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considering evidence outside of complaint on motion to transfer under 28 U.S.C. § 1404 or § 1406
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12 CV 216 (VB)
12-09-2013
CHRISTINA RANKEL, Plaintiff, v. BRIAN S. KABATECK, ESQ., and KABATECK BROWN KELLNER LLP, Defendants.
MEMORANDUM DECISION :
Plaintiff Christina Rankel, proceeding pro se, brings this action against defendants Brian S. Kabateck, Esq., and Kabateck Brown Kellner LLP, alleging constitutional violations and violations of federal and state law arising out of defendants' handling of the settlement of her products liability lawsuit concerning the prescription drug Zyprexa. Defendants move to dismiss the complaint for improper venue under Rule 12(b)(3) or, alternatively, to transfer this action under 28 U.S.C. §§ 1404(a) or 1406(a). (Doc. #39).
For the following reasons, the Court holds venue in the Southern District of New York is improper and it is in the interests of justice to transfer the action. Accordingly, defendants' motion to dismiss is DENIED, and defendants' motion to transfer this action to the United States District Court for the Central District of California under 28 U.S.C. § 1406(a) is GRANTED.
The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332.
BACKGROUND
For purposes of deciding the pending motion, the Court accepts as true all well-pleaded allegations in the complaint and draws all reasonable inferences in favor of plaintiff. The Court may also consider evidence outside of the complaint. See, e.g., Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005). The following facts are thus drawn from the complaint and from affidavits submitted by the parties and are construed in the light most favorable to plaintiff.
Plaintiff, a New York resident, retained defendants, California resident Brian Kabateck and the California-based law firm Kabateck Brown Kellner LLP ("KBK"), to represent her in a multiple-plaintiff products liability action against Eli Lilly and Company ("Eli Lilly") for injuries relating to the prescription drug Zyprexa (the "Zyprexa Action"). Plaintiff's claims (as well as the similar claims of other individuals) were originally brought in California Superior Court in San Francisco in March 2006. After removal to the Northern District of California and transfer to the Eastern District of New York for maintenance as a multidistrict litigation, the action was voluntarily dismissed without prejudice. Defendants then began negotiating a master settlement agreement with Eli Lilly on plaintiff and others' behalf in Los Angeles, California.
In February 2007, defendants commenced a new action on behalf of plaintiff and others in California Superior Court in Los Angeles for the purpose of approving the master settlement agreement negotiated by the parties, creating a settlement fund, and administering the fund by allocating it among the eligible claimants, including plaintiff. The California court appointed two special masters who "fully administered" the fund.
Plaintiff now alleges defendants committed malpractice and/or negligently failed to keep her informed about the settlement of her claims, settled without her knowledge or consent, and failed to turn over settlement proceeds. Plaintiff brings claims for "constitutional rights violations" and civil rights violations under 42 U.S.C. §§ 1983, 1985, and 1986. Plaintiff also brings claims for legal malpractice, breach of contract, breach of fiduciary duty, false and deceptive advertising under Section 43(a) of the Lanham Act, and deceptive business practices and false advertising under Sections 349 and 350 of the New York General Business Law.
DISCUSSION
I. Legal Standard
Plaintiff bears the burden of establishing venue is proper. Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005). When deciding a Rule 12(b)(3) motion to dismiss for improper venue, the Court may rely on materials outside of the pleadings, such as affidavits. Id. When, as here, the Court does not conduct an evidentiary hearing on the motion and makes a venue determination on the basis of pleadings and affidavits, the plaintiff must only make a prima facie showing of venue. Id. The Court "must take all allegations in the complaint as true, unless contradicted by the defendants' affidavits." U.S. E.P.A. ex rel. McKeown v. Port Authority of N.Y. & N.J., 162 F. Supp. 2d 173, 183 (S.D.N.Y. 2001). The Court draws all reasonable inferences and resolves all factual conflicts in favor of plaintiff. See, e.g., Jackson v. Am. Brokers Conduit, 2010 WL 2034508, at *1 (S.D.N.Y. May 13, 2010).
When a case has been brought in an improper district, the Court may transfer the case "to any district or division in which it could have been brought" under Section 1406(a) if transfer is "in the interest of justice." 28 U.S.C. § 1406(a); see also Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d 408, 435 (2d Cir. 2005). "Courts enjoy considerable discretion in deciding whether to transfer a case in the interest of justice." Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d at 435.
If the Court instead finds venue is proper, it may still transfer the action under Section 1404(a), "[f]or the convenience of parties and witnesses." Compare 28 U.S.C. § 1404(a) with id. § 1406(a); see also, e.g., Sheet Metal Workers' Nat'l Pension Fund v. Gallagher, 669 F. Supp. 88, 91 (S.D.N.Y. 1987) ("[T]he court has power to transfer pursuant to 28 U.S.C. § 1404(a) if venue is proper and pursuant to 28 U.S.C. § 1406(a) if venue is improper." (footnotes omitted)).
In support of their motion to dismiss, defendants submit publicly available federal and state court documents relating to the Zyprexa Action (Doc. #42, Ex. 1), and the transcript of a conference held before the Honorable Kenneth M. Karas on January 10, 2013 (Doc. #49, Ex. 1). The Court takes judicial notice of these documents. See Fed. R. Evid. 201 ("The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned."); see also Global Network Commc'ns, Inc. v. City of N.Y., 458 F.3d 150, 157 (2d Cir. 2006) ("A court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." (internal quotation marks omitted)).
This action was reassigned to the undersigned on September 23, 2013.
II. Defendants' Motion to Strike
Defendants move to strike two affidavits in opposition to the motion, submitted by plaintiff and her father, Robert Rankel. Defendants' motion is denied. It is well established that in deciding a Rule 12(b)(3) motion to dismiss for improper venue, the Court may rely on materials outside of the pleadings, such as affidavits. Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005).
However, in deciding defendants' motion to dismiss, the Court does not rely on any information that is not directly relevant to the venue issue currently before it, nor does the Court take judicial notice of any facts outside the scope of what is permitted under Rule 201 of the Federal Rules of Evidence.
In her affidavit in opposition to defendants' Rule 12(b)(3) motion, plaintiff requests that the Court impose Rule 11 sanctions. To the extent this informal request can be interpreted as a motion for sanctions, it is denied as both procedurally improper and without merit.
III. Venue Is Not Proper in This District
There are three bases of venue under 28 U.S.C. § 1391, the general venue statute. Under Section 1391(b), "[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;28 U.S.C. § 1391(b).
(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 personal jurisdiction with respect to such action.
Here, plaintiff has not met her burden to show any of the three statutory grounds for venue exist in the Southern District of New York.
To the extent plaintiff relies on 28 U.S.C. § 1404(a) and cases interpreting it to argue venue is proper, those arguments are rejected because Section 1404(a) is not relevant to the question of whether venue is proper under Section 1391(b).
A. Venue Is Not Proper Under Section 1391(b)(1)
Under Section 1391(b)(1), venue is proper in "a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located." 28 U.S.C. § 1391(b)(1). On its face, Section 1391(b)(1) does not apply here, because defendants reside in California. Plaintiff argues that defendants, nonetheless, should be deemed to "reside" in New York under Section 1391(c)(2), which provides: "an entity with the capacity to sue and be sued in its common name under applicable law, 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." 28 U.S.C. § 1391(c)(2). Because defendants did not move to dismiss under Rule 12(b)(2) for lack of personal jurisdiction, plaintiff argues, defendants waived any objection to personal jurisdiction. According to plaintiff, the Court has personal jurisdiction over defendants via this waiver, defendants are thus "residents" of New York under Section 1391(c)(2), and venue is therefore proper under Section 1391(b)(1). Plaintiff relies on Frederick Goldman, Inc. v. Commemorative Brands, Inc., 2004 WL 954692 (S.D.N.Y. May 5, 2004), in which the court deemed the defendant corporation a "resident" under Section 1391(c)(2) after the defendant failed to object to personal jurisdiction, thus waiving it. Based on that waiver, the court concluded, venue was proper under what is now Section 1391(b)(1). Id. at *1.
Plaintiff also appears to argue venue is proper under Section 1391(b)(3) for the same reason. Whether venue is proper under Section 1391(b)(3) is addressed below.
In 2011, Congress amended Section 1391 to remove the distinction formerly made between actions brought on the basis on federal question jurisdiction and those brought on the basis of diversity jurisdiction. See Federal Courts Jurisdiction and Venue Clarification Act of 2011, Pub. L. No. 112-63; see also generally KM Enters., Inc. v. Global Traffic Techs., Inc., 725 F.3d 718, 724 (7th Cir. 2013) (observing the 2011 amendment "eliminated a longstanding distinction between venue in civil cases brought under federal question jurisdiction and those brought under diversity jurisdiction and rearranged several subsections"). As a result, Section 1391(b) applies regardless of the basis of the Court's subject matter jurisdiction. The Court applies the statute as amended and refers to all sections as currently numbered.
The Court is not persuaded by the reasoning of Frederick Goldman and declines to follow it. The Court instead follows Bell v. Classic Auto Grp., 2005 WL 659196 (S.D.N.Y. Mar. 21, 2005). Bell observed that under Section 1391, the residence of a corporation is determined by analyzing whether the court has personal jurisdiction over the corporation "at the time an action is commenced." 28 U.S.C. § 1391(d) (emphasis added); see also Bell v. Classic Auto Grp., 2005 WL 659196, at *5. Accordingly, "the existence of venue should be analyzed as of the time of filing, without regard to whether a defendant may waive a defense based on lack of personal jurisdiction by virtue of its conduct during litigation." Bell v. Classic Auto Grp., 2005 WL 659196, at *5. Bell held that courts must therefore make "an independent inquiry into whether personal jurisdiction was appropriate at the time the plaintiff filed the lawsuit, not as of the time defendant failed to object to jurisdiction.'" Id. (quoting DSMC, Inc. v. Convera Corp., 273 F. Supp. 2d 14, 19 (D.D.C. 2002)); see also Wine Markets Int'l, Inc. v. Bass, 939 F. Supp. 178, 180 (E.D.N.Y. 1996) (in deciding whether a case "might have been brought" in a particular district under Section 1404(a), courts should assess personal jurisdiction "as it existed when the complaint was filed, irrespective of subsequent consent or waiver"). The Court agrees.
Here, however, it is unnecessary to determine whether the Court had personal jurisdiction over defendants at the time this action was filed, because Section 1391(b)(1) only applies "if all defendants are residents of the State in which the district is located" and, here, there is no dispute that Mr. Kabateck is not domiciled in New York. See 28 U.S.C. § 1391(b)(1) (emphasis added). On its face, Section 1391(c)(2) only applies to "entit[ies] with the capacity to sue and be sued." 28 U.S.C. § 1391(c)(2). Mr. Kabateck is not an "entity," and thus Section 1391(c)(2) does not apply to him. Rather, Mr. Kabateck is a "natural person" under Section 1391(c)(1), "deemed to reside in the judicial district in which [he] is domiciled." 28 U.S.C. § 1391(c)(1). Because Mr. Kabateck is not a New York resident, and Section 1391(b)(1) only applies when "all defendants are residents of the State in which the district is located," even assuming the Court had personal jurisdiction over defendants at the time this action was commenced, venue would not be proper under Section 1391(b)(1). See, e.g., Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d 408, 431 (2d Cir. 2005) ("Plaintiffs' reliance on § 1391(b)(1) merits little discussion because all defendants do not reside in New York State."); Bell v. Classic Auto Grp., 2005 WL 659196, at *4 ("Because Classic Auto Group does not reside in New York, all defendants do not reside in New York, and venue under [Section 1391(b)(1)] is not proper.").
It is also well established that the Court may transfer venue under Section 1406(a) regardless of whether it has personal jurisdiction over defendants. See, e.g., Sheet Metal Workers' Nat'l Pension Fund v. Gallagher, 669 F. Supp. 88, 91 (S.D.N.Y. 1987) ("[I]t is clear that the court has power to transfer the case even if there is no personal jurisdiction over the defendants and whether or not venue is proper in this district." (internal quotation marks omitted)).
B. Venue Is Not Proper Under Section 1391(b)(2)
Plaintiff's reliance on Section 1391(b)(2) to show venue is also misplaced. Under Section 1391(b)(2), venue is proper in "a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." 28 U.S.C. § 1391(b)(2) (emphasis added). Although "venue can be appropriate in more than one district . . . [n]evertheless, the substantial events or omissions requirement does limit the forums available to plaintiffs." Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d 408, 432 (2d Cir. 2005) (internal citations and quotation marks omitted).
The Second Circuit has cautioned district courts to "take seriously the adjective 'substantial.'" Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005). In particular, "[i]t would be error . . . to treat the venue statute's 'substantial part' test as mirroring the minimum contacts test employed in personal jurisdiction inquiries." Id. "Substantiality" in the venue context is a more qualitative than quantitative inquiry, "determined by assessing the overall nature of the plaintiff's claims and the nature of the specific events or omissions in the forum, and not by simply adding up the number of contacts." Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d at 432-33.
Courts in this Circuit apply a two-part test to determine whether venue is proper under Section 1391(b)(2):
First, a court should identify the nature of the claims and the acts or omissions that the plaintiff alleges give rise to those claims. Second, the court should determine whether a substantial part of those acts or omissions occurred in the district where suit was filed, that is, whether significant events or omissions material to those claims have occurred in the district in question.Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d at 432 (internal citations, quotation marks, and alterations omitted).
1. The Nature of Plaintiff's Claims and the Acts and Omissions Giving Rise to Those Claims
Although the precise nature of plaintiff's claims has changed since she filed her complaint, the gravamen of her complaint is that defendants were negligent and/or committed malpractice with respect to the settlement of her products liability claims.
Plaintiff principally complains defendants "committed malpractice" by failing to keep her informed about the settlement of the Zyprexa Action, "settled [her] case without [her] knowledge or consent" and failed to pay her "after num[]erous demands." In addition to damages, plaintiff's complaint requests relief consisting of "court records showing what [her] case was settled for." In opposition to the instant motion, plaintiff alleges defendants: "never contacted her or her family after settling her case for a very large sum without her knowledge or consent," "falsified the records" relating to that settlement, and "ignored" plaintiff's requests "for an accounting of the settlement proceeds." The acts and omissions alleged by plaintiff thus principally relate to the settlement of the Zyprexa Action, which occurred in California.
As discussed above, on a Rule 12(b)(3) motion, the Court considers affidavits submitted by defendants. See Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005). The Court also considers the publicly available court records and hearing transcript submitted by defendants, which it has judicially noticed. See Fed. R. Evid. 201.
Plaintiff's claims were originally filed as part of a multi-plaintiff action in San Francisco Superior Court in March 2006, before being removed to the Northern District of California. The action was transferred to the Eastern District of New York the same year pursuant to a conditional transfer order issued by the Joint Panel for Multidistrict Litigation, where it was ultimately voluntarily dismissed from the multidistrict litigation without prejudice in January 2007. It was not until after this dismissal that KBK "began discussing and negotiating at arm['s] length the potential resolution of [plaintiff's] claims with Eli Lilly Co." (Kellner Decl., ¶¶ 8(d)-(e) (Doc. #40)). "All discussions and negotiations leading up to the drafting of [a] Master Settlement Agreement, and all conversations and correspondence to all of Defendants' clients regarding the settlement, including Plaintiff, occurred in Los Angeles, California." (Id., ¶ 8(h)).
In February 2007, a new multiple-plaintiff complaint was filed in Los Angeles Superior Court in California for the purpose of approving the master settlement agreement entered into by the parties and establishing a settlement fund to administer the agreement. In March 2007, the California court issued an order creating a qualified settlement fund; appointing a settlement administrator to administer the fund, subject to the terms of the parties' settlement agreement; authorizing the fund to enter into individual releases with the plaintiffs subject to court approval; and authorizing the administrator to wind down the fund after the completion of the individual releases and the final distribution of the proceeds of the fund. In June 2008, the California court approved a stipulation in which the parties agreed to the appointment of two special masters to allocate the fund among the eligible claimants represented by KBK. The settlement "was fully administered" by the special masters, "and all appeals for the allocated settlement awards were handled by [one of the special masters]." (Kellner Decl., ¶ 8(m) (Doc. #40)).
2. A Substantial Part of the Acts and Omissions Giving Rise to Plaintiff's Claims Did Not Occur in the Southern District of New York
Plaintiff argues venue is proper in the Southern District of New York because: (i) defendants advertised about the Zyprexa Action in New York and plaintiff signed a retainer agreement in New York; (ii) the underlying Zyprexa Action was litigated in the Eastern District of New York and the "principal witnesses" relating to that action are in New York; (iii) plaintiff's doctors are in New York; and (iv) plaintiff resides in New York.
First, because "[i]t would be error . . . to treat the venue statute's 'substantial part' test as mirroring the minimum contacts test employed in personal jurisdiction inquiries," Gulf Ins. Co. v. Glasbrenner, 417 F.3d at 357, defendants' New York advertisements and the execution of a retainer agreement with plaintiff in New York, while perhaps evidence of defendants' contacts with New York for personal jurisdiction purposes, do not represent "a substantial part of the events or omissions" giving rise to plaintiff's claims, which relate to the settlement of the Zyprexa Action.
Second, plaintiff's reliance on the events surrounding the litigation of the Zyprexa Action is misplaced. Because the venue inquiry is district-specific, litigation in the Eastern District of New York does not support venue in the Southern District of New York. See 28 U.S.C. § 1391(b); see also Gulf Ins. Co. v. Glasbrenner, 417 F.3d at 357 (plaintiff's venue allegations held insufficient because "New York State encompasses four judicial districts, [and] the complaint does not specify in which one" the act in question occurred). Regardless, because the improper acts and omissions plaintiff asserts all concern the settlement of the Zyprexa Action—not the underlying Zyprexa Action—litigation of that action in the Eastern District of New York is not relevant to plaintiff's claims and does not support her venue arguments. Neither are the "principal witnesses" offered in connection with the Zyprexa Action relevant to plaintiff's claims regarding the settlement.
Third, whether plaintiff's doctors are in New York is similarly irrelevant, because the settlement of the Zyprexa Action is at issue here, not the merits of plaintiff's products liability litigation.
Fourth, the mere fact of plaintiff's New York residence does not render venue proper in the Southern District of New York. "'[I]n most instances, the purpose of statutorily defined venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place of trial.'" Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d at 432 (emphasis in original) (quoting Leroy v. Great W. United Corp., 443 U.S. 173, 183-84 (1979)). Therefore, in deciding whether plaintiff's choice of venue is proper, the Court focuses on the relevant acts and omissions of defendants, not plaintiff. See id. Standing alone, plaintiff's status as a New York resident (and the resulting convenience to her of litigating this action here) does not support venue in this district. If it did, analyzing and applying the three bases of venue Congress enumerated in Section 1391 would be a meaningless exercise.
Finally, because substantiality is "determined by assessing the overall nature of the plaintiff's claims and the nature of the specific events or omissions in the forum, and not by simply adding up the number of contacts," Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d at 432-33, the New York contacts rejected as individually insufficient above also do not support venue in this district when considered collectively. The venue inquiry is qualitative and, taken together, the events and omissions giving rise to plaintiff's claims relate to the settlement of the Zyprexa Action and, therefore, substantially occurred in California.
Accordingly, because a substantial part of the acts and omissions relied upon by plaintiff did not occur in the Southern District of New York, venue is not proper in this district on the basis of Section 1391(b)(2).
C. Venue Is Not Proper Under Section 1391(b)(3)
Under Section 1391(b)(3), "if there is no district in which an action may otherwise be brought as provided in this section, [venue is proper in] 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)(3). Venue can be based on this subsection "only if venue cannot be established in another district pursuant to any other venue provision." Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d at 434. As discussed above, the settlement of the Zyprexa Action occurred in Los Angeles Superior Court, California. Because a substantial part of the acts or omissions out of which plaintiff's claims arose occurred in the Central District of California, this action could have been brought in that district. Accordingly, venue is not proper in this district under Section 1391(b)(3).
For the above reasons, venue is not proper in the Southern District of New York under Section 1391.
In her opposition brief, plaintiff argues defendants are in default for failure to answer. A motion for a default judgment must be made in compliance with Rule 55(b) of the Federal Rules of Civil Procedure and Local Civil Rule 55.2. See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 477 (2d Cir. 2006) (per curiam) ("pro se status does not exempt a party from compliance with relevant rules of procedural and substantive law" (internal quotation marks omitted)). Even assuming plaintiff had properly moved for a default judgment, "motions for default judgments will be denied where a party appears to defend unless it is clear that under no circumstances could the defense succeed." Guangxi Nanning Baiyang Food Co., Ltd. v. Long River Int'l, Inc., 2010 WL 1257573, at *3 (S.D.N.Y. Mar. 30, 2010) (internal quotation marks omitted). Here, defendants filed a partial motion to dismiss under Rule 12(b)(6) instead of an answer on July 17, 2012. (Doc. #17). Additionally, when defendants filed the instant motion to dismiss under Rule 12(b)(3), Judge Karas stayed all deadlines pending the outcome of the motion. (Doc. #37). Because defendants have clearly defended the instant action, the standard for entry of a default judgment has not been met. Thus, to the extent plaintiff's arguments can be interpreted as a motion for a default judgment, that motion is denied.
IV. Transfer to the Central District of California is Appropriate
Having determined venue is not proper in the Southern District of New York, the Court must decide whether to dismiss the action or, instead, transfer it under Section 1406(a) to the Central District of California, the district in which plaintiff's claims of misconduct arose. See 28 U.S.C. § 1406(a) ("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."); see also Sheet Metal Workers' Nat'l Pension Fund v. Gallagher, 669 F. Supp. 88, 91 (S.D.N.Y. 1987) ("[T]he court has power to transfer . . . pursuant to 28 U.S.C. § 1406(a) if venue is improper." (footnote omitted)). The Court has "considerable discretion" to decide whether it is "in the interest of justice" to "order transfer of the action to another district where jurisdiction and venue properly obtain." Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d at 435; see also Minnette v. Time Warner, 997 F.2d 1023, 1026 (2d Cir. 1993).
Here, venue properly obtains in the Central District of California because the settlement of the Zyprexa Action, out of which plaintiff's claims of misconduct arose, took place in Los Angeles, California.
It is also undisputed that defendants are residents of the Central District of California and are subject to that court's personal jurisdiction. --------
"When determining whether transfer pursuant to Section 1406(a) is appropriate, a court may take into account the ultimate goal of the 'expeditious and orderly adjudication of cases and controversies on their merits.'" Morath v. Metro. Recovery Servs., Inc., 2008 WL 954154, at *1 (S.D.N.Y. Apr. 8, 2008) (quoting Goldlawr, Inc. v. Heinman, 369 U.S. 463, 466-67 (1962)). "Dismissal is a severe penalty," but may be appropriate when a case "was brought with knowledge that venue was improper, or would otherwise reward plaintiffs for their lack of diligence in choosing a proper forum," Deskovic v. City of Peekskill, 673 F. Supp. 2d 154, 172-73 (S.D.N.Y. 2009) (internal citations and quotation marks omitted), or when the case "unquestionably lacks merit." Id. at 173; see also Daniel v. Am. Bd. of Emergency Medicine, 428 F.3d at 436 ("[C]ourts will not waste judicial resources by transferring a case that is clearly doomed." (internal quotation marks omitted)).
Nothing indicates plaintiff brought this action knowing venue was improper in this district. Moreover, the Court cannot conclude on the basis of the complaint and the parties' submissions that plaintiff's claims "unquestionably lack[] merit" or the action is "clearly doomed." The Court must liberally construe submissions of a pro se litigant and interpret them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (per curiam) (internal quotation marks omitted). Further, "a pro se litigant should be afforded every reasonable opportunity to demonstrate that [s]he has a valid claim." Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984). Thus, plaintiff should be given the opportunity to demonstrate the validity of her claims on the merits, despite her procedurally incorrect forum choice. See Bolar v. Frank, 938 F.2d 377, 380 (2d Cir. 1991) (observing "functional purpose of section 1406(a) . . . of removing whatever obstacles may impede an expeditious and orderly adjudication of cases and controversies on their merits" (internal quotation marks omitted)).
Here, as reflected in the transcript of the status conference cited by defendants, plaintiff appears to allege defendants knew plaintiff was not competent to understand the terms of the settlement agreement being negotiated, failed to keep plaintiff informed about the negotiations, and failed to explain to plaintiff the terms of the settlement agreement that was ultimately reached. (See Doc. #49, Ex. 1).
The Court rejects defendants' argument that because plaintiff's theory of wrongdoing has changed since she filed her complaint, the action should be dismissed because it is "clearly doomed." Defendants rely on statements made during the status conference before Judge Karas on January 10, 2013, concerning the nature of plaintiff's claims of misconduct relating to the settlement authorization and release in the Zyprexa Action. According to defendants, because plaintiff's statements at that conference were inconsistent with the theories of relief she advanced prior to the conference, the case should be dismissed outright.
The fact that plaintiff has been contradictory in articulating her specific theory of relief in a status conference and in her submissions in opposition to the instant motion is not sufficient to compel the severe penalty of dismissal. Although the Court is troubled by plaintiff's differing representations, the Court cannot conclude on that basis that plaintiff's claims are devoid of merit.
Accordingly, the Court concludes it is in the interest of justice to transfer this action to the Central District of California.
CONCLUSION
Defendants' motion to dismiss is DENIED, and defendants' motion to transfer this action to the Central District of California is GRANTED.
The Clerk is instructed to transfer the action to the United States District Court for the Central District of California.
The Clerk is further instructed to terminate the pending motion (Doc. #39) and close this case.
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). Dated: December 9, 2013
White Plains, NY
SO ORDERED:
/s/_________
Vincent L. Briccetti
United States District Judge