Gonzalez-Marcano v. US Airways Group, Inc. et al

Filing 31

Order transferring the case to the U.S. District Court for the District of Philadelphia. Signed by Judge Juan M Perez-Gimenez on 6/25/2013.(VCC)

THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

GONZALEZ-MARCANO
Plaintiff,
v.

CIV. NO. 11-2179 (PG)

US AIRWAYS GROUP, INC. et al.
Defendants.
ORDER
On

August

12,

2011,

Brunilda

González-Marcano

(hereafter

“Plaintiff”) filed the above-captioned claim alleging that she fell and
twisted her left ankle while she was a passenger on a US Airways flight
from San Juan to Philadelphia. See, Docket No. 1. Plaintiff claims that
two and a half hours after takeoff, she went to the bathroom located at
the rear of the aircraft and, as she was returning to her seat, the plane
began to shake vigorously due to turbulence. Plaintiff asserts that US
Airways

was

negligent

in

failing

to

warn

the

passengers

of

the

turbulence. See, Docket No. 1 at pgs. 3 and 4.
Plaintiff claims that once she made it back to her seat, a Flight
Attendant approached her to assist her. See, Docket No. 1 at pg. 4. When
the

aircraft

paramedics

landed

and,

after

in

Philadelphia,

the

initial

she

received

evaluation,

was

assistance
removed

from

from
the

aircraft and taken by ambulance to the Emergency Room of the Methodist
Hospital Division of Thomas Jefferson University Hospital. See, Docket
No. 1 at pg. 4. At the hospital, she was diagnosed with a fractured left
fibula and a brace was applied to her left leg. Plaintiff was also
instructed to visit an orthopedic surgeon. See, Docket No. 1 at pgs. 4
and 5.

According to Plaintiff’s allegations, she then proceeded to visit

the offices of the Rothman Institute, a group of orthopedic surgeons in

Civil No. 11-2179

(PG)

Page 2

Philadelphia, where her condition was diagnosed as a left ankle distal
fibula fracture. As a result, a stronger brace was applied to her leg and
the doctors indicated that she should delay her return to Puerto Rico for
two weeks to avoid deep venous thrombosis. See, Docket No. 1 at pg. 5.
Upon Plaintiff’s return to Puerto Rico, she reported the accident
to the State Insurance Fund and was referred to an orthopedic surgeon and
prescribed physical therapy. She was discharged from the State Insurance
Fund on April 6, 2011. See, Docket No. 1 at pg. 5.
Through the present case, the Plaintiff is seeking compensation for
her injuries claiming that the Defendant, as a common carried by air, is
subject to a standard of care that is higher than the ordinary care
required in like circumstances.
On April 26, 2012 defendant filed a Motion to Dismiss pursuant to
Rules

4(m),

12(b)(6)

and

12(b)(5)

of

the

Federal

Rules

of

Civil

Procedure. [Docket No. 14].
The parties convened for a status conference on June 19, 2013. At
the conference, the Court raised some issues with respect to venue. Based
upon the record and the issues discussed during the status conference and
considering this Court’s discretion under 28 U.S.C. § 1404(a),1 the Court
transfers this case to the United States District Court for the District
of Philadelphia.
I. DISCUSSION
Venue

in

the

present

action

is

premised

on

the

general

venue

statute, 28 U.S.C. §1391. Under §1391(a)(1), a diversity action may be
brought in “a judicial district where any defendant resides, if all

1

28 U.S.C. § 1404(a) (2011) states as follows:
For 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.

Civil No. 11-2179

(PG)

Page 3

defendants reside in the same State.”
In order to temper the effects of the general venue rule, Congress
enacted the venue transfer statute, codified at 28 U.S.C. §1404. See, In
re

Volkswagen

of

America,

Inc.,

545

F.3d

(5th

304

Cir.

2008).

“The

underlying premise of § 1404(a) is that courts should prevent plaintiffs
from abusing their privilege under § 1391 by subjecting defendants to
venues that are inconvenient under the terms of § 1404(a).” Id. at 313.
Section §1404(a) provides that “[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.” In Piper Aircraft Co. v. Reyno, 454 U.S. 235,254, 102
S.Ct.

252,

the

Supreme

Court

referenced

the

“relaxed

standards

for

transfer” under section 1404(a).
This is a case about a plaintiff who claims she suffered a fall
while on a plane bound for Philadelphia. She received initial care by the
airline personnel2 and was then examined and treated in a hospital in
Philadelphia. After her diagnosis, she visited an orthopedic surgeon in
Philadelphia

and

remained

in

the

city

for

two

weeks

following

the

accident. In fact, the medical care that plaintiff received in Puerto
Rico

consisted

mainly

of

physical

therapy

after

all

the

initial

assessment and treatment was done in Philadelphia.
Certainly, in light of these facts, the bulk of the evidence and
the witnesses are found in Philadelphia. Although the Court acknowledges
that

“there

is

ordinarily

a

strong

presumption

in

favor

of

the

plaintiff's choice of forum....” Piper Aircraft, 454 U.S. at 255, 102
S.Ct. at 265-66, it is no less true than the choice of a home forum may
be overcome when “the private and public interest factors clearly point
towards trial in the alternative forum.” Id. at 255, 102 S.Ct. at 266.
In this case, as expressed above, an analysis of the circumstances,

2

Although no mention is made on the record of the home base of the crew of the US Airways
flight where the plaintiff was a passenger, it would certainly be another determining
factor if the base was Philadelphia or any jurisdiction besides Puerto Rico.

Civil No. 11-2179

(PG)

particularly

the

practicality

availability

of

witnesses

Page 4

and

of

access

the

cost

of
of

sources

of

attendance

of

proof,

the

witnesses,

clearly favors Philadelphia as the proper venue.
II. CONCLUSION
Pursuant to the foregoing, the Court exercises its discretion under
28 U.S.C. § 1404(a), and in the interest of judicial economy, orders the
Clerk to transfer this case to the U.S. District Court for the District
of Philadelphia. In accordance with the transfer of venue, the court
suspends any and all pending deadlines. Likewise, the Court suspends any
deadline

under

the

Local

Rules

for

responding

to

pending

motions.

Finally, all pending motions are deferred to the transferee court.
SO ORDERED.
In San Juan, Puerto Rico, June 25, 2013.
S/ JUAN M. PÉREZ-GIMÉNEZ
JUAN M. PÉREZ-GIMÉNEZ
UNITED STATES DISTRICT JUDGE