Ward v. Stewart, 7:15–CV–1023.

• Court: United States District Courts. 2nd Circuit. United States District Court of Northern District of New York
• Citation: 133 F.Supp.3d 455
• Docket Number: No. 7:15–CV–1023.,7:15–CV–1023.
• Parties: Kevin A. WARD, Sr. and Pamela Ward, individually and as Administrators of the Estate of Kevin A. Ward, Jr., deceased, Plaintiffs, v. Anthony Wayne STEWART, Defendant.
• Decision Date: 29 September 2015

133 F.Supp.3d 455

Kevin A. WARD, Sr. and Pamela Ward, individually and as Administrators of the Estate of Kevin A. Ward, Jr., deceased, Plaintiffs,
v.
Anthony Wayne STEWART, Defendant.

No. 7:15–CV–1023.

United States District Court, N.D. New York.

Signed Sept. 29, 2015.

133 F.Supp.3d 458

Faraci, Lang Law Firm, of Counsel, Hadley L. Matarazzo, Esq., Rochester, NY, The Lanier Law Firm, of Counsel, Judson A. Waltman, Esq., Houston, TX, William M. Lanier, Esq., New York, NY, for Plaintiffs.

Woods Oviatt Gilman LLP, of Counsel, Brian D. Gwitt, Esq., Buffalo, NY, for Defendant.

MEMORANDUM—DECISION and ORDER

DAVID N. HURD, District Judge.

I. INTRODUCTION

Plaintiffs Kevin A. Ward, Sr. and Pamela Ward (collectively "plaintiffs") initially filed this action in Supreme Court, Lewis County, against defendant Anthony Wayne Stewart ("Stewart" or "defendant"), asserting four causes of action arising from his involvement in the untimely death of their son, Kevin A. Ward, Jr. ("decedent"). Thereafter, defendant removed the action to federal court, answered plaintiffs' complaint, and asserted a counterclaim for indemnity arising out of a liability release that allegedly covers the events giving rise to plaintiffs' claims.

Stewart has now moved pursuant to 28 U.S.C. § 1404(a) to transfer venue in this action to the United States District Court for the Western District of New York, Rochester Division. Plaintiffs have not filed a formal opposition; rather, they have submitted a proposed stipulated order consenting to transfer. The motion

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will be considered on the basis of these submissions without oral argument.

II. BACKGROUND¹

In the years prior to his death, decedent had enjoyed a brief but promising career as a young race car driver, finding success "at every level of competition" as he quickly progressed to racing "bigger and faster cars on bigger and faster tracks." Compl. ¶¶ 4–5. Stewart, a more seasoned competitor, has also enjoyed tremendous success in the sport of car racing. See id. ¶¶ 8–9. Yet despite his international renown as a successful participant in some of the most popular racing series in the world, defendant is still known to occasionally race in smaller, more local events. Id. ¶ 11.

That was the case on August 9, 2014, when decedent, Stewart, and twenty-two other drivers began the final race of a "Super Sprint" series event being held at Canandaigua Motorsports Park in Canandaigua, New York.² Compl. ¶¶ 12, 15. During the fourteenth lap, defendant's race car made contact with decedent's car, causing decedent to "crash into the wall at the high side of the track." Id. ¶ 16. At or around this same time, the race track also came under a "yellow caution" flag, understood by the drivers as a signal that required them to "slow down and move away" from a hazard on the track "by either moving higher on the track or lower depending on where the hazard is located." Id. ¶¶ 7, 17.

While the remaining drivers, including Stewart, continued the final race, decedent exited his now-disabled race car and "made his way a short distance down the track on foot." Compl. ¶ 18. Although "6 cars safely passed [decedent] while he was standing on the track," defendant approached decedent in his race car and "gunned his engine, causing his 700 horsepower vehicle to slide and strike [decedent] with his right rear tire, crushing [decedent] and flinging his body an estimated 25 feet down the track." Id. ¶¶ 18, 20. Decedent suffered injuries that soon proved fatal. Id. ¶ 21.

III. DISCUSSION

Stewart argues that maintaining the action in this District will pose an undue hardship on the litigants and witnesses. Plaintiffs, for their part, have signed a proposed stipulated order indicating they would consent to defendant's proposed transfer.

As an initial matter, "consent of all parties is not a basis for ordering transfer" pursuant to § 1404(a). 15 Charles Alan Wright, Arthur R. Miller, Edward H. Cooper, & Richard D. Freer, Federal Practice and Procedure § 3841 (4th ed.2013). Rather, "[t]he transferor court must still conclude that the Section 1404(a) statutory factors of convenience and the interest of justice justify transfer." Id. (explaining that the parties are not consenting to transfer, but are instead consenting to the transferee court after the transferor court determines that transfer is proper based upon the longstanding statutory factors).

In fact, a review of case law confirms that district courts regularly conduct the same multi-factor analysis regardless of whether plaintiffs have signaled their

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consent to the proposed transferee forum. See, e.g., Hess v. McBride, 2015 WL 4740792, at *2 (E.D.N.C. Aug. 10, 2015) (conducting venue transfer analysis where plaintiffs' response stated "only that [they] consent to the transfer of this matter" (citation and internal quotation marks omitted)); Oliver v. United States, 2014 WL 4543005, at *1 (E.D.N.Y. Sept. 12, 2014) (conducting same analysis despite plaintiff's consent to transfer); Banc of America Leasing & Capital, LLC v. Windermere West Valley Partners, LLC, 2009 WL 3806403, at *1 (N.D.Iowa Nov. 10, 2009) (same); Harris v. Lawson, 2008 WL 4003999, at *1 (M.D.Ga. Aug. 27, 2008) (same); O'Brien & Gere, Inc. of N. Am. v. Barton Rands, Ltd., 497 F.Supp.2d 507, 510 (W.D.N.Y.2007) (same). Accordingly, the same approach will be applied in this case.

Specifically, this approach is grounded in 28 U.S.C. § 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 or to any district or division to which all parties have consented."

"In determining whether a transfer of venue pursuant to 28 U.S.C. § 1404(a) is appropriate, district courts engage in a two-part inquiry, asking: (1) whether an action ‘might have been brought’ in the proposed transferee forum, and if so, (2) whether the transfer promotes convenience and justice." Wilson v. DirectBuy, Inc., 821 F.Supp.2d 510, 515 (D.Conn.2011).

A. Whether This Action Might Have Been Brought in the Proposed Forum

There is no question that this action "might have been brought" in the Western District of New York.

"To decide whether an action ‘might have been brought’ in the proposed transferee forum, the court must first determine whether the defendants are subject to personal jurisdiction in that forum, and whether venue would properly lie there." Wilson, 821 F.Supp.2d at 515.

Taking the second element of this inquiry first, the relevant statute provides that venue in a civil action may be laid 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). Here, the facts alleged in plaintiffs' complaint concern events that occurred over the span of a few minutes in Canandaigua, New York. Because Canandaigua, which is located in Ontario County, is in turn situated within the confines of the proposed transferee forum, venue would properly lie there. See 28 U.S.C. § 112(d) (enumerating the list of counties comprising the Western District of New York).

These same factual allegations would also appear to provide a basis for the exercise of personal jurisdiction over Stewart in the proposed transferee forum. "In a diversity or federal question case, personal jurisdiction is determined by the law of the state in which the district court sits." Doe v. Ciolli, 611 F.Supp.2d 216, 220 (D.Conn.2009).

As relevant here, New York's long-arm statute provides for personal jurisdiction over a non-domiciliary who "commits a tortious act within the state" while physically present there. N.Y. C.P.L.R. § 302(a)(2) ; see also Emerald Asset Advisors, LLC v. Schaffer, 895 F.Supp.2d 418, 430 (E.D.N.Y.2012) (analyzing § 302(a)(2) and noting that the Second Circuit has consistently construed New York law to

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require the tortfeasor's physical presence in the state). Stewart is an Indiana domiciliary who committed the allegedly tortious acts while physically present in Canandaigua, New York.³ See Compl. ¶¶ 2, 20. Accordingly, this action "might have been brought" in the Western District of New York.⁴

B. Whether Transfer Promotes Convenience and Justice

"Section 1404(a) is intended to prevent waste of time, energy and money and to protect litigants, witnesses and [the] public against unnecessary inconvenience and expense." Rindfleisch v. Gentiva Health Sys., Inc., 752 F.Supp.2d 246, 250 (E.D.N.Y.2010) (alteration in original) (citation and internal quotation marks omitted). Accordingly, the second prong of the transfer analysis requires careful consideration of: (1) the plaintiff's choice of forum; (2) the convenience of witnesses; (3) the location of relevant documents and relative ease of access to sources of proof; (4) the convenience of the parties; (5) the locus of...