UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
March 30, 2004
ROBERT BOTTORF AND JEANIE BOTTORF, PLAINTIFFS,
UNIVERSITY OF PENNSYLVANIA HEALTH SYSTEM, PENNSYLVANIA HOSPITAL, CHARLES R. BRIDGES, M.D., PATRICK J. MURT, PA-C, STEPHEN KOLAKOWSKI, M.D., JOHN DOE ANESTHESIOLOGIST, AND ROBERT ROE TECHNICIANS, NURSES AND ASSISTANTS 1-5, JOINTLY, SEVERALLY OR IN THE ALTERNATIVE, DEFENDANTS.
The opinion of the court was delivered by: Honorable Joseph E. Irenas
ORDER DENYING DEFENDANTS' MOTION TO TRANSFER VENUE
Currently before the Court is Defendants' Motion to Transfer this action from this Court to the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404 or, in the alternative, to dismiss and/or transfer pursuant to 28 U.S.C. § 1406. The Court having reviewed the submissions of the parties and it appearing that,
1. This case arises out of medical care and treatment Plaintiff, Robert Bottorf ("Plaintiff" or "Bottorf"), received at Pennsylvania Hospital, Philadelphia, PA in 2001. After pre-operative consultation, testing and procedures, Plaintiff underwent a triple bypass at the Hospital on October 4, 2001. In the following months, Plaintiff experienced numbness, weakness and pain in his right hand. On October 22, 2003, Plaintiff filed a five-count suit in the Superior Court of New Jersey, Law Division, Atlantic County (Docket No. ATL-L-2916-03) alleging in Counts I-IV that his post-operative condition was a result of Defendants' negligence. Count V, brought by Jeanie Bottorf, claims loss of consortium, support, counsel and services as a result of Defendants' negligence.
2. Defendants filed a notice of removal with this Court on December 31, 2003, pursuant to 28 U.S.C. § 1441, et seq. The action was properly removed on the basis of diversity of citizenship. Plaintiffs are residents of New Jersey. Defendants Charles Bridges, Patrick Murt, and Stephen Kolakowski are all residents of Pennsylvania employed by the University of Pennsylvania Health System located at 800 Spruce Street, Philadelphia, Pennsylvania. Defendant University of Pennsylvania Health System is an unincorporated subdivision of the Trustees of the University of Pennsylvania which has a business address of 211 College Hall, Philadelphia, Pennsylvania. Defendant Pennsylvania Hospital is a non-profit corporation incorporated in Pennsylvania and located at 800 Spruce Street, Philadelphia, Pennsylvania.
3. On February 26, 2004, Defendants filed the instant motion to transfer venue from this Court to the Eastern District of Pennsylvania. Defendants claim that transfer is proper pursuant to 28 U.S.C. § 1404 or, in the alternative, § 1406.
4. 28 U.S.C. § 1404 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." Questions of venue are procedural and, thus, require the application of federal law in diversity cases. Jumara v. State Farm Ins. Co., 55 F.3d 873, 877 (3d Cir. 1995). The decision to transfer is a discretionary one designed to "prevent the waste of `time, energy, and money' and to `protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" NPR, Inc. v. Am. Int'l Ins. Co. of Puerto Rico, 2001 WL 294077 (D.N.J. 2001) (citing Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal citation omitted). Although a transfer analysis does "not necessarily require extensive investigation," the moving party does "bear the burden of establishing that transfer is warranted and must submit `adequate data of record' to facilitate the Court's analysis." Id. (internal citation omitted). Transfer is appropriate only where the moving party demonstrates "that the proposed alternative forum is not only adequate, but also more convenient than the present forum." Id.; see also Jumara, 55 F.3d at 877.
5. Transfer determinations under § 1404 are fact sensitive and require the court to balance the private interests of the parties and the "public's interest in fair, efficient administration of justice." NPR, 2001 WL 294077, at *2-3. "Private interests have included[, but are not limited to,] plaintiff's preferred forum, the relative physical and financial condition of the parties, and the relative east of access to the sources of proof. Public interests have included[, but are not limited to,] the trial judge's familiarity with the applicable state law, the local interest in adjudicating disputes at home, court congestion in the two fora, the fairness of placing the burden of jury duty on the citizens of the state with the greater interest in the dispute, and `practical considerations that could make the trial easy, expeditious, or inexpensive.'" Id. (internal citations omitted). "Unless the balance of factors is strongly tipped in favor of the defendant seeking transfer, the plaintiff's choice of forum should not be disturbed." Id. at *2; see also Jumara, 55 F.3d at 879 (internal citation omitted).
6. Looking to both the private and public interests implicated here, the Court is satisfied that adjudicating this matter in New Jersey is both convenient to and just for all parties. Camden, New Jersey and Philadelphia, Pennsylvania are located just a few miles from each other and are easily accessed either by car or by public transportation. Nothing in the record suggests that Defendants are unable, either financially or physically, to travel to Camden when necessary. Additionally, Plaintiffs are New Jersey residents who have chosen to bring suit in New Jersey. Finally, nothing in the record suggests that either party will be unable to access sources of proof should venue remain in New Jersey.
7. Turning to the public interests implicated, the Court is persuaded that venue is appropriate in New Jersey. This Court is perfectly capable of applying either Pennsylvania or New Jersey law. In addition, New Jersey has a decided interest in ensuring that its residents receive proper medical care, thus, there is nothing unfair about asking residents of this District to sit as jurors in this matter. Finally, nothing suggests that trying this matter in New Jersey is more expensive, less efficient, or more difficult than trying this matter in the Eastern District of Pennsylvania. Although the operative facts of this matter took place across the river in Philadelphia, Defendants fail to persuade the Court that it should not defer to Plaintiff's choice of forum. Thus, this Court will deny Defendants' motion to transfer under § 1404.
8. Defendants' reliance on § 1406 as an alternative foundation for transfer in this instance is misplaced. Section 1406 provides:
The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the best interest of justice, transfer such case to any district or division in which it could be brought.
When a case is removed to federal court under § 1441, venue is proper in the "district and division embracing the place where such action is pending." Therefore, where a case is properly removed to the district in which the state action was pending, there is no venue defect to cure and, thus, transfer under § 1406 is inappropriate. Riley v. Union Pac. R.R. Co., 177 F.2d 673 (7th Cir. 1950) (affirming the district court's denial of plaintiff's motion to transfer, noting that where an action is removed to the correct district under § 1441, transfer or dismissal under § 1406 is inapplicable); see also Addison v. North Carolina Dep't of Crime & Pub. Safety, 851 F. Supp. 214, 218 (M.D.N.C. 1994); Willner v. Thompson, 285 F. Supp. 394 (E.D.N.Y. 1968) (denying defendant's motion to dismiss for improper venue after a proper removal to federal court and noting that in the removal context "venue is governed by 28 U.S.C. § 1441(a)" not § 1391); Grimes v. Hull-Dobbs, 154 F. Supp. 151, 152 (E.D. Ky. 1957) (denying defendant's motion for a § 1406 transfer where case had been properly removed); Charles A. Wright, Arthur R. Miller, & Edward H. Cooper, 14C Federal Practice & Procedure § 3726 (3d. 1998) (noting that when a case is removed to federal court, general venue statutes 28 U.S.C. §§ 1391-1393 do not apply, rather § 1441 governs the propriety of venue and it is "immaterial that the federal court to which the action was removed would not have been in a district of proper venue if the action had been brought there originally").
9. Here, Defendants properly removed the instant matter from state court in southern New Jersey. Therefore, venue is proper in this Court pursuant to § 1441, even though venue arguably would not have been proper under § 1391 had the case been brought in this Court originally. Thus, there is no venue defect to cure and transfer under § 1406 is inappropriate. The Court will deny Defendants' motion to transfer.
For good cause appearing,
IT IS on this 30th day of March, 2004,
ORDERED THAT Defendants' motion to transfer this action to the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. §§ 1404, 1406 is DENIED.
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