Piper v. Torna, Inc. et al

Filing 23

OPINION AND ORDER: For the reasons stated above, Defendants' motion for a transfer is denied. The case shall proceed according to the scheduling order issued by Judge Roman on October 2, 2014 (Dkt. 12 ), unless the parties request - and the Cou rt orders - otherwise. Additionally, Defendants Toma, Shoprite, and Wakefern are instructed to submit a joint letter advising the Court as to the status of any responsive pleading no later than January 16, 2015. SO ORDERED. (Signed by Judge Ronnie Abrams on 1/6/2015) (ajs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRO NI CALLY FILED
DOC#:
DATE FILED:
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RHONI PIPER,
Plaintiff,
No. 14 Civ. 5886 (RA)

-againstTORNA, INC., SHOPRITE OF
WATERBURY, LLC, WAKEFERN FOOD
CORP., and ALLIED MECHANICAL
SERVICES, LLC,

OPINION AND ORDER

Defendants.

RONNIE ABRAMS, United States District Judge:
Plaintiff Rhoni Piper filed this personal injury action against Defendants Toma, Inc.
("Toma"), Shoprite of Waterbury, LLC ("Shoprite"), Wakefern Food Corp. ("Wakefern"), and
Allied Mechanical Services, LLC ("Allied") in New York State Supreme Court, Bronx County,
on May 13, 2014. (Dkt. 1 Ex. A.) Defendants removed the action to this Court on July 30, 2014.
(Dkt. 1.) On November 6, 2014, Defendants jointly filed the instant letter motion seeking transfer
of the action from the Southern District of New York to the District of Connecticut-a transfer to
which Plaintiff does not consent. (Dkt. 22.) For the reasons stated below, Defendants' motion is
denied.

BACKGROUND
In her Complaint (Dkt. 1 Ex. A.), Plaintiff alleges that she suffered personal injuries while
shopping at the Shoprite of Waterbury ("the premises"), a grocery store located in Waterbury,
Connecticut, on May 25, 2012. (Id. at if 77.) Specifically, Plaintiff alleges that she slipped, fell,
and suffered injuries as a consequence of a leaking freezer on the premises. (Id. at

if 78.) She

further alleges that Defendants Toma, Shoprite, and Wakefern each either owned or leased the
premises on which her injuries occurred, and that Allied was either the general contractor or
subcontractor responsible for the "construction, restoration, renovation and repair work being
performed upon the premises" at the time of injury. (Id.

at~~

18-75.)

At all times, Plaintiff was-and remains-a resident of Bronx County.

(Id. at

~

1.)

Defendants Toma, Shoprite, and Allied each have their principal place of business in Connecticut,
and each are organized under Connecticut law, while Defendant Wakefern is incorporated and has
its principal place of business in New Jersey. (Dkt. 1 at~~ 4-7.) Defendants argue that the common
residency of three Defendants in Connecticut-the state in which the underlying accident
occurred-necessitates transfer from the Southern District of New York to the District of
Connecticut. (Dkt. 22.) The Court disagrees.

LEGAL STANDARD
Defendants seek the transfer of this action to the District of Connecticut pursuant to 28
U.S.C. § 1404(a). 1 Under this provision, "[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).
In determining whether to grant a transfer motion, courts in this Circuit engage in a twopart analysis: "(l) whether the action might have been brought in the proposed transferee forum;
and (2) whether the transfer promotes convenience and justice." Excelsior Designs, Inc. v. Sheres,
291 F. Supp. 2d 181, 185 (E.D.N.Y. 2003) (internal quotations omitted). In conducting this
analysis, there is "ordinarily a strong presumption in favor of a plaintiffs choice of forum," and it

1

In their letter motion, Defendants seek a transfer pursuant to 28 U.S.C. § 1404(a), but quote the statutory text of28
U.S.C. § l 404(b). (Dkt. 22.) Because Defendants seek transfer outside of this District, however, the motion will be
considered under 28 U.S.C. § 1404(a).

2

is the "moving party [that] bears the burden of showing, by clear and convincing evidence, that a
transfer is appropriate." Phillips v. Reed Group, Ltd., 955 F. Supp. 2d 201, 229 (S.D.N.Y. 2013).
"An action 'might have been brought' in another forum if venue would have been proper
there and the defendants would have been amenable to personal jurisdiction in the transferee forum
when the action was initiated." Lihuan Wang v. Phoenix Satellite Television US, Inc., No. 13 Civ.
218(PKC), 2014 WL 116220, at *2 (S.D.N.Y. Jan. 13, 2014). In determining whether the transfer
promotes convenience and justice, courts in this Circuit consider several factors, including: "(1)
the convenience of witnesses, (2) the convenience of the parties, (3) the locus of operative facts,
(4) the availability of process to compel the attendance of unwilling witnesses, (5) the location of
relevant documents and the relative ease of access to sources of proof, (6) the relative means of
the parties, (7) the forum's familiarity with the governing law, (8) the weight accorded the
plaintiffs choice of forum, and (9) trial efficiency and the interest of justice, based on the totality
of the circumstances." Invivo Research, Inc. v. Magnetic Resonance Equip. Com., 119 F. Supp.
2d 433, 436 (S.D.N.Y. 2000).
"The convenience of the witnesses and the locus of the operative facts of the case are
typically regarded as primary factors in [this] balance-of-convenience inquiry." Liberty Mut. Ins.
Co. v. Fairbanks Co., 17 F.Supp.3d 385, 396 (S.D.N.Y. 2014). A party seeking transfer on this
basis "must clearly specify the key witnesses to be called and must make a general statement of
what their testimony will cover." Id. (internal quotations omitted). Despite the primacy of the
convenience-of-the-witness and locus-of-operative-facts factors, however, a "plaintiffs choice of
forum is generally entitled to considerable weight and should not be disturbed unless other factors
weigh strongly in favor of transfer." Excelsior Designs, Inc., 291 F. Supp. 2d at 187.

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DISCUSSION
Here, Plaintiff's action might have been brought in the District of Connecticut. All of the
members of Defendants Shoprite and Allied are residents of Connecticut (Dkt. 22 at 2), and
Defendant Toma is incorporated there, (id.); the U.S. District Court for the District of Connecticut
would thus have personal jurisdiction over these defendants.

Similarly, although Defendant

Wakefern has its principal place of business and is incorporated in New Jersey, its ownership or
lease of the Connecticut premises on which Plaintiff was injured is a sufficient basis for the
exercise of personal jurisdiction by the federal courts in Connecticut.

See Fed. R. Civ. P.

4(k)(l )(A); Conn. Gen. Stat. § 52-59b. Venue would also be proper in the District of Connecticut,
as it is the "judicial district in which a substantial part of the events or omissions giving rise to the
claim occurred." 28 U.S.C. § 1391(b)(2).
Defendants, nevertheless, have failed to establish that transfer is proper.

Defendants

provide little justification for the transfer of this case: they note that "[t]hree of the defendants are
residents of Connecticut" and that Connecticut is where the accident occurred, but otherwise make
only the conclusory argument-without any supporting facts-that there "is no nexus of this case
to the State of New York, but for plaintiff's residence, which is not sufficient under the facts of
this case." (Dkt. 22 at 2.) Indeed, they fail even to make a formal motion, as this Court requires.
See L. Civ. R. 7.1; ECF R. 13.1.
While it is thus clear that the locus of operative facts (the premises on which Plaintiff's
injuries occurred) is in Connecticut, the Court cannot determine whether a transfer to the District
of Connecticut would be more convenient for the parties and the witnesses. 2

Defendants'

Indeed, because Connecticut neighbors New York, even if witnesses were located in Connecticut, this fact alone
would not demand transfer. See New Asia Enters. Ltd. v. Fabrigue, Ltd., No. 13 Civ. 5271 (JFK), 2014 WL
3950901, at *8 (S.D.N.Y. Aug. 13, 2014).

2

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conclusory letter motion also does not permit the Court to determine the availability of process to
compel testimony by unwilling witnesses, or the locations ofrelevant documents and other sources
of proof.
Furthermore, although the U.S. District Court for the District of Connecticut may be more
familiar with Connecticut substantive law than courts in this District, it is New York's choice of
law rules that would follow the action to Connecticut, see Ferens v. John Deere Co., 494 U.S. 516,
530, (1990), and it is not clear at this time that a trial in Connecticut would be any more or less
efficient than a trial in New York. It is also likely that the relative means of the parties factor
would militate against transfer, as Defendants are business organizations and Plaintiff is an
individual litigant. Even if this anticipated disparity in means was reversed, its import would be
mitigated by the relative proximity of Waterbury (where the injury occurred) to this Court.
In short, Defendants' two-page letter is insufficient to overcome the strong presumption in
favor of Plaintiff's choice of forum. Defendants' motion to transfer this action to the District of
Connecticut is thus denied, without prejudice to renewal. The case shall remain before this Court.

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CONCLUSION
For the reasons stated above, Defendants' motion for a transfer is denied. The case shall
proceed according to the scheduling order issued by Judge Roman on October 2, 2014 (Dkt. 12),
unless the parties request-and the Court orders-otherwise. Additionally, Defendants Toma,
Shoprite, and Wakefern are instructed to submit a joint letter advising the Court as to the status of
any responsive pleading no later than January 16, 2015.
SO ORDERED.
Dated:

January 6, 2015
New York, New York
Ronnie Abrams
United States District Judge

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