

as indicated by their relative physical and financial
condition; (5) convenience of the witnesses, but only to the
extent that witnesses may be unavailable to testify in one
forum; and (6) location of books and records, limited to
the extent they cannot be produced at alternative forum.
See id. Public interests include: (1) enforceability of the
judgment; (2) practical considerations that could make
the trial easy, expeditious, or inexpensive; (3) relative
administrative difficulty related to court congestion; (4)
local interest in deciding local controversies; (5) public
policies of both forums; and (6) familiarity of trial judge
with applicable state law in diversity case. See id. at
879-80.
*4 Defendant must show the desirability of transferring
venue, and must present evidence upon which the
court may rely in justifying transfer. See Plum Tree,
Inc. v. Stockment, 488 F.2d 754, 756-57 (3d Cir.1973).
Appropriate supporting evidence includes documents,
affidavits, or statements concerning the availability of
material witnesses, relative ease of access to evidence,
and business or personal hardships that might result for
the moving parties. 2 See id. at 757 n. 2. In this case,
the Jumara factors weigh strongly in favor of transfer,
and Defendants' supplemental submissions support the
Court's decision to transfer.
2

The Third Circuit described appropriate evidence in
support of a transfer motion as follows:
Examples of such documents would be a list
of the names and addresses of witnesses whom
the moving party plans to call and affidavits
showing the materiality of the matter to which
these witnesses will testify, statements by the
moving parties of the business difficulties or
personal hardships that might result from their
having to defend against the suit in the district
court where it was originally brought, affidavits
concerning the relative ease of access to sources
of documentary evidence, and other materials
where appropriate.
Plum Tree, 488 F.2d at 757 n. 2.

1. Plaintiff's Choice of Forum
Generally, “plaintiff's choice of a proper forum is a
paramount consideration in any determination of a
transfer request,” and while “[t]he decision to transfer
is in the court's discretion, [ ] a transfer is not to be
liberally granted.” Shutte v. Armco Steel Corp., 431 F.2d
22, 25 (3d Cir.1970); see also Park Inn Int'l, 105 F.Supp.2d

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3

Fellner ex rel. Estate of Fellner v. Philadelphia Toboggan..., Not Reported in...
2005 WL 2660351

at 377 (“[U]nless the balance is strongly tipped in favor
of the defendant, the plaintiff's choice of forum should
not be disturbed.”) (quoting Gulf Oil Corp. v. Gilbert,
330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)).
However, when plaintiff brings suit in a district other
than his home state, his venue choice is entitled to less
deference. See Piper Aircraft Co. v. Reyno, 454 U.S. 235,
255, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (“[P]laintiff's
choice of forum is entitled to greater deference when
the plaintiff has chosen the home forum ....”); see also
Horace Mann Ins. Co. v. Nationwide Mutual Ins. Co.,
Civ. A. No. 04-5978, 2005 U.S. Dist. LEXIS 4199, *7
(E.D.Pa. Mar.17, 2005) (noting that courts grant less
deference to plaintiff's choice of forum when plaintiff
does not reside in chosen forum). Here, Plaintiff's choice
is entitled to less deference because Pennsylvania is not
Plaintiff's home forum: Decedent Tamar Fellner resided
in New York, and her Estate is domiciled in New York. 3
(Compl.¶¶ 3, 4.) Accordingly, although Plaintiff's choice
of forum weighs against transfer, less significance is
accorded to this preference than if Plaintiff's home forum
were Pennsylvania.
3

The Court notes that Plaintiff's personal residence
in New Jersey is not relevant to this transfer
analysis, as Plaintiff brings this suit as the Personal
Representative of Ms. Fellner's Estate.

2. Defendants' Forum Preference
Defendants' forum preference weighs in favor of transfer,
as both Koch and PTC desire to litigate this case in
Indiana. (Mot. to Dismiss of Def. Koch ¶¶ 38-45; Mot.
to Dismiss of Def. PTC ¶¶ 17-20.) The issue of where this
claim arose weighs slightly in favor of transfer as well.
Despite the fact that the design and manufacture of the
roller coaster cars in Pennsylvania support a finding of
proper venue in this District, see supra Part III.A, the
accident itself occurred in Indiana, where the primary
witnesses of Ms. Fellner's fatal ride are located. (Compl.
¶¶ 6, 11-12, 14; Mot. to Dismiss of Def. Koch ¶¶ 39-41;
Mot. to Dismiss of Def. PTC ¶¶ 5-6.)

3. Convenience of the Parties
The convenience of the parties, as indicated by their
relative physical and financial condition, and the location
of books and records, to the extent they cannot be
produced at an alternative forum, are neutral here.
Records and documents may be produced in either

forum, and the inconvenience and expense of traveling
to an alternate forum for discovery and trial exists for
all parties. ®. at 10-13 (noting personal hardship upon
Plaintiff if required to travel to Indiana and business
hardship on Defendant Koch if required to travel to
Pennsylvania); Supplemental Docs. in Supp. of Mot. to
Dismiss of Def. Koch [hereinafter “Suppl. Docs. of Def.
Koch”] Ex. 5 (noting hardship and expense to familyrun Koch Corporation because Holiday World would
likely be shut down during trial due to high number of
employees traveling to testify).)

4. Public Interests
*5 The public interests in this case are neutral as well
and thus do not significantly impact the transfer analysis.
Plaintiff and Defendants both validly claim that each
forum has a strong policy interest in the outcome of the
case; Indiana as the site of the accident has an interest
based in promoting and monitoring safety in amusement
parks within its state, and Pennsylvania as the site of
the manufacture of potentially defective products has an
interest in monitoring the design, manufacture, and sale
of such products. (Mot. to Dismiss of Def. Koch ¶ 42; Br.
in Supp. of Def. PTC's Mot. to Dismiss at 15; Pl.'s Resp.
in Opp'n to Mot. to Dismiss of Def. Koch at 6-8.)

5. Convenience of Witnesses
The factor which most strongly supports transfer in
this case is the convenience of witnesses, to the extent
they would be unavailable to testify at Plaintiff's chosen
forum. This District has noted that “[t]he convenience of
witnesses weighs heavily in making a decision regarding a
motion to transfer venue,” and “[t]o show inconvenience
to witnesses, the moving party needs to provide the type
of documents set forth in Plum Tree.” Gonzalez v. Elec.
Control Sys., Inc., Civ. A. No. 93-3107, 1993 WL 372217,
at *4 (E.D.Pa. Sept.17, 1993); see also Clay v. Overseas
Carriers Corp., 61 F.R.D. 325, 331 (E.D.Pa.1973) (noting
that while “the required specificity of proof necessary
to support a transfer motion” will vary based on the
circumstances of each case, some established facts must
support movant's conclusory allegations).
In support of their motions, Defendants have submitted
appropriate supplemental documentation in the form of
affidavits and written and recorded statements, indicating
the materiality of testimony by witnesses who would be
unavailable if this case proceeded to trial in this District.

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4

Fellner ex rel. Estate of Fellner v. Philadelphia Toboggan..., Not Reported in...
2005 WL 2660351

(Suppl. Docs. of Def. Koch; Supplemental Docs. in Supp.
of Mot. to Dismiss of Def. PTC [hereinafter “Suppl.
Docs. of Def. PTC”] ); see also Plum Tree, 488 F.2d at
757 n. 2. Defendants present at least twelve non-party
witnesses who can provide material testimony regarding
Ms. Fellner's accident, including:
(1) Two guests in the parking lot of the amusement park
and one summer Koch employee within the park who
viewed a woman matching Ms. Fellner's description
on the fatal ride prior to her death;
(2) Three guests who were seated directly in front of Ms.
Fellner on the fatal ride, one of whom gave medical
care to Ms. Fellner after her fall;
(3) A former Koch employee responsible for roller
coaster maintenance;
(4) A summer Koch employee who checked Ms.
Fellner's coaster seat restraints on the ride Ms.
Fellner took immediately prior to the fatal ride;
(5) A former Koch employee who checked Ms. Fellner's
coaster seat restraints on the fatal ride;
(6) A summer Koch employee who viewed Ms. Fellner's
coaster car and seat restraints upon the ride's return
to the station after Ms. Fellner's fall;
*6 (7) An amusement ride inspector from the Division
of Fire and Building Safety of the State of Indiana,
who inspected Ms. Fellner's roller coaster car after
the accident and prepared a report of his findings; and
(8) The former Marshall of the Santa Claus Police
Department, who performed an inspection after the
accident, including observations of the roller coaster.
(Suppl. Docs. of Def. Koch Exs. 3A, 3B, 3C, 4D, 4G, 4H,
4K, 4M, 4N; Suppl. Docs. of Def. PTC Exs. A & C.) Seven
of these witnesses completed affidavits indicating that they
would not voluntarily appear in this District to testify in
this case. (Suppl. Docs. of Def. Koch Exs. 4D, 4G, 4H,
4K, 4M, 4N; Suppl. Docs. of Def. PTC Ex. C.) Counsel for
Defendants were unable to obtain similar affidavits from
the other five witnesses, but included prior written and/or
recorded statements from these witnesses. (Suppl. Docs.
of Def. Koch Exs. 3, 3A, 3B, 3C; Suppl. Docs. of Def.
PTC Exs. 1 & A.) Indeed, two of these primary witnesses
indicated to Counsel for PTC via telephone that they
did not intend to voluntarily give any further statement

regarding the incident they observed. (Suppl. Docs. of
Def. Koch Ex. 6.)
With the exception of one witness in Illinois and one in
Kentucky, 4 all of these witnesses reside in Indiana (Suppl.
Docs. of Def. Koch Exs. 3A, 3B, 3C, 4D, 4G, 4H, 4K,
4M, & 4N; Suppl. Docs. of Def. PTC Exs. A & C), and
thus the Court could not compel their attendance in this
District. See FED. R. CIV. P. 45(b)(2) (federal court's
subpoena power over non-party witnesses only extends
to persons within judicial district or within a 100-mile
radius of courthouse). These witnesses would, however,
be subject to the subpoena power of the district court in
the Southern District of Indiana. See id. As important
questions of liability will be addressed by the testimony of
these non-party witnesses, the interests of justice require
their live testimony, which can only be compelled in
Indiana. See, e.g., Ryer v. Harrisburg Kohl Bros., Inc., 307
F.Supp. 276, 280 (S.D.N.Y.1969) (noting the importance
of the location of material witnesses, especially when live
testimony is preferable to assess difficult questions of
liability).
4

The witness who resides in Kentucky is sufficiently
close to the Southern District of Indiana's courthouse
in Evansville, Indiana to be subject to that court's
subpoena power. (Suppl. Docs. of Def. Koch Ex. 4N);
see also FED. R. CIV. P. 45(b)(2).

Plaintiff essentially pursues two distinct theories in this
case-a product liability claim against PTC for its design
and manufacture of the roller coaster cars and a negligence
claim against Koch for its operation of the roller coaster.
(Compl.¶¶ 15-32.) The former could be successfully
litigated as easily in Indiana as in Pennsylvania, with
experts and relatively few PTC principals/employees
testifying regarding the design and manufacture of the
roller coaster cars. (Ex. B of Reply Br. in Resp. to Pl.'s
Br. in Opp'n to Def. PTC's Mot. to Dismiss (noting
that PTC has eleven employees, but only two principals
likely to testify, both of whom are willing to travel to
Indiana); R. at 37.) On the other hand, the latter must be
litigated in Indiana to ensure a fair and just outcome of
the negligence claim against Koch. The material testimony
of numerous non-party witnesses, as documented in
Defendants' supporting submissions to the Court, will be
crucial to a jury's assessment of Defendant Koch's liability
for this tragic accident. In weighing the Jumara factors and
considering the interests of justice, the Court finds that
transferring this case to the Southern District of Indiana

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5

Fellner ex rel. Estate of Fellner v. Philadelphia Toboggan..., Not Reported in...
2005 WL 2660351

is warranted. Thus, Defendants' motions to transfer this
case are granted.

1.

IV. CONCLUSION
*7 For the reasons discussed above, Defendants' motions

a. Motion to dismiss for lack of personal jurisdiction is
DENIED;

to dismiss are granted in part and denied in part, 5 and this
action is transferred to the Southern District of Indiana.
An appropriate Order follows.
5

Given the Court's decision to transfer this action,
the Court need not rule on Defendants' motions
to dismiss the strict liability and breach of implied
warranty claims and to strike Plaintiff's request for
punitive damages and costs of suit, as these matters
now fall within the province of the transferee court to
resolve.

ORDER
AND NOW, this 18 th day of October, 2005, upon
consideration of Defendants' Motions to Dismiss,
Plaintiff's responses thereto, Defendants' replies thereon,
and for the foregoing reasons, it is hereby ORDERED
that:

Defendant Koch Development Corporation's
Motion to Dismiss (Document No. 8) is GRANTED
in part and DENIED in part, as follows:

b. Motion to dismiss for improper venue is DENIED;
c. Motion to transfer venue is GRANTED.
2. Defendant Philadelphia Toboggan Coasters, Inc.'s
Motion to Dismiss (Document No. 22) is
GRANTED in part and DENIED in part, as follows:
a. Motion to dismiss for improper venue is DENIED;
b. Motion to transfer venue is GRANTED.
3. This case is TRANSFERRED to the United States
District Court for the Southern District of Indiana.
4. The Clerk of Court is directed to close this case for
statistical purposes.

All Citations
Not Reported in F.Supp.2d, 2005 WL 2660351

End of Document

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6

Flaherty v. All Hampton Limousine, Inc., Not Reported in F.Supp.2d (2002)
2002 WL 1891212

2002 WL 1891212
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
James E. FLAHERTY, Plaintiff,
v.
ALL HAMPTON LIMOUSINE,
INC., et al., Defendants.
No. 01 Civ.9939 SAS.
|
Aug. 16, 2002.
Synopsis
Plaintiff sued 12 defendants, raising labor-related claims.
The District Court, Scheindlin, acting sua sponte, held
that case would be transferred to Eastern District of New
York, for convenience of parties and witnesses.
Case transferred.

MEMORANDUM OPINION AND ORDER
SCHEINDLIN, J.
*1 A review of plaintiff's Amended Complaint
(“Am.Cmplt.”) indicates that plaintiff resides in the
Hamlet of Hampton Bays located in Long Island, New
York. See Am. Cmplt. ¶ 19. Eight of the twelve defendants
maintain offices or otherwise reside at addresses located
within the Eastern District of New York (All Hampton
Limousine, Inc.; Crystal Joyce; Mary Neary; Matthew
Galiadatto; John Tomitz; Rocky Point Taxi Inc.; Peter
Colucci; and David Morse & Associates, Inc.), two
defendants maintain offices within the Northern District
of New York (Gates McDonald of New York and
Barbara Swan), one defendant maintains offices within
the Southern District of New York and Pennsylvania
(Reliance National Risk Specialists), and the residence
of one individual defendant, Christopher Scheno, cannot
be ascertained from the Amended Complaint. See Am.
Cmplt. ¶¶ 9–18, 50 & Ex. Y.

Attorneys and Law Firms
James E. Flaherty, Riverhead, New York, Plaintiff pro se.
Nora C. Marino, Great Neck, New York, for Defendants
All Hampton Limousine, Inc., Matthew Galiadatto, Mary
Neary, and Crystal Joyce.
Thomas J. Donovan, Bee, Eisman & Ready, LLP,
Mineola, New York, for Defendant Rocky Point Taxi.
Joseph M. Glatstein, Williamson & Williamson, P.C.,
New York, New York, for Defendants Gates McDonald
of New York and Barbara Swan.
James T. Reynolds, Reynolds Caronia Gianelli & Hagney,
LLP, Hauppauge, New York, for Defendant Peter
Collucci.
Mitchell D. Goldberg, Ochs & Goldberg, LLP, New
York, New York, for Defendant John Tomitz.
Jones Hirsch Connors & Bull P.C., New York, New
York, for Defendants David Morse & Associates, Inc. and
Christopher Scheno.
Richard T. Radsch, New York, New York, for Defendant
Reliance National Risk Specialists Inc..

Furthermore, a substantial portion of the events or
omissions giving rise to plaintiff's claims occurred within
the Eastern District. For example, plaintiff alleges that
Rocky Point Taxi Inc. under-reported his 1999 wages to
the Internal Revenue Service Center located at Riverhead,
Long Island. See id. at ¶ 23. Plaintiff also alleges that
All Hampton Limousine, Inc., conspiring with other
defendants, sought to defraud him of New York State
Workers Compensation benefits he was entitled to as a
result of an on-the-job accident occurring in Hampton
Bays, Long Island. See id . ¶ 24 and Ex. A.
Section 1404(a) of Title 28 of the United States Code
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 or division where it might
have been brought.” 28 U.S.C. § 1404(a). 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 expense.”
’ Eskofot A/S v. E.I. Du Pont De Nemours & Co., 872
F.Supp. 81, 94 (S.D.N.Y.1995) (quoting Van Dusen v.
Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945
(1964)).

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1

Flaherty v. All Hampton Limousine, Inc., Not Reported in F.Supp.2d (2002)
2002 WL 1891212

Motions to transfer venue are governed by a two-part
test: (1) whether the action to be transferred “might have
been brought” in the transferee venue; and (2) whether
the balance of convenience and justice favors transfer.
See American Alliance Ins. Co. v. Sunbeam Corp., No.
98 Civ. 4703, 1999 WL 38183, at *3 (S.D.N.Y. Jan.28,
1999); Gerling American Ins. Co. v. FMC Corp., No.
97 Civ. 6473, 1998 WL 410898, at *2 (S.D.N.Y. July
22, 1998) (“Motions for transfer lie within the broad
discretion of the courts and are determined upon notions
of convenience and fairness.”). Because this action could
have been brought in the Eastern District of New York,
transfer depends on the balance of convenience and
justice.
In making this determination, a judge has “[c]onsiderable
discretion in adjudicating a motion for transfer according
to an individualized, case-by-case consideration of
convenience and fairness.” Bionx Implants, Inc. v. Biomet,
Inc., No. 99 Civ. 740, 1999 WL 342306, at *3 (S.D.N.Y.
May 27, 1999) (quoting In re Cuyahoga Equip. Corp.,
980 F.2d 110, 117 (2d Cir.1992)). A non-exclusive list of
factors to consider includes:

*2 (1) the convenience of witnesses;
(2) the convenience of the parties; (3)
the location of relevant documents
and the relative ease of access to
those sources of proof; (4) the situs
of the operative events in issue;
(5) the availability of process to
compel the attendance of unwilling
witnesses; (6) the relative means
of the parties; (7) the comparative
familiarity of each district with
the governing law; (8) the weight
accorded a plaintiff's choice of
forum; and (9) judicial efficiency and
the interests of justice.

Ayala–Branch v. Tad Telecom, Inc., 197 F.Supp.2d 13,
15 (S.D.N.Y.2002). No individual factor is determinative
and a court has discretion to weigh each factor to reach a
fair result. See Pharmaceutical Resources, Inc. v. Alpharma
USPD Inc., No. 02 Civ. 1015, 2002 WL 987299, at *5
(S.D.N.Y. May 13, 2002) (citing Citigroup Inc. v. City
Holding Co., 97 F.Supp.2d 549, 560 (S.D.N.Y.2000)).

Application of the above factors clearly indicates that
the Eastern District of New York is the more convenient
forum for this action. There is no question that this
action could have been brought originally in the Eastern
District of New York. Most of the witnesses reside within
the Eastern District of New York. See In re Eastern
District Repetitive Stress Injury Litig., 850 F.Supp. 188,
194 (E.D.N.Y.1994) (stating that the “[c]onvenience
of witnesses is the most powerful factor governing
the decision to transfer a given case”). Furthermore,
plaintiff's claims arise from acts taken within the Eastern
District and the majority of relevant documents are
located there. Similarly, the second factor favors transfer.
Clearly, the Eastern District of New York is a more
convenient forum for the majority of the parties. The
fifth through seventh factors are neutral—witnesses can
just as easily be compelled to appear before the Eastern
or Southern District of New York, the means of the
parties are not affected, and courts in the Eastern
District are equally familiar with the governing law. While
the eighth factor—plaintiff's choice of forum—favors
retaining jurisdiction here, it is not dispositive. See Ayala–
Branch, 197 F.Supp.2d at 15 (stating that plaintiff's choice
of forum measurably diminishes “when the operative
facts have few meaningful connections to the plaintiff's
chosen forum”); United States Surgical Corp. v. Imagyn
Med. Techs., Inc., 25 F.Supp.2d 40, 46 (D.Conn.1998)
(holding that plaintiff's “choice of forum is entitled to little
deference because the events giving rise to this case did not
occur in Connecticut”). Plaintiff has expressed concern
about his travel distance to the Long Island courthouse.
See August 2, 2002 Letter from Flaherty to defense
counsel at 3. Plaintiff fails to recognize, however, that
this case might be assigned to the Brooklyn courthouse.
Finally, the last factor—trial efficiency and interests of
justice—strongly supports a transfer of venue given this
action's nexus to Long Island.
*3 In sum, in the interests of justice and for the
convenience of the parties and witnesses, the above
captioned case is hereby transferred, pursuant to 28
U.S.C. § 1404(a), to the Eastern District of New York.
Although this transfer is being made sua sponte, see
Mattel, Inc. v. Adventure Apparel, No. 00 Civ. 4085, 2001
WL 286728, at *5 (S.D.N.Y. Mar.22, 2001) (holding that
a court can transfer venue sua sponte (citing Lead Indus.
Ass'n v. Occupational Safety & Health Admin., 610 F.2d 70,
79 n. 17 (2d Cir.1979)), I note that two defendants raised

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2

Flaherty v. All Hampton Limousine, Inc., Not Reported in F.Supp.2d (2002)
2002 WL 1891212

improper venue as an affirmative defense. See Answer of
Rocky Point Taxi Inc. ¶ 6 and Answer of Peter Collucci
¶ 6.

All Citations
Not Reported in F.Supp.2d, 2002 WL 1891212

The Clerk of the Court is directed to transfer this file to
the Eastern District of New York forthwith. All pending
motions will be addressed by the transferee court.
End of Document

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3

Gentile v. Republic Tobacco Co., Not Reported in F.Supp. (1995)
1995 WL 743719

1995 WL 743719
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Anthony GENTILE, Plaintiff,
v.
REPUBLIC TOBACCO COMPANY, Defendant.
No. 95-CV-1500 (RSP) (DNH).
|
Dec. 6, 1995.
Attorneys and Law Firms
Anthony Gentile, Binghamton, NY, pro se.

DECISION and ORDER
POOLER, District Judge.
I. Background
*1 Presently before this Court is an application to
proceed in forma pauperis and a civil rights complaint.
Plaintiff Anthony Gentile (“Gentile”) has not paid the
partial filing fee required to maintain this action.
Because Gentile's complaint is without arguable basis in
law, I dismiss it pursuant to 28 U.S.C. § 1915(d) and Rule
5.4(a) of the Local Rules of Practice of this District as
without arguable basis in law.
In his pro se complaint, Gentile claims that defendant
Republic Tobacco Company (“Republic”) manufactures
a product called TOP tobacco, and that Republic has
negligently failed to put any warning labels on such
product regarding possible health hazards which may be
caused by the use of such product. For a more complete
statement of plaintiff's claims, reference is made to the
entire complaint filed herein.

II. Discussion
Consideration of whether a pro se plaintiff should be
permitted to proceed in forma pauperis is a two-step
process. First, the court must determine whether the
plaintiff's economic status warrants waiver of fees and
costs under 28 U.S.C. § 1915(a). If the plaintiff qualifies
by economic status, the court must then consider whether

the cause of action stated in the complaint is frivolous
or malicious. Moreman v. Douglas, 848 F.Supp. 332, 333
(N.D.N.Y. 1994) (Scullin, J.); Potnick v. Eastern State
Hosp., 701 F.2d 243, 244 (2d Cir. 1983) (per curiam).
I have determined that Gentile's financial status qualifies
him to file or “commence” this action in forma pauperis.
28 U.S.C. § 1915(a). I therefore turn to the second inquiry.
A court may “dismiss the proceeding under 28 U.S.C. §
1915(d) if the court thereafter determines that ... the action
is frivolous or malicious.” Moreman, 848 F.Supp. at 333
(citation omitted).
In determining whether an action is frivolous, the court
must look to see whether the complaint lacks an arguable
basis either in law or in fact. Neitzke v. Williams, 490 U.S.
319, 325 (1989). The court has the duty to show liberality
towards pro se litigants, Nance v. Kelly, 912 F.2d 605,
606 (2d Cir. 1990) (per curiam). In addition, the court
should exercise extreme caution in ordering sua sponte
dismissal of a pro se complaint before the adverse party
has been served and the parties have had an opportunity
to respond, Anderson v. Coughlin, 700 F.2d 37, 41 (2d
Cir. 1983). Nonetheless, the Court has a responsibility to
determine that a claim is not frivolous before permitting
a plaintiff to proceed with an action in forma pauperis.
Dismissal of frivolous actions pursuant to 28 U.S.C. §
1915(d) is appropriate to prevent abuses of the process of
the court, Harkins v. Eldredge, 505 F.2d 802, 804 (8th Cir.
1974), and to discourage the waste of judicial resources.
Neitzke, 490 U.S. at 327. See generally Moreman, 848
F.Supp. at 334.
Gentile brought this action under 42 U.S.C. § 1983, which
permits individuals to seek redress for alleged violations of
their constitutional rights. See, e.g., Von Ritter v. Heald,
No. 91-CV-612, 1994 WL 688306, *3, 1994 U.S.Dist.
LEXIS 17698, *8-9 (N.D.N.Y. Nov. 14, 1994) (McAvoy,
C.J.). However, parties may not be held liable under
this section unless it can be established that they have
acted under the color of state law. See, e.g., Rounseville v.
Zahl, 13 F.3d 625, 628 (2d Cir. 1994) (noting state action
requirement under § 1983); Wise v. Battistoni, No. 92Civ-4288, 1992 WL 380914, *1, 1992 U.S.Dist. LEXIS
18864, *2-3 (S.D.N.Y. Dec. 10, 1992) (same) (citations
omitted).
*2 In the present case, Gentile has named Republic
as the sole defendant herein. However, Gentile has not

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1

Gentile v. Republic Tobacco Co., Not Reported in F.Supp. (1995)
1995 WL 743719

alleged any nexus between the State of New York and
the challenged actions of Republic. State action is an
essential element of any § 1983 claim. See Velaire v. City
of Schenectady, 862 F.Supp. 774, 776 (N.D.N.Y. 1994)
(McAvoy, C.J.) (citation omitted).
Moreover, the Court notes that Gentile contends that
Republic's failure to warn the public of possible health
hazards was the result of negligence on the part of the
defendant. Complaint at 2. However, it is well settled
that mere negligence is not cognizable under § 1983.
See Stevens v. Pinkney, No. 95-CV-1338, slip op. at 4
(N.D.N.Y. Oct. 25, 1995) (Scullin, J.) (citations omitted).

ORDERED, that leave to proceed or prosecute this action
in forma pauperis is denied, and it is further
ORDERED, that this action is dismissed pursuant to 28
U.S.C. § 1915(d) and Rule 5.4(a) of the Local Rules of
Practice of this District as lacking any arguable basis in
law, and it is further
ORDERED, that the Clerk serve a copy of this Order on
the plaintiff by regular mail.
I further certify that any appeal from this matter would
not be taken in good faith pursuant to 28 U.S.C. § 1915(a).

Because no arguable basis in law supports Gentile's
complaint, I must dismiss it pursuant to 28 U.S.C. §
1915(d). Neitzke, 490 U.S. at 328.

IT IS SO ORDERED.

Accordingly, it is hereby

Not Reported in F.Supp., 1995 WL 743719

End of Document

All Citations

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2

Gonsalves-Carvalhal v. Aurora Bank, FSB, Not Reported in F.Supp.3d (2014)
2014 WL 201502

2014 WL 201502
Only the Westlaw citation is currently available.
United States District Court,
E.D. New York.
Antino GONSALVES–CARVALHAL, Plaintiff,
v.
AURORA BANK, FSB, Aurora Loan Services,
LLC, and McCurdy & Candler, LLC, Defendants.
No. 12–CV–2790 (MKB).
|
Jan. 16, 2014.
Attorneys and Law Firms
Antino Gonsalves-Carvalhal, Rosedale, NY, pro se.
Margaret J. Cascino, Tompkins McGuire Wachenfeld
& Barry LLP, Newark, NJ, William C. Sandelands,
Sandelands Eyet LLP, Bedminster, NJ, Dennis Jose,
Gross Polowy Orlans, LLC, Westbury, NY, Frank R.
Olson, McCurdy & Candler, LLC, Atlanta, GA, Nicole
C. Gazzo, Gross Polowy Orlans, LLC, Amherst, NY, for
Defendants.

MEMORANDUM & ORDER
MARGO K. BRODIE, District Judge.
*1 Plaintiff A nti no Gonsalves–Carval hal, proceeding
pro se, brings the above-captioned action against
Defendants Aurora Bank, FSB (“Aurora Bank”), Aurora
Loan Services, LLC (“Aurora Loan”) (together “the
Aurora Defendants”) and McCurdy & Candler, LLC,
(“McCurdy & Candler”), pursuant to the Fair Debt
Collection Practices Act (“FD CPA”), the Truth in
Lending Act (“TI LA”), the Real Estate Settlement
Procedures Act (“RESPA”), the Fair Credit Billing Act
(“FCBA”) and Georgia state law. The Aurora Defendants
moved to dismiss the Amended Complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure for
failure to state a claim. McCurdy & Candler moved to
dismiss the Amended Complaint pursuant to Rule 12(b)
(6) and, in the alternative, for a transfer of venue to the
Northern District of Georgia pursuant to 28 U.S.C. §
1404 and § 1406. For the reasons set forth below, the
Court grants McCurdy & Candler's motion to transfer

venue pursuant to 28 U.S.C. § 1406. In addition, the Court
finds that a transfer of the claims against the Aurora
Defendants is in the interest of justice pursuant to §
1404(a), and transfers the entire action to the Northern
District of Georgia.

I. Background
The facts alleged in the Amended Complaint are assumed
to be true for the purposes of this Memorandum and
Order. Plaintiff's claims arise from a mortgage agreement
between Plaintiff and Bayrock Mortgage Corporation
(“Bayrock”) dated June 15, 2007, to finance the purchase
of Plaintiff's retirement home (“the property”) in Atlanta,
Georgia. (Docket Entry No. 22 “Am. Compl.” ¶¶
12, 17, Ex. A.) As part of the mortgage agreement,
Plaintiff signed a security deed conveying a security
interest to Mortgage Electronic Registration Systems, Inc.
(“MERS”), acting as the nominee for Bayrock and its
successors. 1 (Am. Compl. Ex. B (“Security Deed”) at 3.)
Plaintiff defaulted on the mortgage loan, (Am.Compl.¶
60), and on January 13, 2011, Plaintiff received a letter
from McCurdy & Candler informing Plaintiff that it had
been retained by MERS to “collect the debt secured by the
above-referenced property, which may involve foreclosure
proceedings,” and that Plaintiff owed $138,847, (Am.
Compl. Ex. 100 at 1). On February 10, 2011, MERS
assigned the security interest in Plaintiff's home to Aurora
Loan, (Am.Compl.Ex.D), a subsidiary of Aurora Bank,
(Am.Compl.¶ 1). 2 On October 12, 2011 and April
10, 2012, McCurdy & Candler sent letters to Plaintiff
informing Plaintiff that it “represents Aurora Bank, the
creditor on the above referenced loan,” and advising
Plaintiff that it had been retained to collect the debt
secured by the property. 3 (Am. Compl. Ex. 200; Docket
Entry No. 32, McCurdy & Candler Motion to Dismiss
(“McCurdy Mot.”) Ex. B.) The letter listed Aurora Bank
as the “Creditor” and Aurora Loan as the “Servicer” in the
address heading. (Am. Compl. Ex. 200; McCurdy Mot.
Ex. B.)
1

2

Bayrock Mortgage Corporation was dissolved by
the Georgia Secretary of State in August 2011.
(Am.Compl.Ex. C.)
Plaintiff alleges that Aurora Loan was involved with
servicing his loan as early as 2009 or 2010, prior to the
assignment of the security interest. (Am.Compl.¶¶ 22,
58.)

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2014 WL 201502

3

McCurdy & Candler states that Aurora Loan
assigned the security interest in the property to
Aurora Bank on September 14, 2011, (McCurdy
Mem. ¶ 3), but has not provided any supporting
documentation. McCurdy & Candler attaches to its
moving papers only the assignment made by MERS
to Aurora Loan. (See McCurdy Mem. Ex. A.)

Plaintiff's Amended Complaint centers around five
allegedly unlawful events: (1) his original lender, Bayrock,
engaged in predatory lending, (Am.Compl.¶ 49); (2)
Bayrock unlawfully named M ERS as its nominee /
fiduciary in the security deed signed by Plaintiff, (Id. ¶¶
37, 49(b)); (3) MERS lacked the power to assign a security
interest in the property to Aurora Bank in February
2011, (Id. ¶¶ 49(e), 72–76); (4) Bayrock and its successor,
Aurora Bank, failed to respond to a rescission notice sent
by Plaintiff in November 2011, (Id. ¶¶ 79–88); and (5)
the Aurora Defendants and McCurdy & Candler acted
unlawfully with respect to the attempts to collect on the
mortgage loan debt and attempts to foreclosure on the
property, (Id. ¶¶ 90–110). Plaintiff also alleges that he is
the victim of Aurora Bank's “anticipatory breach” of a
Consent Order entered into between Aurora Bank and
the federal Office of Thrift Supervision. (Id. ¶¶ 2, 45, 68;
see also Am. Compl. Ex. 850, “Consent Order”.) Plaintiff
seeks equitable and injunctive relief, including declaratory
judgments and an immediate cease and desist order, as
well as damages under various state and federal statutes.
*2 The Aurora Defendants moved to dismiss for failure
to state a claim, on the basis that Plaintiff's Amended
Complaint is an impermissible “shotgun pleading,” that
Plaintiff fails to plead fraud with particularity, and
that there is no basis for declaratory relief that would
enjoin the pending state proceeding of the foreclosure on
Plaintiff's home. (Docket Entry No. 37, “Aurora Mem.”
1.) McCurdy & Candler moved to dismiss or in the
alternative, to transfer venue pursuant to 28 U.S.C. § 1404
and § 1406, arguing that the case is improperly venued and
should be transferred to federal court in Georgia. (Docket
Entry No. 32, Attach. 1 “McCurdy Mem.”)
Plaintiff opposes Defendants' motions on the basis that
another party, “RALI Series 2007—Q05 purports to own
[Plaintiff's] loan,” and argues that neither the mortgage
nor the promissory note were legally transferred to this
party, and that “Aurora is not the proper party in interest
to foreclose Plaintiff's property....” (Docket Entry No.
37, Attach. 6 “Pl. Opp. Aff.” ¶¶ 3–6.) Plaintiff seeks

discovery to “determine whether Plaintiff is obligated
to make payments to Aurora or RA L I Series 2007—
Q05,” (Id. ¶¶ 8–9), and appends a “Property Securitization
Analysis Report” prepared by Certified Forensic Loan
Auditors, LLC, (Docket Entry No. 32 Attach. 7 “Pl. Opp.
Aff. Ex.2000”) to his opposition papers.

II. Discussion
a. Standard of Review
In reviewing a motion to dismiss under Rule 12(b)(6)
of the Federal Rules of Civil Procedure, the court must
“accept as true all allegations in the complaint and draw
all reasonable inferences in favor of the non-moving
party.” Matson v. Bd. ofEduc., 631 F.3d 57, 63 (2d
Cir.2011) (quoting Connecticut v. Am. Elec. Power Co.,
582 F.3d 309, 320 (2d Cir.2009)). A complaint must
“contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’ “
Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009) (quoting Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d
929 (2007)). A claim is plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Matson, 631 F.3d at 63 (quoting
Iqbal, 556 U.S. at 678). “[W]here the well-pleaded facts
do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged—
but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’ “ Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P.
8(a)(2)). In reviewing a pro se complaint, the Court must
be mindful that the plaintiff's pleadings should be held
“to less stringent standards than formal pleadings drafted
by lawyers.” Ahlers v. Rabinowitz, 684 F.3d 53, 60 (2d
Cir.2012) (quoting Erickson v. Pardus, 551 U.S. 89, 94,
127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007)), cert. denied,
568 ––– U.S. ––––, 133 S.Ct. 466 (2012). “While pro se
complaints must contain sufficient factual allegations to
meet the plausibility standard, we are obliged to construe a
pro se complaint liberally to raise the strongest arguments
it suggests.” Bamba v. U.S. Dep' t of Homeland Sec., 533
F. App'x 33, ––––, 2013 WL 5485916, at * 1 (2d Cir. Oct.3,
2013) (alteration and internal quotation marks omitted)
(citing Walker v. Schult, 717 F.3d 119, 124 (2d Cir.2013)
and Harris v. Mills, 572 F.3d 66, 71–72 (2d Cir.2009)).

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2014 WL 201502

b. Venue is Not Proper in the Eastern District of New
York
*3 McCurdy & Candler seeks to transfer venue of this
proceeding to the Northern District of Georgia, (Docket
Entry No. 32 “McCurdy Notice of Mot.”; McCurdy
Mem. ¶¶ 43–51), pursuant to 28 U.S.C. § 1404 and § 1406.
Once venue is challenged, “the plaintiff has the burden
of establishing that it has chosen the proper venue.”
Jackson v. Am. Brokers Conduit, No. 09–CV6045, 2010
WL 2034508, at *1 (S.D.N.Y. May 13, 2010) (citing
Bell v. Classic Auto Grp., Inc., No. 04–CV–0693, 2005
WL 659196, at *4 (S.D.N.Y. Mar. 21, 2005)). However,
at the motion to dismiss stage, where the Court relies
only on pleadings and affidavits, “the plaintiff need only
make a prima facie showing of [venue].” Gulf Ins. Co. v.
Glasbrenner, 417 F.3d 353, 355 (2d Cir.2005) (alteration
in original) (citing CutCo Indus. v. Naughton, 806 F.2d
361, 364–65 (2d Cir.1986)). “Prior to discovery, a plaintiff
challenged by a jurisdiction testing motion may defeat
the motion by pleading in good faith, legally sufficient
allegations of jurisdiction.” Dorchester Fi n. Sec., Inc. v.
Banco BRJ, S.A., 722 F.3d 81, 84 (2d Cir.2013) (quoting
Ball v. Metallurgie Hoboken—Overpelt, S.A ., 902 F.2d
194, 197 (2d Cir.1990)). “In analyzing whether the plaintiff
has made the requisite prima facie showing that venue is
proper, we view all the facts in a light most favorable to
plaintiff .” Magi XXI, Inc. v. Stato della Citta del Vaticano,
714 F.3d 714, 720 (2d Cir.2013) (citing Phillips v. Audio
Active Ltd., 494 F.3d 378, 384 (2d Cir.2007)).
Improper venue is a waivable defense. Any objection to
venue must be raised in a defendant's responsive pleading
or pre-answer motion, otherwise a party is deemed to
have waived the obj ection. 4 Fed.R.Civ.P. 12(b)(3), 12(h);
Tri–State Employment Servs., Inc. v. Mountbatten Sur.
Co., Inc., 295 F.3d 256, 261 (2d Cir.2002) (finding that a
“[d]efendant [who] failed to raise any venue challenge in a
pre-answer motion or responsive pleading ... is deemed to
have waived any objection to venue.” (citing Fed.R.Civ.P.
12(h)(1)(B) and Concession Consultants, Inc. v. Mirisch,
355 F.2d 369, 371 & n. 1 (2d Cir.1966)); see also Joe Hand
Promotions, Inc. v. Elmore, No. 11–CV–3761, 2013 WL
2352855, at * 1 n. 2 (E.D.N.Y. May 29, 2013) (noting
that “it is well settled that improper venue is a waivable
defense”) (collecting cases).
4

The Aurora Defendants did not raise a venue
challenge in their pre-answer motion to dismiss

(Docket Entry No. 37), and therefore waive their
objection to venue. Although McCurdy & Candler
argues that venue is not proper as to the Aurora
Defendants, (McCurdy Mem. ¶ 46 n. 9), “venue is a
personal privilege that is waivable at will,” Gross v.
British Broad. Corp., 386 F.3d 224, 234 (2d Cir.2004)
(citing Concession Consultants, Inc. v. Mirisch, 355
F.2d 369, 371 (2d Cir.1966)). Consequently, a party
may raise objections to venue only as to itself,
and not as to another party. See Brossart v.
Lynx Bus. Intelligence Consulting, Inc., No. 08–CV–
0609, 2008 WL 2561592, at *2 (D.Ariz. June 25,
2008) (“The defense of improper venue is generally
personal, such that one defendant may not obtain
dismissal or transfer because venue is improper
as to a codefendant, unless that codefendant is
an indispensable party.” (citing Anrig v. Ringsby
United, 603 F.2d 1319, 1324 (9th Cir.1979))); Dean
v. Anderson, No. 01–CV2599, 2002 WL 1067454, at
* 1 (D.Kan. May 2, 2002) (“[A] defendant ‘may not
challenge venue on the ground that it is improper
as to a codefendant.’ “ (citing Pratt v. Rowland,
769 F.Supp. 1128, 1132 (N.D.Cal.1991)); Pratt, 769
F.Supp. at 1132 (“Improper venue is a defense
personal to the party to whom it applies. Thus one
defendant may not challenge venue on the ground
that it is improper as to a co-defendant.” (citing Camp
v. Gress, 250 U.S. 308, 314, 39 S.Ct. 478, 63 L.Ed. 997
(1919)).

When a defendant raises a proper objection to venue, and
the plaintiff has not made a prima facie showing of venue,
28 U.S.C. § 1406 requires that the court “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); Gonzalez v. Hasty, 651 F.3d 318, 324
(2d Cir.2011); see also First State Ins. v. Nat'l Cas. Co.,
No. 13–CV–0704, 2013 WL 5439143, at * 3 (S .D.N.Y.
Sept. 27, 2013) (“If the plaintiff cannot establish that the
chosen venue is correct, ‘[t]he district 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.’ “ (quoting 28 U.S.C. § 1406)); Azrelyant v. B.
Manischewitz Co., No. 98–CV–2502, 2000 WL 264345,
at *3 (E.D.N.Y. Jan.13, 2000) (“Where a suit is filed in
federal court in a district in which venue is improper,
and a timely and sufficient objection to the defect is
raised, a change of venue may be made under 28 U.S.C.
§ 1406(a)....”). “Courts enjoy considerable discretion in
deciding whether to transfer a case [under § 1406] in the
interest of justice.” White v. Rock, No. 10–CV–5163, 2013
WL 527804, at *5 (E.D.N.Y. Feb. 4, 2013) (quoting Daniel

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Gonsalves-Carvalhal v. Aurora Bank, FSB, Not Reported in F.Supp.3d (2014)
2014 WL 201502

v. American Board of Emergency Medicine, 428 F.3d 408,
435 (2d Cir.2005)).
*4 Plaintiff alleges that “[v]enue is proper in this District
under 28 USC § 1391(b).” (Am.Compl.¶ 10.) This statute
provides, in pertinent part, that an action may be brought
in:
(1) a judicial district in which any Defendant resides, if
all Defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or
a substantial part of property that is the subject of the
action is situated; or
(3) if there is no district in which an action may
otherwise be brought as provided in this section, any
judicial district in which any Defendant is subject to the
court's personal jurisdiction with respect to such action.
28 U.S.C. § 1391(b).

i. Venue is not Proper Pursuant to Section 1391(b)(1)
In this case, not all Defendants “reside” in New York,
the state in which the Eastern District of New York is
located, as required by § 1391(b)(1), therefore venue in
the Eastern District of New York is not properly based
on the residence of Defendants. See 28 U.S.C. § 1391(b)
(1) (providing that a civil action may be brought in “a
judicial district in which any defendant resides, if all
defendants are residents of the State in which the district
is located”). According to Plaintiff, Aurora Bank has a
“principal place for doing business located at 1271 Avenue
of the Americas, New York N.Y. 10019,” and McCurdy
& Candler's principal address is 3525 Piedmont Road,
Atlanta, Georgia, with a registered agent at the same
address. (Am.Compl.¶¶ 13–16.) Thus, while Plaintiff may
have alleged that at least one Defendant—Aurora Bank
—“resides” in New York, the state in which the Eastern
District of New York is located, Plaintiff cannot establish
that all Defendants are residents of New York state.
For purposes of determining proper venue, a business
entity such as a corporation “shall be deemed to reside,
if a Defendant, in any judicial district in which such
Defendant is subject to the court's personal jurisdiction
with respect to the civil action in question.” 28 U.S.C. §
1391(c)(2); see also 5381 Partners LLC v. Shareasale.com,

Inc., No. 12–CV–4263, 2013 WL 5328324, at * 12
(E.D.N.Y. Sept.23, 2013) (“under Section 1391(c)(2), a
defendant that is a corporation ‘shall be deemed to
reside ... in any judicial district in which such defendant
is subject to the court's personal jurisdiction with respect
to the civil action in question.’ “ (quoting § 1391(c)
(2))); Indus. Quick Search, Inc. v. Miller, Rosado &
Algois, LLP, No. 09–CV–1340, 2013 WL 4048324, at
*2 (E.D.N.Y. Aug. 9, 2013) (noting that “the venue
question [under § 1391(c)(2) ] turns on whether the [district
court] has personal jurisdiction over this corporate
defendant.” (quoting § 1391(c) (2))).
Personal jurisdiction, in turn, is determined by “a twostep inquiry.” Licci ex rel.. Licci v. Lebanese Canadian
Bank, SAL, 732 F.3d 161, 169 (2d Cir.2013), reh'g denied,
No. 10–CV1306, 2013 W L 5700963 (2d Cir. Oct. 18,
2013) (citing Best Van Lines, Inc. v. Walker, 490 F.3d
239, 242 (2d Cir.2007) and Int' l Shoe Co. v. Washington,
326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)).
First, the Court “look[s] to the law of the forum state” 5
to determine whether there is personal jurisdiction. Id.
If there is personal jurisdiction under state law, the
Court still must consider whether the exercise of personal
jurisdiction over the out-of-state Defendant “comports
with due process protections established under the United
States Constitution.” Id.
5

“Forum state” refers to the state in which a lawsuit
is filed.

1. The Court Does Not Have Personal Jurisdiction.
*5 Under New York state l aw, a court has jurisdiction
over a non-domiciliary corporation that commits a
tortious act outside New York State but causes harm to
someone in the state, if that corporation “(i) regularly
does or solicits business, or engages in any other persistent
course of conduct, or derives substantial revenue from
goods used or consumed or services rendered, in the state,
or (i i) expects or should reasonably expect the act to
have consequences in the state and derives substantial
revenue from interstate or international commerce.” N.Y.
C.P.L.R. § 302(a)(3); Chloe v. Queen Bee of Beverly
Hills, LLC, 616 F.3d 158, 164 (2d Cir.2010). Here,
McCurdy & Candler is alleged to have committed a
tortious act outside of New York State in its actions with
respect to the property, and is a non-domiciliary entity,
as “a Georgia corporation,” (Am.Compl.¶ 13), whose
“principal address is located' in Atlanta, Georgia, (Id. ¶

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14). Therefore, McCurdy & Candler is subject to personal
jurisdiction in New York if it either “regularly does or
solicits business” in New York, or “should reasonably
expect the act to have consequences in the state.” N.Y.
C.P.L.R. § 302(a)(3)(i)-(i i); see also Levans v. Delta
Airlines, Inc., No. 12–CV–00773, 2013 WL 6841984, at
*5 (E.D.N.Y. Dec. 23, 2013) (“Pursuant to § 302(a)(3),
a court may exercise personal jurisdiction over a nondomiciliary who ... ‘commits a tortious act without the
state causing injury to person or property within the
state ... if he (i) regularly does or solicits business, or
engages in any other persistent course of conduct, or
derives substantial revenue from goods used or consumed
or services rendered, in the state, or (ii) expects or should
reasonably expect the act to have consequences in the
state and derives substantial revenue from interstate or
international commerce’ “ (citing § 302(a)(3))); Richtone
Design Grp., LLC v. Live Art, Inc., No. 12–CV–7652,
2013 WL 5904975, at *5 (S.D.N.Y. Nov. 4, 2013)
(same). Plaintiff has not alleged that McCurdy & Candler
“regularly does or solicits business” in New York, and
McCurdy & Candler states that it is a “Georgia limited
liability company which only advertises itself as a provider
of legal services” throughout Georgia and Tennessee.
(McCurdy Mem. ¶ 47.) Plaintiff also does not allege that
McCurdy & Candler should reasonably expect its actions
with respect to the property to have had consequences in
the state of New York. McCurdy & Candler's allegedly
unlawful actions were (1) facilitating the “questionable
assignment” of a security interest in the property from
MERS to Aurora Loan, and entering the assignment into
Georgia's land records, (Am.Compl.¶¶ 102–03), and (2) its
debt collection and attempted foreclosure activities with
respect to the property, (id. ¶¶ 90–97).
McCurdy & Candler's role in the assignment of security
interest by MERS to Aurora Loan Services had no
connection to the Eastern District of New York. The
assignment was prepared by an individual from Aurora
Loan Services located in Scottsbluff, Nebraska, stamped
with MERS's Delaware corporate seal, filed and recorded
in Fulton County, Georgia, and annotated with an
instruction to return to McCurdy & Candler in Atlanta,
Georgia. (A m. Compl. Ex. D.) Plaintiff acknowledges
that the assignment was filed with the state of Georgia.
(Am.Compl.¶ 103.) Nothing connected with the MERS
assignment to Aurora implicates the Eastern District of
New York—not the location of any of the people or
the entry of the assignment into the land records itself.

Similarly, all of McCurdy & Candler's activities with
respect to the debt collection and attempted foreclosure,
including all of McCurdy & Candler's communications
with Plaintiff, were sent to the property in Atlanta,
Georgia. (See Am. Compl. Ex. 100 (letter dated January
13, 2011); Ex. 200 (letter dated October 12, 2011);
McCurdy Mot. Ex. B (letter dated April 12, 2012)).
Likewise, Plaintiff's communications with McCurdy &
Candler were sent either to Nebraska or Atlanta. (See
Am. Compl. Ex. 400 (“Revocation of Power of Attorney”)
at 4; Ex. 500 (“Final Notice to Remove Property from
Alleged Non Judicial Foreclosure Sale”) at 2–3; Ex. 725
(“Qualified Written Request”) at 6.) Therefore, Plaintiff
has not alleged any action by McCurdy & Candler
that could have led McCurdy & Candler to “reasonably
expect” that its actions would have consequences in the
state of New York. Because McCurdy & Candler is
not domiciled in New York, does not regularly conduct
or solicit business in New York, and should not have
reasonably expected its actions with respect to the
property in Atlanta to have consequences in New York,
personal jurisdiction cannot be established over McCurdy
& Candler under N.Y. C.P.L.R. § 302(a)(3). 6
6

Even if Plaintiff could establish that McCurdy
& Candler is subject to personal jurisdiction in
New York under New York law, the assertion
of personal jurisdiction over McCurdy & Candler
in the Eastern District of New York would not
comport with the constitutional requirements of due
process. A defendant in a civil lawsuit is entitled
to “due process of law” under the Fifth and the
Fourteenth Amendments of the Constitution, which
means that such a defendant can only be subject to the
personal jurisdiction of a court when it has “certain
minimum contacts [with the forum state] such that the
maintenance of the suit does not offend traditional
notions of fair play and substantial justice.” Licci,
732 F.3d at 169 (quoting Int'l Shoe, 326 U.S. at 316).
Plaintiff does not allege that McCurdy & Candler
has conducted any business in New York, nor that
it has any contacts with New York, let alone the
“minimum contacts” that are required for personal
jurisdiction. All of the events alleged in the Amended
Complaint took place in Georgia, and McCurdy &
Candler's mailing address and place of incorporation
is in Georgia. Without more evidence of contacts
with New York, due process prohibits the exercise of
personal jurisdiction over McCurdy & Candler.

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2. McCurdy & Candler Does Not “Reside” in New
York
*6 Because McCurdy & Candler is not subject to the
personal jurisdiction of a court in any judicial district
in New York, it does not “reside” in New York for
venue purposes. See 28 U.S.C. § 1391(c)(2) (corporations
are deemed to reside, for purposes of venue, “i n any
judicial district in which such defendant is subject to the
court's personal jurisdiction with respect to the civil action
in question”); cf. Indus. Quick Search, Inc., 2013 WL
4048324, at * 4 (finding that corporate defendant was
subject to personal jurisdiction in the Southern District of
New York, and therefore that venue was proper in that
district); 5381 Partners LLC, 2013 WL 5328324, at * 12
(finding that venue was proper in the Northern District
of Illinois with respect to corporate defendant under §
1391(c)(2), as it was undisputed that defendant's principal
place of business was in that district). As a result, Plaintiff
has not satisfied the precondition to § 1391(b) (1)—that “al
l defendants are residents of the State in which the district
is located”—making venue improper under § 1391(b)(1).

ii. Venue is Not Proper Pursuant to Section 1391(b)(2)
Venue in the Eastern District of New York is not proper
under § 1391(b)(2), because “a substantial part of the
events or omissions giving rise to the claim” did not occur
in the Eastern District of New York, nor is “a substantial
part of [the] property that is the subject of the action ...
situated” in the Eastern District of New York. 28 U.S.C.
§ 1391(b)(2). To determine whether venue is proper under
§ 1391(b)(2), courts apply a two-part test: “First, a court
should identify the nature of the claims and the acts or
omissions that the plaintiff alleges give rise to those claims.
Second, the court should determine whether a substantial
part of those acts or omissions occurred in the district
where suit was filed, that is, whether ‘significant events
or omissions material to those claims ... have occurred in
the district in question.’ ” Deufrains v. Karcauskas, No.
12–CV–2576, 2013 WL 4806955, at *13 (E.D.N.Y. Sept.9,
2013) (citing Daniel, 428 F.3d at 432); see also Delgado
v. Villanueva, No. 12–CV–3113, 2013 WL 3009649, at *2
(S.D.N.Y. June 18, 2013) (same).
Plaintiff alleges violations of several state and federal laws
in connection with the making, transfer, and management
of the mortgage loan made on the property which is
his retirement home in Atlanta, Georgia. (See generally
A m. Compl.) Plaintiff does not allege that any acts

or omissions relevant to his claims occurred in the
Eastern District of New York; instead, Plaintiff alleges
that venue is proper based in part on the fact that
“the homeowner now lives in New York.” (Am. Compl.
¶ 9 (emphasis added).) However, none of the alleged
events or omissions, as pleaded by Plaintiff, took place
in the Eastern District of New York. Plaintiff entered
into a mortgage agreement with Bayrock to finance
the purchase of the property in Atlanta, Georgia, and
agreed to send his monthly payments to Alpharetta,
Georgia. (Am. Compl. Ex. A at 1–2.) As part of
this mortgage agreement, Plaintiff assigned a security
interest in the property to MERS, acting as the nominee
for Bayrock and its successors, which assignment was
recorded in Fulton County, Georgia. (Security Deed at
1, 3.) M ERS assigned the security interest to Aurora
Loan, which assignment took place in Fulton County,
Georgia, (Am.Compl.Ex.D), and the communications
from McCurdy & Candler to Plaintiff were mailed from
McCurdy & Candler in Georgia to Plaintiff at the address
of the property in Atlanta, Georgia. One communication
from a non-party, law firm McGinnis, Tessitore, W
utscher, L L P, originated in Chicago, Illinois. (A m.
Compl. Ex. 600.)
*7 Because no events, let alone any “substantial” events,
took place in the Eastern District of New York, venue
cannot be established based on a substantial occurrence
pursuant to § 1391(b) (2). 7 The fact that Plaintiff now lives
in the Eastern District of New York, without more, is not
a sufficient basis to establish venue pursuant to § 1391(b)
(2). 8 The fact that this action arises out of a mortgage
on a property located in Atlanta, Georgia, outside the
Eastern District of New York, further indicates that venue
is not proper in this District. See Adams v. U.S. Bank, NA,
No. 12–CV–4640, 2013 W L 5437060, at *5 (E.D.N.Y.
Sept. 27, 2013) (dismissing challenges to foreclosure and
eviction proceedings and noting “that claims regarding
[dismissed plaintiffs'] property should generally be filed in
the jurisdiction where the property is located and the claim
arose.” (citing 28 U.S.C. § 1391(b))).
7

Plaintiff's allegation that he is the victim of an
“anticipatory breach” of the Consent Order between
Aurora Bank and the federal government—assuming
it could be a valid basis for a claim—references only
Aurora Bank's place of incorporation in Delaware. (A
m. Compl. ¶ 68.) The Consent Order expressly states
“Nothing in this Stipulation or the Order, express or

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6

Gonsalves-Carvalhal v. Aurora Bank, FSB, Not Reported in F.Supp.3d (2014)
2014 WL 201502
implied, shall give to any person or entity, other than
the parties hereto, and their successors hereunder, any
benefit or any legal or equitable right, remedy or claim
under this Stipulation or the Order .” (Am. Compl.
Ex. 850 ¶ 12.) Plaintiff also acknowledges that “[t]here
is no defined right to sue granted to private individual
[sic] under the Consent Order for violations or breach
of agreement.” (Am.Compl.¶ 11.)

8

Although Plaintiff does not allege that he was based
in New York when he entered into the mortgage
agreement that gives rise to his claims, he does
include some communications to Defendants which
originated in New York, (see, e.g., Revocation
of Power of Attorney at 1, Qualified Written
Request at 5–6), attempting to rescind his mortgage
and otherwise make legal demands on Defendants.
Because these letters were sent subsequent to the
events that give rise to Plaintiff's claims, they do
not comprise a sufficient basis for establishing
venue under § 1391(b)(2), in light of the otherwise
overwhelming connections to Atlanta and Fulton
County, Georgia.

iii. Venue is Not Proper Pursuant to Section 1391(b)(3)
Venue in the Eastern District of New York is not proper
under § 1391(b)(3), because there is another district in
which this action “may otherwise be brought.” Section
1391(b)(3) provides that venue is proper in “any judicial
district in which any Defendant is subject to the court's
personal jurisdiction with respect to such action”—but
only “if there is no district in which an action may otherwise
be brought as provided in this section” (emphasis added);
see Daniel, 428 F.3d at 434 (“the phrase ‘if there is no
district in which the action may otherwise be brought’
indicates that venue may be based on that subsection
only if venue cannot be established in another district
pursuant to any other venue provision.”). Here, under
§ 1391(b)(2), venue would be proper in the Northern
District of Georgia, where a substantial part of the acts or
omissions that give rise to Plaintiff's claims took place, and
where the property that is the subject of the mortgage is
located. Therefore, 1391(b)(3) is not applicable, because,
contrary to its requirements, there is another district “in
which [the] action may otherwise be brought.” 28U.S.C.
§ 1391(b)(3); see also Daniel, 428 F.3d at 435 (finding
that, because plaintiffs could have brought a claim in the
Western District of Michigan under § 1391(b)(2), where
“a substantial part” of the alleged events giving rise to
the claim took place, “they cannot rely on § 1391(b)(3) to
support venue in the Western District of New York.”);

Safety Software Ltd. v. Rivo Software, Inc., No. 11–CV–
7433, 2012 WL 1267889, at *5 (S.D.N.Y. Apr.11, 2012)
(declining to apply § 1391(b)(3) where the action could
be brought in another district, noting that “[b]y the plain
language of the statute, however, [§ 1391(b)(3) ] applies
only if there is no other district in which the action may
be brought”).

iv. Transfer is Proper Under Section 1406
In sum, because venue in the Eastern District of New York
is not proper under any of the provisions of § 1391(b),
and McCurdy & Candler has timely objected to venue,
pursuant to 28 U.S.C. § 1406, the Court must either
dismiss the claims against McCurdy & Candler or transfer
them to a district where venue is proper. See Gonzalez,
651 F.3d at 324. In light of the fact that dismissal would
require pro se Plaintiff to incur additional filing costs,
and re-filing the Amended Complaint in the appropriate
district would delay the proceeding, the Court transfers
the claims against McCurdy & Candler to the Northern
District of Georgia. See Fredriksson v. Sikorsky Aircraft
Corp., Inc., No. 07–CV–0214, 2008 WL 752469, at *4
(E.D.N.Y. Mar.19, 2008) (transferring a case pursuant to
§ 1406 and observing that “Congress, by the enactment
of § 1406(a), recognized that ‘the interest of justice’ may
require that the complaint not be dismissed but rather that
it be transferred in order that the plaintiff not be penalized
by ... ‘timeconsuming and justice-defeating technicalities.’
”) (quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82
S.Ct. 913, 8 L.Ed.2d 39 (1962)); Int'l Flavors & Fragrances
Inc. v. Van Eeghen Int'l B.V., No. 06–CV–490, 2006 WL
1876671, at * 8 (S.D.N.Y. July 6, 2006) (“Dismissal is a
harsh remedy that is best avoided when another avenue is
open.”). 9 Although dismissal rather than transfer under
is encouraged when a case is a “sure loser,” Gonzalez,
651 F.3d at 324, or “clearly doomed,” Daniel, 428 F.3d
at 436, the Court cannot conclude that there is no merit
to any of Plaintiff's claims. See Zaltz v. JDATE, No. 12–
CV–3475, 2013 WL 3369073, at * 12 n. 8 (E.D.N.Y. July
8, 2013) (transferring under § 1404(a) “even if plaintiff's
claims might be difficult to sustain, it does not appear
that they are ‘clearly doomed’ ”). In particular, in light
of relevant Eleventh Circuit case law, Plaintiff may have
stated a claim against McCurdy & Candler for violations
of the Fair Debt Collection Practices A ct. 10
9

The Court transfers the claims as to McCurdy
& Candler, notwithstanding McCurdy & Candler's

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Gonsalves-Carvalhal v. Aurora Bank, FSB, Not Reported in F.Supp.3d (2014)
2014 WL 201502
argument that the Court lacks personal jurisdiction
over it. See Goldlawr, Inc. v. Heiman, 369 U.S.
463, 466, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962) (“The
language of § 1406(a) is amply broad enough to
authorize the transfer of cases, however wrong the
plaintiff may have been in filing his case as to venue,
whether the court in which it was filed had personal
jurisdiction over the defendants or not.”); see also
Deufrains v. Karcauskas, No. 12–CV–2576, 2013 WL
4806955, at * 14 (E.D.N.Y. Sept.9, 2013) (“A district
court has the authority [under § 1406] to transfer
a case to another district, even if the transferring
court does not have personal jurisdiction over the
Defendant.” (citing Goldlawr, 369 U.S. at 466, and
SongByrd, Inc. v. Estate of Grossman, 206 F.3d 172,
179 n. 9 (2d Cir.2000)); Brown v. City of New York,
No. 10–CV–5229, 2013 WL 3245214, at *8 (E.D.N.Y.
June 26, 2013) (28 U.S.C. § 1406(a) “permits a
court to transfer claims to another venue even if the
transferring court lacks personal jurisdiction over the
Defendants” (citing Goldlawr, 369 U.S. at 466–67)).

10

For example, Plaintiff alleges a claim against both
McCurdy & Candler and the Aurora Defendants
under the Fair Debt Collection Practices Act,
15 U.S.C. § 1692 et. seq., (Am.Compl.¶¶ 5, 91,
111.E), which McCurdy & Candler argues must
be dismissed because foreclosing on a mortgage is
not debt collection for purposes of the FDCPA.
(See McCurdy Mem. ¶ 20 (citing, inter alia, Warren
v. Countrywide Home Loans, Inc., 342 F. App'x
458, 460 (11 th Cir.2009); Beadle v. Haughey, No.
04–CV–272, 2005 W L 300060, at * 3 (D.N.H.
Feb. 9, 2005).) The October 12, 2011 and April
10, 2012 letters sent by McCurdy & Candler to
Plaintiff specifically state: “Notice pursuant to the
Fair Debt Collection Practices Act 15 USC 1692
Initial Communications Letter,” “This law firm is
acting as a debt collector and attempting to collect
a debt,” and, “As of the date of this letter, you
owe $138,847.65.” (Am.Compl.Exs.100, 200.) The
Eleventh Circuit has held that a letter featuring
identical language sent by law firms in Georgia,
attempting to collect a debt on behalf of mortgage
loan holders were attempts to collect a debt under the
FDCPA. See Bourff v. Rubin Lublin, LLC, 674 F.3d
1238, 1240–41 (11th Cir.2012) (“The FDCPA applies
to the notice here in question because the notice was
an attempt at debt collection. The notice stated that
Rubin Lublin had been retained to ‘collect the loan,’
stated in bold capital letters that it was ‘an attempt
to collect a debt,’ and advised Bourff to contact
Rubin Lublin to ‘find out the total current amount

needed to either bring your loan current or to pay off
your loan in full.’ ”). In addition, to the extent that
Plaintiff alleges that McCurdy & Candler engaged in
abusive debt collection practices by naming a false
creditor in its attempt to collect a debt, such a claim
is cognizable under the FDCPA. See id. at 1241;
Shoup v. McCurdy & Candler, LLC, 465 F. App'x 882,
885 (11th Cir.2012) (holding that plaintiff stated a
claim under the FDCPA by alleging that letter from
law firm attempting to collect a debt on a mortgage
loan falsely represented the name of the plaintiff's
creditor). In light of the Eleventh Circuit's case law on
these precise issues, and the factual similarity between
the allegations in Shoup and Plaintiff's allegations
here, the Court is not prepared to dismiss Plaintiff's
Complaint as failing to state a claim or find that
Plaintiff's case is a “sure loser.” See Gonzalez v. Hasty,
651 F.3d 318, 324 (2d Cir.2011).

c. Claims against the Aurora Defendants
*8 The Court also transfers Plaintiff's claims against the
Aurora Defendants pursuant to 28 U.S.C. § 1404(a) in the
interest of justice and for the convenience of the parties.
Because the Aurora Defendants waived their objection
to venue, transfer of the claims against them under §
1406 is not proper. See Azrelyant, 2000 WL 264345, at
* 3 (“If a party's objection to venue, however, is not
timely and sufficient, or if the party has waived the right
to object to venue, transfer under 1406(a) is improper
and unwarranted.”); Orb Factory, Ltd. v. Design Sci.
Toys, Ltd., 6 F.Supp.2d 203, 207 (S.D.N.Y.1998) (“Once
objections to venue are waived, any defect in venue is
cured, and the benefits of a § 1406(a) transfer for lack
of venue are no longer available.”). However, where, as
here, the conduct of the Aurora Defendants is “central
to the issues raised” by Plaintiff against McCurdy &
Candler, in the interest of justice and for the convenience
of the parties, rather than sever the claims and hear
only the claims against the Aurora Defendants, the Court
transfers the entire proceeding against all Defendants to
the Northern District of Georgia. See 28 U.S.C. § 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 or to any district or division to which
all parties have consented.”); Cottman Transmission Sys.,
Inc. v. Martino, 36 F.3d 291, 296 (3d Cir.1994) (stating
that when one of two co-Defendants objects to improper
venue and the other waives objection, if the co-Defendant
who has waived the objection “is central to the issues
raised by the plaintiff against those subject to transfer, ...

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8

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2014 WL 201502

the proper procedure in this case [is] to transfer the case
in its entirety....”); Indymac Mortgage Holdings, Inc. v.
Reyad, 167 F.Supp.2d 222, 239 (D.Conn.2001) (“[w]hen
the conduct of a co-Defendant as to whom venue is proper
is central to the issues raised by the plaintiff against
those subject to transfer, the grant of a severance would
not ordinarily be consistent with the sound exercise of
discretion.” (quoting Cottman, 36 F.3d at 296)); accord
Montoya v. Fin. Fed. Credit, Inc., 872 F.Supp.2d 1251,
1283 (D.N.M.2012); Barnes Grp., Inc. v. Midwest Motor
Supply Co., Inc., No. 07–CV–1164, 2008 WL 509193,
at *3–4 (S.D.Ohio Feb. 22, 2008); see also Brossart v.
Lynx Bus. Intelligence Consulting, Inc., No. 08–CV–0609,
2008 WL 2561592, at *2 (D.Ariz. June 25, 2008) (“[I]f
we transfer an action against a particular defendant for
improper venue, we may exercise our discretion to transfer
the rest of the action to any district where it might
have been brought for ‘the convenience of the parties
and witnesses' pursuant to 28 U.S.C. § 1404(a).” (citing
17 Moore's Federal Practice § 111.35[2] (3d ed.2006)));
WRIGHT & MILLER, 14D FED. PRAC. & PROC.
JURIS. § 3827 (3d ed. 2005) (“If venue is proper for some
Defendants but improper for others, the district court
has wide discretion. It may transfer the entire case to
another forum that would be proper for all the Defendants
as many courts have done. Alternatively, it may retain
the case as to those Defendants who have been properly
sued there and either transfer the severed portion of the
case for those Defendants for whom venue is improper
or dismiss the action as to those Defendants.” (citing
cases)); cf. Paul v. Shinseki, No. 09–CV–1591, 2010 WL
3927077, at *6 (E.D.N.Y. Sept. 29, 2010) (“Where, as here,
a district court finds venue improper with respect to a
given claim, it may as a matter of discretion transfer rather
than dismiss the improperly venued claim where transfer
is in the interest of justice.”).
*9 The claims against the Aurora Defendants may be
properly transferred pursuant to 28 U.S.C. § 1404(a).
The purpose of Section 1404(a) “is to prevent waste of
time, energy and money and to protect litigants, witnesses
and the public against unnecessary inconvenience and
expense.” Adams, 2013 WL 5437060, at *5 (citing
Blechman v. Ideal Health, Inc., 668 F.Supp.2d 399, 403
(E.D.N.Y.2009) and Van Dusen v. Barrack, 376 U.S.
612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). As
discussed above, this action could have been brought in
the Northern District of Georgia pursuant to § 1391(b), as
the “events or omissions” giving rise to Plaintiff's claims

took place in that district, and the property is located
there.
Under § 1404(a), a court determines whether a transfer
is warranted “for the convenience of the parties and
witnesses, in the interest of justice,” by analyzing various
factors including: “(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 *6 (citing N.Y. Marine &
Gen. Ins. Co. v. Lafarge N. Am., Inc., 599 F.3d 102, 112
(2d Cir.2010) and Phillips v. Reed Grp., Ltd., No. 07–CV–
3417, 2013 WL 3340293, at *5 (S.D.N.Y. July 1, 2013)).
“[S]ubstantial weight is accorded a plaintiff's choice of
forum.” Dornoch Ltd. ex rel. Underwriting Members
ofLloyd's Syndicate 1209 v. PBM Holdings, Inc., 666
F.Supp.2d 366, 372 (S.D.N.Y.2009) (citation omitted).
However, “when the transactions or facts giving rise to the
action have no material relation or significant connection
to plaintiff's chosen forum, then the plaintiff's choice is
not accorded the same ‘great weight’ and in fact is given
reduced significance.” Donde v. Romano, No. 09–CV–
04407, 2010 WL 3173321, at *7 (E.D.N.Y. Aug.10, 2010)
(internal quotation marks omitted) (quoting Romano v.
Banc of Am. Insurances Servs., 528 F.Supp.2d 127, 130
(E.D.N.Y.2007) and Hernandez v. Graebel Van Lines, Inc.,
761 F.Supp. 983, 990 (E.D.N.Y.1991))).
Here, the first and the seventh factors weigh in favor of
Plaintiff, who currently resides in the Eastern District of
New York and who, as an individual plaintiff proceeding
pro se, likely is of less means than the incorporated
Defendants. However, all of the remaining factors weigh
strongly in favor of litigating the claims against the
Aurora Defendants in the Northern District of Georgia.
The claims against the Aurora Defendants are essentially
disputes over Plaintiff's mortgage on the property which
is located in Atlanta, Georgia. Any witnesses to the
signing of the mortgage and the challenged assignments
are more likely to be located in the Northern District
of Georgia, as are Georgia state land records and other
relevant documents. See Crutchfield v. Country Wide
Home Loans, No. 02–CV–9092, 2003 WL 102879, at * 1–
2 (S.D.N.Y. Jan.10, 2003) (finding that venue was more
appropriate in Oklahoma district where property that
was the subject of a challenged mortgage was located,

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9

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2014 WL 201502

because “a critical element of the events at issue relates
to the mortgage financing of the Property ... and the
material witnesses and documents regarding that aspect
of the underlying transaction are in Oklahoma”). More
importantly, any of the witnesses who currently reside in
Georgia are outside this Court's subpoena power, raising
the costs and complicating the logistics of any discovery
that may be needed to resolve the claims against the
Aurora Defendants. See Fed.R.Civ.P. 45(b)(2) (providing
that “a subpoena may be served at any place: (A) within
the district of the issuing court; (B) outside that district but
within 100 miles of the place specified for the deposition,
hearing, trial, production, or inspection”); Crutchfield,
2003 WL 102879 at *2 (“The location of such witnesses
and documents within the Court's subpoena power is an
essential consideration in determining the appropriateness
and convenience of plaintiff's choice of forum.” (citing
AyalaBranch v. Tad Telecom, Inc., 197 F.Supp.2d 13, 15
(S.D.N.Y.2002) and Summit v. U.S. Dynamics Corp., No.
97–CV–9224, 2000 WL 502862, at *2 (S.D.N.Y. Apr.27,
2000))); Deufrains, 2013 WL 4806955, at * 16 (“The most
compelling factors to the Court in its finding that transfer
is in the interest of justice ... relate to the convenience
of witnesses and the access to judicial process to compel
unwilling witnesses to testify.”).
*10 In addition to the fact that most of the witnesses
likely live in Georgia and would not be subject to the
Court's subpoena power, the claims against both sets
of Defendants share many common facts. Severing and
addressing the claims against the Aurora Defendants in
the Eastern District of New York while permitting the
claims against McCurdy & Candler to proceed in the
Northern District of Georgia will effectively result in
duplicate litigation of Plaintiff's claims, taxing judicial
resources and burdening Plaintiff as well as Defendants.
McCurdy & Candler is a “foreclosure specialty” law
firm retained by at least one of the Aurora Defendants
to foreclose on the property after Plaintiff defaulted on
his mortgage. (Am. Compl. ¶¶ 13, 25; Exs. 100, 200.)
Plaintiff's Amended Complaint alleges that, subsequent to
the collapse of loan modification talks between Plaintiff
and Aurora Loan, “Defendant McCurdy made three
attempts to foreclose by non-judicial sale on behalf
of Aurora Loan Services, LLC,” (Am.Compl.¶¶ 22–
25), and “Plaintiff's Revocation notices were sent to
Aurora [Loan] and to McCurdy as a legal notification
to refrain them from their continued action under
their scheme to misrepresent their relationship with the

Plaintiff.” (Am.Compl.¶ 36.) Plaintiff also alleges that
McCurdy & Candler “knew or should have known”
that “MERS is an unlawful fiduciary and nominee
for Bayrock as a matter of law,” and that McCurdy's
“action to participate and encourage Aurora to proceed
is unconscionable.” (Id. ¶¶ 37–38.) Finally, Plaintiff notes
that the third attempt at foreclosure by McCurdy &
Candler occurred after Aurora Bank had signed a Consent
Order with the Office of Thrift Supervision. (Id. ¶ 42.)
While the claims against McCurdy & Candler could be
separated to focus solely on its role in attempting to
foreclose on Plaintiff's property, another court could not
address the claims against McCurdy & Candler without
significantly duplicating the litigation before this Court
involving the Aurora Defendants. See Brossart, 2008 WL
2561592, at *3 (transferring entire action from Arizona
to California where venue was improper as to one of two
defendants, and “a substantial part of the events giving
rise to all of plaintiff's claims occurred in” California
rather than in Arizona, because both defendants were
subject to personal jurisdiction of a California court, “a
majority of witnesses and evidence” were in California,
and a “district judge in California will have greater
familiarity with California law”). Because the conduct of
the Aurora Defendants is central to the issues raised by the
Plaintiff in the claims against McCurdy & Candler, which
are subject to transfer, the Court finds that severance
of the claims and transfer of only the claims against
McCurdy & Candler is not “consistent with the sound
exercise of discretion.” See Indymac, 167 F.Supp.2d at
239.

III. Conclusion
For the foregoing reasons, the Court grants McCurdy &
Candler's motion to transfer venue as to the claims against
McCurdy & Candler pursuant to 28 U.S.C. § 1406 and,
in the interest of justice, transfers the claims against the
Aurora Defendants pursuant to 28 U.S.C. § 1404(a). The
Aurora Defendants' motion to dismiss is dismissed with
leave to refile in the Northern District of Georgia. The
entire action shall be transferred to the Northern District
of Georgia.
*11 SO ORDERED:

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10

Gonsalves-Carvalhal v. Aurora Bank, FSB, Not Reported in F.Supp.3d (2014)
2014 WL 201502

All Citations
Not Reported in F.Supp.3d, 2014 WL 201502
End of Document

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11

Hayes v. Transcor America, LLC, Not Reported in F.Supp.2d (2009)
2009 WL 1795309

2009 WL 1795309
Only the Westlaw citation is currently available.
United States District Court,
E.D. Pennsylvania.
Lester M. HAYES
v.
TRANSCOR AMERICA, LLC, et al.
Civil Action No. 08–293.
|
June 23, 2009.
Attorneys and Law Firms
Emily J. Lawrence, Jason Belmont Conn, John Weber
McCauley, R. Brendan Fee, Morgan, Lewis, & Bockius
LLP, Philadelphia, PA, for Lester Murphy Hayes.
Leslie Miller Greenspan, Andre L. Dennis, Stradley,
Ronon, Stevens, & Young LLP, Philadelphia, PA, for
Transcor America, LLC, et al.

MEMORANDUM
PADOVA, District Judge.
*1 Plaintiff Lester Hayes brings this action pursuant
to 42 U.S.C. § 1983 and state common law against
Defendants TransCor America, LLC (“TransCor”),
Karen L. Oates, Carolyn Cooper, Kevin McCord,
Gary Underwood, Ernest Franklin, Don W. Bowden,
Robert Koch, and Mark Spickard (the “individual
Defendants”), alleging violations of his Eighth and
Fourteenth Amendment rights and intentional infliction
of emotional distress (“IIED”). Plaintiff's claims arise out
of a six-day prisoner extradition transport from North
Carolina to Pennsylvania in May 2007. Presently before
the Court is Defendants' Renewed Motion to Dismiss or
Transfer Venue, for which we held a hearing on June
11, 2009. For the following reasons, we deny the Motion
insofar as it seeks dismissal, but grant the Motion insofar
as it seeks a transfer of venue.

I. BACKGROUND 1
1
“ ‘In considering a motion to dismiss for improper
venue under [Rule 12(b)(3) ], the court must generally

accept as true the allegations in the complaint,
although the parties may submit affidavits in support
of their positions.’ ” Chester v. Beard, Civ. A. No. 07–
4742, 2008 WL 2310946, at *5 (E.D.Pa. June 2, 2008)
(quoting Fellner v. Phila. Toboggan Coasters, Inc.,
2005 WL 2660351, at *1 (E.D.Pa. Oct.18, 2005)). “
‘The court may examine facts outside the complaint to
determine proper venue, but must draw all reasonable
inferences and resolve all factual conflicts in the
plaintiff[’]s favor.' ” Id. (quoting Fellner, 2005 WL
2660351, at *1).

Plaintiffis a 67–year–old man who suffers from a
herniated disc, arthritis, severe spinal stenosis, high blood
pressure, and an enlarged prostate. (Am.Compl.¶¶ 23–24.)
Plaintiff's spinal condition makes it extremely painful for
him to sit or stand for extended periods of time, and his
prostate condition causes him to experience abnormally
frequent urgency to urinate—as often as every 20 to
30 minutes. (Id. ¶¶ 25–26.) Plaintiff takes a variety of
prescribed medications to treat his medical conditions. (Id.
¶¶ 28–29.)
In May 2007, while incarcerated in a Greensboro, North
Carolina jail, Plaintiff received notice of new criminal
charges filed against him in Philadelphia. (Id. ¶ 17.)
TransCor, the largest prisoner transportation company in
the country, was hired to bring Plaintiff to Philadelphia.
(Id. ¶ ¶ 8, 19.) Shortly before the transport set out on its
six-day journey, prison medical staff provided Defendants
with a supply of Plaintiff's medications and informed
Defendants of Plaintiff's medical needs. (Id. ¶ 31–32; see
also Pl.'s Ex. B.) However, Defendants neither catalogued
nor stored Plaintiff's medications to ensure their timely
administration and or to prevent their loss. (Am.Compl.¶
33.)
The transport departed from Greensboro on May 12,
2007, and was broken down into two, three-day legs.
(Id. ¶ 31.) The first leg involved travel through North
Carolina, South Carolina, and Tennessee, before stopping
overnight in Kentucky. (Id. ¶ 22.) During the second
leg, the transport continued through Kentucky, Virginia,
Maryland, Delaware, and New Jersey, before ultimately
arriving in Pennsylvania on May 18, 2007. (Id. ¶¶ 22,
56, 62.) All told, the transport spent scarcely an hour
in Pennsylvania, leaving Mount Holly, New Jersey, at
approximately 12:01 a.m. and arriving in Philadelphia at
approximately 1:35 a.m. (Id. ¶¶ 61–62; see also Defs.' Exs.
B, C.)

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2009 WL 1795309

Over the course of the entire six-day transport, the
individual Defendants refused to provide Plaintiff with his
medications, in spite of Plaintiff's numerous complaints
of back pain and other symptoms. (Am.Compl.¶¶ 35–36.)
Plaintiff also made repeated requests to use bathroom
facilities, which went unfulfilled because of a TransCor
policy that permitted bathroom breaks only every four to
five hours. (Id. ¶¶ 44–45.) Consequently, Plaintiff urinated
and defecated in his pants, and was forced to sit in his
soiled clothing for extended periods of time. (Id. ¶¶ 46,
49, 57.) In total, Plaintiff missed approximately 33 doses
of medication, requested to use the bathroom between
20 to 25 times, urinated on himself between 24 to 28
times, and defecated on himself at least three times. (Pl.'s
Resp. to Defs.' Interrog. at 6–10.) In this District, Plaintiff
missed five to six doses of medication, requested to use
the bathroom five to six times, urinated on himself at least
once, and defecated on himself at least once. 2 (Id. at 6,
8, 11.)
2

In his interrogatory responses, Plaintiff alleges that
these events occurred in Pennsylvania generally,
without specifically alleging that they occurred in
this District. Nevertheless, we take judicial notice
that Mount Holly, New Jersey, is approximately 30
miles away from Philadelphia. Moreover, the record
establishes that the transport took approximately
1.5 hours to travel between Mount Holly and
Philadelphia. As we must draw all reasonable
inferences in Plaintiff's favor, we find the acts that
Plaintiff alleges occurred in Pennsylvania occurred in
this District.

Defendants ask that we transfer this case to the Middle
District of Tennessee pursuant to 28 U.S.C. § 1404(a).
When a defendant moves pursuant to Federal Rule of
Civil Procedure 12(b)(3) to dismiss a case based on
improper venue, and we determine that venue is improper,
we must either dismiss the case or transfer it “to any
district or division in which it could have been brought.”
28 U.S.C. § 1406(a). If, on the other hand, we determine
that venue is proper in this District, we may transfer
the case “to any other district or division where it might
have been brought” “[f]or the convenience of parties and
witnesses, [or] in the interest of justice ....” Id. § 1404(a).
Defendants bear the burden of showing both that venue
in this District is improper and that transfer to another
district is justified. See Chester, 2008 WL 2310946, at
*5 (citing Fellner, 2005 WL 2660351, at *1); Jumara v.
State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.1995).
Although we find that this District is a proper venue, we
conclude that transferring the case to the Middle District
of Tennessee is appropriate under the circumstances.

A. Proper Venue
Because this case implicates our federal question
jurisdiction pursuant to 28 U.S.C. § 1331, proper venue
is governed by 28 U.S.C. § 1391(b). In his Amended
Complaint, Plaintiff asserts that this District is a proper
venue under § 1391(b)(2) because a substantial part of the
events giving rise to his claims occurred in this District.
We agree.

*2 Upon arriving in Philadelphia, Defendants handed
Plaintiff over to the Philadelphia Police Department
(“PPD”). (Am.Compl.¶¶ 62–63.) The “Prisoner Receipt”
that was filled out by Defendants and delivered to PPD
indicated that Plaintiff had no medications with him upon
arrival. (See Pl.'s Ex. A.) However, a PPD officer, Officer
Smith, found a container full of Plaintiff's medications
attached to Plaintiff's belongings. (Am.Compl.¶ 63.)
Plaintiff subsequently received medical care at the
Curran–Fromhold Correctional Facility in Philadelphia.
(Pl.'s Resp. to Defs.' Interrog. at 12.)

When a defendant challenges venue under § 1391(b)(2),
we undertake a two-part inquiry. First, we “ ‘identify
the nature of the claims and the acts or omissions that
the plaintiff alleges give rise to those claims.’ ” Chester,
2008 WL 2310946, at *7 (quoting Daniel v. Am. Bd. of
Emergency Med., 428 F.3d 408, 432 (2d Cir.2005)); see
also Cottman Transmissions Sys. v. Martino, 36 F.3d 291,
295 (3d Cir.1994) (first identifying the acts or omissions
that gave rise to the plaintiff's claims before determining
whether a substantial part of those acts or omissions
occurred in the district where the suit was filed).

II. DISCUSSION
Defendants ask us to dismiss this case because they
contend that the Eastern District of Pennsylvania is an
improper venue under 28 U .S.C. § 1391(b). Alternatively,

Second, we “ ‘determine whether a substantial part of
those events or omissions material to [those] claims ...
have occurred in the district in question.’ ” Chester,
2008 WL 2310946, at *7 (quoting Daniel, 428 F.3d at
432). “Substantiality is intended to preserve the element
of fairness so that a defendant is not haled into a

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2

Hayes v. Transcor America, LLC, Not Reported in F.Supp.2d (2009)
2009 WL 1795309

remote district having no real relationship to the dispute.”
Cottman, 36 F.3d at 294. Consequently, “ ‘[w]hen material
acts or omissions within the forum bear a close nexus
to the claims, they are properly deemed ‘significant’
and, thus, substantial ....' ” Leone, 574 F.Supp.2d at
484 (quoting Daniel, 428 F.3d at 432; see also Gulf Ins.
Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir.2005).
Conversely, “[e]vents or omissions that might only have
some tangential connection with the dispute in litigation
are not enough.” Cottman, 36 F.3d at 294; see also Leone,
574 F.Supp.2d at 484. Because § 1391 “ ‘does not require
a majority of the events take place here, nor that the
challenged forum be the best forum for the lawsuit to
be venued,’ ” Fellner, 2005 WL 2660351, at *3 (quoting
Park Inn Int'l, L.L.C. v. Mody Enters., Inc., 105 F.Supp.2d
370, 376 (D.N.J.2000)), “ ‘[i]t is irrelevant that amore
substantial part of the events took place in another
district, as long as a substantial part of the events took
place in [this] district as well.’ ” Rodriguez v. Smith, Civ.
A. No. 03–3675, 2005 WL 1484591, at *3 n. 5 (E.D.Pa.
June 21, 2005) (quoting Morris v. Genmar Indus., Inc., Civ.
A. No. 91–5212, 1993 WL 217246, at *5 (N.D.Ill. July
18, 1993)). At bottom, the substantiality inquiry is more
qualitative than quantitative. Daniel, 428 F.3d at 432.
*3 Turning to the first part of the inquiry, dealing with
the nature of Plaintiff's claims, we observe that Plaintiff
alleges that: (1) the individual Defendants violated
his Eighth and Fourteenth Amendment rights through
their intentional, wanton, and deliberate indifference to
his medical needs during the transport; (2) TransCor
violated his Eighth and Fourteenth Amendment rights
through the execution of its unconstitutional policy
by the individual Defendants during the transport;
and (3) all Defendants intentionally inflicted emotional
distress upon him through the conduct of the individual
Defendants during the transport. In essence, the acts or
omissions giving rise to all of Plaintiff's claims consist
of the individual Defendants' refusal to administer his
medications, as well as their forcing him to both soil
himself and sit in soiled clothing for extended periods of
time, pursuant to TransCor's allegedly unconstitutional
policy.
Turning to the second part of the inquiry, involving
substantiality, we observe that several instances of the
conduct giving rise to Plaintiff's claims allegedly occurred
in this District. 3 Although the number of acts or
omissions alleged to have occurred in this District is

relatively small, it is not insignificant. See, e.g., Katz
v. Mogus, 538 F.Supp.2d 538, 542–43 (E.D.N.Y.2007)
(finding venue proper where the conduct occurring within
the district gave rise to only 20 percent of the plaintiff's
damages); McCaskey v. Continential Airlines, Inc., 133
F.Supp.2d 514, 525 (S.D.Tex.2001) (finding venue proper
in the Southern District of Texas where the airline was
allegedly negligent for failing to cut short a cross-country
flight originating in Houston after the decedent suffered a
heart attack shortly after take off). More importantly, the
alleged within-District acts or omissions are qualitatively
central to Plaintiff's claims and comprise “ ‘part of the
historical predicate for the instant suit.’ “ Estate of Moore
v. Dixon, 460 F.Supp.2d 931, 936 (E.D.Wis.2006) (quoting
Master Tech Prods., Inc. v. Smith, 181 F.Supp.2d 910,
914 (N.D.Ill.2002)). While Plaintiff might not be able to
prevail on his claims solely on the basis of the acts alleged
to have occurred in this District, he likewise might not be
able to prevail on his claims without them. Consequently,
we find that Defendants' within-District acts or omissions
are sufficiently substantial for purposes of § 1391(b)(2)
because they “bear a close nexus” to Plaintiff's claims.
Leone, 574 F.Supp.2d at 484 (quoting Daniel, 428 F.3d
at 432). Defendants have not satisfied their burden of
establishing otherwise. Venue is therefore proper in this
District, and Defendants' Motion is denied insofar as it
seeks dismissal based on improper venue.
3

At the hearing, Defendants contended that no acts
or omissions relevant to Plaintiff's Monell-type claim
occurred in this District because the policy at issue
was established and enforced solely in Tennessee.
However, to hold a corporation that acts under
color of state law liable for its unconstitutional
policy, a plaintiff must establish that the execution
of that policy inflicted the injury alleged. See Monell
v. N.Y. City Dep't of Soc. Servs., 436 U.S. 658,
694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978); Natale
v. Camden County Corr. Facility, 318 F.3d 575,
583–84 (3d Cir.2003) (applying Monell to a private
corporation). Plaintiff has satisfactorily alleged that
the individual Defendants executed TransCor's policy
in this District.

B. Transferring Venue
In the alternative, Defendants have moved pursuant to
28 U.S.C. § 1404(a) to transfer this case to the Middle
District of Tennessee, where TransCor is headquartered
and where five of the eight individual Defendants reside. 4
Plaintiff has not asserted that the Middle District of

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Hayes v. Transcor America, LLC, Not Reported in F.Supp.2d (2009)
2009 WL 1795309

Tennessee is an improper venue under 28 U.S.C. § 1391(b),
but contends that we should keep the case here because
Defendants have failed to establish that transfer is proper.
We disagree.
4

Counsel for Defendants represented at the hearing
on this Motion that the three remaining individual
Defendants reside in Arkansas, Texas, and Kentucky.

*4 In deciding whether to transfer a case, we do not
confine our review to the three factors enumerated in
28 U.S.C. § 1404(a) (convenience of parties, convenience
of witnesses, and interests of justice), but consider the
more general public and private interests protected by
§ 1404(a). Jumara, 55 F.3d at 879. Because the burden
rests with Defendants to establish that transfer is proper,
they must show that “ ‘the balance of convenience of
the parties is strongly in [their] favor ....’ ” Shutte v.
Armco Steel Corp., 431 F.2d 22, 25 (3d Cir.1970) (quoting
Owatonna Mfg. Co. v. Melroe Co., 301 F.Supp. 1296, 1307
(D.Minn.1969)). We address the private and public factors
separately below.

1. Private factors
The private factors we must consider include:

[1] plaintiff's 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 the books and records
(similarly limited to the extent that
the files could not be produced in the
alternative forum).

Stone St. Servs., Inc. v. Breaux, Civ. A. No. 00–1904,2000
WL 876886, at *3 (E.D. Pa. June 19, 2000) (quoting
Jumara, 55 F.3d at 879). We find that the balance of these
factors favors transfer to Tennessee.

Traditionally, the court does not lightly disturb the
plaintiff's choice of venue because the plaintiff's choice
“is a paramount consideration in any determination of a
transfer request.” Shutte v. Armco Steel Corp., 431 F.2d
22, 25 (3d Cir.1970). In this case, however, Plaintiff does
not reside in this District, and has not resided here at
any time relevant to this litigation. 5 A plaintiff's choice
of forum is entitled to less deference when he does not
reside in the chosen forum, and is to be considered as but
one among several factors. Perretta v. Consol. Rail. Corp.,
Civ. A. No. 98–491, 1998 WL 316088, at *2 (E.D.Pa.
June 10,1998); see also New Image, Inc. v. Travelers Indem.
Co., 536 F.Supp. 58, 59 (E.D.Pa.1981); cf. Piper Aircraft
v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 70 L.Ed.2d
419 (1981) (noting that “a plaintiff's choice of forum is
entitled to greater deference when the plaintiff has chosen
the home forum” (citing Koster v. Am. Lumbermens Mut.
Cas. Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed.
1067 (1947))). Defendants' countervailing preference is
to litigate this case in the Middle District of Tennessee.
Accordingly, we find that the first two factors, the parties'
respective preferences, only modestly favor keeping the
case in this District.
5

When Plaintiff initiated this lawsuit, he was
incarcerated in a federal correctional facility in
Elkton, Ohio. (Am.Compl.¶ 7.) At the hearing,
Plaintiff's Counsel represented that Plaintiff resided
in Waymart, Pennsylvania, prior to his incarceration
and currently resides in a halfway house outside of
Scranton, Pennsylvania, both of which are in the
Middle District of Pennsylvania.

However, the third and fourth factors substantially favor
transfer. With respect to the third factor, we observe
that the vast majority of the acts or omissions giving
rise to Plaintiff's claims—including, most importantly,
the creation and enforcement of TransCor's allegedly
unconstitutional policy—occurred outside this District;
very few occurred in this District. With respect to the
fourth factor, we find that the collective burdens that
would be imposed on the eight individual Defendants
if the case were to remain here, where none of them
resides, heavily outweighs the burden that would be
imposed on the single Plaintiff if the case were transferred
to Tennessee. We also note that Defendants have a
constitutional right to be present at trial, which Plaintiff
does not enjoy.

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2009 WL 1795309

*5 Finally, the last two factors are neutral, as both
Plaintiff and Defendants have failed to establish, let alone
allege, that any of the witnesses they plan to call or the
documentary evidence they plan to use at trial would be
unavailable at trial in either this District or the Middle
District of Tennessee. In sum, the private factors weigh
in favor of transferring this case to the Middle District of
Tennessee.

2. Public factors
The public factors we must consider 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; and [5] the familiarity of the
trial judge with the applicable state
law in diversity cases.

Plaintiff's treating physician, Dr. Kaplan, currently
reside in this District. Any burden imposed upon the
Middle District of Tennessee in overseeing discovery
with respect to these two witnesses, however, is more
than outweighed by the burdens imposed on this
Court in overseeing discovery with respect to at least
six party witnesses in Tennessee.

The remaining factors are in equipoise. A judgment
issued either by this Court or by a federal court in
the Middle District of Tennessee would be equally
enforceable. Moreover, to the extent that a choice-oflaw question arises regarding which state's law governs
Plaintiff's common law IIED claim, we note that IIED is
not a “particularly complex or unsettled” area of law and
that “[j]udges in this district frequently apply foreign law
in diversity cases when there is no challenge to venue.”
Hatfield, Inc. v. Robocom Sys. Int'l, Inc., Civ. A. No.
98–4004,1999 WL 46563, at *2 (E.D.Pa. Jan. 15,1999). 7
Finally, although a factor not worthy of great weight, the
relative congestion of the respective courts slightly favors
transfer to the extent that Defendants' evidence shows
that the average Middle District of Tennessee judge has
fewer new cases per year than does the average judge in
this District,. See Leading Edge Logistics, Inc. v. Central
Trucking, Inc., Civ. A. No. 05–1299, 2005 WL 1417131, at
*2 (E.D.Pa. June 16, 2005) (citations omitted).
7

Stone St., 2000 WL 876886, at *3 (quoting Jumara, 55
F.3d 879–80). As with the private factors, we find that the
balance of the public factors favors transfer.
The second and fourth factors substantially favor
Defendants. Most of the decision makers and records
involved in Plaintiff's Monell-type claim against TransCor
are located in the Middle District of Tennessee, as are
a majority of the Defendants. The Middle District of
Tennessee is therefore in the best position to oversee
discovery relating to the bulk of the witnesses, parties,
6

and important documents in this case. Moreover, given
that this District is not Plaintiff's home forum, the Middle
District of Tennessee has a greater local interest in this
controversy, insofar as it involves the alleged unlawful
conduct of several of its residents, including a corporation
that has its principal place of business within that District's
boundaries.
6

Plaintiff's counsel represented at the hearing that
two of Plaintiff's witnesses, PPD Officer Smith and

We also note that Pennsylvania's and Tennessee's
respective prima facie IIED cases are virtually
identical. Compare Hoy v. Angelone, 554 Pa. 134,
720 A.2d 745, 753 (Pa.1998) (requiring (1) “extreme
and outrageous conduct” that (2) “intentionally or
recklessly causes” (3) “severe emotional distress to
another”) with Bain v. Wells, 936 S.W.2d 618, 622
(Tenn.1997) (requiring that the conduct complained
of must “(1) ... be intentional or reckless; (2) ... be so
outrageous that it is not tolerated by civilized society;
and (3) ... result in serious mental injury”).

In sum, the balance of the public factors weighs strongly
in favor of transferring this case to the Middle District of
Tennessee.

IV. CONCLUSION
*6 For the foregoing reasons, we find that this District
is a proper venue, but that transferring this case to the
Middle District of Tennessee is appropriate under 28
U.S.C. § 1404(a). Consequently, Defendants' Motion is
denied insofar as it seeks dismissal for improper venue,

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Hayes v. Transcor America, LLC, Not Reported in F.Supp.2d (2009)
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but granted insofar as it seeks transfer of venue. An
appropriate Order follows.

ORDER
AND NOW, this 23rd day of June, 2009, upon
consideration of Defendants' Renewed Motion to Dismiss
or Transfer Venue (Docket No. 31), Plaintiff's response
and Defendants' reply thereto, and the arguments of
counsel at a hearing on this Motion held on June 11, 2009,
IT IS HEREBY ORDERED as follows:

2. Defendants' Motion to Dismiss (Docket No. 31) is
DENIED in part and GRANTED in part. The Motion is
denied to the extent that it seeks dismissal for improper
venue, but granted to the extent that it seeks a venue
transfer.
3. This action is TRANSFERRED to the United States
District Court for the Middle District of Tennessee.

All Citations
Not Reported in F.Supp.2d, 2009 WL 1795309

1. Defendants' Motion for Leave to File a Reply (Docket
No. 33) is GRANTED.
End of Document

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6

Karn v. PTS of America, LLC, Not Reported in Fed. Supp. (2017)
2017 WL 4162251

2017 WL 4162251
Only the Westlaw citation is currently available.
United States District Court, D.
Maryland, Southern Division.
William Jeffrey KARN, Plaintiff,
v.
PTS OF AMERICA, LLC, Defendants.

both claims under the Maryland Declaration of Rights
shall be dismissed. The 42 U.S.C. § 1983 claim under
the Fourteenth Amendment due process clause shall be
dismissed against PTS but shall proceed against the John
Doe defendants.
1

Civil Action No. GJH-16-3261
|
Signed September 18, 2017
|
Filed 09/19/2017
Attorneys and Law Firms
Jay Paul Holland, Timothy Francis Maloney, Alyse
Lauren Prawde, Joseph Greenwald and Laake PA,
Lawrence Roger Holzman, The Holzman Law Firm,
Greenbelt, MD, for Plaintiff.
Eric Matthew Rigatuso, Eccleston and Wolf PC,
Hanover, MD, for Defendants.

I. BACKGROUND
A. Factual Background 2

MEMORANDUM OPINION
GEORGE J. HAZEL, United States District Judge
*1 Plaintiff William Jeffrey Karn brings this action
against Defendants PTS of America, LLC d/b/a
Prisoner Transportation of America (“PTS”) and
John Does #1-6 (collectively, “Defendants”) alleging
various constitutional violations under 42 U.S.C.
§ 1983, violations of Articles 24 and 26 of the
Maryland Declaration of Rights, and state common law
claims, including negligence and intentional infliction
of emotional distress, resulting from PTS’s transport
of Karn, a pre-trial detainee, from Maryland to South
Carolina in December 2015. Presently pending before the
Court is Defendant PTS’s Partial Motion to Dismiss for
Failure to State a Claim. ECF No. 9. 1 A hearing on the
Motion was held on September 13, 2017. See Loc. R.
105.6 (D. Md. 2016). For the following reasons, the Partial
Motion to Dismiss shall be granted, in part, and denied,
in part. The claims of intentional infliction of emotional
distress; negligent hiring, training, and supervision; the 42
U.S.C. § 1983 claim under the Fourth Amendment; and

Plaintiff’s Complaint asserts a total of eight causes
of action: Count I: Negligence; Count II: Intentional
Infliction of Emotional Distress; Count III: Negligent
Hiring, Training, and Supervision, Count IV: False
Imprisonment; Count V: Violation of 42 U.S.C.
§ 1983—Unlawful Arrest, Seizure, and Detention;
Count VI: Violation of 42 U.S.C. § 1983 Mistreatment
in Custody; Count VII: Violations of Article 24 and
26 of the Maryland Declaration of Rights Excessive
Force; and Count VIII: Violations of Article 24 and
26 of the Maryland Declaration of Rights—Loss
of Liberty. ECF No. 1 at 9-19. Defendant’s Partial
Motion to Dismiss requests dismissal of Counts II,
III, IV, V, VI, VII, and VIII. ECF No. 9. Plaintiff
withdraws Counts IV and VI in his Opposition. See
ECF No. 14-1 at 1. Thus, this Memorandum Opinion
will address only Counts II, III, V, VII, and VIII.

2

Unless stated otherwise, the facts are taken from the
Complaint and assumed to be true.

William Karn is an adult resident of the State of
Maryland. ECF No. 1 ¶ 3. PTS is a Tennessee corporation
and private company that provides extradition and
detainee transportation services. Id. ¶ 4. PTS employs
drivers and guards to transport prisoners and detainees
between jurisdictions. Id. ¶ 5. At all times relevant to this
action, Plaintiff was a pre-trial detainee in the custody of
PTS. See id. ¶ 7.
On or about December 9, 2015, Plaintiff was arrested
in Montgomery County, Maryland for failure to timely
pay child support in Horry County, South Carolina.
ECF No. 1 ¶ 8. Plaintiff waived an extradition hearing
and was taken to a facility in Montgomery County to
await transport to South Carolina. See id. ¶¶ 9-10. On
the night of December 23, 2015, Defendants arrived to
retrieve Plaintiff from the facility. Id. ¶¶ 10-11. Defendants
handcuffed Plaintiff, strapped ankle cuffs on his legs, and
ran a chain link around his midsection. Id. ¶ 12. Plaintiff

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Karn v. PTS of America, LLC, Not Reported in Fed. Supp. (2017)
2017 WL 4162251

alleges that the handcuffs were secured so tightly that the
pressure on his wrists, nerves, tissue and bones made it
difficult for him to open his hands, and that his fingers
became numb. Id. ¶ 14. Plaintiff informed Defendants of
this problem repeatedly, but Defendants ignored him. Id.
¶ 15. Defendants escorted Plaintiff out to a white van,
and when Plaintiff asked how long it would take to get to
South Carolina, Defendants told him not to worry about
it and to “just get in the fucking van.” Id. ¶ 16.
*2 When Karn entered the van, there were already
fourteen other prisoners inside, some of whom had been
travelling for fourteen days at that point. ECF No. 1 ¶
18. Inside the van, the prisoners were seated on eightinch metal benches, shoulder to shoulder, with their
knees pressed up against a central metal divider. Id. ¶¶
27-28. The prisoners were not secured with seatbelts.
Id. ¶ 30. Plaintiff would spend the next ten days in
this van, traveling through nine different states including
Maryland, Virginia, West Virginia, Ohio, Kentucky,
Tennessee, Arkansas, and North Carolina, to get to South
Carolina. Id. ¶ 19. According to Plaintiff, Defendants
took a circuitous route that passed through multiple states
more than once, id. ¶ 20, and involved several side-trips
that were “completely unrelated to the transport of the
prisoners,” including a stop “at an out-of-the way airport
so that PTS could send one guard/driver on vacation.” Id.
¶ 21. Over the course of the trip, the van travelled to many
different jails, dropping off prisoners and picking up new
ones. Id. ¶ 56. The PTS guards alternated eighteen-hour
shifts driving, sometimes reaching “speeds up to 95 miles
per hour,” and other times apparently “falling asleep at
the wheel.” Id. ¶¶ 24-25.
During the trip, Plaintiff and the other prisoners would
“be in the back of the van on the road for 36 hours
without respite.” ECF No. 1 ¶ 22. Because Defendants
did not secure Plaintiff or the other prisoners with seat
belts, as the van “careened and bounced its way through
the route,” the men were thrown around the back of the
van, into each other, the metal divider, and the ceiling.
Id. ¶ 30. According to Plaintiff, these conditions made
sleeping impossible. Id. ¶ 31. His inability to move or stand
up for long periods of time also caused him to develop
“painful boils, rashes, and abrasions.” Id. ¶ 29. Because
the windows of the van were blacked out, much of the time
was spent in complete darkness. Id. ¶ 32. The temperature
was warm, and “there was little air” in the compartment.
See id. ¶ 36.

Access to food and water varied widely, and was subject to
the whim of the guards. ECF No. 1 ¶ 34. Typically, every
six to eight hours, the guards would stop at a McDonalds
and purchase “a small hamburger from the $1.00 menu”
and a twelve-ounce bottle of water for each prisoner. Id. ¶
33. This meal schedule was largely inconsistent, however,
and at least once, the prisoners were allegedly not given
food or water for almost twice the six hour period. Id.
¶ 34. Additionally, the guards made minimal effort to
control the prisoners, and on more than one occasion,
other prisoners stole Plaintiff’s food and water, leaving
him with nothing to eat or drink. Id. ¶ 35. Plaintiff alleges
that he was dehydrated for most of the journey, because
the twelve-ounce bottle of water was not sufficient. Id. ¶
36.
Some of the men also fought with each other by headbutting and biting one another. ECF No. 1 ¶ 58. To quell
this behavior, Defendants would “indiscriminately pepper
spray the entire rear compartment” of the van, including
Plaintiff, even though he had not been fighting. Id. ¶ 59.
“Shackled and bound at the waist,” Plaintiff was unable to
rub his eyes or splash water to rinse his eyes of the pepper
spray. Id. ¶¶ 40, 59. At the end of one of the thirty-six
hour stretches in the van, Plaintiff alleges that he became
numb in the legs, which diminished his ability to stand
up and exit the van. Id. ¶ 41. In response, Defendants
pushed Plaintiff out of the van, causing Plaintiff to fall
onto his side and injure his shoulder. Id. ¶¶ 42-44. Plaintiff
was unable to brace his fall because of the shackles and
handcuffs. Id. ¶ 43. Plaintiff alleges that he made no
complaints about this because the guards stood over him
“with hands on their weapons,” and he was never treated
for this injury. Id. ¶ 44.
When it came time for the prisoners to urinate or have
a bowel movement, Defendants expected the prisoners to
urinate “into their empty water bottles.” ECF No. 1 ¶
45-46. However, because the men were shackled, many
of them ended up urinating on the van’s floor and on
themselves. Id. ¶ 47. On multiple occasions, Plaintiff and
other prisoners also defecated on themselves, because they
could not contain their bowel movements any longer. Id.
¶¶ 48-49. One particular prisoner seated next to Plaintiff
suffered from a form of irritable bowel syndrome, and
had “to beg the guards to be permitted to move his
bowels.” Id. ¶ 50. Eventually, Defendants threw a plastic
garbage bag in the back of the van and told the prisoner

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to use it. Id. Plaintiff attempted to help the man pull his
pants down and use the bag in the crowded space, but
these efforts were unsuccessful, and the prisoner defecated
everywhere, including on Plaintiff’s “leg, arms, clothing,
and the floor.” Id. ¶ 52. Defendants would not allow
Plaintiff to bathe or change clothing. Id. ¶ 53.
*3 Plaintiff alleges that the combination of urine, open
feces, vomit, and other body odors in the van “was
horrific.” ECF No. 1 ¶ 54. The van had allegedly
transported “other prisoners in the same circumstances”
before Plaintiff, and Defendants did not clean it between
prisoners, or for the duration of Plaintiff’s journey. Id.
¶¶ 53-56. Throughout Plaintiff’s transport, Defendants
also did not allow him to use a phone to contact his
family or friends. Id. ¶ 60. Plaintiff alleges that he still
suffers from the physical pain, harm, and emotional
distress of this experience, and “will require treatment into
the foreseeable future.” Id. ¶¶ 65-66. He states that he
continues to “relive[ ] the pain and torment,” id. ¶ 66, and
to date, still experiences “numbness and pain in the fingers
of his left hand,” id. ¶ 39, and pain in his shoulder. Id. ¶¶
44.

B. Procedural History
Plaintiff filed the instant Complaint against PTS, and
six unnamed employees, asserting eight causes of action:
Count I: Negligence; Count II: Intentional Infliction
of Emotional Distress (“IIED”); Count III: Negligent
Hiring, Training, and Supervision; Count IV: False
Imprisonment; Count V: Violation of 42 U.S.C. § 1983
– Unlawful Arrest, Seizure, and Detention; Count VI:
Violation of 42 U.S.C. § 1983 – Mistreatment in Custody;
Count VII: Violations of Article 24 and 26 of the
Maryland Declaration of Rights Excessive Force; and
Count VIII: Violations of Article 24 and 26 of the
Maryland Declaration of Rights—Loss of Liberty. ECF
No. 1 at 9-19. Plaintiff seeks judgment against Defendant
in “an amount in excess of $75,000.00, plus interest and
costs, and punitive damages, plus attorneys' fees, interest
and costs.” See id.
Defendant PTS filed an Answer to Count I, negligence,
and a Partial Motion to Dismiss with respect to the
remaining counts. In Plaintiff’s Opposition, Plaintiff
withdrew Count IV, false imprisonment, and Count VI,
the Section 1983 claim for mistreatment in custody. See

ECF No. 14-1 at 1. Therefore, this Memorandum Opinion
will address only Counts II (intentional infliction of
emotional distress), III (negligent hiring, training and
supervision); V (the Section 1983 claim for unlawful
arrest, seizure and detention); VII (Maryland Declaration
of Rights Excessive Force); and VIII (Maryland
Declaration of Rights Loss of Liberty).

II. STANDARD OF REVIEW
Defendants may “test the adequacy of a complaint by way
of a motion to dismiss under Rule 12(b)(6).” Prelich v.
Med. Res., Inc., 813 F. Supp. 2d 654, 660 (D. Md. 2011)
(citing German v. Fox, 267 Fed.Appx. 231, 233 (4th Cir.
2008)). Motions to dismiss for failure to state a claim do
“not resolve contests surrounding the facts, the merits of
a claim, or the applicability of defenses.” Prelich, 813 F.
Supp. 2d at 660 (citing Edwards v. City of Goldsboro, 178
F.3d 231, 243 (4th Cir. 1999)). To overcome a Rule 12(b)
(6) motion, a complaint must allege enough facts to state
a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). A claim is plausible when “the plaintiff
pleads factual content that allows the Court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
In evaluating the sufficiency of the Plaintiff’s claims, the
Court accepts factual allegations in the complaint as true
and construes the factual allegations in the light most
favorable to the Plaintiff. See Albright v. Oliver, 510 U.S.
266, 268 (1994); Lambeth v. Bd. of Comm'rs of Davidson
Cty., 407 F.3d 266, 268 (4th Cir. 2005). However, the
complaint must contain more than “legal conclusions,
elements of a cause of action, and bare assertions devoid
of further factual enhancement.” Nemet Chevrolet, Ltd.
v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009). The court should not grant a motion to dismiss for
failure to state a claim for relief unless “it is clear that no
relief could be granted under any set of facts that could
be proved consistent with the allegations.” GE Inv. Private
Placement Partners II v. Parker, 247 F.3d 543, 548 (4th
Cir. 2001) (citing H.J. Inc. v. Northwestern Bell Tel. Co.,
492 U.S. 229, 249-50) (1989)).

III. ANALYSIS
A. Intentional Infliction of Emotional Distress

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*4 To state a common law claim for IIED, Plaintiff must
allege that: “(1) the defendant’s conduct was intentional
or reckless; (2) the conduct was extreme and outrageous;
(3) there was a causal connection between the wrongful
conduct and the emotional distress; and (4) that the
emotional distress was severe.” Harris v. Jones, 281 Md.
560, 566 (1977). In Maryland, an IIED claim is “rarely
viable,” Borchers v. Hyrchuk, 126 Md. App. 10, 19 (1999),
and courts have imposed “liability sparingly and ... limited
the tort to situations where the ‘wounds are truly severe
and incapable of healing themselves.’ ” Lee v. Queen
Anne’s Cty. Office of Sheriff, No. CIV.A. RDB-13-672,
2014 WL 476233, at *16 (D. Md. Feb. 5, 2014) (quoting
Solis v. Prince George’s Cty., 153 F. Supp. 2d 793, 804
(D. Md. 2001)). Accordingly, an IIED claim is subject
to a heightened pleading standard, and each element of
the claim must be “pled with specificity.” Washington v.
Maynard, No. CV GLR-13-3767, 2016 WL 865359, at *10
(D. Md. Mar. 7, 2016) (citing Bagwell v. Peninsula Reg'l
Med. Ctr., 665 A.2d 297, 319 (Md. Ct. Spec. App. 1995);
Foor v. Juvenile Servs. Admin., 552 A.2d 947, 959 (Md. Ct.
Spec. App. 1989)). Defendant contends that Plaintiff has
not alleged facts sufficient to satisfy the first, second and
fourth elements of IIED.
To adequately plead the first element of an IIED claim,
a plaintiff must allege that defendant either “desired to
inflict severe emotional distress, knew that such distress
was certain or substantially certain to result from his
conduct, or acted recklessly in deliberate disregard of a
high degree of probability that emotional distress would
follow.” Brengle v. Greenbelt Homes, Inc., 804 F. Supp.
2d 447, 452 (D. Md. 2011) (quoting Foor, 78 Md. App. at
175).
As to the second element, the defendant’s conduct must
be “so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community.” Washington, 2016 WL 865359, at *11 (citing
Harris, 380 A.2d at 614). “The conduct must strike to
the very core of one’s being, threatening to shatter the
frame upon which one’s emotional fabric is hung.” Id.
(citing Hamilton v. Ford Motor Credit Co., 502 A.2d 1057,
1064 (Md. Ct. Spec. App. 1986)). In assessing this element,
“courts should consider multiple factors, including the
context in which the conduct occurred, the personality of
the plaintiff and [his] susceptibility to emotional distress,
and the relationship between the defendant and plaintiff.”

Brengle, 804 F. Supp. 2d at 453. In particular, “the extreme
and outrageous character of the defendant’s conduct may
arise from his abuse of a position, or relation with another
person, which gives him actual or apparent authority over
him, or power to affect his interests.” Harris, 380 A.2d at
616.
With respect to the fourth element, the plaintiff must show
that he suffered “a severely disabling emotional response
to the defendant’s conduct, and that the distress was so
severe that no reasonable man could be expected to endure
it.” Solis v. Prince George’s Cty., 153 F. Supp. 2d 793, 804
(D. Md. 2001) (quoting Thacker v. City of Hyattsville, 762
A.2d 172, 197 (Md. Ct. Spec. App. 2000)). To be severe,
“emotional distress need not produce total emotional
disablement, but it must render the plaintiff unable to
function and tend to necessary matters.” Washington,
2016 WL 865359, at *11 (citing Reagan v. Rider, 70
Md. App. 503, 512 (1987)). To prevail, the plaintiff must
show the “truly devastating effect of the conduct [he was]
subjected to.” Kashaka v. Baltimore Cty., Maryland, 450
F. Supp. 2d 610, 620 (D. Md. 2006) (quoting Pemberton v.
Bethlehem Steel Corp., 66 Md.App. 133 (Md. 1986)).
Here, Plaintiff has pleaded sufficient factual matter as
to the first three elements of IIED but not the fourth.
Taking the allegations in the Complaint as true, Plaintiff
has alleged that PTS and its employees knowingly created
and perpetuated a situation that was dehumanizing and
outrageous, causing Plaintiff emotional distress. Plaintiff
alleges that he was forced to sit shoulder to shoulder
with fourteen other men, chained at the hands, feet, and
waist, on metal benches in the back of a van for ten days.
ECF No. 1 ¶¶ 18-19, 27-28, 58. Plaintiff was required to
sit in the back of this van for thirty-six hour periods of
time “without respite.” Id. ¶ 22. At most, Plaintiff was
provided a small hamburger and a twelve-ounce bottle of
water every six to eight hours. Id. ¶¶ 33-35. In response to
fighting among others, Plaintiff was subjected to bursts of
pepper spray in a confined space, and subsequently denied
medical treatment. Id. ¶ 59. Plaintiff also told the guards
that his shackles were too tight, but these complaints
were ignored, and when Plaintiff was unable to stand, the
guards pushed him out of the van, injuring his shoulder.
¶¶ 15, 38-39, 41-42. The PTS guards expressly expected the
prisoners to openly urinate into their empty water bottles
and defecate into plastic bags. Id. ¶ 45-49. According to
the Complaint, when Plaintiff attempted to help a sick
prisoner defecate into a bag, the feces spilled all over him

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and the floor, and the guards did not allow Plaintiff to
bathe or change clothing. ¶¶ 52-53.
*5 Drawing all reasonable inferences in favor of
Plaintiff, Defendants knew that emotional distress would
result from their conduct or acted in reckless disregard
of the high probability that it would occur, and the
conduct went “beyond all possible bounds of decency,
and ... [was] atrocious, and utterly intolerable in a
civilized community.” Harris v. Jones, 281 Md. at 567.
Bolstering this conclusion is the fact that this conduct
occurred while Plaintiff was in the custody and control
of Defendants for ten days. Cf. Gray v. Kern, 124 F.
Supp. 3d 600, 616 (D. Md. 2015) (noting that “where
the defendant is in a peculiar position to harass the
plaintiff, and cause emotional distress, his conduct will
be carefully scrutinized”). Defendants assumed a position
of authority over Plaintiff, and were responsible for his
health and safety during transport. The alleged abuse of
this power, and the degradation of Plaintiff that ensued,
was outrageous.
Nevertheless, while Plaintiff has alleged that he “relives
the pain and torment to this date ... and he will require
treatment into the foreseeable future,” ECF No. 1 ¶ 66,
and “continues to suffer humiliation and embarrassment,
and severe and extreme emotional distress,” id. ¶ 79, such
allegations are insufficient to plead “a severely disabling
emotional response to the defendant’s conduct ... so severe
that no reasonable man could be expected to endure it.”
Thacker v. City of Hyattsville, 762 A.2d 172, 197 (Md.
Ct. Spec. App. 2000). Indeed, such conclusory statements
of emotional distress are routinely rejected by Maryland
courts for purposes of IIED claims. See. e.g., Templeton
v. First Tenn. Bank N.A., No. CIV.WDQ-09-3280, 2010
WL 2292493, at *5 (D. Md. June 3, 2010), aff'd in part,
vacated in part on other grounds, 424 Fed.Appx. 249
(4th Cir. 2011) (finding allegations that plaintiff suffered
“severe mental anxiety” and “extreme emotional distress
for which she incurred medical costs” were insufficient
to constitute severe distress); Griffin v. Clark, No. RWT
11-2461, 2012 WL 4341677, at *3 (D. Md. Sept. 20, 2012)
(dismissing IIED claim and noting that “Maryland courts
have found that mere embarrassment, public humiliation,
feelings of inferiority, or shame do not rise to the level
of severe emotional distress.”); Takacs v. Fiore, 473 F.
Supp. 2d 647, 652 (D. Md. 2007) (dismissing IIED claim
where plaintiff did “not allege that she has been unable
to function on a daily basis, even if her functioning is

presumably affected by her psychological and physical
distress.”). Here, Plaintiff has not, for example, alleged
that he requires psychological treatment, that he was ever
hospitalized for his mental anguish, or that he is no longer
able to work or function normally. For this reason, the
IIED claim must be dismissed.

B. Negligent Hiring, Training, and Supervision
Maryland has recognized that an employer has an
“obligation to the public to use due care in selecting and
retaining only competent and careful employees.” Jarvis
v. Securitas Sec. Servs. USA, Inc., No. 11-CV-00654AW, 2012 WL 527597, at *6 (D. Md. Feb. 16, 2012),
aff'd sub nom., Jarvis v. Contractor Securitas Sec., 474
Fed.Appx. 271 (4th Cir. 2012) (citing Henley v. Prince
George’s Cty., 60 Md. App. 24 (Md. Ct. Spec. App.
1984)). To state a common law claim for negligent
hiring, training, or supervision, Plaintiff must allege: “(1)
the existence of an employment relationship; (2) the
employee’s incompetence; (3) the employer’s actual or
constructive knowledge of such incompetence; (4) the
employee’s act or omission causing the plaintiff’s injuries;
and (5) the employer’s negligence in hiring, [training, or
supervising the employee] ... as the approximate cause of
plaintiff’s injuries.” Jarvis, 2012 WL 527597, at *5 (citing
Latty v. St. Joseph’s Soc. of Sacred Heart, Inc., 198 Md.
App. 254, 272 (Md. Ct. Spec. App. 2011)); see also Bryant
v. Better Bus. Bureau, 923 F. Supp. 720, 751 (D. Md.
1996) (noting that for a negligent training and supervision
claim, the plaintiff must allege that employer knew or
should have known of the employee’s “conduct or general
character which would have caused a prudent employer in
these circumstances to have taken action.”).
*6 “Under Maryland law, an employer’s liability in this
regard is not to be reckoned simply by the happening
of the injurious event. Rather, there must be a showing
that the employer failed to use reasonable care in making
inquiries about the potential employee or in supervising
or training the employee.” Gay v. United States, 739 F.
Supp. 275, 277 (D. Md. 1990) (citing Cramer v. Housing
Opportunities Commission, 304 Md. 705, 501 A.2d 35
(1985)). Here, while Plaintiff has alleged the existence
of an employment relationship between the guards or
drivers and PTS, and incompetent conduct that injured
Plaintiff, the Complaint is devoid of actual facts about
PTS’s training and supervision, or about PTS’s selection

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of any particular employee nor does Plaintiff allege prior
incidents of misconduct involving these guards or drivers
that would have given Defendants actual or constructive
notice of their incompetence. Thus, Keene v. Hawkins, No.
2:13-CV-49, 2015 WL 7180695, at *1 (N.D.W. Va. Feb.
20, 2015), relied on by Plaintiff, is distinguishable. There,
the plaintiff alleged five prior incidents of misconduct by
the officer at issue, placing the defendant county on notice
of the officer’s tendency towards excessive force. See id. at
*1, 6. By contrast, no such allegations are made here. 3
3

To the extent Plaintiff contends that the opportunity
to conduct discovery would lead to “attestations from
prisoners previously transported by Defendant,”
ECF No. 14-1 at 12, Plaintiff is asking the Court to
grant him the keys to discovery on this issue based
upon conclusory allegations. Such an approach is
clearly inconsistent with the dictates of Iqbal, and
has been routinely rejected by courts. Ashcroft v.
Iqbal, 556 U.S. 662, 678-79 (noting that the Federal
Rules of Civil Procedure do “not unlock the doors
of discovery for a plaintiff armed with nothing more
than conclusions.”); see also Young v. CitiMortgage,
Inc., No. 5:12CV079, 2013 WL 3336750, at * 12 (W.D.
Va. July 2, 2013) (noting that “[t]he discovery process
is not a fishing expedition, and a party is not entitled
to discovery simply in hope that something will turn
up.”) (citing Riddick v. United States, No. CIV.A.
2:04CV278, 2005 WL 1667757, at *7 (E.D. Va. July
6, 2005)) (internal citations and alterations omitted).

In sum, Plaintiff’s allegations are insufficient to sustain a
negligent hiring, training, or supervision claim. See Jarvis,
2012 WL 527597, at *6 (dismissing negligent hiring claim
where there were no allegations that “the security guard
was unqualified or incompetent at the time Defendant
hired him” or that would support “the contention that
Defendant engaged in negligent hiring practices”); Silver
v. Wells Fargo Bank, N.A., No. CV MJG-16-382, 2017
WL 2833254, at *11 (D. Md. June 30, 2017) (dismissing
negligent hiring and retention claim where complaint
pointed “only to the injurious event” as evidence of
negligent supervision). Therefore, the negligent hiring,
training, and supervision claim is also dismissed.

C. 42 U.S.C. § 1983—Unlawful
Arrest, Seizure, and Detention
In Count V, Plaintiff brings a claim against the individual
defendants and PTS pursuant to 42 U.S.C. § 1983,

claiming a violation of the Fourth and Fourteenth
Amendments. ECF No. 1 at 14. Section 1983 states in
pertinent part that “every person who, under color of
any statute, ordinance, regulation, custom, or usage, of
any state or territory, subjects, or causes to be subjected,
any citizen of the United States ... to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law ... for redress.” 42 U.S.C. § 1983. To
state a claim under Section 1983, Plaintiff must allege
“the violation of a right secured by the Constitution and
laws of the United States, and must show that the alleged
deprivation was committed by a person acting under color
of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).
“The traditional definition of acting under color of state
law requires that the defendant in a 1983 action have
exercised power ‘possessed by virtue of state law and
made possible only because the wrongdoer is clothed with
the authority of state law.’ ” Jarvis, 2012 WL 527597,
at *3 (citing Atkins, 487 U.S. at 49). To constitute state
action, “the deprivation must be caused by the exercise
of some right or privilege created by the State ... or by
a person for whom the State is responsible ... [and] the
party charged with the deprivation must be a person
who may fairly be said to be a state actor.” Id. (citing
Lugar v. Edmondson, 457 U.S. 922, 937 (1982)). Here,
as a “private corporation involved in the custody and
control of prisoners,” PTS performs “a traditional state
function” and therefore may be held liable under Section
1983. See Bain v. Transcor Am., LLC, No. 3:08-0656,
2009 WL 4348598, at *6, n.2 (M.D. Tenn. Nov. 24, 2009)
(imposing Section 1983 liability on private company that
transported prison inmates); Myers v. Transcor Am., LLC,
No. 3:08-0295, 2010 WL 3619831, at *16 (M.D. Tenn.
Sept. 9, 2010) (noting that “TransCor’s liability under
Section 1983 is akin to the liability of a municipality under
Section 1983.”) (compiling cases). 4
4

Defendant PTS does not dispute that it is a
municipality for purposes of Section 1983 liability in
this case. See ECF No. 15 at 7.

*7 However, it is well-recognized that there is no
doctrine of respondeat superior in Section 1983 actions,
and thus, PTS cannot be held directly liable for the alleged
unconstitutional acts of its employees. See Chin v. City of
Baltimore, 241 F. Supp. 2d 546, 549 (D. Md. 2003) (citing
Monell v. New York Department of Social Services, 436
U.S. 658, 694 (1978)). Rather, Plaintiff can proceed only

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against the PTS employees in their personal capacities, or
seek to establish that the employees were acting pursuant
to an official policy or custom of PTS.
Plaintiff alleges a claim of “unlawful arrest, seizure, and
detention” under Section 1983 in Count V, stating that
“Defendants deprived Mr. Karn of his rights under the
Fourth and Fourteenth Amendment ...” See ECF No.
1 at 14. The Fourth Amendment provides that “the
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures shall not be violated.” U.S. Const. amend. IV.
A Fourth Amendment seizure occurs “when there is
a governmental termination of freedom of movement
through means intentionally applied.” Bixler v. Harris,
No. CIV. WDQ-12-1650, 2013 WL 2422892, at *5 (D. Md.
June 3, 2013) (citing Brower v. Cnty. of Inyo, 489 U.S. 593,
597 (1989)). Importantly, however, the Fourth Circuit
has “rejected any concept of a continuing seizure rule,”
holding that “the Fourth Amendment applies to the initial
decision to detain an accused, [but] not to the conditions
of confinement after that decision has been made.” Robles
v. Prince George’s Cty., Md., 302 F.3d 262, 268 (4th Cir.
2002) (citing Riley v. Dorton, 115 F.3d 1159, 1163)). Thus,
“[o]nce the single act of detaining an individual has been
accomplished, the [Fourth] Amendment ceases to apply.”
Id. Claims regarding the subsequent use of excessive force
and conditions of confinement are therefore governed by
the Fourteenth Amendment’s Due Process Clause.
Here, Plaintiff does not dispute that he was arrested
pursuant to a lawful warrant for failure to pay child
support. See ECF No. 1 ¶ 8. Plaintiff waived an
extradition hearing and was therefore lawfully extradited
to South Carolina. Id. ¶ 9. Hence, Plaintiff fails to state
a claim entitling him to relief for an unlawful seizure
under the Fourth Amendment. See. e.g., Davis v. Wright,
No. 3:14CV161, 2014 WL 5361335, at *2 (W.D.N.C.
Oct. 21, 2014) (dismissing Fourth Amendment claim
and noting that “[s]ince Plaintiff’s requests to use the
bathroom began after she was arrested and was about to
enter the BAT Mobile for further processing, the alleged
denial of those requests must be evaluated under the Due
Process Clause of the Fourteenth Amendment, not the
Fourth Amendment.”); Walters v. Prince George’s Cty.,
No. CIV.A. AW-08-711, 2010 WL 2858442, at *6 (D. Md.
July 19, 2010) (granting summary judgment on Fourth
Amendment claim under § 1983, noting that “Plaintiff
complains of events that occurred after Defendants ...

took custody of her, when the Fourth Amendment had
ceased to apply because the single act of detaining Plaintiff
had already been completed and she was already in police
custody”). Thus, to the extent Plaintiff raises a claim under
the Fourth Amendment, those claims must be dismissed
as to all Defendants.
While Plaintiff fails to state a claim under the Fourth
Amendment—Plaintiff does, however, state a claim
under the Fourteenth Amendment against John Does
#1-6 in their personal capacities. 5 Claims challenging
the “conditions of confinement imposed upon pretrial
detainees are examined under the Due Process Clause of
the Fourteenth Amendment.” Oladokun v. Maryland, No.
CIV.A. DKC-14-463, 2014 WL 7014511, at *7 (D. Md.
Dec. 10, 2014). 6
5

6

As discussed during the hearing on the Motion,
because Defendant has not moved to dismiss Count
I, this case would move forward into discovery
regardless of the Court’s rulings on the pending
Motion. Thus. Plaintiff will have the opportunity,
through discovery, to identify the individual drivers
who are currently identified as John Doe defendants,
amend the complaint to describe what each did
and serve them with the Amended Complaint. For
now, the Court will address whether their collective
conduct could state a claim, recognizing that the
Defendant will be permitted to bring a renewed
Motion based on the specific conduct ascribed to
individual defendants, if appropriate.
The Court notes that Count VI, labeled “42 U.S.C.
§ 1983 – Mistreatment in Custody,” more clearly
addressed the allegations the Court is relying on as
its basis for not dismissing Count V. See ECF No.
1 at 15. For reasons explained during the hearing,
however, Plaintiff has withdrawn Count VI, but
the Court finds that Count V sufficiently alleges a
Fourteenth Amendment claim.

*8 The constitutional protections guaranteed to a
pretrial detainee under the Fourteenth Amendment “are
co-extensive with those provided to convicted prisoners
by the Eighth Amendment.” Christopher v. Warden
Assistant Warden of Baltimore City Det. Ctr., No.
CIV.A. JFM-13-1057, 2013 WL 1701464, at *1 (D.
Md. Apr. 17, 2013) (citing Bell v. Wolfish 441 U.S.
520, 535 (1979)); see also Patten v. Nichols, 274 F.3d
829, 834 (4th Cir. 2001) (noting that “the Fourteenth
Amendment rights of pre-trial detainees ‘are at least as

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great as the Eighth Amendment protections available
to a convicted prisoner.’ ”) (quoting City of Revere v.
Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983)).
Thus, “pretrial detainees have a clearly established right to
the Eighth Amendment’s restraints on ‘cruel and unusual
punishments’ by prison officials....” Sleeper v. City of
Richmond Va., No. 3:12CV441-HEH, 2012 WL 3555412,
at *6 (E.D. Va. Aug. 16, 2012). In determining whether
conditions of confinement constitute “cruel and unusual
punishment,” the Court employs a two-prong test,
considering first “whether the conditions of confinement
objectively inflict harm that is sufficiently serious to
deprive a prisoner of minimal civilized necessities.” Id. at
*6 (citing Farmer v. Brennan, 511 U.S. 825, 834 (1994)); see
also Roberts v. Taniguchi, No. CIV.A. JKB-12-1187, 2012
WL 5252288, at *5 (D. Md. Oct. 23, 2012) (describing twoprong test). In this regard, prison officials are under a duty
“to furnish humane conditions of confinement, including
provision of adequate food, clothing, shelter, and medical
care.” Sleeper, 2012 WL 3555412, at *6 (citing Hudson v.
Palmer, 468 U.S. 517, 526-27 (1984)). Second, the Court
determines “whether prison officials subjectively acted
with ‘deliberate indifference to inmate health or safety,’
meaning that they actually knew of and disregarded the
inhumane nature of the confinement.” Id. (citing Farmer,
511 U.S. at 837). Further, Plaintiff must allege an injury
that is “more than de minimis.” Robles v. Prince George’s
Cty. Maryland, 302 F.3d 262, 269 (4th Cir. 2002).
The factual allegations in the Complaint demonstrate
conditions in the prison van that were cruel and unusual.
The rear compartment where Plaintiff was housed
contained fourteen other men, many of whom openly
urinated and defecated inside of the van throughout the
course of the trip. While attempting to help another
prisoner, Plaintiff got feces on his leg, arms and clothing
and was not permitted to bathe or change clothes.
Additionally, no efforts were made to clean the van of
these unsanitary conditions, and thus, Plaintiff sat in a
windowless, warm van, among feces and other bodily
fluids, for ten continuous days. It is a “settled rule that
housing inmates in a grossly overcrowded and unsanitary
facility violates the inmates' rights to be free from cruel
and unusual punishments.” Brown v. Mitchell, 308 F.
Supp. 2d 682, 693 (E.D. Va. 2004) (citing Wilson v. Seiter,
501 U.S. 294 (1991); Strickler v. Waters. 989 F.2d 1375
(4th Cir. 1993)); see Dawson v. Kendrick, 527 F. Supp.
1252, 1288 (S.D.W. Va. 1981) (finding that inadequate
plumbing, failure to provide functioning lighting fixtures,

and denial of clean bedding and clothing constituted
constitutional violations).
In addition, Plaintiff has alleged that he was forced to sit
in darkness for much of the journey, surrounded by metal
on all sides, and denied clean clothing for ten days. The
drivers took 18 hour shifts, often began to fall asleep at
the wheel and drove at speeds up to 95 miles per hour.
Scuffles between prisoners were not addressed other than
by the indiscriminate spraying of pepper spray into the
back of the van. For the duration of the trip, Plaintiff was
shackled at the hands, torso, and ankles. As Plaintiff has
alleged, the restraints were too tight, causing him to lose
sensation in his fingers. Plaintiff’s cries went ignored and
to date, Plaintiff still suffers numbness in his hands. When
Plaintiff was unable to exit the van, the PTS guards pushed
him out onto the ground, injuring Plaintiff’s shoulder.
Plaintiff still experiences physical pain in his shoulder.
Such injuries are more than de minimis, and support a
claim for a Fourteenth Amendment violation. See Robles
v. Prince George’s Cty., Maryland, 302 F.3d 262, 270 (4th
Cir. 2002) (finding Fourteenth Amendment due process
violation of pretrial detainee who was “tied up in a dark
and deserted location in the middle of the night,” and
noting that “any reasonable person would have been upset
by what happened here.... The resulting injury was more
than de minimis”). 7
7

Both sides have cited the Court to a list of cases,
mostly from district court judges, supporting their
respective positions on whether the conditions alleged
support a Fourteenth Amendment claim. Compare
Wright v. J&S Extradition Services, LLC, et al., No.
3:11-0464, 2012 WL 1681812 (M.D. Tenn. May 11,
2012) (finding plaintiff did not state a claim where
during transport he was shackled, not allowed to use
bathroom, not allowed to bathe and his high blood
pressure was not attended to), Jensen v. Jorgenson,
No. Civ. 03-4200, 2005 WL 2412379 (D.S.D. Sept.
29, 2005) (granting motion to dismiss where plaintiff
alleged being chained to other prisoners and not
being allowed to use the restroom for 12 hours) with
Otero v. Catalogne, C.A. 08-282, 2010 U.S. Dist.
LEXIS 102160, 2010 WL 3883444 (W.D. Penn. Sept.
28, 2010) (allowing claim to move forward against
driver of prisoner transport vehicle who was falling
asleep and driving recklessly); Avery v. Extradition
Transp. Of Am., CV 11-00153-M-DWM-JCL, 2012
U.S. Dist. LEXIS 186588, 2012 WL 7017862 (D.
Mont. Nov. 28, 2012) (granting default judgment in

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favor of plaintiff who alleged an Eighth Amendment
violation where plaintiff was shackled continuously
and deprived of adequate sleeping facilities, restroom
facilities, and showers for at least six days). It is
difficult to extrapolate a consistent pattern from these
holdings other than to note that they are fact specific
and reflect a difference of opinion among judges in
different jurisdictions.

*9 With regard to Defendants' culpable state of mind
drawing all reasonable inferences in Plaintiff’s favor,
the guards and drivers had actual knowledge of these
conditions, as they are alleged to have required the
prisoners to urinate in water bottles and defecate in plastic
bags. The guards and drivers are alleged to have pepper
sprayed the entire rear compartment of the van, and
subsequently denied medical treatment to the prisoners.
Indeed, they sat in the front seat and bore witness to
these events over the course of a week and a half. Thus,
Plaintiff has alleged sufficient facts to state a claim for
unconstitutional conditions of confinement under the
Fourteenth Amendment against John Does #1-6.
With respect to Defendant PTS, however, under Monell
v. Dep't of Soc. Serv. of City of New York, 436 U.S. 658
(1978), a § 1983 cause of action may sustain against a
municipality only when execution of the government’s
unconstitutional policy or custom causes a plaintiff injury.
Lee, 2014 WL 476233, at *10; see also Walker v. Prince
George’s Co., Md., 575 F.3d 426, 431 (4th Cir. 2009)
(stating that the liability of the municipality only arises
where the employees' unconstitutional actions are taken
in furtherance of a municipal policy or custom); Bain v.
Transcor Am., LLC, No. 3:08-0656, 2009 WL 4348598,
at *6-7 (M.D. Tenn. Nov. 24, 2009) (discussing Monell
claim against private company that provided prisoner and
detainee transportation services). To hold a municipality
liable for an unconstitutional policy or custom, plaintiff
must allege liability “(1) through an express policy, such
as a written ordinance or regulation; (2) through the
decisions of a person with final policymaking authority;
(3) through an omission, such as a failure to properly train
officers, that manifests deliberate indifference to the rights
of citizens; or (4) through a practice that is so persistent
and widespread as to constitute a custom or usage with the
force of law.’ ” Lytle v. Doyle, 326 F.3d 463, 471 (4th Cir.
2003) (internal citations omitted).
Because Plaintiff’s Complaint is devoid of factual
allegations from which the Court could reasonably infer
the existence of a written policy, a policy established

by custom, or a policy established by negligent training
and supervision, Plaintiff has failed to state a 42
U.S.C. § 1983 claim against Defendant PTS in Count
V of the Complaint. See Miller v. Hamm, Civ. No.
CCB-10-243, 2011 WL 9185, at *14 (D. Md. Jan. 3, 2011)
(dismissing a plaintiff’s § 1983 claim against defendants
in their official capacity where the plaintiff “purports to
identify several policies, customs, and practices engaged
in by the [Defendants] that causally contributed to his
constitutional violations, [but] these allegations amount
to no more than conclusory statements that are not
sufficient to establish a plausible claim for relief”). Indeed,
Plaintiff’s Complaint appears to be limited to a single
experience, at a particular time, with a particular set of
guards. 8 Accordingly, Count V as to PTS is dismissed.
8

During the Motion hearing, counsel for Plaintiff
presented the Court with a list of similar allegations
against PTS employees; however, those allegations
were not included in the Complaint and will,
therefore, not be considered for purposes of this
Motion.

D. Violations of Article 24 and 26 of
the Maryland Declaration of Rights
—Excessive Force and Loss of Liberty
Finally, as to Plaintiff’s Articles 24 and 26 claims, “the
cases are legion in which Maryland Courts have construed
Article 26 in pari materia with the Fourth Amendment
to the United States Constitution,” Strickland v. Carroll
Cty., Md., No. CIV.A. ELH-11-00622, 2012 WL 401075,
at *23 (D. Md. Feb. 7, 2012) (compiling cases),
and Article 24 is the state analog to the Fourteenth
Amendment Due Process Clause. See Lee, 2014 WL
476233, at *15 (noting that Articles 24 and 26 are
the state analog to the federal Fourth and Fourteenth
Amendments, and they are analyzed in pari materia).
Moreover, in evaluating claims under Article 24 and
Article 26, “Supreme Court decisions with regard to
those amendments are particularly persuasive.” Widgeon
v. Eastern Shore Hospital Center, 300 Md. 520, 533
(1984). But Maryland courts have recognized that relief
for violations of the U.S. Constitution do not necessarily
warrant relief under the Maryland Declaration of Rights.
See Manikhi v. Mass Transit Admin., 360 Md. 333, 361-62
(2000) (citing DiPino v. Davis, 354 Md. 18, 50 (1999)
(“[T]he right of recovery for Federal violations arises from
statute—§ 1983—whereas the redress for State violations

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is through a common law action for damages.”); see also
Widgeon, 300 Md. at 537-538 (“we hold only that where an
individual is deprived of his liberty or property interest in
violation of Articles 24 and 26, he may enforce those rights
by bringing a common law action for damages”) (emphasis
added); Dyer v. Maryland State Board of Education, 187 F.
Supp. 3d. 599, 614 n.23 (D. Md. 2016) (noting that Article
24 implicates a narrower class of defendants than § 1983).

also Manikhi, 360 Md. at 363 (“Maryland Constitutional
provisions have the more narrow focus of protecting
citizens from certain unlawful acts committed by
government officials. Indeed, only government agents can
commit these kinds of Constitutional transgressions.”)
(emphasis in original and citation omitted). Therefore,
because neither PTS nor John Does #1-6 are public
officials or government agents, they are not subject to
claims under Article 24 and Article 26 of the Maryland

*10 Liability for constitutional violations under statute
(i.e., § 1983) attaches to those acting “under color of law,”
whereas federal non-statutory constitutional claims may
not be pursued against private actors. See Correctional
Services Corp. v. Malesko, 534 U.S. 61, 71 (2001) (holding
that plaintiff may not bring Bivens action against private
prison even if prison was acting “under color of federal
law”). The Fourth Circuit has also recognized the need
to restrain the liability of private actors under judiciallycreated constitutional remedies, like Bivens, as compared
to § 1983, which is a “congressional enactment that
expressly creates liability” for those acting under color of
law. See Holly v. Scott, 434 F.3d 287, 292 (4th Cir. 2006).
As the Fourth Circuit stated, “[t]here is ample reason to
be even more cautious about imputing liability to private
actors under Bivens than under § 1983.” Id.

Declaration of Rights. 10

Likewise, Maryland courts have acknowledged that
plaintiff’s may only pursue state constitutional claims
against “public officials” or “government agents.” 9 See
Estate of Jones v. NMS Health Care of Hyattsville, LLC,
903 F. Supp. 2d 232, 239 (D. Md. 2012) (“Although a
plaintiff may bring a common law cause of action under
[Article 24] ... he can only do so against “public officials”
or “government agents”) (internal citation omitted); see
End of Document

9

10

Plaintiff introduces general concepts of agency law
to suggest that the Defendants, acting under contract
with the State, are liable as government agents. See
ECF No. 14-1 at 17 (citing Wood v. Walton, 855
F. Supp. 2d 494, 503 n.25 (D. Md. 2012). This
analysis is not directly applicable to whether the
Defendants, acting ‘under color of law’ for purposes
of § 1983 liability are also liable under judiciallycreated constitutional remedies.
In addition to the analysis above, the Court’s
dismissal of the Plaintiff’s Fourth Amendment claim
under Section § 1983 in Count V precludes the Article
26 claim in Count VII.

IV. CONCLUSION
For the foregoing reasons, Defendant’s Partial Motion to
Dismiss, ECF No. 9, is granted, in part, and denied, in
part. A separate Order shall issue.

All Citations
Not Reported in Fed. Supp., 2017 WL 4162251

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2012 WL 87616
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Rebecca LAREW, Plaintiff,
v.
Andrew LAREW et al., Defendants.
No. 11 Civ. 5771(BSJ)(GWG).
|
Jan. 10, 2012.

OPINION AND ORDER
GABRIEL W. GORENSTEIN, United States Magistrate
Judge.
*1 Plaintiff Rebecca Larew (“Rebecca”) has brought suit
against her former husband Andrew Larew (“Andrew”);
Tony Fiorito; John Funiciello; Christine Wojcik;
Alan Doyle; Charles Sangster; John Shannon; Paula
Deckman; Central New York Associates, LLC (“CNY”);
Atrium Associates, LLC (“Atrium”); 224 Harrison
Associates, LLC (“Harrison”); Armory Associates, LLC
(“Armory”); 65–35 Queens Associates, LLC (“Queens”);
460 North Franklin Street Associates, LLC (“Franklin”);
1401 Erie Boulevard East, LLC (“Erie”); Vinegar
Hill, LLC (“Vinegar Hill”); Brittonfield Associates,
LLC (“Bnttonfield”); Soundview Real Estate Partners
(“Soundview”); and Larew, Doyle & Associates, LLC
(“LDA”) (collectively, “the defendants”) pursuant to the
Racketeer Influenced and Corrupt Organizations Act
(“RICO”), 18 U.S.C. § 1961 et seq., and state law. The
defendants have filed a motion pursuant to 28 U.S.C. §
1404(a) seeking to transfer the case to the United States
District Court for the Northern District of New York. For
the following reasons, defendants' motion is granted.

I. BACKGROUND
A. Procedural History
This action started when plaintiff filed a complaint in
the Supreme Court of the State of New York, County
of New York. See Summons and Complaint, filed July
18, 2011 (annexed as Ex. A to Notice of Removal, filed
Aug. 18, 2011 (Docket # 1) (“Notice of Removal”))

(“Compl.”). The defendants removed the case to United
States District Court for the Southern District of New
York (the “Southern District”). See Notice of Removal.
Shortly thereafter, the defendants filed the instant motion
seeking a transfer of the action to the United States
District Court for the Northern District of New York (the
“Northern District”). 1
1

See Notice of Motion to Change Venue to the District
Court for the Northern District of New York, filed
Sept. 8, 2011 (Docket # 23); Memorandum of Law
in Support of Defendants' Motion to Change Venue
to the District Court for the Northern District of
New York, filed Sept. 8, 2011 (Docket # 24) (“Def.
Mem. of Law”); Affidavit of Anthony F. Fiorito,
filed Sept. 8, 2011 (Docket # 25) (“Fiorito Aff.”).
Plaintiff submitted papers in opposition, see Affidavit
of Rebecca Larew, filed Nov. 1, 2011 (Docket #
49) (“Rebecca Aff.”); Declaration of Richard Freeth
in Support of Plaintiff's Opposition to the Motion
for Change of Venue, filed Nov. 1, 2011 (Docket
# 50) (“Freeth Decl.”); Opposition to Motion to
Change Venue to the District Court for the Northern
District of New York, filed Nov. 1, 2011 (Docket #
51) (“Opp.Mem.”), and defendants submitted reply
papers, see Reply Memorandum of Law in Further
Support of Defendants' Motion to Transfer Venue,
filed Nov. 14, 2011 (Docket # 59) (“Reply”); Affidavit
of Andrew Larew, filed Nov. 14, 2011 (Docket # 60)
(“Andrew Aff.”).

B. Facts Relevant to Venue
1. Allegations in the Complaint
The complaint alleges that defendants have acted as
a criminal organization to deprive Rebecca of money
which was awarded to her in her divorce action against
Andrew in Connecticut state court. See Compl. ¶¶ 3, 5,
41. Specifically, Rebecca argues that Andrew and his codefendants conspired to hide his assets, thereby lowering
the amount he would have to pay under the court-ordered
support agreement in their divorce proceeding. See id. ¶¶ 1,
3, 4, 42, 48, 55. The complaint asserts the following claims:
(1) RICO; (2) fraud; (3) conversion; (4) violation of the
New York State Debtor and Creditor Law; and (5) “prima
facie tort—economic injury.” See Compl. ¶¶ 86–118.

2. The Parties
Rebecca is a resident of Southport, Connecticut. Id. ¶
7. At the time of the filing of her opposition papers on

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this motion, Rebecca's sole income was a $5,500 monthly
support payment, which was scheduled to end on October
20, 2011. Rebecca Aff. ¶ 3. While Rebecca states that
she is a “divorced stay-at-home mother,” id., Andrew
was awarded “sole legal and physical custody” of their
children on July 1, 2011, Andrew Aff. ¶¶ 4, 5.
*2 Andrew is a “real estate developer with interests
throughout New York State.” Compl. ¶ 8. He is currently
married to defendant Wojcik. Id. ¶ 11. Andrew and
Wojcik currently reside in New York, New York, id.
¶¶ 8, 11, in the Southern District, although they did
not live there during the time period of most of the
events in the complaint, see Andrew Aff. ¶ 7. Defendants
Fiorito and Furriciello are friends and business associates
of Andrew's. Compl. ¶¶ 9, 10. Funiciello resides in
Baldwinsville, New York, id. ¶ 10, which is located
in the Northern District. Fiorito resides in Liverpool,
New York, Fiorito Aff. ¶ 3, which is also located in
the Northern District. Defendant Doyle is a friend and
business associate of Andrew's. Compl. ¶ 12. His business
address is in Providence, Rhode Island, id., though he has
a business based in New York County in the Southern
District, see Freeth Decl. ¶ 4. Defendant Sangster is a
business partner of Andrew's. Compl. ¶ 13. He resides in
Manlius, New York, id., which is in the Northern District.
Defendant Shannon is an accountant for Andrew. Id.
¶ 14. His last known business address was in Oneida,
New York, id., which is also in the Northern District.
Defendant Deckman is another accountant for Andrew.
Id. ¶ 15. Her principal place of business is in Syracuse, New
York, id., which is also in the Northern District.
Defendants CNY, Atrium, Harrison, Armory, Queens,
Franklin, Erie, Vinegar Hill, and Brittonfield are New
York limited liability companies. Id. ¶¶ 16–24. Their
principal places of business are in Syracuse, New York,
id., in the Northern District. Defendant Soundview is
a Delaware limited liability company. Id. ¶ 25. Its
principal place of business is in Stamford, Connecticut. Id.
Defendant LDA is a New York limited liability company.
Id. ¶ 26. Its principal place of business is in New York,
New York, id., which is in the Southern District,
Defendants Atrium, Harrison, Armory, Vinegar Hill,
Franklin, Erie, and Queens are single purpose entities
each of which “owns a single project.” Fiorito Aff. ¶ 13.
They keep their books and records, including financial
information and official corporate records, in Syracuse,

New York, Fiorito Aff. ¶ 6, which is in the Northern
District. They are managed by a management company,
Partnership Properties, which also has its principal office
in Syracuse, New York, and keeps its books and records
there. Id. ¶¶ 7–10. Defendant Vinegar Hill owns property
in Oswego, New York, id. ¶ 13(d), which is located
in the Northern District. Defendant Brittonfield owns
property in Dewitt, New York, id. ¶ 69, which is also
located in the Northern District. Defendants Atrium,
Harrison, Armory, Franklin, and Erie each own property
in Syracuse, New York, Fiorito Aff. ¶¶ 13(a)-(c), (e), (f), in
the Northern District. Queens owns a building in Queens,
New York, id . ¶ 13(g), which is located in the Eastern
District of New York. Defendant LDA owns property in
Killington, Vermont. Compl. ¶ 70.

II. discussion
A. Law Governing Motions to Transfer to Another
Judicial District Absent the consent of all parties, 28
U.S.C. § 1404(a) provides that “[f]or 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.” 28 U.S.C. § 1404(a). Thus, the decision
whether to transfer a case from one judicial district
to another absent unanimous consent requires a twopart inquiry. First, the court must determine whether
the case sought to be transferred could have been
brought in the proposed transferee court. Second,
the court must decide whether transfer is warranted
for the convenience of parties and witnesses and is in
the interest of justice. See, e.g., Whitehaus Collection
v. Barclay Prods., Ltd., 2011 WL 4036097, at *1
(S.D.N.Y. Aug.29, 2011); Matta v. Roswell Park
Cancer Inst. Corp., 2011 WL 3104889, at *3 (S.D.N.Y.
July 26, 2011). Here, it is undisputed that this action
could have been brought in the Northern District.
Therefore, only the second part of the inquiry is at
issue.
*3 The Second Circuit has held that “courts should
give deference to a plaintiff's choice of forum.” Iragorri
v. United Techs. Corp ., 274 F.3d 65, 70 (2d Cir.2001).
Nonetheless, “if the balance of conveniences suggests
that trial in the chosen forum would be unnecessarily
burdensome for the defendant or the court, dismissal is
proper.” Id. at 71 (citations omitted). Whether transfer
should occur is “determined upon notions of convenience
and fairness on a case-by-case basis,” In re Cuyahoga

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Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992) (citing
Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29, 108
S.Ct. 2239, 101 L.Ed.2d 22 (1988)); accord Orb Factory.
Ltd. v. Design Sci. Toys, Ltd., 6 F.Supp.2d 203, 208
(S.D.N.Y.1998). The moving party must make a “clear
and convincing” showing that the balance of convenience
favors transfer. N.Y. Marine & Gen. Ins. Co. v. Lafarge
N. Am., Inc., 599 F.3d 102, 114 (2d Cir.2010). The Second
Circuit has noted that among the factors to be considered
in determining whether to grant a motion to transfer venue
are the following:

(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 112 (citations omitted). Courts have also considered
“(8) the forum's familiarity with the governing law, and
(9) trial efficiency and the interest of justice.” Fellus
v. Steme, Agee & Leach, Inc., 783 F.Supp.2d 612, 618
(S.D.N.Y.2011); accord AIG Fin. Prods. Corp. v. Pub. Util.
Dist. No. 1, 675 F.Supp.2d 354, 368 (S.D.N.Y.2009).
“There is no rigid formula for balancing these factors
and no single one of them is determinative. Instead,
weighing the balance is essentially an equitable task left
to the Court's discretion.” Citigroup Inc. v. City Holding
Co., 97 F.Supp.2d 549, 561 (S.D.N.Y.2000) (citations
and internal quotation marks omitted). While the list
of factors is not exhaustive, see Royal & Sunalliance v.
British Airways, 167 F.Supp.2d 573, 576 (S.D.N.Y.2001),
no party has suggested that any other factor should be
considered.

B. Application of the Section 1404(a) Factors
1. Convenience of the Parties and Non–Party Witnesses
“The convenience of parties and witnesses is
considered the essential criteri [on] under the venue

statute.” In re Nematron Corp. Secs. Litig., 30
F.Supp.2d 397, 400 (S.D.N.Y.1998) (quoting Cento
Grp., S.P.A. v. OroAmerica, Inc., 822 F.Supp. 1058,
1060 (S.D.N.Y.1993)) (bracketing added and internal
quotation marks omitted); accord AGCS Marine Ins.
Co. v. Associated Gas & Oil Co., 775 F.Supp.2d 640,
647 (S.D.N.Y.2011); Seltzer v. Omni Hotels, 2010 WL
3910597, at *2 (S.D.N.Y. Sept.30, 2010); Hernandez v.
Graebel Van Lines, 761 F.Supp. 983, 988 (E.D.N.Y.1991).
We first address the convenience of the parties and then
the convenience of non-party witnesses.

a. Convenience of Parties
*4 The convenience of the parties weighs heavily in
favor of transfer in this case. Of the twenty parties to
this case, only three, Andrew, Wojcik, and LDA, are
currently located in the Southern District. Compl. ¶¶ 8,
11, 26. Notably, all three have joined in the motion to
transfer venue to the Northern District. See Def. Mem.
of Law at 3, 7. Three parties, Rebecca, Doyle, and
Soundview are located in neither the Northern District nor
the Southern District. See Compl. ¶¶ 7, 12, 25. Both Doyle
and Soundview join in the motion for a change of venue.
Def. Mem. of Law at 7. The remaining fourteen parties
are all located in the Northern District. Compl. ¶¶ 9, 10,
13–24.
In other words, of the twenty parties in this case,
only Rebecca seeks to have it remain in the Southern
District. Rebecca argues the transfer is inappropriate
because it would merely “shift inconvenience” from one
party to another. Opp. Mem. at 4. However, Rebecca is
not located in the Southern District, and therefore the
inconvenience to her of moving from the Southern District
to the Northern District is given less weight. See, e.g.,
Deshoulieres, S.A. v. Cuthbertson Imports, Inc., 2006 WL
2849818, at *3 (S.D.N.Y. Oct.3, 2006) (unimportant to
foreign plaintiff if it litigates in New York or Connecticut
as both are equally inconvenient); Dr. Boy, GmbH v.
Nationwide Ins., 1996 WL 350699, at *2 (S.D.N.Y. June
25, 1996) (inconvenience of a foreign corporation with
no presence in New York “is ‘at best a neutral factor.’
”) (quoting Matra et Manurhin v. Int'l Armament Co.,
628 F.Supp. 1532, 1535 (S.D.N.Y.1986)); GE Capital
Franchise Fin. Corp. v. Cosentino, 2009 WL 1812821, at
*4 (W.D.N.Y. June 25, 2009) (transfer would not shift
inconvenience because plaintiff would have to travel to
either venue). The Court recognizes that Rebecca lives
closer to the courthouses in the Southern District than

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to the courthouses in the Northern District. Nonetheless,
because the vast majority of the parties are located in
the Northern District, and no party residing outside
the Northern District objects to the transfer, this factor
strongly favors transfer,

b. Convenience of Witnesses
“Courts typically regard the convenience of witnesses
as the most important factor in considering a § 1404(a)
motion to transfer.” Herbert Ltd. P'ship v. Elec. Arts
Inc., 325 F.Supp.2d 282, 286 (S.D.N.Y.2004); accord
AGCS Marine Ins. Co., 2011 WL 1325996, at *5; Seltzer,
2010 WL 3910597, at *2; Clay Paky. S.p.A. v. Van–
Lite, Inc., 2000 WL 977709, at *7 (S.D.N.Y. July 14,
2000). “In evaluating this factor, the court should ‘look
beyond the quantity of witnesses and assess the quality
of the testimony to be offered.’ “ DealTime.com, Ltd.
v. McNuIty, 123 F.Supp.2d 750, 755 (S.D.N.Y.2000)
(quoting Am. Alliance Ins. Co. v. Sunbeam Corp., 1999 WL
38183, at *6 (S.D.N.Y. Jan.28, 1999)); accord Fifth Ave.
of Long Island Realty Assocs. v. Caruso Mgmt. Co., 2009
WL 412126, at *15 (E.D.N.Y. Feb.17, 2009) (citations
omitted). Accordingly, the movant “must clearly specify
the key witnesses to be called and must make a general
statement of what their testimony will cover.” Factors
Etc., Inc. v. Pro Arts. Inc., 579 F.2d 215, 218 (2d Cir.1978),
cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d
455 (1979); accord LeCroy Corp. v. Hallberg, 2010 WL
3958761, at *6 (S.D.N.Y. Oct.4, 2010). This may be
satisfied by “a very general indication of [the witnesses']
role in the transaction at issue, and thus, by implication,
of their testimony,” although it is preferable for the
moving party to submit “a more elaborate statement
of probable testimony.” Arrow Elecs. Inc. v. Ducommun
Inc., 724 F.Supp. 264, 267 n. 1 (S.D.N.Y.1989); see
generally Fellner v. Cameron, 2010 WL 681287, at *3
(W.D.N.Y. Feb.24, 2010) (“[A] party will not be held
to the requirement of stating with precision each witness
and document.”) (citations and internal quotation marks
omitted). Still, “a specific showing is required only when
the movant seeks a transfer solely ‘on account of the
convenience of witnesses.’ ... [If the movant] seeks a
transfer ‘on account of several factors, his failure to
specify key witnesses and their testimony is not fatal.”
Connors v. Lexington Ins. Co., 666 F.Supp. 434, 455
(E.D.N.Y.1987) (emphasis in original) (quoting Factors
Etc., Inc., 579 F.2d at 218); accord Beckerman v. Heiman,
2006 WL 1663034, at *5 (S.D.N.Y. June 16, 2006).

*5 Here, defendants identify defendant Fiorito and
defendant Shannon as potential witnesses, both of whom
reside in the Northern District. See Def. Mem. of
Law at 6–7. Defendants' papers state that Fiorito is
the “managing member” of Atrium, Harrison, Armory,
Vinegar Hill, Franklin, Erie and Queens, while Shannon
is the accountant of the same entities. See id. Defendants
also mention non-parties James Funiciello Sr. and Kristen
Exner as potential witnesses. See Def. Mem. of Law
at 7; Fiorito Aff. ¶ 12. Funiciello Sr. and Exner assist
in “collecting the rents, paying the bills and preparing
records and reports for [Atrium, Harrison, Armory,
Vinegar Hill, Franklin, Erie and Queens.]” Fiorito Aff. ¶
12. They both live in the Northern District. Id.
Rebecca has not identified any non-party witness who
reside in the Southern District. She identifies as “key
witnesses” all of the defendants living outside the
Northern District—that is, Andrew, Wojcik, Doyle,
Soundview, and LDA. See Opp. Mem. at 5–6; Freeth
Decl. ¶¶ 2–6. But she fails to provide any specifics on
these witnesses' roles in the transactions, or their general
testimony. More importantly, all of them consent to the
transfer of venue to the Northern District. See Def. Mem.
of Law at 3, 7. Thus, the convenience of the witnesses
identified by Rebecca should not play a part in the
analysis.
Accordingly, this factor too weighs heavily in favor of
transfer. See Herbert Ltd. P'ship, 325 F.Supp.2d at 286,
292 (ordering transfer to district where majority of party
and non-party witnesses reside).

2. Location of Documents and Ease of Access to
Sources of Proof
“In an era of electronic documents, easy copying
and overnight shipping, this factor assumes much less
importance than it did formerly. Furthermore, the
location of documents is entitled to little weight unless [the
movant] makes a detailed showing of the burden it would
incur absent transfer.” Seltzer, 2010 WL 3910597, at *4
(citations and internal quotation marks omitted); accord
K.M. v. Maclaren USA, Inc., 2011 WL 1900137, at *3
(S.D.N.Y. Apr.7, 2011). Here, neither party has indicated
that transmitting documents or other physical evidence
would be particularly burdensome. Moreover, inasmuch
as the operative facts alleged in the complaint occurred in
the Northern District, it is likely that the sources of proof
are located within that district. Accordingly, this factor

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weighs in favor of transfer. See Seltzer, 2010 WL 3910597,
at *4.

3. Location of the Operative Facts
The location of a case's operative facts has been considered
by some courts as a “primary factor in determining a §
1404(a) motion to transfer.” Mitsui Marine & Fire Ins.
Co. v. Nankai Travel Int'l Co., 245 F.Supp.2d 523, 525–
26 (S.D.N.Y.2003) (internal quotation marks omitted);
accord Seltzer, 2010 WL 3910597, at *4. Rebecca asserts
that “the principal acts alleged in the action occurred in
[the Southern District].” Opp. Mem. at 4. However, it
is unclear which of the operative facts Rebecca believes
occurred in the Southern District and the complaint itself
provides few indications of such facts. The defendants
contend that the subject matter of the dispute took place
in Onondaga County, see Def. Mem. of Law at 3, which
is located in the Northern District.
*6 The complaint alleges a conspiracy among the
defendants to deprive Rebecca of money that was
otherwise owed to her. See Compl. ¶¶ 27–85. In conspiracy
cases, courts may look to where the transactions at issue
occurred in determining the locus of operative facts. See
S.E.C. v. Lybrand, 2000 WL 913894, at *6 (S.D.N.Y.
July 6, 2000) (New York was locus of operative facts
because “transactions that constituted the core of the
fraudulent scheme under the SEC's theory of liability were
undertaken by [defendant] in New York.”); cf. United
States v. Nature's Farm Prods., Inc., 2004 WL 1077968,
at *5 (S.D.N.Y. May 13, 2004) (New York was not
locus of operative facts because core transactions took
place in California and only two alleged actions took
place in New York). Here, there are no allegations as to
where the transactions actually took place. Of the nineteen
defendants, only three, Andrew, Wojcik, and LDA, have
ever been located in the Southern District, see Compl. ¶¶ 8,
11, 26, and Andrew and Wojcik did not live there until July
2009, Andrew Aff. ¶ 7, long after most of the events alleged
in the complaint. The other defendants are all located in
the Northern District or the Districts of Rhode Island,
Delaware, or Connecticut. See Compl. ¶¶ 9–10, 12–25.
The allegations in the complaint center around Andrew
hiding assets and interests by presenting false documents
to the Connecticut court handling his divorce in order to
lower the amount he had to pay his ex-wife. See Compl.
¶¶ 1–3. “When examining claims for misrepresentation
on a motion to transfer venue, ‘misrepresentations and

omissions are deemed to occur in the district where
they were transmitted or withheld, not where they are
received.” ‘ Branthover v. Goldenson, 2011 WL 6179552,
at*3 (S .D.N.Y. Dec. 12, 2011) (quoting In re Nematron
Corp. Secs. Litig., 30 F.Supp.2d at 404). Here the
misrepresentations occurred in two locales: (1) the District
of Connecticut, when Andrew allegedly presented false
testimony and evidence during the Connecticut divorce
proceedings, see Compl. ¶¶ 35, 36, 55; and (2) the Northern
District, where tax filings and other financial documents
were created allegedly to minimize Andrew's assets and
income, see id. ¶¶ 68. 84, 85; Fiorito Aff. ¶¶ 7–9, 11, 12.
Courts have also interpreted the locus of operative facts
as “the place where events and actors material to proving
liability are located.” Amardeep Garments Indus., Pvt.
Ltd. v. Cathay Bank, 2011 WL 1226255, at *3 (S.D.N.Y.
Mar.23, 2011). Rebecca argues in her motion papers that
Andrew is “the locus of this fraud .” See Opp. Mem. at
3. But Andrew did not live in the Southern District until
July 2009. Andrew Aff. ¶ 7. Virtually all of the allegations
of the complaint concern events that took place prior to
that date. See generally Compl. ¶¶ 27–74. Moreover, in
her complaint Rebecca alleges that CNY “is pivotal to the
scheme as it is [ ] the central business entity through which
[Andrew] perpetrated, and continues to perpetrate, the
fraudulent scheme.” Id. ¶ 46. Yet CNY is alleged to have
its principal place of business in the Northern District.
Id. ¶ 16. All of the other defendants, with the exception
of LDA and Wojcik, id. ¶¶ 11, 26, are similarly located
outside of the Southern District, with the vast majority
located in the Northern District, see id. ¶¶ 9, 10, 12–25.
*7 Finally, the allegations of the complaint suggest that
any misrepresentations were made in either the Northern
District, see id. ¶¶ 68, 84, 85; Fiorito Aff. ¶¶ 7–9, 11, 12, or
Connecticut, Compl. ¶¶ 35, 36, 55. The complaint alleges
no operative facts that occurred within the Southern
District. Therefore, this factor weighs strongly in favor
of transfer. See Ill. Union Ins. Co. v. NRG Energy,
Inc., 2010 WL 5187749, at *2–3 (S.D.N.Y. Dec.6, 2010)
(granting motion to transfer where no operative facts in
complaint occurred in forum district); Indian Harbor Ins.
Co. v. Factory Mut. Ins. Co., 419 F.Supp.2d 395, 405
(S.D.N.Y.2005) (transferring case to Pennsylvania even
where “it is unclear whether Pennsylvania is the locus of
operative facts [because] it is clear that New York is not”
and holding that “[w]here there is no material connection
between the district and the operative facts, ... the interests

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of justice require the transfer of [the] action”) (citation and
internal quotation marks omitted).

4. Availability of Process to Compel Unwilling
Witnesses
Here, neither party has presented evidence that any nonparty witnesses would not be subject to process in the
Northern District. Therefore, there is no reason to believe
that one court is better situated than the other to compel
the testimony of unwilling witnesses.

5. Relative Means of the Parties
“Where disparity exists between the parties, such as an
individual plaintiff suing a large corporation, the relative
means of the parties may be considered.” Herman v.
Informix Corp., 30 F.Supp.2d 653, 659 (S.D.N.Y.1998);
accord Zinky Elecs. LLC v. Victoria Amplifier Co., 2009
WL 2151178, at *7–8 (D.Conn. June 24, 2009). However,
this factor will be accorded “little or no significance”
absent a showing of disparity of means between plaintiffs
and defendants. Hernandez, 761 F.Supp. at 989; accord
Emblaze Ltd. v. Apple, Inc., 2011 WL 724275, at *4
(S.D.N.Y. Feb.25, 2011). While Rebecca contends that
the Court should take this factor into account, see Opp.
Mem. at 6; Rebecca Aff. ¶¶ 3, 4, she has failed to provide
the Court with any details of her financial status. Rebecca
does contend that she will have to retain new counsel if
the matter is transferred. See Opp. Mem. at 6. But it is
more than likely that an attorney located in the Northern
District would charge lower rates than an attorney in
the Southern District. See generally Arbor Hill Concerned
Citizens Neighborhood Ass'n v. County of Albany, 522
F.3d 182, 185–86 (2d Cir.2008) (taking as established that
attorneys in the Southern District charge “higher rates
than those prevailing in the Northern District of New
York”). In any event, there is no indication that current
counsel would be unable to appear pro hac vice in the
Northern District or that Rebecca would be unable to pay
the incremental costs associated with a transfer, such as
traveling expenses for her attorney.

6. Forum's Familiarity with the Governing Law
*8 Both the transferor and the transferee courts are
located within New York and thus are familiar with New
York law. Accordingly, this factor does not weigh in either
party's favor.

7. Plaintiff's Choice of Forum
District courts deciding transfer motions have noted that
“[a] plaintiff's choice of forum is generally entitled to
considerable weight and should not be disturbed unless
the balance of the factors is strongly in favor of the
defendant. Where the factors are equally balanced, the
plaintiff is entitled to its choice.” Berman, 30 F.Supp.2d
at 659 (citations omitted); accord In re Warrick, 70 F.3d
736, 740–41 (2d Cir.1995) (“[Plaintiff's] choice of venue
[is] entitled to substantial consideration.”) (citation and
internal quotation marks omitted); WorldCare Ltd. v.
World Ins. Co., 767 F.Supp.2d 341, 363 (D.Conn.2011).
However, “plaintiffs' choice of forum is accorded less
weight where the plaintiffs' chosen forum is neither their
home nor the place where the operative facts of the action
occurred.” Dwyer v. Gen. Motors Corp., 853 F.Supp. 690,
694 (S.D.N.Y.1994); accord Emp'rs Ins. of Wausau v.
News Corp., 2008 WL 4443899, at *3 (S.D.N.Y. Sept.29,
2008) (“[W]here the plaintiff has chosen a forum that
is neither the district of its residence, nor the locus
of the operative facts in the case, this choice is given
considerably less weight.”); Kwik Goal, Ltd. v. Youth
Sports Publ'g Inc., 2006 WL 1517598, at *2 (S.D.N.Y.
Mar.31, 2006) (Plaintiff's choice of forum was entitled
to “less deference” where the forum was not plaintiff's
“home state” and “the case lack[ed] material or significant
contacts with the forum state” because “no one involved in
th[e] litigation [was] located in the SDNY” and the sales in
the district “were minimal.”); ZPC 2000, Inc. v. SCA Grp.,
Inc., 86 F.Supp.2d 274, 280 (S.D.N.Y.2000) (“[W]hen a
plaintiff brings a suit ... in a forum that has no material
connection with the action, this factor should be given
little weight.”) (internal quotation marks and citations
omitted) (alteration in original).
In the instant case, plaintiff does not reside in the
Southern District. Nor. as previously discussed, did
the operative facts occur in the Southern District.
Accordingly, plaintiff's choice of forum is accorded little
weight.

8. Trial Efficiency and Interest of Justice
Defendants argue that the case is “likely to proceed to trial
more rapidly in the [Northern District] than in this Court.”
Def. Mem. of Law at 8. In support of this argument,
the defendants present statistics showing that the median
time to trial in the Northern District is 25.8 months as
opposed to 30.9 months in this Court. Id. at 8–9 (citing

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Admin. Office of the U.S. Courts, Fed. Judicial Caseload
Statistics: March 31, 2010, Table C–5 (2010)). Rebecca
does not dispute this assertion. Accordingly, this factor
weighs in favor of transfer.

C. Result of Balancing of the Factors
*9 A balancing of the factors easily leads to the
conclusion that this case should be transferred to the
Northern District. With respect to the most important
factors, it would be more convenient to the parties
and nonparty witnesses for this case to be litigated in
the Northern District rather than the Southern District.
Furthermore, the locus of operative facts is in the
Northern District. None of the remaining factors weighs
strongly in favor of plaintiff and most either weigh in favor
of the defendants or are neutral. Therefore, defendants
have shown by clear and convincing evidence that the
End of Document

balance of conveniences favors transferring this case to the
Northern District.

III. CONCLUSION
For the reasons stated above, the defendants have made
a meritorious motion to transfer. The Court will delay
issuing an order to transfer until after January 25, 2012,
to allow plaintiff to move for a stay in the event she seeks
review of this Opinion and Order pursuant to Federal
Rule of Civil Procedure 72(a). In the absence of an order
granting such a stay, however, the Court will direct the
Clerk, by separate order, to effectuate the transfer on or
after January 25, 2012.

All Citations
Not Reported in F.Supp.2d, 2012 WL 87616
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7

Lewis v. Extradition Transport of America, Not Reported in F.Supp.3d (2014)
2014 WL 494573

2014 WL 494573
Only the Westlaw citation is currently available.
United States District Court, D. Montana,
Missoula Division.
Stanford Allen LEWIS, Jr., Plaintiff,
v.
EXTRADITION TRANSPORT
OF AMERICA, Defendant.
No. CV 13–138–M–DWM–JCL.
|
Feb. 5, 2014.
Attorneys and Law Firms
Stanford Allen Lewis, Jr., Missoula, MT, pro se.

ORDER

26.) Judge Lynch held a hearing on the matter of default
judgment on January 9, 2014. (Doc. 37.) Lewis appeared
pro se and Extradition Transport Services did not appear.
(Id.) Judge Lynch found the Court to have both subject
matter and personal jurisdiction in this case and that the
Plaintiff's allegations regarding liability, taken as true in
light of the Clerk's entry of default, are sufficient and
entitle him to damages in the amount of $75,000.00. (Doc.
40 at 5, 10.) The Court concurs with these findings and
recommendations.
IT IS ORDERED that Judge Lynch's Findings and
Recommendations (Doc. 40) are ADOPTED IN FULL.
The Clerk of Court is directed to enter default judgment in
favor of Stanford Allen Lewis, Jr. and against Extradition
Transport of America in the amount of $75,000.00.
IT IS FURTHER ORDERED that the Clerk of Court
shall mail two certified copies of the judgment to Lewis
and close this case.

DONALD W. MOLLOY, District Judge.
*1 Findings and Recommendations of United States
Magistrate Judge Jeremiah C. Lynch (Doc. 40) are
now before the Court. Judge Lynch's report presents
his findings on the merits of Plaintiff's Complaint and
recommendation that default judgment be entered for the
Plaintiff in the amount of $75,000.00. (Id.)
Where no party objects, the Court reviews the findings and
recommendations of a United States Magistrate Judge for
clear error. McDonnell Douglas Corp. v. Commodore Bus.
Mach., Inc., 656 F.2d 1309, 1313 (9th Cir.1981). Clear
error is present only if the Court is left with a “definite
and firm conviction that a mistake has been committed.”
United States v. Syrax, 235 F.3d 422, 427 (9th Cir.2000).
Judge Lynch's Findings and Recommendations are
without clear error. Lewis brings this case under 42
U.S.C. § 1983, asserting that Defendant Extradition
Transport of America violated his rights under the
Eighth and Fourteenth Amendments to the United States
Constitution when he allegedly was injured while in
transport from Arizona to Montana in May 2013. (Doc.
2.) The United States Marshals Service personally served
Lewis' Complaint on Extradition Transport Services on
November 4, 2013, (Doc. 21), but it failed to file an
answer or otherwise plead. Default was entered. (Doc.

FINDINGS AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
JEREMIAH C. LYNCH, United States Magistrate
Judge.
Plaintiff Stanford Lewis, a pro se prisoner currently
incarcerated in the Missoula County Detention Facility,
has sued Defendant Extradition Transport of America
(“Extradition Transport”) pursuant to 42 U.S.C. § 1983
for injuries he allegedly suffered when he was transported
from Arizona to Montana in May 2013. The United
States Marshals Service personally served the Complaint
on Extradition Transport on November 4, 2013 (Proof of
Service, Doc. 21 at 2), but it failed to file an answer or
otherwise respond. Default was entered on December 2,
2013. (Doc. 26.) A hearing was held on January 9, 2014 on
the matter of default judgment. Lewis appeared pro se at
the hearing. Extradition Transport did not appear.

A. Jurisdiction
*2 Before considering the merits of default judgment, the
Court has an affirmative obligation to determine whether
or not it has subject matter jurisdiction over this action
and personal jurisdiction over Defendant. See In re Tuli,
172 F.3d 707, 712 (9th Cir.1999) (“To avoid entering a
default judgment that can later be successfully attacked as

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void, a court should determine whether it has the power,
i.e., the jurisdiction, to enter the judgment in the first
place.”).
Lewis alleges violations of his rights under the Eighth
and Fourteenth Amendments to the United States
Constitution pursuant to 42 U.S.C. § 1983. As such, the
Court has federal question subject matter jurisdiction
pursuant to 28 U.S.C. § 1331.
The Court also has personal jurisdiction over Defendant.
“When subject matter jurisdiction is premised on a federal
question, a court may exercise specific jurisdiction over
a defendant if a rule or statute authorizes it to do so
and the exercise of such jurisdiction comports with the
constitutional requirement of due process.” AT & T Co.
v. Compagnie Bruxelles Lambert, 94 F.3d 586, 589 (9th
Cir.1996). Federal Rule of Civil Procedure 4(k)(1)(A)
provides that “serving a summons ... establishes personal
jurisdiction over a defendant [ ] who is subject to the
jurisdiction of a court of general jurisdiction in the state
where the district court is located.” Fed.R.Civ.P. 4(k)
(1)(A). Therefore, to determine whether jurisdiction is
authorized, the Court must consider Montana's longarm statute. Rule 4(b)(1) of the Montana Rules of Civil
Procedure, permits the exercise of personal jurisdiction
to the maximum extent permitted by federal due process.
Davis v. American Family Mutual Ins. Co., 861 F.2d 1159,
1161 (9th Cir.1988) (citing Decker Coal v. Commonweath
Edison Co., 805 F.2d 834, 839 (9th Cir.1986); State of
North Dakota v. Newberger, 188 Mont. 323, 613 P.2d 1002,
1004 (Mont.1980)). Where the state and federal limits are
coextensive, the jurisdictional analyses under state law
and federal due process are the same. Panavision Int'l,
L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir .1998).
Accordingly, the analysis before the Court collapses
into one: whether the exercise of personal jurisdiction
comports with due process. Glencore Grain Rotterdam
B.V. v. Shivnath Rai Harnarain Co., 284 F.3d 1114, 1123
(9th Cir.2002).
1

1

The Federal Circuit has noted that when a federal
court's subject matter jurisdiction is based on federal
question jurisdiction, 28 U.S.C. § 1331, rather than
diversity jurisdiction, 28 U.S.C. § 1332, the Due
Process Clause of the Fifth Amendment, rather
than the Due Process Clause of the Fourteenth
Amendment, governs the court's assertion of personal
jurisdiction. Deprenyl Animal Health, Inc. v. Univ.

of Toronto Innovations Found., 297 F.3d 1343, 1350
(Fed.Cir.2002). International Shoe Co. v. Washington,
326 U.S. 310 (1945), and its progeny were decided
under the Due Process Clause of the Fourteenth
Amendment. See id. at 311. Nonetheless, the
Federal Circuit applies the standards developed
in International Shoe and its progeny to Fifth
Amendment due process cases arising under federal
law. Deprenyl Animal Health, 297 F.3d at 1350.

Due process requires “that in order to subject a defendant
to a judgment in personam, if he be not present within the
territory of the forum, he have certain minimum contacts
with it such that the maintenance of the suit does not
offend traditional notions of fair play and substantial
justice.” International Shoe Co. v. Washington, 326 U.S.
310, 316 (1945). Personal jurisdiction can be either general
or specific. General jurisdiction exists and permits the
court to hear all claims against a defendant “when their
affiliations with the State are so continuous and systematic
as to render them essentially at home in the forum State.”
Goodyear Dunlop Tires Operations, S.A. v. Brown, 131
S.Ct. 2846, 2851 (2011) (internal quotations omitted).
There is insufficient evidence to establish that Extradition
Transport maintains such a presence in Montana that
general jurisdiction exists.
*3 Specific jurisdiction exists when a defendant has
sufficient minimum contacts with the forum state to
warrant the exercise of jurisdiction. The Ninth Circuit
Court of Appeals has established a three prong test for
determining the existence of specific jurisdiction:
(1) The non-resident defendant must purposefully direct
his activities or consummate some transaction with the
forum or a resident thereof; or perform some act by
which he purposefully avails himself of the privilege of
conducting activities in the forum, thereby invoking the
benefits and protections of its laws;
(2) the claim must be one which arises out of or relates
to the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair
play and substantial justice, i.e. it must be reasonable.
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797,
802 (9th Cir.2004) (quoting Lake v. Lake, 817 F.2d 1416,
1421 (9th Cir.1987)).
Lewis has established that Extradition Transport was
transacting the business of transporting prisoners in the

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state of Montana. The company purposefully availed
itself of the privilege of conducting activities in Montana;
Lewis's claims, arise, at least in part, from actions
committed in Montana; and the exercise of jurisdiction is
reasonable.
Accordingly, the Court has both subject matter and
personal jurisdiction.

B. Default Judgment
The Ninth Circuit has set forth the following factors for a
district court to consider before exercising its discretion to
award a default judgment:

(1) the possibility of prejudice to
the plaintiff; (2) the merits of
plaintiff's substantive claim; (3) the
sufficiency of the complaint; (4)
the sum of money at stake in
the action; (5) the possibility of a
dispute concerning material facts;
(6) whether the default was due
to excusable neglect; and (7) the
strong policy underlying the Federal
Rules of Civil Procedure favoring
decisions on the merits.

Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir.1986). In
its prior Order, the Court found that the first, third, and
sixth factors have been met. (Doc. 25.) In addition, there
is no indication that Extradition Transport's default is due
to excusable neglect or that the material facts are subject
to dispute since Extradition Transport has not presented
a defense or otherwise communicated with the Court.
Furthermore, even though strong public policy favors
decisions on the merits, Pena v. Seguros La Comercial,
S.A., 770 F.2d 811, 814 (9th Cir.1985), it does not
appear that litigation of the merits will be possible due to
Extradition Transport's refusal to litigate.
The factual basis of Lewis's substantive claim is as follows:
Lewis was arrested in Arizona on a warrant issued out
of Missoula County for felony sexual intercourse without
consent. For a six-day period ending on May 27, 2013,
Lewis was transported from Florence, Pinal County,
Arizona to the Missoula County Detention Center by two

employees of Defendant Extradition Transport. He was
transported in a van with nine prisoners in total: five males
and four females, one of which was pregnant. Lewis was
the first prisoner to be picked up and the last to be dropped
off. The van traveled through fifteen states. Starting
in Arizona, the van traveled to New Mexico, Texas,
Louisiana, Mississippi, Alabama, Tennessee, Kentucky,
Illinois, Missouri, Arkansas, Oklahoma, and then back
through Texas, New Mexico, Arizona, California, Idaho,
Nevada, Idaho and Montana.
*4 During the six-day transport, Lewis was shackled
continuously, he was not allowed to shower, not given
proper hygiene, and was denied access to a restroom for
up to eight hours at a time. There was no ventilation in
the van. Lewis was given a small snack like a muffin and
some water three times a day. On or about May 25, 2013,
Lewis and the seven other inmates being transported were
told to urinate in paper cups. When doing so, Lewis soiled
himself and had to sit in soiled clothes for three days.
The prisoner next to Lewis also had soiled clothing. The
transport did not stop at any jail or other related facility
to allow an opportunity for shower, sleep, or rest during
the six-day transport. Lewis alleges Extradition Transport
acted under color of state law for purposes of § 1983 based
upon the company's contract with Missoula County Jail.
(Doc. 2 at 7–8.)
To state a claim under 42 U.S.C. § 1983, a plaintiff must
allege two elements: (1) that a right secured by the United
States Constitution or the laws of the United States was
violated, and (2) that the violation was committed by a
person acting under color of state law. West v. Atkins,
487 U.S. 42, 48 (1988); Gomez v. Toledo, 446 U.S. 635,
640 (1980). Although Extradition Transport is a private
company, it was performing an “exclusive government
function,” something it could not have done without
authorization from the state. See Lugar v. Edmondson
Oil Co., 457 U.S. 922, 939 (1982). Therefore, it will be
presumed that Extradition Transport was operating as a
state actor in this situation. See also Correctional Services
Corp. v. Malesko, 534 U.S. 61, 71 n.5 (2001) (“state
prisoners ... already enjoy a right of action against private
correctional providers under 42 U.S.C. § 1983”). 2
2

Various district courts have allowed plaintiffs to
proceed in claims brought pursuant to § 1983
against private corporations that provide prison
transport services. See, e.g., Schilling v. TransCor

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

3

Lewis v. Extradition Transport of America, Not Reported in F.Supp.3d (2014)
2014 WL 494573
America, LLC, 2008 WL 3463510 (N.D.Cal. Aug. 11,
2008)(allowing constitutional claims against private
transport company to proceed without deciding state
action issue); Dailey v. Hunter, No. 04–392, 2006
WL 4847739 (M.D.Fla. March 22, 2006) (plaintiff
sufficiently pleaded that the defendant transport
company acted under color of state law for § 1983
purposes based on the transport company's alleged
contract for prisoner transportation with county
jail); Irons v. TransCor America, Inc., No. 01–
4328, 2006 WL 618856 (E.D.Pa. March 9, 2006)
(denying summary judgment in § 1983 action because
there existed a genuine issue of material fact as to
whether the defendant transport company was a state
actor since private prison companies obtain custody
over prisoners only by way of state authorization
and plaintiff established that “defendants exercised
control over him comparable to incarceration”);
Wine v. Dep't of Corrs., No. 00–C–704–C, 2000 WL
34229819 (W.D.Wis. Dec. 27, 2000) (finding that it
would be inappropriate to dismiss transport company
as a defendant in § 1983 action because plaintiff
had alleged facts sufficient to proceed against the
transport company as a state actor).

Based upon the exhibits to Lewis's Motion for Summary
Judgment, it appears that Lewis was serving a threeyear sentence in the Arizona Department of Corrections
prior to his transfer. (Doc. 5–1 at 5.) However, it is
presumed that Lewis is a pretrial detainee at the Missoula
County Detention Center. As a convicted prisoner,
Lewis's claims arise under the Eighth Amendment of
the United States Constitution. As a pretrial detainee,
Lewis's claims arise under the Fourteenth Amendment.
However, “even though the pretrial detainees' rights
arise under the Due Process Clause, the guarantees of
the Eighth Amendment provide a minimum standard
of care for determining their rights.” Oregon Advocacy
Center v. Mink, 322 F.3d 1101, 1120 (9th Cir.2003). The
Eighth Amendment's prohibition of cruel and unusual
punishment requires that prison officials take reasonable
measures for the safety of inmates. Farmer v. Brennan,
511 U.S. 825, 834 (1994). An official violates the Eighth
Amendment only when two requirements are met: (1) the
deprivation alleged is, objectively, sufficiently serious, and
(2) the official is, subjectively, deliberately indifferent to
the inmate's safety. Id. at 834. “[O]nly those deprivations
denying ‘the minimal civilized measure of life's necessities,’
are sufficiently grave to form the basis of an Eighth
Amendment violation.” Wilson v. Seiter, 501 U.S. 294, 298
(1991) (citation omitted).

*5 To determine whether an Eighth Amendment
violation has occurred, a court should consider the
circumstances, nature and duration of a deprivation of
these necessities. Johnson v. Lewis, 217 F.3d 726, 731 (9th
Cir.2000) (referring to necessities such as adequate shelter,
food, clothing, sanitation, medical care, and personal
safety); see also Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th
Cir.1982) (“in considering whether a prisoner has been
deprived of his rights, courts may consider the length of
time that the prisoner must go without these benefits ...
The longer the prisoner is without such benefits, the closer
it becomes to being an unwarranted infliction of pain.”).
Lewis testified to deplorable conditions during his
transport. Given the duration of these deprivations, the
Court finds that Extradition Transport was deliberately
indifferent to Lewis's safety and he was denied “the
minimal civilized measure of life's necessities.” Wilson,
501 U.S. 298. Lewis's well-pleaded allegations regarding
liability, which are taken as true in light of the Clerk's entry
of default, are sufficient to entitle Lewis to damages.
The Court should enter default judgment.
As a result of the transport, Lewis suffered wrist and
ankle swelling and bruising, an open wound abrasion
on his wrist which required antibiotic ointment, stress,
anxiety, and mental anguish. He testified that he now has
a bladder control problem which causes him to have to
use the restroom four to five times a night. This condition
becomes painful when he is not able to use the restroom
frequently. He has not, however, sought treatment for this
injury.
Lewis's Complaint requested $75,000.00 in compensatory
damages and attorney's fees in the event that counsel
was obtained or appointed. (Complaint, Doc. 2 at 9.) 3
The evidence presented by Lewis at the hearing clearly
justifies the requested damages award of $75,000.00. As
no attorney has appeared in this action, the request for
attorneys fees should be denied.
3

Lewis's oral motion to amend the relief requested
section of his Complaint has been withdrawn. (Doc.
39.)

Accordingly, the Court issues the following:

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

4

Lewis v. Extradition Transport of America, Not Reported in F.Supp.3d (2014)
2014 WL 494573

RECOMMENDATION
Default judgment should be granted in favor of the
Plaintiff in the amount of $75,000.00.

NOTICE OF RIGHT TO OBJECT TO
FINDINGS & RECOMMENDATIONS AND
CONSEQUENCES OF FAILURE TO OBJECT
The parties may file objections to these Findings and
Recommendations within fourteen (14) days after service
(mailing) hereof. 4 28 U.S.C. § 636. Failure to timely file

written objections may bar a de novo determination by the
district judge and/or waive the right to appeal.
4

As this deadline allows a party to act after the
Findings and Recommendations is “served,” it falls
under Fed.R.Civ.P. 6(d). Therefore, three (3) days are
added after the period would otherwise expire.

This order is not immediately appealable to the Ninth
Circuit Court of Appeals. Any notice of appeal pursuant
to Fed.R.App.P. 4(a), should not be filed until entry of the
District Court's final judgment.

All Citations
Not Reported in F.Supp.3d, 2014 WL 494573

End of Document

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5

McCorvey v. Prison Transport Services of America, LLC, Not Reported in Fed. Supp....
2017 WL 2256778

2017 WL 2256778
Only the Westlaw citation is currently available.
United States District Court, E.D. Louisiana.
Michael Hosea MCCORVEY, Sr.
v.
PRISON TRANSPORT SERVICES
OF AMERICA, LLC, et al.
CIVIL ACTION NO. 16-16993
|
Signed 05/23/2017
Attorneys and Law Firms
Michael Hosea McCorvey, Sr., New Orleans, LA, pro se.

SECTION: “A”(1)
ORDER
JAY C. ZAINEY, UNITED STATES DISTRICT
JUDGE
*1 The Court, having considered the complaint,
the record, the applicable law, the Report and
Recommendation of the United States Magistrate Judge,
and the failure of any party to file an objection to the
Magistrate Judge’s Report and Recommendation, hereby
approves the Report and Recommendation of the United

States Magistrate Judge and adopts it as its opinion in this
matter. Therefore,
IT IS ORDERED that plaintiff’s claims against Sheriff
Marlin Gusman are DISMISSED WITH PREJUDICE
as frivolous and/or for failure to state a claim on which
relief may be granted.
IT IS FURTHER ORDERED that the following
defendants and all claims against them are severed and
transferred to the United States District Court for the
Middle District of Tennessee, Nashville Division: Prison
Transport Services of America, LLC; the unidentified
president of that corporation; and Officers Jordan and
Davison.
IT IS FURTHER ORDERED that no ruling is made
as to the sufficiency of the complaint with respect to
the claims that have been severed and transferred to the
Middle District of Tennessee, Nashville Division, leaving
that determination to the receiving court.
IT IS FURTHER ORDERED that the Clerk of Court
shall advise the Clerk of the Middle District of Tennessee,
Nashville Division, in writing, of the entry of this Order
and provide the Clerk with a certified copy of this Order
and of the docket report for this action, together with all
information necessary for the Clerk of the receiving court
to electronically access the documents filed in this action.

All Citations
Not Reported in Fed. Supp., 2017 WL 2256778

End of Document

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1

McCorvey v. Prison Transport Services of America, LLC, Not Reported in Fed. Supp....

2017 WL 2270024
Only the Westlaw citation is currently available.
United States District Court, E.D. Louisiana.
Michael Hosea MCCORVEY, Sr.
v.
PRISON TRANSPORT SERVICES
OF AMERICA, LLC, et al.

Attorneys and Law Firms
Michael Hosea McCorvey, Sr., New Orleans, LA, pro se.

SECTION: “A”(1)
REPORT AND RECOMMENDATION
UNITED

Based on the allegations of plaintiff’s complaint, broadly
construed, 1 and his Spears hearing testimony, the Court
finds that he is making the following allegations in this
lawsuit.
1

CIVIL ACTION NO. 16-16993
|
Signed 04/25/2017

JANIS VAN MEERVELD,
MAGISTRATE JUDGE

becomes a part of the total filing by the pro se applicant.
Id.

STATES

*1 Plaintiff, Michael Hosea McCorvey, Sr., a state
inmate, filed this federal civil action pursuant to 42
U.S.C. § 1983. His claims in this lawsuit arise from events
which occurred on a van while he was being transported
from South Carolina to Louisiana. He has sued the van
operator, Prison Transport Services of America, LLC,
which he identifies as a corporation based in Nashville,
Tennessee. He has also sued the unidentified president of
that corporation and two officers, Jordan and Davison,
all of whom he alleges also reside in Nashville. Lastly, he
has sued Orleans Parish Sheriff Marlin Gusman.
To better understand the factual basis of plaintiff’s
lawsuit, the Court held a Spears hearing on April 10,
2017. See Spears v. McCotter, 766 F.2d 179 (5th Cir.
1985). “[T]he Spears procedure affords the plaintiff an
opportunity to verbalize his complaints, in a manner of
communication more comfortable to many prisoners.”
Davis v. Scott, 157 F.3d 1003, 1005-06 (5th Cir. 1998). The
United States Fifth Circuit Court of Appeals has observed
that a Spears hearing is in the nature of a Fed. R. Civ. P.
12(e) motion for more definite statement. Eason v. Holt,
73 F.3d 600, 602 (5th Cir. 1996). Spears hearing testimony

The Court must liberally construe a pro se civil rights
complaint. See Moore v. McDonald, 30 F.3d 616, 620
(5th Cir. 1994).

In October of 2016, plaintiff was extradited from the
Anderson County Detention Center in Anderson, South
Carolina, to the Orleans Justice Center in New Orleans,
Louisiana. He was transported in a van operated by Prison
Transport Services of America, LLC. He alleges he was
subjected to unconstitutional conditions of confinement
during the seven-day journey. Specifically, he alleges that
the van was overcrowded and he was “not able to take
baths, or take care of personal hygiene for days.” 2 He
further alleges that the van was involved in an “almost
fatal accident” in Atlanta, Georgia, when the van driver
hit another vehicle. 3 Plaintiff claims that he suffered a
leg injury, loss of balance, and a painful ear infection
during the journey. He further claims that he developed
arthritis in his right leg. Despite these physical problems,
he received no medical treatment until he arrived in New
Orleans.
2

Rec. Doc. 6-1, p. 10.

3

Rec. Doc. 17.

At the Spears hearing, plaintiff stated that, except for
periodic bathroom breaks, he was on the van continuously
for five days of the circuitous seven-day trip; the van
stopped for only one overnight break on the fifth day.
Also at the hearing, plaintiff was asked why he named
Sheriff Gusman as a defendant in this action. Plaintiff
responded that Gusman’s only involvement was that he
“executed the extradition”; plaintiff testified that Gusman
was not involved in plaintiff’s transportation from South
Carolina to Louisiana or the events of the seven-day
journey. Plaintiff stated that he requested and received
medical attention for both his leg injury and ear problem
upon his arrival in New Orleans. He testified that he has
not been denied medical care while in New Orleans, and
he stated that the medical care he has received has been
adequate.

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1

McCorvey v. Prison Transport Services of America, LLC, Not Reported in Fed. Supp....

On review, the court shall identify cognizable claims or
dismiss the complaint, or any portion of the complaint,
if the complaint—

*2 In that this action’s connections to this judicial district
are obviously tenuous, the Court will first address the
issue of venue. Because 42 U.S.C. § 1983 contains no
specific venue provision, venue is determined pursuant to
28 U.S.C. § 1391, the general venue statute. See Jones v.
Bales, 58 F.R.D. 453, 458 (N.D. Ga. 1972), aff'd, 480 F.
2d 805 (5th Cir. 1973). That statute provides:

(1) is frivolous, malicious, or fails to state a claim
upon which relief may be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.

A civil action may be brought in—
(1) a judicial district in which any defendant resides,
if all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred,
or a substantial part of property that is the subject of
the action is situated; or
(3) if there is no district in which an action may
otherwise be brought as provided in this section, any
judicial district in which any defendant is subject to
the court’s personal jurisdiction with respect to such
action.
28 U.S.C. § 1391(b).

28 U.S.C. § 1915A(b).
4

“[T]he term ‘prisoner’ means any person incarcerated
or detained in any facility who is accused of, convicted
of, sentenced for, or adjudicated delinquent for,
violations of criminal law or the terms and conditions
of parole, probation, pretrial release, or diversionary
program.” 28 U.S.C. § 1915A(c).

Additionally, with respect to actions filed in forma
pauperis, such as the instant lawsuit, federal law similarly
provides:
Notwithstanding any filing fee, or any portion thereof,
that may have been paid, the court shall dismiss the case
at any time if the court determines that ... the action ...
(i) is frivolous or malicious;

The instant federal civil rights action challenges the
conditions and events which occurred during an interstate
prison transport. No substantial part of the events
or omissions giving rise to plaintiff’s claims occurred
within this judicial district. Moreover, all but one of the
defendants reside in Nashville, Tennessee. Although one
defendant, Sheriff Gusman, does reside within this district
and is subject to the court’s personal jurisdiction, Gusman
was not personally involved in the events giving rise to
plaintiff’s claims.
It is clear that the claims against Gusman are appropriate
for immediate sua sponte dismissal under federal law.
Specifically, federal law mandates that federal courts
“review, before docketing, if feasible or, in any event,
as soon as practicable after docketing, a complaint in
a civil action in which a prisoner seeks redress from
a governmental entity or officer or employee of a
governmental entity.” 28 U.S.C. § 1915A(a). 4 Regarding
such lawsuits, federal law further requires:

(ii) fails to state a claim on which relief may be
granted; or
(iii) seeks monetary damages against a defendant who
is immune from such relief.
28 U.S.C. § 1915(e)(2)(B).
A complaint is frivolous “if it lacks an arguable basis in
law or fact.” Reeves v. Collins, 27 F.3d 174, 176 (5th
Cir. 1994). In making a determination as to whether a
claim is frivolous, the Court has “not only the authority
to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the
complaint’s factual allegations and dismiss those claims
whose factual contentions are clearly baseless.” Neitzke
v. Williams, 490 U.S. 319, 327 (1989); Macias v. Raul A.
(Unknown), Badge No. 153, 23 F.3d 94, 97 (5th Cir. 1994).
*3 A complaint fails to state a claim on which relief
may be granted when the plaintiff does not “plead enough
facts to state a claim to relief that is plausible on its face.

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2

McCorvey v. Prison Transport Services of America, LLC, Not Reported in Fed. Supp....

Factual allegations must be enough to raise a right to relief
above the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” In re Katrina Canal Breaches Litigation, 495 F.3d
191, 205 (5th Cir. 2007) (citation, footnote, and quotation
marks omitted). The United States Supreme Court has
explained:

A claim has facial plausibility
when the plaintiff pleads factual
content that allows the court
to draw the reasonable inference
that the defendant is liable
for the misconduct alleged. The
plausibility standard is not akin
to a “probability requirement,”
but it asks for more than a
sheer possibility that a defendant
has acted unlawfully. Where a
complaint pleads facts that are
merely consistent with a defendant’s
liability, it stops short of the line
between possibility and plausibility
of entitlement to relief.

multiple defendants should be severed and certain claims
transferred to a more convenient forum.” Cain v. New
York State Board of Elections, 630 F. Supp. 221, 225
(E.D.N.Y. 1986); accord Wyndham Associates v. Bintliff,
398 F.2d 614, 618-19 (2d Cir. 1968); Baez v. Ranjan, No.
9:16-CV-0661, 2016 WL 3566862, at *4 (N.D.N.Y. June
27, 2016). As the court explained in Cain:

A claim may be severed based upon
lack of a significant relationship
between defendants or solely for
the purpose of facilitating transfer.
Where the administration of justice
would be materially advanced by
severance and transfer, a court may
properly sever the claims against one
or more defendants for the purpose
of permitting the transfer of the
action against other defendants.

Cain, 630 F. Supp. at 225-26; accord Wyndham
Associates, 398 F.2d at 618; Baez, 2016 WL 3566862, at
*4.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citations and
quotation marks omitted).

In the instant case, plaintiff’s cognizable claims, if
any, are against the van operator, Prison Transport
Services of America, LLC, the unidentified president of

Here, plaintiff has no viable claim against Sheriff Gusman.
As plaintiff conceded at the Spears hearing, Gusman was
not personally involved in plaintiff’s transportation from
South Carolina to Louisiana or the events of the seven-day
journey. Because “[p]ersonal involvement is an essential
element of a civil rights cause of action,” Thompson
v. Steele, 709 F.2d 381, 382 (5th Cir. 1983), there is
simply no basis for holding Gusman liable for the events
and omissions during the trip which purportedly caused
plaintiff’s injuries. Therefore, the claims against Gusman
should be dismissed as frivolous and/or for failure to state
a claim on which relief may be granted.

that corporation, and/or Officers Jordan and Davison. 5
Plaintiff alleges that the corporation is based in Nashville,
Tennessee, and that the named officers likewise reside in
Nashville. The interests of justice dictate that the claims
against the Tennessee defendants be transferred to the
United States District Court for the Middle District of
Tennessee, Nashville Division, for disposition. Not only
do those defendants reside within that judicial district,
but the majority of relevant witnesses and evidence will
presumably also be located in Nashville. On the whole, it
will be more convenient and less expensive for the parties
to litigate the claims against the Tennessee defendants in
Tennessee.

The next question is whether it is appropriate for the Court
to sever the claims against the remaining defendants and
transfer them to Tennessee for adjudication. It is.
“Even when venue is proper, a court may determine
that, in the interest of justice, an action between

5

At first blush, it might seem as though the claims
against those defendants would not be cognizable
under § 1983 for lack of state action. However,
jurisprudence indicates otherwise:
Various district courts have allowed plaintiffs to
proceed in claims brought pursuant to § 1983

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

3

McCorvey v. Prison Transport Services of America, LLC, Not Reported in Fed. Supp....

against private corporations that provide prison
transport services. See, e.g., Schilling v. TransCor
America, LLC, 2008 WL 3463510 (N.D. Cal. Aug.
11, 2008) (allowing constitutional claims against
private transport company to proceed without
deciding state action issue); Dailey v. Hunter,
No. 04-392, 2006 WL 4847739 (M.D. Fla. March
22, 2006) (plaintiff sufficiently pleaded that the
defendant transport company acted under color
of state law for § 1983 purposes based on the
transport company’s alleged contract for prisoner
transportation with county jail); Irons v. TransCor
America, Inc., No. 01-4328, 2006 WL 618856 (E.D.
Pa. March 9, 2006) (denying summary judgment
in § 1983 action because there existed a genuine
issue of material fact as to whether the defendant
transport company was a state actor since private
prison companies obtain custody over prisoners
only by way of state authorization and plaintiff
established that “defendants exercised control over
him comparable to incarceration”); Wine v. Dep't
of Corrs., No. 00-C-704-C, 2000 WL 34229819
(W.D. Wis. Dec. 27, 2000) (finding that it would
be inappropriate to dismiss transport company
as a defendant in § 1983 action because plaintiff
had alleged facts sufficient to proceed against the
transport company as a state actor).
Lewis v. Extradition Transport of America, No. CV
13-138, 2014 WL 494573, at *4 n.2 (D. Mont. Feb.
5, 2014); accord Nave v. Trans-Cor of America, C/A
No. 8:06-1065, 2007 WL 2156670, at *4 (D.S.C. July
26, 2007).

RECOMMENDATION
*4 It is therefore RECOMMENDED that the claims
against Sheriff Marlin Gusman be DISMISSED WITH
PREJUDICE as frivolous and/or for failure to state a
claim on which relief may be granted.
It is FURTHER RECOMMENDED that the following
defendants and all claims against them be severed and
transferred to United States District Court for the
Middle District of Tennessee, Nashville Division: Prison
Transport Services of America, LLC; the unidentified
president of that corporation; and Officers Jordan and
Davison.
A party’s failure to file written objections to the
proposed findings, conclusions, and recommendation in
a magistrate judge’s report and recommendation within
fourteen (14) days after being served with a copy shall
bar that party, except upon grounds of plain error, from
attacking on appeal the unobjected-to proposed factual
findings and legal conclusions accepted by the district
court, provided that the party has been served with notice
that such consequences will result from a failure to object.
28 U.S.C. § 636(b)(1); Douglass v. United Services Auto.
Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).

All Citations
Not Reported in Fed. Supp., 2017 WL 2270024

End of Document

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4

Nave v. Trans-Cor of America, Not Reported in F.Supp.2d (2007)
2007 WL 2156670
released from ACI in November 2006 and currently
resides in Orlando, Florida. See Oct. 16, 2006 Letter
from Plaintiff (Entry 16); May 23, 2007 Letter from
Plaintiff (Entry 17).

2007 WL 2156670
Only the Westlaw citation is currently available.
United States District Court, D. South Carolina.

In accordance with 28 U.S.C. § 636(b) and Local Rule
73.02, D.S.C ., this matter was referred to United
States Magistrate Judge Bruce Howe Hendricks for
pretrial handling. The Magistrate Judge filed a Report
and Recommendation on May 16, 2006, in which she
recommended that the complaint be summarily dismissed
without prejudice and without issuance and service of
process. Report and Recommendation, 5 (Entry 12). On
June 5, 2006, Plaintiff filed objections to the Report and
Recommendation. Objections (Entry 14).

Toby Scott NAVE, a/k/a Toby S. Nave, Plaintiff,
v.
TRANS–COR OF AMERICA 1 ; Cpl.
Young; John Doe, Aiken County Detention
Center Administrator, Defendants.
1

Plaintiff identified this defendant by the name
“Trans–Cor of America”; however, according to the
corporation's website, the appropriate spelling of
the name is “TransCor America.” See TransCor
America Home Page, http://www.transcor.com/
(last visited July 25, 2007). Throughout the
instant order, the court refers to this defendant as
“TransCor America” or “TransCor.”

C/A No. 8:06–1065–MBS–BHH.
|
July 26, 2007.
Attorneys and Law Firms
Toby Scott Nave, Orlando, FL, pro se.

ORDER
MARGARET B. SEYMOUR, United States District
Judge.
*1

Plaintiff Toby Scott Nave, appearing pro se,

The Magistrate Judge makes only a recommendation
to this court. The recommendation has no presumptive
weight. The responsibility for making a final
determination remains with this court. Mathews v. Weber,
423 U.S. 261, 270, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976). The
court is charged with making a de novo determination of
any portions of the Report of Magistrate Judge to which a
specific objection is made. The court may accept, reject, or
modify, in whole or in part, the recommendation made by
the Magistrate Judge or may recommit the matter to the
Magistrate Judge with instructions. 28 U.S.C. § 636(b)(1).
The district court need not conduct a de novo review when
a party makes only general and conclusory objections that
do not direct the court to a specific error in the Magistrate
Judge's proposed findings and recommendations. Orpiano
v. Johnson, 687 F.2d 44, 47–48 (4th Cir.1982).

FACTS

2

brought this action pursuant to 42 U.S.C. § 1983.
Plaintiff alleges that the defendants subjected him to
medical indifference after he sustained injuries in a
vehicle collision that occurred when Defendant TransCor
America (“TransCor”), a company that provides prisoner
transportation and extradition services, and one of its
bus drivers, Defendant Young, transported Plaintiff from
Florida to South Carolina.
2

At the time he brought this action, Plaintiff
was in the custody of the South Carolina
Department of Corrections (“SCDC”) and housed
at Allendale Correctional Institution (“ACI”) in
Fairfax, South Carolina. According to Plaintiff's
subsequent communications with the court, he was

According to Plaintiff, the Florida Department of
Corrections released him into the custody of Defendant
TransCor on December 26, 2003 for the purposes of
extraditing him to South Carolina pursuant to a fugitive
warrant pending in Aiken County. On December 28,
2003, TransCor loaded Plaintiff and twenty-two other
detainees onto one of its buses to be driven by Defendant
Young. Plaintiff states that he was “shackled to another
detainee ... [who] weighed in excess of 200 pounds.”
Amended Complaint, 3 (Entry 13). According to Plaintiff,
no seatbelts or other safety devices were used to restrain
any of the detainees.

© 2019 Thomson Reuters. No claim to original U.S. Government Works.

1

Nave v. Trans-Cor of America, Not Reported in F.Supp.2d (2007)
2007 WL 2156670

Plaintiff avers that Defendant Young operated the bus
in an erratic manner as it headed north on Interstate–
95 despite the large volume of cars on the highway due
to the holiday season. Plaintiff states that Defendant
Young “drove the bus at speeds in excess of the posted
limits, passed vehicles on the right, weaved [sic] in traffic,
and followed other vehicles at too close a distance.” Id.
Apparently, when the bus neared Brunswick, Georgia,
Defendant Young again “attempted to move from the
passing (left) lane to the right lane in order to pass slower
traffic,” at which point the bus “struck the vehicle in the
right lane, swerved back to the left lane[,] ... slammed
on the brakes to avoid striking a vehicle in front of the
bus,” and then “struck the retaining rail on the left side
of the road.” Id. Plaintiff states that the impact caused
him to be “thrown forward into the cage that separates the
passengers from the driver,” and caused “the individual to
whom the Plaintiff was shackled [to] land[ ] on Plaintiff's
back.” Id. at 4. Plaintiff and a number of the other
detainees sustained injuries in the collision. Plaintiff's
injuries include facial lacerations, as well as severe neck
and back pains. Id.
*2 Plaintiff states that the detainees—many of whom
were injured—remained on the bus without medical
assistance while state patrol officers investigated the
incident and the bus's flat tires were repaired. Id. At some
point, Defendant Young drove the bus to a truck stop, and
then later to a local hospital, where six of the detainees
including Plaintiff were taken to the emergency room.
After Plaintiff received treatment, he and the other injured
detainees were placed back onto the bus. Plaintiff states
that he “remained shackled to the same individual and no
seatbelts or other safety restraints were used.” Id.
From December 29, 2003 to January 4, 2004, Plaintiff
was held in Buncombe County Detention Center
(“BCDC”) in Asheville, North Carolina. Plaintiff avers
that a representative of Defendant TransCor visited
him at BCDC and that “Plaintiff was assured by the
representative that he would receive follow-up care upon
his arrival at the county facility which requested his
extradition.” Id. at 5. On January 4, Defendant TransCor
transported Plaintiff to Aiken County Detention Center
(“ACDC”). Plaintiff states that he informed the booking
officers of the bus accident and “complained of the pain
he was suffering.” Id. “Eventually, Plaintiff was taken to
Aiken Regional Medical Center for x-rays and ... was
prescribed pain medication.” Id. According to Plaintiff,

he did not receive any subsequent follow-up care despite
being “told [that] he would be referred to a specialist
for his neck and back injuries.” Id. During the time
Plaintiff was held at ACDC, he claims to have complained
to various members of the medical staff “that he was
experiencing extreme pain in his neck and back, had
limited range of motion in his neck, numbness in his legs,
and blurred vision.” Id.
Plaintiff filed the instant complaint against Defendants
TransCor and Young on December 23, 2005 in the
Southern District of Georgia. Complaint, 1 (Entry –2).
Plaintiff asserted that Defendants TransCor and Young
acted negligently during Plaintiff's extradition. Id. at 9.
Plaintiff also claimed that Defendant TransCor's failure
to provide adequate medical treatment and follow-up care
violated his Eighth and Fourteenth Amendment rights,
thereby subjecting him to medical indifference and due
process violations. Id. at 9–10. On March 30, 2006, United
States District Judge Anthony A. Alaimo issued an order
transferring the case to the District of South Carolina.
Plaintiff filed an amended complaint on May 22, 2006,
in which he named John Doe, ACDC Administrator, as
a defendant. Amended Complaint, 1. Plaintiff's amended
complaint also reasserted his claims of negligence and
constitutional violations against Defendants TransCor
and Young. Id. at 6–7.

DISCUSSION
A. Subject Matter Jurisdiction
Plaintiff objects to the Report and Recommendation
on the ground that the Magistrate Judge erred in
finding that the court lacked subject matter jurisdiction.
Plaintiff contends that the Magistrate Judge improperly
characterized his claims as alleging only that Defendants
were negligent in their transport of Plaintiff from Florida
to South Carolina and that SCDC refused to treat
Plaintiff's injuries. Plaintiff asserts that this inaccurate
reading of the complaint precipitated the Magistrate
Judge's recommendation that the case be summarily
dismissed because negligence claims are not cognizable
under § 1983 and the court lacked jurisdiction because the
requirements of the diversity statute, 28 U.S.C. § 1332(a),
were not satisfied. Plaintiff asserts that, to the contrary,
he has raised constitutional claims, thus bringing the case
within the court's federal question jurisdiction pursuant to
28 U.S.C. §§ 1331 and 1343(a). He further asserts that the

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Nave v. Trans-Cor of America, Not Reported in F.Supp.2d (2007)
2007 WL 2156670

court may exercise supplemental jurisdiction over the state
law negligence claims pursuant to 28 U.S.C. § 1367.
*3 Federal question jurisdiction is governed by 28 U.S.C.
§§ 1331. Section 1331 provides that “district courts shall
have original jurisdiction of all civil actions arising under
the Constitution, laws, or treaties of the United States.”
28 U.S.C. §§ 1331. “The presence or absence of federalquestion jurisdiction is [determined] by the ‘well-pleaded
complaint rule,’ which provides that federal jurisdiction
exists only when a federal question is presented on the face
of the plaintiff's properly pleaded complaint.” Caterpillar,
Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96
L.Ed.2d 318 (1987) (internal citations omitted). Courts
generally “look no further than the plaintiff's complaint
in determining whether a lawsuit raises issues of federal
law capable of creating federal-question jurisdiction under
28 U.S.C. § 1331.” King v. Marriott Int'l, Inc., 337 F.3d
421, 424 (4th Cir.2003) (citing Custer v. Sweeney, 89
F.3d 1156, 1165 (4th Cir.1996)). If federal law creates
the plaintiff's cause of action, then federal courts have
jurisdiction. See Dixon v. Coburg Dairy, Inc., 369 F.3d
811, 816 (4th Cir.2004) (“The vast majority of lawsuits
‘arise under the law that creates the cause of action.’
Thus, we must ‘first discern whether federal or state law
creates the cause of action.... In cases where federal law
creates the cause of action, the courts of the United States
unquestionably have federal subject matter jurisdiction.’
”) (internal citations omitted).
Plaintiff's claims meet the basic requirements of federal
question jurisdiction. In both the initial complaint
and the amended complaint, Plaintiff makes various
allegations that Defendants violated his constitutional
rights. See Complaint, 9 (“[TransCor] violated Plaintiff's
8th and 1 3 Amendment rights to be free from cruel
and unusual punishment and due process by failing to
provide adequate medical care and follow-up care for
Plaintiff's injuries and knowingly made [sic] an attempt
to conceal such injuries by seizing and hiding Plaintiff
for six days without any attempt to assist Plaintiff in the
aid and care of his said injuries.”); id. at 10 (alleging
“deliberate indifference and denial of due process in that
[TransCor] through it's [sic] employee Cpl. Young was
directly responsible for any and all injuries incurred [by
Plaintiff during the bus accident] ); Amended Complaint,
7 (alleging that “Plaintiff's right to due process under the
Fourteenth Amendment was violated by the deliberate
indifference of Plaintiff's serious medical needs on the part

of TransCor America, Corporal Young, and John Doe”)?
It is apparent that Plaintiff's allegations arise under
the Constitution; thus, Plaintiff's allegations give rise to
general federal question jurisdiction under 28 U.S.C. §
1331. See Bell v. Hood, 327 U.S. 678, 681–82, 66 S.Ct. 773,
90 L.Ed. 939 (1946) (“Where the complaint ... is so drawn
as to seek recovery directly under the Constitution or laws
of the United States, the federal court, but for two possible
exceptions ... must entertain the suit.”). 4 Accordingly, the
court declines to summarily dismiss Plaintiff's case for lack
of subject matter jurisdiction. 5
3

4

5

See also Complaint, 10 (“[TransCor] did wilfully
deny me my civil rights and thus prevented the
8th and 14th Amendments to be used as they were
constituted by law, by knowingly depriving me of
the adequate care needed for injuries brought upon
me by their driver and employee to whom they
are responsible.”); Amended Complaint, 6 (“Young
demonstrated deliberate indifference to Plaintiff's
serious medical needs following the ... bus crash by
failing to immediately have Plaintiff transported to
a hospital for treatment”); id. (“TransCor America
demonstrated deliberate indifference to Plaintiff's
serious medical needs following the ... bush crash
by filing [sic] to provide any follow-up treatment
for Plaintiff's injuries”; id. at 6–7 (“John Doe
demonstrated deliberate indifference to Plaintiff's
serious medical needs while in the custody of [ACDC]
by failing to provide proper care for Plaintiff's
injuries”).
The “two possible exceptions” are allegations that
are “immaterial and made solely for the purpose of
obtaining jurisdiction” and claims that are “wholly
insubstantial and frivolous.” Id. at 682–83. In
the court's view, neither exception applies in this
case because Plaintiff's allegations of constitutional
violations constitute the core of his complaint and do
not appear to be frivolous.
Likewise, the court may exercise supplemental
jurisdiction over Plaintiff's related negligence claims
pursuant to 28 U.S.C. § 1367 when, as in this case, it
possesses original jurisdiction over a federal question.
See 28 U.S.C. § 1367(a) (providing that “district
courts shall have supplemental jurisdiction over all
other claims that are so related to claims in the action
within such original jurisdiction that they form part
of the same case or controversy under Article III of
the United States Constitution”).

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Nave v. Trans-Cor of America, Not Reported in F.Supp.2d (2007)
2007 WL 2156670

B. Section 1983
*4 The question becomes, then, whether Plaintiff has
asserted a claim upon which relief may be granted under
42 U.S.C. § 1983. In order to state a cause of action
under § 1983, a plaintiff must allege that (1) the named
defendant deprived him of a federal right, and (2) the
defendant did so under color of state law. Gomez v.
Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 64 L.Ed.2d
572 (1980). The court finds that Plaintiff has articulated
allegations sufficient to survive summary dismissal. As
discussed supra, Plaintiff has alleged that Defendants
deprived him of his Eighth and Fourteenth Amendment
rights. Furthermore, Plaintiff's claims against Defendants
TransCor and Young also indicate that they were
functioning as state actors for purposes of surviving
summary dismissal. See DeBauche v. Trani, 191 F.3d
499, 506 (4th Cir.1999) (setting out the “four exclusive
circumstances” under which a private party could be
deemed a state actor, including “when the state has sought
to evade a clear constitutional duty through delegation
to a private actor ... [or] delegated a traditionally and
exclusively public function to a private actor”). Various
district courts have allowed plaintiffs to proceed in claims
brought pursuant to § 1983 against private corporations
that provide prison transport services, including cases
involving Defendant TransCor. See, e.g., Dailey v. Hunter,
No. 04–392, 2006 U.S. Dist. LEXIS 82412, at *12
(M.D.Fla. March 22, 2006) (finding that plaintiff had
sufficiently pleaded that defendant TransCor acted under
color of state law for § 1983 purposes based on TransCor's
alleged contract for prisoner transportation with county
jail); Irons v. TransCor America, Inc., No. 01–4328,
2006 U.S. Dist. LEXIS 9685, *12 (E.D.Pa. March 9,
End of Document

2006) (denying summary judgment in § 1983 action
because there existed a genuine issue of material fact as
to whether defendants, including TransCor, were state
actors since private prison companies obtain custody
over prisoners only by way of state authorization and
plaintiff established that “defendants exercised control
over him comparable to incarceration”); Wine v. Dep't
of Corrs., No. 00–704, 2000 U.S. Dist. LEXIS 22555, at
*8–9 (W.D.Wis. Dec. 27, 2000) (finding that it would be
inappropriate to dismiss TransCor as a defendant in §
1983 action because plaintiff had alleged facts sufficient
to proceed against TransCor as a state actor). Likewise,
this courts finds that it would be inappropriate to dismiss
Plaintiff's case at the summary dismissal stage.

CONCLUSION
The court has accepted all of Plaintiff's factual allegations
as true. After thoroughly reviewing the Report and
Recommendation in its entirety, the court declines to
adopt the Magistrate Judge's recommendation that the
case be summarily dismissed without prejudice and
without issuance of service of process. The within action is
recommitted to the Magistrate Judge for further pretrial
handling.
IT IS SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2007 WL 2156670

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4

Nelson A. Taylor Co., Inc. v. Technology Dynamics Group Inc., Not Reported in F.Supp....
1997 WL 176325

1997 WL 176325
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
NELSON A. TAYLOR CO., INC., James
W. Taylor and John E. Taylor, Plaintiffs,
v.
TECHNOLOGY DYNAMICS GROUP
INC., d/b/a TDG Aerospace, Inc., David
Wensley and George Grauer, Defendants.
No. 95–CV–0431.
|
April 7, 1997.
Attorneys and Law Firms
ROEMER AND FEATHERSTONHAUGH, P.C.
Attorneys for Plaintiffs Capital Center, 99 Pine Street
Albany, N.Y. 12207–2781 OF COUNSEL: JAMES D.
FEATHERSTONHAUGH, ESQ. NADINE FEIDEN
SHADLOCK, ESQ.
NIXON, HARGRAVE, DEVANS & DOYLE Attorneys
for Defendants P.O. Box 1051, Clinton Square
Rochester, N.Y. 14603 OF COUNSEL: CAROLYN G.
NUSSBAUM, ESQ.
JACKSON, TUFTS, COLE & BLACK 650 California
Street San Francisco, CA 94108 ROSEMARY
S. POOLER, D.J. OF COUNSEL: DAVID T.
ALEXANDER, ESQ

MEMORANDUM-DECISION
AND ORDER INTRODUCTION
POOLER
*1 Plaintiffs Nelson A. Taylor, Inc. (“Taylor”), a New
York corporation, James Taylor, and John Taylor sued
defendants Technology Dynamics Group, Inc. (“TDG”),
a Delaware corporation qualified to do business in
California as TDG Aerospace, Inc., David Wensley, and
George Grauer, in an action filed in this district on March
29, 1995. The action grew out of a dispute concerning
a November 30, 1992, agreement (“the Agreement”)
made among TDG, major shareholders of TDG including
Grauer and Wensley, and Taylor in which Taylor agreed

to lend TDG up to $200,000 in return for a convertible
revolving promissory note and other consideration. As
a condition precedent to Taylor's performance, TDG
agreed to use its reasonable best efforts to elect a Taylor
representative to TDG's Board.
Plaintiffs allege in their complaint that TDG and the
individual defendants breached the Agreement along with
a subsequent modification to the agreement and a stock
issuance agreement. Plaintiffs also accuse defendants
of securities fraud. Defendants move for dismissal
under Fed.R.Civ.P. 12(b)(2) alleging that this court
lacks personal jurisdiction over them. They also request
dismissal of plaintiffs' securities fraud claim pursuant
to both Rule 9 and Rule 12(b)(6). Finally, defendants
seek the transfer of any remaining claims to the
Northern District of California pursuant to 28 U.S.C. §
1404(a). After considering the motions and accompanying
documents, I deny defendants' motion for dismissal
pursuant to Rule 12(b)(2), grant defendants' motion to
dismiss the securities fraud claim, and deny defendants'
motion to transfer venue.

BACKGROUND
In February 1992 TDG's then president Gerald Bench
contacted James Taylor, the president and CEO of Taylor.
Bench told James Taylor that TDG was interested in
meeting to discuss an agreement between TDG and
Taylor, that would include a loan from Taylor to TDG.
TDG, a designer and developer of over-the-wing deicing systems for commercial aircraft, also sought a
long-term relationship with a complementary company.
According to Taylor, TDG representatives subsequently
visited Taylor's Gloversville, New York office to negotiate
the Agreement. Although defendants dispute both the
frequency and significance of discussions in New York,
it is not disputed that over the next several months
extensive telephone communications ensued between
the companies. In addition, James Taylor traveled to
California to pursue negotiations.
On November 30, 1992, the Agreement was executed.
Under the Agreement, Taylor agreed to lend TDG up
to $200,000. TDG and its majority shareholders, Bench,
Grauer, and Wensley, made several promises in return for
the anticipated loans. TDG agreed to deliver a convertible

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revolving promissory note to Taylor and agreed that the
amount due on the note could be converted into shares
of TDG stock. TDG also agreed to give Taylor (1) the
opportunity to purchase an additional 5% of TDG shares
upon payment of a further $200,000 and (2) a right of
refusal to manufacture most TDG products. TDG further
guaranteed that it would not dilute the percentage of
stock issued to Taylor to less than 5% of the outstanding
common stock or to less than 10% of the common stock if
Taylor exercised its option to purchase additional stock.
Taylor was also given a first right of refusal on future share
issuances. In a section headed “Conditions Precedent
to Taylor's Performance,” the Agreement stated: “The
Company [TDG] shall use its reasonable best efforts to
cause a representative of Taylor to be elected to the
Company's Board of Directors.”
*2 Two addenda were made to the Agreement, one dated
November 1, 1992, and the other dated April 1, 1993. Only
the April 1, 1993, addendum (the “April 1st Addendum”)
is significant in this litigation. The April 1st Addendum
modified the original Agreement by providing that the
conversion price of shares to be exchanged for advances
under the original Agreement was $1.90 per share; that
is, the $200,000 promissory note could be converted into
105,000 shares of common stock. In addition, the April 1st
Addendum omitted the Agreement's language protecting
against dilution and instead guaranteed Taylor that if at
any time before October 1, 1997, TDG issued stock at less
than $1.90 per share, TDG would issue shares to Taylor
in an amount determined by a formula set forth in the
addendum.
By an “Agreement Restricting Issuance of Common
Stock” (the “Issuance Agreement”) effective April 1, 1993,
TDG, Wensley, Grauer, Bench, Taylor, and Bace Plastics
Group Inc. (“Bace”) agreed that in exchange for Bace
and Taylor allowing TDG (1) to issue additional common
stock and further (2) to issue 450,000 shares of stock to
its officers, employees and consultants in the future, the
TDG signatories would issue no further stock without the
written permission of Taylor and Bace.
James Taylor was elected to the TDG Board of Directors
on October 20, 1992. On April 24, 1994, with the written
consent of TDG and its shareholders, Taylor assigned its
interest under the Agreement and the addenda thereto to
James and John Taylor.

In their complaint, Taylor and James and John Taylor
allege that TDG and the individual defendants have
breached the Agreement, the April 1st Addendum,
and the Issuance Agreement. Specifically, the plaintiffs
allege that on November 17, 1994, Wensley asked
the Taylors to sign a third addendum that would
restrict Taylor's right of first refusal of manufacturing
opportunities. Wensley next asked James Taylor to sign a
resolution that approved certain stock issuances. Because
he believed these issuances would dilute the Taylors'
position below 10%, James Taylor opposed the stock
issuances. Thereafter, Wensley and Grauer, who then
together controlled the majority of TDG's stock, held a
meeting of shareholders at which they removed James
Taylor from the Board of Directors.
Plaintiffs allege that TDG, Wensley, and Grauer breached
the Agreement by voting James Taylor off the Board.
They also allege, on information and belief, that TDG,
Wensley and Grauer have issued additional shares or plan
to issue additional shares. They claim that this issuance is
(or would be) in violation of the anti-dilution provisions
of the Agreement, April 1st Addendum, and Issuance
Agreement. Furthermore, Plaintiffs allege that as majority
shareholders and directors of TDG, a close corporation,
Grauer and Wensley owe a fiduciary duty to the plaintiffs
that those defendants breached. Plaintiffs also allege that
the defendants breached Rule 10b–5 of the Securities
Exchange Act of 1934 by inducing Taylor to enter into
the Agreement with a promise that they would use their
best efforts to place a Taylor representative on the Board
although they did not intend to allow that representative
to remain on the Board.
*3 In this opinion, I consider three requests from the
defendants. First, defendants move for dismissal under
Fed.R.Civ.P. 12(b)(2) alleging that this court does not
possess personal jurisdiction over them. Second, they
move for dismissal of the securities fraud claim pursuant
to Rules 9 and 12(b)(6). Lastly, they seek the transfer
of any remaining claims to the Northern District of
California pursuant to 28 U.S.C. § 1404(a).

DISCUSSION
I. Personal Jurisdiction over TDG
It is well established that a plaintiff must establish personal
jurisdiction over a defendant by a preponderance of the

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1997 WL 176325

evidence. Marine Midland Bank, N.A. v. Miller, 664 F.2d
899, 904 (2d Cir.1981). However, when jurisdiction is
challenged prior to discovery, a plaintiff may rely solely
upon good faith allegations provided these allegations
create a prima facie showing that jurisdiction exists. Ball
v. Metallurgie Hoboken–Overpelt, S.A., 902 F.2d 194, 197
(2d Cir.) cert. denied, 498 U.S. 854 (1990).
Determining whether a plaintiff has established a prima
facie showing of personal jurisdiction in a diversity action
requires that I examine the law of the state in which the
court sits. Hoffitz For Cutlery, Inc. v. Amajac, Ltd., 763
F.2d 55, 57 (2d Cir.1985). New York's relevant long arm
statute is N.Y. Civ. Prac. L. & R. § 302(a)(1).
Section 302(a)(1) states:
As to a cause of action arising from any of the
acts enumerated in this section, a court may exercise
personal jurisdiction over any non-domiciliary, or his
executor or administrator, who in person or through an
agent:
1. transacts any business within the state or contracts
anywhere to supply goods or services in the state....
N.Y. Civ. Prac. L. & R. § 302(a)(1) (McKinney 1990).
In the first major New York decision concerning the scope
of Section 302, Longings–Wittnauer Watch Co. v. Banes
& Reinecke, Inc., 15 N.Y.2d 443, cert. denied, 382 U.S.
905 (1965) the New York Court of Appeals made clear
that any of a number of New York related activities, when
viewed either independently or in conjunction with one
another, can form the basis for jurisdiction. Id., at 455–58.
Contract negotiations taking place in New York can be
considered sufficient contacts even when the contract is
not formally “made” in New York. In Hi Fashion Wigs,
Inc. v. Peter Hammond Advertising, Inc., 32 N.Y.2d 583,
586–87 (1973), the New York Court of Appeals found
that an Oklahoma corporation that had, through its
president, negotiated and executed a contract in New
York was subject to New York jurisdiction. The court
stated that it would “reach the same conclusion even if
we were to assume that the contract ... was not made
in New York.” Id. at 587. Similarly, in Hoffritz, 763
F.2d at 60, the Second Circuit held that negotiations over
a franchise agreement that took place largely in New
York City, but also in Atlanta and Detroit, provided

a sufficient basis for jurisdiction under § 302(a)(1) even
though the agreement was executed in Atlanta. See also
Rates Technology Inc. v. Diorio, 626 F.Supp. 1295 at 1297–
98 (E.D.N.Y.1986)(holding that one New York meeting,
during which the parties concluded the substance of the
agreement but failed to execute it sufficed to defeat motion
to dismiss); Xedit Corp. v. Harvel Industries Corp., 456
F.Supp. 725, 728–29 (S.D.N.Y.1978)(same).
*4 Viewing the plaintiffs' allegations in the light most
sympathetic to them, I find that plaintiffs describe
sufficient contacts between TDG and New York. James
Taylor claims, first of all, that he was contacted by Bench,
the then President of TDG “on or about February, 1992,”
and that at this time Bench was “interested in meeting
and discussing an agreement including loan of funds from
Taylor, Inc. to TDG.” Taylor Aff. ¶¶ 3–4. In addition,
according to James Taylor, TDG was “looking ... to
establish a long term relationship with a complementary
entity.” Id. ¶ 5. Discussions continued between the two
companies via telephone calls and other “correspondence”
for a “period of months.” Id. ¶ 6. James Taylor also
alleges that TDG representatives traveled to Gloversville
on “four separate occasions to solicit, perfect and carry
out the Agreement which is the subject of this litigation.”
Id. ¶ 7. Further, Taylor claims that the substance of
the agreement was negotiated during the second of these
meetings, which occurred in August 1992 and involved
Bench and TDG's vice president of sales and marketing.
Taking these allegations as true, which is required at this
stage, it is clear that sufficient contacts have been made
between TDG and Taylor, Inc. to satisfy Section 302(a)
(1).
Under Section 302(a)(1) a cause of action must also “arise
from” the transaction found to be sufficiently connected
to the given jurisdiction. A “substantial nexus” between
the cause of action and the transaction of business must
be shown. Hoffritz, 763 F.2d at 60. For instance, in
Sacody Technologies. Inc. v. Avant. Inc., 862 F.Supp. 1152,
1155 (S.D.N.Y.1994), the court found that a breach of
confidentiality agreement had a “substantial nexus” to
defendant's representative's visit to New York—during
which defendant requested a prototype of a machine
and plaintiff requested a confidentiality agreement—
and to defendant's representative's follow-up phone call
from out-of-state agreeing to a confidentiality agreement.
Similarly, Taylor's claims have a sufficient connection to
the underlying negotiations, significant portions of which

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Nelson A. Taylor Co., Inc. v. Technology Dynamics Group Inc., Not Reported in F.Supp....
1997 WL 176325

took place in New York. When all doubts are resolved in
favor of Taylor, the Agreement was made possible to a
large extent by New York-based negotiations. A breach
of this contract therefore arises from conduct which took
place in New York.
Defendants have argued, however, that even if an alleged
breach of the Agreement has a sufficient nexus to their
New York contacts, breaches of the issuance agreement
and the April 1st Addendum do not. This argument fails
because the Issuance Agreement and April 1st Addendum
are integrally related to the Agreement.

II. Personal Jurisdiction over Grauer and Wensley
Grauer and Wensley also argue that Bench did not act
at their direction and therefore his contacts with New
York cannot subject the two shareholders to jurisdiction.
Prior to 1988 certain New York courts abided by the
“fiduciary shield doctrine.” This doctrine “shielded” an
individual corporate employee from the power of a court
to compel his presence if the employee acted solely in a
corporate capacity within the forum state. See, CPC Int'l,
Inc. v. McKesson Corp., 70 N.Y.2d 268, 287–88 (1987)
(discussion of cases). However, in 1988 the New York
Court of Appeals abolished the fiduciary shield doctrine
in Kreutter v. McFadden Oil Corp., 71 N.Y.2d 460 (1988).
In that case, the court held:
*5 a[p]laintiff need not establish a formal agency
relationship between defendants and [the defendants'
company]. [Plaintiff] need only convince the court that
[such company] engaged in purposeful activities in this
State in relation to his transaction for the benefit of
and with the knowledge and consent of [the individual
defendants] and that they exercised some control over [the
company] in the matter.
Id. at 467, 527 N.Y.S.2d at 199, 522 N.E.2d at 44 (citations
omitted). See also Retail Software Services. Inc. v. Lashlee,
854 F.2d 18, 21–22 (2d Cir.1988)(relying on Kreutter in
holding that because two individual employees had been
primary actors in a New York transaction and their
corporate employer transacted business in New York, the
individual defendants were subject to jurisdiction in New
York even though neither had visited New York in the
process of making the transaction). 1
Where corporate directors benefit from and consent to
activities performed by a corporate agent in New York,

they may be subjected to jurisdiction here. Retail Services,
854 F.2d at 22. James Taylor and Robert Callen, the
senior financial advisor for Taylor, both posit that Grauer
and Wensley played a significant role in the negotiations
even though neither of them ever traveled to New York
for the negotiations. First, James Taylor alleges that
Grauer and Wensley owned a combined 61.5% of the
outstanding shares of TDG at the time of the execution
of the Agreement and continued to own a majority of
the outstanding shares on June 28, 1995, the date his
affidavit was filed. Taylor Aff. ¶ 26. Taylor also alleges
that Grauer and Wensley “have had absolute and total
control of TDG since TDG's very first contact with
Taylor, Inc.” Id. In addition, Callen states that he had
daily conversations with Grauer regarding the “exact
terms and provisions of the Agreement.” Callen Aff. ¶
11. Callen also states that “virtually all correspondence
received by Taylor, Inc.” was authored by either Grauer or
Wensley and therefore posits: “[t]hey obviously controlled
the day to day activities of TDG and every detail of
its relationship with Taylor, Inc.” (Id. ¶ 16.) Although
Grauer and Wensley both claim to have been ignorant
of Bench's activities in New York, plaintiffs have shown,
based on the two individual defendants' control of the
corporation and their control of negotiations, that Grauer
and Wensley may well have consented to Bench's activities
for the benefit of the corporation and the corporation's
controlling shareholders. Thus, at this stage, when all
inconsistencies are resolved in a manner favorable to
plaintiff, it is clear that Grauer and Wensley are subject to
New York jurisdiction.
Grauer and Wensley also argue that subjecting them
to New York's jurisdiction violates their Fourteenth
Amendment Due Process rights. In general, a state
may “legitimately exercise personal jurisdiction over
a nonresident who ‘purposefully directs' his activities”
toward a resident of that state. Burger King v.
Rudzewicz, 471 U.S. 462, 473 (1985). The defendant
must purposefully avail himself of the “privilege of
conducting activities within the forum state.” Hanson
v. Dencla, 357 U.S. 235, 253 (1958). Mail and wire
contacts may be included in the assessment of whether
the defendant has purposefully directed its activities
at in-state residents. Burger King, 471 U.S. at 476.
However, even where the defendant has had the necessary
“minimum contacts” with the forum state, a consideration
of several factors may preclude jurisdiction based on
“fair play and substantial justice.” Id. at 477. The

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factors that a court should analyze to determine whether
the assertion of personal jurisdiction would comport
with “fair play and substantial justice” include (1) the
burden on the defendant, (2) the forum state's interest
in adjudicating the dispute, (3) the plaintiffs interest in
obtaining convenient and effective relief, (4) the interstate
judicial system's interest in obtaining the most efficient
resolution of controversies and (5) the shared interests of
the several States in furthering fundamental substantive
social policies. Id.
*6 In Burger King, the defendant John Rudzewicz's only
physical tie to Florida was a training course taken by his
business associate, however Rudzewicz chose to reach out
and negotiate with a Florida corporation for the purchase
of a long term franchise. Id. at 479–80. By virtue of
the agreement, he accepted the benefits of an association
with the Florida corporation as well as long-term and
exacting regulation of his company from Florida. Id. at
480–81. Moreover, the franchise agreement included a
Florida choice-of-law clause. Id. at 481. These contacts
with Florida sufficed to support personal jurisdiction in
Florida. Id. at 482. In addition, the court found that the
inconvenience to defendant of transporting his Michigan
witnesses to Florida and the applicability of Michigan law
to certain aspects of the franchise relationship did not
make the exercise of jurisdiction unconstitutional. Id. at
483–84.
From the plaintiff's perspective, Grauer and Wensley—
acting through Bench and through Grauer's own calls
—reached out to gain the advantage of association
with Taylor. Although the choice of law provision in
the Agreement favors California rather than New York
law, TDG's, Grauer's and Wensley's contacts with New
York are otherwise more substantial than Rudzewicz's
contacts with Florida in the Burger King case. As in
Rudzewicz, the contracts defendants are alleged to have
breached have a substantial connection with New York.
Moreover, defendants have not demonstrated that “fair
play and substantial justice” would be offended by holding
defendants to answer for their actions in New York. Id. at
477. Therefore, jurisdiction is constitutionally permissible.

III. Plaintiff's 10b–5 Claim
Plaintiffs' complaint alleges that the defendants
fraudulently induced them into entering into the
Agreement by promising to use their best efforts to place
a representative of Taylor on the TDG board of directors

when the defendants did not, in fact, have any intention
of keeping a Taylor representative on the TDG board.
According to plaintiffs, defendants' promise violated Rule
10b–5.
To state a claim under Rule 10b–5, a plaintiff must plead
that “in connection with the purchase or sale of securities,
the defendant, acting with scienter, made a false material
representation or omitted to disclose material information
and that plaintiffs reliance on defendant's action caused
[plaintiff] injury.” In re Time Warner Inc. Securities
Litigation, 9 F.3d 259, 264 (2d Cir.1993)(internal citations
omitted) (cert. denied, 114 S.Ct. 1397 (1994); see also, Luce
v. Edelstein, 802 F.2d 49, 55 (2d Cir.1986).
It is well settled that “making a specific promise to perform
a particular act in the future while secretly intending not
to perform that act may violate Section 10(b) when the
promise is part of the consideration for the transfer of
securities.” Luce, 802 F.2d at 55 (citing Pross v. Katz,
784 F.2d 455, 457 (2d Cir.1986)); see also, Mills v. Polar
Molecular Corp., 12 F.3d 1170, 1176 (2d Cir.1993); Drexel
Burnham Lambert Group v. Microgenesys, 775 F.Supp.
660, 664 (S.D.N.Y.1991). Defendants contend, however,
that plaintiffs have not pled facts tending to show an intent
to defraud with sufficient particularity.
*7 Rule 9(b) of the Federal Rules of Civil Procedure
requires that “in all averments of fraud or mistake,
the circumstances constituting fraud or mistake shall
be stated with particularity,” but that “[m]alice, intent,
knowledge, and other condition of mind of a person may
be averred generally.” However, in the Second Circuit,
“the relaxation of Rule 9(b)'s specificity requirement for
scienter must not be mistaken for license to base claims
of fraud on speculation and conclusory allegations.”
Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128
(2d Cir.1994)(internal citations omitted). Therefore, a
plaintiff is required to “allege facts that raise a strong
inference of fraudulent intent.” Mills, 12 F.3d at 1176;
see also Ouaknine v. MacFarlane, 897 F.2d 75, 81 (2d
Cir.1990). In short, there must exist “an ample factual
basis ... to support the charges.” O'Brien v. National
Property Analysts Partners, 936 F.2d 674, 676 (2d
Cir.1991).
In this circuit it is established that “to satisfy the
dictates of Rule 9(b) a plaintiff may not simply allege
nonperformance of a contract.” Drexel Burnham, 775

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Nelson A. Taylor Co., Inc. v. Technology Dynamics Group Inc., Not Reported in F.Supp....
1997 WL 176325

F.Supp. at 664. Thus, “the mere allegation that defendants
did not intend to honor the contract at issue does
not alone create a basis for alleging fraud.” Zucker
v. Katz, 708 F.Supp. 525, 529 (S.D.N.Y.1989)(citing
Murray v. Xerox Corp., 811 F.2d 118, 122 (2d Cir.1987)).
Therefore, although pleading scienter does not require
great specificity, allegations that a party did not intend
to perform an element of a contract which are not
“accompanied with specific allegations of fact giving rise
to a strong inference of fraud” or are “entirely conclusory”
will fall short of Rule 9(b)'s requirements. Finkel v.
Stratton Corp., 754 F.Supp. 318, 329–30 (S.D.N.Y.1990),
aff'd in part on other grounds, rev'd in part, on other grounds,
962 F.2d 169 (2d Cir.1992) with Mills, 12 F.3d at 1176.
For instance, in Mills, William Mills, a salesman, agreed
to settlement of an employment dispute in exchange
for stock and a representation that the stock would be
registered “immediately.” Mills, 12 F.3d at 1173. When
Mills discovered six months later that the stock had not
been registered, he filed a lawsuit that included a Rule
10b–5 claim. The Second Circuit upheld the district court's
dismissal of Mills' 10b–5 claim, holding that the pleading
was not sufficiently specific. The court stated: “Mills
alleged no fact probative of [the representative's] intent
at the time he made the promises to Mills.... We decline
Mills' invitation to infer fraudulent intent from the fact
that Polar made a number of contracts to register shares
and never performed any of them.” Id. at 1176.
Similarly, in Finkel, a group of investors (and stock
purchasers) sued the developer/corporate parent of a
recreational resort for violating Rule 10b–5 when it
became clear that the plans laid out in a prospectus were
not going to be completed. The court found that plaintiffs
allegations merely “proceed[ed] from the proposition that
since certain future acts did not come to pass, defendants
never intended to accomplish them.” Finkel, 754 F.Supp.
at 329. The court found this proposition insufficient.
Because such allegations “must be accompanied with
specific allegations of fact giving rise to a strong inference
of fraud,” and the complaint “contain[ed] no such
allegations,” the court granted defendants' motion to
dismiss the 10b–5 claim. Id. at 330. See also Hayden
v. Feldman, 753 F.Supp. 116 (S.D.N.Y.1990) (strong
inference of fraudulent intent insufficiently pled when
it was alleged, without factual support, that defendants
never intended to conduct certain partnership agreements
in ways they stated they would); compare Drexel Burnham,

775 F.Supp. at 665–66 (fraudulent intent sufficiently pled
where the sequence of events lent credibility to plaintiff's
claim that defendant never intended to repay the note).
*8 Plaintiffs' complaint alleges only that “defendants
Grauer and Wensley, as signatories of [the] document,
did not intend to allow the Taylor Inc. representative to
remain on the Board,” and that, as a result, Plaintiffs were
“knowingly and intentionally fraudulent[ly]” induced into
entering the agreement. Compl. ¶ 70. The complaint
makes no factual assertions to support its allegation.
Because the complaint is wholly conclusory, it does not
satisfy Rule 9(b). Accordingly, the defendants' motion to
dismiss is granted.

IV. TDG's Motion for Change of Venue
TDG has moved to transfer venue to the Northern District
of California pursuant to 28 U.S.C. § 1404(a), which
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 or
division where it might have been
brought.

First, a district court is empowered to exercise its sound
discretion in deciding a motion to transfer pursuant to §
1404(a). Minnette v. Time Warner, 997 F.2d 1023, 1026
(2d Cir.1993); Gilbert v. Wilson, 821 F.Supp. 857, 860
(N.D.N.Y.1993) (Scullin, J.). Second, the moving party
has the burden of establishing that there should be a
change of venue. Factors Etc, Inc. v. Pro Arts, Inc., 579
F.2d 215, 218 (2d Cir.1978), cert. denied, 440 U.S. 908
(1979); Pellegrino v. Stratton Corp., 679 F.Supp. 1164,
1166 (N.D.N.Y.1988) (McCurn, C.J.). Furthermore, “[a]
discretionary transfer under § 1404(a) will not be granted
absent a clear cut and convincing showing by defendants
that the balance of convenience weighs strongly in favor of
the transferee court.” Gilbert, 821 F.Supp. at 861 (citations
omitted); see also Schwartz v. R.H. Macy's, Inc., 791
F.Supp. 94, 95 (S.D.N.Y.1992).
The criteria relevant to the determination of whether a §
1404(a) motion should be granted include:

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“(1) convenience of the parties; (2)
convenience of the witnesses; (3)
relative means of the parties; (4)
locus of operative facts and relative
ease of access to sources of proof;
(5) attendance of witnesses; (6) the
weight accorded the plaintiffs choice
of forum; (7) calendar congestion;
(8) the desirability of having the
case tried by the forum familiar
with the substantive law to be
applied; (9) practical difficulties;
and finally, (10) the Court should
also consider how best to serve
the interest of justice, based on an
assessment of the totality of material
circumstances.”

Wine Markets Int'l. Inc. v. Bass, 939 F.Supp. 178, 181
(E.D.N.Y.1996). Courts have also found that convenience
of the witnesses is “probably the most important factor.”
Filmline (Cross–Country) Prod. v. United Artists, 865 F.2d
513, 520 (2d Cir.1989) (citations omitted); Pellegrino, 679
F.Supp. at 1166–67.

Convenience and Means of Parties
Defendants argue that it would be inconvenient for them
to try this case in New York because it would impose
a substantial and expensive burden on TDG's operation.
However, there is no reason to assume that this would not
be equally true for the plaintiffs were the case transferred
to California. Furthermore, it has been held that “the
relative financial hardship a particular venue would have
on ... litigants ... is usually only applicable to situations
where an individual is suing a large corporation....”
Aquatic Amusement Assoc. v. Walt Disney World, 734
F.Supp. 54, 59 (N.D.N.Y.1990) (McCurn, C.J.). In regard
to overall convenience (and financial means insofar as the
two are interrelated), the scales do not tip strongly in favor
of either party.
*9 Defendants also argue that, if this case is tried
in New York, TDG not only will be forced to pay
travel expenses for its officers and witnesses but also will
incur the expense of shipping all the relevant California

documents to New York. Quite simply, the burden of
transporting documents from California to New York
is not sufficiently handicapping to warrant a transfer.
Even if defendants are correct in asserting that a majority
of the pertinent documents are located in California,
defendants have not estimated the cost of shipping the
documents nor have they articulated why it would be so
burdensome to ship the documents to New York. See,
e.g., O'Brien v. Goldstar Technology, Inc., 812 F.Supp.
383, 386 (W.D.N.Y.1993) (“[d]ocumentary evidence can
readily be transported [from California] to ... New York,
if necessary ...”); Herbst v. Able, 278 F.Supp. 664, 666–
67 (S.D.N.Y.1967)(shipping an estimated 16 million pages
of files from California to New York held insufficient
to justify transfer). It is quite possible that, given the
unpredictable nature of the discovery process, Plaintiffs
might end up spending more in shipping documents to
California were the transfer granted than defendants
would were the transfer denied. Defendants have barely
alleged, let alone proven that their burden might outweigh
that of the plaintiffs were the case transferred.

Location of Relevant Events
Defendants claim that few of the operative facts leading
up to the instant action took place in New York. It
is true that many of the pertinent incidents seem to
have taken place over the telephone or in California.
The Agreement was partially negotiated by telephone by
representatives of the parties in their respective states,
meetings of the TDG board of directors took place
exclusively in California, and the breaches allegedly
committed by defendants were committed in California.
However, certain events did occur in New York. Bench
traveled to New York to establish a relationship and
promote an agreement with Taylor, and in 1992, TDG
sent an employee to the Gloversville facility who then
inspected Taylor's capabilities. Moreover, as intimated
above, most of the pertinent evidence seems to be
contained within documents which can be shipped across
the country with relative ease. Nevertheless, the locus of
operative facts analysis does weigh slightly in favor of
transfer.

Convenience/Attendance of Witnesses
As stated above, the location of relevant witnesses is a
major factor to be considered in a transfer application.
Defendants state that two non-party witnesses, Don Yost
and Bench, in addition to the two named party-witnesses

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Grauer and Wensley, will be inconvenienced by having
to travel from California to New York. In order to use
this argument successfully in support of their motion to
transfer, defendants must describe what the testimony
of these non-party witnesses would be, allege that the
testimony would be material, and demonstrate that these
witnesses are, in fact, unwilling or unable to appear.
O'Brien, 812 F.Supp. at 387; see also Gilbert, 821 F.Supp.
at 861; Pellegrino, 679 F.Supp. at 1167.
*10 Defendants discuss none of these things; instead
they recite only that it would be inconvenient for Grauer
and Wensley to testify and that Yost and Bench are
two non-party witnesses. At the same time, Plaintiffs
have specifically named eight New York based non-party
witnesses whose testimony will be solicited. Defendants
have failed to establish that the inconvenience of trial
in New York to their necessary and material witnesses
outweighs the inconvenience to plaintiffs witnesses of a
trial in California.

venue”). Thus, although the parties have expressly chosen
California law to govern, this factor alone does not
decisively tip the balance in favor of Defendants.
When all material factors are viewed in their entirety,
defendants have not made a “clear cut and convincing
showing ... that the balance of convenience weighs
strongly in favor of the transferee court.” Gilbert, 821
F.Supp. at 861 (citation omitted). The Defendants motion
to transfer is thereby denied.

CONCLUSION
Defendants' 12(b)(2) motion is DENIED. Defendants'
motion to dismiss Plaintiffs 10b–5 claim is GRANTED,
and Defendant's motion to transfer venue pursuant to 28
U.S.C. § 1404(a) is DENIED.
IT IS SO ORDERED.
1

Choice of Law Provision
The agreement provides that it is to be interpreted in
accordance with California law. Such a provision is an
important factor in the transfer analysis. Van Dusen
v. Barrack, 376 U.S. 612, 645 (1964); Gibbs & Hill.
Inc. v. Harbert International, Inc., 745 F.Supp.993, 997
(S.D.N.Y.1990). However, the parties' choice to apply a
foreign state's law does not mandate transfer, nor is it
necessarily more important than any other consideration.
Filmline, 865 F.2d at 520 (“the district court was entitled
to give some weight to the fact that the Agreement called
for its construction ... in accordance with New York law”);
Viacom Int'l. v. Melvin Simon Productions, 774 F.Supp.
858, 868 (S.D.N.Y.1991)(choice of law “is just one of
several factors to consider on a motion to transfer and
in some circumstances may be accorded little weight”);
Aquatic Amusement, 734 F.Supp. 54, 59 (“this court, as a
federal court, should not be overly concerned with which
state law is applicable when deciding a motion to transfer
End of Document

Defendants attempt to distinguish Retail Services and
Kreutter from the instant case in that both of those
cases involved agents and/or corporate defendants
who transacted business in New York, so that
jurisdiction over the agent “was not based on longarm jurisdiction” while the alleged jurisdiction over
TDG is based on long-arm jurisdiction. Pl. Reply
Mem. At 4. This distinction is wholly irrelevant. In
neither case, do the courts indicate that an agent
or corporate defendant must be “doing business”
in New York or that if long-arm jurisdiction is
established over a company the fiduciary shield
doctrine remains effective. To the contrary, Kreutter
held that “the fiduciary shield rule is not available
to defeat jurisdiction under the New York long arm
statute.” Id. at 472.

All Citations
Not Reported in F.Supp., 1997 WL 176325

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8

Oubre v. Clinical Supplies Management, Inc., Not Reported in F.Supp.2d (2005)
2005 WL 3077654

2005 WL 3077654
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Derek OUBRE, Plaintiff-Counterclaim Defendant,
v.
CLINICAL SUPPLIES MANAGEMENT,
INC., Defendant-Counterclaim Plaintiff.
No. 05 Civ.2062(LLS).
|
Nov. 17, 2005.

OPINION AND ORDER
STANTON, J.
*1 Derek Oubre, a New York resident, 1 filed a
complaint in New York Supreme Court, New York
County, against his former employer, Clinical Supplies
Management, Inc. (“CSM”), a North Dakota corporation
with its principal place of business in Fargo, North
Dakota. CSM removed the case to this court and asserted
several counterclaims. CSM now moves pursuant to 28
U.S.C. § 1404(a) for a change of venue to the United States
District Court for the District of North Dakota.
1

CSM asserts that, at times relevant to the lawsuit,
Oubre was a resident of either Washington D.C. or
New Jersey. However, CSM does not dispute that
Oubre currently is, and at the commencement of this
action was, a New York resident. (Def.'s Mem. L.
Supp. Mot. Transfer at 13.)

I. Background
CSM assists pharmaceutical companies with clinical drug
trials. Oubre alleges that he and CSM signed a written
employment contract in November 2001, whereby CSM
agreed to employ him as a financial consultant for thirtysix months at $50.00 per hour plus an annual stipend for
board service and reimbursement of business expenses.
CSM also allegedly granted him options to acquire 11,112
shares of CSM stock. Oubre claims CSM breached the
2001 employment agreement by firing him in March 2004
and by failing to pay him his salary and grant him the stock
options.

CSM alleges that Oubre forged the signature of Gerald
Finken, CSM's chief executive officer, on the employment
and stock option contracts. According to CSM, Oubre
worked for CSM from November 2001 to September 2003
pursuant to an unwritten agreement, which did not entitle
him to stock options.
In November 2003, while still employed by CSM but
allegedly without its knowledge, Oubre became a director
and chief financial officer of LaGray Chemical Corp., an
Illinois pharmaceutical company based in Chicago and
Ghana.
Oubre and CSM acknowledge they made an employment
agreement in December 2003, whereby Oubre became
CSM's full-time chief financial officer and interim chief
operating officer as of September 1, 2003, and CSM
granted him ten percent of CSM stock. In turn, Oubre
was to generate a business plan for CSM's packaging
and labeling operation, and prepare CSM's financial
statements, among other things. Oubre and CSM each
claim that the other breached the 2003 employment
agreement.
Oubre also signed non-competition and confidentiality
agreements in September 2003. CSM claims he breached
these agreements and diverted corporate opportunities
from CSM, in violation of his fiduciary duty of loyalty,
while he was employed by LaGray. Oubre contends that
CSM officers were aware of his relationship with LaGray,
and that LaGray does not compete with CSM.

II. Motion to Transfer
Section 1404(a) of title 28 of the United States Code
provides that, “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 action could have
been brought in the District of North Dakota because
venue would be proper and CSM would be subject to
process there.
In determining whether venue should be transferred to the
District of North Dakota for the convenience of parties
and witnesses, the relevant factors include:

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2005 WL 3077654

*2 (1) the convenience of witnesses;
(2) the location of relevant
documents and the relative ease
of access to sources of proof; (3)
the convenience of the parties; (4)
the locus of the operative facts;
(5) the availability of process to
compel attendance of unwilling
witnesses; (6) the relative means of
the parties; (7) a forum's familiarity
with the governing law; (8) the
weight accorded a plaintiff's choice
of forum; and (9) trial efficiency and
the interests of justice, based on the
totality of the circumstances.

Lewis v. CRI, Inc., No. 03 Civ. 651(MBM), 2003 WL
1900859, at *2 (S.D.N.Y. Apr. 17, 2003). The court has
broad discretion to balance these factors and to consider
the evidence of convenience and fairness on a case-by-case
basis. In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d
Cir.1992), citing Stewart Org., Inc. v. Ricoh Corp., 487
U.S. 22, 29, 108 S.Ct. 2239, 2243, 101 L.Ed.2d 22 (1988).
“Absent a clear cut and convincing showing by defendant
that the balance of convenience weighs strongly in favor
of the transferee court, plaintiff's choice of forum will not
be set aside.” Gen. State Auth. (of Pa.) for Benefit of
Crompton-Richmond Co., Inc. v. Aetna Cas. & Sur. Co.,
314 F.Supp. 422, 423 (S.D.N.Y.1970); see also Ford Motor
Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.1950) (defendant
must make a strong case for transfer).

III. Discussion
A. Convenience of Witnesses
The convenience of witnesses is a major factor in
evaluating a transfer motion. 800-Flowers, Inc. v.
Intercontinental Florist, Inc., 860 F.Supp. 128, 134
(S.D.N.Y.1994). “When weighing the convenience of the
witnesses, courts must consider the materiality, nature,
and quality of each witness, not merely the number of
witnesses in each district.” Royal & Sunalliance v. British
Airways, 167 F.Supp.2d 573, 577 (S.D.N.Y.2001). To
enable the court to make that evaluation, a movant relying

on the convenience of witnesses “must clearly specify
the key witnesses to be called and must make a general
statement of what their testimony will cover .” Factors
Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978).

(1) LaGray Witnesses
Oubre and CSM both recognize the importance of
testimony from LaGray employees Paul Lartey and
Alexandra Graham. However, because they are both
based in Ghana (Lartey Aff. ¶ 8; Graham Aff. ¶ 8) and will
have to travel a long distance to either proposed venue,
they are not considered in the venue transfer analysis.
Varsity Spirit v. I.I.P. Inc., No. 03 Civ.2069(LLS),
2003 WL 22772638, at *2 (S.D.N.Y. Nov. 24, 2003)
(convenience of witnesses who do not reside in either
proposed forum does not significantly affect the transfer
analysis).

(2) CSM's Witnesses
CSM's North Dakota witnesses are four of its officers and
employees, one former officer, its outside counsel and two
accountants from Eide Bailly, CSM's outside auditors. 2
2

CSM also points out that three of Oubre's witnesses
reside in North Dakota and eleven reside in
California. CSM, however, cannot rely on the
convenience of plaintiff's witnesses to support its
motion to transfer. Marks v. Fireman's Fund Ins. Co.,
109 F.Supp. 800, 803 (S.D.N.Y.1953).

*3 Oubre and CSM both recognize the importance of
testimony from at least one Eide Bailly witness regarding
Oubre's claims to CSM stock. That witness will likely be
Scott Swanholm, the accountant principally responsible
for Eide Bailly's relationship with CSM. (Swanholm Aff.
¶ 2.) Since it is not clear what, if anything, the other Eide
Bailly accountant would add to Swanholm's testimony, his
testimony is discounted in the transfer analysis. Factors
Etc., 579 F.2d at 218.
The parties also recognize that Gerald Finken is an
important witness, as is CSM's outside counsel, who
was involved in the negotiation and signing of Oubre's
employment contracts.
The testimony of four other CSM witness also seems
material. Jessica Mather, executive assistant to Mr.
Finken and Oubre, would testify to Oubre's alleged

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failure to fulfill his financial planning and reporting
responsibilities. (Mather Aff. ¶ 3.) Brian Moe, CSM's
Vice President of Operations, would testify to Oubre's
alleged unavailability to CSM staff, his pursuit of a
packaging and labeling facility for CSM, and his work on
behalf of LaGray. (Moe Aff. passim.) Brian Keller, CSM's
former finance director, would address Oubre's alleged
mishandling of CSM's finances. (G. Finken July 7, 2005
Aff. ¶ 10.) Kathleen Finken, a member of CSM's board
of directors, would testify to whether Oubre and CSM
entered the employment and stock option agreements in
2001. (K. Finken Aug. 30, 2005 Aff. ¶ 3.)
Thus, there are seven material CSM witnesses whose
convenience favors transfer.

(3) Oubre's Witnesses
Oubre himself is an essential witness. In addition, Oubre
identifies two material New York witnesses to rebut
CSM's claims that he neglected his duties to CSM and
diverted opportunities from CSM: Phillip McKinley,
a former CSM consultant who worked with Oubre
pursuing packaging and labeling and sales opportunities
in the New York area, and Margaret Bogdan, a
former CSM employee who worked on CSM's financing,
administration and contracting processes with Oubre
from his New York apartment.
In sum, seven of CSM's material witnesses are located
in North Dakota while only three of Oubre's material
witnesses reside in New York. The disparity is less
substantial than the numbers appear, however, because
two of Oubre's witnesses are non-parties, while four of
CSM's seven witnesses are its employees. Indian Harbor
Ins. Co. v. Factory Mut. Ins. Co., No. 05 Civ. 2564(PKL),
2005 U.S. Dist. LEXIS 17253, at *12 (S.D.N.Y. Aug.
17, 2005) (convenience of non-party witnesses is accorded
more weight than that of party witnesses). Hence, the
convenience of material witnesses only weakly favors
transfer.

B. Location of Relevant Documents
“In today's era of photocopying, fax machines[,] Federal
Express”, Coker v. Bank of Am., 984 F.Supp. 757, 766
(S.D.N.Y.1997), and electronic document transmission,
the location of documents is entitled to little weight unless
the movant makes a detailed showing of the burden it
would incur absent transfer. Royal Ins. Co. of Am. v.

Tower Records, Inc., No. 02 Civ. 2612(PKL), 2002 U.S.
Dist. LEXIS 20109, at *17 (S.D.N.Y. Oct. 22, 2002).
*4 There is no such showing here. CSM merely states
that it has documents related to its packaging and labeling
operation and to Oubre's performance at its North
Dakota headquarters, and that Eide Bailly has three or
four boxes of documents relevant to Oubre's damages in
North Dakota. This factor is therefore neutral.

C. Convenience and Relative Means of the Parties
“A transfer should not merely shift the burden of
inconvenience from one party to the other.” Dwyer
v. General Motors Corp., 853 F.Supp. 690, 693
(S.D.N.Y.1994). “Where a disparity exists between the
means of the parties, such as in the case of an individual
suing a large corporation, the court may consider the
relative means of the parties in determining where a
case should proceed.” 800-Flowers, 860 F.Supp. at 135;
USA Interactive v.. Savannah Air Ctr., LLC, No. 02 Civ.
3659(LLS), 2002 WL 1808236, at *2 (S.D.N.Y. Aug. 7,
2002) (relative means of the parties is a more significant
factor when one party is an individual).
Here, CSM is a corporation that does business worldwide
(G. Finken Aug. 30, 2005 Aff. ¶ 21), while Oubre is
an individual who has not been steadily employed since
leaving CSM in March 2004. (Pl.'s Mem. L. Opp'n
Mot. Transfer at 25.) Relative to their resources, Oubre's
burden litigating in North Dakota would be heavier than
CSM's burden litigating in New York. The convenience
and relative means of the parties therefore weighs against
transfer.

D. Locus of Operative Facts
In determining the locus of operative facts, courts look
to the “site of the events from which the claim arises.”
800-Flowers, 860 F.Supp. at 134. Contract disputes arise
“where the contract was negotiated or executed, where
it was to be performed, and where the alleged breach
occurred.” Prudential Sec. Inc. v. Norcom Dev., Inc., No.
97 Civ. 6308(DC), 1998 WL 397889, at *4 (S.D.N.Y. July
16, 1998) (citations omitted).
The employment agreements were apparently negotiated
and executed in both fora. (Oubre Sept. 12, 2005 Aff.
¶ 4; Oubre Aug. 8, 2005 Aff. ¶¶ 4, 15; G. Finken July
7, 2005 Aff. ¶ 4.) Similarly, Oubre was to work for

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Oubre v. Clinical Supplies Management, Inc., Not Reported in F.Supp.2d (2005)
2005 WL 3077654

CSM in New York, 3 while CSM's performance, paying
Oubre and issuing him stock and stock options, would
naturally take place at CSM's headquarters in North
Dakota. Thus, Oubre's alleged breach of the employment
agreements occurred in New York, while CSM's alleged
breach occurred in North Dakota.
3

The 2003 non-competition agreement provides, “This
agreement shall be governed by and enforced to
the fullest extent under the laws of the State of
New York, where Derek Oubre will be living and
working.” (Affirmation of Russell Bogart Supp.
Mot. Transfer Ex. M.) Further, while Oubre was
undoubtedly present in North Dakota many times
during his tenure with CSM (G. Finken Aug. 30, 2005
Aff. ¶¶ 16, 20), the bulk of his time seems to have been
spent in New York. (Oubre Aug. 8, 2005 Aff. passim.)

CSM's counterclaims relate to Oubre's dealings with
LaGray. Oubre likely conducted business with LaGray
either at its Chicago offices or from his home in New
York. In either case, there is no showing that he dealt with
LaGray in North Dakota.
The locus of operative facts is not concentrated in either
the transferor or transferee forum. Thus, this factor is
neutral as to transfer.

E. Availability of Process to Compel Attendance of
Unwilling Witnesses
A party relying on this factor must show that non-party
witnesses are unwilling to testify at trial. Citigroup Inc. v.
City Holding Co., 97 F.Supp.2d 549, 562 (S.D.N.Y.2000).
*5 The only witness whom either party asserts will be
unwilling to testify at trial is Brian Keller, CSM's former
finance director, who can be compelled to testify in North
Dakota but not in New York. Although his testimony
may be highly material (the alleged mishandling of CSM's
finances), since both Mr. Finken and Ms. Mather may
testify willingly on those matters, his testimony may
not be essential. Furthermore, CSM acknowledges that
Keller's deposition testimony will be available and gives
no reason why his deposition or videotaped testimony
would be insufficient at a trial in New York, aside from
a general preference for live testimony. (Def.'s Mem. L.
Supp. Mot. Transfer at 19-20.); Dealtime.com v. McNulty,
123 F.Supp.2d 750, 757 (S.D.N.Y.2000) (availability
of compulsory process is neutral given the option of

videotaping testimony of witnesses unwilling to travel);
Citigroup, 97 F.Supp.2d at 561-62. This factor somewhat
favors transfer.

F. Forum's Familiarity with Governing Law
Familiarity with the governing law is generally given little
weight in considering motions to change venue. AEC One
Stop Group, Inc. v. CD Listening Bar, Inc., 326 F.Supp.2d
525, 531 (S.D.N.Y.2004). That is especially true where the
applicable foreign law is settled. Royal Ins. Co. of Am.,
2002 U.S. Dist. LEXIS 20109, at *24.
CSM asserts without contradiction that its counterclaim
under the faithless servant doctrine, which seeks
reimbursement of salary and expenses for Oubre's breach
of his duty of loyalty, is a matter of first impression under
North Dakota law. 4 Where, as here, the case involves
unsettled law of the transferee forum, this factor weighs
in favor of transfer to that forum as being more familiar
with that body of law. However, it weighs only slightly
in favor of transfer because (a) as noted above, the whole
factor itself has little weight, and (b) if I retain the case,
New York's substantive law on the point is clear, 5 and
New York courts presume that the substantive law of
another state (when it is unsettled) resembles New York's
and other states' law. See Rogers v. Grimaldi, 875 F.2d 994,
1003 (2d Cir.1989).
4

5

The other claims and counterclaims are governed by
the relevant agreements between the parties and by
settled North Dakota or New York law, which either
court could readily apply.
See e.g., Phansalkar v. Andersen Weinroth & Co., L.P.,
344 F.3d 184 (2d Cir.2003) (clarifying the faithless
servant doctrine under New York law).

G. Plaintiff's Choice of Forum
On a motion to transfer venue, a plaintiff's choice of forum
will not be disturbed unless the movant makes a clear
and convincing showing that the balance of convenience
favors an alternate forum. Hubbell Inc. v. Pass & Seymour,
Inc., 883 F.Supp. 955, 962 (S.D .N.Y.1995).
CSM asserts that plaintiff's choice of forum should be
given less deference than usual, because none of the
pertinent facts took place in New York. Oubre alleges,
however, that he executed both employment agreements

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2005 WL 3077654

and negotiated the 2003 agreement in New York and that
he worked for CSM from his New York apartment. The
2003 non-competition agreement provides that “Derek
Oubre will be living and working” in New York. See fn.3.
These contacts, coupled with the fact that Oubre resides
in this district, give weight to plaintiff's choice of forum.
*6 CSM argues that Oubre's choice of forum should
be accorded less weight because he originally filed suit
in New York state court, rather than this federal court
to which CSM removed it. Plaintiff's choice of forum is
given deference because it is presumed to be a convenient
geographic location in which to litigate. That presumption
is no less valid when, as here, the plaintiff files suit in
state court and the defendant later removes the case to a
federal court in the same venue. Innovations Enter. Ltd.
v. Haas-Jordan Co ., Inc., No. 99 Civ. 1681(EHN), 2000
WL 263745, at *2 (E.D.N.Y. Jan. 4, 2000) (“[V]enue is
primarily an issue of geography, and plaintiff has clearly
expressed a preference for litigating within the [federal
district that] encompasses the county in which plaintiff
originally filed the action.”).
Therefore, plaintiff's choice of forum weighs heavily
against transfer.

H. Trial Efficiency and the Interests of Justice
CSM argues that North Dakota has a superior local
interest in adjudicating the case because it involves North
Dakota corporate governance laws and a locally owned
North Dakota corporation. New York also has an interest
in adjudicating the case, however, because the alleged
breach of the non-competition agreement will be decided
under New York law and the outcome of the case
will affect the rights of a New York resident under
employment agreements signed and to be performed in
New York.
End of Document

CSM asserts that dockets are less congested in the District
of North Dakota than here. While there may be greater
overall docket congestion in this district than in the
District of North Dakota, under our individual calendar
system I could likely try this case as soon or sooner than it
would be tried in North Dakota. See Dwyer, 853 F.Supp.
at 695 (Motley, J.) (relative trial calendar congestion did
not favor transfer where “this particular court's docket is
not nearly as back-logged as the majority of the dockets
in this District.”).
Hence, those factors are neutral as to transfer.

IV. Conclusion
In sum, the convenience and ready availability of material
witnesses and the forum's familiarity with the governing
law weigh somewhat in favor of transfer. The convenience
of the parties favors retaining the action. The decisive
factor is plaintiff's choice of forum. “Absent a clear cut
and convincing showing by defendant that the balance
of convenience weighs strongly in favor of the transferee
court, plaintiff's choice of forum will not be set aside.”
Gen. State Auth. (of Pa.) for Benefit of CromptonRichmond, 314 F.Supp. at 423. There is not the requisite
clear cut and convincing showing that plaintiff's choice of
forum should be set aside.
Defendant's motion to transfer the action to North
Dakota is denied.
So ordered.

All Citations
Not Reported in F.Supp.2d, 2005 WL 3077654

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Phillips v. PTS of America, LLC, Slip Copy (2017)
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2017 WL 9325623
Only the Westlaw citation is currently available.
United States District Court, E.D. Kentucky,
Central Division.
at Lexington.
Rose M. PHILLIPS, et al., Plaintiffs,
v.
PTS OF AMERICA, LLC, et al., Defendants.
Civil No. 16-466-DCR-CJS
|
Signed 09/12/2017
Attorneys and Law Firms
Camille Bathurst, Gregory Allen Belzley, Belzley
Bathurst, Attorneys, Prospect, KY, Paul A. Brizendine,
Brizendine Law Office, LLC, Jeffersonville, IN, for
Plaintiffs.
Chris J. Gadansky, McBrayer, McGinnis, Leslie &
Kirkland, PLLC, J. Denis Ogburn, Pence & Ogburn,
PLLC, Gregory Lucas Finch, Megan Pullem O'Reilly,
Blackburn, Domene & Burchett PLLC, Louisville, KY,
Jaron P. Blandford, McBrayer, McGinnis, Leslie &
Kirkland, PLLC, Lexington, KY, Albert M. Spradling,
III, Spradling & Spradling, Cape Girardeau, MO, for
Defendants.

REPORT AND RECOMMENDATION
Candace J. Smith, United States Magistrate Judge
*1 This matter is before the Court on: 1) Motion of
Defendants Louisville Metro Government (“LMG”) and
Mark E. Bolton, in his individual capacity, to dismiss
for failure to state a claim upon which relief can be
granted (R. 37); and 2) Motion of Defendants Mississippi
County, Missouri (“Mississippi Co.”) and William Dorris
to dismiss for lack of venue (R. 40). Plaintiffs have filed
Responses to the Motions (R. 44; R. 45). Defendants
LMG and Bolton have filed a Reply (R. 47). Defendants
Mississippi Co. and Dorris have not filed a Reply and
their time to do so has expired. These Motions have
been referred to the undersigned for preparation of a
Report and Recommendation pursuant to 28 U.S.C. §
636(b)(1). (R. 9). For the reasons that follow, it will

be recommended that the Motion to Dismiss filed by
Defendants Mississippi Co. and Dorris (R. 40) be denied.
It will be further recommended that this matter be
transferred to the United States District Court for the
Western District of Kentucky, and that the Motion to
Dismiss filed by Defendants LMG and Bolton (R. 37) be
adjudicated by that court after transfer.

I. Factual and Procedural Background
In their Second Amended Complaint, Plaintiffs Rose
M. Phillips, administrator of the estate of William
Culpepper, Jr.; Michelle Meyer, as parent and next
friend of W.C., minor daughter of William Culpepper,
Jr. (“Culpepper”); and Brandon Green, the adult son
of Culpepper, who was a minor at the time of William
Culpepper, Jr.'s death, claim pursuant to 42 U.S.C. § 1983
that Defendants violated Culpepper's rights under the
Eighth and Fourteenth Amendments to the United States
Constitution. (R. 29, at 3). Plaintiffs also allege several
state law claims. (Id.).
Culpepper was arrested in Louisville, Kentucky on
December 20, 2015, on an outstanding warrant issued
by the State of Mississippi. (Id. at 8). He was housed
at the Louisville Metro Department of Corrections
(“LMDC”) pending transport to Mississippi. (Id.) At
approximately 10:00 a.m. on January 29, 2016, a PTS of
America, LLC (“PTS”) van arrived at LMDC to transport
Culpepper. (Id.). PTS is a company that provides prisoner
transportation services. (Id. at 4). The van was operated
by three PTS employees, Defendants Richard Haskins,
James Crook, and Elva Earnhart. (Id. at 8). While
Culpepper's intended destination was Central Mississippi
Correctional Facility in Pearl, Mississippi, there was
one overnight stop planned at the Mississippi County
Detention Center (“MCDC”) located in Mississippi
County, Missouri. (Id.).
Before Culpepper was released from LMDC custody into
the custody of PTS for transport, Culpepper allegedly
reported to Defendants Haskins, Crook, and Earnhart
that he had a bleeding ulcer and was experiencing
abdominal pain. (Id.). Defendants Haskins, Crook, and
Earnhart spoke with Defendant McKinney, a LMDC
nurse and employee of Defendant Correct Care Solutions,
LLC, regarding Culpepper's complaints. (Id.). Nurse
McKinney responded that Culpepper had no medical
history to support his complaint and directed Culpepper
be given antacids during the trip. (Id. at 8-9). Defendants

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Haskins, Crook, and Earnhart were also informed, prior
to transport, that Culpepper was a diabetic and had been
non-compliant with his medications. (Id. at 9).
*2 During transport to MCDC, Culpepper continued
to complain about abdominal pain. (Id.). At one
point, Defendants Haskins, Crook, and Earnhart claim
they contacted a nurse at LMDC about Culpepper's
complaints, who allegedly directed them to continue
to administer antacids. (Id.). Defendants also took
Culpepper's blood sugar twice during the trip and, on both
occasions, his blood sugar was high—in excess of 600 mg/
dl. (Id.).
The PTS van arrived at MCDC around midnight that
night. (Id.). Defendants Haskins, Crook, and Earnhart
escorted two other inmates from the van into MCDC,
wherein they told an officer and employee of the Jail,
Defendant Dorris, and other MCDC employees that
Culpepper was still in the van, “refusing to come in.” (Id.).
Defendant Dorris went to the van to help move Culpepper
into the jail and found Culpepper barely responsive. (Id.).
After Culpepper was taken inside MCDC around 12:18
a.m., Dorris and the Administrator at MCDC, Defendant
Cory Hutcheson, refused to admit Culpepper to the Jail
“until he was stable and medically cleared.” (Id. at 10). By
approximately 12:25 a.m., Culpepper was unconscious.
(Id.). An ambulance was called at approximately 12:40
a.m. and Defendants Hutcheson, Dorris, and other
MCDC employees placed Culpepper into a wheelchair
and transported him to the MCDC lobby to await arrival
of the ambulance. (Id.). When the ambulance arrived at
12:50 a.m., Culpepper was unresponsive, had no pulse,
and could not be revived. (Id.). The coroner subsequently
determined that Culpepper died due to a perforated
duodenal ulcer. (Id.).

II. Analysis
As pointed out above, Defendants LMG and Bolton,
in his individual capacity, have now filed a Motion to
Dismiss for failure to state a claim upon which relief can
be granted (R. 37) and Defendants Mississippi Co. and
Dorris have filed a Motion to Dismiss for lack of venue
(R. 40). In the Motion to Dismiss for lack of venue,
Defendants submit that the Eastern District of Kentucky
is not the proper venue for this action under 28 U.S.C. §
1391 and, as a result, the Court should dismiss the Second
Amended Complaint against Defendants Mississippi Co.

and Dorris. (Id. at 2). The Court's analysis reveals that
venue is improper under 28 U.S.C. § 1391, but as explained
below, transfer rather than dismissal is the appropriate
remedy under the circumstances here.

A. Venue in the Eastern District of Kentucky is
Improper
There is no special venue statute for § 1983 civil rights
actions. Gamble v. Whitmer, No. 3:12-cv-P481-H, 2012
WL 4460460, at *1 (W.D. Ky. Sept. 25, 2012); Schaeffer
v. Kentucky, No. 3:11-cv-P516-R, 2011 WL 5975380, at
*1 (W.D. Ky. Sept. 21, 2011). Looking therefore to the
general venue statute, a civil action may be brought in:

(1) a judicial district where any
defendant resides, if all defendants
are residents of the State in which
the district is located, (2) a judicial
district in which a substantial part of
the events or omissions giving rise to
the claim occurred, or a substantial
part of property that is the subject of
the action is situated, or (3) if there
is no district in which an action may
otherwise be brought in this section,
any judicial district in which any
defendant is subject to the court's
personal jurisdiction with respect to
such action.

28 U.S.C. § 1391(b). Based on the above language,
subsection (3) of the venue statute is not applicable unless
both subsections (1) and (2) do not provide a judicial
district in which an action may be brought. Schultz v.
Ary, 175 F.Supp.2d 959, 965 (W.D. Mich. 2001) (stating
“subsection (3) only applies ‘if there is no district in
which the action may otherwise be brought’ ”); see also
Maisano v. Corizon Health, Inc., No. 3:13-cv-0947, 2013
WL 5376559, at *3, 2013 U.S. Dist. LEXIS 137502, at
*8 (M.D. Tenn. Sept. 25, 2013) (referring to 28 U.S.C.
§ 1391(b)(3) as a “last-resort venue provision”). “Once
venue is challenged by a defendant, plaintiff has the
burden of proof to establish that venue is proper in the
district in which the claim has been brought.” Medquist
MRC, Inc. v. Dayani, 191 F.R.D. 125, 127 (N.D. Ohio
1999) (citations omitted).

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*3 In their Motion, Defendants Mississippi Co. and
Dorris argue that venue is improper in the Eastern
District of Kentucky because, under § 1391(b)(2), it is
“clear that the Eastern District of Kentucky is not the
district where [a] substantial part of the events occurred
as alleged in Plaintiffs' Second Amended Complaint, but
rather the State of Missouri is where a substantial part
of the events are alleged to have occurred.” (R. 41, at
2). These Defendants further contend that the majority
of the witnesses and parties reside in Missouri. (Id. at
3). Thus, according to Mississsippi Co. and Dorris, suit
could have been properly instituted against them in the
United States District Court for the Eastern District of
Missouri, Southeastern Division, and venue is improper
in the Eastern District of Kentucky.
In Response to Defendants' Motion to Dismiss for
improper venue, Plaintiffs argue that the first two sections
of 28 U.S.C. § 1391(b) do not apply in this matter.
(R. 45, at 4). Specifically, Plaintiffs argue that § 1391(b)
(1) does not apply because there are named Defendants
residing in Missouri, Tennessee, and Kentucky. Plaintiffs
also contend that “it is unquestionable that this case
does not meet the criteria set forth in 28 U.S.C. §
1391(b)(2)—the events in this case stretch from Louisville,
Kentucky to Charleston, Missouri and involve all points
in between.” (Id.). Accordingly, Plaintiffs claim § 1391(b)
(3) determines the appropriate venue in this case. Plaintiffs
argue that Defendant PTS does business in Kentucky,
and its registered office is located in Lexington, Kentucky,
which is within the Eastern District of Kentucky. (Id.).
Plaintiffs contend that this fact renders PTS subject to
personal jurisdiction in this Court, and thus, the Eastern
District of Kentucky is one of the districts where this
action could be brought for purposes of venue under §
1391(b)(3). (Id. at 6).
Notwithstanding Plaintiffs' position that venue is proper
in this Court, Plaintiffs state that they would have no
objection were Defendants to agree to a transfer of this
case to an appropriate division of the Western District
of Kentucky for the convenience of the parties. (Id.)
Plaintiffs cite to 28 U.S.C. § 1404(a), which statute permits
a district court, for the convenience of the parties, to
transfer any civil action to any other district where it might
have been brought or to which all parties have consented.
(Id.).

Review of the parties' arguments raises the question of
which subsection of 28 U.S.C. § 1391(b)—(2) or (3)—
applies here to determine proper venue. Under subsection
(2), proper venue lies in a judicial district in which a
substantial part of the events or omissions giving rise to
the claim occurred, but what if the events or omissions
occurred in more than one judicial district? If subsection
(2) does not apply in such circumstances, then subsection
(3) provides that venue is proper in any judicial district
in which any defendant is subject to the court's personal
jurisdiction with respect to the action. Plaintiffs rely upon
and point to subsection (3) as the reason why they filed in
this District and why this District is therefore proper.
In rendering these determinations in the context of a §
1983 action, a factually similar case from the District of
Colorado, Gwynn v. TransCor America, Inc., 26 F.Supp.2d
1256, 1261 (D. Colo. Oct. 21, 1998), is instructive. In
Gwynn, defendant TransCor, an extradition transport
company, transported plaintiff and then-inmate Gwynn
from Oregon to Colorado. Gwynn, 26 F.Supp.2d at 1260.
The trip took 145 hours and the route passed through
Oregon, California, Nevada, Utah, Wyoming, Idaho, and
Colorado. Id. During the trip, Gwynn was under the
custody and control of two TransCor employees operating
a van owned by TransCor. Id. At the end of the trip, these
two employees delivered Gwynn to the custody of a jail in
Jefferson County, Colorado. Id.
*4 Gwynn filed suit against TransCor and the two
employees, asserting inter alia that one of the employees
raped and sexually assaulted her repeatedly during the
trip, and the other employee failed to report or prevent
these assaults. Id. According to Gwynn, specific acts
occurred in Caldwell, Idaho, Vale, Oregon, and at a rest
stop in an unspecified state. Id. Gwynn also alleged the
employee fondled and assaulted her in every state through
which he transported her. Id. Gwynn claimed that these
actions constituted violations of 42 U.S.C. § 1983. Id. at
1259.
These two employees filed a motion to dismiss the case
against them, arguing, among other things, that venue
was improper in Colorado. Id. at 1260. Specifically,
defendants argued that venue was improper under 28
U.S.C. § 1391 because insufficient events leading to
Gwynn's claim occurred in Colorado to render Colorado
the proper venue. Id. at 1261. Defendants pointed to the
fact that less than two hours of the 145-hour trip occurred

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in Colorado, a substantial portion of the employee's
alleged sexual assaults did not occur in Colorado, and no
rape occurred in Colorado. Id. Thus, argued defendants,
Gwynn had not established a substantial portion of the
events leading to her claim occurred in Colorado where
she filed suit. Id.
In its analysis of the defendants' motion, the court cited
to 28 U.S.C. § 1391(b), which permits a civil action
to “be brought ... in (2) a judicial district in which
a substantial part of the events or omissions giving
rise to the claim occurred ...” Id. The court explained,
“[u]nder this provision, several districts may qualify as the
location of substantial events. ‘The fact that substantial
activities took place in district B does not disqualify
district A as proper venue as long as ‘substantial’ activities
took place in A, too.’ ” Id. (quoting David D. Siegel,
“Commentary on the 1988 and 1990 Revisions of Section
1391, Subdivision (a), Clause (2),” printed in 28 U.S.C.A.
§ 1391 at 13 (West 2006) ). The court further provided,
“[e]ven if a more substantial portion of the activities giving
rise to the claim occurred in other districts, venue is
proper if the district the plaintiff chose had a substantial
connection to the claim. Id. (citing Setco Enters. Corp. v.
Robbins, 19 F.3d 1278, 1281 (8th Cir. 1994) ).
In making its determination on whether a substantial
portion of the events giving rise to Gwynn's claim
occurred in Colorado, and thus whether venue was proper
in Colorado, the court looked to the substantive law
underlying Gwynn's claim. Id. (citing Merchants National
Bank v. Safrabank, 776 F.Supp. 538, 541 (D. Kan. 1991) ).
In particular, the court stated that “[t]he essential elements
of any claim under § 1983 are that ‘the conduct complained
of was committed by a person acting under color of
state law,’ and the ‘conduct deprived a person of rights,
privileges, or immunities secured by the Constitution or
laws of the United States.’ ” Id. at 1262 (quoting Parratt v.
Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420
(1981), overruled on other grounds by Daniels v. Williams,
474 U.S. 327, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986) ).
Applying the substantive law to the facts as alleged by
Gwynn, the court first found that there was no question
that the alleged acts of TransCor and its two employees
constituted action under color of state law. Id. The
court then found the events that allegedly took place in
Colorado—Gwynn alleged she was sexually assaulted in
each state along the route—could support Gwynn's § 1983

claim because they form a substantial portion of the events
giving rise to her claim even without the events alleged
to have occurred in other states. Id. (citing United States
v. Hartbrodt, 773 F.Supp. 1240, 1242 (S.D. Iowa 1991) ).
As a result, the court found that venue in Colorado was
proper and denied the defendants' motion to dismiss for
improper venue. Id. at 1267.
*5 Applying the analysis set forth in Gwynn, substantial
parts of the events giving rise to Plaintiffs' claim here
occurred in both the Western District of Kentucky and
the Eastern District of Missouri pursuant to 28 U.S.C. §
1391(b)(2). Here, like in Gwynn, “The essential elements of
any claim under § 1983 are that ‘the conduct complained
of was committed by a person acting under color of
state law,’ and the ‘conduct deprived a person of rights,
privileges, or immunities secured by the Constitution or
laws of the United States.’ ” Id. It is undisputed that each
of the Defendants in this matter are individuals or entities
that were acting under color of state law—either Kentucky
or Missouri. Further, the alleged events or omissions
that form the basis of Plaintiffs' claim of deprivation of
constitutional rights all took place either in the Western
District of Kentucky, prior to and during Culpepper's
transport to MCDC, or in the Eastern District of Missouri
where MCDC is located and to which Culpepper was
transported.
In particular, Plaintiffs claim that LMG and Bolton
violated Culpepper's constitutional rights by surrendering
Culpepper—who was in need of medical care—to the
custody of PTS at the LMDC in Louisville, Kentucky.
(R. 29, at 11-12). Plaintiffs also allege that Defendants
PTS, Haskins, Crook and Earnhart violated Culpepper's
constitutional rights by accepting custody of Culpepper at
LCDC and yet failing to seek needed medical attention
for Culpepper during the over 13-hour commute through
Kentucky to Missouri. Id. at 9. Finally, Plaintiffs contend
that Culpepper was deprived of his constitutional rights
when, upon arrival at MCDC, the officers and employees
at that facility failed to immediately procure medical
treatment for Culpepper, ultimately resulting in his death.
Id. at 12.
Because the events and/or omissions that allegedly took
place in either the Western District of Kentucky or
the Eastern District of Missouri, standing alone, could
support Plaintiffs' § 1983 claim, the events occurring in
both states constitute events forming a substantial portion

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of the events giving rise to Plaintiffs' claim. As substantial
parts of the events giving rise to Plaintiffs' claims occurred
in both the Western District of Kentucky and the Eastern
District of Missouri, the next question is whether venue
would be potentially proper in either state or in both.
In this regard, the legal principles applied by the court
in Gwynn would support a finding that venue lies in
either the Western District of Kentucky or the Eastern
District of Missouri. “Under [28 U.S.C. § 1391(b)(2) ],
several districts may qualify as the location of substantial
events. ‘The fact that substantial activities took place
in district B does not disqualify district A as proper
venue as long as ‘substantial’ activities took place in
A, too.’ ” Gwynn, 26 F.Supp.2d at 1260. Indeed, the
Sixth Circuit, in First of Michigan Corp. v. Bramlet,
also looked to this interpretation of § 1391(b)(2) when
considering challenges to venue. 141 F.3d 260 (6th Cir.
1998). Specifically, the Sixth Circuit reasoned, “[t]he fact
that substantial activities took place in district B does
not disqualify district A as proper venue as long as
‘substantial’ activities took place in A, too. Indeed, district
A should not be disqualified even if it is shown that the
activities in district B were more substantial, or even the
most substantial.” 141 F.3d at 263 (quoting David D.
Siegel, “Commentary on the 1988 and 1990 Revisions
of Section 1391, Subdivision (a), Clause (2),” printed in
28 U.S.C.A. § 1391 at 13 (West 2006) ). Looking to
Bramlet and Gwynn in this case, venue would be proper
in both the Western District of Kentucky and the Eastern
District of Missouri because substantial events occurred,
or failed to occur, in both districts pursuant to 28 U.S.C.
§ 1391(b)(2). Thus, subsection (b)(3) is not implicated
because subsection (b)(2) applies. Without application of
28 U.S.C. § 1391(b)(3), venue is not proper in this District.

B. Dismissal is not the appropriate remedy here
*6 After determining that venue is improper in this
District, the analysis turns to Defendants' requested
remedy of dismissal. In their Motion, Defendants
Mississippi Co. and Dorris argue “[b]ecause Plaintiffs'
Second Amended Complaint fails to meet any of the three
requirements pursuant to 28 U.S.C. § 1391(b), the Second
Amended Complaint against the Missouri Defendants
should be dismissed.” (R. 41, at 3). Defendants cite a
pair of cases in support of their argument to dismiss, but
neither of the cases analyzes why dismissal, rather than
transfer of the case would be a proper remedy. (R. 41,
at 3). In one of the cases cited by Defendants, the court

ultimately decided to transfer the case to a proper venue
rather than dismiss the case. See Pisani v. Diener, No.
7-cv-5118, 2009 WL 749893, at *10 (E.D.N.Y. 2009). 1
While Plaintiffs' position is that venue is proper in this
Court, which as addressed above is incorrect, Plaintiffs
also state they have no objection to transfer of this matter
to the Western District of Kentucky. (R. 45, at 5-6).
1

Defendants also cite to Young v. Ellis, in which
the United States District Court for the District of
Kansas dismissed the plaintiff's claim “under Rule
12(b)(3) for improper venue.” No. 2:13-cv-2558, 2014
U.S. Dist. LEXIS 74654 (D. Kan. 2014). Although
not binding on this Court, Young is nevertheless
distinguishable from the case at hand because the
court never addressed the possibility of transferring
the case, and the court noted that there was a proper
district in which the action could be brought even
after dismissal. Id. at *3.

The statute applicable under these circumstances is 28
U.S.C. § 1406(a), which provides:

(a) The district court of a district in
which is filed a case laying venue in
the wrong division or district 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). Although the statute does say that
dismissal is an option when venue is laid in the wrong
district, the court has broad discretion in ruling on
whether dismissal or transfer would be the appropriate
remedy. See Stanifer v. Brannan, 564 F.3d 455, 457 (6th
Cir. 2009). Dismissal rather than transfer of a case may
be appropriate in instances where the plaintiff misuses
the court process, or makes such an obvious error that
transfer is inappropriate as it would reward plaintiff's lack
of diligence. Id. at 460 (citing Cote v. Wadel, 796 F.2d
981, 985 (7th Cir. 1986); Spar, Inc. v. Info. Res., Inc.,
956 F.2d 392, 394 (2nd Cir. 1992) ). Plaintiffs here had
a seemingly well-founded reason to file their case in the
Eastern District of Kentucky based on their assessment of
the venue statute. Doing so was not a misuse of the court
process, and the error was not an obvious one. Therefore,
dismissal is not recommended in this instance.

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5

Phillips v. PTS of America, LLC, Slip Copy (2017)
2017 WL 9325623

In exercising its authority under § 1406, “a district court
has the power to sua sponte transfer a case.” Cosmichrome,
Inc. v. Spectra Chrome, LLC, 504 F. App'x 468, 472
(6th Cir. 2012). Although Defendants Mississippi Co.
and Dorris request dismissal of the claims against them
in lieu of transfer, this does not prohibit this Court
from considering whether transfer is the more appropriate
remedy in the interests of justice here. In considering
whether the interests of justice dictate transfer of a case
instead of dismissal, courts are guided by the policy “of
allowing cases to be decided on their substantive merits, as
opposed to being decided on procedural grounds.” Flynn
v. Greg Anthony Constr. Co., Inc., 95 F. App'x 726, 741
(6th Cir. 2003) (citing Goldlawr, Inc. v. Heiman, 369 U.S.
463, 466-67, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962) ); see also
Marsh v. Genetech Inc., No. 11-11462, 2011 WL 2600641,
at *1 (E.D. Mich. 2011) (stating “[i]t is in the interest of
justice that Plaintiff's case be decided on its merits”).
As a result, “the reasons for transferring a case to
a proper forum rather than dismissing are especially
compelling if the statute of limitations has run since the
commencement of the action, so that dismissal might
prevent the institution of a new suit by the plaintiff and
a resolution on the merits.” Jackson v. L & F Martin
Landscape, 421 F. App'x 482, 484 (6th Cir. 2009). Here,
Plaintiffs have filed their claims pursuant to 42 U.S.C. §
1983 (R. 29, at 3), which does not contain a statute-oflimitations period. Therefore, federal courts are to “turn
to state law for statutes of limitations in actions brought
under [this] civil rights [statute].” Burnett v. Grattan, 468
U.S. 42, 49, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984). In
Kentucky, the applicable statute of limitations is one year,
as provided in K.R.S. § 413.140(1)(a). Bowden v. City of
Franklin, Ky., 13 F. App'x 266, 272 (6th Cir. 2001); see also
Collard v. Kentucky Bd. of Nursing, 896 F.2d 179, 182 (6th
Cir. 1990) (stating that “section 1983 actions in Kentucky
are limited by the one-year statute of limitations found in
section 413.140(1)(a).”).
*7 The allegations giving rise to Plaintiffs' claims in this
matter occurred in January of 2016 (R. 29, at 8-9), and
this action was commenced in December of 2016. (R.
1). Thus, it appears that dismissal of Plaintiffs' claims
against the Missouri Defendants would preclude Plaintiffs
from obtaining an adjudication of their claims on the
merits. As it is in the interest of justice that Plaintiffs'
claims be decided on their merits, rather than dismissed

on procedural grounds, transfer of this case to a District
where venue is proper, rather than dismissal of the case,
would better serve the interests of justice.

C. Transfer to the Western District of Kentucky is
appropriate
As the appropriate remedy is transfer of this matter
to a district in which it could have been brought, the
question now before the Court is to which jurisdiction
this matter should be transferred. As discussed above,
venue lies in both the Western District of Kentucky and
the Eastern District of Missouri, so either forum would
be appropriate under 28 U.S.C. § 1406. Prior to the
1990 amendment to § 1391(a)(2), 2 when choosing the
appropriate forum, courts considered “the availability of
the witnesses, the accessibility of other relevant evidence,
and the convenience of the defendant.” N. Ky. Welfare
Rights Ass'n v. Wilkinson, No. 90-6268, 933 F.2d 1009,
1991 U.S. App. LEXIS 11472, at *14 (6th Cir. 1991)
(citing Leroy v. Great Western United Corporation, 443
U.S. 173, 185, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979) ).
Looking generally at such considerations here suggests
the Western District of Kentucky is an appropriate forum
to which to transfer this action. Regarding the witnesses,
while there is an identifiable group of persons located
in Missouri who witnessed Culpepper's death and the
circumstances leading up to his death, there are also a
number of witnesses located in the Western District of
Kentucky that can likely attest to Culpepper's condition
while incarcerated and in the time leading up to and during
his transport and ultimate death.
2

The subsection previously laid venue in the judicial
district “in which a substantial part of the acts,
events or omissions occurred that gave rise to the
claim for relief,” but after the amendment, venue was
proper in a judicial district “in which a substantial
part of the events giving rise to the claim arose.”
First of Michigan Corp. v. Bramlet, 141 F.3d 260,
263 (6th Cir. 1998). The new language removed the
requirement that plaintiffs pinpoint the one and only
forum in which the claim arose. See David D. Siegel,
“Commentary on the 1988 and 1990 Revisions of
Section 1391, Subdivision (a), Clause (2),” printed in
28 U.S.C.A. § 1391 at 13 (West 2006).

As for accessibility of other relevant evidence, Culpepper
was arrested in Louisville, Kentucky, and held at LMDC
for over a month. (R. 29, at 8). Therefore, much
of the physical evidence, including Culpepper's inmate

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6

Phillips v. PTS of America, LLC, Slip Copy (2017)
2017 WL 9325623

records and medical records regarding his time spent
at LMDC, are located in the Western District of
Kentucky. Culpepper's historical medical records and
other relevant personal documents and information about
him prior to his death will also be located in the Western
District of Kentucky. And Plaintiff Phillips was appointed
administrator of Culpepper's estate by the Jefferson
County, Kentucky, District Court (see R. 29, at 4), which
is located in the Western District of Kentucky.
Finally, in considering convenience of a defendant,
Defendants in this case are from both the Western District
of Kentucky and the Eastern District of Missouri, as
well as Tennessee. (R. 29, at 4-6). Therefore neither
district is more convenient than the other in that
aspect. In summary, the Western District of Kentucky
is an appropriate forum for transfer purposes because
numerous potential witnesses and parties as well as
significant physical evidence are located in that District.

III. Conclusion and Recommendation
*8 Because this case was improperly filed in the Eastern
District of Kentucky, the matter should be transferred to
an appropriate forum in the interest of justice under 28
U.S.C. § 1406(a), the Western District of Kentucky being
an appropriate forum.

1) The Motion to Dismiss filed by Defendants
Mississippi Co. and Dorris (R. 40) be denied.
2) This matter be transferred in its entirety, including
the pending Motion to Dismiss filed by Defendants
LMG and Bolton (R. 37), to the United States
District Court for the Western District of Kentucky.
Particularized objections to this Report and
Recommendation must be filed with the Clerk of Court
within fourteen (14) days of the date of service or further
appeal is waived. Fed. R. Civ. P. 72(b)(2); Thomas v.
Arn, 728 F.2d 813, 815 (6th Cir. 1984), aff'd, 474 U.S.
150 (1985). A general objection that does not “specify
the issues of contention” is not sufficient to satisfy the
requirement of a written and specific objection. Miller v.
Currie, 50 F.3d 373, 380 (6th Cir. 1995) (citing Howard v.
Sec'y of Health & Human Servs., 932 F.2d 505, 508-09 (6th
Cir. 1991) ). Poorly drafted objections, general objections,
or objections that require a judge's interpretation should
be afforded no effect and are insufficient to preserve the
right of appeal. Howard, 932 F.2d at 509. A party may
file a response to another party's objection within fourteen
(14) days after being served with a copy thereof. Fed. R.
Civ. P. 72(b)(2).

All Citations
Accordingly, IT IS RECOMMENDED that:

End of Document

Slip Copy, 2017 WL 9325623
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7

Schilling v. Transcor America, LLC, Not Reported in F.Supp.2d (2009)
2009 WL 3334889

2009 WL 3334889
Only the Westlaw citation is currently available.
United States District Court,
N.D. California.
Kevin M. SCHILLING, on behalf of himself
and all others similarly situated, Plaintiff,
v.
TRANSCOR AMERICA, LLC, et al., Defendants.
No. C 08–941 SI.
|
Oct. 14, 2009.
Attorneys and Law Firms
Andrew Charles Schwartz, Casper Meadows Schwartz
& Cook, Walnut Creek, CA, Joshua Kaizuka, Mark E.
Merin, Esq., Law Office of Mark E. Merin, Sacramento,
CA, Karen Leigh Snell, Attorney at Law, San Francisco,
CA, for Plaintiff.
Justus C. Spillner, III, McCormick Barstow Sheppard
Wayte & Carruth LLP, Matthew Edward Fletcher,
Attorney at Law, Fresno, CA, Daniel P. Struck, Lisa S.
Wahlin, Rachel Love, Jones, Skelton & Hochuli, P.L.C.,
Phoenix, AZ, for Defendants.

ORDER DENYING DEFENDANTS'
MOTION TO TRANSFER VENUE;
GRANTING PLAINTIFFS' LEAVE TO
FILE SECOND AMENDED COMPLAINT
SUSAN ILLSTON, District Judge.
*1 Defendants' motion to transfer venue and plaintiffs'
motion to amend the complaint are scheduled for a
hearing on October 16, 2009. Pursuant to Civil Local
Rule 7–1(b), the Court determines that the matters are
appropriate for resolution without oral argument, and
VACATES the hearing. For the reasons set forth below,
the Court DENIES defendants' motion to transfer venue,
and GRANTS plaintiff leave to amend the complaint.

BACKGROUND

On February 14, 2008, plaintiff Kevin Schilling filed this
lawsuit against TransCor America, LLC (“TransCor”),
Sergeant John Smith, “Officer Blanden,” and Does 1–
100. 1 On August 21, 2008, plaintiffs filed an amended
complaint adding two additional named plaintiffs, John
Pinedo and William Tellez, and correcting a typographical
error. The amended complaint alleges that TransCor is a
for-profit Tennessee corporation licensed to do business
in California whose business entails the transportation of
pretrial detainees and prisoners throughout the United
States on behalf of federal, state and local governments.
First Amended Complaint (“FAC”) ¶ 13. The complaint
also alleges that at all material times, each of the
defendants was acting under color of state and federal law.
Id. ¶ 17.
1

The complaint incorrectly named defendant Jeff
Brummett as Officer Blanden. Plaintiffs' motion to
amend the complaint seeks to correct this error, and
defendants have no objection to this amendment. This
order will refer to defendant by his correct name,
Brummett.

The FAC alleges that TransCor transports pretrial
detainees and prisoners in conditions that amount to
cruel and unusual punishment. The FAC alleges that
TransCor's policies, practices or customs include but are
not limited to transporting pretrial detainees and prisoners
in small metal cages in which a person can neither stand up
nor lie down, for more than 24 hours at a time, while the
person is handcuffed, chained, and in shackles, and failing
to provide pretrial detainees and prisoners with adequate
food, fluids, exercise, hygiene, and medical care. Id. ¶ 2.
According to the FAC, plaintiff Schilling was picked up
at a detention facility in Fairfield, California, by agents
and/or employees of TransCor. Id. ¶ 21. The complaint
alleges that Schilling was strip searched before boarding
the transport van, and that he “was then handcuffed,
a restraint was applied that secured his hands to his
waist, and he was shackled. After boarding the transport
van, plaintiff was seated on a metal bench in a small,
locked metal cage in which it was impossible for him to
stand up or sit down.” Id. The complaint alleges that for
the next several days, plaintiff remained in the transport
van, restrained and shackled in the metal cage, while
the van “meandered around California—from Fairfield
through counties within the Northern District of the
United States Court and then back, once again through
counties within the Northern District of the United States
District Court, to Fairfield—picking up and dropping

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Schilling v. Transcor America, LLC, Not Reported in F.Supp.2d (2009)
2009 WL 3334889

off pretrial detainees and/or prisoners.” Id. ¶ 22. Plaintiff
Schilling alleges that during the time in the transport
van, he was provided with only two meals per day; he
was not permitted to lie down, stand up, bathe, shave,
brush his teeth or change his clothes; he was forced to
use the on-board toilet at defendants' convenience; and
aside from the steps from his cage to the toilet and
back, he was allowed no physical activity. Id. ¶ 23. The
FAC also alleges that after being in the van for several
days, Schilling realized that the van was headed back to
Fairfield and he demanded to speak to the warden. Id. ¶
24. The complaint alleges that in response, and while he
was detained as described above, defendants Brummett
and Smith grabbed him, sprayed pepper spray in his
face, purposely walked him into poles, and along with an
unknown TransCor employee, punched him. Id. Plaintiff
alleges that he was not allowed to see a doctor or a nurse
until the transport van reached Imperial County Jail. Id.
*2 The FAC alleges that plaintiff Pinedo was picked
up by TransCor at Kern Valley State Prison in Delano,
California, and transported to Santa Barbara County
Jail. Id. ¶ 26. The FAC alleges that the trip took more
than 27 hours, and that during the entire time Pinedo
was in TransCor's vehicle, he was handcuffed, shackled,
and restrained with a belly chain and chained to other
inmates in a metal cage, unable to lie down or sleep during
the entire time of his transport. Id. ¶ 27. The FAC also
alleges that Pinedo was permitted only two opportunities
to urinate, but could not sit to use the toilet to defecate
because TransCor personnel would not remove any of the
restraints. Id. ¶ 28. Pinedo also alleges that he was fed
only three “fast food” meals, and not permitted to wash,
shower or change his clothes before being delivered to
Santa Barbara County Jail. Id. ¶ 29.
The FAC alleges that plaintiff Tellez was picked up
by TransCor at the Federal Penitentiary in Atwater,
California. Id. ¶ 30. Tellez was transported to Clark
County Detention Center in a trip that took six days,
and then approximately six months later, TransCor
transported Tellez from Clark County Detention Center
back to Atwater, California. Id. ¶ 33. The FAC alleges that
Tellez experienced conditions similar to those experienced
by Schilling and Pinedo. Id. ¶¶ 30–33.
Plaintiffs filed this action on behalf of a class consisting of
“all pretrial detainees and prisoners who were transported
by TRANSCOR AMERICA, LLC, its agents and/or

employees, and forced to remain in the transport van for
more than 24 hours, from two years preceding the filing
of this Complaint to the date this case is resolved.” Id.
¶ 39. The complaint also alleges a similar subclass of all
pretrial detainees and prisoners transported in California.
Id. ¶ 40. The complaint alleges claims under 42 U.S.C. §
1983 for violations of the Fourth, Eighth and Fourteenth
Amendments to the U.S. Constitution, and the California
State Bane Civil Rights Act. Plaintiffs seek declaratory
and injunctive relief, as well as monetary damages.

DISCUSSION
I. Defendants' motion to transfer venue
Defendants move to transfer venue to the Middle
District of Tennessee, or alternatively to the Eastern
District of California. Defendants contend that transfer
is appropriate pursuant to 28 U.S.C. § 1406(a) because a
substantial part of the events giving rise to this lawsuit
occurred in Tennessee, where TransCor is headquartered
and thus where the TransCor policies and procedures
were developed, or the Eastern District of California,
because a large portion of the route that plaintiff Schilling
traveled on when he was transported from Fairfield,
California to Las Vegas, Nevada, is in the Eastern District.
Alternatively, defendants contend that venue should be
transferred to Tennessee pursuant to 28 U.S.C. § 1404(a)
because it is more convenient for the parties and witnesses.

A. 28 U.S.C. § 1406(a)
*3 In general, venue is covered by 28 U.S.C. § 1391.
Under 29 U.S.C. 1391(b), where federal subject matter
jurisdiction is not based solely on diversity of citizenship,
venue is proper in the following districts: (1) a judicial
district where any defendant resides, if all defendants
reside in the same State; (2) a judicial district 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 (3) if there is
no district in which the action may otherwise be brought,
a judicial district in which any defendant may be found.
28 U.S.C. § 1391(b). Here, the defendants do not all reside
in the same state, 2 and there are districts in which the
action may be brought, and thus the question is whether
a “substantial part of the events or omissions” giving rise
to plaintiffs' claims occurred in this district.

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2

Schilling v. Transcor America, LLC, Not Reported in F.Supp.2d (2009)
2009 WL 3334889

2

Defendants
Oklahoma.

Brummett

and

Smith

reside

in

As an initial matter, plaintiffs contend that defendants
have waived an improper venue defense because Federal
Rule of Civil Procedure 12(b)(3) provides that any motion
asserting the defense of improper venue must be made
before pleading if a responsive pleading is allowed.
Plaintiffs note that TransCor filed a motion to dismiss
pursuant to Rule 12(b) in 2008, and that it has since
appeared at three different case management conferences
and has represented in case management conference
statements that “there are no issues regarding personal
jurisdiction or venue.” TransCor argues that it has not
waived a venue challenge because it was only recently
that TransCor's counsel learned that plaintiff Schilling's
transport only traveled into the Northern District
momentarily. Defendants also argue that defendants
Smith and Brummett were only recently served with
the complaint, and that these defendants preserved their
venue objection by asserting it in their answer and by filing
the instant motion.
The Court finds that defendants Smith and Brummett
have not waived their venue objection since these
defendants were only recently served and have raised
improper venue in their answer. Given the procedural
history of this case and the fact that this action has been
pending since February 2008, it is a much closer call as to
whether TransCor has waived its right to challenge venue.
However, because all defendants raise identical arguments
regarding venue, the Court will consider the motion as to
all defendants.
The events or omissions on which plaintiffs' claims are
based occurred in several judicial districts, including the
Northern and Eastern Districts of California, Nevada,
and Tennessee. Section 1391(b) “do[es] not require
that a majority of the ‘events or omissions' occur in
the district where suit is filed; nor that the events
there predominate. It is sufficient that a ‘substantial
part’ occur there.” Schwarzer, Tashima & Wagstaffe,
Federal Civil Procedure Before Trial, ¶ 4:316 (2009). The
“substantiality” requirement is “intended to preserve the
element of fairness so that a defendant is not haled into a
remote district having no real relationship to the dispute.”
Cottman Transmission Systems, Inc. v. Martino, 36 F.3d
291, 294 (3d Cir.1994).

*4 The parties dispute how much of plaintiff Schilling's
transport route went through the Northern District versus
the Eastern District . 3 The Court finds it unnecessary to
resolve this factual question—which in any event cannot
be conclusively determined upon this record—because it is
undisputed that at least some portion of Schilling's route
was in the Northern District. In addition, plaintiffs assert,
and defendants do not deny, that discovery has revealed
that during the class period TransCor had contracts with
seven law enforcement agencies in the Northern District
to transport prisoners and pretrial detainees. In contrast,
TransCor has closed the Fresno “hub,” and TransCor did
not have any contracts to transport prisoner and pretrial
detainees in the Middle District of Tennessee. Thus, it
is likely that putative class members were transported
throughout the Northern District of California. The
Court concludes that based upon these facts, venue is
proper in this District. Moreover, any suggestion by
defendants that litigating in this District is unfair or
burdensome is undercut by their willingness to litigate in
the Eastern District, which is equally remote from either
Oklahoma, where the individual defendants reside, or
Tennessee, where TransCor is headquartered.
3

The parties do not discuss the other named plaintiffs'
transport routes.

B. 28 U.S.C. § 1404(a)
“For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil
matter to any other district or division where it might
have been brought.” 28 U .S.C. § 1404(a). The purpose
of § 1404(a) is to “prevent the waste of time, energy,
and money and to protect litigants, witnesses and the
public against unnecessary inconvenience and expense.”
Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805,
11 L.Ed.2d 945 (1964) (internal citations and quotation
omitted). A motion for transfer lies within the broad
discretion of the district court, and must be determined
on an individualized basis. See Jones v. GNC Franchising,
Inc., 211 F.3d 495, 498 (9th Cir.2000).
To support a motion for transfer, the moving party must
establish: (1) that venue is proper in the transferor district;
(2) that the transferee district is one where the action
might have been brought; and (3) that the transfer will
serve the convenience of the parties and witnesses, and
will promote the interests of justice. See Goodyear Tire
& Rubber Co. v. McDonnell Douglas Corp., 820 F.Supp.

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3

Schilling v. Transcor America, LLC, Not Reported in F.Supp.2d (2009)
2009 WL 3334889

503, 506 (C.D.Cal.1992). A motion for transfer lies within
the broad discretion of the district court, and must be
determined on an individualized basis. See Jones v. GNC
Franchising, Inc., 211 F.3d 495, 498 (9th Cir.2000).
Defendants contend that the Middle District of Tennessee
is more convenient because TransCor witnesses and
documents are located there. However, given the
procedural posture of this case, the Court finds that
transfer would be both inefficient and not in the interest
of justice. This case has been pending since February
2008, the parties have engaged in motion practice, and the
Court has held three case management conferences. Under
the current pretrial schedule, plaintiffs are scheduled to
file a motion for class certification in December 2009,
and the Court will hold a hearing on the motion in
February 2010. According to plaintiffs' counsel, document
discovery is virtually complete, and the parties have
cooperated to schedule depositions at convenient times
and places, including in Tennessee and Oklahoma. Thus,
the only inconvenience to non-California witnesses will be
if they are required to testify at trial. Given defendants'
willingness to litigate in the Eastern District of California,
any incremental inconvenience caused by traveling to the
Northern District is marginal at best.

Plaintiffs state that through pre-class certification
discovery they have learned that a substantial number of
the prisoners and detainees transported by TransCor were
juveniles and state hospital inmates. Plaintiffs state that in
preparing to move for class certification, it has come to
their attention that the complaint unintentionally excludes
potential class members with timely claims. Plaintiffs
argue that there is no prejudice to defendants because
the additional class members have the same claims as the
original class, and that the proposed amendment does not
affect the schedule for filing and hearing the motion for
class certification.

*5 Accordingly, the Court DENIES defendants' motion
to transfer venue.

Defendants oppose amending the class definition on
several grounds. First, defendants argue that plaintiffs
have unreasonably delayed in seeking the current
amendment, and they emphasize that plaintiffs have
long known through discovery that TransCor transported
juveniles and state hospital inmates. However, delay alone
is not a basis for denying leave to amend. See Owens v.
Kaiser Foundation Health Plan Inc., 244 F.3d 708, 712–
713 (9th Cir.2001) ( “Assuming arguendo that Kaiser
had unreasonably delayed the filing of the motion to
amend its answer, undue delay by itself is insufficient to
justify denying a motion to amend.”) (internal citation and
quotation omitted). Moreover, while defendants assert
that the delay is unjustified, there is no suggestion of bad
faith on the part of plaintiffs.

II. Plaintiffs' motion to file second amended complaint
Plaintiffs seek to amend the complaint in several ways.
Plaintiffs seek to correct the name of defendant Brummett,
and to change the place of plaintiff Schilling's residence
as well as the date of his transport. Plaintiffs also wish
to amend the definition of the class to include pretrial
detainees and prisoners whose claims were timely as of
February 14, 2006, despite having accrued more than
two years before plaintiffs filed their original complaint,
based on the tolling provisions of California Code of
Civil Procedure section 352 (limitations period tolled
due to the disability of minority or insanity) or 352.1
(limitations period tolled for a maximum of two years
due to the disability of imprisonment). Finally, plaintiffs
wish to allege with additional particularity the facts
showing that the tolling provisions of California Code
of Civil Procedure section 352.1 apply to plaintiff Tellez.
Defendants only oppose the proposed amendment to the
class definition.

Defendants also contend that the revised class definition
will cause them prejudice because discovery has been
limited to the class period alleged in the complaint—
February 14, 2006 to February 14, 2008—and extending
the class period may require that eight witnesses will
have to be re-deposed to ascertain if TransCor's policies
and procedures were different prior to February 14,
2006. Defendants also assert that they will be required
to “scour” through literally thousands of pages of
documents a second time if the class period is expanded.
However, as plaintiffs note, defendants have not offered
any evidence in support of their speculation that the
witnesses identified by defendants—all of whom are
TransCor employees—would need to be re-deposed.
Plaintiffs argue that if any witness needs to be redeposed, that burden falls on plaintiffs, not defendants.
Moreover, plaintiffs state that they believe there will be
little if any additional discovery required. Plaintiffs have
submitted the deposition testimony of Sondra Pedrigo,
who was designated by defendants as the “person most

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Schilling v. Transcor America, LLC, Not Reported in F.Supp.2d (2009)
2009 WL 3334889

knowledgeable about any and all policies and procedures
of TransCor relating to transportation of prisoners,” “the
nutrition provided to prisoners during transportation,”
“prisoner complaints,” etc., and who has worked for
TransCor for eleven years. See Snell Reply Decl. Ex.
A. During her testimony, Ms. Pedrigo testified about
certain practices that have been in place since at least
2001 (such as use of black boxes over handcuffs), and she
gave no indication that TransCor's policies and practices
had changed in material ways over the years. If, in
fact, there are material differences pre-and postFebruary
2006 with regard to TransCor's policies and procedures,
defendants can easily ascertain that fact because Ms.
Pedrigo is a TransCor employee. With regard to document
discovery, plaintiffs state that in August 2008, plaintiffs
requested transport records from TransCor's computer
system dating back to February 2004, and that plaintiffs
do not anticipate requiring any discovery other than
that already served or noticed prior to filing the class
certification motion.
*6 Defendants also argue that the proposed amendment
would be futile because the additional class members
will be difficult to identify, and individual tollingissue inquiries will predominate over common questions.
However, as defendants recognize in their opposition,
those are questions for class certification, and the Court
finds it premature to resolve those questions at this stage.
Defendants may renew those arguments in opposition to
class certification.
Finally, the parties dispute whether the proposed
amended class definition should relate back to the original
complaint. Defendants argue that the amendment should
not relate back because the claims of the additional
class members arise out of different transports in a
End of Document

different time period. Defendants also assert that the
original complaint only gave them notice that plaintiffs
were challenging TransCor's policies and procedures from
February 2006 to February 2008. These arguments are
not persuasive. While the additional class members' claims
would arise from an earlier time period, the claims are
substantively similar to those of the existing putative
class, and defendants have not identified any meaningful
difference between the pre- and post-February 2006 class
members. See Immigrant Assistance Project of the Los
Angeles County Federation of Labor v. INS, 306 F.3d 842,
858 (9th Cir.2002) (addition of new plaintiffs who were
similarly situated to original plaintiffs did not prejudice
defendants, claims related back). In addition, since the
filing of the FAC in August 2008, defendants have
been aware that plaintiff Tellez's claims arose in August
2005, prior to the asserted class period. See FAC ¶¶
30–34 (alleging that Tellez was incarcerated at Federal
Penitentiary in Atwater, California, and that transports
occurred in August 2005 and February 2006).

CONCLUSION
For the foregoing reasons, the Court DENIES defendants'
motion to transfer venue and GRANTS plaintiffs' motion
to file a second amended complaint. (Docket Nos. 69, 70).
Plaintiff shall file an amended complaint no later than
October 19, 2009
IT IS SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2009 WL 3334889

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5

Starr v. Michael Stars, Inc., Not Reported in Fed. Supp. (2013)
2013 WL 12291517

2013 WL 12291517
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Michael STARR, Plaintiff,
v.
MICHAEL STARS, INC., Defendant.
5:12-CV-860 (NAM/ATB)
|
Signed 03/21/2013
Attorneys and Law Firms
Office of Howard D. Leib, Howard D. Leib, Esq., of
counsel, 1861 Hanshaw Road, Ithaca, New York 14850,
Attorney for Plaintiff.
Hancock Estabrook, LLP, Ashley D. Hayes, Esq., of
counsel, Robert J. Thorpe, Esq., of counsel, Zachary
M. Mattison, Esq., of counsel, 1500 AXA Tower I, 100
Madison Street, Syracuse, New York 13221, and Ezra
Brutzkus Gubner LLP, J. Alison Grabell, Esq., of counsel,
Mark D. Brutzkus, Esq., of counsel, 21650 Oxnard
St., Suite 500, Woodland Hills, California 91367-4911,
Attorneys for Defendant.

a corporation organized under California law, with its
principal place of business in California. Defendant is a
manufacturer and retailer of casual women’s apparel and
accessories. It is undisputed that defendant is registered
with the New York Secretary of State as a foreign
corporation authorized to do business in the state. See
N.Y. Business Corp. Law (“BCL”) §§ 1301 et seq.
Defendant moves to dismiss for improper venue under
Fed.R.Civ.P. 12(b)(3), based on 28 U.S.C. § 1406(a),
which states: “The district court of a district in which is
filed a case laying venue in the wrong division or district
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.” In the alternative, defendant requests that,
if the Court denies dismissal under section 1406(a), the
case be transferred to the Central District of California
in the Court’s discretion “for the convenience of parties
and witnesses, in the interest of justice” under 28 U.S.C.
§ 1404(a).
In support of its contention that venue lies in the Northern
District of New York, plaintiff relies on the following
allegations: defendant is authorized to do business in New
York State; defendant sells its products on its website;
and nine independent retailers in the Northern District sell
defendant’s products.

MEMORANDUM-DECISION AND ORDER
DISCUSSION

Honorable Norman A. Mordue, U.S. District Judge
*1 In this action alleging trademark infringement,
defendant moves (Dkt. No. 13) to dismiss for improper
venue under 28 U.S.C. § 1406(a) and Fed.R.Civ.P. 12(b)
(3), or to transfer venue to the Central District of
California under 28 U.S.C. § 1404(a). The Court grants
the motion to the extent that the case is transferred to
the Central District of California; the motion is otherwise
denied.

BACKGROUND
The complaint alleges jurisdiction under 15 U.S.C. §
1121(a) (granting original jurisdiction to district court
over all actions “arising under” 15 U.S.C. Chapter 22,
“Trademarks”). Plaintiff is an individual residing in the
State of California. Defendant Michael Stars, Inc. is

The pertinent portions of 28 U.S.C. § 1391 provide:
(b) Venue in general.—A civil action may be brought in
—
(1) a judicial district in which any defendant resides,
if all defendants are residents of the State in which the
district is located; [or]
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred
[.]
***
(c) Residency.—For all venue purposes—
***

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Starr v. Michael Stars, Inc., Not Reported in Fed. Supp. (2013)
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(2) an entity with the capacity to sue and be
sued in its common name under applicable law,
whether or not incorporated, shall be deemed to
reside, if a defendant, in any judicial district in
which such defendant is subject to the court’s
personal jurisdiction with respect to the civil action
in question[.]
***
(d) Residency of corporations in States with multiple
districts.—For purposes of venue under this chapter,
in a State which has more than one judicial district
and in which a defendant that is a corporation is
subject to personal jurisdiction at the time an action is
commenced, such corporation shall be deemed to reside
in any district in that State within which its contacts
would be sufficient to subject it to personal jurisdiction
if that district were a separate State....
*2 Plaintiff relies primarily on section 1391(b)(1) venue,
arguing that defendant is deemed to reside in the Northern
District of New York by operation of section 1391(d),
because defendant is subject to personal jurisdiction here
under sections 301 and/or 302(a)(1) of New York Civil
Practice Law and Rules (“C.P.L.R.”). The parties have
not engaged in discovery; thus, plaintiff has only the
burden of making a prima facie showing that jurisdiction
exists, and all pleadings and affidavits are construed in his
favor. See Hoffritz for Cutlery, Inc. v Amajac, Ltd., 763
F.2d 55, 57 (2d Cir. 1985).
Authorization to do business in New York and
designation of a registered agent for service of process
amount to consent to personal jurisdiction in New York
State. See Weisman Celler Spett & Modlin, P.C. v. TransLux Corp., 2012 WL 5512164, *2 (S.D.N.Y. Nov. 14,
2012); Rockefeller Univ. v. Ligand Pharms., 581 F.Supp.2d
461, 467 (S.D.N.Y. 2008) (cited with approval in STX
Panocean (UK) Co., Ltd. v. Glory Wealth Shipping PTE
Ltd., 560 F.3d 127, 131 (2d Cir. 2009)). It is undisputed
that defendant is registered with the New York Secretary
of State pursuant to BCL § 1304 and is thereby authorized
to do business in the state. As a result, by operation of
New York law, defendant is deemed to have designated
the New York Secretary of State as its agent for service of
process, thus consenting to suit in New York. See BCL §
304. Defendant is subject to personal jurisdiction in New
York State, based on its consent.

The recently-enacted subdivision (d) of section 1391
provides that where, as here, a defendant corporation is
subject to personal jurisdiction in a state having multiple
judicial districts, the corporation “shall be deemed to
reside in any district in that State within which its contacts
would be sufficient to subject it to personal jurisdiction
if that district were a separate State.” 1 The Court reads
section 1391(d) as applying not only where personal
jurisdiction in New York is based on contacts with the
state, but also where, as here, it is based on implied consent
under BCL § 304. Therefore, the Court must conduct
a personal jurisdiction analysis, treating the Northern
District as a state and defendant as a corporation that
has not consented to jurisdiction here. See generally ICA
Group, LLC v. Taggart Global, LLC, 2013 WL 159936,
*1 (E.D. Pa. Jan. 15, 2013); Schneider v. Bishop, 2012 WL
5948465, *3 (S.D. Cal. Nov. 27, 2012); Garnet Digital,
LLC v. Apple, Inc., 2012 WL 4465260, *1 (E.D. Tex. Sept.
27, 2012).
1

See Federal Courts Jurisdiction and Venue
Clarification Act of 2011, PL 112-63, 125 Stat 758,
Dec. 7, 2011.

In arguing that defendant’s contacts with the Northern
District of New York would be sufficient to subject it
to personal jurisdiction if this district were a separate
state, plaintiff relies on two New York jurisdictional
provisions: C.P.L.R. § 301 (defendant is doing business
here); and C.P.L.R. § 302(a)(1) (defendant transacts
business here and plaintiff’s cause of action arises from
defendant’s transaction of business). If a statutory basis
for jurisdiction exists, the Court must then consider
whether the exercise of jurisdiction comports with the
Due Process Clause of the United States Constitution. See
Chloé v. Queen Bee of Beverly Hills, LLC, 616 F.3d 158,
164 (2d Cir. 2010).
Plaintiff has not made a prima facie showing that
the Northern District, if it were a state, could assert
general jurisdiction over defendant under C.P.L.R. §
301. Section 301 provides for general jurisdiction over
a foreign corporation that “does business in New York
not occasionally or casually, but with a fair measure
of permanence and continuity.” Wiwa v. Royal Dutch
Petroleum Co., 226 F.3d 88, 95 (2d Cir. 2000) (internal
quotes and citation omitted) (quoted in Xiu Feng Li v.
Hock, 371 Fed.Appx. 171, 174 (2d Cir. 2010)). The Court
analyzes defendant’s connections to this district “not for

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Starr v. Michael Stars, Inc., Not Reported in Fed. Supp. (2013)
2013 WL 12291517

the sake of contact-counting, but rather for whether such
contacts show a continuous, permanent and substantial
activity in New York.” Landoil Res. Corp. v. Alexander
& Alexander Servs., Inc., 918 F.2d 1039, 1043 (2d Cir.
1990) (quoting Weinstein, Korn & Miller, New York Civil
Practice, ¶ 301.16, at 3-32). Among the factors bearing
on section 301 jurisdiction are “the existence of an office
in New York; the solicitation of business in New York;
the presence of bank accounts or other property in New
York; and the presence of employees or agents in New
York.” Id. “The shipment of goods into New York does
not ipso facto constitute ‘doing business.’ ” Beacon Enters.,
Inc. v. Menzies, 715 F.2d 757, 763 (2d Cir. 1983) (finding
that defendant’s “cease and desist” letter to plaintiff and
an unspecified number of mail order sales of defendant’s
products in New York are insufficient to satisfy the “doing
business” test). Solicitation of business does not satisfy
section 301 unless it is “substantial and continuous,”
and “defendant engages in other activities of substance
in the state.” Landoil, 918 F.2d at 1043 (citing Beacon,
715 F.2d at 763); accord Xiu Feng Li, 371 Fed.Appx.
at 174-75. Courts generally hold that the fact that an
out-of-state corporation has a website accessible in New
York—even one from which internet users can purchase
products to be shipped into the state—is insufficient
to confer section 301 jurisdiction unless the website is
“purposefully directed towards” the state or amounts to
solicitation of “substantial amounts of business from the
state on a continuous basis.” Biro v. Nast, 2012 WL
3262770, *5-6 (S.D.N.Y. Aug. 10, 2012); accord Holey
Soles Holdings, Ltd. v. Foam Creations, Inc., 2006 WL
1147963, *4 (S.D.N.Y. May 1, 2006). As the Southern
District observed: “If such a website gave rise to general
jurisdiction, then millions of retailers located throughout
the globe could be haled into New York courts for any
claim brought against them by any party; such a finding
would contravene the purposefully narrow reach and
long-standing stringent application of C.P.L.R. § 301.”
Holey Soles, 2006 WL 1147963 at *4.
*3 Plaintiff does not claim that defendant has a retail
store, office, bank account, property, employee, or agent
in the Northern District. Plaintiff does not allege any
contacts in this district except the following: solicitation
of sales through a website accessible in every district in
the country; the possibility that, through the website,
defendant may have sold and shipped products to
consumers in the Northern District; and the fact that
nine independent retailers in this district carry defendant’s

products. Defendant’s website, www.michaelstars.com,
provides information about defendant’s products, lists
defendant’s retail stores, and allows the purchase of
products online. The website shows that defendant owns
eleven retail stores, none of which are located in New
York, and a seasonal store in East Hampton, Suffolk
County, New York, which is in the Eastern District
of New York. 2 Nothing in this record suggests that
defendant’s online sales in this district or its sales through
nine retailers in this district constitute substantial and
continuous solicitation or that they constitute a significant
percentage of defendant’s business. Indeed, a search of
defendant’s website shows that its products are carried
by, inter alia, 91 independent retailers in New York
State; 150 in California; 70 in Florida; 60 in New Jersey;
58 in Illinois; 46 in Massachusetts; 36 in Alabama; 36
in Georgia; 26 in Michigan; 23 in Connecticut, 22 in
Arizona; and 19 in Maryland. Thus, the independent
retailers offering defendant’s products in the Northern
District of New York amount to less than 1.5% of the
independent retailers throughout the nation that offer
its products. Defendant also sells its products through
department stores such as Bloomingdale’s, and online sites
such as www.bloomingdales.com, www.nordstrom.com,
www.zappos.com and www.amazon.com. This Court
holds that internet sales on websites available throughout
the nation, and the location in the Northern District of
New York of a minuscule proportion of the independent
retailers that carry defendant’s products, without more,
do not support a finding of solicitation of substantial
amounts of business on a continuous basis sufficient to
satisfy section 301. As the Holey Soles court observed,
to hold otherwise would mean that “millions of retailers
located throughout the globe could be haled into New
York courts for any claim brought against them by any
party.” Plaintiff has failed to make a prima facie showing
that section 301 jurisdiction would exist in the Northern
District so as to support venue here.
2

According to defendant, less than four percent of
its total national United States sales from January
1, 2011 through June 30, 2012 was derived from
sales to customers in the State of New York, with
a vast majority of those sales being in the New
York City area and from its seasonal store in East
Hampton. Defendant also submits evidence that it
has conducted a review of its internet sales records
and has not identified any internet sales to customers
in the Northern District of New York. Defendant

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Starr v. Michael Stars, Inc., Not Reported in Fed. Supp. (2013)
2013 WL 12291517
adds: “To the extent any of those sales may have been
made to customers in the Northern District of New
York, they would have been de minimis.” Defendant’s
evidence is consistent with record before the Court.
Because the parties have not engaged in discovery,
however, plaintiff is at a disadvantage in this regard.
The Court need not rely on this evidence to decide this
motion.

The Court next considers “transaction of business”
jurisdiction under C.P.L.R. § 302(a)(1), which provides:
(a) ... As to a cause of action arising from any of the
acts enumerated in this section, a court may exercise
personal jurisdiction over any non-domiciliary, or his
executor or administrator, who in person or through an
agent:
1. transacts any business within the state or contracts
anywhere to supply goods or services in the state[.]
To evaluate specific jurisdiction under this section, the
Court must decide “(1) whether the defendant ‘transacts
any business’ in New York and, if so, (2) whether this
cause of action ‘aris[es] from’ such a business transaction.”
Best Van Lines, Inc. v. Walker, 490 F.3d 239, 246 (2d
Cir. 2007) (citing Deutsche Bank Sec., Inc. v. Montana
Bd. of Invs., 7 N.Y.3d 65, 71 (2006)). Courts consider the
totality of the defendant’s activities within the forum in
determining whether a defendant has transacted business
here. Id. A defendant need not be physically present in
New York to transact business here under section 302(a)
(1), as long as it engages in “purposeful activities” through
which it “avails itself of the privilege of conducting
activities within the ... State, thus invoking the benefits
and protections of its laws.” Fischbarg v. Doucet, 9
N.Y.3d 375, 380 (2007) (citations and internal quotation
marks omitted). In the context of internet commerce, the
Second Circuit has held that “the single act of an outof-state defendant employee shipping an item into New
York, combined with his employer’s extensive business
activity involving New York” demonstrates transaction
of business under section 302(a)(1). Chloé, 616 F.3d at
165. Because it found additional activity in New York,
the Chloé court did not decide whether a single act of
shipping an item into New York could be sufficient,
without more, to support section 302(a)(1) jurisdiction.
Id. at 170. District courts following Chloé generally
hold that section 302(a)(1) jurisdiction in internet sales
cases requires additional contacts beyond a single sale
into New York. See, e.g., RVDirect.com v. Worldwide

RV, 2010 WL 5391535, *5-6 (N.D.N.Y. Dec 21, 2010);
Research Foundation of State Univ. of N.Y. v. Bruker
Corp., 2010 WL 981304, *6 (N.D.N.Y. 2010) (citing
cases). Retail sales of a defendant’s products in the state
may constitute transaction of business here, depending on
the underlying business arrangement. See generally Iovate
Health Sciences, Inc. v. Masuda, 2009 WL 2878526, *3
(W.D.N.Y. Sept. 2, 2009).
*4 In support of his assertion that defendant transacts
business in the Northern District of New York within
the meaning of C.P.L.R. § 302(a)(1), plaintiff relies on
the facts that nine independent retailers offer defendant’s
products in this district, and that defendant operates
a website accessible to internet users anywhere, from
which a resident of the Northern District can order
defendant’s products for shipment into this district.
Defendant submits evidence that it has reviewed its
internet sales records and has not been able to identify
internet sales to customers in the Northern District. 3
The nature of defendant’s business arrangement with
the independent retailers in this district is undisclosed.
Evidence regarding these matters is in defendant’s control,
and plaintiff has not had an opportunity for discovery. In
the absence of discovery on the issue, the Court cannot
determine whether venue in the Northern District of New
York would be proper on the ground that section 302(a)
(1) jurisdiction would exist here if this district were a state.
3

Plaintiff’s evidence that, after defendant made the
instant motion, plaintiff’s counsel ordered an item
from defendant’s website that was shipped into the
Northern District of New York does not aid plaintiff
in establishing that venue was proper at the time the
complaint was filed.

Assuming that a venue inquiry under 28 U.S.C. § 1391(d)
requires a due process analysis, the Court notes that,
in the absence of discovery, the record does not enable
it to determine whether the exercise of jurisdiction over
defendant would offend the Due Process Clause. The due
process analysis has two components “(1) the minimum
contacts inquiry and (2) the reasonableness inquiry.”
Chloé, 616 F.3d at 171. The minimum contacts inquiry,
which concerns whether defendant has purposely availed
itself of the privilege of conducting activities within the
forum state, thus invoking the benefits and protections of
its laws, id., would involve essentially the same issues as the
transaction of business inquiry under C.P.L.R. § 302(a)
(1). The second component, the reasonableness inquiry,

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Starr v. Michael Stars, Inc., Not Reported in Fed. Supp. (2013)
2013 WL 12291517

depends on whether the exercise of jurisdiction “offend[s]
traditional notions of fair play and substantial justice”
such that it is not reasonable under the Due Process
Clause. Id. at 173. Among the factors to be considered are
the burden on the defendant, the interests of the forum
State, and the plaintiff’s interest in obtaining relief. The
present record contains insufficient information regarding
these issues.
Plaintiff also argues that the Court has venue under 28
U.S.C. § 1391(b)(2), on the ground that the Northern
District of New York is “a judicial district in which a
substantial part of the events or omissions giving rise to
the claim occurred.” Plaintiff’s allegations do not support
venue under this provision.
Having found that the present record contains insufficient
information to enable the Court to decide whether section
302(a)(1) jurisdiction would exist if the Northern District
of New York were a state, the Court turns to consider
whether to direct discovery on the question of whether
venue here is proper. Under the circumstances of this
case, if defendant were to demonstrate after discovery that
venue here was improper, the Court would not dismiss
the case, but would transfer it to the Central District
of California in the interest of justice, as permitted by
28 U.S.C. § 1406(a). It is undisputed that venue would
be proper in the Central District of California, where
plaintiff resides and defendant maintains its principal
place of business. Transfer rather than dismissal would
benefit plaintiff, who would be spared the necessity of
refiling the action, and it would not prejudice defendant,
which acknowledges that venue in the Central District of
California would be proper.
On the other hand, if the Court were to find after
discovery that venue here was proper, the Court would
then consider whether to grant defendant’s request for a
discretionary transfer to the Central District of California
“[f]or the convenience of parties and witnesses, in the
interest of justice” under 28 U.S.C. § 1404(a). As explained
below, upon an analysis of the factors bearing on a
section 1404(a) transfer, the Court concludes that it would
exercise its discretion to grant such a transfer. Plainly,
then, discovery on the question of venue is pointless, since
the case will be transferred regardless of the outcome of
discovery. Therefore, the Court transfers the case without
ordering venue discovery.

*5 The Court now proceeds to set forth its analysis of the
factors bearing on a discretionary transfer under section
1404(a). As the Second Circuit explains:

District courts have broad discretion
in making determinations of
convenience under Section 1404(a),
and notions of convenience and
fairness are considered on a caseby-case basis. Some of the factors
a district court is to consider are,
inter alia: (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.

D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106-07
(2d Cir. 2006) (citations and internal quote omitted). As
a general rule, a plaintiff’s choice of forum “is entitled
to significant consideration and will not be disturbed
unless other factors weigh strongly in favor of transfer.”
Hershman v. UnumProvident Corp., 658 F.Supp.2d 598,
601 (S.D.N.Y. 2009) (quoting Royal & Sunalliance v.
British Airways, 167 F.Supp.2d 573, 576 (S.D.N.Y. 2001));
see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508
(1947) (“[U]nless the balance is strongly in favor of the
defendant, the plaintiff’s choice of forum should rarely be
disturbed.”). The level of deference given to a plaintiff’s
choice of forum depends, however, “on the bona fide
connection the plaintiff has with that forum.” Pollux
Holding Ltd. v. Chase Manhattan Bank, 329 F.3d 64, 71
(2d Cir. 2003). To overcome the presumption in favor of
a plaintiff’s choice of forum, the defendant “must make
a clear showing that the proposed transferee district is
a more convenient one, and that the interests of justice
would be better served by a trial there.” Hershman, 658
F.Supp.2d at 601 (citation and internal quotation marks
omitted).
Regarding the convenience of witnesses, defendant
submits a declaration from Jeffrey Paul Busse, its

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Starr v. Michael Stars, Inc., Not Reported in Fed. Supp. (2013)
2013 WL 12291517

Controller, stating that it expects to call the following
witnesses, all of whom are located in the Central
District of California: defendant’s President Michael
Cohen; defendant’s Controller Mr. Busse; defendant’s
Vice President of Human Resources Jennifer Needham;
defendant’s former CEO Michael Rosen; a former officer
of defendant Simon Cohen; and defendant’s former
Director of Licensing, Jennifer Gross. Busse’s declaration
briefly summarizes the testimony each witness is expected
to give. Plaintiff points out that three of defendant’s
witnesses are its officers and employees, and argues that
their convenience should not be given great weight. The
other three of defendant’s witnesses are former officers
or employees, to whom this argument would not apply.
In any event, plaintiff makes no showing whatsoever that
the convenience of any of his witnesses would favor the
Northern District of New York. Plaintiff states only that
he expects to call witnesses located in New Jersey and/
or North Carolina. Moreover, plaintiff does not name
these witnesses or set forth the testimony which they are
expected to give. The convenience of witnesses weighs
heavily in defendant’s favor.
*6 As for the location of relevant documents and relative
ease of access to sources of proof, defendant argues that
this factor favors transfer, because all of defendant’s
documents are in the Central District of California.
Plaintiff does not contend that documents and sources
of proof are located in the Northern District; rather, he
argues that in this digital age the factor is neutral. This
factor favors defendant.
The convenience of the parties clearly will be served by
transfer to the Central District of California, inasmuch
as both plaintiff and defendant are located there. As
noted, the level of deference given to a plaintiff’s choice of
forum depends “on the bona fide connection the plaintiff
has with that forum.” Pollux Holding, 329 F.3d at 71
(“[W]hen a plaintiff sues in his home forum, that choice
is generally entitled to great deference, because it is
presumed to be convenient.” (citation omitted)). Here,
although plaintiff evidently prefers the Northern District
to his home district, his submissions are devoid of any
showing that he has a bona fide connection with the
Northern District, and his choice is not entitled to strong
deference. Plaintiff presents no explanation why being
required to attend trial in the district in which he resides
would be inconvenient or unfair. The convenience of the
parties heavily favors defendant.

Regarding the locus of operative facts, plaintiff argues
that, inasmuch as he has shown that defendant has offered
infringing products for sale in this district, the locus
of operative facts favors him. Defendant’s products are
sold in many other districts, as well, however, including
the Central District of California. Moreover, defendant’s
business is located in the Central District of California,
and plaintiff resides there. The locus of operative facts
favors defendant.
With respect to the availability of process to compel
the attendance of unwilling witnesses, defendant has
identified three non-party witnesses, all of whom could be
compelled to attend in the Central District of California
but not in the Northern District. The unidentified nonparty witnesses whom plaintiff may call are located in New
Jersey and/or North Carolina; their attendance cannot be
compelled in either the Northern District of New York
or the Central District of California. Plaintiff has not
identified a single witness whose attendance could be
compelled in the Northern District. This factor strongly
favors defendant.
Plaintiff offers mere speculation that judicial economy and
trial efficiency favor the Northern District of New York.
Defendant points to United States Government statistics
showing that, due to overcrowding of the Northern
District’s docket, the average time from filing of a civil
action until trial is 35.6 months, while the Central District
of California’s average time from filing to trial is 20.1
months. This factor favors defendant.
On consideration of the relevant factors, the Court finds
that notions of convenience and fairness heavily favor
transfer to the Central District of California. Defendant
has made a clear showing that the Central District of
California is a more convenient venue for the parties
and witnesses, and that the interests of justice would be
better served by a trial there, thus carrying its burden
of overcoming the presumption in favor of plaintiff’s
choice of venue. Plaintiff offers no reason why transfer
to his home venue would be inconvenient or unfair.
Accordingly, the defendant’s motion to transfer venue
to the Central District of California is granted under 28
U.S.C. §§ 1404(a) and 1406(a).

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6

Starr v. Michael Stars, Inc., Not Reported in Fed. Supp. (2013)
2013 WL 12291517

CONCLUSION

Central District of California; the motion is otherwise
denied.

*7 It is therefore
IT IS SO ORDERED.
ORDERED that defendant’s motion (Dkt. No. 13) is
granted to the extent that the case is transferred to the

All Citations
Not Reported in Fed. Supp., 2013 WL 12291517

End of Document

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7

Stern v. Westerman Ball Ederer Miller & Sharfstein, LLP, Not Reported in Fed. Supp....
2017 WL 7411022

2017 WL 7411022
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
Joseph STERN, et al., Plaintiffs,
v.
WESTERMAN BALL EDERER MILLER
& SHARFSTEIN, LLP, et al., Defendants.
Civil Action No. 1:17-CV-0034 (FJS/DEP)
|
Signed 03/23/2017
Attorneys and Law Firms
FOR PLAINTIFFS: ROSENBLUM & PARTNERS,
LLP, OF COUNSEL: SANFORD ROSENBLUM,
ESQ., RICHARD B. ANCOWITZ, ESQ., 110 Great
Oaks Blvd., Albany, NY 12203.
FOR DEFENDANT TOLCHIN: THE BERKMAN
LAW OFFICE, LLC, OF COUNSEL: ROBERT J.
TOLCHIN, ESQ., 111 Livingston Street, Suite 1928,
Brooklyn, NY 11201.
FOR MINTZ LEVIN DEFENDANTS: MINTZ LEVIN
COHN FERRIS GLOVSKY AND POPEO PC, OF
COUNSEL: DOMINIC J. PICCA, ESQ., 666 Third
Avenue, New York, NY 10017.
FOR
DEFENDANT
WESTERMAN
BALL
EDERER MILLER & SHARFSTEIN, LLP:
WESTERMAN BALL EDERER MILLER ZUCKER
& SHARFSTEIN, LLP, OF COUNSEL: LAURA A.
GILLEN, ESQ., JEFFREY A. MILLER, ESQ., 1201
RXR Plaza, Uniondale, NY 11556.

REPORT AND RECOMMENDATION
DAVID E. PEEBLES, CHIEF U.S. MAGISTRATE
JUDGE
*1 This is an action in which the plaintiffs seek court
guidance concerning entitlement to attorney's fees for
representing plaintiffs Joseph Stern, Shaul Stern, and
Yocheved Kushner (collectively the “Stern Family”)
in their efforts to recover damages resulting from the
death of their mother, Leah Stern, in 1997 during a
terrorist attack. The Stern Family has now recovered

over $1 million from a fund established by federal statute
to compensate victims of terrorists acts. Under that
statutory provision, attorneys representing victims eligible
for compensation from the fund are entitled to charge a
fee of up to twenty-five percent of the amount recovered.
It is the recovery of this attorney's fee that forms the basis
for the instant dispute.
This action was initially commenced in New York State
court, but was subsequently removed by two defendants
to this court. Currently pending before the court are two
motions. In the first, plaintiffs seek an order remanding
the matter to state court, arguing that, despite the federal
underpinnings of the legal proceedings leading to the
Stern Family's recovery, the issues now being litigated
are inherently matters of state concern, relating to the
appropriate allocation of attorney's fees and the existence
of charging liens against any recovery by the Stern Family.
Plaintiffs also argue that defendants' removal to federal
court was procedurally improper because it was not
sought on behalf, or with the consent, of all defendants
served in the action. Defendants have opposed plaintiffs'
motion to remand, and have moved for an order finding
that venue is improper in this district and directing that
the action be transferred to the United States District
Court for the District of Columbia, where the judgment
awarding the Stern Family damages was entered. For
the reasons set forth below, I recommend that plaintiffs'
motion to remand be granted, and defendants' motion be
denied as moot.

I. BACKGROUND 1
1
The following recitation of facts is drawn principally
from plaintiffs' complaint. Dkt. No. 2.

A tragic terrorist bombing that occurred on July 30,
1997, in Jerusalem, Israel, and killed Leah Stern serves
as the genesis for this action. Dkt. No. 2 at 3; Dkt. No.
12-5 at 8. 2 Since that time, the Stern Family has been
engaged in litigation to pursue damage claims against the
Republic of Iran, at whose direction the bombing took
place. See generally Dkt. No. 2. To that end, the Stern
Family entered into a written retainer agreement with
defendant Westerman Ball Ederer Miller & Sharfstein,
LLP (“Westerman”), on or about May 11, 2000, to
represent them in the matter. 3 Dkt. No. 2 at 6-7; Dkt. No.
12-1 at 4-5; Dkt. No. 12-5 at 8-9; Dkt. No. 12-6 at 32-34.
The retainer agreement stated that defendant Nitsana

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Darshan-Leitner & Associates (“Darshan-Leitner”), an
Israeil law firm, had been retained to assist defendant
4

Westerman in representing the Stern Family. Dkt. No.
2 at 7; Dkt. No. 12-5 at 9. The retainer agreement also
reflects that defendants Westerman and Darshan-Leitner
were to receive thirty-three percent of any recovery by the
Stern Family up to the first $10 million, and eight percent
of any sum recovered over that amount. See Dkt. No. 12-6
at 35.
2

3
4

Many of the documents submitted by plaintiffs in
support of their motion to remand, including Dkt.
No. 12-5, are duplicative of those submitted in
opposition to defendants' motion to change venue.
For the sake of simplicity, where duplicates exist
in the record, I have cited only to those exhibits
submitted in connection with plaintiffs' motion to
remand.
The retainer agreement was subsequently modified on
July 10, 2001. Dkt. No. 12-6 at 35-37.
A legal representation and fee-sharing agreement
governing their joint representation of the Stern
Family was executed by defendants Darshan-Leitner
and Westerman in late February or early March 2000.
Dkt. No. 12-6 at 39-41.

*2 After engaging local counsel in Washington, D.C.,
defendant Westerman commenced an action on behalf
of the Stern Family in the United States District Court
for the District of Columbia pursuant to the Foreign
Sovereign Immunities Act of 1986, 28 U.S.C. §§ 1330,
1441, 1602-1611, seeking compensation for the injuries
to and death of Leah Stern. Dkt. No. 2 at 8; Dkt.
No. 12-1 at 5; Dkt. No. 12-5 at 9; Dkt. No. 12-7 at
2-21. The defendants in that action, which included the
Republic of Iran and other related parties, failed to answer
the plaintiffs' complaint, resulting in the entry of their
default on February 13, 2002. Dkt. No. 2 at 8; Dkt. No.
12-1 at 5; Dkt. No. 12-5 at 9. Following the submission
of evidence, District Judge Royce C. Lamberth issued
a decision and order on July 17, 2003, awarding $1
million in compensatory damages for Leah Stern's pain
and suffering prior to her death, and $3 million to each
of the four members of the Stern Family, for a total
compensatory damage award of $13 million against all
of the defendants. Dkt. No. 2 at 8-9; Dkt. No. 12-6 at
12-13; Dkt. No. 25-1 at 25-30. The court also awarded
punitive damages in the amount of $300 million against
the individual defendants. Dkt. No. 12-6 at 13.

In or about November 2003, defendant Westerman
withdrew from representation of the Stern Family after
certain conflicts of interest between defendants DarshanLeitner and Westerman surfaced and could not be
resolved. Dkt. No. 2 at 9; Dkt. No. 12-5 at 10. Thereafter,
the judgment secured on behalf of the Stern Family
languished, uncollected, for a period of five years. Dkt.
No. 2 at 10.
On May 9, 2008, the Stern Family entered into a retainer
agreement with defendant Darshan-Leitner and the law
firm of Jaroslawicz and Jaros, 5 providing for legal
representation to enforce the judgment against reported
assets of the Republic of Iran held by UBS AG. Dkt. No.
2 at 10; Dkt. No. 12-5 at 10-11; Dkt. No. 12-7 at 46-47.
That retainer agreement was signed by defendant Robert
Tolchin (“Tolchin”) on behalf of Jaroslawicz and Jaros.
Dkt. No. 2 at 10. The retained attorneys thereafter took
steps to enforce the judgment to no avail. 6 Dkt. No. 2 at
10.
5
6

Jaroslawicz and Jaros is not a party to this action.
The measures taken by defendant Tolchin and
others on behalf of the Stern Family following their
retention in 2008 are briefly outlined in defendants'
memorandum in support of their motion to change
venue. Dkt. No. 6 at 2. Although that memorandum is
not sworn, and thus does not constitute evidence, the
court is permitted to take judicial notice of defendant
Tolchin's attempt to enforce the judgment in Stern v.
Islamic Rep. of Iran, 73 F. Supp. 3d 46 (D. D.C. 2014),
aff'd, Weinstein v. Islamic Rep. of Iran, 831 F.3d 470
(D.C. Cir. 2016). Fed. R. Evid. 201; see also Kramer v.
Time Warner Inc., 937 F.2d 767m 774 (2d Cir. 1991)
(“[C]ourts routinely take judicial notice of documents
filed in other courts ... to establish the fact of such
litigation and related filings.”).

On April 2, 2015, the Stern Family retained Kreindler
and Kreindler LLP (“Kreindler”) and the Silverman Law
Firm PLLC (“Silverman”) to represent them in their
continuing efforts to enforce their judgment. Dkt. No. 2
at 10-11; Dkt. No. 12-5 at 11; Dkt. No. 12-7 at 49-51.
Kreindler subsequently engaged the Perles Law Firm, P.C.
(“Perles”), to assist in that regard. 7 Dkt. No. 2 at 11.
Kreindler and Silverman were subsequently discharged by
the Stern Family in June 2016. Id. at 11.

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7

Kreindler, Silverman, and Perles were all named as
defendants in plaintiffs' complaint, but have been
dismissed from this action by stipulation. Dkt. No.
19.

In December 2015, hope for at least partial recovery of the
2003 judgment was provided to the Stern Family and other
victims of state-sponsored terrorism through passage of
the Justice for United States Victims of State Sponsored
Terrorism Fund Act (“USVSST”), 42 U.S.C. § 10609.
Dkt. No. 2 at 12; Dkt. No. 12-5 at 12. The USVSST was
enacted to create a fund to compensate victims of statesponsored terrorism. Dkt. No. 2 at 12. Victims, like the
Stern Family, with judgments against state-sponsors of
terrorism, such as the Republic of Iran, are eligible to file
claims for recovery of fund moneys in accordance with the
USVSST. 42 U.S.C. § 10609(c)(1). According to defendant
Tolchin, a Special Master has been appointed to oversee
the administration of the USVSST fund pursuant to 42
U.S.C. § 10609(b). Dkt. No. 6 at 2-3.
*3 In or about August 2016, the Stern Family retained
plaintiffs Richard B. Ancowitz, Esq., and Sanford
Rosenblum, Esq., two attorneys with offices in Albany
County, New York, to represent them in their efforts to
enforce their judgment pursuant to the USVSST. 8 Dkt.
No. 12-5 at 11; Dkt. No. 12-6 at 23. With the assistance
of Attorneys Ancowitz and Rosenblum, the Stern Family
applied to the USVSST fund on October 6, 2016, for
recovery. Dkt. No. 2 at 15. Attorneys Ancowitz and
Rosenblum contend that their efforts to make an earlier
application on behalf of the Stern Family were hindered
by defendants—principally defendant Tolchin—through
their failure to provide vital information necessary to
make and support the Stern Family's claim. 9 Id. at
13. According to defendant Tolchin, plaintiffs' USVSST
application has been accepted by the Special Master, Dkt.
No. 6 at 2-3, and the parties recently represented to the
court that plaintiff Ancowitz has now received the funds
from the USVSST fund on behalf of the Stern Family.
Dkt. Nos. 32, 33.
8

9

Plaintiffs' complaint does not specify precisely when
those attorneys were retained by the Stern Family.
Dkt. No. 2 at 11.
Plaintiffs do not allege that the Stern Family suffered
any prejudice as a result of defendant Tolchin's
alleged failure to cooperate.

II. PROCEDURAL HISTORY
This action was filed on or about December 14, 2016,
in Albany County Supreme Court, by the Stern Family
and Attorneys Ancowitz and Rosenblum. Dkt. No. 1 at
2. Named as defendants in plaintiffs' complaint are (1)
Westerman; (2) Darshan-Leitner; (3) Greenberg Traurig,
LLP; (4) Kreindler; (5) Silverman; (6) Perles; (7) Mitz
Levin, LLP, and its successor, Mintz Levin Cohn Ferris
Glovsky and Popeo, PC (collectively referred to as
“Mintz”); (8) Tolchin; and (9) Raines Feldman LLP. Dkt.
No. 2 at 4-6.
In their complaint, plaintiffs request judgment
adjudicating the rights of the parties to monies that have
now been received by the Stern Family pursuant to the
USVSST, and declaring that none of the defendants have
a claim of entitlement to, or a charging lien against, that
recovery. Dkt. No. 2 at 16-18. Following commencement
of the action, an order was issued by New York State
Supreme Court Justice Christina L. Ryba on January
10, 2017, directing defendants to show cause why the
court should not grant the relief requested, and setting the
matter down for a hearing. Dkt. No. 12-5 at 1-4.
The action was removed to this court on January 10, 2017.
Dkt. No. 1. The removal notice was signed by defendant
Tolchin and by Dominic Picca, Esq., an attorney with
defendant Mintz. Id. at 3-4. A consent to the removal was
subsequently filed on behalf of defendant Westerman on
January 25, 2017. 10 Dkt. No. 17.
10

A declaration from Attorney Picca was filed on
February 10, 2017, confirming that defendant Mintz
joined in the notice of removal and “continued to
consent to removal.” Dkt. No. 20.

On January 12, 2017, defendant Tolchin filed a motion
seeking a transfer of this action to the United States
District Court for the District of Columbia. Dkt. Nos. 5-7.
Plaintiff subsequently moved, on January 18, 2017, for an
order remanding the action to New York State Supreme
Court. Dkt. No. 12. Both motions are opposed. Dkt. Nos.
21, 23. The pending motions have been referred to me by
Senior District Judge Frederick J. Scullin for the issuance
of a report and recommendation pursuant to 28 U.S.C. §
636(B)(1)(b). 11 Dkt. No. 14. Oral argument in connection
with the parties' motions was heard on February 27, 2017,
at which time decision was reserved.

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11

The referral by Judge Scullin references only the
motion to remand. Dkt. No. 14. Ordinarily, a
motion to transfer venue would fall within my nonconsensual jurisdiction. See, e.g., Salzman v. Travelers
Home & Marine Ins. Co., No. 16-CV-4008, 2016 WL
3951206, at *1 (S.D.N.Y. July 20, 2016). In light
of the interplay between the two motions, however,
and my recommendation that the motion to remand
be granted and the motion for a change of venue
be denied as moot, I have formatted this opinion
as a report and recommendation addressing both
motions. See Williams v. Beemiller, Inc., 527 F.3d
259, 266 (2d Cir. 2008) (“A motion to remand is not
a ‘pretrial matter’ under [28 U.S.C.] § 636(b)(1)(A),
and a magistrate judge presented with such a motion
should provide a report and recommendation to the
district court[.]”).

III. DISCUSSION
A. Motion to Remand 12
12

The parties agree that the court should address
plaintiffs' remand motion first before turning to
defendants' motion to transfer venue.

*4 Plaintiffs contend that this action should be remanded
because (1) the removal was procedurally improper and
(2) federal question jurisdiction, which served as the
predicate for defendants' removal notice, does not exist.
Dkt. No. 12-2 at 4-10.

1. The Rule of Unanimity
Removal of an action to federal court is governed by 28
U.S.C. § 1446. In relevant part, that statute provides as
follows:
(b) Requirements; generally.—(1) The notice of
removal of a civil action ... shall be filed within 30 days
after the receipt by the defendant, through service or
otherwise, of a copy of the initial pleading setting forth
the claim for relief upon which such action ... is based,
or within 30 days after the service of summons upon the
defendant if such initial pleading has then been filed in
court and is not required to be served on the defendant,
whichever period is shorter.
(2)(A) When a civil action is removed solely under
section 1441(a), all defendants who have been properly

joined and served must join in or consent to the removal
of the action.
(B) Each defendant shall have 30 days after receipt by
or service on that defendant of the initial pleading or
summons described in paragraph (1) to file the notice
of removal.
(C) If defendants are served at different times, and a
later-served defendant files a notice of removal, any
earlier-served defendant may consent to the removal
even though that earlier-served defendant did not
previously initiate or consent to removal.
28 U.S.C. § 1446.
In this case, defendant Tolchin was served on December
20, 2016. Dkt. No. 1 at 2. He thereafter filed a notice of
removal to federal court on January 10, 2017, and thus
within the thirty-day period allotted by section 1446(b)
(1). Plaintiffs do not contest the timeliness of defendant
Tolchin's notice of removal. See generally Dkt. No. 12-2.
The so-called “rule of unanimity,” which was originally
created under the common law and later loosely woven
into a 2011 amendment of section 1446, requires that
the remaining defendants “who have been properly joined
and served must join in or consent to the removal of
the action.” 28 U.S.C. § 1446(b)(2)(A) (emphasis added).
Significantly, section 1446(b)(2)(C) sets no time limit for
an earlier-served defendant to file its consent after the
notice of removal is filed by the later-served defendant.
See 28 U.S.C. § 1446(b)(2)(C) (“If defendants are served at
different times, and a later-served defendant files a notice
of removal, any earlier-served defendant may consent to
the removal even though that earlier-served defendant did
not previously initiate or consent to removal.”).
At the time defendant Tolchin filed the notice of
removal, four other defendants had been served, including
defendants Kreindler, Silverman, Westerman, and Mintz.
Dkt. No. 12-8. Because Kreindler and Silverman are no
longer parties to this action, their consent is immaterial.
Dkt. No. 19. As for defendant Mintz, it was served with
a summons and complaint on December 15, 2016, Dkt.
No. 12-8 at 2, and it joined defendant Tolchin's notice of
removal. Dkt. No. 1 at 4. In addition, defendant Mintz
later filed a declaration reaffirming its consent to removal.
Dkt. No. 20. Defendant Westerman filed its notice of
consent to removal on January 25, 2017. Dkt. No. 17.

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*5 As for the remaining defendant in this matter,
defendant Darshan-Leitner, there is no proof in the record
that service upon that defendant has been effectuated.
Although plaintiffs contend that defendant DarshanLeitner was served the state court summons, complaint,
and order to show cause issued by the New York State
Supreme Court Justice Ryba by Federal Express, Dkt.
No. 27 at 6, Dkt. No. 27-1, such service of process
does not comply with New York Civil Practice and Law
(“CPLR”) § 312-a, which provides for service by mail.
Specifically, section 312-a(a) permits, as an alternative
to the methods of personal service prescribed by the
CPLR, service of the summons and complaint to be
“served by the plaintiff ... by first class mail ..., together
with two copies of a statement of service by mail and
acknowledgement of receipt.” N.Y. C.P.L.R. § 312-a(a).
There is no evidence before the court that plaintiffs mailed
defendant Darshan-Leitner a statement of service by mail
and/or an acknowledgement of receipt. Dkt. No. 27-1.
Moreover, service of process by mail is not complete
until “the date the signed acknowledgement of receipt is
mailed or delivered to the sender.” N.Y. C.P.L.R. § 312a (b). There is no evidence that plaintiffs have received
the signed acknowledgment of receipt from defendant
Darshan-Leitner. Accordingly, based on the record now
before the court, I find that defendant Darshan-Leitner
has not yet been served. For that reason, there is no
requirement under section 1446 that it consent to removal.
28 U.S.C. § 1446(b)(2)(A).
Having determined that defendants have complied with
the relevant mechanisms provided for in section 1446
in removing this action to federal court, remand is not
appropriate based upon plaintiffs' argument that removal
of the action was not effectuated in accordance with the
governing procedural requirements.

2. Federal Question Jurisdiction
A state court action over which a federal district court
would have original jurisdiction may be removed by the
defendants to a district in which the court where the
action is pending is located. 28 U.S.C. § 1441(a); see also
Calif. Public Emp.'s Ret. Sys. v. WorldCom, Inc., 368
F.3d 86, 102 (2d Cir. 2004). In support of their removal
of this action, defendants argue that original jurisdiction
over plaintiffs' claims lies in federal court pursuant to 28

U.S.C. § 1331, which provides that “[t]he district courts
shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United
States.” 28 U.S.C. § 1331; see Debevoise v. Rutland Ry.
Corp., 291 F.2d 379, 380 (2d Cir. 1961) (“Under the
removal statue, where there is no diversity, a defendant's
power to remove turns upon whether the plaintiff's claim
arises under federal law within the meaning of [section]
1331.” (citation omitted)).
Federal district courts are courts of limited jurisdiction.
Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365,
374 (1978). In accepting matters for adjudication, district
courts must ensure that the subject matter requirement is
met, and they may raise the question of jurisdiction sua
sponte at any point in the litigation. Transatlantic Marine
Claims Agency, Inc. v. Ace Shipping Corp., Div. of Ace
Young Inc., 109 F.3d 105, 107 (2d Cir. 1997). A party
seeking to invoke the jurisdiction of a federal court must
shoulder the burden of demonstrating that its claims are
properly brought in that forum. McNutt v. Gen. Motors
Acceptance Corp. of Ind., 298 U.S. 178, 189 (1936); see
also Gonzalez v. Red Hook Container Terminal LLC, No.
16-CV-5104, 2016 WL 7322335, at *1 (E.D.N.Y. Dec.
15, 2016) (“On a motion to remand, the party seeking
removal bears the burden of establishing to a reasonable
probability that removal is proper.” (quotation marks
omitted)). When removal based upon federal question
jurisdiction is challenged, any doubts should be resolved
against removability “out of respect for the limited
jurisdiction of the federal courts and the rights of states[.]”
In re Methyl Tertiary Butyl Ether (“MTBE”) Products
Liab. Litig., 488 F.3d 112, 124 (2d Cir. 2007); accord,
Gonzalez, 2016 WL 7322335, at *1.
To implicate federal question jurisdiction, a plaintiff's
pleading must set forth a cause of action created by
federal law. Jacobson v. Wells Fargo Nat'l Bank, N.A.,
824 F.3d 308, 315 (2d Cir. 2016) (citing Grable & Sons
Metal Prods., Inc. v. Darue Eng'g & Mfg., 545 U.S. 308,
312 (2005)); see also Gonzalez, 2016 WL 7322335, at *2.
A careful reading of plaintiffs' complaint in this case
reflects that their claims arise out of a dispute among
the various attorneys that currently or previously served
as counsel for the Stern Family. See generally Dkt. No.
2. More specifically, the attorneys disagree with respect
to the apportionment of any attorney's fees for work
performed pursuant to the retainer agreements entered
into between them and the Stern Family, and whether the

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Stern Family's failure to compensate their lawyers gives
rise to a charging lien under New York Judiciary Law §
475. 13 Id. at 15-16. It would thus appear, at least at first
glance, that plaintiffs' claims implicate New York State
law principles of contract and charging liens and do not
arise under federal law. 14
13

14

Section 475 provides as follows:
From the commencement of an action, special
or other proceeding in any court or before any
state, municipal or federal department, except a
department of labor, or the service of an answer
containing a counterclaim, or the initiation of any
means of alternative dispute resolution including,
but not limited to, mediation or arbitration, or the
provision of services in a settlement negotiation
at any stage of the dispute, the attorney who
appears for a party has a lien upon his or her
client's cause of action, claim or counterclaim,
which attaches to a verdict, report, determination,
decision, award, settlement, judgment or final
order in his or her client's favor, and the proceeds
thereof in whatever hands they may come; and the
lien cannot be affected by any settlement between
the parties before or after judgment, final order or
determination. The court upon the petition of the
client or attorney may determine and enforce the
lien.
N.Y. Judiciary L. § 475.
While plaintiffs' complaint cites New York law, it
may ultimately be determined that principles relating
to attorney liens from another jurisdiction, including
potentially the District of Columbia, should apply.
This potential conflict of laws issue does not affect my
determination that federal jurisdiction over plaintiffs'
claims does not lie.

*6 Federal question jurisdiction may “also extend[,
however,] to state-law claims that ‘turn on substantial
questions of federal law.’ ” Gonzalez, 2016 WL 7322335,
at *2 (quoting Grable & Sons Metal Prods., Inc., 545
U.S. at 312). As the Supreme Court has said, “[T]he
question is, does a state-law claim necessarily raise a
stated federal issue, actually disputed and substantial,
which a federal forum may entertain without disturbing
any congressionally approved balance of federal and state
judicial responsibilities.” Grable & Sons Metal Prods., Inc.,
545 U.S. at 314; see also Gunn v. Minton, 133 S. Ct.
1059, 1065 (2013) (“[F]ederal jurisdiction over a state law
claim will lie if a federal issue is: (1) necessarily raised,
(2) actually disputed, (3) substantial, and (4) capable of

resolution in federal court without disrupting the federalstate balance approved by Congress. Where all four of
these requirements are met, we held, jurisdiction is proper
because there is a serious federal interest in claiming the
advantages thought to be inherent in a federal forum,
which can be vindicated without disrupting Congress's
intended division of labor between state and federal
courts.” (quotation marks omitted)); accord, Jacobson,
824 F.3d at 315.
In this case, plaintiffs' complaint asks the court to
determine the parties' rights to the distribution of the
funds anticipated to be received by the Stern Family
pursuant to the USVSST. Dkt. No. 2 at 16-17. To render
such a determination, a court must examine the conduct
of the parties with respect to obtaining the judgment
rendered by Judge Lamberth. Id. at 16-17. Plaintiffs'
complaint alleges that all defendants, with the exception of
defendant Perles, are not entitled to a charging lien or fee
because of their “misconduct and/or ethical violations[.]”
Id. at 17-18. In addition, plaintiffs contends that, except
for defendant Perles, defendants did “not obtain a ‘final
order’ on behalf of the [Stern Family]” in light of the
defendants' failure (specifically defendant Tolchin's) to
properly serve the judgment upon the Republic of Iran.
Id. at 14. Although plaintiffs' complaint does not cite
legal authority for their allegation that defendant Tolchin
failed to properly served the Republic of Iran, defendants
contend the provision on which plaintiffs rely for this
proposition is 28 U.S.C. § 1608(e). Dkt. No. 21 at 9.
Plaintiffs do not explicitly dispute defendants' contention.
Dkt. No. 27 at 3. Plaintiffs do, however, maintain that
the primary authority on which they rely in contending
that defendants are not entitled to a charging lien is
defendants' alleged violations of the New York Rules of
Professional Conduct. See id. at 2-4 (accusing defendants
of violating Rules 1.1, 1.16, and 7.3 of the New York Rules
of Professional Conduct).
Based on my review of plaintiffs' complaint and the
parties' submissions, I am inclined to agree with plaintiffs
that this matter does not raise a substantial federal
question. Though it is true that one of the allegations in
plaintiffs' complaint involves an accusation that defendant
Tolchin failed to properly serve Judge Lamberth's
judgment upon the Republic of Iran, and, therefore,
did not obtain a final order on behalf of the Stern
Family pursuant to 28 U.S.C. § 1608(e), I agree with
plaintiffs that the thrust of their complaint accuses

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defendants, albeit vaguely, of ethical misconduct that,
in turn, breached their obligations to the Stern Family
under the respective retainer agreements. For example,
in their complaint, plaintiffs accuse defendant DarshanLeitner of “improperly solicit[ing] the Stern family to sign
a retainer with [defendant] WESTERMAN[.]” Dkt. No.
2 at 7. Defendants Darshan-Leitner and Westerman are
also accused of abandoning the Stern Family. Id. at 7, 9.
In addition, plaintiffs accuse all defendants of breaching
their fiduciary responsibilities to the Stern Family and
pursuing their own self-interests above their clients'. Id. at
12. These concerns, as described in plaintiffs' complaint,
do not implicate substantial federal questions. Rather,
they involve questions of state law that arise either under
the retainer agreements entered into between defendants
and the Stern Family or the code of ethics governing
attorney practice. While the parties may dispute whether
the laws of New York State or District of Columbia
govern, the questions of attorney liens and recovery under
retainer agreements are matters of local concern over
which federal courts have little or no interest.
*7 In sum, while the legal representation provided by
defendants that is at issue in this case was rendered
in connection with efforts to enforce a federal court
judgment, such matters inherently present questions
of local concern. Accordingly, I recommend a finding
that defendants have failed to carry their burden of
establishing that the court possesses subject matter
jurisdiction over plaintiffs' claims, and that the matter was
therefore improperly removed to this court.

3. Attorney's Fees
In their motion to remand, plaintiffs request that the
court award attorney's fees against defendant Tolchin
for improperly removing the matter to this court. Dkt.
No. 12-2 at 11. Defendants have responded by opposing
that request and asking the court for attorney's fees to
compensate them for having to oppose plaintiffs' motion.
See Dkt. No. 21 at 18 (“The plaintiffs request ... attorney's
fees for their expense in bringing their motion. Had they
not done so, the undersigned would not have requested
fees. But since they requested fees, the undersigned makes
a reciprocal request.”).
The provision governing the procedures after removal to
federal court, including a motion to remand, permits a

district court to “require payment of just costs and any
actual expenses, including attorney fees, incurred as a
result of the removal.” 28 U.S.C. § 1447(c). A district
court may award attorney's fees where “the removing
party lacked an objectively reasonable basis for seeking
removal.” Martin v. Franklin Capital Corp., 546 U.S. 132,
141 (2005). “Conversely, when an objectively reasonable
basis exists, fees should be denied.” Martin, 546 U.S. at
141.
In this case, it was reasonable for defendants to believe
that there was a basis for federal jurisdiction in this matter.
Not only did the underlying matter arise under federal
law, but plaintiffs' complaint also—albeit implicitly—
invokes 28 U.S.C. § 1608(e) by accusing defendant Tolchin
of failing to properly serve Judge Lamberth's judgment
upon the Republic of Iran. Accordingly, I recommend
against an award of attorney's fees to either party under
section 1447(c). 15
15

It follows, from the previously discussed finding that
removal was not proper, that there is no basis to
recommend that defendants' request for an award of
costs and attorney's fees be granted.

B. Change of Venue
Defendants assert that venue in the Northern District
of New York is improper and request that the matter
be transferred to the United States District Court for
the District of Columbia. 16 Dkt. No. 6 at 4. Plaintiffs
oppose defendants' motion, arguing that venue in this
district is proper because a substantial part of the
events or omissions giving rise to the action occurred in
this district. Dkt. No. 23 at 2. If my recommendation
concerning plaintiffs' motion for remand is adopted, there
will be no need to address defendants' change of venue
motion, which will thereby be rendered moot. In the
event the motion to remand is denied and the matter
remains in federal court, however, the question then
becomes whether it should be transferred to the District
of Columbia.
16

At oral argument, defendant Tolchin confirmed that
defendants do not seek a transfer of this matter to
the District of Columbia under 28 U.S.C. § 1404(a).
Instead, they argue that venue in the action does not
lie in the Northern District of New York, and that the
matter should therefore be transferred to the District
of Columbia pursuant to 28 U.S.C. § 1406.

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*8 The venue statute that controls in this case provides
that an action may be brought in “a judicial district in
which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of property
that it is the subject of the action is situated[.]” 28 U.S.C
§ 1391(b)(2). In the event a court in which an action
is pending finds that venue is improper, a court “shall
dismiss, or if it be in the interest of justice, transfer [the]
case to any district or division in which it could have been
brought.” 28 U.S.C. § 1406(a).
In 2005, the Second Circuit joined several other circuits
in clarifying that the phrase “a substantial part” does
not mean “the substantial part,” and, accordingly, venue
may properly lie in more than one district pursuant to
section 1391(b)(2). Gulf Ins. Co. v. Glasbrenner, 417 F.3d
353, 356-57 (2d Cir. 2005). The court cautioned, however,
that the venue statute must be strictly construed, and the
term “significant” implies that “for venue to be proper,
significant events or omissions material to the plaintiff's
claim must have occurred in the district in question, even
if other material events occurred elsewhere.” Glasbrenner,
417 F.3d at 357 (emphasis in original).
In this case, it appears that the conduct giving rise to the
liens that plaintiffs now seek to extinguish occurred both
in New York, though not in this district, and elsewhere.
See generally Dkt. No. 2. Many of the legal services giving
rise to any alleged charging lien occurred in connection
with a federal court action and resulting judgment in
2003, rendered in the United States District Court for
the District of Columbia. Id. Some of defendants' efforts,
including defendant Tolchin's, to enforce the judgment
also occurred in the District of Columbia. Id.
Conversely, it does not appear that any of the acts
giving rise to defendants' alleged liens occurred within
this district. Id. Instead, the sole connection with this
district appears to be that the law offices of plaintiffattorneys Ancowitz and Ronseblum are located within the
County of Albany, and thus within the Northern District
of New York. Dkt. No. 2 at 4. To be sure, plaintiffs'
complaint alleges that those two attorneys engaged in
efforts to obtain information from the various defendants
to support an application on behalf of the Stern Family for
recovery from the USVSST fund. Id. at 15. Defendants'
failures to perform pursuant to their retainer agreements
and their alleged breaches of the applicable rules of
professional conduct—the conduct that forms the basis of

plaintiffs' action—however, all appear to have occurred
outside of this district.
Plaintiffs' attempt to rely upon the portion of section
1391(b)(2) providing for proper venue where “a
substantial part of property that is the subject of the
action is situated” is unpersuasive. Prior to the receipt
distribution form the USVSST fund, plaintiffs specifically
argued that when a distribution was made from the fund,
which has now occurred, the subject monies would be
transferred to the escrow account for plaintiff Ancowitz,
and therefore would be located within the Northern
District of New York. Dkt. No. 23 at 4. Because
venue is judged at the time an action is commenced,
Sullivan v. Tribley, 602 F. Supp. 2d 795, 799 (E.D. Mich.
2009); Technograph Printed Circuits, Ltd. v. Packard Bell
Elecs. Corp., 290 F. Supp. 308, 326 (C.D. Calif. 1968)
(citing Hoffman v. Blaski, 363 U.S. 335 (1960)), plaintiffs'
argument is unavailing and does not provide a basis for
venue.
*9 In sum, I am unable to conclude that a substantial
portion of the events giving rise to plaintiffs' claims in this
case occurred in the Northern District of New York, and
therefore find that venue here is improper. Accordingly, in
the event that plaintiffs' motion to remand is denied and
this case remains pending in federal court, I recommend
that the action be transferred to the United States District
Court for the District of Columbia.

IV. SUMMARY AND RECOMMENDATION
Plaintiffs commenced this action seeking judicial
determination of the parties' entitlement to attorney's fees
in connection with the Stern Family's recovery of damages
following their mother's death. Although the underlying
matter giving rise to the entitlement to attorney's fees
involved federal statutory provisions, the apportionment
of the fees is disputed in light of plaintiffs' allegations
that defendants, who formerly served as attorneys for the
Stern Family, breached their obligations to their client in
violation of both the retainer agreements governing the
attorney-client relationship and ethical codes governing
an attorney's practice—neither of which implicate federal
law. Accordingly, I recommend that the matter be
remanded to state court, but that the parties' crossrequests for costs and attorney's fees be denied. In the
event that this recommendation is adopted, defendants'
motion for change of a venue will be moot. If the
portion of this report and recommendation addressing

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plaintiffs' remand motion is not adopted, however, then
I recommend that the action be transferred to the United
States District Court for the District of Columbia. Based
upon the foregoing it is hereby respectfully
RECOMMENDED that plaintiffs' motion to remand this
action to New York State Supreme Court. (Dkt. No. 12)
End of Document

be GRANTED, without an award of costs or attorney's
fees, and that defendants' motion for a change of venue
(Dkt. No. 5) be DENIED as moot.

All Citations
Not Reported in Fed. Supp., 2017 WL 7411022
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9

View 360 Solutions LLC v. Google, Inc., Not Reported in Fed. Supp. (2013)
2013 WL 12130430

2013 WL 12130430
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
VIEW 360 SOLUTIONS LLC, Plaintiff,
v.
GOOGLE, INC., Defendant.
1:12-CV-1352(GTS/TWD)
|
Signed 08/13/2013
Attorneys and Law Firms
INNOVALAW, P.C., 1900 Ravinia Place, OF
COUNSEL: TIMOTHY E. GROCHOCINSKI, ESQ.,
AARON W. PURSER, ESQ., Orland Park, IL 60462,
Counsel for Plaintiff.
THE SIMON LAW FIRM, P.C., 800 Market Street, Suite
1700, OF COUNSEL: ANTHONY G. SIMON, ESQ.,
BENJAMIN A. ASKEW, ESQ., Saint Louis, MO 63101,
Counsel for Plaintiff.
LAW OFFICES OF DANIEL M. SLEASMAN,
One Crumitie Road, OF COUNSEL: DANIEL M.
SLEASMAN, ESQ., Albany, NY 12211, Counsel for
Plaintiff.
AKIN GUMP STRAUSS HAUER & FELD, LLP, 1333
New Hampshire Avenue, N.W., OF COUNSEL: CONO.
A. CARRANO, ESQ., DAVID C. VONDLE, ESQ.,
Washington, D.C. 20036, Counsel for Defendant.
HISCOCK & BARCLAY, LLP, One Park Place,
300 South State Street, OF COUNSEL: DOUGLAS
J. NASH, ESQ., Syracuse, NY 13202, Counsel for
Defendant.

MEMORANDUM-DECISION and ORDER
HON. GLENN T. SUDDABY, United States District
Judge
*1 Currently before the Court in this patent infringement
action are Defendant’s objections to the March 13,
2013 Order of Magistrate Judge Thérèse Wiley Dancks
denying Defendant’s motions to transfer venue to the
United States District Court for the Northern District of

California and to stay this action pending a decision on
its venue motion (“the Order”). For the reasons set forth
below, Defendant’s objections are denied and Magistrate
Judge Dancks' Order is affirmed in its entirety.

I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff, View 360 Solutions, Inc., commenced this
action against Defendant, Google, Inc., on August 31,
2012. Plaintiff’s Complaint alleges eight counts of direct
and induced infringement of eight separate patents,
regarding which Plaintiff has an exclusive license to
enforce and sue infringers. (Dkt. No. 1.) Generally,
the Complaint alleges that Defendant’s product, Google
Street View, infringes the underlying patents. In its
Answer, Defendant asserts sixteen counter-claims seeking
a declaratory judgment of non-infringement, invalidity
and unenforceability regarding each of the patents. (Dkt.
No. 19.)
In January 2013, the parties submitted a case management
plan wherein Defendant indicated its intent to file a
motion to transfer venue of this action to the Northern
District of California pursuant to 28 U.S.C. § 1404(a) as
well as a motion to stay this action pending resolution
of the venue motion. (Dkt. No. 21.) Two weeks later,
Defendant filed its motions to transfer venue and to
stay this action. Plaintiff opposed both motions and,
with permission of Magistrate Judge Dancks, Defendant
replied. (Dkt. Nos. 25, 26, 28, 30, 34.) On March 13, 2013,
Magistrate Judge Dancks denied both motions. (Dkt. No.
35.) This timely appeal followed. (Dkt. No. 38.)

B. Factual Background
Plaintiff is a New York limited liability company with its
principal place of business in Frisco, Texas. Defendant is a
Delaware corporation with its principal place of business
in Mountain View, California. The sole named inventor
of each of the patents underlying this action is Ford Oxaal
(“Oxaal”), who currently resides in Cohoes, New York.
Oxaal declares that he has resided in the Northern District
of New York for twenty-two years, which is where he
conceived of and reduced to practice all of the inventions
claimed in the patents underlying this action. (See Dkt.
No. 30-1 [Decl. of Ford Oxaal, Feb. 19, 2013].) Oxaal
formed and operates Minds-Eye View, Inc. (“MEV”) in

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the Northern District of New York, of which he and his
wife are the only employees. MEV has developed and
sold software applications that were marked as being
covered by several of the patents-in-suit underlying this
action. Oxaal granted Plaintiff an exclusive licence to
enforce the underlying patents and sue infringers. Plaintiff
incorporated in New York on August 7, 2012.
Oxaal declares that, if this matter proceeds in the
Northern District of New York, he intends to testify at
trial. Oxaal further declares that travel to the Northern
District of California would be very burdensome and
inconvenient to him and to MEV. According to Oxaal, he
possesses hard copy and electronic documents pertaining
to the patents-in-suit and MEV. In addition to these
documents, Oxaal also possesses models, drawing and
paintings that may pertain to the patents-in-suit, which
are very difficult to transport. Oxaal further declares
that shipping of these materials to the Northern District
of California would be very difficult and may result in
damage to them.
*2 Defendant’s engineering manager, Allen Hutchinson
(“Hutchinson”) declares generally that the teams
responsible for research, design and development for
Google Street View are primarily led by Defendant’s
employees at its facilities in Mountain View, California,
which is located in the Northern District of California.
Hutchinson specifically identifies four such employees,
including himself, that Defendant expects to provide
testimony in this case. Hutchinson also declares that
Defendant’s business documents and records related
to the research, design and development of Google
Street View are either physically present or electronically
accessible in Mountain View, California. Hutchinson goes
on to declare that “[a]ll or nearly all of the documents and
highly proprietary information and source code relating
to Google Street View are stored in [Defendant’s] various
data centers, which are accessible and ultimately managed
from Mountain View, California.” (Dkt. No. 25-3, at ¶ 5
[Decl. of Allen Hutchinson, Jan. 24, 2013].)

C. Defendant’s Motion to Transfer Venue
Generally, in support of its motion to transfer venue to the
Northern District of California, Defendant argued that
(1) this case could have been brought in the Northern
District of California and (2) the balance of convenience
and justice favors transfer to that district. Specifically,
Defendant argued, among other things, that Plaintiff’s

choice of forum should not be given any weight in the
transfer analysis because it incorporated in New York less
than four weeks before it commenced this action and none
of the operative facts or events giving rise to Plaintiff’s
claims occurred in the Northern District of New York.
Defendant also argued that the convenience of witnesses,
the convenience of the parties, the location of relevant
documents and the relative ease of access to those sources
of proof, the location of operative events, and judicial
efficiency all weigh in favor of transferring this action to
the Northern District of California. (See Dkt. No. 25-1, at
5-15 [Def.'s Mem. of Law].)
Generally, in response to Defendant’s motion, Plaintiff
argued that Defendant’s motion to transfer venue should
be denied because (1) Plaintiff’s choice of forum is entitled
to great weight, (2) the convenience of parties, availability
of process to compel attendance of non-party witnesses
and judicial efficiency weigh against transfer of this
action to the Northern District of California, and (3)
the remainder of the factors are neutral to the transfer
analysis. (Dkt. No. 30, at 3-12 [Pl.'s Mem. of Law].)
Generally, in its reply memorandum of law, Defendant
argued that its motion to transfer venue should be granted
because (1) Plaintiff’s choice of venue should be afforded
little weight, (2) all of the witnesses except one are
located outside of the Northern District of New York,
(3) Defendant is significantly more inconvenienced by
litigating in the Northern District of New York than
Plaintiff would be in the Northern District of California,
(4) most of the relevant proof is located in the Northern
District of California, (5) nearly all of the operative
facts are in the Northern District of California, (6)
the majority of non-party witnesses could be compelled
to attend trial in the Northern District of California,
and (7) judicial efficiency and the Northern District of
California’s interest in this case weigh in favor of transfer.
(Dkt. No. 34, at 1-9 [Def’s. Reply Mem. of Law].)

D. Defendant’s Motion to Stay This Action
Generally, in support of its motion to stay this action
pending resolution of its motion to transfer venue to the
Northern District of California, Defendant argued that
the Federal Circuit Court of Appeals' recent order in In
re Fusion-IO, Inc., 489 Fed.Appx. 465 (Fed. Cir. 2012)
recommends that a short stay of proceedings is the proper
vehicle to limit prejudice and inconvenience to the parties

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while they await a decision on threshold issues such as
proper venue. (See Dkt. No. 26-1 [Def.'s Mem. of Law].)
*3 Generally, in response to Defendant’s motion,
Plaintiff argued that Defendant failed to meet its burden
to demonstrate that a stay is necessary. (See Dkt. No. 28
[Pl.'s Mem. of Law].)

E. The Order
Generally, in deciding the motions to transfer venue and
to stay this action, Magistrate Judge Dancks concluded
that this action might have been brought in the Northern
District of California and that the balance of convenience
and justice weighs against transfer. In weighing the
balance of convenience and justice, Magistrate Judge
Dancks concluded that while the location of relevant
proof weighs slightly in favor of transfer, judicial
efficiency and the weight afforded to Plaintiff’s choice of
forum weigh against transfer and the remaining factors
are neutral to the analysis. Accordingly, Magistrate Judge
Dancks denied Defendant’s motion to transfer venue.
Having denied Defendant’s motion to transfer venue,
Magistrate Judge Dancks denied the motion to stay this
action as moot. (Dkt. No. 35, at 3-14 [the Order].)
The pending objections followed.

II. Defendant’s Objections
Generally, in support of its objections to the Order,
Defendant argues that Magistrate Judge Dancks
committed legal error in her analysis of the following
five transfer factors: (1) the convenience of the parties,
(2) the convenience of the witnesses, (3) the locus of
operative facts, (4) the location of relevant documents,
and (5) Plaintiff’s choice of forum, all of which weigh in
favor of transferring this action to the Northern District
of California. Defendant also argues that the judicial
efficiency factor weighs in favor of transfer, relying on its
argument in its papers in support of its motion to transfer
venue. Regarding its motion to stay this action, Defendant
argues that a stay is warranted to prevent prejudice and
promote judicial economy while the motion to transfer
is pending. (See Dkt. No. 38-1, at 1-20 [Def.'s Mem. of
Law].)
In response, Plaintiff argues generally that Defendant’s
objections should be denied because (1) Plaintiff’s choice
of forum is entitled to great weight and weighs against

transfer, (2) the location of relevant proof at best weighs
only slightly in favor of transfer and at the very least
is neutral to the analysis, and (3) the convenience of
witnesses, convenience of the parties, loci of operative
facts and availability to compel attendance of non-party
witnesses are neutral to the analysis. (See Dkt. No. 39, at
1-8 [Pl.'s Mem. of Law].)

III. Relevant Legal Standards
A. Legal Standard Governing Objections to the Order
of a Magistrate Judge
In reviewing timely objections to a magistrate judge’s
non-dispositive order, 1 the court “must modify or set
aside any part of the order that is clearly erroneous or is
contrary to law.” Fed. R. Civ. P. 72(a). A finding is clearly
erroneous if “ ‘on the entire evidence,’ [the reviewing
court] is ‘left with the definite and firm conviction that a
mistake has been committed.’ ” Snyder v. Louisiana, 552
U.S. 472, 487, 128 S. Ct. 1203, 1213 (2008) (citing Easley
v. Cromartie, 532 U.S. 234, 242, 121 S. Ct. 1452 (2001)
(quoting United States v. United States Gypsum Co., 333
U.S. 364, 395, 68 S. Ct. 525 (1948))). An order is contrary
to law “if it fails to apply or misapplies relevant statutes,
case law or rules of procedure.” New York v. Salazar, No.
6:08-CV-644, 2011 WL 1938232, at *4 (N.D.N.Y. Mar. 8,
2011).
1

Courts in this District view orders on motions to
transfer venue as non-dispositive. See Glover v. Goord,
No. 06-CV-1037, 2007 WL 2454193 (N.D.N.Y. Aug.
22, 2007) (Kahn, J.); White Mop Wringer Co. of
Canada Ltd. v. BT Capital Partners, Inc., No. 95CV-565, 1997 WL 222380, at *1 (N.D.N.Y. Apr.
29, 1997) (Pooler, J.); Pemrick v. Stracher, No. 90CV-849, 1992 WL 697636, at *1 (N.D.N.Y. Mar. 27,
1992) (McAvoy, C.J.).

B. Legal Standard Governing a Motion to Transfer
Venue
*4 A district court may decide to transfer an action
to another district in the interest of justice and for the
convenience of the parties and witnesses. See 28 U.S.C. §
1404(a) (“For the convenience of the 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.”); see also Ferens v. John
Deere Co., 494 U.S. 516, 530 (1990); Lead Indus. Ass'n
v. Occupational Safety & Health Admin., 610 F.2d 70, 79

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n.17 (2d Cir. 1979) (citing cases); Kelly v. Kelly, 911 F.
Supp. 70, 71 (N.D.N.Y. 1996). “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 expense.” Flaherty v. All
Hampton Limousine, Inc., 01-CV-9939, 2002 WL 1891212,
at *1 (S.D.N.Y. Aug. 16, 2002) (internal quotation marks
omitted). When considering whether to transfer a case, a
district court must conduct “a two-part test: (1) whether
the action to be transferred might have been brought
in the transferee venue; and (2) whether the balance of
convenience and justice favors transfer.” Advanced Fiber
Tech. Trust v. J & L Fiber Serv. Inc., 07-CV-1191, 2008 WL
4890377, at *1 (N.D.N.Y. Nov. 12, 2008) (Homer, M.J.).

IV. Analysis
A. Whether Magistrate Judge Dancks' Order Denying
Defendant’s Motion to Transfer This Action to the
Northern District of California Is Clearly Erroneous or
Contrary to Law
The Court answers this question in the negative, in part for
the reasons stated in Plaintiff’s abbreviated memorandum
of law. (Dkt. No. 39, at 1-8 [Pl.'s Mem. of Law].) The
Court would add the following analysis.
Neither party disputes that this action might have
been brought in the Northern District of California.
However, the parties disagree regarding whether the
balance of convenience and justice favors transfer. To
that end, Defendant argues that Magistrate Judge Dancks
misapplied the law when she weighed six of the factors
in the transfer analysis: (1) convenience of witnesses, (2)
convenience of parties, (3) location of relevant documents
and relative ease of access to those sources of proof,
(4) locus of the operative events in issue, (5) weight
accorded to Plaintiff’s choice of forum, and (6) judicial
efficiency and interests of justice. Defendant argues that
each of these factors weighs in favor of transfer, and
that, since Magistrate Judge Dancks found that the
remaining three factors are neutral, a balance of the
factors warrants transfer of this action to the Northern
District of California.
Once it has been established that the action might have
been brought in the transferee district, the resolution of a
motion to transfer venue lies “within the broad discretion
of the district court and [is] determined upon notions
of convenience and fairness on a case-by-case basis.”

Amersham Pharmacia Biotech, Inc. v. Perkin-Elmer Corp.,
11 F. Supp. 2d 729, 730 (S.D.N.Y. 1998). A non-exclusive
list of factors courts routinely consider in making this
determination include the following:

(1) the convenience of witnesses; (2)
the convenience of the parties; (3)
the location of relevant documents
and the relative ease of access to
those sources of proof; (4) the situs
of the operative events in issue;
(5) the availability of process to
compel the attendance of unwilling
witnesses; (6) the relative means
of the parties; (7) the comparative
familiarity of each district with
the governing law; (8) the weight
accorded a plaintiff’s choice of
forum; and (9) judicial efficiency and
the interests of justice.

Amersham Pharmacia Biotech, Inc., 11 F. Supp. 2d at 730.
“No individual factor is determinative and a court has
discretion to weigh each factor to reach a fair result.” Id.
Moreover, it is important to note that the party requesting
transfer bears the burden of making a clear and convincing
showing that transfer is warranted in light of these factors.
See EasyWeb Innovations, LLC v. Facebook, Inc., 888 F.
Supp. 2d 342, 348 (E.D.N.Y. 2012) (citing Factors Etc.,
Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978),
abrogated on other grounds by, Pirone v. MacMillan, Inc.,
894 F.2d 579, 585 (2d Cir. 1990)). See also Hubbell Inc.
v. Pass & Seymour, Inc., 883 F. Supp. 955, 962 (S.D.N.Y.
1995).

1. Convenience of Witnesses
*5 “Convenience of both party and non-party witnesses
is probably the single-most important factor in the
analysis of whether transfer should be granted.” In re
Bennett Funding Group, Inc., 259 B.R. 243, 249 (N.D.N.Y.
2001). While the convenience of party witnesses is
certainly relevant, courts may weigh more heavily the
convenience of non-party witnesses in conducting this
analysis. See CYI, Inc. v. Ja-Ru, Inc., No. 12-CV-2230,
2012 WL 6646188, at *5 (S.D.N.Y. Dec. 21, 2012);

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Pecorino v. Vutec Corp., No. 11-CV-6313, 2012 WL
5989918, at *8 (E.D.N.Y. Nov. 30, 2012). An evaluation
of this factor involves “more than a mere tally of
witnesses who reside in the current forum in comparison
to the number located in the proposed transferee forum.”
Advanced Fiber, 2008 WL 4890377, at *2. Rather, the
Court should “qualitatively evaluate the materiality of
the testimony that witnesses may provide.” Id.; see also
The Research Found. of State Univ. of New York v.
Luminex Corp., No. 07-CV-1260, 2008 WL 4822276, at
*3 (N.D.N.Y. Nov. 3, 2008) (“Courts should consider
both the number of witnesses located in a given venue
and the relative salience of their testimony.”). “Generally,
the moving party submits an affidavit explaining why the
transferee forum is more convenient, which includes ‘the
potential principal witnesses expected to be called and
the substance of their testimony.’ ” EasyWeb Innovations,
888 F. Supp. 2d at 350 (citing Pall Corp. v. PTI Techs.,
Inc., 992 F. Supp. 196, 198 (E.D.N.Y. 1998) (quoting
Laumann Mfg. Corp. v. Castings USA Inc., 913 F. Supp.
712, 720 (E.D.N.Y. 1996)).) See also Factors Etc., 579 F.2d
at 218 (“When a party seeks the transfer on account of the
convenience of witnesses under § 1404(a), he must clearly
specify the key witnesses to be called and must make a
general statement of what their testimony will cover.”)
In support of its motion to transfer venue, Defendant
offers the Declaration of Allen Hutchinson. (See Dkt.
No. 25-3, at [Decl. of Allen Hutchinson, Jan. 24, 2013].)
In his declaration, Hutchinson, an engineering manager
for Defendant, specifically identifies only four potential
party witnesses that are knowledgeable regarding various
specific aspects of Google Street View. (Id. at ¶ 4ad.) Each of the witnesses are located in the Northern
District of California. (Id.) In its memorandum of law
in support of transfer, Defendant identifies “two prior
art references that appear to be relevant to [its] invalidity
defense at companies located in the Northern District of
California.” (Dkt. No. 25-1, at 9 [Def.'s Mem. of Law].)
Defendant also asserts that there are four non-party
prosecuting attorneys who are located in Texas, Virginia
and Florida. In Plaintiff’s opposition to Defendant’s
motion, Plaintiff specifically identifies only one nonparty witness, the sole inventor of the patents-in-suit,
Mr. Oxaal. By declaration, Oxaal states that he resides
in the Northern District of New York and operates his
business there, of which Oxaal and his souse are the only
employees. Oxaal further declares that he conceived of
and reduced to practice all of the inventions underlying the

patents-in-suit. Finally, Oxaal declares that he intends to
testify at trial in this matter and that travel to the Northern
District of California would be very burdensome and
inconvenient to him and MEV.
In finding that this factor is neutral to the transfer analysis,
Magistrate Judge Dancks relied on this Court’s decision in
Defenshield Inc. v. First Choice Armor & Equipment, Inc.,
No. 10-CV-1140, 2012 WL 1069088, at *12 (N.D.N.Y.
Mar. 29, 2012). In Defenshield, the defendant identified
only two potential witnesses and the plaintiff identified
nine witnesses, including the named inventor of the
underlying patent. However, keeping in mind that “this
factor is ‘more than a mere tally of witnesses,’ ” the Court
in Defenshield found this factor to be neutral, “because the
parties' potential witness appear to offer equally material
information.” Defenshield, 2012 WL 1069088, at *12
(quoting Advanced Fiber Techn. Trust, 2008 WL 4890377,
at *2). Defendant argues that here, Magistrate Judge
Dancks erroneously found that one non-party witness in
this District neutralized numerous party and non-party
witnesses outside the District. Defendant goes on to note
the rule of law that “analysis of this factor requires both
a tallying of witnesses and a qualitative evaluation of the
materiality of the witness[e]s' testimony” but then argues
that “[b]ased solely on the number of witnesses identified
by the parties, this factor clearly warrants transfer.” (Dkt.
No. 38-1, at 9.) To be sure, Defendant also argues that
a qualitative analysis of these witnesses favors transfer,
relying on argument in its original moving papers that
in a patent infringement action, the key witnesses are
those who are involved in the design, production and
sale of products. However, as Magistrate Judge Dancks
noted, Mr. Oxaal, the only non-party witness identified
with specificity, conceived of and reduced to practice
the inventions underlying each of the patents-in-suit.
In contrast, Defendant only specifically identified four
witnesses, each of whom is a party-witness.
*6 Keeping in mind that courts have broad discretion
in balancing the transfer factors, that courts may weigh
the convenience of non-party witnesses more heavily than
party witnesses, that the moving party bears the burden of
a clear and convincing showing that transfer is warranted,
and that both a tallying of witnesses and a qualitative
evaluation of the materiality of their testimony is required,
Magistrate Judge Dancks' finding in this case that the
convenience of witnesses factor is neutral to the transfer
analysis was not clearly erroneous or contrary to law.

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2. Convenience of Parties
Defendant is a Delaware corporation, with offices in
Mountain View, California and Plaintiff is a New York
corporation, with its principal place of business in Frisco,
Texas. Magistrate Judge Dancks found that this factor
is neutral because for the same reason it would be
inconvenient for Plaintiff to travel to the Northern District
of California, it would be inconvenient for Defendant to
travel to the Northern District of New York. Defendant
argues that because transfer would alleviate unnecessary
inconvenience to it without any additional inconvenience
to Plaintiff, Magistrate Judge Dancks committed legal
error when she weighed this factor in favor of transfer.
Defendant cites In re Microsoft Corp., 630 F.3d 1361
(Fed. Cir. 2011) for support. However, in that case,
the plaintiff was a company that was operated in part
by the co-inventor of the patent it sought to enforce
against Microsoft. While the principal place of plaintiff’s
business was in the United Kingdom, it maintained an
office in Tyler, Texas. The court in In re Microsoft
held that plaintiff’s transfer of documents to its Texas
office in anticipation of litigation, where the Texas office
staffed no employees and was established recently and
in anticipation of litigation, was merely an attempt to
manipulate venue. See In re Microsoft, 630 F.3d at
1364-65. Here, Plaintiff is a company whose purpose is
to enforce patent rights. Oxaal, the sole inventor of each
of the patents that Plaintiff seeks to enforce here, resides
in this District and maintains documents and models
regarding his conception and reduction to practice of the
underlying inventions in this District. Accordingly, Judge
Dancks' finding that the convenience of the parties factor
is neutral to the transfer analysis is not clearly erroneous
or contrary to law.

3. Location of Relevant Documents and Relative
Ease of Access to Those Sources of Proof
“The location of relevant documents once carried
significant weight in this analysis and in patent
infringement cases is usually produced from the
accused infringer.” Advanced Fiber Techn. Trust,
2008 WL 4890377, at *4 (internal quotation marks
omitted). “Consequently, the place where the defendant’s
documents are kept weighs in favor of transfer to that

location.” Id. (internal quotation marks omitted). In
evaluating the significance of the location of relevant
documents, the location of the defendant’s documents
weighs in favor of venue being laid in that location,
because in a patent infringement action, the bulk of
the relevant evidence is in the possession of the accused
infringer. See In re Genentech, Inc., 566 F.3d 1338, 1345
(Fed. Cir. 2009).
Magistrate Judge Dancks found this factor weighs
only slightly in favor of transfer, relying on EasyWeb
Innovations, LLC v. Facebook, Inc., 888 F. Supp. 2d
342 (E.D.N.Y. 2012). In EasyWeb, the court noted
that this factor is not “particularly significant given the
technological age in which we live, with the widespread use
of, among other things, electronic document production.”
EasyWeb, 888 F. Supp. 2d at 352 (citing Am. S.S.
Owners Mut. Prot. and Indem. Ass'n, Inc. v. Lafarge N.
Am., Inc., 474 F. Supp. 2d 474, 484 (S.D.N.Y. 2007))
( “The location of relevant documents is largely a neutral
factor in today’s world of faxing, scanning, and emailing
documents.”); Distefano v. Carozzi N. Am., Inc., No. 98
Civ. 7137(SJ), 2002 WL 31640476, at *4 (E.D.N.Y. Nov.
16, 2002) (“Although the location of relevant documents is
entitled to some weight when determining whether a case
should be transferred, modern photocopying technology
deprives this issue of practical or legal weight.” (citations
omitted)). Defendant argues that this was legal error since
the Federal Circuit “expressly rejected” this rationale in
In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir.
2008) (applying Fifth Circuit law). In In re TS Tech, the
Federal Circuit noted that the Court of Appeals for the
Fifth Circuit, whose law governed the underlying District
Court’s decision, explained that the fact “that access to
some sources of proof presents a lesser inconvenience now
than it might have absent recent developments does not
render this factor superfluous.” In re TS Tech., 551 F.3d at
1321 (quoting In re Volkswagen of America, Inc., 545 F.3d
304, 316 (5 th Cir. 2008)). The court went on to conclude
that, because all of the physical evidence, including some
automobile equipment and documentary evidence, are far
more conveniently located near the transferee district, the
district court erred in not weighing this factor in favor
of transfer. See In re TS Tech, 551 F.3d at 1321. Here,
Defendant, who has the burden to show that a transfer
is warranted, did not clearly show that any physical
evidence exists in the Northern District of California.
In contrast, Plaintiff has shown that the sole inventor
possesses hard copy documents, models, drawings and

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2013 WL 12130430

paintings pertaining to the patents-in-suit in this District.
Accordingly, Magistrate Judge Dancks' finding that this
factor weighs only slightly in favor of Defendant is not
clearly erroneous or contrary to law.

4. Locus of the Operative Events in Issue
*7 Operative facts in a patent infringement action
include those relating to the design, development, and
production of a patented product. See Fuji Photo Film
Co., Ltd. v. Lexar Media, Inc., 415 F. Supp. 2d 370,
375 (S.D.N.Y. 2006); Invivo Research, Inc. v. Magnetic
Resonance Equipment Corp., 119 F. Supp. 2d 433, 439
(S.D.N.Y. 2000) (citing Bionx Implants, Inc. v. Biomet,
Inc., No. 99-CV-0740, 1999 WL 342306, at *4 (S.D.N.Y.
May 27, 1999)). Similar information regarding the
allegedly infringing product is also vital in adjudicating
an infringement suit. See Amersham Pharmacia Biotech,
Inc., 11 F. Supp. 2d at 730. Also relevant to consideration
of this factor is the area in which the allegedly infringing
device was sold or offered for sale. See Invivo Research,
Inc., 119 F. Supp.2d at 439. However, “[w]here a
party’s products are sold in many states, sales alone
are insufficient to establish a material connection to the
forum and to override other factors favoring transfer.” Id.
(quoting Bionx Implants, 1999 WL 342306, at *4 (citations
omitted)). As a result, venue analysis may demonstrate
that there are multiple loci of operative facts. See Atl.
Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d
690, 696-97 (S.D.N.Y. 2009); Adams v. Key Tronic Corp.,
No. 94-CV-0535, 1997 WL 1864, at *4, n.1 (S.D.N.Y.
Jan. 2, 1997); Kwatra v. MCI, Inc., No. 96-CV-2491, 1996
WL 694444, at *3-4 (S.D.N.Y. Dec. 3, 1996). Thus, while
certainly an important factor, the situs of development
of the infringing device is not alone determinative. See
Defenshield, 2012 WL 1069088, at *13 (citing Amersham
Pharmacia Biotech, Inc., 11 F. Supp. 2d at 730).
Magistrate Judge Dancks found that this factor is neutral,
noting that both this District and the transferee District
are loci of operative facts. Defendant argues that this
was error because the Magistrate Judge was required to
weigh the connection of operative events and facts to each
district and determine which is stronger, citing Wagner
v. New York Marriott Marquis, 502 F. Supp. 2d 312,
316 (N.D.N.Y. 2007) (finding that stronger connection
between the operative facts and the transferee district
“cannot be denied”). However, in reaching her conclusion

that this factor is neutral, Magistrate Judge Dancks
considered both Defendant’s assertion that the transferee
District is the situs of operative events because that
is where the design and development of Google Street
View took place and Plaintiff’s assertion that this District
is the situs of operative events because this is where
Oxaal conceived of and reduced to practice the inventions
underlying the patents-in-suit. While the court in Wagner
found that the facts of that case warranted a finding
that there was a stronger connection to the transferee
District, other courts have found that where there are
loci of operative events that equally favor both districts,
the factor is neutral to the analysis. See Defenshield, 2012
WL 1069088, at 13; EasyWeb, 888 F. Supp. 2d at 354.
Accordingly, Magistrate Judge Dancks' finding that this
factor is neutral to the transfer analysis was not clearly
erroneous or contrary to law.

5. Weight Accorded to Plaintiff’s Choice of Forum
Generally, “[a] plaintiff’s choice of forum is entitled to
considerable weight and should not be disturbed unless
other factors weight strongly in favor of transfer.” Neil
Bros. Ltd. v. World Wide Lines, Inc., 425 F. Supp. 2d 325,
333 (E.D.N.Y. 2006); see also Iragorri v. United Techs.
Corp., 274 F.3d 65, 70-71 (2d Cir. 2001) (“[U]nless the
balance is strongly in favor of the defendant, the plaintiff’s
choice of forum should rarely be disturbed.” (internal
quotation marks omitted.)). “However plaintiff’s choice
of forum is not entitled to great weight when the operative
facts have little or no connection with the transferor
forum, or when the plaintiff does not reside in his chosen
forum.” Neil Bros. Ltd., 425 F. Supp. 2d at 333.
*8 Magistrate Judge Dancks found that this factor
weighs against transfer because Plaintiff is incorporated
in this state, maintains a preference for litigating in
this forum, and the patents-in-suit were designed in
this forum by Mr. Oxaal, who resides here. Moreover,
Magistrate Judge Dancks noted that the place where an
invention was developed is considered a locus of operative
facts. Defendant argues that Magistrate Judge Dancks
committed legal error in affording deference to Plaintiff’s
choice of forum because, according to prevailing caselaw
and the facts of this case, Plaintiff is not entitled to such
deference.

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While it is true that the Plaintiff’s choice of forum is no
longer decisive, it is entitled to great weight unless the
operative facts have little or no connection to Plaintiff’s
chosen forum or the Plaintiff does not reside in the
forum. Here, while the latter may be true, that Plaintiff, a
corporation with its principal place of business in Texas,
does not reside in this forum, for the same reasons that
Magistrate Judge Dancks found that this District is a
locus of operative events, there is a connection between
this forum and the underlying facts of this action. Given
the broad discretion afforded the Court in weighing the
balance of convenience and justice, Magistrate Judge
Dancks' finding that the Plaintiff’s choice of forum weighs
against transfer was not clearly erroneous or contrary to
law.

6. Judicial Efficiency and Interests of Justice
Finally, Defendant objects to Magistrate Judge Dancks'
finding that judicial efficiency and the interests of justice
do not weigh in favor of transfer relying on, and
incorporating by reference, its argument in its papers
in support of its underlying motion to transfer venue.
The Court finds that Magistrate Judge Dancks correctly
noted that Defendant failed to meet its burden to show
that the interests of justice weigh in favor of a transfer.
Accordingly, this finding is not clearly erroneous or
contrary to law.

7. The Remaining Factors
Magistrate Judge Dancks found that the remaining three
factors – the availability of process to compel attendance
of unwilling witnesses, the relative means of the parties,
and the comparative familiarity of each district with
governing law – are all neutral to the transfer analysis,
and Defendant fails to object to those findings. Moreover,
End of Document

after a review of the Magistrate Judge’s Order, the Court
finds that her findings in this regard are not clearly
erroneous or contrary to law.
After weighing all of the factors, the Court finds that
Magistrate Judge Dancks correctly concluded that the
balance of convenience and interests of justice favor venue
in the Northern District of New York. Accordingly,
Magistrate Judge Dancks' Order denying Defendant’s
motion to transfer venue to the Northern District of
California is not clearly erroneous or contrary to law.

B. Whether Magistrate Judge Dancks' Order Denying
Defendant’s Motion to Stay This Action is Clearly
Erroneous or Contrary to Law
The Court answers this question in the negative. Because
Magistrate Judge Dancks' denial of Defendant’s motion
to transfer venue to the Northern District of California
is not clearly erroneous or contrary to law, her denial of
Defendant’s motion to stay this action pending resolution
of its motion to transfer venue as moot is likewise not
clearly erroneous or contrary to law.
Accordingly, it is
ORDERED that Defendant’s objections to the March
13, 2013, Order of Magistrate Judge Dancks denying
Defendant’s motions to transfer venue and for a stay (Dkt.
No. 38) are DENIED, and it is further
ORDERED that the March 13, 2013, Order of Magistrate
Judge Dancks (Dkt. No. 35) is AFFIRMED.

DATED: August 13, 2013.
All Citations
Not Reported in Fed. Supp., 2013 WL 12130430

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2013 WL 12130430

2013 WL 12130430
Only the Westlaw citation is currently available.
United States District Court, N.D. New York.
VIEW 360 SOLUTIONS LLC, Plaintiff,
v.
GOOGLE, INC., Defendant.
1:12-CV-1352(GTS/TWD)
|
Signed 08/13/2013
Attorneys and Law Firms
INNOVALAW, P.C., 1900 Ravinia Place, OF
COUNSEL: TIMOTHY E. GROCHOCINSKI, ESQ.,
AARON W. PURSER, ESQ., Orland Park, IL 60462,
Counsel for Plaintiff.
THE SIMON LAW FIRM, P.C., 800 Market Street, Suite
1700, OF COUNSEL: ANTHONY G. SIMON, ESQ.,
BENJAMIN A. ASKEW, ESQ., Saint Louis, MO 63101,
Counsel for Plaintiff.
LAW OFFICES OF DANIEL M. SLEASMAN,
One Crumitie Road, OF COUNSEL: DANIEL M.
SLEASMAN, ESQ., Albany, NY 12211, Counsel for
Plaintiff.
AKIN GUMP STRAUSS HAUER & FELD, LLP, 1333
New Hampshire Avenue, N.W., OF COUNSEL: CONO.
A. CARRANO, ESQ., DAVID C. VONDLE, ESQ.,
Washington, D.C. 20036, Counsel for Defendant.
HISCOCK & BARCLAY, LLP, One Park Place,
300 South State Street, OF COUNSEL: DOUGLAS
J. NASH, ESQ., Syracuse, NY 13202, Counsel for
Defendant.

MEMORANDUM-DECISION and ORDER
HON. GLENN T. SUDDABY, United States District
Judge
*1 Currently before the Court in this patent infringement
action are Defendant’s objections to the March 13,
2013 Order of Magistrate Judge Thérèse Wiley Dancks
denying Defendant’s motions to transfer venue to the
United States District Court for the Northern District of

California and to stay this action pending a decision on
its venue motion (“the Order”). For the reasons set forth
below, Defendant’s objections are denied and Magistrate
Judge Dancks' Order is affirmed in its entirety.

I. RELEVANT BACKGROUND
A. Procedural History
Plaintiff, View 360 Solutions, Inc., commenced this
action against Defendant, Google, Inc., on August 31,
2012. Plaintiff’s Complaint alleges eight counts of direct
and induced infringement of eight separate patents,
regarding which Plaintiff has an exclusive license to
enforce and sue infringers. (Dkt. No. 1.) Generally,
the Complaint alleges that Defendant’s product, Google
Street View, infringes the underlying patents. In its
Answer, Defendant asserts sixteen counter-claims seeking
a declaratory judgment of non-infringement, invalidity
and unenforceability regarding each of the patents. (Dkt.
No. 19.)
In January 2013, the parties submitted a case management
plan wherein Defendant indicated its intent to file a
motion to transfer venue of this action to the Northern
District of California pursuant to 28 U.S.C. § 1404(a) as
well as a motion to stay this action pending resolution
of the venue motion. (Dkt. No. 21.) Two weeks later,
Defendant filed its motions to transfer venue and to
stay this action. Plaintiff opposed both motions and,
with permission of Magistrate Judge Dancks, Defendant
replied. (Dkt. Nos. 25, 26, 28, 30, 34.) On March 13, 2013,
Magistrate Judge Dancks denied both motions. (Dkt. No.
35.) This timely appeal followed. (Dkt. No. 38.)

B. Factual Background
Plaintiff is a New York limited liability company with its
principal place of business in Frisco, Texas. Defendant is a
Delaware corporation with its principal place of business
in Mountain View, California. The sole named inventor
of each of the patents underlying this action is Ford Oxaal
(“Oxaal”), who currently resides in Cohoes, New York.
Oxaal declares that he has resided in the Northern District
of New York for twenty-two years, which is where he
conceived of and reduced to practice all of the inventions
claimed in the patents underlying this action. (See Dkt.
No. 30-1 [Decl. of Ford Oxaal, Feb. 19, 2013].) Oxaal
formed and operates Minds-Eye View, Inc. (“MEV”) in

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the Northern District of New York, of which he and his
wife are the only employees. MEV has developed and
sold software applications that were marked as being
covered by several of the patents-in-suit underlying this
action. Oxaal granted Plaintiff an exclusive licence to
enforce the underlying patents and sue infringers. Plaintiff
incorporated in New York on August 7, 2012.
Oxaal declares that, if this matter proceeds in the
Northern District of New York, he intends to testify at
trial. Oxaal further declares that travel to the Northern
District of California would be very burdensome and
inconvenient to him and to MEV. According to Oxaal, he
possesses hard copy and electronic documents pertaining
to the patents-in-suit and MEV. In addition to these
documents, Oxaal also possesses models, drawing and
paintings that may pertain to the patents-in-suit, which
are very difficult to transport. Oxaal further declares
that shipping of these materials to the Northern District
of California would be very difficult and may result in
damage to them.
*2 Defendant’s engineering manager, Allen Hutchinson
(“Hutchinson”) declares generally that the teams
responsible for research, design and development for
Google Street View are primarily led by Defendant’s
employees at its facilities in Mountain View, California,
which is located in the Northern District of California.
Hutchinson specifically identifies four such employees,
including himself, that Defendant expects to provide
testimony in this case. Hutchinson also declares that
Defendant’s business documents and records related
to the research, design and development of Google
Street View are either physically present or electronically
accessible in Mountain View, California. Hutchinson goes
on to declare that “[a]ll or nearly all of the documents and
highly proprietary information and source code relating
to Google Street View are stored in [Defendant’s] various
data centers, which are accessible and ultimately managed
from Mountain View, California.” (Dkt. No. 25-3, at ¶ 5
[Decl. of Allen Hutchinson, Jan. 24, 2013].)

C. Defendant’s Motion to Transfer Venue
Generally, in support of its motion to transfer venue to the
Northern District of California, Defendant argued that
(1) this case could have been brought in the Northern
District of California and (2) the balance of convenience
and justice favors transfer to that district. Specifically,
Defendant argued, among other things, that Plaintiff’s

choice of forum should not be given any weight in the
transfer analysis because it incorporated in New York less
than four weeks before it commenced this action and none
of the operative facts or events giving rise to Plaintiff’s
claims occurred in the Northern District of New York.
Defendant also argued that the convenience of witnesses,
the convenience of the parties, the location of relevant
documents and the relative ease of access to those sources
of proof, the location of operative events, and judicial
efficiency all weigh in favor of transferring this action to
the Northern District of California. (See Dkt. No. 25-1, at
5-15 [Def.'s Mem. of Law].)
Generally, in response to Defendant’s motion, Plaintiff
argued that Defendant’s motion to transfer venue should
be denied because (1) Plaintiff’s choice of forum is entitled
to great weight, (2) the convenience of parties, availability
of process to compel attendance of non-party witnesses
and judicial efficiency weigh against transfer of this
action to the Northern District of California, and (3)
the remainder of the factors are neutral to the transfer
analysis. (Dkt. No. 30, at 3-12 [Pl.'s Mem. of Law].)
Generally, in its reply memorandum of law, Defendant
argued that its motion to transfer venue should be granted
because (1) Plaintiff’s choice of venue should be afforded
little weight, (2) all of the witnesses except one are
located outside of the Northern District of New York,
(3) Defendant is significantly more inconvenienced by
litigating in the Northern District of New York than
Plaintiff would be in the Northern District of California,
(4) most of the relevant proof is located in the Northern
District of California, (5) nearly all of the operative
facts are in the Northern District of California, (6)
the majority of non-party witnesses could be compelled
to attend trial in the Northern District of California,
and (7) judicial efficiency and the Northern District of
California’s interest in this case weigh in favor of transfer.
(Dkt. No. 34, at 1-9 [Def’s. Reply Mem. of Law].)

D. Defendant’s Motion to Stay This Action
Generally, in support of its motion to stay this action
pending resolution of its motion to transfer venue to the
Northern District of California, Defendant argued that
the Federal Circuit Court of Appeals' recent order in In
re Fusion-IO, Inc., 489 Fed.Appx. 465 (Fed. Cir. 2012)
recommends that a short stay of proceedings is the proper
vehicle to limit prejudice and inconvenience to the parties

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while they await a decision on threshold issues such as
proper venue. (See Dkt. No. 26-1 [Def.'s Mem. of Law].)
*3 Generally, in response to Defendant’s motion,
Plaintiff argued that Defendant failed to meet its burden
to demonstrate that a stay is necessary. (See Dkt. No. 28
[Pl.'s Mem. of Law].)

E. The Order
Generally, in deciding the motions to transfer venue and
to stay this action, Magistrate Judge Dancks concluded
that this action might have been brought in the Northern
District of California and that the balance of convenience
and justice weighs against transfer. In weighing the
balance of convenience and justice, Magistrate Judge
Dancks concluded that while the location of relevant
proof weighs slightly in favor of transfer, judicial
efficiency and the weight afforded to Plaintiff’s choice of
forum weigh against transfer and the remaining factors
are neutral to the analysis. Accordingly, Magistrate Judge
Dancks denied Defendant’s motion to transfer venue.
Having denied Defendant’s motion to transfer venue,
Magistrate Judge Dancks denied the motion to stay this
action as moot. (Dkt. No. 35, at 3-14 [the Order].)
The pending objections followed.

II. Defendant’s Objections
Generally, in support of its objections to the Order,
Defendant argues that Magistrate Judge Dancks
committed legal error in her analysis of the following
five transfer factors: (1) the convenience of the parties,
(2) the convenience of the witnesses, (3) the locus of
operative facts, (4) the location of relevant documents,
and (5) Plaintiff’s choice of forum, all of which weigh in
favor of transferring this action to the Northern District
of California. Defendant also argues that the judicial
efficiency factor weighs in favor of transfer, relying on its
argument in its papers in support of its motion to transfer
venue. Regarding its motion to stay this action, Defendant
argues that a stay is warranted to prevent prejudice and
promote judicial economy while the motion to transfer
is pending. (See Dkt. No. 38-1, at 1-20 [Def.'s Mem. of
Law].)
In response, Plaintiff argues generally that Defendant’s
objections should be denied because (1) Plaintiff’s choice
of forum is entitled to great weight and weighs against

transfer, (2) the location of relevant proof at best weighs
only slightly in favor of transfer and at the very least
is neutral to the analysis, and (3) the convenience of
witnesses, convenience of the parties, loci of operative
facts and availability to compel attendance of non-party
witnesses are neutral to the analysis. (See Dkt. No. 39, at
1-8 [Pl.'s Mem. of Law].)

III. Relevant Legal Standards
A. Legal Standard Governing Objections to the Order
of a Magistrate Judge
In reviewing timely objections to a magistrate judge’s
non-dispositive order, 1 the court “must modify or set
aside any part of the order that is clearly erroneous or is
contrary to law.” Fed. R. Civ. P. 72(a). A finding is clearly
erroneous if “ ‘on the entire evidence,’ [the reviewing
court] is ‘left with the definite and firm conviction that a
mistake has been committed.’ ” Snyder v. Louisiana, 552
U.S. 472, 487, 128 S. Ct. 1203, 1213 (2008) (citing Easley
v. Cromartie, 532 U.S. 234, 242, 121 S. Ct. 1452 (2001)
(quoting United States v. United States Gypsum Co., 333
U.S. 364, 395, 68 S. Ct. 525 (1948))). An order is contrary
to law “if it fails to apply or misapplies relevant statutes,
case law or rules of procedure.” New York v. Salazar, No.
6:08-CV-644, 2011 WL 1938232, at *4 (N.D.N.Y. Mar. 8,
2011).
1

Courts in this District view orders on motions to
transfer venue as non-dispositive. See Glover v. Goord,
No. 06-CV-1037, 2007 WL 2454193 (N.D.N.Y. Aug.
22, 2007) (Kahn, J.); White Mop Wringer Co. of
Canada Ltd. v. BT Capital Partners, Inc., No. 95CV-565, 1997 WL 222380, at *1 (N.D.N.Y. Apr.
29, 1997) (Pooler, J.); Pemrick v. Stracher, No. 90CV-849, 1992 WL 697636, at *1 (N.D.N.Y. Mar. 27,
1992) (McAvoy, C.J.).

B. Legal Standard Governing a Motion to Transfer
Venue
*4 A district court may decide to transfer an action
to another district in the interest of justice and for the
convenience of the parties and witnesses. See 28 U.S.C. §
1404(a) (“For the convenience of the 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.”); see also Ferens v. John
Deere Co., 494 U.S. 516, 530 (1990); Lead Indus. Ass'n
v. Occupational Safety & Health Admin., 610 F.2d 70, 79

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n.17 (2d Cir. 1979) (citing cases); Kelly v. Kelly, 911 F.
Supp. 70, 71 (N.D.N.Y. 1996). “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 expense.” Flaherty v. All
Hampton Limousine, Inc., 01-CV-9939, 2002 WL 1891212,
at *1 (S.D.N.Y. Aug. 16, 2002) (internal quotation marks
omitted). When considering whether to transfer a case, a
district court must conduct “a two-part test: (1) whether
the action to be transferred might have been brought
in the transferee venue; and (2) whether the balance of
convenience and justice favors transfer.” Advanced Fiber
Tech. Trust v. J & L Fiber Serv. Inc., 07-CV-1191, 2008 WL
4890377, at *1 (N.D.N.Y. Nov. 12, 2008) (Homer, M.J.).

IV. Analysis
A. Whether Magistrate Judge Dancks' Order Denying
Defendant’s Motion to Transfer This Action to the
Northern District of California Is Clearly Erroneous or
Contrary to Law
The Court answers this question in the negative, in part for
the reasons stated in Plaintiff’s abbreviated memorandum
of law. (Dkt. No. 39, at 1-8 [Pl.'s Mem. of Law].) The
Court would add the following analysis.
Neither party disputes that this action might have
been brought in the Northern District of California.
However, the parties disagree regarding whether the
balance of convenience and justice favors transfer. To
that end, Defendant argues that Magistrate Judge Dancks
misapplied the law when she weighed six of the factors
in the transfer analysis: (1) convenience of witnesses, (2)
convenience of parties, (3) location of relevant documents
and relative ease of access to those sources of proof,
(4) locus of the operative events in issue, (5) weight
accorded to Plaintiff’s choice of forum, and (6) judicial
efficiency and interests of justice. Defendant argues that
each of these factors weighs in favor of transfer, and
that, since Magistrate Judge Dancks found that the
remaining three factors are neutral, a balance of the
factors warrants transfer of this action to the Northern
District of California.
Once it has been established that the action might have
been brought in the transferee district, the resolution of a
motion to transfer venue lies “within the broad discretion
of the district court and [is] determined upon notions
of convenience and fairness on a case-by-case basis.”

Amersham Pharmacia Biotech, Inc. v. Perkin-Elmer Corp.,
11 F. Supp. 2d 729, 730 (S.D.N.Y. 1998). A non-exclusive
list of factors courts routinely consider in making this
determination include the following:

(1) the convenience of witnesses; (2)
the convenience of the parties; (3)
the location of relevant documents
and the relative ease of access to
those sources of proof; (4) the situs
of the operative events in issue;
(5) the availability of process to
compel the attendance of unwilling
witnesses; (6) the relative means
of the parties; (7) the comparative
familiarity of each district with
the governing law; (8) the weight
accorded a plaintiff’s choice of
forum; and (9) judicial efficiency and
the interests of justice.

Amersham Pharmacia Biotech, Inc., 11 F. Supp. 2d at 730.
“No individual factor is determinative and a court has
discretion to weigh each factor to reach a fair result.” Id.
Moreover, it is important to note that the party requesting
transfer bears the burden of making a clear and convincing
showing that transfer is warranted in light of these factors.
See EasyWeb Innovations, LLC v. Facebook, Inc., 888 F.
Supp. 2d 342, 348 (E.D.N.Y. 2012) (citing Factors Etc.,
Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978),
abrogated on other grounds by, Pirone v. MacMillan, Inc.,
894 F.2d 579, 585 (2d Cir. 1990)). See also Hubbell Inc.
v. Pass & Seymour, Inc., 883 F. Supp. 955, 962 (S.D.N.Y.
1995).

1. Convenience of Witnesses
*5 “Convenience of both party and non-party witnesses
is probably the single-most important factor in the
analysis of whether transfer should be granted.” In re
Bennett Funding Group, Inc., 259 B.R. 243, 249 (N.D.N.Y.
2001). While the convenience of party witnesses is
certainly relevant, courts may weigh more heavily the
convenience of non-party witnesses in conducting this
analysis. See CYI, Inc. v. Ja-Ru, Inc., No. 12-CV-2230,
2012 WL 6646188, at *5 (S.D.N.Y. Dec. 21, 2012);

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Pecorino v. Vutec Corp., No. 11-CV-6313, 2012 WL
5989918, at *8 (E.D.N.Y. Nov. 30, 2012). An evaluation
of this factor involves “more than a mere tally of
witnesses who reside in the current forum in comparison
to the number located in the proposed transferee forum.”
Advanced Fiber, 2008 WL 4890377, at *2. Rather, the
Court should “qualitatively evaluate the materiality of
the testimony that witnesses may provide.” Id.; see also
The Research Found. of State Univ. of New York v.
Luminex Corp., No. 07-CV-1260, 2008 WL 4822276, at
*3 (N.D.N.Y. Nov. 3, 2008) (“Courts should consider
both the number of witnesses located in a given venue
and the relative salience of their testimony.”). “Generally,
the moving party submits an affidavit explaining why the
transferee forum is more convenient, which includes ‘the
potential principal witnesses expected to be called and
the substance of their testimony.’ ” EasyWeb Innovations,
888 F. Supp. 2d at 350 (citing Pall Corp. v. PTI Techs.,
Inc., 992 F. Supp. 196, 198 (E.D.N.Y. 1998) (quoting
Laumann Mfg. Corp. v. Castings USA Inc., 913 F. Supp.
712, 720 (E.D.N.Y. 1996)).) See also Factors Etc., 579 F.2d
at 218 (“When a party seeks the transfer on account of the
convenience of witnesses under § 1404(a), he must clearly
specify the key witnesses to be called and must make a
general statement of what their testimony will cover.”)
In support of its motion to transfer venue, Defendant
offers the Declaration of Allen Hutchinson. (See Dkt.
No. 25-3, at [Decl. of Allen Hutchinson, Jan. 24, 2013].)
In his declaration, Hutchinson, an engineering manager
for Defendant, specifically identifies only four potential
party witnesses that are knowledgeable regarding various
specific aspects of Google Street View. (Id. at ¶ 4ad.) Each of the witnesses are located in the Northern
District of California. (Id.) In its memorandum of law
in support of transfer, Defendant identifies “two prior
art references that appear to be relevant to [its] invalidity
defense at companies located in the Northern District of
California.” (Dkt. No. 25-1, at 9 [Def.'s Mem. of Law].)
Defendant also asserts that there are four non-party
prosecuting attorneys who are located in Texas, Virginia
and Florida. In Plaintiff’s opposition to Defendant’s
motion, Plaintiff specifically identifies only one nonparty witness, the sole inventor of the patents-in-suit,
Mr. Oxaal. By declaration, Oxaal states that he resides
in the Northern District of New York and operates his
business there, of which Oxaal and his souse are the only
employees. Oxaal further declares that he conceived of
and reduced to practice all of the inventions underlying the

patents-in-suit. Finally, Oxaal declares that he intends to
testify at trial in this matter and that travel to the Northern
District of California would be very burdensome and
inconvenient to him and MEV.
In finding that this factor is neutral to the transfer analysis,
Magistrate Judge Dancks relied on this Court’s decision in
Defenshield Inc. v. First Choice Armor & Equipment, Inc.,
No. 10-CV-1140, 2012 WL 1069088, at *12 (N.D.N.Y.
Mar. 29, 2012). In Defenshield, the defendant identified
only two potential witnesses and the plaintiff identified
nine witnesses, including the named inventor of the
underlying patent. However, keeping in mind that “this
factor is ‘more than a mere tally of witnesses,’ ” the Court
in Defenshield found this factor to be neutral, “because the
parties' potential witness appear to offer equally material
information.” Defenshield, 2012 WL 1069088, at *12
(quoting Advanced Fiber Techn. Trust, 2008 WL 4890377,
at *2). Defendant argues that here, Magistrate Judge
Dancks erroneously found that one non-party witness in
this District neutralized numerous party and non-party
witnesses outside the District. Defendant goes on to note
the rule of law that “analysis of this factor requires both
a tallying of witnesses and a qualitative evaluation of the
materiality of the witness[e]s' testimony” but then argues
that “[b]ased solely on the number of witnesses identified
by the parties, this factor clearly warrants transfer.” (Dkt.
No. 38-1, at 9.) To be sure, Defendant also argues that
a qualitative analysis of these witnesses favors transfer,
relying on argument in its original moving papers that
in a patent infringement action, the key witnesses are
those who are involved in the design, production and
sale of products. However, as Magistrate Judge Dancks
noted, Mr. Oxaal, the only non-party witness identified
with specificity, conceived of and reduced to practice
the inventions underlying each of the patents-in-suit.
In contrast, Defendant only specifically identified four
witnesses, each of whom is a party-witness.
*6 Keeping in mind that courts have broad discretion
in balancing the transfer factors, that courts may weigh
the convenience of non-party witnesses more heavily than
party witnesses, that the moving party bears the burden of
a clear and convincing showing that transfer is warranted,
and that both a tallying of witnesses and a qualitative
evaluation of the materiality of their testimony is required,
Magistrate Judge Dancks' finding in this case that the
convenience of witnesses factor is neutral to the transfer
analysis was not clearly erroneous or contrary to law.

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2. Convenience of Parties
Defendant is a Delaware corporation, with offices in
Mountain View, California and Plaintiff is a New York
corporation, with its principal place of business in Frisco,
Texas. Magistrate Judge Dancks found that this factor
is neutral because for the same reason it would be
inconvenient for Plaintiff to travel to the Northern District
of California, it would be inconvenient for Defendant to
travel to the Northern District of New York. Defendant
argues that because transfer would alleviate unnecessary
inconvenience to it without any additional inconvenience
to Plaintiff, Magistrate Judge Dancks committed legal
error when she weighed this factor in favor of transfer.
Defendant cites In re Microsoft Corp., 630 F.3d 1361
(Fed. Cir. 2011) for support. However, in that case,
the plaintiff was a company that was operated in part
by the co-inventor of the patent it sought to enforce
against Microsoft. While the principal place of plaintiff’s
business was in the United Kingdom, it maintained an
office in Tyler, Texas. The court in In re Microsoft
held that plaintiff’s transfer of documents to its Texas
office in anticipation of litigation, where the Texas office
staffed no employees and was established recently and
in anticipation of litigation, was merely an attempt to
manipulate venue. See In re Microsoft, 630 F.3d at
1364-65. Here, Plaintiff is a company whose purpose is
to enforce patent rights. Oxaal, the sole inventor of each
of the patents that Plaintiff seeks to enforce here, resides
in this District and maintains documents and models
regarding his conception and reduction to practice of the
underlying inventions in this District. Accordingly, Judge
Dancks' finding that the convenience of the parties factor
is neutral to the transfer analysis is not clearly erroneous
or contrary to law.

3. Location of Relevant Documents and Relative
Ease of Access to Those Sources of Proof
“The location of relevant documents once carried
significant weight in this analysis and in patent
infringement cases is usually produced from the
accused infringer.” Advanced Fiber Techn. Trust,
2008 WL 4890377, at *4 (internal quotation marks
omitted). “Consequently, the place where the defendant’s
documents are kept weighs in favor of transfer to that

location.” Id. (internal quotation marks omitted). In
evaluating the significance of the location of relevant
documents, the location of the defendant’s documents
weighs in favor of venue being laid in that location,
because in a patent infringement action, the bulk of
the relevant evidence is in the possession of the accused
infringer. See In re Genentech, Inc., 566 F.3d 1338, 1345
(Fed. Cir. 2009).
Magistrate Judge Dancks found this factor weighs
only slightly in favor of transfer, relying on EasyWeb
Innovations, LLC v. Facebook, Inc., 888 F. Supp. 2d
342 (E.D.N.Y. 2012). In EasyWeb, the court noted
that this factor is not “particularly significant given the
technological age in which we live, with the widespread use
of, among other things, electronic document production.”
EasyWeb, 888 F. Supp. 2d at 352 (citing Am. S.S.
Owners Mut. Prot. and Indem. Ass'n, Inc. v. Lafarge N.
Am., Inc., 474 F. Supp. 2d 474, 484 (S.D.N.Y. 2007))
( “The location of relevant documents is largely a neutral
factor in today’s world of faxing, scanning, and emailing
documents.”); Distefano v. Carozzi N. Am., Inc., No. 98
Civ. 7137(SJ), 2002 WL 31640476, at *4 (E.D.N.Y. Nov.
16, 2002) (“Although the location of relevant documents is
entitled to some weight when determining whether a case
should be transferred, modern photocopying technology
deprives this issue of practical or legal weight.” (citations
omitted)). Defendant argues that this was legal error since
the Federal Circuit “expressly rejected” this rationale in
In re TS Tech USA Corp., 551 F.3d 1315 (Fed. Cir.
2008) (applying Fifth Circuit law). In In re TS Tech, the
Federal Circuit noted that the Court of Appeals for the
Fifth Circuit, whose law governed the underlying District
Court’s decision, explained that the fact “that access to
some sources of proof presents a lesser inconvenience now
than it might have absent recent developments does not
render this factor superfluous.” In re TS Tech., 551 F.3d at
1321 (quoting In re Volkswagen of America, Inc., 545 F.3d
304, 316 (5 th Cir. 2008)). The court went on to conclude
that, because all of the physical evidence, including some
automobile equipment and documentary evidence, are far
more conveniently located near the transferee district, the
district court erred in not weighing this factor in favor
of transfer. See In re TS Tech, 551 F.3d at 1321. Here,
Defendant, who has the burden to show that a transfer
is warranted, did not clearly show that any physical
evidence exists in the Northern District of California.
In contrast, Plaintiff has shown that the sole inventor
possesses hard copy documents, models, drawings and

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paintings pertaining to the patents-in-suit in this District.
Accordingly, Magistrate Judge Dancks' finding that this
factor weighs only slightly in favor of Defendant is not
clearly erroneous or contrary to law.

4. Locus of the Operative Events in Issue
*7 Operative facts in a patent infringement action
include those relating to the design, development, and
production of a patented product. See Fuji Photo Film
Co., Ltd. v. Lexar Media, Inc., 415 F. Supp. 2d 370,
375 (S.D.N.Y. 2006); Invivo Research, Inc. v. Magnetic
Resonance Equipment Corp., 119 F. Supp. 2d 433, 439
(S.D.N.Y. 2000) (citing Bionx Implants, Inc. v. Biomet,
Inc., No. 99-CV-0740, 1999 WL 342306, at *4 (S.D.N.Y.
May 27, 1999)). Similar information regarding the
allegedly infringing product is also vital in adjudicating
an infringement suit. See Amersham Pharmacia Biotech,
Inc., 11 F. Supp. 2d at 730. Also relevant to consideration
of this factor is the area in which the allegedly infringing
device was sold or offered for sale. See Invivo Research,
Inc., 119 F. Supp.2d at 439. However, “[w]here a
party’s products are sold in many states, sales alone
are insufficient to establish a material connection to the
forum and to override other factors favoring transfer.” Id.
(quoting Bionx Implants, 1999 WL 342306, at *4 (citations
omitted)). As a result, venue analysis may demonstrate
that there are multiple loci of operative facts. See Atl.
Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d
690, 696-97 (S.D.N.Y. 2009); Adams v. Key Tronic Corp.,
No. 94-CV-0535, 1997 WL 1864, at *4, n.1 (S.D.N.Y.
Jan. 2, 1997); Kwatra v. MCI, Inc., No. 96-CV-2491, 1996
WL 694444, at *3-4 (S.D.N.Y. Dec. 3, 1996). Thus, while
certainly an important factor, the situs of development
of the infringing device is not alone determinative. See
Defenshield, 2012 WL 1069088, at *13 (citing Amersham
Pharmacia Biotech, Inc., 11 F. Supp. 2d at 730).
Magistrate Judge Dancks found that this factor is neutral,
noting that both this District and the transferee District
are loci of operative facts. Defendant argues that this
was error because the Magistrate Judge was required to
weigh the connection of operative events and facts to each
district and determine which is stronger, citing Wagner
v. New York Marriott Marquis, 502 F. Supp. 2d 312,
316 (N.D.N.Y. 2007) (finding that stronger connection
between the operative facts and the transferee district
“cannot be denied”). However, in reaching her conclusion

that this factor is neutral, Magistrate Judge Dancks
considered both Defendant’s assertion that the transferee
District is the situs of operative events because that
is where the design and development of Google Street
View took place and Plaintiff’s assertion that this District
is the situs of operative events because this is where
Oxaal conceived of and reduced to practice the inventions
underlying the patents-in-suit. While the court in Wagner
found that the facts of that case warranted a finding
that there was a stronger connection to the transferee
District, other courts have found that where there are
loci of operative events that equally favor both districts,
the factor is neutral to the analysis. See Defenshield, 2012
WL 1069088, at 13; EasyWeb, 888 F. Supp. 2d at 354.
Accordingly, Magistrate Judge Dancks' finding that this
factor is neutral to the transfer analysis was not clearly
erroneous or contrary to law.

5. Weight Accorded to Plaintiff’s Choice of Forum
Generally, “[a] plaintiff’s choice of forum is entitled to
considerable weight and should not be disturbed unless
other factors weight strongly in favor of transfer.” Neil
Bros. Ltd. v. World Wide Lines, Inc., 425 F. Supp. 2d 325,
333 (E.D.N.Y. 2006); see also Iragorri v. United Techs.
Corp., 274 F.3d 65, 70-71 (2d Cir. 2001) (“[U]nless the
balance is strongly in favor of the defendant, the plaintiff’s
choice of forum should rarely be disturbed.” (internal
quotation marks omitted.)). “However plaintiff’s choice
of forum is not entitled to great weight when the operative
facts have little or no connection with the transferor
forum, or when the plaintiff does not reside in his chosen
forum.” Neil Bros. Ltd., 425 F. Supp. 2d at 333.
*8 Magistrate Judge Dancks found that this factor
weighs against transfer because Plaintiff is incorporated
in this state, maintains a preference for litigating in
this forum, and the patents-in-suit were designed in
this forum by Mr. Oxaal, who resides here. Moreover,
Magistrate Judge Dancks noted that the place where an
invention was developed is considered a locus of operative
facts. Defendant argues that Magistrate Judge Dancks
committed legal error in affording deference to Plaintiff’s
choice of forum because, according to prevailing caselaw
and the facts of this case, Plaintiff is not entitled to such
deference.

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While it is true that the Plaintiff’s choice of forum is no
longer decisive, it is entitled to great weight unless the
operative facts have little or no connection to Plaintiff’s
chosen forum or the Plaintiff does not reside in the
forum. Here, while the latter may be true, that Plaintiff, a
corporation with its principal place of business in Texas,
does not reside in this forum, for the same reasons that
Magistrate Judge Dancks found that this District is a
locus of operative events, there is a connection between
this forum and the underlying facts of this action. Given
the broad discretion afforded the Court in weighing the
balance of convenience and justice, Magistrate Judge
Dancks' finding that the Plaintiff’s choice of forum weighs
against transfer was not clearly erroneous or contrary to
law.

6. Judicial Efficiency and Interests of Justice
Finally, Defendant objects to Magistrate Judge Dancks'
finding that judicial efficiency and the interests of justice
do not weigh in favor of transfer relying on, and
incorporating by reference, its argument in its papers
in support of its underlying motion to transfer venue.
The Court finds that Magistrate Judge Dancks correctly
noted that Defendant failed to meet its burden to show
that the interests of justice weigh in favor of a transfer.
Accordingly, this finding is not clearly erroneous or
contrary to law.

7. The Remaining Factors
Magistrate Judge Dancks found that the remaining three
factors – the availability of process to compel attendance
of unwilling witnesses, the relative means of the parties,
and the comparative familiarity of each district with
governing law – are all neutral to the transfer analysis,
and Defendant fails to object to those findings. Moreover,
End of Document

after a review of the Magistrate Judge’s Order, the Court
finds that her findings in this regard are not clearly
erroneous or contrary to law.
After weighing all of the factors, the Court finds that
Magistrate Judge Dancks correctly concluded that the
balance of convenience and interests of justice favor venue
in the Northern District of New York. Accordingly,
Magistrate Judge Dancks' Order denying Defendant’s
motion to transfer venue to the Northern District of
California is not clearly erroneous or contrary to law.

B. Whether Magistrate Judge Dancks' Order Denying
Defendant’s Motion to Stay This Action is Clearly
Erroneous or Contrary to Law
The Court answers this question in the negative. Because
Magistrate Judge Dancks' denial of Defendant’s motion
to transfer venue to the Northern District of California
is not clearly erroneous or contrary to law, her denial of
Defendant’s motion to stay this action pending resolution
of its motion to transfer venue as moot is likewise not
clearly erroneous or contrary to law.
Accordingly, it is
ORDERED that Defendant’s objections to the March
13, 2013, Order of Magistrate Judge Dancks denying
Defendant’s motions to transfer venue and for a stay (Dkt.
No. 38) are DENIED, and it is further
ORDERED that the March 13, 2013, Order of Magistrate
Judge Dancks (Dkt. No. 35) is AFFIRMED.

DATED: August 13, 2013.
All Citations
Not Reported in Fed. Supp., 2013 WL 12130430

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2013 WL 998379

2013 WL 998379
Only the Westlaw citation is currently available.
United States District Court,
N.D. New York.
VIEW 360 SOLUTIONS LLC, Plaintiff,
v.
GOOGLE, INC., Defendant.
No. 1:12–CV–1352 (GTS/TWD).
|
March 13, 2013.

below, I deny the motion to transfer, as well as the motion
to stay.

I. FACTUAL AND PROCEDURAL SUMMARY
View 360 Solutions, LLC (“Plaintiff”) filed a complaint
against Google, Inc. (“Defendant”) for infringement of
eight U.S. patents on August 31, 2012. (Dkt. No. 1 at 1.)
In its complaint, Plaintiff asserts that Google Street View
directly infringed upon its rights to the patents-in-suit; as
such, the complaint lists eight counts of direct and indirect
patent infringement. (See Dkt. No. 1.) Plaintiff further
accuses Defendant of inducing end users of Google Street
View to infringe the patents-in-suit. Id.

Attorneys and Law Firms
Innovalaw, P.C., Timothy E. Grochocinski, Esq., Aaron
W. Purser, Esq., of Counsel, Orlando Park, IL, for
Plaintiff.
Simon Law Firm, Benjamin R. Askew, Esq., Michael P.
Kella, Esq., Anthony G. Simon, Esq., of Counsel, St.
Louis, MO, for Plaintiff.
Office of Daniel M. Sleasman, Daniel M. Sleasman, Esq.,
of Counsel, Albany, NY, for Plaintiff.
Akin, Gump Law Firm, Cono A. Carrano, Esq., David
C. Vondle, Esq., of Counsel, Washington, D.C., for
Defendant.
Hiscock & Barclay, LLP, Douglas J. Nash, Esq., of
Counsel, Syracuse, NY, for Defendant.

DECISION and ORDER
THÉRÈSE WILEY DANCKS, United States Magistrate
Judge.
*1 Plaintiff View 360 Solutions, LLC, a New York
limited liability company with its principal place
of business in Texas, brings this action for patent
infringement under Title 35 of the United States Code.
Currently before the Court is Defendant's motion to
transfer venue. (Dkt. No. 25–1.) Plaintiff opposed the
motion. (Dkt. No. 30.) Defendant filed a reply brief in
support of its motion. (Dkt. No. 34.) Defendant also filed
a motion to stay proceedings while this motion to transfer
venue is pending. (Dkt. No. 26.) Plaintiff opposed the
motion to stay. (Dkt. No. 28.) For the reasons set forth

Mr. Ford Oxaal is the sole inventor listed on the eight
patents-in-suit, and he conceived of and reduced to
practice the claimed inventions in the patents in the
Northern District of New York. (Dkt. No. 30–1 at ¶¶ 2–
6.) Plaintiff claims that Mr. Oxaal granted it an exclusive
license to the patents-in-suit. (Dkt. No. 30 at 1. 1 )
1

Page numbers in citations to Plaintiff's memorandum
of law in opposition to Defendant's motion to transfer
venue refer to the page numbers in the original
document.

Defendant filed the motion to transfer venue to the
Northern District of California and motion to stay on
March 7, 2013. (Dkt. No. 25 at 1; Dkt. No. 26 at 1.)

II. ANALYSIS
“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.” 28 U .S.C. § 1404(a) (West Supp.2012).
The purpose of section 1404(a) “is to prevent waste of
time, energy and money and to protect litigants, witnesses
and the public against unnecessary inconvenience and
expense.” Blechman v. Ideal Health, Inc., 668 F.Supp.2d
399, 403 (E.D.N.Y.2009) (quoting Van Dusen v. Barrack,
376 U.S. 612, 616 (1964)). “[M]otions for transfer lie
within the broad discretion of the district court and are
determined upon notions of convenience and fairness on a
case-by-case basis.” In re Cuyahoga Equip. Corp., 980 F.2d
110, 117 (2d Cir.1992) (citing Stewart Org., Inc. v. Ricoh
Corp., 487 U.S. 22, 29 (1988)).

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2013 WL 998379

“Motions to transfer venue are governed by a two-part
test: (1) whether the action to be transferred ‘might have
been brought’ in the transferee venue; and (2) whether
the balance of convenience and justice favors transfer.”
Rescuecom Corp. v. Chumley, 522 F.Supp.2d 429, 448–
49 (N.D.N.Y.2007). The moving party has the burden
of demonstrating the desirability of transfer, and a court
should not disturb a plaintiff's choice of forum “unless
Defendants make a clear and convincing showing that
the balance of convenience favors [their] choice.” Hubbell
Inc. v. Pass & Seymour, Inc., 883 F.Supp. 955, 962
(S.D.N.Y.1995).

A. “Might Have Been Brought”
*2 To establish that an action “might have been brought”
in the transferee venue, the moving party must establish
that (a) venue is proper in the transferee venue; and (b)
the transferee venue had personal jurisdiction over the
defendant on the date the action was commenced. Anglo
Am. Ins. Grp., P.L. C. v. CalFed Inc., 916 F.Supp. 1324,
1330 (S.D.N.Y.1996).
The relevant federal venue statute provides, in pertinent
part:

A civil action may be brought in
(1) a judicial district in which any
defendant resides, if all defendants
are residents of the State in which
the district is located; (2) a judicial
district in which a substantial part of
the events or omissions giving rise to
the claim occurred, or a substantial
part of property that is the subject of
the action is situated; or (3) if there
is no district in which an action may
otherwise be brought as provided in
this section, any judicial district in
which any defendant is subject to
the court's personal jurisdiction with
respect to such action.

28 U.S.C. § 1391(b) (West Supp.2012). A defendant
corporation is deemed to reside “in any judicial district
in which such defendant is subject to the court's personal

jurisdiction with respect to the civil action in question....”
28 U.S.C. § 1391(c) (West Supp.2012).
Pursuant to 28 U.S.C. § 1391(c), Defendant contends that
Plaintiff could have filed suit in the Northern District of
California. (Dkt. No. 25–1 at 5.) Plaintiff concedes this
point in its opposition papers. (Dkt. No. 30 at 3 n. 2.)
Defendant, a corporate entity, “resides” in the Northern
District of California, because it is headquartered in and
is subject to personal jurisdiction in the judicial district.
Id. Moreover, “any civil action for patent infringement
may be brought in the judicial district where the defendant
resides, or where the defendant has committed acts of
infringement and has a regular and established place of
business.” 28 U.S.C. § 1400(b) (West Supp.2012). In the
instant case, Plaintiff brought a suit alleging direct and
indirect infringement of eight separate patents. (See Dkt.
No. 1.)
For the foregoing reasons, Defendant has met its burden
of showing that the suit “might have been brought” in the
Northern District of California at the outset of litigation.

B. The Balance of Convenience and Justice
Because this case “might have been brought” in the
proposed transferee district, the decision of whether to
transfer depends on the balance of convenience and
justice. As noted above, the Court has considerable
discretion and determines this balance on a case-by-case
basis. In re Cuyahoga Equip. Corp., 980 F.2d at 117. A
non-exclusive list of factors to consider includes:

(1) the convenience of witnesses; (2)
the convenience of the parties; (3)
the location of relevant documents
and the relative ease of access to
those sources of proof; (4) the situs
of the operative events in issue;
(5) the availability of process to
compel the attendance of unwilling
witnesses; (6) the relative means
of the parties; (7) the comparative
familiarity of each district with
the governing law; (8) the weight
accorded a plaintiff's choice of

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forum; and (9) judicial efficiency and
the interests of justice.

*3 Rescuecom, 522 F.Supp.2d at 449. “No individual
factor is determinative and a court has discretion to weigh
each factor to reach a fair result.” Id. (citations omitted).
The burden of establishing that transfer is appropriate is
on the moving party. Anglo Am. Ins. Grp., 916 F.Supp.
at 1327. The moving party “must support the application
with an affidavit containing detailed factual statements
relevant to the factors [to be considered by the court
in its transfer decision], including the potential principal
witnesses expected to be called and a general statement of
the substance of their testimony.” Hernandez v. Graebel
Van Lines, 761 F.Supp. 983, 987 (E.D.N.Y.1991).

1. Convenience of Non–Party Witnesses
“The convenience of party and nonparty witnesses is
usually the most important consideration in deciding a
motion to transfer venue.” AEC One Stop Grp., Inc.
v. CD Listening Bar, Inc., 326 F.Supp.2d 525, 529
(S.D.N.Y.2004). In assessing the convenience of witnesses,
courts routinely examine the residence of witnesses.
Argent Funds Grp., LLC v. Schutt, No. 3:05CV01456
(SRU), 2006 U .S. Dist. LEXIS 60469, at *14, 2006 WL
2349464, at *5 (D. Conn. June 27, 2006) (citing Golconda
Min. Corp. v. Herlands, 365 F.2d 856, 857 (2d Cir.1966)).
Moreover, the Court should “qualitatively evaluate the
materiality of the testimony that witnesses may provide .”
Defenshield, Inc. v. First Choice Armor & Equipment, Inc.,
No. 5:10–CV–1140 (GTS/DEP), 2012 U.S. Dist. LEXIS
44276, at *36, 2012 WL 1069088, at *11 (N.D.N.Y. Mar.
29, 2012) (quoting Advanced Fiber Tech. Trust v. J & L
Fiber Servs., Inc., No. 07–CV–1191 (LEK/DRH), 2008
U.S. Dist. LEXIS 91795, at *7, 2008 WL 4890377, at*3
(N.D.N.Y. Nov. 12, 2008)).
In support of its motion to transfer venue, Defendant
offers a declaration from Allen Hutchinson. (Dkt. No. 25–
3.) In his declaration, Mr. Hutchinson, an Engineering
Manager for the Street View team for the Defendant,
identifies four potential witnesses “who have relevant
knowledge about the development, structure, function,
and operation of Google Street View.” Id. at 2. Each
of these witnesses is located in the Northern District of
California. Id. In Plaintiff's opposition to Defendant's

motion, Plaintiff specifically notes that the only non-party
witness identified to be called at trial is Ford Oxaal, the
sole named inventor of all eight patents-in-suit. (Dkt. No.
30 at 5.)
Defendant replied to Plaintiff's argument and contends
that “all but one of the identified witnesses are located
in the Northern District of California or outside this
district.” (Dkt. No. 34 at 4. 2 ) Furthermore, Defendant
contends that “Plaintiff only identifies limited and narrow
issues” to which Oxaal would testify at trial. Id.
2

Page numbers in citations to Defendant's reply brief
in support of its motion to transfer venue refer to the
page numbers in the original document.

The facts of the instant case are comparable to those
in Defenshield. 2012 WL 1069088. There, the defendant
named “only two” potential non-party witnesses outside
the District. Id. at *11. The plaintiff named “nine potential
witnesses, including the inventor of [the patent-in-suit], all
of which [were] located in [this District].” Id. As a result,
this Court found that these facts served to neutralize one
another. Id. In the instant case, Defendant has named four
witnesses who are located outside this District and has
listed the possibility of others. (Dkt. No. 25–1 at 8. 3 ) The
Plaintiff has named one material witness, the sole inventor
of the patents-in-suit, who is located within the district.
(Dkt. No. 30 at 5.)
3

Page numbers in citations to Defendant's
memorandum of law in support of motion to transfer
venue refer to the page numbers in the original
document.

*4 For the foregoing reasons, I find that this factor is
neutral to venue transfer analysis.

2. Convenience of the Parties
The convenience of the parties is another consideration
in determining whether transfer is appropriate. Here,
Defendant is headquartered in the Northern District of
California. (Dkt. No. 25–1 at 10.) Defendant asserts
that “the persons with knowledge of the technical
research, design, and development of Google Street View
work at Google's Northern California headquarters.” Id.
Moreover, Allen Hutchinson stated in his declaration
in support of the defendant's motion to transfer venue
that “the Google teams responsible ... for Google Street

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2013 WL 998379

View are primarily led by personnel that have been,
and are, located in Google's facilities in Mountain View,
California.” (Dkt. No. 25–3 at ¶ 4.)
Plaintiff is a subsidiary of Acacia Research Corporation,
whose principal place of business is in Texas. (Dkt. No. 30
at 1 n. 1; Dkt. No. 25–2 at 119) Plaintiff is incorporated
in New York as of October 9, 2012. (Dkt. No. 25–2 at
6.) Plaintiff relies upon Easy Web Innovations, LLC v.
Facebook, Inc., such that where transfer would merely
shift the inconvenience from one party to the other, the
Court should leave plaintiff's choice of venue undisturbed.
No. 11–CV–5121 (JFB)(ETB), 2012 U.S. Dist. LEXIS
123833, at *25, 2012 WL 3755410, at *8 (E.D.N.Y. Aug.
30, 2012). 4
4

“However, ‘transfer of venue may be appropriate
where inconvenience for the party moving for transfer
could be completely eliminated without substantially
adding to the nonmoving party's inconvenience.’ “
EasyWeb, 2012 WL 3755410, at *8 (quoting Frame v.
Whole Foods Mkt., Inc., No. 06 Civ. 7058(DAB), 2007
U.S. Dist. LEXIS 72720, at *16, 2007 WL 2815613,
at *6 (S.D.N.Y. Sept. 24, 2007)).

Here, for the same reason that it would be inconvenient for
Plaintiff to travel to the Northern District of California,
it would be inconvenient for Defendants to travel to the
Northern District of New York. Defenshield, 2012 WL
1069088, at *12. As a result, I find that this factor is
neutral.

3. Location of Relevant Documents
“Access to documents and other proof is not a persuasive
factor in favor of transfer without proof that documents
are particularly bulky or difficult to transport, or proof
that it is somehow a greater imposition for defendant to
bring its evidence to New York than for plaintiff to bring”
its evidence to California. Sunshine Cellular v. Vanguard
Cellular Sys., Inc., 810 F.Supp. 486, 500 (S.D.N.Y.1992).
Defendant contends that this factor weighs substantially
in its favor. Defendant states that “all or nearly all of the
documents and highly proprietary information relating to
Google Street View are stored in Google's various data
centers, which are accessible and ultimately managed from
Mountain View, California.” (Dkt. No. 25–1 at 11.) As
such, Defendant contends that “the burden associated
with accessing and transporting documentary and other

evidence is far greater if the case remains [in this District].”
Id.
Plaintiff contends that this factor “weighs slightly against
transfer, or at a minimum, is neutral.” (Dkt. No. 30 at 8.)
Many documents relevant to this matter, “including those
pertaining to the conception of and reduction to practice
of the claimed inventions,” are located in this District at
the residence of Mr. Oxaal, the sole inventor named on
the patents-in-suit. Id. Plaintiff also relays the possibility
that “several models and drawings,” which cannot be
converted into electronic format and may be damaged by
shipping, may relate to this action. Id.
*5 Furthermore, Plaintiff contends that Defendant's
statement that pertinent documents are “stored in
Google's various data centers, which are accessible and
ultimately managed from Mountain View, California”
was ambiguous and does not assert that the relevant
documents are actually (or physically) located in
Mountainview. Id. Moreover, Plaintiff contends that
Defendant fails “to account for the fact that all of these
documents will be produced electronically in this matter.”
Id.
In patent infringement cases, the location of relevant
documents “once carried significant weight in this
analysis.” Defenshield, 2012 WL 1069088, at *12 (citing
Advanced Fiber Tech., 2008 WL 4890377, at *4). This
factor weighs in favor of a defendant's argument for
venue transfer, because in a patent infringement case,
the bulk of the relevant evidence is in possession of
the accused infringer. Defenshield, 2012 WL 1069088,
at *12. However, this factor is not accorded significant
weight “given the technological age in which we live, with
the widespread use of, among other things, electronic
document production.” EasyWeb, 2012 WL 3755410, at
*7.
For the foregoing reasons, I find that this factor only
slightly weighs in favor of Defendant's motion to transfer.

4. Situs of Operative Events in Issue
“The situs of the operative facts is an important factor in
deciding motions to transfer.... Where a cause of action
arises from claims of alleged wrongdoing in the proposed
transferee district, transfer is appropriate. Transfer is
not precluded where the operative facts have some
connection to the initial forum if the transferee district

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2013 WL 998379

has a stronger connection with the operative facts raised
in the pleadings.” Sheet Metal Workers' Nat'l Pension
Fund v. Gallagher, 669 F.Supp. 88, 92–93 (S.D.N.Y.1987)
(citations omitted).
“Operative facts in a patent infringement action include
those relating to the design, development, and production
of a patented product.” Defenshield, 2012 WL 1069088,
at *13 (citing Fuji Photo Film Co., Ltd. v. Lexar
Media, Inc., 415 F.Supp.2d 370, 375 (S.D.N.Y.2006);
Invivo Research, Inc. v. Magnetic Resonance Equipment
Corp., 119 F.Supp.2d 433, 439 (S.D.N.Y.2000)). “Similar
information regarding the allegedly infringing product
is also vital in adjudicating an infringement case.”
Defenshield, 2012 WL 1069088, at *13 (citing Amersham
Pharmacia Biotech, Inc. v. Perkin–Elmer Corp., 11
F.Supp.2d 729, 730 (S.D.N.Y.1998)). “As a result, venue
analysis may demonstrate that there are multiple loci of
operative facts.” Defenshield, 2012 WL 1069088, at *13
(internal citations omitted).
Defendant contends that “the operative events and
facts related to Google Street View include its design
and development, both of which occurred in the
Northern District of California.” (Dkt. No. 25–1 at
12.) Furthermore, Defendant contends that, “although
the alleged conception and reduction to practice of the
Patents–in–Suit may have occurred in this District,” the
persons with significant, relevant knowledge are located
outside of this District. Id. For these reasons, Defendant
asserts that this factor weighs in favor of transfer.
*6 Plaintiff contends that this factor is neutral to the
analysis and relies upon Easy Web. 2012 WL 3755410,
at *9. There, the Court stated “that in patent cases, the
locus of operative facts can include the district where
either the patent-in-suit or the allegedly infringing product
was designed, developed, and produced.” Id. (emphasis in
original). The Court ultimately held that “because both
districts in this case are loci of operative events, this factor
is neutral in this case.” Id.
Here, the facts mirror those of Easy Web. As such, the two
loci of operative events offset each other, rendering this
factor neutral to the analysis.

5. Availability of Process to Compel Attendance
The court can compel the attendance of witnesses who
are served within the district or at any other place

that is within 100 miles of the place specified in the
subpoena. Federal Rule of Civil Procedure Rule 45(b)(2).
“In determining whether a change of venue is appropriate,
the Court will ... examine the ability to compel the
attendance of witnesses.” Neil Bros. Ltd. v. World Wide
Lines, Inc., 425 F.Supp.2d 325, 332–33 (E.D.N.Y.2006).
“However, ‘this factor is generally relevant only with
respect to third-party witnesses, since employees of the
parties will as a practical matter be available in any venue
by virtue of the employment relationship.’ “ Defenshield,
2012 WL 1069088, at *13 (quoting Ripmax Ltd. v. Horizon
Hobby, Inc., No. 07–CV–386 (JCH), 2007 U.S. Dist.
LEXIS 50047, at *13, 2007 WL 204933, at *4 (D. Conn.
June 25, 2007)).
Here, Plaintiff stated concern regarding the availability
to compel attendance of its only non-party witness, Mr.
Oxaal, who is the inventor of the patent-in-suit. (Dkt. No.
30 at 10.) However, Plaintiff noted that it “expects that
Mr. Oxaal will voluntarily appear at trial in this matter.”
Id. at n. 9. Defendant stated concern regarding this
Court's subpoena power over “all prosecuting attorneys
of the Patents–in–Suit.” (Dkt. No. 25–1 at 13.) However,
Defendant fails to identify non-party witnesses it intends
to depose or have testify during future proceedings.
Although Defendant notes that potential witnesses would
be outside of this District's ability to be subpoenaed, they
have not indicated that such witnesses would be unwilling
to appear. As such, there is no indication that any nonparty witnesses would refuse to appear. Thus, this factor
is neutral to the venue transfer analysis.

6. Relative Means of the Parties
“Where a disparity exists between the means of the
parties ..., the Court may consider the relative means of
the parties in determining whether to transfer.” Miller v.
Bombardier Inc., No. 93–CV–0376 (PLK), 1993 U.S. Dist.
LEXIS 13319, at *13, 1993 WL 378585, at *5 (S.D.N.Y.
Sept. 23, 1993). In the instant case, both parties concede
that this factor is neutral to the analysis. (Dkt. No. 25–1 at
13; Dkt. No. 30 at 10.) Defendant and Plaintiff both have
significant resources at their disposal. For the foregoing
reasons, I agree that this factor is neutral.

7. Comparative Familiarity of Each District with the
Governing Law

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2013 WL 998379

*7 “This case involves questions of federal law, and
‘any district court may handle a patent case with equal
skill.’ “ Defenshield, Inc., 2012 WL 1069088, at *14
(quoting Bionix Implants, Inc. v. Biomet, Inc., No. 99 Civ.
740(WHP), 1999 U.S. Dist. LEXIS 8031, at *15, 1999
WL 342306, at *4 (S.D.N.Y. May 27, 1999). As a result,
both parties concede that this factor is neutral to transfer
analysis, and I agree.

8. Weight Accorded a Plaintiff's Choice of Forum
A plaintiff's choice of forum “should not be disturbed
unless the balance of several factors is strongly in favor of
defendant.” Fuji Photo Film Co. v. Lexar Media, Inc., 415
F.Supp.2d 370, 376 (S.D.N.Y.2006) (citation omitted).
Here, Plaintiff properly filed this action in the Northern
District of New York, is incorporated in this state, and
maintains a preference for litigating in this forum. (See
Dkt. No. 30.) Moreover, the patents-in-suit were designed
in the Northern District of New York by Ford Oxaal,
who currently resides in this forum. Id. at 1. These facts
are significant to an action for patent infringement and
support Plaintiff's choice of forum. Defenshield, 2012 WL
1069088, at *15 (citing Advanced Fiber Tech. Trust, 2008
WL 4890377, at *6).
Moreover, while Defendant contends that this Court
should give little deference to Plaintiff's choice of forum
because “none of the operative facts or events giving rise
to the infringement allegations occurred in this District,
other than the named inventor appearing to reside in
this District,” Defendant's argument is inconsistent with
relevant case law. (Dkt. No. 25–1 at 6.)
“The place where the patented invention was developed
and the place where the allegedly infringing products
are developed are both loci of operative facts.” Easy
Web, 2012 WL 3755410, *5 (finding that Plaintiff's choice
of venue was entitled great deference as there was a
“clear connection to the District as the place where the
patents-in-suit were designed, developed and patented ...
although operative facts also occurred in California)
(citing Defenshield, 2012 WL 1069088, at *13).

9. Judicial Efficiency and the Interests of Justice
Even if Defendants had shown a difference in speed of
cases to final disposition in the two districts, “docket
congestion is not considered a dispositive factor....” Dow
Jones & Co., Inc. v. Bd. of Trade, 539 F.Supp. 190, 192–
93 (S.D.N.Y.1982).
Despite Defendant's argument regarding the parties' lack
of “a meaningful connection with this District,” and the
relative “Judicial Caseload Statistics” for the two forums,
it has not met its burden in showing that “the interests of
justice” factor weighs in favor of transfer. This Court is
fully capable of adjudicating Plaintiff's claims in a timely
manner. For these reasons, I find that this factor does not
weigh in favor of transfer.

C. Conclusion
*8 Of the nine factors considered above, only one factor
weighs in favor of transferring venue to the Northern
District of California, two factors weigh in favor of
maintaining venue in the Northern District of New York,
and the remaining six factors are neutral to transfer
analysis. As a result, I find that none of the factors heavily
outweigh the deference accorded to Plaintiff's choice of
forum. For this reason, Defendant's motion to transfer
venue is denied.
Based on the above analysis of the relevant factors, I find
the balance of convenience and the interests of justice
favors venue in the Northern District of New York. Since
Defendant's motion to stay was requested pending a ruling
on its motion to transfer venue, there is no reason to stay
the action.
ACCORDINGLY, it is
ORDERED that Defendants' motion to transfer venue
(Dkt. No. 25) is DENIED; and it is further
ORDERED that Defendant's motion to stay (Dkt. No. 26)
is DENIED.

All Citations
For all of these reasons, I find that this factor weighs
against transfer.

Not Reported in F.Supp.2d, 2013 WL 998379

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End of Document

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7

Walker v. Schriro, Not Reported in F.Supp.2d (2013)
2013 WL 1234930

2013 WL 1234930
Only the Westlaw citation is currently available.
United States District Court,
S.D. New York.
Kevin WALKER, Plaintiff,
v.
Dora B. SCHRIRO, et al., Defendants.
No. 11 Civ. 9299(JPO).
|
March 26, 2013.

MEMORANDUM AND ORDER
J. PAUL OETKEN, District Judge.
*1 This civil rights case, brought by Plaintiff Kevin
Walker against a number of prison officials, arises from
a course of events that pivot around Plaintiff's efforts
to obtain medically authorized supportive footwear
while incarcerated. The Second Amended Complaint,
filed pro se and therefore interpreted to allege the
strongest claims it suggests, alleges due process, equal
protection, First Amendment retaliation, access to courts,
Eighth Amendment, and products liability violations.
Defendants have moved to dismiss all claims. For the
reasons that follow, this motion is granted in part and
denied in part.

I. Background
The facts stated in this background section are drawn
from allegations made in Plaintiff's Second Amended
Complaint. For purposes of this motion, these allegations
are presumed to be true. See Cleveland v. Caplaw Enters.,
448 F.3d 518, 521 (2d Cir.2006). 1
1

Plaintiff filed his original complaint on December 16,
2011. He filed an amended complaint on June 6, 2012.
Defendants filed a motion to dismiss the amended
complaint on August 30, 2012. On November 20,
2012, the Court informed Plaintiff that he had until
December 7, 2012 to file opposition papers. The
Court added that Plaintiff “may also file on that
date his proposed second amended complaint, to
which defendants may respond in their reply brief.”
In their reply brief, Defendants have asked the

Court to reject Plaintiff's proposed second amended
complaint. Federal Rule of Civil Procedure 15(a)(2)
provides that “[t]he court should freely give leave”
to amend the complaint “when justice so requires.”
The principal reasons to deny leave to amend include
“undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies
by amendments previously allowed, undue prejudice
to the opposing party by virtue of allowance of the
amendment, [and] futility of amendment.” Foman v.
Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d
222 (1962). Here, there is no evidence of undue
delay, bad faith, prejudice, or repeated failure to cure
deficiencies. The futility of amendment is a question
best addressed by actually deciding the pending
motion to dismiss. Recognizing that the Court
indicated that Plaintiff could file a proposed second
amended complaint, and that the pleadings filed by
pro se litigants merit “special solicitude,” Ruotolo v.
I.R.S., 28 F.3d 6, 8 (2d Cir.1994), the Court therefore
accepts Plaintiff's Second Amended Complaint (“the
Complaint”) as the operative pleading in the case.

On August 10, 2011, Plaintiff was placed in the New
York City Department of Correction V.C.B.C. (also
known as “the Boat”). While being processed into the
facility, Plaintiff was informed by Defendant Daly that a
prison order prevents inmates from wearing any personal
footwear. Plaintiff objected to Daly and explained that he
has a medical condition that necessitates special footwear.
Specifically, Plaintiff requires custom sneakers with extra
support, cushioned soles, ankle support, and special arch
support. In contrast, D.O.C. standard-issue sneakers lack
these features. Daly responded by telling Plaintiff to sign
up for sick call.
On August 15, 2011, Plaintiff saw a doctor and explained
this situation. The doctor examined Plaintiff, determined
that Plaintiff has flat feet and weighs over 350 pounds, and
stated that if Plaintiff did not wear suitable sneakers he
would experience pain and swelling in his feet and back.
Plaintiff returned to sick call several times due to extreme
pain from his deficient footwear and was given Tylenol,
even though he explained to the doctor that this medicine
was inadequate. The doctor indicated that Plaintiff would
soon receive different pain medication.
On August 29, 2011, Plaintiff was moved to G.R.V.C.
(known as “the Beacon”). He signed up for sick call and
planned on seeing a foot and back specialist on September
6, 2011, but this never happened (for reasons unspecified
in the Complaint) and Plaintiff remained in “extreme

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Walker v. Schriro, Not Reported in F.Supp.2d (2013)
2013 WL 1234930

pain.” The doctor continued to prescribe only Tylenol,
even after indicating that Plaintiff would receive more
effective medication.
On September 13, 2011, Plaintiff spoke with Dr. Pravin
Nanjan, who indicated that the medicine had not arrived
because the order had been placed incorrectly. Ranjan
prescribed Plaintiff stronger medication, provided permits
for a double mattress to alleviate Plaintiff's severe back
pain, and provided a permit for Plaintiff to wear his
supportive sneakers. Around this time, Plaintiff spoke
with Defendant Washington, explained his situation and
his receipt of a permit, and was informed by Washington
that Plaintiff's wife could bring custom sneakers to the
prison for Plaintiff. Also around this time, Plaintiff
learned from his wife that she had sent a pair of
permissible sneakers and they had been returned—even
though Plaintiff had never been notified of this package.
When Plaintiff asked Defendant Hart about this package,
“in hopes that defendant would understand because she
too is a big person,” she “became very abusive and stated
‘maybe your fatass need to loose [sic] weight and your feet
would not bother you!’ “
*2 On September 17, 2011, Plaintiff's wife brought
Plaintiff's custom sneakers. Defendant Lespinasse
prohibited Plaintiff from keeping the sneakers, adding
that Washington had told her not to allow the sneakers.
She “laughed” when Plaintiff presented her with the
medical permit.
Several days later, Plaintiff explained his situation to
Defendants Lemon and Fraizer. Lemon stated that he
would look into it, but that he had told the doctors to
stop giving out permits for sneakers. A week later, Lemon
confirmed to Plaintiff that he told the doctors to stop
issuing medical permits for prisoners and added that he
“runs G.R.V.C., not the warden, not the doctors, me!
Deputy of security!” Lemon and Frazier then discussed
their desire to set a precedent that would prevent all
inmates from obtaining medically prescribed footwear.
Lemon added that Plaintiff could get his sneakers by
offering information on what was happening in the jail, an
offer that Plaintiff refused by telling Lemon “that he was
losing his fucking mind!”
On September 19, 2011, Plaintiff asked Defendants
Williams and Best for help with his footwear situation.
Williams called someone and then told Plaintiff that he

had “pissed someone off” and “there was nothing he could
do to help.” When Plaintiff spoke to Best, she replied
that “nobody in this building (GRVC) get their personal
footwear regardless of a medical or not, it's the building
rules, if it's a problem we ship your ass out to another jail,
its just that simple.”
After these events, Plaintiff's unit was subjected to a
routine search. Harris arrived at his cell, explained
that Plaintiff had “pissed somebody off,” and, without
any process known to Plaintiff, gave him a “green Id
ICR card; ICR is the acronym for Inmate Contraband
Receiver.” Harris cursed at Plaintiff and promised that
Plaintiff would never get his custom footwear. Receipt
of an ICR card entails a number of onerous disciplinary
consequences, including more extensive searches of an
inmate's cell, prohibitions on work outside one's housing
unit, and more thorough searches during visits by family.
Several days later, Plaintiff explained his medical and
ICR situation to Defendant Garcia. Garcia replied that
nobody gets to wear special footwear and that corrections
officers “do what we want.” Garcia reiterated that
Plaintiff had “pissed someone off” and referred to prior
litigation involving Plaintiff before Judge William H.
Pauley of this District.
In the middle of October 2011, Defendant Anku and other
officers searched Plaintiff's housing unit. The inmates
were told to get down on their knees. Plaintiff told
Anku that Plaintiff's medical condition would cause severe
pain if he remained in that position; Anku replied by
cursing at Plaintiff and emphasizing that he did not care
about Plaintiff's medical condition. This caused Plaintiff
“extreme pain” for 30–45 minutes.
On October 17, 2011, Plaintiff was called to appear
concerning his grievances against Lemon arising from
denial of medically appropriate footwear notwithstanding
a medical permit. Defendant Moultre told Plaintiff that
his request for a hearing had been denied and that the
grievance had been rejected. Moultre stated “I don't give
a fuck about no medical.” As they argued, Defendants
Smith and Hines arrived. Plaintiff explained his footwear
situation and medical permit. Smith replied that “we
are setting standards throughout Rikers Island that in
the Beacon (GRVC) nobody gets to wear their personal
sneakers, regardless of a medical.” Smith added that he
would speak to Lemon about Plaintiff's concerns. Plaintiff

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returned to his cell and wrote to Defendant Agro about
his problems.
*3 Ten to twenty minutes later, Lemon came by and
told Plaintiff that his subordinates would be dealing with
the situation. Thirty minutes later, Plaintiff was “packed
up and removed from the housing unit to a waiting bus
to C–95.” Plaintiff objected to non-defendant Captain
Carter that he could not go to C–95; Carter replied that he
had his orders. Upon arrival at C–95, Plaintiff explained
to non-defendant C.O. Jacobs that he wasn't supposed
to be on Rikers Island, “especially this building per O.
S.I.U. (security).” Jacobs sent for security. Ten minutes
later, Defendant Williams “came to the bullpens ... and
stated ‘I know who the fuck you are, you got a lot of
balls even coming in this building’!” At Williams' order,
Plaintiff was confined to the intake bullpens for two
days without food, shower, linen, running water, or a
bathroom. Plaintiff believes this conduct was in retaliation
for a civil rights lawsuit filed by Plaintiff in 2008 against
Williams and several other guards. The next morning,
Plaintiff's wife called security and spoke with Defendant
Letizia, “who told her, ‘don't worry we will take care of
him and laughed.’ “ Plaintiff and his wife interpreted this
as a threat.
On October 19, 2011, Plaintiff was moved to M.D.C.,
where the corrections personnel similarly refused to honor
his medical permit. At M.D.C., Plaintiff was told to see a
foot specialist, but this appointment was cancelled because
Plaintiff could not fit into any of the orange jumpsuits
prerequisite to trips outside the prison facility. Plaintiff
grieved this situation several times, but has not yet been
fitted for a jumpsuit. Many of his medical appointments
and physical therapy sessions have been cancelled as a
result.
Plaintiff has seen two podiatrists, one at West Facility and
one at M.D.C., both of whom agreed that he should wear
supportive sneakers. At this point, non-defendant Deputy
of Security Colon stated that Plaintiff could wear custom
sneakers only if they are “PUMA” brand. Plaintiff's wife
set out in search of suitable Puma brand sneakers and
sent them to Plaintiff, but Plaintiff was denied access to
the sneakers for 30–45 days while Colon inspected them.
In total, Plaintiff suffered 7–8 months of “extreme pain
in [his] foot and ankles,” and his lower back, with only
Tylenol to alleviate this condition.

On March 28, 2012, Plaintiff was returned to the Boat.
Upon his arrival, Daly—who was not at the time a
named defendant in this action—learned of Plaintiff's
lawsuit and threatened Plaintiff, adding that he had
“something” for Plaintiff upstairs. Plaintiff immediately
spoke to Defendant Morris and explained his fear of
Daly's threat. Morris replied “don't worry about it, just
go to your housing area.” Even though his classification
did not merit such treatment, Plaintiff was sent to a high
classification housing unit.
The next morning, Plaintiff called the Inspector General
office and reported Daly's threat. He also called the Board
of Corrections and filed a complaint. At 2 p.m., Defendant
Bacote arrived at Plaintiff's housing unit to discuss the
matter. At Becote's request, Plaintiff showed Becote the
initial complaint in this case and noted where it mentioned
Daly. Becote told Plaintiff and another inmate who had
witnessed this whole course of events to remain by the
officer station. An hour later, Becote arrived with a team
of officers clad in riot gear. Plaintiff was handcuffed and
taken to the intake bullpens, where he remained for five
hours.
*4 Non-defendant Captain Calise took statements from
Plaintiff and the other inmate, and Plaintiff was then led
by Morris to the medical clinic. Upon leaving the clinic,
Morris, Bacote, Daly, and two other officers “tried to take
[P]laintiff in a secluded area by the elevators and [P]laintiff
to walk in the area with all five (5) officers, which (3)
are defendants.” Morris then ordered Plaintiff to “play
the wall” while Daly applied tight handcuffs. Plaintiff
was returned to a high classification house, threatened by
Bacote and Daly, and released from the handcuffs.
On April 2, 2012, Plaintiff was called to the security
office and given a ticket by Bacote, who told Plaintiff
to “shut the fuck up.” The next day, Bacote walked
by Plaintiff in a threatening manner. On April 5, 2012,
Bacote and two other officers taunted and threatened
Plaintiff in the housing unit. The Warden of V.C.B.C.
did not respond to Plaintiff's request that she intervene
in this course of events. Plaintiff received a ticket for
disciplinary charges fabricated by Bacote. At the hearing
on this ticket, Bacote successfully urged the hearing officer
to give Plaintiff the maximum penalty of forty days.
Plaintiff believes that throughout this period, Bacote,
Morris, and Daly were retaliating against plaintiff. In
August 2012—several months after these events—Bacote

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continued to retaliate against Plaintiff by stealing his legal
papers, breaking Plaintiff's personal glasses, arranging for
repeated searches of Plaintiff's cell, threatening Plaintiff,
and interfering with Plaintiff's personal mail.
Plaintiff reports that he remains in extreme pain due to
improper footwear, that he has been rushed to Bellevue
Hospital on one occasion because of swelling in his
ankles, and that he is still taking Tylenol with codeine
twice per day. Plaintiff has sued Defendant Barker, the
supplier of standard inmate footwear to the New York
City Department of Correction, for “failure to notify the
public that the product that he is selling has not only a
defect in the design but that it would cause serious injuries
to those that wear it for an extended period of time ... and
that it is not suggested that these sneakers be [worn] for
a specific period of time.” Plaintiff adds that Barker has
failed to warn the public that his sneakers are not suitable
for extended wear or for use by people who weigh a certain
amount and have certain foot problems.

II. Standard of Review
Federal Rule of Civil Procedure 8(a)(2) requires “a short
and plain statement of the claim showing that the pleader
is entitled to relief.” To survive a motion to dismiss
pursuant to Federal Rule 12(b)(6), a plaintiff must plead
sufficient factual allegations “to state a claim to relief that
is plausible on its face.” Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929
(2007). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). The Court
must accept as true all well-pleaded factual allegations
in the complaint, and “draw[ ] all inferences in the
plaintiff's favor.” Allaire Corp. v. Okumus, 433 F.3d
248, 250 (2d Cir.2006) (quotations omitted). That said,
“the tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to
legal conclusions. Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements,
do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted).
*5 “It is well established that the submissions of a pro se
litigant must be construed liberally and interpreted to raise
the strongest arguments that they suggest.” Triestman v.
Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir.2006)

(citations omitted). The pleadings filed by pro se litigants
thus merit “special solicitude.” Ruotolo, 28 F.3d at 8.

III. Discussion
In the Complaint, Plaintiff identifies five causes of
action: (1) violations of Plaintiff's due process and equal
protection rights by Agro, Lemon, Fraizer, Garcia,
Harris, and Schriro when Plaintiff was placed on ICR
status without appropriate procedure; (2) retaliation
against Plaintiff by Bacote, Morris, Daly, Garcia, Lemon,
Harris, and Williams for filing a civil complaint and
numerous grievances, retaliation against Plaintiff by
Williams for Plaintiff's prior civil complaint before Judge
Pauley, and retaliation against Plaintiff by Bacote for
the filing of this civil action; (3) violations of Plaintiff's
Eighth Amendment rights by Williams, who kept Plaintiff
locked in the intake area for two days, and by Bacote, who
forced Plaintiff to sleep in the intake area on a number
of occasions while moving Plaintiff out of the building;
(4) violations of Plaintiff's Eighth Amendment rights by
Schriro, Agro, Lemon, Fraizer, Williams, Best, Smith,
Garcia, Washington, Lespinasse, Hart, Hines, Aknu, and
Moultrie through deliberate indifference to Plaintiff's need
for medical treatment, and by Barker through deliberate
indifference to the public's medical need in warning of
design defects in his products; and (5) a products liability
claim against Barker for design flaws and failure to warn.
The Court generally agrees with Plaintiff that the facts
alleged in the Complaint are best interpreted as alleging
this set of claims. However, in recognition of the special
solicitude afforded to pro se litigants, the Court clarifies
the doctrinal basis and appropriate defendants for some
of Plaintiff's claims.

A. Due Process and Equal Protection
Plaintiff alleges that he was assigned a “Green ID, ICR
card” while at G.R.V.C. without proper procedure or
an opportunity to contest that designation. He adds that
the defendants associated with the claim—Agro, Lemon,
Fraizer, Garcia, Harris, and Schriro—acted in specific
disregard of standard disciplinary procedures. He argues
that these defendants thereby violated his due process and
equal protection rights. Neither claim succeeds.
To establish a due process claim with respect to a prison
disciplinary proceeding, “a plaintiff must establish (1)
possession of a liberty interest and (2) deprivation by
defendants of that interest as a result of insufficient

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process.” Dawkins v. Gonyea, 646 F.Supp.2d 594, 605
(S.D.N.Y.2009). “Prison discipline [does] implicate[ ] a
liberty interest when it ‘imposes atypical and significant
hardship on the inmate in relation to the ordinary
incidents of prison life.’ “ Ortiz v. McBride, 380 F.3d 649,
654 (2d Cir.2004) (quoting Sandin v. Conner, 515 U.S. 472,
484, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)). However,
“[t]he Supreme Court has stated ... that prisoners do not
have a liberty interest under the Federal Constitution in
‘prisoner classifications and eligibility for rehabilitative
programs in the federal system.’ “ Green v. Armstrong, 189
F.3d 460, 460 (2d Cir.1999) (quoting Moody v. Daggett,
429 U.S. 78, 88 n. 9, 97 S.Ct. 274, 50 L.Ed.2d 236 (1976)).
As Judge Castel has explained:

*6 In assessing whether a prison
facility has afforded its inmates
adequate procedural due process,
courts acknowledge that prison
administrators have wide discretion
to adopt and execute policies
and procedures that are in the
best interest of the institution.
Regarding classification procedures,
prison
officials
have
“full
discretion” to control conditions of
confinement, which include prisoner
classification, and prisoners have
no
legitimate
statutory
or
constitutional entitlement sufficient
to invoke due process in connection
with such conditions. Consequently,
prisoners have no liberty interest
that protects them from security
classification or mis-classification.

Walker v. City of New York, No. 11 Civ. 9611, 2012
WL 3037308, at *2 (S.D.N.Y. July 25, 2012) (quotation
marks and citations omitted); see also Taylor v. New York
Dept. of Corr., No. 10 Civ. 3819, 2012 WL 2469856, at
*3 (S.D.N.Y. June 27, 2012). Because Plaintiff has failed
to identify a liberty interest protected by the Due Process
Clause, his claim cannot succeed.

To state a claim for an equal
protection violation, appellants
must allege that a government actor
intentionally discriminated against
them on the basis of race, national
origin or gender. Such intentional
discrimination can be demonstrated
in several ways. First, a law or
policy is discriminatory on its face
if it expressly classifies persons on
the basis of race or gender. In
addition, a law which is facially
neutral violates equal protection if
it is applied in a discriminatory
fashion. Lastly, a facially neutral
statute violates equal protection if
it was motivated by discriminatory
animus and its application results in
a discriminatory effect.

Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir.1999)
(citations omitted). Here, Plaintiff does not allege that he
was mistreated or treated differently than his colleagues
on the basis of a protected classification. He does not
identify any law or policy as the source of the alleged
violation, nor does he adequately allege discriminatory
enforcement of any law or policy. Thus, Plaintiff cannot
prevail as a matter of law on any equal protection claim.

B. Retaliation and Access to Courts
Plaintiff alleges three distinct claims styled as
“retaliation”: the first claim focuses on actions by Bacote,
Morris, Daly, Garcia, Lemon, Harris, and Williams
against Plaintiff motivated by Plaintiff's filing of a
civil complaint and numerous grievances; the second
claim concerns actions taken by Williams and Letizia as
punishment for Plaintiff's prior civil case before Judge
Pauley; and the third claim focuses on actions taken by
Bacote in response to Plaintiff's decision to file this civil
action. 2 The Court interprets Plaintiff's Complaint to
raise claims under the First Amendment for retaliation
and under the constitutional right of access to courts.

Plaintiff's equal protection claim also fails. The Second
Circuit has explained that:

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2

Plaintiff's prior case before Judge Pauley is denoted
1:08–cv–00284–WHP on ECF.

1. First Amendment Retaliation
*7 “[O]therwise constitutional acts may be actionable
if taken in retaliation for the exercise of First
Amendment rights.” Soto v. Iacavino, No. 01 Civ.
5850, 2003 WL 21281762, at *2 (S.D.N.Y. June
4, 2003). To survive dismissal, “a plaintiff asserting
First Amendment retaliation claims must advance nonconclusory allegations establishing: (1) that the speech or
conduct at issue was protected, (2) that the defendant
took adverse action against the plaintiff, and (3) that there
was a causal connection between the protected speech and
the adverse action.” Dawes v. Walker, 239 F.3d 489, 492
(2d. Cir.2001), overruled on other grounds, Swierkiewicz v.
Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1
(2002).
It is well established that “a prisoner's filing of both
lawsuits and administrative grievances is constitutionally
protected .” Collins v. Goord, 438 F.Supp.2d 399, 419
(S.D.N.Y.2006) (citations omitted). In other words,
“[s]ince access to the courts is an established constitutional
right,” Smith v. City of New York, No. 03 Civ. 7576,
2005 WL 1026551, at *3 (S.D.N.Y. May 3, 2005) (citing
Bounds v. Smith, 430 U.S. 817, 821, 97 S.Ct. 1491, 52
L.Ed.2d 72 (1977)), speech undertaken for the purpose
of accessing courts—extending from civil litigation to the
administrative grievances ordinarily prerequisite to civil
litigation under the Prison Litigation Reform Act—is
“protected” for purposes of First Amendment retaliation
analysis.
The adverse action inquiry is “objective” and is “tailored
to the different circumstances in which retaliation claims
arise.” Dawes, 239 F.3d at 493 (citation omitted). “Only
retaliatory conduct that would deter a similarly situated
individual of ordinary firmness from exercising his or her
constitutional rights constitutes an adverse action for a
claim of retaliation.” Dawes, 239 F.3d at 493 (citations
omitted). “Otherwise, the retaliatory act is simply de
minimis and therefore outside the ambit of constitutional
protection.” Id. (citing Davidson v. Chestnut, 193 F.3d 144,
150 (2d Cir.1999) (per curiam)); see also id. (“Prisoners
may be required to tolerate more than public employees,
who may be required to tolerate more than average
citizens, before a [retaliatory] action taken against them
is considered adverse.” (citation omitted)). Thus, “[u]nder

some circumstances, verbal threats may constitute adverse
action, depending on their degree of specificity and
the context in which they are uttered ... [but] vague
intimations of some unspecified harm generally will not
rise to the level of adverse action for the purpose of a First
Amendment retaliation claim.” Bumpus v. Canfield, 495
F.Supp.2d 316, 326 (W.D.N.Y.2007).
Courts also recognize a doctrine of retaliatory transfer. As
Judge Swain has explained:

Prisoners normally have no
constitutional right to remain in
any particular state prison facility,
absent a state statute or policy
conditioning transfers on proof of
specific acts of misconduct. Prison
officials thus have broad discretion
in making transfer determinations.
They may not, however, transfer
[prisoners] solely in retaliation for
the exercise of constitutional rights.
Where, as here, an adverse action
(such as a transfer) is challenged
as retaliatory in violation of the
First and Fourteenth Amendments,
the plaintiff has the burden in
the first instance of demonstrating
that the underlying conduct that
precipitated the adverse action was
constitutionally protected and that
said conduct was a substantial or
motivating factor in the defendant's
subsequent adverse conduct. If the
plaintiff meets that burden, the
defendants have the opportunity to
demonstrate by a preponderance
of the evidence that they would
have reached the same decision even
in the absence of the protected
conduct.

*8 Salahuddin v. Perez, No. 99 Civ. 10431, 2006 WL
266574, at *5 (S.D.N.Y. Feb.2, 2006) (quotation marks
and internal citations omitted).

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The third and final requirement of a retaliation claim
is a causal connection between the protected speech
and adverse action. Dawes, 239 F.3d at 492. “The
causal connection must be sufficient to support the
inference ‘that the speech played a substantial part in
the employer's adverse employment action.’ “ Diesel v.
Town of Lewisboro, 232 F.3d 92, 107 (2d Cir.2000)
(quoting Ezekwo v. NYC Health & Hospitals Corp.,
940 F.2d 775, 780 (2d Cir.1991)). A combination of
direct and circumstantial evidence can support such an
inference. Smith, 2005 WL 1026551, *4. Even at the
motion to dismiss stage, “the inmate must allege more
than his personal belief that he is the victim of retaliation.
Conclusory allegations of retaliation are not sufficient;
the plaintiff must [allege facts] from which retaliation
may plausibly be inferred.” Crenshaw v. Hartman, 681
F.Supp.2d 412, 416 (W.D.N.Y.2010) (quotation marks
and citations omitted). In determining whether a causal
connection exists between the plaintiff's protected activity
and a prison official's actions, courts may consider “(i)
the temporal proximity between the protected activity and
the alleged retaliatory act; (ii) the inmate's prior good
disciplinary record; (iii) vindication at a hearing on the
matter; and (iv) statements by the defendant concerning
his motivation.” Baskerville v. Blot, 224 F.Supp.2d 723,
732 (S.D.N.Y.2002) (citation omitted).
“[P]rison officials have broad administrative and
discretionary authority over the institutions they
manage.” Lowrance v. Achtyl, 20 F.3d 529, 535
(2d Cir.1994) (citation omitted). Accordingly, courts
approach First Amendment retaliation claims brought
by inmates “with skepticism and particular care,” since
“virtually any adverse action taken against a prisoner by
a prison official—even those otherwise not rising to the
level of a constitutional violation—can be characterized as
a constitutionally proscribed retaliatory act.” Dawes, 239
F.3d at 491.
Here, Plaintiff alleges several different retaliation claims.
The Court addresses each in turn, granting in part and
denying in part Defendants' motion to dismiss.
First, Plaintiff alleges that Letizia retaliated against him
for his prior civil suit before Judge Pauley. Specifically,
he alleges that Letizia mocked Plaintiff's wife with the
promise that “we will take care of [Plaintiff].” Plaintiff
adds that “I know this comment [referred] to the treatment
plaintiff was receiving in retaliation for the suit in 2008, in

which defendant Williams was a defendant with [several]
of his colleagues also.” This claim fails even at the motion
to dismiss stage because Plaintiff has inadequately pleaded
a connection between the protected activity (his civil suit)
and the adverse action (threatening Plaintiff while on the
phone with Plaintiff's wife). This critical element is merely
asserted, but none of the facts contained in the Complaint
adequately support it. See Crenshaw, 681 F.Supp.2d at
416. Further, even if the claim did not fail on this ground,
the Court would still dismiss it due to the requirement of
an adverse action that rises above the threshold of a vague
verbal threat. See Bumpus, 495 F.Supp.2d at 326 (“[V]ague
intimations of some unspecified harm generally will not
rise to the level of adverse action for the purpose of a First
Amendment retaliation claim.”).
*9 Second, Plaintiff alleges that Garcia retaliated against
him for his prior civil suit before Judge Pauley. The
protected activity here is Plaintiff's prior civil suit.
The adverse action is denial of supportive footwear
notwithstanding a medical permit. As the Court explains
below, this constitutes an independent constitutional
violation—but that does not preclude it from doing
double—duty as the adverse action prerequisite to a
finding of First Amendment retaliation. Denial of medical
care that could address “extreme pain” surely qualifies as
an action “that would deter a similarly situated individual
of ordinary fitness from exercising his or her constitutional
rights.” Dawes, 239 F.3d at 493. The causal connection is
based on Plaintiff's recollection that Garcia “stated that he
was notified by an officer in the 3 building (GMDC) and
5 building (AMKC) that you were back in the system ...
and that you [were] involved in something back in 2006, (a
settled suit with Honorable William H. Pauley[ ] ), and for
us to put you on ICR status. Defendant Garcia stated that
plaintiff pissed someone off, so, I can't help you.” Plaintiff
has adequately alleged the factual predicate of a causal
connection between the protected activity and the adverse
action. This claim therefore survives Defendants' motion
to dismiss.
Third, Plaintiff alleges that Lemon engineered a
retaliatory transfer. The protected activity for this claim
is Plaintiff's filing of a grievance against Lemon for
denial of medical care. The adverse action is the transfer
of Plaintiff at Lemon's instigation to C–95—a facility
that Plaintiff immediately recognized as a dangerous
location, as evidenced by his objections to Carter that
“I could not go to C–95.” Plaintiff explains that C–95

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was “the same facility that defendant Lemon threaten[ed]
to send plaintiff if he don't leave it alone (obtaining
his supportive footwear) even though defendant Lemon
knew that a few officers tried to have physical injury
done to plaintiff.” The causal connection is based on
this explicit threat by Lemon, coupled with the fact that
Plaintiff filed a grievance against Lemon (thereby not
“leav[ing] it alone”) and the fact that Lemon “told plaintiff
that his underlings will be dealing with me.” Applying
the standard that Judge Swain articulated in Salahuddin,
which includes the proviso that prison officials may not
transfer prisoners “solely in retaliation for the exercise of
constitutional rights,” 2006 WL 266574, at *5 (citations
omitted), the Court concludes that Plaintiff's claim of
retaliatory transfer survives this motion to dismiss.
Fourth, Plaintiff alleges that Williams locked him in an
intake area without food, water, showers, linens, running
water, or a bathroom as retaliation for Plaintiff's 2008 civil
case against Williams. The protected activity is Plaintiff's
prior civil case. The adverse action is Williams' decision to
confine Plaintiff to an intake area without basic necessities
for two days. The causal connection is based on Williams'
statement that “I know who the fuck you are, you got a
lot of balls coming to this building!” This claim survives
Defendants' motion to dismiss.
*10 Finally, Plaintiff alleges that Becote, Morris, and
Daly threatened him in several ways on and after March
28, 2012, and that Bacote gave Plaintiff a ticket without
any other justification that resulted in Plaintiff being
punished for 40 days. The protected activity is Plaintiff's
decision to litigate this case. The adverse actions consist
of verbal and physical threats and a handcuffing by
Becote, Morris, and Daly, as well as the forty days
of punishment that resulted from Becote's trumped-up
charges. The causal connection is based on the facts that
Daly learned of this case and told Plaintiff that Daly had
“something” for Plaintiff upstairs, that Becote reviewed
the initial complaint in this case after Plaintiff complained
of Daly's threat, and that Daly and Becote (joined by
Morris) commenced their allegedly adverse actions almost
immediately afterwards. A retaliation claim based on the
threats and handcuffing described by Plaintiff cannot
succeed because these actions do not rise to the level of
severity prerequisite to a finding of adverse action. Thus,
the retaliation claim against Daly, Morris, and Becote
based on their threats and handcuffing must be dismissed.
However, forty days of punishment for a charge fabricated

to punish an inmate for filing a civil lawsuit does qualify
as an adverse action under retaliation doctrine. 3 Given
that Plaintiff also described facts that support a finding
of causal connection, Defendants' motion to dismiss the
retaliation claim against Becote arising from the ticketing
incident is denied.
3

Defendants argue that Plaintiff should be required
specifically to allege that he did not engage in
the behavior charged by the ticket. In the Second
Amended Complaint, however, Plaintiff plainly states
that “Up until that point plaintiff have not had one
single problem that would warrant a misbehavior
report, nor have plaintiff ever refused to lockin.” He adds that “both charges [were] fabricated
by defendant Bacote.” These facts, taken as true
for purposes of this motion, negate Defendants'
argument.

In sum, Plaintiff's retaliation claims against Garcia,
Lemon, Williams, and Becote survive this motion to
dismiss. All other retaliation claims are dismissed.

2. Access to Courts
“It is well established that all persons enjoy a
constitutional right of access to the courts, although the
source of this right has been variously located in the First
Amendment right to petition for redress, the Privileges
and Immunities Clause of Article IV, section 2, and
the Due Process Clauses of the Fifth and Fourteenth
Amendments.” Monsky v. Moraghan, 127 F.3d 243, 246
(2d Cir.1997) (collecting cases). “The right of access
to courts extends beyond mere physical access to a
courtroom and a judge.” Id. “Prisoners must have a
‘reasonably adequate opportunity to present claimed
violations of fundamental constitutional rights to the
courts.’ “ Smith, 2005 WL 1026551, at *6 (quoting Bounds
v. Smith, 430 U.S. 817, 825, 97 S.Ct. 1491, 52 L.Ed.2d
72 (1977)). Thus, the active interference of prison officials
in the preparation, filing, or exchange of legal documents
may constitute denial of access to the courts. See Lewis v.
Casey, 518 U.S. 343, 350, 116 S.Ct. 2174, 135 L.Ed.2d 606
(1996).
“In order to establish a violation of a right of access
to courts, a plaintiff must demonstrate that a defendant
caused actual injury, i.e., took or was responsible for
actions that hindered [a plaintiff's] efforts to pursue a legal
claim.” Monsky, 127 F.3d at 247 (quotation marks and

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citations omitted). “Interference with legal mail implicates
a prison inmate's rights to access to the courts ... [t]o
state a claim for denial of access to the courts—in this
case due to interference with legal mail—a plaintiff must
allege that the defendant took or was responsible for
actions that hindered [a plaintiff's] efforts to pursue a
legal claim.” Davis v. Goord, 320 F.3d 346, 351 (2d
Cir.2003) (quotation marks and citations omitted); see
also id. (“In addition to the right of access to the courts, a
prisoner's right to the free flow of incoming and outgoing
mail is protected by the First Amendment.”) (citations
omitted)). Accordingly, “[i]n balancing the competing
interests implicated in restrictions on prison mail, courts
have consistently afforded greater protection to legal mail
than to non-legal mail, as well as greater protection to
outgoing mail than to incoming mail.” Id. (collecting
cases).
*11 “To state a valid § 1983 claim that he has
been denied reasonable access to the courts, [an
inmate] must show that the alleged deprivation actually
interfered with his access to the courts or prejudiced
an existing action.” Jermosen v. Coughlin, 877 F.Supp.
864, 871 (S.D.N.Y.1995); see also Davis, 320 F.3d at
352 (“[Plaintiff] fails to state a constitutional claim for
violating his right to send and receive legal mail because he
alleges neither the establishment of an ongoing practice by
prison officials of interfering with his mail nor any harm
suffered by him from the tampering.”). “A delay in being
able to work on one's legal action or communicate with
the courts does not rise to the level of a constitutional
violation.” Jermosen, 877 F.Supp. at 871. “In other
words the plaintiff must show that a non-frivolous legal
claim had been frustrated or was being impeded due to
the actions of prison officials.” Cancel v. Goord, No.
00 Civ.2042, 2001 WL 303713, at *4 (S.D.N.Y. Mar.
29, 2001) (citations omitted); see also Smith, 2005 WL
1026551, at *6; Bartley v. Artuz, No. 95 Civ. 10161, 1999
WL 942425, at *9 (S.D.N.Y. Oct.19, 1999).
Plaintiff alleges at multiple points that certain defendants
interfered with his mail, including his legal mail, and took
action against him in retaliation for his grievances and
civil lawsuits (including this suit). 4 Most of Plaintiff's
legal claims arising from this course of events are covered
by First Amendment retaliation doctrine. Regardless,
because Plaintiff has not alleged facts that reveal
a substantial delay or interruption in his ability to
communicate with the Court, and has not alleged facts

that could support a finding that he has been prejudiced
or impeded in his legal actions, Defendants' motion to
dismiss must be granted as to any access to court claim
suggested by the Complaint. See Cancel, 2001 WL 303713,
at *4.
4

Plaintiff's opposition to the motion to dismiss the
First Amended Complaint contains additional facts
of this sort, some of which are addressed by
Defendants in their filings. Those allegations are
not considered in this opinion, which addresses only
the now-operative Second Amended Complaint and
Defendants' motion to dismiss.

C. Eighth Amendment
The Eighth Amendment to the U.S. Constitution provides
that “cruel and unusual punishments [shall not be]
inflicted.” U.S. Const. amend. VIII. That rule, applicable
to the states through the Fourteenth Amendment, see
Estelle v. Gamble, 429 U.S. 97, 101–02, 97 S.Ct. 285,
50 L.Ed.2d 251 (1976), is violated by unnecessary and
wanton inflictions of pain and suffering, see Whitley v.
Albers, 475 U.S. 312, 320, 106 S.Ct. 1078, 89 L.Ed.2d 251
(1986).
Plaintiff alleges Eighth Amendment violations under
two distinct theories: inadequate medical treatment and
unconstitutional conditions of confinement. 5 In 1976,
the Supreme Court explained that “deliberate indifference
to serious medical needs of prisoners constitutes the
unnecessary and wanton infliction of pain proscribed by
the Eighth Amendment ... whether the indifference is
manifested by prison doctors in their response to the
prisoner's needs or by prison guards in intentionally
denying or delaying access to medical care or intentionally
interfering with the treatment once prescribed.” Estelle,
429 U.S. at 104–05 (quotation marks and internal citations
omitted). The Court has since clarified that “we see no
significant distinction between claims alleging inadequate
medical care and those alleging inadequate conditions of
confinement .... Whether one characterizes the treatment
received by [the prisoner] as inhumane conditions of
confinement, failure to attend to his medical needs, or
a combination of both, it is appropriate to apply the
deliberate indifference standard articulated in Estelle.”
Wilson v. Seiter, 501 U.S. 294, 303, 111 S.Ct. 2321,
115 L.Ed.2d 271 (1991) (quotation marks and citations
omitted).

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5

The Complaint also suggests an instance of tight
handcuffing by Daly while Morris ordered Plaintiff
to “play the wall” after Plaintiff's visit to the medical
clinic. To the extent that Plaintiff alleges an Eighth
Amendment excessive force claim based on this
incident, that claim does not succeed on these facts.
As this Court has noted:
[S]ome degree of injury is ordinarily required to
state a claim of excessive use of force in violation
of the Eighth Amendment. A plaintiff need not
prove significant injury to make out an excessive
force claim, but a de minimis use of force will rarely
suffice to state a constitutional claim. De minimis
force, even if clearly unpleasant to endure, does not
violate the Eighth Amendment where the use of
force is not of a sort repugnant to the conscience of
mankind.
Taylor v. New York Dept. of Corr., No. 10 Civ. 3819,
2012 WL 2469856, at *4 (S.D.N.Y. June 27, 2012);
see also id. at *3–5 (discussing Eighth Amendment
excessive force doctrine). Here, Plaintiff does not
allege any serious injury, nor does he allege that he
protested that the handcuffs were too tight or that the
officers acted abusively. Cf. Sachs v. Cantwell, No. 10
Civ. 1663, 2012 WL 3822220, at *14 (S.D.N.Y. Sept.
4, 2012) (discussing the legal standard for excessive
force claims under the Fourth Amendment for claims
based on tight handcuffing).

*12 To state an Eighth Amendment claim, a prisoner
must allege both (1) that he suffered a sufficiently,
objectively serious deprivation and (2) that officials who
caused the harm acted or failed to act with a sufficiently
culpable state of mind, i.e., with deliberate indifference to
inmate health or safety. See Farmer v. Brennan, 511 U.S.
825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).
The objective prong of this analysis requires an assessment
of the allegedly cruel and unusual conditions. “[T]he
Constitution does not mandate comfortable prisons.”
Rhodes v. Chapman, 452 U.S. 337, 349, 101 S.Ct. 2392,
69 L.Ed.2d 59 (1981). However, prisoners may not be
deprived of “basic human needs—e.g., food, clothing,
shelter, medical care, and reasonable safety.” Helling v.
McKinney, 509 U.S. 25, 32, 113 S.Ct. 2475, 125 L.Ed.2d
22 (1993). “Nor may prison officials expose prisoners
to conditions that ‘pose an unreasonable risk of serious
damage to [their] future health.’ “ Phelps v. Kapnolas, 308
F.3d 180, 185 (2d Cir.2002) (quoting Helling, 509 U.S.
at 35). “Ultimately, to establish the objective element of
an Eight Amendment claim, a prisoner must prove that
the conditions of his confinement violate contemporary

standards of decency.” Id. (citations omitted); see also
Carr v. Canty, No. 10 Civ. 3829, 2012 WL 3578742, at *3
(S.D.N.Y. Aug.16, 2012) (“[T]o establish the deprivation
of a basic human need such as reasonable safety, an inmate
must show actual or imminent harm.” (quotation marks
and citations omitted)).
“To establish the second element, deliberate indifference,
a plaintiff must show something more than mere
negligence ....“ Id. (internal quotation marks and citation
omitted). An official cannot be found liable on a
conditions of confinement theory “unless the official
knows of and disregards an excessive risk to inmate health
or safety; the official must both be aware of facts from
which the inference could be drawn that a substantial
risk of serious harm exists, and he must also draw the
inference.” Farmer, 511 U.S. at 837. The Second Circuit
has noted that “[t]his deliberate indifference element is
equivalent to the familiar standard of recklessness as used
in criminal law.” Phelps v. Kapnolas, 308 F.3d at 186
(quotation marks omitted). “Whether a prison official
had the requisite knowledge of a substantial risk is a
question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence, ...
and a factfinder may conclude that a prison official knew
of a substantial risk from the very fact that the risk was
obvious.” Farmer, 511 U.S. at 842.
Plaintiff's conditions of confinement claims against
Williams and Bacote for confining him in intake areas do
not succeed. Plaintiff's claim against Williams is based on
the fact that Plaintiff was confined to an intake bullpen
for two days and denied access to food, shower, linens,
running water, and a bathroom. Plaintiff's claim against
Becote is based on the fact that, on the 5–7 occasions that
Plaintiff was moved out of V.C.B.C. at Becote's command,
Plaintiff was forced to sleep in an intake area with “a
constant air-condition system” that blew “extreme cold
air” onto Plaintiff, who lacked blankets, sheets, running
water, and a toilet.
*13 Addressed individually, none of these conditions
suffices to state an Eighth Amendment violation. It is
well established that deprivation of food, see Robles v.
Coughlin, 725 F.2d 12, 15 (2d Cir.1983), denial of toilet
paper and toiletries, see Trammell v. Keane, 338 F.3d 155,
165 (2d Cir.2003), exposure to the bitter cold, see Gaston
v. Coughlin, 249 F.3d 156, 164 (2d Cir.2001), exposure to
the cold without bed linens, see Maguire v. Coughlin, 901

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F.Supp. 101, 105 (N.D.N.Y.1995), and confinement in a
cell without a toilet, see LaReau v. MacDougall, 473 F.2d
974, 977 (2d Cir.1972), can result in an Eighth Amendment
violation when severe enough or sustained over a long
enough period of time. Moreover,
[s]ome conditions of confinement may establish an
Eighth Amendment violation “in combination” when
each would not do so alone, but only when they have a
mutually enforcing effect that produces the deprivation
of a single, identifiable human need such as food,
warmth, or exercise-for example, a low cell temperature
at night combined with a failure to issue blankets.
Wilson, 501 U.S. at 304 (citations omitted). In this case,
however, the Court cannot conclude that the deprivations
that Plaintiff experienced rise to the level of cruel and
unusual punishment. This determination hinges largely
on the fact that none of Plaintiff's confinements in the
intake areas lasted more than two days. Given that none
of these deprivations rose to an acute and conscienceshocking level, either alone or in combination, the relative
brevity of Plaintiff's mistreatment precludes a finding that
Plaintiff can satisfy the requirement of an objectively
serious deprivation.
The Court reaches a different conclusion, however, with
respect to Plaintiff's claim based on denial of medical care.
At this early stage in the case, drawing all inferences in
Plaintiff's favor, the Court concludes that Plaintiff has
sufficiently alleged a serious medical need.
It is well established that not every claim made by
a prisoner that he has not received adequate medical
treatment states a violation of the Eighth Amendment;
neither negligence nor medical malpractice is sufficient.
Smith v. Carpenter, 316 F.3d 178, 184 (2d Cir.2003). To the
contrary, a plaintiff must show conduct that is “repugnant
to the conscience” or “incompatible with the evolving
standards of decency that mark the progress of a maturing
society.” Estelle, 429 U.S. at 102, 105 (citations omitted). 6
6

Moreover, inmates are not entitled to the medical
treatment of their choice. Chance v. Armstrong, 143
F.3d 698, 703 (2d Cir.1998) ( “[M]ere disagreement
over the proper treatment does not create a
constitutional claim. So long as the treatment given
is adequate, the fact that a prisoner might prefer a
different treatment does not give rise to an Eighth

Amendment violation.” (citation omitted)); see also
Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir.1986).

Defendants cite a number of cases that have rejected
Eighth Amendment claims based on denial of footwear.
Most of these cases are off-point or address the issue
only with stray lines of obiter dictum. While the Court
agrees that the legal principles articulated by these cases
would defeat a conditions of confinement claim in this case
based on shoddy footwear, it parts ways from Defendants
on the significance of these cases for Plaintiff's denial of
medical care claim. 7 Although these claims are analyzed
under the same doctrinal framework, the presence of a
medical treatment issue calls upon the Court to assess
with particularity the nature and quality of the medical
deprivation that Plaintiff endured. As the Second Circuit
has explained,
7

Nearly all of the cases cited by Defendants either
address this point in brief dicta or discuss only a
conditions of confinement claim where the plaintiff
lacked a medical condition, medically advised
footwear, or prescription medication. In Edwards v.
Quinones, Judge Pauley held that a plaintiff could
not satisfy the deliberate indifference element—and
then added in a single sentence of dicta that the
plaintiff, who had not alleged such facts as medical
need, prescribed painkillers, or extreme pain, “[bore]
the hallmarks of a recreational litigant.” No. 10 Civ.
314 1, 2010 WL 4669110, at * 1, *3 (S.D.N.Y. Nov.17,
2010). Walker v. Clemson, presented by Defendants
as their principal case, similarly misses the mark.
No. 11 Civ. 9623, 2012 WL 2335865 (S.D.N.Y. June
20, 2012) report and recommendation adopted, No.
11 Civ. 9623, 2012 WL 3714449 (S.D.N.Y. Aug.28,
2012). In Walker, the plaintiff was denied use of
personal sneakers even after a doctor recommended
that he be provided with supportive footwear to
remedy a foot spur; this injury, coupled with the
prison-issued sneakers, caused the plaintiff “to suffer
pain, chronic fungus, [and] a painful gait which in
turn warranted the use of a cane to correct” and
resulted in a possible need for surgery. Id. at * 1.
Magistrate Judge Cott recommended denial of a
conditions of confinement claim based on deprivation
of basic human needs, noting that “[w]hile the prisonissued footwear may not have been as supportive as
[the plaintiff's] personal sneakers, the Constitution
does not require that prisons provide high-quality
footwear.” Id . at *4. However, when Judge Cott
turned to the plaintiff's separate claim of inadequate
medical care, he concluded that an absence of

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information about “how much time passed from [ ]
the date Walker was seen by the facility doctor,
to the date his personal sneakers were returned
to him” prevented any “determination from the
pleadings as to the particular risk of harm faced by
Walker due to the alleged deprivation.” Id. at *6.
Judge Cott nonetheless recommended denial of the
plaintiff's claim due to failure to satisfy the deliberate
indifference requirement. Id. Several of Defendants'
other citations fare little better because Defendants
rely on cases that deal with ordinary conditions of
confinement claims, not denial of medical care claims.
See, e.g., Martin v. City of New York, No. 11 Civ.
600, 2012 WL 1392648, at *9 (S.D.N.Y. Apr. 20,
2012) (finding no Eighth Amendment violation where
inmate slipped and fell on a wet shower floor while
wearing poorly constructed shoes); Williams v. Dep't
of Corr., No. 11 Civ. 1515, 2011 WL 3962596, at
*4 (S.D.N.Y. Sept.7, 2011) (denying conditions of
confinement claim where poorly constructed shoes
caused slip and falls, and pain in inmate's calves and
feet).

*14 if the unreasonable medical care is a failure
to provide any treatment for an inmate's medical
condition, courts examine whether the inmate's medical
condition is sufficiently serious. Factors relevant to the
seriousness of a medical condition include whether a
reasonable doctor or patient would find [it] important
and worthy of comment, whether the condition
significantly affects an individual's daily activities, and
whether it causes chronic and substantial pain.
Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir.2006)
(citations omitted). While this standard most certainly
includes “condition[s] of urgency that may produce
death, degeneration, or extreme pain,” Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir.1996) (citation
omitted), it has also been interpreted to include “less
serious denials [of medical attention] which cause or
perpetuate pain.” Brock v. Wright, 315 F.3d 158, 163 (2d
Cir.2003). Thus, courts “will no more tolerate prison
officials' deliberate indifference to the chronic pain of
an inmate than we would a sentence that required
the inmate to submit to such pain.” Id. Accordingly,
when presented with denial of medical treatment claims,
courts do not “require an inmate to demonstrate that
he or she experiences pain that is at the limit of
human ability to bear, nor do we require a showing
that his or her condition will degenerate into a lifethreatening one.” See id. (disagreeing with district court
determination that chronic pain somewhere between

‘annoying’ and ‘extreme’ could not suffice to support
a denial of treatment violation under the Eighth
Amendment).
Here, Plaintiff states that he experienced months of
“extreme pain,” including intense pain in his feet, severely
swollen ankles, and chronic bouts of lower back pain,
as the direct result of Defendants' allegedly malicious
refusal to allow him access to supportive footwear.
These symptoms, he reports, resulted in a visit to the
hospital to examine his swollen ankles and difficulties
engaging in certain prerequisites to prison life, such as
“playing the wall” and kneeling on the ground during
a search. Significantly, this situation persisted despite
several recommendations from prison physicians that
Plaintiff be allowed to wear supportive footwear, despite
official permits from these physicians, and despite the fact
that Plaintiff was prescribed painkillers to deal with the
pain that resulted from non-treatment. Plaintiff is thus
differently situated than the plaintiffs in other cases that
lacked medical advice and medical prescriptions. 8
8

Further, unlike cases where courts addressed
somewhat analogous facts with the precision made
possible by fully developed factual records, this Court
can rely only on the pleadings. Cf. Cole v. Scully,
No. 93 Civ.2066, 1995 WL 231250, at *3 (S.D.N.Y.
Apr.18, 1995)

While “[i]t is a far easier task to identify a few
exemplars of conditions so plainly trivial and insignificant
as to be outside the domain of Eighth Amendment
concern than it is to articulate a workable standard
for determining ‘seriousness' at the pleading stage,”
Chance, 143 F.3d at 702–03 (citations omitted), the
Court concludes that this claim must survive Defendants'
motion to dismiss. Plaintiff has described a form of
near-chronic suffering that, by his own account, far
exceeds the threshold of merely annoying and rises to the
level of extreme pain. Brock, 315 F.3d at 163. Notably,
physicians found this condition “worthy of comment” and
treatment—namely, prescription painkillers and medical
permits—and Plaintiff has explained that this condition
“significantly affects [his] daily activities.” See Salahuddin,
467 F.3d at 280. While this case is in some respects
a close one, the Court cannot conclude as a matter
of law that Plaintiff's injuries fall below the relevant
threshold of objective severity for purposes of an Eighth
Amendment denial of medical treatment claim. The
settled fact that “the Constitution does not mandate
comfortable prisons,” Rhodes, 452 U.S. at 349, simply

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does not mean that the Eighth Amendment abides the
wanton infliction of months of “extreme” pain through
the allegedly arbitrary denial of medically authorized
footwear by prison guards. Recalling that “[m]obility
is fundamental to our continued health,” the Court
concludes that “discovery could shed light on whether
Plaintiff's medical need was of such seriousness and
urgency that the failure to address it ... amounted to a
violation of Plaintiff's constitutional rights.” Giambalvo
v. Sommer, No. 10 Civ. 6774, 2012 WL 4471532, at *5
(S.D.N.Y. Sept.19, 2012). 9
9

Defendants argue that this claim must be dismissed
on the basis of a single Inmate Grievance Form (IGF)
from October 12, 2011, which Defendants argue is
incorporated into the Complaint by reference. Even
assuming that this IGF is, in fact, incorporated by
reference, it would not constitute a basis to dismiss
the Complaint. This form states that, as a resolution
of Plaintiff's grievance, “the [Inmate Grievance
Resolution Committee] was informed that if your
medical note is current, you are advised to bring
your medical note to the clothes box and you will be
issued supportive footwear.” The IGF indicates that
Plaintiff refused to sign. Nothing about this document
plainly contradicts Plaintiff's own account of events.
It is entirely possible that the Committee took that
permissive position in response to his grievance, but
that Defendants nonetheless maliciously and willfully
disregarded that instruction from the Committee.
The fact that Plaintiff refused to sign the form says
little on its own; it certainly does not contradict
Plaintiff's allegations that Defendants denied him
access to his supportive footwear notwithstanding
a medical permit, nor does it prove that Plaintiff
actually received supportive footwear.

*15 Because Defendants have not moved to dismiss
these claims on any ground other than Plaintiff's supposed
failure to demonstrate a sufficiently serious deprivation,
the Court does not examine whether Plaintiff satisfies the
other requirements of a denial of medical treatment claim
(including the requirement of a culpable mental state on
Defendants' part).
In the Complaint, Plaintiff identifies Schriro, Agro,
Lemon, Fraizer, Williams, Best, Smith, Garcia,
Washington, Lespinasse, Hart, Hines, Anku, and
Moultrie as the defendants associated with the deliberate
indifference claim. Because the Complaint was filed by a
pro se litigant, it must be interpreted to raise the strongest

claims it suggests against the set of named defendants.
The Court has independently examined the Complaint
and concludes that Plaintiff's Eighth Amendment claim
is alleged against Hart, Lespinasse, Washington, Lemon,
Fraizer, Best, Williams, Harris, Garcia, Moultre, Smith,
and Hines. For the reason set forth infra, Plaintiff's
claims against Schriro and Agro are dismissed for
failure adequately to allege their supervisory liability.
Further, Plaintiff's allegations against Aknu involve
only conditions of confinement; to wit, being required
to kneel uncomfortably for 30–45 minutes during a
search. Because the Complaint does not allege that Aknu
participated in the denial of Plaintiff's request for medical
treatment, the Eighth Amendment claim against him must
be dismissed.

D. Claims Against Defendants Schriro and Agro
“It is well-settled that where the complaint names a
defendant in the caption but contains no allegations
indicating how the defendant violated the law or injured
the plaintiff, a motion to dismiss the complaint in regard
to that defendant should be granted.” McCoy v. Goord,
255 F.Supp.2d 233, 258 (S.D.N.Y.2003) (quotation marks
and citations omitted). Under § 1983, supervisory liability
“depends on a showing of some personal responsibility,
and cannot rest on respondeat superior.” Hernandez v.
Keane, 341 F.3d 137, 144 (2d Cir.2003) (citing Al–Jundi v.
Estate of Rockefeller, 885 F.2d 1060, 1065 (2d Cir.1989)).
“[P]roof of ‘linkage in the prison chain of command’ is
insufficient.” Id. (quoting Ayers v. Coughlin, 780 F.2d 205,
210 (2d Cir.1985)). “Absent some personal involvement
by [an official] in the allegedly unlawful conduct of his
subordinates,” he cannot be liable under section 1983.
Gill v. Mooney, 824 F.2d 192, 196 (2d Cir.1987); see
also Hernandez, 341 F.3d at 145 (specifying some of the
forms of involvement that would support supervisory
liability). A defendant's status as warden or commissioner
of a prison, standing alone, is thus insufficient to
support a finding of supervisory liability. See Collins,
438 F.Supp.2d at 420. Further, merely “affirming the
administrative denial of a prison inmate's grievance by
a high-level official is insufficient to establish personal
involvement under section 1983.” Manley v. Mazzuca,
No. 01 Civ. 5178, 2007 WL 162476, at *10 (S.D.N.Y.
Jan.19, 2007). “Broad, conclusory allegations that a highranking defendant was informed of an incident are also
insufficient.” Gonzalez v. Sarreck, No. 08 Civ. 3661, 2011
WL 5051341, at *14 (S.D.N.Y. Oct.24, 2011) (citation
omitted).

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*16 Applying these rules, the Court concludes that
Plaintiff has not alleged facts that could support a finding
of supervisory liability against Agro and Schriro. All
claims against these defendants are therefore dismissed.

E. Claims Against Barker
Plaintiff alleges that Barker violated the Eighth
Amendment by virtue of deliberate indifference to the
public's medical needs and that Barker should be held
liable under the tort law doctrine of products liability
for defective design and failure to warn. These claims do
not succeed. As a provider of shoes to the prison, Barker
could not plausibly be described as one of the officials
acting under color of law “who caused the harm” or did
so with the requisite state of mind—namely, deliberate
indifference. See Farmer, 511 U.S. at 834. This defeats any
Eighth Amendment claim against him. Plaintiff has not
alleged and this Court cannot imagine any other claim
under § 1983 against Barker. Thus, there is no federal
claim in this case against Barker.
Absent such a federal claim, this Court could only
consider a state law products liability claim against
Baker as a matter of supplemental jurisdiction. Given the
early stage of this litigation and the markedly distinct
nature of the state law claims as compared to Plaintiff's
federal claims, the Court declines to exercise supplemental
jurisdiction over the varied products liability claims
End of Document

alleged in the Complaint. See Tops Markets, Inc. v. Quality
Markets, Inc., 142 F.3d 90, 102–03 (2d Cir.1998) (noting
that “when all federal claims are eliminated in the early
stages of the litigation, the balance of factors generally
favors declining to exercise pendent jurisdiction over
remaining state law claims and dismissing them without
prejudice”).
All claims against Barker are therefore dismissed.

IV. Summary of Remaining Claims
All claims in this case are dismissed except for First
Amendment retaliation claims against Garcia, Lemon,
Williams, and Becote, and Eighth Amendment denial
of medical treatment claims against Hart, Lespinasse,
Washington, Lemon, Fraizer, Best, Williams, Harris,
Garcia, Moultre, Smith, and Hines.

V. Conclusion
For the foregoing reasons, Defendants' motion to dismiss
is granted in part and denied in part. The Clerk of Court
is directed to close the motion at Dkt. No. 32.
SO ORDERED.

All Citations
Not Reported in F.Supp.2d, 2013 WL 1234930
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