SNYDER v. BERTUCCI'S RESTAURANT CORP.

Filing 7

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE RONALD L. BUCKWALTER ON 12/18/2012. 12/18/2012 ENTERED AND COPIES E-MAILED. (ems)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

FLORENCE SNYDER,

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Plaintiff,

CIVIL ACTION

DEC 1 8 :2012
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BERTUCCI'S RESTAURANT CORP.,
Defendant.

MEMORANDUM
BUCKWALTER, S. J.

December 18, 2012

Currently pending before the Court is the Motion of Defendant Bertucci's Restaurant
Corporation to Transfer Venue to the District ofNew Jersey pursuant to 28 U.S.C. § 1404. For
the following reasons, the Motion is denied.

I.

FACTUAL AND PROCEDURAL HISTORY
According to the facts as set forth in the Complaint, this action was brought by Plaintiff

after she suffered a fall at Defendant's restaurant in Marlton, NJ on August 4, 2012. (Compl.

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7-8.) Plaintiff claims that this fall was the result of Defendant's negligence and failure to
maintain the premises in a safe manner. (Id.

~~

8, 9.) As a result of the fall, Plaintiff suffered

multiple injuries, including a "right hip fracture, right wrist fracture as well as other injuries to
her head, neck, back, spine, torso, and extremities, their bones, cells, tissues, discs, muscles,
cartilage, nerves and functions; together with shock, and injury to her nerves and nervous
system[.]" (Id. ~ 14Y
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The Court notes that there is a typographical error in the Complaint such that there are two
paragraphs numbered "fifteen." This citation refers to the first of these, which is the fourteenth

Plaintiff brought suit on September 20, 2012 seeking to recover for Defendant's
negligence. Defendant filed an answer on November 9, 2012, then filed the instant Motion to
Transfer on November 13, 2012. Plaintiff filed a response in opposition on November 11, 2012.
The court will now consider the merits of Defendant's Motion to Transfer Venue.

II.

DISCUSSION
Pursuant to 28 U.S.C. § 1404(a), a district court may transfer an action to any other

district "where it might have been brought" if this transfer is "for the convenience of parties and
witnesses" and "in the interest of justice." 28 U.S.C. § 1404(a); see also Connors v. UUU
Prods., No. Civ.A.03-6420, 2004 WL 834726, at *6 (E.D. Pa. Mar. 5, 2004). The determination
of whether to transfer venue pursuant to§ 1404(a) is governed by federal law. See Jumara v.
State Farm Ins. Co., 55 F.3d 873, 877-878 (3d Cir. 1995) (federal law applies because questions
of venue are procedural, rather than substantive).
Analysis of a request for a § 1404(a) transfer has two components. First, both the original
venue and the requested venue must be proper. Id. at 879. Venue, in a case based on federal
question jurisdiction, is proper only in "( 1) a jurisdiction where any of defendant resides if all
defendants reside in the same State, (2) a judicial district in which a substantial part of the events
or issues giving rise to the claim occurred ... , or (3) a judicial district in which any defendant
may be found, if there is no district in which the action may otherwise be brought." 28 U.S.C. §
1391(b).
Second, because the purpose of allowing§ 1404(a) transfers is '"to prevent the waste of
time, energy and money and to protect litigants, witnesses and the public against unnecessary

paragraph.
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inconvenience and expense,"' Pro Spice. Inc. v. Omni Trade Gr,p .. Inc., 173 F. Supp. 2d 336, 339
(E.D. Pa. 2001) (quoting VanDusen v. Barrack, 376 U.S. 612,616 (1964)), the Court is required
to undertake a balancing test in deciding whether the "interests of justice [would] be better served
by a transfer to a different forum." Jumara, 55 F.3d at 879. The Third Circuit has outlined a
non-exhaustive list of pertinent public and private interest factors to be weighed in this balancing
test. The private interests include: (1) the plaintiffs 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; and (6) the location of books and records. Id. at 879. The public
interests 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 controversies at home;
(5) the public policies ofthe fora; and (6) the familiarity ofthe trial judge with the applicable
state law in diversity cases. Id. at 879-80. The burden falls on the moving defendant to show the
desirability of transferring venue and to present evidence upon which the court may rely in
justifying transfer. Fellner ex rel. Estate of Fellner v. Phila. Toboggan Coasters. Inc., No.
Civ.A.05-1052, 2005 WL 2660351, at *4 (E.D. Pa. Oct. 18, 2005). 2 Notably, analyses of
transfers under§ 1404(a) are "flexible and must be made on the unique facts of each case."3 Job

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"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." Fellner, 2005 WL 2660351, at *4.
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The Third Circuit has noted that its extensive enumeration of factors to be balanced makes "a
written opinion setting forth the reasons for transfer ... highly desirable." Jumara, 55 F.3d at
880 (internal quotations omitted).
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Haines Home for the Aged v. Young, 936 F. Supp. 223,227 (D.N.J. 1996) (internal quotations
omitted).
In the case at bar, neither party disputes that the case "might have been brought" in
Defendant's requested venue of the District ofNew Jersey. The Complaint at issue clearly
acknowledges that Plaintiff is a resident of Cherry Hill, New Jersey. (Compl. ~ 1.) The incident
in question occurred in the District ofNew Jersey. Accordingly, the Court turns to the second
part of the inquiry: whether the convenience of the parties and witnesses, as well as the interests
of justice, would be served by transferring this case to the District of New Jersey. Considering
the private and public interests enumerated by the Third Circuit Court of Appeals, the Court finds
that transfer is not warranted in this case.
A.

Private Interests
1.

Plaintiff's Choice of Venue

The analysis commences with an examination of Plaintiffs choice of venue, as
manifested by where the suit was originally brought. As a general rule, a plaintiffs choice of
venue is of paramount consideration and "should not be disturbed lightly." In re Amkor Tech.,
Inc. v. Sec. Litig., No. Civ.A.06-298, 2006 WL 3857488, at *3 (E.D. Pa. Dec. 28, 2006) (quoting
Weber v. Basic Comfort, Inc., 155 F. Supp. 2d 283, 285 (E.D. Pa. 2001)). "Moreover, where ...
the plaintiff files suit in its home forum, that choice is entitled to considerable deference." Am.
Argo Corp. v. U.S. Fid. & Guar. Co., 590 F. Supp. 1002, 1004 (E.D. Pa. 1984).
Nonetheless, there are circumstances wherein a plaintiffs choice of forum is not entitled
to significant deference. For example, "a plaintiffs choice [of forum] receives less weight where
none of the operative facts occurred in the selected forum." Fid. Leasing, Inc. v. Metavec Corp.,
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No. Civ.A.98-6035, 1999 WL 269933, at *2 (E.D. Pa. Apr. 29, 1999); see also Rowles v.
Hammermill Paper Co., Inc., 689 F. Supp. 494,496 (E.D. Pa. 1988) ("plaintiffs choice of forum
merits less deference when none of the conduct complained of occurred in plaintiffs selected
forum.") (citations omitted). Moreover, where plaintiff files suit outside his or her own forum,
plaintiffs choice of forum is entitled to less deference. Copley v. Wyeth, Inc., No. Civ.A.09722, 2009 WL 2160640, at *3 (July 17, 2009).
As noted above, the Plaintiff in this case is domiciled in the District of New Jersey but
decided to bring suit in the Eastern District of Pennsylvania. The incident in question occurred in
New Jersey. Thus, while Plaintiffs choice of forum is still granted weight in the decision, it is
somewhat lessened because she is not requesting a home forum or one in which any operative
facts ofthe case occurred.

2.

Defendants' Preference

The second factor-defendant's forum choice-is "entitled to considerably less weight
than Plaintiffs, as the purpose of a venue transfer is not to shift inconvenience from one party to
another." EVCO Tech. and Dev. Co. v. Precision Shooting Equip., Inc .. 379 F. Supp. 2d 728,
730 (E.D. Pa. 2003) (citations omitted). Nevertheless, Defendant's preference is for the case to
be transferred to New Jersey.

3.

Whether the Claim Arose Elsewhere

Typically the most appropriate venue is governed by the third factor- where a majority of
events giving rise to the claim arose. In re Amkor Tech., Inc. Sees. Litig., No. Civ.A.06-298,
2006 WL 3857488, at *5 (E.D. Pa. Dec. 28, 2006). "When the chosen forum has little
connection with the operative facts of the lawsuit, such that retaining the action conflicts with the

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interests in efficiency and convenience, other private interests are afforded less weight." Cancer
Genetics. Inc. v. Kreatech Biotech. B.V., No. Civ.A.07-273, 2007 WL 4365328, at *5 (E.D. Pa.
Dec. 11, 2007).
Because the alleged fall-the only operative event in this case-took place in New
Jersey, this factor weighs in favor of transfer.

4.

Convenience of the Parties

The parties are unlikely to be inconvenienced by having the case remain in the Eastern
District of Pennsylvania. Bertucci's is a national corporation which is headquartered in North
Borough, Massachusetts. Neither venue would be particularly inconvenient for it and its
witnesses. Plaintiff is a resident of Cherry Hill, New Jersey. However, because the federal
courthouse in the Eastern District (located at 601 Market Street in Philadelphia) is only 3.6 miles
from the federal courthouse in Camden, NJ (located at 401 Market Street in Camden)\ any
inconvenience in having the case remain is negligible.

5.

Convenience of Witnesses

The next private factor the Court includes in the balancing test is the convenience of
material witnesses. This "is a particularly significant factor in a court's decision whether to
transfer." Idasetima v. Wabash Metal Prods., Inc., No. Civ.A.Ol-197, 2001 WL 1526270, at *2
(E.D. Pa. Nov. 29, 2001) (citing Lindley v. Caterpillar, Inc., 93 F. Supp. 2d 615, 617 (E.D. Pa.
2000)). There are many different types of witnesses, however, and each one carries a different
weight. "[F]act witnesses who possess first-hand knowledge of the events giving rise to the

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The Court may take judicial notice of geography. Boyce Motor Lines, Inc. v. United States, 342
U.S. 337, 344 (1952). The distance listed here is the driving distance as calculated using Google
Maps (https://maps.google.com, last accessed Dec. 17, 2012).
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lawsuit, have traditionally weighed quite heavily in the 'balance of convenience' analysis."
Affymetrix. Inc. v. Synteni. Inc., 28 F. Supp. 2d 192,203 (D. Del. 1998). Party witnesses or
witnesses who are employed by a party, on the other hand, have little impact on the "balance of
convenience" analysis since each party is obligated to procure the attendance of its own
employees for trial. ld. Likewise, expert witnesses or witnesses who are retained by a party to
testify carry little weight because they "are usually selected because of their reputation and
special knowledge without regard to their residences and are presumably well compensated for
their attendance, labor and inconvenience, if any." See Webster-Chicago Corp. v. MinneapolisHoneywell Regulator Co., 99 F. Supp. 503, 505 (D. Del. 1951); see also Howell v. Shaw Indus.
Nos. Civ.A.93-2068, 93-2638, 1993 WL 387901, at *5 (E.D. Pa. Oct. 1, 1993) ("[T]he
convenience of expert witnesses is generally given little weight in a motion to transfer venue.").
Because the incident in question happened in such close proximity to the Eastern District
of Pennsylvania, nearly all ofthe foreseeable witnesses will be local. As such, there is no
indication that any witnesses will be beyond the subpoena power of the Court. See Fed. R. Civ.
P. 45(b)(2). As such, this favor does not weigh in favor oftransfer.

6.

Location of Books and Records

The parties have not identified any books or records that are relevant fn this case. In any
event, as discussed above, the distance between the Eastern District of Pennsylvania and the
District of New Jersey is insignificant and, thus, this factor does not favor one side or the other.

B.

Public Interests
1.

Enforceability of Judement

The parties do not dispute that a judgment entered against Defendants in either forum

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would be enforceable. Therefore, the Court also assigns no weight to this factor.

2.

Practical Considerations that Could Make the Trial Easy, Expeditious
or Inexpensive

The parties have not highlighted and the Court is not aware of any practical
considerations that would affect the trial one way or another.

3.

The Relative Administrative Difficulty in the Two Fora ResultinK
from Court ConKestion

We note that, for all practical purposes, the calendar of this Court is not so full as to deny
the parties prompt and thorough consideration of their case.

4.

The Local Interest in DecidinK Controversies at Home

The Court's next consideration-which of the two potential districts maintains a greater
interest in the action-bears significantly on our decision. "The burden of jury duty should not
be placed on citizens with a remote connection to the lawsuit." Nat'l Prop. Investors VIII v.
Shell Oil Co., 917 F. Supp. 324, 330 (D.N.J. 1995). Typically, when a substantial amount of the
alleged culpable conduct occurred in the chosen forum, that court favors retaining jurisdiction as
a matter oflocal interest. Cancer Genetics, 2007 WL 4365328, at *6; see also In re E. Dist.
Repetitive Stress Injury Litig., 850 F. Supp. 188, 195 (E.D.N.Y. 1994) ("When an action
involves injuries sustained in a particular locale, the public interest supports adjudication of the
controversy in that locale where it may be a matter of local attention, rather than in a remote
location where it will be learned of only by report.").
Although the incident in question occurred in New Jersey, there is no indication that this
controversy is particularly local in nature. In seeking to transfer, Defendant highlights that local
state maintenance ordinances and building codes may serve as either a basis for the claims
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against it or as a defense. Defendant argues that such building codes and ordinances are local
and affect the citizens of New Jersey. While such codes and ordinances may affect the issues in
this case, they do not create a sufficiently local issue as to weigh heavily in favor of transfer. As
such, this factor does not weigh significantly in the Court's decision.

5.

The Public Policies of the Fora

The parties have produced no evidence to suggest that the public policies of either New
Jersey or Pennsylvania weigh one way or another with regards to the issue of transfer.
Accordingly, we grant the factor no weight.

6.

The Familiarity of the Trial Judee with the Applicable State Law in
Diversity Cases

Because the events of this action occurred in New Jersey, the applicable law is New
Jersey common law on negligence. Federal judges are frequently called upon to apply the laws
of other states, and basic tort law is not so complicated as to advocate heavily in favor of transfer.
See 15 Wright, Miller, & Copper, Federal Practice and Procedure § 3854, at 266-267 (2d ed.
1986) (familiarity with state law not given great weight, particularly when the applicable state
law appears clear). As such, this factor does not weigh heavily in favor of transfer.

III.

CONCLUSION
Based on the factors discussed above, the Court finds there is insufficient reason to upset

Plaintiffs choice of having the case in the Eastern District of Pennsylvania. Though the incident
in question occurred in the District of New Jersey, there is nothing particularly compelling about
the facts or potential witnesses involved which suggest that litigating the case in the Eastern
District of Pennsylvania would an undue burden to the timely resolution of the case. As such,

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noting the high deference given to Plaintiff in her choice of forum, the Court denies Defendant's
Motion to transfer.
An appropriate order follows.

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