Hirsch v. Mastro et al

Filing 4

TRANSFER ORDER: The Clerk of Court is directed to transfer this action to the United States District Court for the Eastern District of New York. Whether Plaintiff should be permitted to proceed further without prepayment of fees is a determination to be made by the transferee court. All other pending matters, including Plaintiff's request for a preliminary injunction and temporary restraining order, are also left to the transferee court. A summons will not issue from this Court. This order closes this case. Plaintiff has consented to electronic service of court documents. (ECF 3.) The Court certifies, pursuant to 28 U.S.C 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge Laura Taylor Swain on 7/16/2021) (sac) Transmission to Office of the Clerk of Court for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
ELLIOT M. HIRSCH,
Plaintiff,
-againstWILLIAM F. MASTRO, SYLVIA O.
HINDS-RADIZ-X, VALERIE
BRAITHWAITE NELSON, LINDA
CHRISTOPHER, JJ., JUSTICES OF THE
OF THE SUPREME COURT STATE OF
NEW YORK APPELLATE DIVISION 2ND
DEPT.; ATTORNEY GENERAL LETITIA
JAMES, REPRESENTING THE STATE
OF NEW YORK

21-CV-6055 (LTS)
TRANSFER ORDER

Defendants.
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff brings this pro se action under 42 U.S.C. § 1983, challenging the decision of the
New York State Supreme Court, Appellate Division, Second Department, to deny him leave to
proceed as a poor person in his appeal of a matter from the New York State Supreme Court,
Kings County. For the following reasons, the Court transfers this action to the United States
District Court for the Eastern District of New York.
DISCUSSION
Under 28 U.S.C. § 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 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.

Under § 1391(c), a “natural person” resides in the district where the person is domiciled, and an
“entity with the capacity to sue and be sued” resides in any judicial district where it is subject to
personal jurisdiction with respect to the civil action in question. See 28 U.S.C. § 1391(c)(1), (2).
Plaintiff alleges that his claims arose in the New York State Supreme Court, Appellate
Division, Second Department, in Brooklyn, New York. Brooklyn is in Kings County, which is in
the Eastern District of New York. But he names Attorney General Leticia James, in her capacity
of representing the State of New York, as a defendant. Thus, venue is proper in this District
under 28 U.S.C. § 1391(b)(1), because James is located within the Southern District of New
York.
Even though venue is proper here, the Court may transfer claims “[f]or the convenience
of the parties and witnesses, in the interest of justice.” 28 U.S.C. § 1404(a). “District courts have
broad discretion in making determinations of convenience under Section 1404(a) and notions of
convenience and fairness are considered on a case-by-case basis.” D.H. Blair & Co. v.
Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006). Moreover, courts may transfer cases on their own
initiative. See Bank of Am., N.A. v. Wilmington Trust FSB, 943 F. Supp. 2d 417, 426-427
(S.D.N.Y. 2013) (“Courts have an independent institutional concern to see to it that the burdens
of litigation that is unrelated to the forum that a party chooses are not imposed unreasonably on
jurors and judges who have enough to do in determining cases that are appropriately before
them. The power of district courts to transfer cases under Section 1404(a) sua sponte therefore is
well established.” (quoting Cento v. Pearl Arts & Craft Supply Inc., No. 03-CV-2424, 2003 WL
1960595, at *1 (S.D.N.Y. Apr. 24, 2003))); see also Lead Indus. Ass’n. Inc. v. OSHA., 610 F.2d
70, 79 (2d Cir. 1979) (noting that “broad language of 28 U.S.C. § 1404(a) would seem to permit
a court to order transfer sua sponte”).

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In determining whether transfer is appropriate, courts consider the following factors:
(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 the 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
to the plaintiff’s choice of forum; (9) trial efficiency; and (10) the interest of justice, based on the
totality of circumstances. Keitt v. N.Y. City, 882 F. Supp. 2d 412, 459-60 (S.D.N.Y. 2011); see
also N.Y. Marine and Gen. Ins. Co. v. LaFarge No. Am., Inc., 599 F.3d 102, 112 (2d Cir. 2010)
(setting forth similar factors). A plaintiff’s choice of forum is accorded less deference where
plaintiff does not reside in the chosen forum and the operative events did not occur there. See
Iragorri v. United Tech. Corp., 274 F.3d 65, 72 (2d Cir. 2001).
Under § 1404(a), transfer of this action to the Eastern District of New York appears to be
appropriate. First, because the State of New York, for which Plaintiff names James as a
defendant, is located within the Eastern District of New York as well as this District, venue is
proper in that district under § 1391(b)(1). Second, as the underlying events occurred in Kings
County, and the four Justices that Plaintiff sues are located in that county, venue is proper in the
Eastern District under § 1391(b)(2). Third, it is likely that relevant documents and witnesses are
located within the Eastern District.
Based on the totality of the circumstances, the Court concludes that it is in the interest of
justice to transfer this action to the United States District Court for the Eastern District of New
York. 28 U.S.C. § 1404(a).
CONCLUSION
The Clerk of Court is directed to transfer this action to the United States District Court
for the Eastern District of New York. Whether Plaintiff should be permitted to proceed further
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without prepayment of fees is a determination to be made by the transferee court. All other
pending matters, including Plaintiff’s request for a preliminary injunction and temporary
restraining order, are also left to the transferee court. A summons will not issue from this Court.
This order closes this case.
Plaintiff has consented to electronic service of court documents. (ECF 3.)
The Court certifies, pursuant to 28 U.S.C § 1915(a)(3), that any appeal from this order
would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose
of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
SO ORDERED.
Dated:

July 16, 2021
New York, New York
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
Chief United States District Judge

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