Opinion
19-CV-6334 (CM)
07-17-2019
ISAAC MIKE ABERGEL, Plaintiff, v. PROFESSIONAL CLAIMS BUREAU, INC., Defendant.
TRANSFER ORDER :
Plaintiff Isaac Mike Abergel, who resides in Brooklyn, New York, brings this action pro se. Plaintiff sues Professional Claims Bureau, Inc. Plaintiff alleges that Defendant is attempting to collect a debt that has already been paid. The Court therefore construes Plaintiff's claim as arising under the Fair Debt Collections Practices Act (FDCPA), 15 U.S.C. § 1692. For the following reasons, the Court transfers this action to the United States District Court for the Eastern District of New York.
Defendant's website provides a Garden City, New York address. See https://www.pcbinc.org/contact/. But according to the attachment to Plaintiff's complaint, Defendant utilizes a post office box in Hicksville, New York.
DISCUSSION
Under the general venue provision, a federal 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 (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 personal jurisdiction with respect to such action.28 U.S.C. § 1391(b). For venue purposes, a "natural person" resides in the district where the person is domiciled. § 1391(c)(1). Under § 1391(b)(2), in actions brought under the FDCPA, the claim arises in the location where the collection agency mails a collection notice or places a phone call. See, e.g., Bates v. C & S Adjusters, Inc., 980 F.2d 865, 867-68 (2d Cir. 1992). And an entity that is not a person, "whether or not incorporated, shall be deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court's personal jurisdiction with respect to the civil action in question." § 1391(c)(2).
Even if venue is proper here, the Court may transfer claims "[f]or the convenience of the parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). "District courts have broad discretion in making determinations of convenience under Section 1404(a) and notions of convenience and fairness are considered on a case-by-case basis." D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006). Moreover, courts may transfer cases on their own initiative. See Cento v. Pearl Arts & Craft Supply Inc., No. 03-CV-2424 (LAK), 2003 WL 1960595, at *1 (S.D.N.Y. Apr. 24, 2003) ("Courts have an independent institutional concern to see to it that the burdens of litigation that is unrelated to the forum that a party chooses are not imposed unreasonably on jurors and judges who have enough to do in determining cases that are appropriately before them. The power of district courts to transfer cases under Section 1404(a) sua sponte therefore is well established."); see also Lead Indus. Ass'n. Inc. v. OSHA, 610 F.2d 70, 79 n.17 (2d Cir. 1979) (noting that the "broad language of 28 U.S.C. § 1404(a) would seem to permit a court to order transfer sua sponte").
In determining whether transfer is appropriate, courts consider the following factors: (1) the convenience of witnesses; (2) the convenience of the parties; (3) the locus of operative facts; (4) the availability of process to compel the attendance of the unwilling witnesses; (5) the location of relevant documents and the relative ease of access to sources of proof; (6) the relative means of the parties; (7) the forum's familiarity with the governing law; (8) the weight accorded to the plaintiff's choice of forum; (9) trial efficiency; and (10) the interest of justice, based on the totality of circumstances. Keitt v. N.Y. City, 882 F. Supp. 2d 412, 458-59 (S.D.N.Y. 2011); see also N.Y. Marine and Gen. Ins. Co. v. LaFarge No. Am., Inc., 599 F.3d 102, 112 (2d Cir. 2010) (setting forth similar factors).
Under § 1404(a), transfer appears to be appropriate in this case. While it is unclear whether Defendant is subject to personal jurisdiction in this district, it is clear that the United States District Court for the Eastern District of New York is a proper venue for this action. See §§ 112(c), 1391(b)(2). Defendant is located in the Eastern District of New York. It is likely therefore that the events giving rise to Plaintiff's claim occurred in that judicial district, and that the relevant documents and witnesses are also located there. Based on the totality of the circumstances, the Court concludes that it is in the interest of justice to transfer this action to the United States District Court for the Eastern District of New York. See § 1404(a).
CONCLUSION
The Clerk of Court is directed to assign this matter to my docket, mail a copy of this order to Plaintiff, and note service on the docket. The Clerk of Court is further directed to transfer this action to the United States District Court for the Eastern District of New York. Whether Plaintiff should be permitted to proceed further without prepayment of fees is a determination to be made by the transferee court. A summons shall not issue from this Court. This order closes this case.
The Clerk of Court is directed to docket this as a "written opinion" within the meaning of Section 205(a)(5) of the E-Government Act of 2002.
The Court certifies, under 28 U.S.C. § 1915(a)(3), that any appeal from this order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). SO ORDERED. Dated: July 17, 2019
New York, New York
/s/_________
COLLEEN McMAHON
Chief United States District Judge