The opinion of the court was delivered by: CHESLER
STANLEY R. CHESLER, U.S. Magistrate
This matter comes before the Court on the application of Defendant David Dorf to transfer this action to the U.S. District Court in the Eastern District of New York pursuant to 28 U.S.C. § 1404(a) and 28 U.S.C. § 1406(a). The motion was referred to the undersigned by the Honorable Maryanne Trump Barry, U.S.D.J. Oral argument was heard on September 24, 1996. For the reasons stated below, the motion is denied.
This declaratory judgment action arises from the issuance, by plaintiff Market Transition Facility of New Jersey ("MTF"), of an automobile liability insurance policy to defendant David Twena. Plaintiff claims that defendant Twena fraudulently misrepresented his status as a bona fide resident of New Jersey when he applied for the policy, and as a result Plaintiff subsequently cancelled the policy. The cancellation occurred shortly after defendant Twena was involved in an automobile accident with defendant David Dorf in New York. Defendant Dorf subsequently initiated a lawsuit in New York against defendant Twena. Plaintiff has denied coverage to defendant Twena in that suit and is defending him under a reservation of rights. In this suit, plaintiff is seeking a declaration that it properly cancelled defendant Twena's policy based upon his representation that he was a New Jersey resident when, it is alleged, he was in fact a resident of New York.
has moved to transfer this action to the Eastern District of New York. Defendant Dorf contends that venue in the District of New Jersey is improper because 28 U.S.C. § 1391(a), the venue statute governing diversity, is not satisfied. (Def. David Dorf's Mem. in Supp. of Mot. for Trans. of Venue [hereinafter "D. Mem."] at 6, 10.) Additionally, Defendant Dorf contends that transfer to the U.S. District Court for the Eastern District of New York is in the interests of justice and would be more convenient for the parties and witnesses pursuant to the provisions of Title 28 U.S.C. § 1404(a). (D. Mem. at 12-13.)
In determining whether § 1391(a) is satisfied, this Court must address two questions: first, whether venue is proper in a district where a substantial part of the events giving rise to the claim occurred when all defendants reside in the same state as these defendants do
; and second, whether a substantial part of the events giving rise to this particular claim occurred in the district of New Jersey. The answer to both of these questions is "yes." Accordingly, the Court must also decide whether it is in the interest of justice and more convenient for the parties to transfer this case to the Eastern District of New York. The answer to this question is "no." Therefore, for the reasons discussed below, the application to transfer the action to the Eastern District of New York must be denied.
A. Transfer Pursuant to 28 U.S.C. § 1406(a)
1. The Applicability of Title 28 U.S.C. § 1391(a)(2)
Defendant Dorf asserts that the Court should transfer this case to the Eastern District of New York pursuant to 28 U.S.C. § 1406(a). Section 1406(a) permits a court to transfer a federal action from a district court without proper venue to "any district or division in which [the case] could have been brought." Id. Such district or division is any federal court with proper venue.
Venue in this case is governed by 28 U.S.C. § 1391(a) Section 1391(a) states, in relevant part:
A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial ...