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MIERZWA v. CITY OF GARFIELD

August 24, 2005.

EDWARD J. MIERZWA and PATRICIA A. MIERZWA, Plaintiffs,
v.
CITY OF GARFIELD; CITY OF FAIR LAWN; CITY OF PEQUANNOCK; ANTHONY BLACKFELD; RICHARD URAM; GRUBER & COLABELLA, P.C.; HEADLANDS MORTGAGE COMPANY; GLEN MATTIE; ROSE ANNE MERENDINO; THOMAS J. MIERZWA; JANE MIERZWA; TODD MOSBY; PETERPAUL, CLARK & CORCORAN, PC; RONALD SCHWARTZ, ESQ.; ROBERT SHIKHMAN; TRACI SHIKHMAN; JOHN DOE INSURANCE COMPANY; STATE FARM INSURANCE COMPANY; ESTATE OF JACOB TELESH; VALLEY NATIONAL BANK; JAMES B. ZANGARA; UNITED STATES OF AMERICA, and STATE OF NEW JERSEY, Defendants.



The opinion of the court was delivered by: JOHN BISSELL, Chief Judge, District

OPINION

This action comes before the Court on motions by the Plaintiffs and motions to dismiss by Defendants the United States and the State of New Jersey.

  FACTS AND BACKGROUND

  This case is brought by Plaintiffs Mr. Edward J. Mierzwa and his wife, Mrs. Patricia A. Mierzwa, against the United States of America, the State of New Jersey, the City of Garfield, the City of Pequannock, the City of Fair Lawn, as well as several other public and private defendants, pursuant to 42 U.S.C. § 1983. Plaintiffs filed this Complaint on October 27, 2004.

  This case concerns events which occurred after the Plaintiffs filed an earlier lawsuit entitled Edward Mierzwa, et al. v. State of New Jersey, et al., Docket No. 2:04-cv-721 ("the '721 case"). On March 5, 2004, this Court entered an Order dismissing the claims against many of the defendants in the '721 case. Thereafter, the Court denied the Plaintiffs' motion for reconsideration. Plaintiff filed an interlocutory appeal of that Order with the United States Court of Appeals for the Third Circuit. On September 23, 2004, the Court of Appeals dismissed Plaintiff's appeal for lack of jurisdiction. On December 27, 2004, this Court dismissed the remaining counts in the '721 case.

  In this case, the Complaint refers to events beginning on February 19, 2004, the day after Plaintiffs filed the Complaint in the '721 case. Plaintiffs allege that defendants Robert, Saulius and Traci Shikhman "initiated chaotic police activity" on February 19, 2004. Compl., First Count, ¶ 2. The Shikhman's allegedly initiated this "chaotic police activity" in conjunction with Defendants City of Garfield, City of Fair Lawn, City of Pequannock and the State of New Jersey. See id. On that same date, the State of New Jersey and others allegedly "committed acts of gross negligence and outrageous conduct against Plaintiff(s)." Compl., First Count, ¶ 3.

  Plaintiffs further allege that on October 29, 2004, Plaintiff Edward J. Mierzwa delivered a copy of the pleadings in the earlier case to the home of Defendant Saulius Shikhman. Compl., First Count, ¶ 16. On November 2, 2004, Defendants Shikhman, the State of New Jersey, and the City of Pequannock allegedly filed a notice in lieu of complaint citing Plaintiff for trespassing. Id. at ¶ 17.

  In addition to the foregoing allegations, Plaintiffs seemingly allege misconduct against this Court as well as the Court of Appeals for the Third Circuit in connection with the disposition of Plaintiffs' Complaint and subsequent appeal in the earlier case. See Compl., First Count, ¶¶ 1, 5, 7, 9-10, 12-15.

  It should be noted that the Second Count of the Amended Complaint is a common law loss of consortium claim on behalf of Plaintiff Patricia A. Mierzwa.

  On October 29, 2004, Plaintiffs filed a motion for change of venue. Thereafter, on December 8, 2004, Plaintiffs filed a motion for default judgment against the Defendants. On December 14, 2004, the State of New Jersey filed a motion to dismiss the Complaint and all cross claims. On December 28, 2004, the United States of America filed a motion to dismiss for lack of jurisdiction. These motions to dismiss will also be addressed.

  DISCUSSION

  I. Standard for Motions for transfer of venue pursuant to 28 U.S.C. § 1404(a)

  In a motion to transfer venue pursuant to 28 U.S.C. § 1404(a), the Court is guided by the following:
For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any district or division where it might have been brought.
28 U.S.C. § 1404(a). Thus, the decision whether to transfer a given action is in the sound discretion of the trial court. Cadapult Graphic Sys. v. Tektronix, Inc., 98 F. Supp. 2d 560, 564 (D.N.J. 2000).

  In this case, the Plaintiffs have not provided any reason for a change of venue. Therefore, this Court is not persuaded that a change of venue is appropriate. ...


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