United States District Court, E.D. Pennsylvania
July 28, 2004.
KATHLEEN HATALA, et al. Plaintiffs
MOREY'S PIER, INC., et al. Defendants.
The opinion of the court was delivered by: LOUIS POLLAK, Senior District Judge
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.