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Ireneusz Ziemkiewicz v. R Carriers

February 8, 2013


The opinion of the court was delivered by: Bumb, United States District Judge


This matter comes before the Court upon its own motion. Pursuant to an Order dated January 18, 2013, [Docket No. 51], the Court entered an Order directing the Plaintiff to show cause, upon pain of dismissal or transfer, (1) why this case should not be dismissed for lack of subject matter jurisdiction, (2) why venue is proper in this district, and (3) why this case should not be sua sponte transferred to the appropriate district pursuant to 28 U.S.C. § 1404(a). The parties have responded to the Court's Order. See Docket Entry Nos. 54 and 55. Both parties agree that this Court has subject matter jurisdiction*fn1 and that venue is proper.*fn2 Plaintiff, however, disagrees that this matter should be transferred to any other judicial district.

According to the First Amended Complaint, the Plaintiff, Ireneusz Ziemkiewicz ("Plaintiff"), is a citizen of Shippensburg, Pennsylvania.*fn3 First Amended Complaint ("Complt.") ¶ 6. Plaintiff has brought suit against the defendants R Carriers, Inc., an Ohio corporation, and R Carriers, Shared Services, LLC, an Ohio limited liability company (collectively "R"), both with their principal places of business in Wilmington, Ohio. Complt. ¶ 7.

Plaintiff, a former truck driver for R, alleges that R defamed him and unlawfully interfered with contractual relations and prospective economic advantages with prospective employers by falsely informing such companies that Plaintiff had refused a drug test while employed at R. The Complaint alleges that R published false statements to "numerous entities" and specifies four employers by name: (1) NFI Carriers located in Cherry Hill, New Jersey; (2) Black Horse Carriers located in Carol Stream, Illinois; (3) UPS, with no specified location; and (4) Vitran, with no specified location. Plaintiff's submission to the Court, however, states that the defamatory publication to Vitran affected his employment at Vitran's Hagerstown, Maryland, branch. [Plaintiff's Response, at 9, Docket No. 54] Plaintiff's Response also states that Plaintiff applied for employment with Neiss Brothers, Coca Cola, Chapter 70, and Pepsi, all in Maryland. Id. In addition, in its discovery papers, Plaintiff requests admissions from R that R published Plaintiff's refusal to take a drug test to Aerotek, Inc., Weiss Brothers, Coca Cola, Schneider Trucking Co., Chopper 70 Logistics, LLC, Pepsi Beverage Corporation, Jacobson Companies, and Eichilbergs, Inc., although the locations of these companies are not identified. See Affidavit of Janet E. Lanyon, at Ex. 4 [Docket No. 55].

I. Legal Analysis

Because this Court has jurisdiction and venue is proper, this Court has the authority to sua sponte transfer this case pursuant to 28 U.S.C. § 1404(a). Cf. Amica Mutual Insurance Co. v. Fogel, 656 F. 3d 167, 180 (3d Cir. 2011). See also Meyers v. Heffernan, 2012 WL 1133732, at *5 (D.Del. 2012)("A Court's authority to transfer cases pursuant to 28 U.S.C. § 1404(a) does not depend upon a motion, stipulation, or consent of parties to the litigation. . . .") Plaintiff's argument that sua sponte transfer is inappropriate because R has not objected to venue is misplaced. Plaintiff confuses improper venue with transfer of venue. See Lafferty v. Gito St. Riel, 495 F. 3d 72 (3d Cir. 2007). ("Distinctions between §§ 1404(a) and 1406(a) have to do with discretion, jurisdiction, and choice of law. Section 1404(a) transfers are discretionary determinations made for the convenience of the parties and presuppose that the Court has jurisdiction and that the case has been brought in the correct forum. . . . In those instances, district courts are required to either to dismiss or transfer to a proper forum.").

Section 1404(a) of Title 28 of the United States Code provides that an action may be transferred "for the convenience of the parties and witnesses, in the interest of justice [to] . . . any other district . . . where it might have been brought."

The decision to transfer under § 1404(a) is entirely within the discretion of the district court and involves an individualized, fact-intensive consideration of all the relevant factors. See Stewart Or., Inc. v. Ricoh Corp., 487 U.S. 22, 23 (1988). "A determination that transfer to another jurisdiction is appropriate represents an 'exercise[ ] of structured discretion by trial judges appraising the practical inconveniences posed to the litigants and the court should a particular action be litigated in one forum rather than another.'" Lawrence v. Xerox Corp., 56 F. Supp. 2d 442, 450 (D.N.J. 1999) (internal citations omitted). The district court "is vested with a large discretion" to determine when transfer should be ordered "for the convenience of parties and witnesses, in the interest of justice." Solomon v. Continental Amer. Life Ins., 472 F.2d 1043, 1045 (3d Cir. 1973) (internal quotations and citations omitted).

In deciding a transfer motion, the Court must first determine whether the alternate venue is one in which the case "might have been brought." 28 U.S.C. § 1404(a). Here, the parties do not dispute that this action could have been filed in the District of Maryland or the Southern District of Ohio, the two judicial districts that seem the most suitable for transfer.

Next, the Court must consider the public and private factors relevant to a section 1404(a) transfer inquiry. The private interests include: (1) the plaintiff's forum preference; (2) the defendant's forum preference; (3) where the claim arose; (4) the convenience of the parties as indicated by their relative physical and financial condition; (5) the convenience of the witnesses to the extent they may be unavailable for trial in one of the fora; and (6) the location of books and records. Jumara

v. State Farm Insurance Co., 55 F.3d 873, 879 (3d Cir. 1995); Danka Funding, LLC v. Page, Scranton, Sprouse, Tucker & Ford, P.C., 21 F. Supp. 2d 465, 474 (D.N.J. 1998). The public interests include: (1) the enforceability of the judgment; (2) practical considerations in making the trial easy, expeditious, or inexpensive; (3) the relative administrative difficulty in the two fora resulting from court congestion; (4) the local interest in deciding controversies at home; (5) the public policies of the fora; and (6) the familiarity of the trial judge with the applicable state law in diversity cases. Id.

A. Private Interests

1. The plaintiff's forum preference

Where the plaintiff has chosen a correct forum that is the forum of the plaintiff's residence, the plaintiff's choice should not be lightly disturbed. Here, the choice of forum is not the same as Plaintiff's residence, however, and so Plaintiff's choice is given lesser deference. See, e.g., Lony v. E.I. DuPont de Nemours & Co., 886 F.2d 628, 633 (3d Cir. 1989) Moreover, where much of the conduct that Plaintiff complained of did not occur in Plaintiff's chosen forum, as is the case here, Plaintiff's choice is entitled to less deference. See Bartolacci v. Corp. of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 476 F. Supp. 381, 383 (E.D.Pa. 1979) Here, the only connection to ...

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