Filing 36


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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA LESTER M. HAYES v. TRANSCOR AMERICA, LLC, ET AL. : : : : : CIVIL ACTION NO. 08-293 MEMORANDUM Padova, J. June 23, 2009 Plaintiff Lester Hayes brings this action pursuant to 42 U.S.C. 1983 and state common law agains t Defendants TransCor America, LLC ("TransCor"), Karen L. Oates, Carolyn Cooper, Kevin M cC o rd , Gary Underwood, Ernest Franklin, Don W. Bowden, Robert Koch, and Mark Spickard (the "in d iv id u al Defendants"), alleging violations of his Eighth and Fourteenth Amendment rights and intention al infliction of emotional distress ("IIED"). Plaintiff's claims arise out of a six-day prisoner ex trad ition transport from North Carolina to Pennsylvania in May 2007. Presently before the Court is D e fen d an ts' Renewed Motion to Dismiss or Transfer Venue, for which we held a hearing on June 11, 2 0 0 9. For the following reasons, we deny the Motion insofar as it seeks dismissal, but grant the Motion inso far as it seeks a transfer of venue. I. BACKGROUND1 Plaintiff is a 67-year-old man who suffers from a herniated disc, arthritis, severe spinal stenosis, h igh blood pressure, and an enlarged prostate. (Am. Compl. 23-24.) Plaintiff's spinal condition "`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). 1 m ake s it extremely painful for him to sit or stand for extended periods of time, and his prostate co n d itio n causes him to experience abnormally frequent urgency to urinate--as often as every 20 to 30 m inu tes. (Id. 25-26.) Plaintiff takes a variety of prescribed medications to treat his medical co n d itio n s. (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 tran sp o rtatio n company in the country, was hired to bring Plaintiff to Philadelphia. (Id. 8, 19.) S h o rtly before the transport set out on its six-day journey, prison medical staff provided Defendants w ith a supply of Plaintiff's medications and informed Defendants of Plaintiff's medical needs. (Id. 3 1 -3 2 ; 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, th ree-d ay legs. (Id. 31.) The first leg involved travel through North Carolina, South Carolina, and T en n ess ee, before stopping overnight in Kentucky. (Id. 22.) During the second leg, the transport co n tin u ed 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 P en n sylva n ia, leaving Mount Holly, New Jersey, at approximately 12:01 a.m. and arriving in P h ilad elp h ia at approximately 1:35 a.m. (Id. 61-62; see also Defs.' Exs. B, C.) O v er 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 sym ptom s. (Am. Compl. 35-36.) Plaintiff also made repeated requests to use bathroom facilities, w h ich 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 2 force d to sit in his soiled clothing for extended periods of time. (Id. 46, 49, 57.) In total, Plaintiff m issed approximately 33 doses of medication, requested to use the bathroom between 20 to 25 times, u rin ated 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 o n ce.2 (Id. at 6, 8, 11.) U po n arriving in Philadelphia, Defendants handed Plaintiff over to the Philadelphia Police D e partm e nt ("PPD"). (Am. Compl. 62-63.) The "Prisoner Receipt" that was filled out by D efen d an ts and delivered to PPD indicated that Plaintiff had no medications with him upon arrival. (Se e Pl.'s Ex. A.) However, a PPD officer, Officer Smith, found a container full of Plaintiff's m edication s attached to Plaintiff's belongings. (Am. Compl. 63.) Plaintiff subsequently received m ed ical care at the Curran-Fromhold Correctional Facility in Philadelphia. (Pl.'s Resp. to Defs.' In terro g. at 12.) II. D IS C U SS IO N D e fen d an ts ask us to dismiss this case because they contend that the Eastern District of P en nsylv an ia is an improper venue under 28 U.S.C. 1391(b). Alternatively, Defendants ask that we tran sfer this case to the Middle District of Tennessee pursuant to 28 U.S.C. 1404(a). Wh en 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 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. 3 2 o r 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 an y other district or division where it might have been brought" "[f]or the convenience of parties and w itn esses, [or] in the interest of justice . . . ." Id. 1404(a). Defendants bear the burden of showing b o th that venue in this District is improper and that transfer to another district is justified. See Chester, 2 0 0 8 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. P ro p er Venue B e cau se this case implicates our federal question jurisdiction pursuant to 28 U.S.C. 1331, p rop er venue is governed by 28 U.S.C. 1391(b). In his Amended Complaint, Plaintiff asserts that this D istrict is a proper venue under 1391(b)(2) because a substantial part of the events giving rise to his claim s occurred in this District. We agree. Wh en a defendant challenges venue under 1391(b)(2), we undertake a two-part inquiry. First, w e "`identify the nature of the claims and the acts or omissions that the plaintiff alleges give rise to th o se claims.'" Chester, 2008 WL 2310946, at *7 (quoting Daniel v. Am. Bd. of Emergency Med., 428 F.3 d 408, 432 (2d Cir. 2005)); see also Cottman Transmissions Sys. v. Martino, 36 F.3d 291, 295 (3d C ir. 1994) (first identifying the acts or omissions that gave rise to the plaintiff's claims before d eterm inin g whether a substantial part of those acts or omissions occurred in the district where the suit w as filed). Second, we "`determine whether a substantial part of those events or omissions material to [th o se] claims . . . have occurred in the district in question.'" Chester, 2008 WL 2310946, at *7 (quoting D a n i e l , 428 F.3d at 432). "Substantiality is intended to preserve the element of fairness so that a 4 d efen d an t is not haled into a remote district having no real relationship to the dispute." Cottman, 36 F.3 d 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. 2 d at 484 (quoting Daniel, 428 F.3d at 432; see also Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2 d Cir. 2005). Conversely, "[e]vents or omissions that might only have some tangential connection w ith the dispute in litigation are not enough." Cottman, 36 F.3d at 294; see also Leone, 574 F. Supp. 2 d at 484. Because 1391 "`does not require a majority of the events take place here, nor that the ch allen ged forum be the best forum for the lawsuit to be venued,'" Fellner, 2005 WL 2660351, at *3 (qu o tin g Park Inn Int'l, L.L.C. v. Mody Enters., Inc., 105 F. Supp. 2d 370, 376 (D.N.J. 2000)), "`[i]t is irrelevan t that a more substantial part of the events took place in another district, as long as a substantial p art 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. 9 1 -52 1 2 , 1993 WL 217246, at *5 (N.D. Ill. July 18, 1993)). At bottom, the substantiality inquiry is m o re qualitative than quantitative. Daniel, 428 F.3d at 432. T u rn in g to the first part of the inquiry, dealing with the nature of Plaintiff's claims, we observe th at Plaintiff alleges that: (1) the individual Defendants violated his Eighth and Fourteenth Amendment righ ts through their intentional, wanton, and deliberate indifference to his medical needs during the tran sp o rt; (2) TransCor violated his Eighth and Fourteenth Amendment rights through the execution o f its unconstitutional policy by the individual Defendants during the transport; and (3) all Defendants inten tio n ally inflicted emotional distress upon him through the conduct of the individual Defendants d u rin g 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 so il himself and sit in soiled clothing for extended periods of time, pursuant to TransCor's allegedly 5 u n co n stitu tio n al policy. Turning to the second part of the inquiry, involving substantiality, we observe that several in stan ces of the conduct giving rise to Plaintiff's claims allegedly occurred in this District.3 Although th e number of acts or omissions alleged to have occurred in this District is relatively small, it is not in sign ifican t. See, e.g., Katz v. Mogus, 538 F. Supp. 2d 538, 542-43 (E.D.N.Y. 2007) (finding venue p rop er where the conduct occurring within the district gave rise to only 20 percent of the plaintiff's d am a ges); McCaskey v. Continential Airlines, Inc., 133 F. Supp. 2d 514, 525 (S.D. Tex. 2001) (finding v en u e proper in the Southern District of Texas where the airline was allegedly negligent for failing to cu t 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 M o o re v. Dixon, 460 F. Supp. 2d 931, 936 (E.D. Wis. 2006) (quoting Master Tech Prods., Inc. v. Smith, 1 81 F. Supp. 2d 910, 914 (N.D. Ill. 2002)). While Plaintiff might not be able to prevail on his claims so lely 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 om ission s 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 h av e not satisfied their burden of establishing otherwise. Venue is therefore proper in this District, and 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 (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. 6 3 D efend ants' Motion is denied insofar as it seeks dismissal based on improper venue. B. T ran sferrin g 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 ind ividu al Defendants reside.4 Plaintiff has not asserted that the Middle District of Tennessee is an im prop er venue under 28 U.S.C. 1391(b), but contends that we should keep the case here because D efend ants have failed to establish that transfer is proper. We disagree. In deciding whether to transfer a case, we do not confine our review to the three factors en u m erated in 28 U.S.C. 1404(a) (convenience of parties, convenience of witnesses, and interests of ju stice), 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 sho w that "`the balance of convenience of the parties is strongly in [their] favor . . . .'" Shutte v. Armco S teel Corp., 431 F.2d 22, 25 (3d Cir. 1970) (quoting Owatonna Mfg. Co. v. Melroe Co., 301 F. Supp. 1 29 6, 1307 (D. Minn. 1969)). We address the private and public factors separately below. 1. P riv ate factors Th e private factors we must consider include: [1 ] plaintiff's forum preference as manifested in the original choice; [2] th e defendant's preference; [3] whether the claim arose elsewhere; [4] th e convenience of the parties as indicated by their relative physical and fin an cial condition; [5] the convenience of the witnesses--but only to th e extent that the witnesses may actually be unavailable for trial in one o f the fora; and [6] the location of the books and records (similarly lim ited to the extent that the files could not be produced in the alterna tiv e forum). Counsel for Defendants represented at the hearing on this Motion that the three remaining individual Defendants reside in Arkansas, Texas, and Kentucky. 7 4 S to n e St. Servs., Inc. v. Breaux, Civ. A. No. 00-1904, 2000 WL 876886, at *3 (E.D. Pa. June 19, 2000) (qu oting Jumara, 55 F.3d at 879). We find that the balance of these factors favors transfer to Tennessee. T rad itio n ally, the court does not lightly disturb the plaintiff's choice of venue because the p lain tiff's choice "is a paramount consideration in any determination of a transfer request." Shutte v. A rm co Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970). In this case, however, Plaintiff does not reside in th is 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 a s but one among several factors. Perretta v. Consol. Rail. Corp., Civ. A. No. 98-491, 1998 WL 3 1 6 08 8 , at *2 (E.D. Pa. June 10, 1998); see also New Image, Inc. v. Travelers Indem. Co., 536 F. Supp. 5 8 , 59 (E.D. Pa. 1981); cf. Piper Aircraft v. Reyno, 454 U.S. 235, 255 (1981) (noting that "a plaintiff's ch o ice of forum is entitled to greater deference when the plaintiff has chosen the home forum" (citing K o ster v. Am. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 (1947))). Defendants' countervailing preference is to litigate this case in the Middle District of Tennessee. Accordingly, we find that the first tw o factors, the parties' respective preferences, only modestly favor keeping the case in this District. H o w ev er, the third and fourth factors substantially favor transfer. With respect to the third facto r, we observe that the vast majority of the acts or omissions giving rise to Plaintiff's claim s-- inc lud ing, most importantly, the creation and enforcement of TransCor's allegedly un con stitution al 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 D efend ants if the case were to remain here, where none of them resides, heavily outweighs the burden 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. 8 tha t would be imposed on the single Plaintiff if the case were transferred to Tennessee. We also note th at Defendants have a constitutional right to be present at trial, which Plaintiff does not enjoy. 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. P u b lic factors Th e public factors we must consider include: [1] the enforceability of the judgment; [2] practical considerations that co u ld make the trial easy, expeditious, or inexpensive; [3] the relative ad m in istrative difficulty in the two fora resulting from Court con gestion ; [4] the local interest in deciding local controversies at h o m e; and [5] the familiarity of the trial judge with the applicable state law in diversity cases. S to ne St., 2000 WL 876886, at *3 (quoting Jumara, 55 F.3d 879-80). As with the private factors, we fin d that the balance of the public factors favors transfer. T h e 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 o f Tennessee, as are a majority of the Defendants. The Middle District of Tennessee is therefore in the b est position to oversee discovery relating to the bulk of the witnesses, parties, and important d o cu m en ts in this case.6 Moreover, given that this District is not Plaintiff's home forum, the Middle D istrict of Tennessee has a greater local interest in this controversy, insofar as it involves the alleged 6 Plaintiff's counsel represented at the hearing that two of Plaintiff's witnesses, PPD Officer Smith and 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. 9 u n law fu l conduct of several of its residents, including a corporation that has its principal place of b u sin ess within that District's boundaries. The remaining factors are in equipoise. A judgment issued either by this Court or by a federal cou rt in the Middle District of Tennessee would be equally enforceable. Moreover, to the extent that a choice-of-law question arises regarding which state's law governs Plaintiff's common law IIED claim, w e note that IIED is not a "particularly complex or unsettled" area of law and that "[j]udges in this d istrict frequently apply foreign law in diversity cases when there is no challenge to venue." Hatfield, In c. v. Robocom Sys. Int'l, Inc., Civ. A. No. 98-4004, 1999 WL 46563, at *2 (E.D. Pa. Jan. 15, 1999).7 Fina lly, 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 Lead in g 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). In sum, the balance of the public factors weighs strongly in favor of transferring this case to the M idd le District of Tennessee. IV . C O N C L U SIO N Fo r 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, D efend ants' Motion is denied insofar as it seeks dismissal for improper venue, but granted insofar as 7 We also note that Pennsylvania's and Tennessee's respective prima facie IIED cases are virtually identical. Compare Hoy v. Angelone, 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"). 10 it seeks transfer of venue. An appropriate Order follows. B Y THE COURT: /s John R. Padova John R. Padova, J. 11

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