United States District Court, D. New Jersey
JOSEPH A. DICKSON, Magistrate Judge.
This matter comes before the Court upon Defendant Masluf Realty Corp.'s Motion to Transfer or to Dismiss for Lack of Personal Jurisdiction (ECF No. 3). Pursuant to Rule 78 of the Federal Rules of Civil Procedure, no oral argument was heard. Upon consideration of the parties' submissions, and for the reasons stated below, the Court transfers this matter to the United States District Court for the Eastern District of New York pursuant to 28 U.S.C. §1406(a).
I. BACKGROUND AND PROCEDURAL HISTORY
This is an action in which Markel Insurance Company ("Plaintiff') seeks a declaratory judgment that its insurance policy does not cover Masluf Realty Corp.'s ("Defendant") alleged loss due to vandalism. See Complaint (ECF No. 1). Plaintiff alleges that Defendant made a material misrepresentation in submitting its claim for the loss. See id. ¶¶ 35-36. Plaintiff also seeks damages for insurance fraud pursuant to the New Jersey Insurance Fraud Prevention Act. See Complaint (ECF no. 1).
This action was initially brought in the Superior Court of the State of New Jersey, Law Division, Morris County, and was removed to this Court on the grounds of diversity jurisdiction on August 22, 2013. See Notice of Removal, ¶2 (ECF No. 1). A related action is pending in the Eastern District of New York. Momjian Affidavit, ¶30 (ECF no. 3-2). Plaintiff, Markel Insurance Company, is a corporation organized and existing under the laws of the State of Illinois. Complaint, ¶1 (ECF no. 1). Plaintiffs underwriting manager maintains a northeast regional office in New Jersey. Id. at ¶2. Defendant, Masluf Realty Corp. is a corporation organized and existing under the laws of the State of New York, with a principal place of business in Brooklyn, New York. Momjian Aff, ¶4 (ECF no. 3-2).
Plaintiff alleges the following facts. Plaintiff issued an insurance policy (the "Policy") to the Defendant on May 2, 2010. Compl., ¶13 (ECF no. 1). The Policy insured Defendant's real property, located at 171 Market Street, Staten Island, New York (hereinafter referred to as "Staten Island property"), and was in effect from May 2, 2010 through July 16, 2011. Id. at ¶14. Defendant submitted an insurance claim for a loss due to an alleged vandalism that occurred on or about June 2, 2011. Id. at ¶¶21 and 35. Plaintiff had declined to cover a prior loss that occurred on February 13, 2011 due to a frozen pipe, and alleges that Defendant did not fully remediate the water damage from that loss. Id. at ¶¶28-33. Plaintiff alleges that Defendant, in submitting its claim for the June 2, 2011 loss, misrepresented that it had completely remediated approximately ninety percent of the water damage sustained in the February 13, 2011 loss. Id. at ¶36.
On August 28, 2013, the Defendant filed the instant motion, which seeks to transfer the action to the Eastern District of New York pursuant to 28 U.S.C. § 1404, or alternatively, to dismiss the complaint for lack of personal jurisdiction. See ECF no. 3.
II. LEGAL ANALYSIS
Transfers of venue under section 1404(a) are "discretionary determinations made for the convenience of the parties." Lafferty v. Riel, 495 F.3d 72, 77 (3d Cir. 2007). Because section 1404(a) comes into play "where both the original and the requested venue are proper, " Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir. 1995), the threshold question in determining the appropriateness of transferring a case under section 1404(a) is whether the original venue is proper. If the original venue is improper, courts may transfer the case to a proper venue under section 1406 if the "interest of justice" requires transfer rather than dismissal for improper venue See, e.g., Lafferty v. Riel, 495 F.3d 72, 75 (3d Cir. 2007); see also 28 U.S.C. §1406 ("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 interest of justice, transfer such case to any district or division in which it could have been brought.").
A. Venue is Not Proper in the District of New Jersey
Section 1391 governs venue for all civil actions brought in district courts of the Untied States. 28 U.S.C. §1391(a)(1). Section 1391(b) governs where venue is proper and states that a civil action may be brought in:
(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located;
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's ...