JAMES-VELARDO et al v. LEWIS et al
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GENE E.K. PRATTER ON 7/11/2017. 7/12/2017 ENTERED AND COPIES E-MAILED.(sme, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARINA JAMES-VELARDO and
UNITED STATES OF AMERICA and.
JULY 11, 2017
Marina James-Velardo and Christopher Wallace complain that Joseph Lewis caused them
serious injuries when he negligently operated a United States Postal Service Mack TractorTrailer and collided with their vehicle. The United States has moved to transfer this action to
Florida, where the alleged tortious conduct took place. Ms. James-Velardo and Mr. Wallace,
both citizens of Pennsylvania, oppose that motion. For the reasons that follow, the Court will
deny the motion.
Ms. James-Velardo and Mr. Wallace, who both reside in Philadelphia, Pennsylvania,
allege that Mr. Lewis, a resident of Jacksonville, Florida, suddenly and without warning made a
left turn, crossed over into their lane of travel, and struck their motor vehicle. The accident took
place in Jacksonville while Mr. Lewis was working as a United States Postal employee. Both
Ms. James-Velardo and Mr. Wallace allege that they have suffered serious injuries as a result of
the accident. Ms. James-Velardo and Mr. Wallace each ask for no more than $50,000 in damages
and allege claims of negligence.
Shortly after the Complaint was filed, the United States moved to transfer this action to
the Middle District of Florida pursuant to 28 U.S.C. § 1404(a), arguing that the Middle District
of Florida would be a more convenient forum.
Under 28 U.S.C. § 1404(a), “[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 or to any district or division to which all parties have
consented.” Once it is determined that a case could have been brought in the proposed transferee
district, a court must weigh a variety of private and public factors to determine whether the
matter should be transferred under 28 U.S.C. § 1404(a). The private factors include:
[1 P]laintiff’s forum preference as manifested in the original choice;  the defendant’s
preference;  whether the claim arose elsewhere;  the convenience of the parties as
indicated by their relative physical and financial condition;  the convenience of the
witnesses—but only to the extent that the witnesses may actually be unavailable for trial
in one of the fora; and  the location of books and records (similarly limited to the
extent that the files could not be produced in the alternative forum)
Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) (internal citations omitted). The
public factors include:
[1 T]he enforceability of the judgment;  practical considerations that could make the
trial easy, expeditious, or inexpensive;  the relative administrative difficulty in the two
fora resulting from court congestion;  the local interest in deciding local controversies
at home;  the public policies of the fora; and  the familiarity of the trial judge with
the applicable state law in diversity cases.
Id. at 879-80 (citations omitted). The movant carries the heavy burden of establishing the need
for transfer, as the plaintiff’s choice of venue “should not be lightly disturbed.” Id. at 879.
The United States argues that this matter should be transferred to the Middle District of
Florida. No one argues that the Middle District of Florida would not be a proper venue. Thus,
the analysis turns to the consideration of the private and public Jumara factors.
The United States argues first that Ms. James-Velardo and Mr. Wallace’s choice of forum
is entitled to little deference because the operative facts occurred elsewhere, citing cases that
support the proposition that “where none of the operative facts of the action occurred in the
plaintiff’s chosen forum, the choice is afforded less weight.” See Gaskins v. National R.R.
Passenger Corp., No. CIV. A. 00-5144, 2001 WL 322518 at *1 (E.D. Pa. Feb. 21 2001); Silong
v. United States, No. 5:05-CV-55-OC-10GRJ, 2006 WL 948048 (M.D. Fl. April 12, 2006);
Cellular Technology & Telecommunications, L.P. v. Alltel Corp., 508 F. Supp. 2d 1186, 1186
(S.D. Fl. 2007).
The cases cited by the United States are easily distinguishable, however. In Gaskins, not
only did none of the operative events occur in the transferor district, but, unlike here, the plaintiff
also resided in the transferee district. Gaskins, 2001 WL 322518, at *1. In Silong, the plaintiffs
filed suit in the Middle District of Florida, even though the plaintiffs had received no medical
treatment in Florida and all the operative facts had occurred in California. Silong, 2006 WL
948048, at *3. Additionally, although the plaintiffs had a residence in Florida, they did not live
there when they filed suit. Id. Lastly, in Cellular Technology, the plaintiff’s choice was afforded
less deference because the plaintiff did not reside in the transferor district. Cellular Technology,
508 F. Supp. 2d at 1186.
In this case, both Ms. James-Velardo and Mr. Wallace do reside in this District.
Moreover, aside from one visit to an emergency room in Jacksonville immediately following the
accident, Ms. James-Velardo and Mr. Wallace have been treated in Philadelphia for months for
their alleged injuries. For these reasons, the Court will not so easily discount Ms. James-Velardo
and Mr. Wallace’s choice of forum.
As to the other private factors, the United States’ preference for a Florida forum does
weigh slightly in favor of transfer. Also weighing in favor of transfer is a consideration of where
the claim first arose, which the parties agree was Florida. However, a consideration of the
physical and financial burdens weighs in favor of Ms. James-Velardo and Mr. Wallace. The
financial burden of pursuing a lawsuit far from home would be much more difficult for Ms.
James-Velardo and Mr. Wallace to bear, as compared to requiring the United States to defend a
lawsuit here. Additionally, Ms. James-Velardo and Mr. Wallace’s attorneys are not members of
the Florida bar, and they would be forced to seek new counsel if this matter was transferred.
The convenience of the witnesses weighs slightly in favor of transfer, although the
remaining private factors are largely non-determinative. “[P]arty witnesses are presumed to be
willing to testify in either forum despite any inconvenience. The convenience of non-party
witnesses is the main focus.” Hillard v. Guidant Corp., 76 F. Supp. 2d 566, 570 (M.D. Pa.
1999). Although the United States argues that the cost of bringing on-scene and investigative
witnesses from Florida to this District will be “significant” and that this Court cannot compel the
appearance of such witnesses, it does not provide any evidence that any of the witnesses would
be unwilling to travel to that District to testify. The United States, with its resources, can
transport witnesses to this District with little difficulty. The burden on Ms. James-Velardo and
Mr. Wallace to transport their Philadelphia-based doctors to Florida would be much greater.
Additionally, a Florida court would likewise be unable to compel Ms. James-Velardo and Mr.
Wallace’s doctors to appear at trial to testify. To the extent non-party witnesses’ testimony may
be presented by video deposition, witness inconvenience is that much less of an issue. See Erb v.
Roadway Exp., Inc., No. 4:05-CV-0011, 2005 WL 1215955, at *4 (M.D. Pa. Apr. 19, 2005)
(finding that the inconvenience of witnesses did not weigh heavily in favor of transfer, in part
because courtroom technology allowed for live video-conference testimony or using video
depositions at trial, in a case similar to this one in which a plaintiff sued in his home forum over
an accident that occurred in another forum). Therefore, the convenience of witnesses only
weighs slightly in favor of transfer.
As to the public factors, no party argues that judgment enforceability or public policy has
an impact on this motion. The United States argues that the Middle District of Florida is less
congested than this District, citing caseload statistics that show that although civil cases in this
District, on average, are resolved more quickly than in the Middle District of Florida, there are
fewer civil cases older than three years pending in the Middle District of Florida than there are in
this District. Those statistics, however, give the Court very limited insight on important potential
“congestion” considerations, such as how many cases are pending in each district per judge or
how long, on average, cases of this type remain pending. The cited statistics do nothing to
advance the United States’ argument.
The United States also contends Florida law will govern and the state of Florida has an
interest in deciding localized controversies at home. Ms. James-Velardo and Mr. Wallace
counter that because they are Pennsylvania residents and because their car was registered in
Pennsylvania, the Commonwealth also has an interest in this case. The Court finds that both
jurisdictions have at least some interest in this particular dispute, so that this factor does not
weigh heavily one way or the other.
As to the final public factor, the United States argues that a judge in the Middle District
of Florida will have greater familiarity with Florida law, tipping this factor in its favor. Although
Florida law will apply under the Federal Tort Claims Act, it does not appear that any particularly
challenging or unique legal issues will arise in this case. Therefore, this final factor does not
weigh strongly in favor of transfer.
Overall, some factors do weigh in favor of transfer, including the United States’
preference, where the claim arose, the convenience of the witnesses, and the application of
Florida law. However, those factors, even in combination, are not substantial enough to
overcome the deference due to Ms. James-Velardo and Mr. Wallace’s choice of venue,
especially given the relative financial positions of the two parties. Thus, the Court will not
transfer this action to the Middle District of Florida.
For the foregoing reasons, the Court will deny the United States’ motion. An appropriate
BY THE COURT:
S/Gene E.K. Pratter
GENE E.K. PRATTER
United States District Judge
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