Okereke v. Allen

Filing 37

ORDER for 32 Report and Recommendations. This diversity action seeks damages for alleged professional malpractice by the defendant attorney. Defendant moves (1) to dismiss for lack of subject matter jurisdiction, failure to state a claim upon r elief may be granted, improper venue and for other relief, (2) to vacate the Clerk's certificate of default, and (3) for sanctions. In a report and recommendation dated July 29, 2015 (the "R&R"), Magistrate Judge James C. Francis, IV, recommended that the motion be granted to the extent of transferring the action to the District of New Jersey on the basis of improper venue, denied insofar as it seeks dismissal for lack of subject matter jurisdiction, and denied in all other respec ts without prejudice to pursuing the other requested relief in the transferee court. Defendant objects to the R&R, arguing that he should be awarded costs and sanctions and that the case should be dismissed for improper venue rather than transferred. The Court finds no error. Transfer rather than dismissal is in the interest of justice, as the law favors disposition of litigation on the merits. Defendant remains free to pursue sanctions in the transferee court. Accordingly, this action is transferred to the District of New Jersey, where it could have been brought, pursuant to 28 U.S.C. § 1406. (Signed by Judge Lewis A. Kaplan on 9/17/2015) (kko)

USDCSDNY
DOCUMENT

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

ELECTRONICALLy FILED
DOC#:

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DATEF~I~LE=D~:~~7-~~~~I

DR. EMANUEL OKEREKE,
Plaintiff,

-against-

14-cv-3368 (LAK)

JOHN CHARLES ALLEN,
Defendant.

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ORDER
LEWIS A. KAPLAN,

District Judge.

This diversity action seeks damages for alleged professional malpractice by the defendant
attorney. Defendant moves (1) to dismiss for lack of subject matter jurisdiction, failure to state a claim
upon relief may be granted, improper venue and for other relief, (2) to vacate the Clerk's certificate of
default, and (3) for sanctions. In a report and recommendation dated July 29, 2015 (the "R&R"),
Magistrate Judge James C. Francis, IV, recommended that the motion be granted to the extent of
transferring the action to the District of New Jersey on the basis of improper venue, denied insofar as it
seeks dismissal for lack of subject matter jurisdiction, and denied in all other respects without prejudice
to pursuing the other requested relief in the transferee court.
Defendant objects to the R&R, arguing that he should be awarded costs and sanctions
and that the case should be dismissed for improper venue rather than transferred.
The Court finds no error. Transfer rather than dismissal is in the interest of justice, as
the law favors disposition of litigation on the merits. Defendant remains free to pursue sanctions in the
transferee court.
Accordingly, this action is transferred to the District of New Jersey, where it could have
been brought, pursuant to 28 U.S.C. § 1406.
SO ORDERED.
Dated:

September 17, 2015

e is A. Kaplan
United States District Judge