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finding that the location of books and records did not "weigh[] in favor of, or against, transfer because with the advent of new technological advances, these documents or records can be easily moved electronically to different venues"
Summary of this case from Fin. Res. Fed. Credit Union v. Alloya Corp. Fed. Credit UnionOpinion
Civ. Action No. 15-4173(FLW)
11-04-2015
KELLY GOLDSTEIN, Plaintiff, v. MGM GRAND HOTEL & CASINO, MGM RESORTS INTERNATIONAL, JOHN DOES 1-20, and ABC CORPORATIONS 1-20, Defendants.
*NOT FOR PUBLICATION*
OPINION
WOLFSON , District Judge :
Plaintiff Kelly Goldstein ("Plaintiff") brings this personal injury action against Defendants MGM Grand Hotel ("MGM Grand Hotel") and MGM Grand Resorts International ("MGM Grand Resorts") (collectively "Defendants") for damages sustained when Plaintiff allegedly fell on the premises of the MGM Grand Hotel in Las Vegas, Nevada. Presently before the Court is Defendants' motion to transfer venue to the United States District Court for the District of Nevada brought pursuant to 28 U.S.C. § 1404(a). For the reasons stated below, Defendants' motion is GRANTED and the Court transfers this case to the District of Nevada.
I. Factual Background
On or about June 6, 2013, Plaintiff, a New Jersey resident, was legally on the premises of the MGM Grand Hotel when she allegedly slipped on a wet floor and fell, causing harm to her right elbow and shoulder. Compl. ¶¶ 1-2. At the time of the incident, Plaintiff was accompanied by three of her friends, who are residents of New York and New Jersey. See Goldstein Decl., at 2. Plaintiff alleges that these injuries required significant medical care, which she received upon returning home to New Jersey. See Compl. ¶¶ 3, 7. On June 6, 2013, Plaintiff filed a five-count complaint in the Superior Court of New Jersey, asserting various tort claims against MGM Grand Hotel and its parent corporation, MGM Grand Resorts. On June 19, 2015, Defendants removed the case to this Court, and timely filed the instant motion to transfer venue.
II. Standard of Review
Section 1404(a) of Title 28 of the U.S. Code permits a district court to transfer "any civil action to any other district or division where it might have been brought," based on the convenience of the parties and the interests of justice. 28 U.S.C. § 1404(a). Thus, on a section 1404(a) motion, a district court must make two determinations: (1) whether the case could have been brought in the proposed transferee district, and (2) whether transfer is in the interests of justice and convenience. Santi v. Nat'l Bus. Records Mgmt., LLC, 722 F. Supp. 2d 602, 606 (D.N.J. 2010) ("Section 1404 requires a two-pronged analysis."). This analysis "is flexible and must be made on the unique facts of each case." Calkins v. Dollarland, Inc., 117 F. Supp. 2d 421, 428 (D.N.J. 2000).
While the decision to transfer under section 1404(a) is within the sound discretion of the district court, the decision should not be made lightly. See Gendrikrovs-Bayer v. Bellagio Hotel & Casino, No. 14-6324, 2015 WL 2383380, at *2 (D.N.J. May 15, 2015). Indeed, "the burden of establishing the need for transfer . . . rests with the movant." Jumara v. State Farm Ins., 55 F.3d 873, 879 (3d Cir. 1995). In that connection, a section 1404(a) motion to transfer venue should only be granted where transfer would "protect litigants, witnesses and the public against unnecessary inconvenience and expense." Infanti v. Mandalay Resort & Casino, No 13-6934, 2014 WL 1430368, at *2 (D.N.J. Apr. 14, 2014) (citing Van Dusen v. Barrack, 376 U.S. 612, 616 (1964)).
III. Discussion
Defendants argue that Plaintiff's Complaint should be transferred to the District of Nevada because not only is that district an appropriate forum in which Plaintiff's action could have been brought, but also a transfer is in the interests of justice. Specifically, Defendants maintain that transfer is appropriate because the incident underlying Plaintiff's claims arose in Nevada, Defendants' principle place of business is in Nevada, and there are several important non-party witnesses located in Nevada that would be inconvenienced if venue remained in New Jersey. In response, Plaintiff insists that she does not have the financial means to litigate in Nevada, and moreover, three of her witnesses to the incident and her treating physician would be inconvenienced by a transfer since they are residents of New Jersey and New York.
A. Appropriate Venue
The first inquiry this Court must make on a motion to transfer venue is whether the transferee district is a "district in which this action might have been brought." 28 U.S.C. § 1404(a); see also Yang v. Odom, 409 F. Supp. 2d 599, 604 (D.N.J. 2006). In making that determination, the court decides whether the proposed transferee district has "(1) subject matter jurisdiction over the claims; (2) personal jurisdiction over the parties; and (3) is a proper venue." Id. (citing Shutte v. Armco Steep Corp., 431 F.2d 22, 24 (3d Cir. 1970)). Here, there is no dispute that the District of Nevada is a district in which Plaintiff's action could have been brought; not only are Defendants residents of Nevada, but also the events giving rise to Plaintiff's claims occurred in Nevada. See 28 U.S.C. § 1391(a). Moreover, Defendants are amenable to service in Nevada and Plaintiff's claims are cognizable under Nevada law. Accordingly, venue is also proper in the District of Nevada. See Infanti, 2014 WL 1430368, at *3 (citing Lacey v. Cessna Aircraft Co., 932 F.2d 170, 180 (3d Cir. 1991)).
B. Interests of Justice and Convenience
The next step in the transfer analysis is a determination of whether the interests of justice and convenience of the parties weigh in favor of transfer. 28 U.S.C. § 1404(a). In deciding whether to transfer venue under section 1404(a), district courts should consider all relevant factors and need not be limited to only those enumerated under section 1404(a). See Jumara, 55 F.3d at 879. To guide the district courts in this regard, the Third Circuit has promulgated a set of factors to consider that weigh both the private and public interests protected by section 1404(a). See id.
This Court will begin by addressing the private interests as delineated by Jumara. These private interests include "the plaintiff's forum preference; the defendant's forum preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; the convenience of the witnesses but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and the location of books and records." Infanti, 2014 WL 1430368, at *3 (citing Jumara, 55 F.3d at 879).
Here, Plaintiff has chosen to litigate this matter in New Jersey. Typically, courts give a plaintiff's chosen forum great weight when deciding a motion to transfer under § 1404(a). See Shutte, 431 F.2d at 25 (observing that "a plaintiff's choice of a proper forum is a paramount consideration in any determination of a transfer request, and that choice should not be lightly disturbed"). Nevertheless, the plaintiff's choice of forum is discounted significantly where "the case has little connection with the chosen forum," and the nucleus of operative facts occurred elsewhere. Job Haines Home for the Aged v. Young, 936 F. Supp. 223, 228 (D.N.J. 1996); Reiss v. Target Corp., No. 10-0737, 2010 WL 2403349, at *2 (D.N.J. June 15, 2010) ("The fact that the events took place elsewhere reduces the weight assigned to a plaintiff's choice of forum, . . . but is not dispositive." (internal citations omitted)); A T & T Co. v. MCI Commc'ns Corp., 736 F. Supp. 1294, 1306 (D.N.J. 1990); National Mortgage Network v. Home Equity Centers, 683 F. Supp. 116, 119 (E.D. Pa. 1988); Bolton v. Tesoro Petroleum Corp., 549 F. Supp. 1312, 1314 (E.D. Pa. 1982); Schmidt v. Leader Dogs for the Blind, Inc., 544 F. Supp. 42, 47 (E.D. Pa. 1982). Here, the Court finds that Plaintiff's choice of forum, New Jersey, should be given less weight than it ordinarily deserves, because the nucleus of operative facts of her claims arose solely in Nevada, which location is Defendants' preferred forum. Moreover, despite Plaintiff's assertion to the contrary, Defendants have no apparent connection to New Jersey, "other than the fact that Plaintiff is a New Jersey resident who was a guest at one of [Defendants'] hotels." Infanti, 2014 WL 1497577, at *3. Thus, this factor weighs in favor of transfer.
The next factor is convenience of the parties. Id. In assessing this factor, courts "look to the relative physical and financial condition of [the] parties." Anthony's LLC v. Babcock, No. 11-6362, 2012 WL 5465376, at *5 (D.N.J. Nov. 8, 2012). Plaintiff submits that she does not have the economic means to litigate her case in the District of Nevada due to the financial strain resulting from her injuries, which injuries have prevented her from attending work. Plaintiff additionally contends that if she misses work to participate at trial in Las Vegas, she is likely to lose her job.
As a preliminary matter, Plaintiff's position regarding time commitment of litigating the case in Nevada deserves little consideration because no matter where trial is held, Plaintiff would likely have to devote time not only to attend trial, but also to attend depositions and other case-related proceedings. Other than her position in this regard, Plaintiff has not advanced any other contentions why her financial status should be given more consideration by this Court. While the Court recognizes the financial inequities of the parties and that Defendants have significantly more resources to defend this litigation, financial inequity alone "cannot override all the other factors in this case." Skyers v. MGM Grand Hotel LLC, No. 14-4631, 2015 WL 1497577, at *3 (D.N.J. Apr. 1, 2015) (transferring venue to Nevada despite "the superior financial status of defendant and its presumptive ability to absorb the costs of traveling from Nevada to litigate plaintiffs' claims in New Jersey, as opposed to the burden it would place on plaintiffs to litigate their case in Nevada"). Thus, based on Defendants' resources, this factor weighs slightly against transfer.
In order to ameliorate Plaintiff's financial burden, Plaintiff's deposition could be taken in New Jersey. And, to the extent that Defendants' medical experts wish to examine Plaintiff in Nevada, Defendant can bear the cost of transporting Plaintiff to that venue.
Next, this Court must also consider the conveniences of witnesses. Both parties have offered potential non-party witnesses that may be inconvenienced, depending on the venue of trial. Specifically, Plaintiff maintains that her three witnesses, who were with her at the time of the incident, would not "in all likelihood . . . be able to afford the time or expense of travelling [sic] to Las Vegas to be present for trial." Goldstein Decl., at 2. Moreover, Plaintiff generally states that her treating physician would not travel to Las Vegas for trial, nor would she be able to afford to hire an expert orthopedic surgeon. Goldstein Decl., at 4. On this factor, Defendants submit that they would call at least two MGM Grand employees who investigated Plaintiff's accident and that the nature of Plaintiff's tort claims would require additional MGM Grand employees "to testify as to MGM Grand's maintenance, training, policies, and procedures."
Plaintiff contends that she cannot absorb the costs of having an expert travel to Nevada to testify at trial. However, no matter where trial is held, both parties will presumably obtain medical experts who will opine as to the extent of Plaintiff's injuries. Nevertheless, "the convenience of [the parties'] experts is not an important transfer consideration," particularly since many expert witnesses submit to de bene esse depositions rather than appear in person at trial. Thus, the convenience of the medical expert is not afforded any weight. See Anthony's LLC, 2012 WL 5465376, at *5.
When evaluating access to proof issues in the context of convenience of witnesses, on a motion to transfer venue, the court "must scrutinize the substance of the dispute between the parties to evaluate what proof is required, and determine whether the pieces of the evidence cited by the parties are critical, or even relevant, to the plaintiff's cause of action and to any potential defenses to the action." Hoffer v. InfoSpace.com, Inc., 102 F. Supp. 2d 556, 575 (D.N.J. 2000) (quoting Van Cauwenberghe v. Biard, 486 U.S. 517, 528 (1988)); see Lacey, 932 F.2d at 181 (". . . the district court must do no more than delineate the likely contours of the case by ascertaining, among other things, the nature of the plaintiff's action, the existence of any potential defenses, and the essential sources of proof.").
Here, the convenience of the witnesses weighs in favor of transfer. Plaintiff's tort claims are based upon Defendants' alleged negligent maintenance of its premises. Hence, while the testimony of Plaintiff's witnesses, who saw her fall, is relevant, the crux of Plaintiff's claims center around Defendants' maintenance policies. Defendants' witnesses — who have knowledge regarding Defendants' maintenance policies — would arguably provide more relevant testimony in that regard. Moreover, the testimony of Plaintiff's friends is cumulative — all three will testify to what they saw when Plaintiff fell. Plaintiff has not suggested that any of these witnesses would give varying testimony. Indeed, there is no dispute over whether Plaintiff fell in Defendants' casino. Rather, as Plaintiff has alleged, this case turns on Defendants' policies and the effort to enforce and maintain those policies by Defendant. And, Plaintiff's witnesses will not be able to testify to those crucial proof issues.
Indeed, Plaintiff's non-party witnesses, who are not subject to subpoena in Nevada, could be deposed in New Jersey. --------
Furthermore, although Plaintiff has argued that her treating physicians were reluctant to travel, Plaintiff fails to either (1) identify the physicians in any way; or (2) any certification regarding the scope of the testimony to be provided by her physicians. Even if her treating physicians are inconvenienced by traveling, the location of those doctors alone is insufficient to tip the scale when considering this factor. See Lauria v. Mandalay Corp., No. 07-817, 2008 WL 3887608, at*5 (D.N.J. Aug. 18, 2008); Rahwar v. Nootz, No. 94-2674, 1994 WL 723040, at *2 (Dec. 27, 1994) ("When this litigation is viewed as both a liability and damages trial, the significance of the residence of plaintiff's doctor pales."). The Court notes, however, that Plaintiff's treating physicians could be deposed in New Jersey and those depositions could be used at trial if the physicians were found to be unavailable for trial. In sum, the convenience of the witnesses weighs in favor of transfer. While Plaintiff's witnesses may be inconvenienced, transfer is appropriate "[b]ecause the majority of the non-party witnesses who likely have the most probative knowledge on the contested issues are located in" the District of Nevada. Mancini v. Benihana Nat. Corp., No. 13-3167, 2013 WL 6147808, at *4 (D.N.J. Nov. 22, 2013).
Finally, the factor considering the location of books, records and other physical evidence, is in equipoise. As previously discussed, Plaintiff's Complaint makes a number of allegations regarding Defendants' facility maintenance, the proof of which, such as, the accident site and documents relating to Plaintiff's accident report and maintenance policies of MGM Grand Hotel, are located in Nevada. Reich Decl. ¶ 8. On the other hand, Plaintiff's medical records are kept in New Jersey. Nevertheless, I do not find this factor weighs in favor of, or against, transfer because with the advent of new technological advances, these documents or records can be easily moved electronically to different venues. Tradimpex Egypt Co. v. Biomune Co., 777 F. Supp. 2d 802, 810 (D. Del. 2011)(noting that "technology [may] make[] the physical location of documents relatively unimportant . . . .").
Next, the Court must also consider the Jumara public interest factors, which similarly weigh in favor of transfer. These public interest factors include: "the enforceability of the judgment, practical considerations that could make the trial easy, expeditious, and inexpensive, the relative administrative difficulty in the two fora resulting from court congestion, the public policies of the fora, and the familiarity of the trial judge with the applicable state law." Jumara, 55 F.3d at 879-80 (internal citations omitted). Here, Plaintiff asserts that the public interest is served by maintaining venue in New Jersey because both New Jersey and Nevada maintain gambling and hotel industries, and therefore, New Jersey has a similar interest as Nevada in hearing this case. The Court does not agree.
First, the practical considerations weigh in favor of transfer. Plaintiff reargues that because her witnesses are located in New Jersey and New York, it would be impractical to litigate in Nevada. However, the Court has already considered this argument in the context of the private factors. For this public factor, the Court considers whether a transfer of this case would make litigation "easy, expeditious and inexpensive." Jumara, F.3d at 879. Because I have already found that the bulk of the evidence and witnesses who would provide most relevant testimony are located in Nevada, it would be more expensive and burdensome to direct Defendants to haul all of their evidence and witnesses to New Jersey, even if Defendants may have the resources to do so. Rather, under this public factor, it would be less expensive and time consuming, generally, if Plaintiff were to litigate her case in Nevada.
Second, in regard to administrative difficulty resulting from court congestion, this factor weighs in support of transfer. The District of New Jersey has a demonstrably heavier case load than the District of Nevada. See U.S. Courts, Federal Judicial Caseload Statistics tbl. C (Mar. 21, 2015), http://www.uscourts.gov/report-names/federal-judicial-caseload-statistics. See also Anthony's LLC, 2012 WL 5465376, at *6. Third, Nevada has a significant interest in not only ensuring that businesses in the state operate in a safe manner, but it also has an interest in "having a local controversy decided at home." Jumara, 55 F.3d at 879-80. Finally, while this Court has the wherewithal to apply Nevada law to Plaintiff's claims, the District Court of Nevada is "certainly more likely to have a better knowledge of Nevada tort law." Infanti, 2014 WL 1430368, at *4. Thus, on balance, the public interest factors weigh in favor of transfer to the District of Nevada.
After consideration of all the relevant factors, this Court finds that transfer to the District of Nevada is appropriate. The only factor weighing against transfer is the convenience to Plaintiff. This alone is insufficient to maintain suit in New Jersey. Indeed, most importantly, transferring this case is in accordance with case law; courts in this district have generally transferred personal injury cases arising out of incidents at Las Vegas resorts and casinos to the District of Nevada. See, e.g., Grendrikovs-Baker, 2015 WL 2383380; Skyers, 2015 WL 1497577; Infanti, 2014 WL 1430368; Lauria, 2008 WL 3887608. And, this case is no exception.
Accordingly, Defendants' Motion to Transfer Venue is GRANTED. DATED: November 4, 2015
/s/ Freda L. Wolfson
Freda L. Wolfson
United States District Judge