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Elcheikhali v. Geico Insurance Co.

January 19, 2010

ABBAS ELCHEIKHALI, PLAINTIFF,
v.
GEICO INSURANCE CO., DEFENDANT.



The opinion of the court was delivered by: Kathleen M. O'malley United States District Judge

JUDGE KATHLEEN M. O'MALLEY

MEMORANDUM OF OPINION AND ORDER

On October 19, 2009, pro se plaintiff Abbas Elcheikhali filed this in forma pauperis action against Geico Insurance Company ("Geico"). Mr. Elcheikhali believes the defendant is obligated to pay for injuries he suffered in a 2007 automobile accident. It appears plaintiff predicates this court's jurisdiction on diversity of citizenship. He seeks $300,000 in damages for pain and suffering, which includes compensation for the cost of his damaged truck.

The defendant, properly identified as Geico Indemnity Company, answered the complaint on November 9, 2009. Seven days later, it filed a "Motion to Transfer Venue to the United States District Court for the District of New Jersey, Pursuant to Rule 26(b)(3) [sic] and 28 U.S.C. Section 1404."*fn1 [Dkt.#5.] Mr. Elcheikhali filed an "Answer" in opposition to the Motion, which is now before the court.

Background

Mr. Elcheikhali states that on or about May 31, 2007, "I had hit [sic] truck from the back" while driving on Route 80 East in New Jersey. Although the other vehicle did not stop, plaintiff claims he dialed 911 to report the incident to the police. The police "did not respond."*fn2

Mr. Elcheikhali then drove to his friend Todo Kopic's house. From there, he telephoned Geico to report the accident. Geico allegedly advised him to take his car to a dealership in Wayne, New Jersey the following day. Plaintiff then left Mr. Kopic's house to return home, but was confronted by federal agents upon arrival at his Cadmus Avenue residence in Elmwood Park, New Jersey. The agents arrested plaintiff immediately and took him into custody where he remained. Almost two weeks later, Mr. Elcheikhali telephoned Geico again and spoke with "Sharlin Paige [to] . . . advice [sic] her of my situation and she said she . . . will [sic] send someone to speak to me in jail[,] no one come [sic] and after that I had to serve prison time." (Compl. at 2.)

It was not until October 13, 2009 when plaintiff "was enable [sic] to contact anyone." He then reached Ms. Paige again who advised plaintiff he needed to verify the accident date because there was no police report. Mr. Elcheikhali averred he "was . . . under sevelant [sic] by United States Secret Service and the FBI and [the] Clifton police department [who] diffenitely [sic] could verify the date of the accident." (Compl. at 2.)

In spite of Mr. Elcheikhali's suggestion, Geico refused to "resolve this matter" and pay for his injuries and damage to his truck. Since the accident, plaintiff asserts he has experienced a level of pain that has made it difficult for him to walk. He has also been on pain killers because of the back and neck injuries he sustained during the accident. He claims his jail records will show he was unable to walk for three months because of these injuries. He now seeks $300,000 in damages for his medical expenses and the damage to his truck.

Geico argues in its Motion, pursuant to Civil Rule 12(b)(2), that this action is improperly venued, because no events giving rise to Mr. Elcheikhali's complaint occurred in Ohio. It also claims a transfer under 28 U.S.C. § 1404 is appropriate, fair and convenient because the accident occurred in New Jersey, the policy was issued in New Jersey and the witnesses to the accident reside in New Jersey. Defendant adds that interpretation of the policy "will be present to the law of New Jersey." (Mot. at 4.) The propriety of transferring this case pursuant to §1404, however, hinges on whether this court has personal jurisdiction over the defendant.

Motion to Transfer

28 U.S.C. §1404

Under 28 U.S.C. § 1404(a), a district court may, for the convenience of the parties and witnesses, and in the interests of justice, transfer any civil action to any other district court or division where the lawsuit might have been brought. According to the Supreme Court,"both the history and purposes of § 1404(a) indicate that it should be regarded as a federal judicial housekeeping measure, dealing with the placement of litigation in the federal courts and generally intended, on the basis of convenience and fairness, simply to authorize a change of courtrooms." Van Dusen v. Barrack, 376 U.S. 612, 636-37 (1964). The purpose of the provision is to transfer actions brought in a permissible yet inconvenient forum. Martin v. Stokes, 623 F.2d 469, 471 (6th Cir.1980)(emphasis added).

However, "a transfer under section 1404(a) may not be granted when the district court does not have personal jurisdiction over the defendants." Pittock v. Otis Elevator Co., 8 F.3d 325, 329 (6th Cir.1993). While Geico asserts this case should be transferred pursuant to § 1404, this assertion is contradicted by its argument that venue is improper.*fn3 To pursue a ยง 1404(a) transfer "to any other district ...


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