Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

HATALA v. MOREY'S PIER

United States District Court, E.D. Pennsylvania


July 28, 2004.

KATHLEEN HATALA, et al. Plaintiffs
v.
MOREY'S PIER, INC., et al. Defendants.

The opinion of the court was delivered by: LOUIS POLLAK, Senior District Judge

MEMORANDUM/ORDER

Kathleen and David Hatala, citizens of Pennsylvania, have brought a diversity action in the District Court for the Eastern District of Pennsylvania for negligence, assault and battery, loss of consortium and punitive damages against Morey's Pier ("Morey's"), a New Jersey corporation, and several of its unnamed employees. Morey's owns and operates an amusement park located at Morey's Pier in Wildwood, New Jersey. The plaintiffs' complaint details the injuries alleged to have been suffered by Kathleen Hatala resulting from a ride on a Morey's amusement park slide with her daughter. Mrs. Hatala alleges that while she was writhing in pain following her ride and subsequent injuries, a Morey's employee identifying herself as a "medic" forced her to remove her shoe to assess the damage. Despite Mrs. Hatala's objections, the employee, it is alleged, apparently tried to take off her shoe, leading to additional pain and damage.

Currently before the court are (1) the defendants' motion to transfer venue from this court to the District Court for the District of New Jersey, pursuant to 28 U.S.C. § 1404(a), (2) the plaintiffs' response, (3) the defendants' reply, and (4) supplemental briefs submitted in compliance with this court's request that the parties fully address the pertinence of 28 U.S.C. § 1391(a) and 1406(a).

  Defendants in their initial and supplemental submissions argue that venue in the Eastern District of Pennsylvania is not proper under any of the three scenarios contemplated by § 1391(a):

A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (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) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
28 U.S.C. § 1391(a). The defendants initially contended that this court should transfer this civil action to New Jersey pursuant to § 1404(a), which provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Though the defendants also briefly invoked § 1406(a) in their initial submission, their supplemental memorandum requests a transfer by relying solely upon § 1406(a), which states that "[t]he 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." 28 U.S.C. § 1406(a).

  The plaintiffs, in their initial submission, argued that venue was proper pursuant to § 1391(a)(1). The plaintiffs argued against a transfer of venue under § 1404(a), citing the private and public interest factors recognized by Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995).*fn1 Their supplemental brief still argues that venue is proper under § 1391(a)(1), but also suggests that the defendants have waived any improper venue defense.*fn2 In the event the court finds venue improper here, the plaintiffs request that the court transfer venue, rather than dismiss the action, pursuant to § 1406(a).

  A review of the parties' submissions reveals that they essentially agree that venue is improper under § 1391(a)(2) and (3). Venue in the Eastern District of Pennsylvania is improper under (a)(2) because Mrs. Hatala's accident took place in New Jersey. Therefore, that is the "judicial district in which a substantial part of the events or omissions giving rise to the claim occurred." See Cottman Transmission Sys. v. Martino, 36 F.3d 291, 294 (3d Cir. 1994) (describing test for determining venue). Moreover (a)(3) is inapplicable because, although the defendants may be subject to personal jurisdiction in the Eastern District of Pennsylvania, New Jersey is a "district in which the action may otherwise be brought." The parties disagree about the appropriateness of venue under § 1391(a)(1). Section 1391(a)(1) provides for venue "where any defendant resides, if all defendants reside in the same State." Section 1391(c) establishes that "a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced." Though the defendants concede that Morey's may be deemed a resident of the Eastern District pursuant to § 1391(c), they point out that a female medic who the plaintiff intends to name as a defendant has a last known home address in Long Island City, New York. "Residence, for purposes of determining venue, is the place where an individual has [her] domicile or permanent home." Loeb v. Bank of Am., 254 F. Supp.2d 581, 586 (E.D. Pa. 2003). Thus, under § 1391(a)(1), venue in the Eastern District of Pennsylvania would be improper, because all of the defendants do not reside here.

  As venue is inappropriate in this district, this court will, in the interests of justice, transfer this action to the District of New Jersey, where the action could have been brought originally. See 28 U.S.C. § 1406(a). Since this action will be transferred to the District of New Jersey under § 1406(a), there is no need to consider the arguments raised by defendants' motion to transfer venue under § 1404(a).

  Accordingly, it is hereby ORDERED that this action is TRANSFERRED pursuant to 28 U.S.C. § 1406(a) to the United States District Court for the District of New Jersey.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.