Smolen v. Brauer

177 F. Supp. 3d 797, 2016 U.S. Dist. LEXIS 51008, 2016 WL 1542543
CourtDistrict Court, W.D. New York
DecidedApril 15, 2016
Docket6:04-CV-6042 EAW
StatusPublished
Cited by10 cases

This text of 177 F. Supp. 3d 797 (Smolen v. Brauer) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smolen v. Brauer, 177 F. Supp. 3d 797, 2016 U.S. Dist. LEXIS 51008, 2016 WL 1542543 (W.D.N.Y. 2016).

Opinion

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Plaintiff Samuel J. Smolen (“Plaintiff”), an individual currently housed at Sing Sing Correctional Facility, commenced this action on January 30, 2004, pursuant to 42 U.S.C. § 1983, alleging that various defendant employees of Wende Correctional Facility (“Wende”) violated his Eighth Amendment rights. (Dkt. 1). Specifically, Plaintiff claims he was subjected to excessive use of force on February 1, 2001, and subsequently denied adequate medical treatment for his resulting injuries. (Dkt. 116 at ¶¶ 16-20).

Presently before the Court is Plaintiffs motion to transfer venue to the United States District Court for the Southern District .of New York (“the Southern District”). (Dkt. 186). For the following reasons, Plaintiff s motion is denied.

PROCEDURAL BACKGROUND :

Plaintiff • commenced this action pro se on January 30, 2004. (Dkt. 1). Defendants answered the complaint, and the parties proceeded to discovery before Magistrate Judge Marian W.. Payson. (Dkt. 19). On December 18, 2007, United States District Judge Charles J. Siragusa appointed Plaintiff pro bono counsel. (Dkt. 102). On September 25, 2008, Plaintiff filed an amended complaint as against Defendants M. Bishop, J. Brauer, R. Brooks, J. Lanier, C. White-Shelton,. Zy-del, E. Prefontaine, C. Jordan, and Wende Correctional Facility (collectively “Defendants”). (Dkt. 116). Defendants answered the amended complaint (Dkt. 117-125) and the parties continued to participate in discovery before Magistrate Judge Payson.

On October 6, 2010, the Court scheduled a jury trial to commence on May 9, 2011. (Dkt. 147). The Court rescheduled the jury trial to commence on January 23, 2012. (Dkt. 149). On June 13, 2011, the Court terminated Defendants Lanier, White-Shelton, Bishop, and Brooks as parties to the case. The Court referred the case to mediation on July 28, 2011. (Dkt. 153).

On December 29, 2011, the Court reset the jury trial to commence on May 21, 2012. (Dkt. 157). The trial was then rescheduled for October 1, 2012. (Dkt. 158). On September 19, 2012, the Court moved the jury trial to March 4, 2013. (Dkt. 162).

On February 12, 2013, Plaintiffs counsel wrote the Court to request an adjourn[800]*800ment of the trial scheduled to begin March 4, 2013, due to Plaintiffs health condition. (Dkt. 165). According to this letter, Assistant Attorney General Gary Levine did not object to the adjournment request. (Id.).

The Court scheduled a status conference to discuss the adjournment of the trial. On May 17, 2013, the Court granted Plaintiffs request to adjourn the status conference pending a status report on Plaintiffs health condition. (Dkt. 168).

On June 4, 2013, Judge Siragusa stayed this action “pending a further report as to Plaintiffs health.” (Dkt. 169). On November 8, 2013, Plaintiffs counsel filed a status report' indicating that Plaintiff continued to be too ill to appear for trial and requesting a further adjournment of the trial. (Dkt. 170).

' This case was transferred to the undersigned on February 18, 2014. (Dkt. 171).

, On March 17, 2014, Plaintiffs counsel indicated that Plaintiff continued to be too ill to appear for trial, and asked the Court to continue to adjourn the trial. (Dkt. 173). The Court ordered that the action remain stayed and directed Plaintiff to file a status letter with respect to his health on or before August 29, 2014. (Dkt. 174).

On September 3, 2014, Plaintiffs counsel informed the Court that Plaintiff had been diagnosed with prostate cancer and would need to undergo a series of radiation treatments, which would prevent him from being able.to travel to Rochester for trial. (Dkt. 175). Plaintiff requested that the trial continue to be adjourned. (Id.). Alternatively, Plaintiff proposed that his case be transferred to the Southern District. (Id.). In light of Plaintiffs health condition, the Court continued the stay and required a further status report to be filed on or before June 30, 2015. (Dkt. 176).

On June 15, 2015, Plaintiffs counsel wrote that Plaintiff continued to undergo radiation treatment and indicated that counsel was in the “process of preparing an application for transfer of venue.... ” (Dkt. 178). The Court ordered that Plaintiffs proposed motion for transfer of venue be filed on or before August 17, 2015. (Dkt. 179). On August 10, 2015, the Court granted Plaintiff an additional 90 days to file his motion in light of the representation that his counsel was having difficulty in obtaining medical records. (Dkt. 181). On November 9, 2015, the Court granted Plaintiff an extension of time to February 17, 20Í6, to file his motion. (Dkt. 183). Thereafter, the Court granted one final extension of time to April 18, 2016. (Dkt. 185).

Plaintiff filed his motion to change venue on March 14, 2016. (Dkt. 186). On March 28, 2016, Defendants filed papers in opposition to the motion. (Dkt. 188).

DISCUSSION

I. Motion to Transfer Venue

When deciding a motion to transfer venue pursuant to 28 U.S.C. § 1404(a), “[t]he court must first determine whether the action sought to be transferred is one that ‘might have been brought” in the transferee court. Second, the court must determine whether, considering the ‘convenience of the parties and witnesses’ and the ‘interest of justice,’ a transfer is appropriate.” Wilshire Credit Corp. v. Barrett Capital Mgmt. Corp., 976 F.Supp. 174, 180 (W.D.N.Y.1997) (quoting 28 U.S.C. § 1404(a)). “Motions to transfer venue under 28 U.S.C. § 1404(a) Tie within the broad discretion of the courts and are determined upon notions of convenience and fairness on a case-by-case basis.’” WD Encore Software, LLC v. The Software MacKiev Co., No. 6:15-cv-6566(MAT), 2016 WL 1056628, at *2 (W.D.N.Y. Mar. 17, 2016) (quoting In re Cuyahoga Equip. [801]*801Corp., 980 F.2d 110, 117 (2d Cir.1992)). The moving party bears the burden of establishing the propriety of the transfer by clear and convincing evidence. See Cancel v. Mazzuca, No. 01 Civ. 3129 NRB, 2002 WL 1891395, at *2 (S.D.N.Y. Aug. 15, 2002).

Plaintiff asks that this case be transferred to the Southern District because he is currently residing there and because his “poor health prevents him from safely travelling to the Western District of New York.” (Dkt. 186-3 at 2). Defendants oppose Plaintiffs motion, arguing that the Western District of New York (“the Western District”) is the only appropriate venue for this case. (Dkt. 188-1 at 1, 3).

A. Whether the Action Might Have Been Brought in the Transferee Court

“For the purposes of section 1404(a), an action might have been brought in another forum if, at the time the action was originally filed, the transferee court would have had subject matter jurisdiction and personal jurisdiction over the defendants, and if venue would have been proper in the transferee court.” Posven C.A. v. Liberty Mut. Ins. Co.,

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177 F. Supp. 3d 797, 2016 U.S. Dist. LEXIS 51008, 2016 WL 1542543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smolen-v-brauer-nywd-2016.