Opinion
01 CIV. 9955 (DLC).
February 22, 2002
Eitan Alexander Ogen, Ogen Associates, P.C., New York, New York, For Plaintiff.
Robert D. Goldstein, Lauren A. Malanga, Epstein, Becker Green, P.C. New York, New York, For Defendants.
OPINION AND ORDER
Plaintiff Avi Mishnayot ("Mishnayot") brings this diversity action against defendants MGM Mirage ("Mirage") and MGM Grand Hotel, Inc. ("MGM Grand"), alleging fraud, deceptive trade practices in violation of Nev. Rev. Stat. § 598.0923, and violations of Nevada Gaming Law, Nev. Rev. Stat. § 463.0129(e), in connection with the game of Baccarat. Plaintiff originally filed this action in New York State Supreme Court, and defendants removed the action to this Court on November 9, 2001. Defendants now move to transfer venue to the United States District Court for the District of Nevada ("District of Nevada") pursuant to 28 U.S.C. § 1404(a). Defendants also move to dismiss plaintiff's complaint for lack of personal jurisdiction and failure to exhaust administrative remedies. For the reasons set forth below, the motion to transfer is granted.
BACKGROUND
The allegations in the complaint include the following. Mishnayot alleges that defendants Mirage and MGM Grand "jointly and/or severally" operated a hotel and casino in Las Vegas, Nevada, operating under the name MGM Grand Hotel and Casino, City of Entertainment (the "Casino"). Mishnayot began playing Baccarat on an almost daily basis at the Casino beginning in February 2000. Up until in or about March 2000, the Casino adhered to the "common practice and usage in the industry" of shuffling the cards used in Baccarat in front of the Casino patrons, prior to the start of each Baccarat game. Mishnayot alleges that, in or about March 2000, without giving notice to its patrons and in contrast to its prior policy, the Casino began a practice of pre-shuffling the cards to be used in the game of Baccarat in a back room out of the view of players. Mishnayot alleges that, after the Casino began its practice of "secretly" pre-shuffling the cards, he "began losing on a consistent and continuous basis," as did other players at his tables. The consistency with which Mishnayot and others lost during this time period allegedly "defied any possibility of honest and random losses." Mishnayot twice asked Casino personnel, including a Baccarat "pit boss" named Rea, whether the Casino pre-shuffled cards, and he was told that it did not. Mishnayot alleges that Rea later admitted that cards are pre-shuffled in a back room, out of the view of players. Multiple requests by the plaintiff to view the pre-shuffling process or the area where it was conducted were denied. Mishnayot alleges that this conduct by defendants constitutes fraud, a violation of Nev. Rev. Stat. § 463.0129(e), which provides that "access of the general public to gaming activities must not be restricted in any manner," and a deceptive trade practice in violation of Nev. Rev. Stat. § 598.0923.
Baccarat is a card game in which the object is to assemble a hand of two or three cards with a point value as close to nine as possible. Initially two hands are dealt — one to the Baccarat player and one to the banker. Each hand gets two initial cards. The player can bet on either hand. The perfect hand is one that totals nine in the first two cards. Eight is the second-best hand; eight and nine constitute the two "natural" hands. If any player or the banker has a natural eight or nine, the other players may not draw a third card.
DISCUSSION
Section 1404(a) of Title 28, United States Code, allows for a transfer of venue "[f]or the convenience of parties and witnesses, [and] in the interest of justice." Such motions are in the Court's discretion to grant or deny and are "`determined upon notions of convenience and fairness on a case-by-case basis.'" Hall v. South Orange, 89 F. Supp.2d 488, 493 (S.D.N.Y. 2000) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992)). Courts should, ordinarily, defer to plaintiff's choice of venue, but may give the plaintiff's choice of forum substantially less deference when the "operative facts upon which the litigation is brought bear little material connection to the chosen forum." Berman v. Informix Corp., 30 F. Supp.2d 653, 659 (S.D.N.Y. 1998) (citation omitted); see also Invivo Research, Inc. v. Magnetic Resonance Equip. Corp., 119 F. Supp.2d 433, 438 (S.D.N.Y. 2001); ZPC 2000, Inc. v. SCA Group, Inc., 86 F. Supp.2d 274, 280 (S.D.N.Y. 2000).
To determine whether a transfer is warranted, the Court must first determine whether the case could have properly been brought in the transferee court. Berman, 30 F. Supp.2d at 656. If the transferee court appears to have jurisdiction over the case, the Court must next consider whether the transfer is appropriate based upon several factors:
(1) the convenience of witnesses, (2) the convenience of the parties, (3) the location of relevant documents and the relative ease of access to sources of proof, (4) the locus of operative facts, (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum's familiarity with the governing law, (8) the weight accorded the plaintiff's choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances.
Id. at 657; see also Lighting World, Inc. v. Birchwood Lighting, Inc., No. 01 Civ. 4751 (BSJ), 2001 WL 1242277, at *3 (S.D.N Y Oct. 16, 2001).
Mishnayot incorrectly contends that the defendants waived any objections to venue when they removed the case from the New York State Supreme Court to this federal court. Even after removal, a party may request a discretionary transfer to a more convenient district court forum pursuant to 28 U.S.C. § 1404(a). PT United Can Co. v. Crown Cork Seal Co., 138 F.3d 65, 72 (2d Cir. 1998); see also Donellan v. Ferag, Inc., No. 97 Civ. 6700 (SJ), 1999 WL 33111, at *1 (E.D.N.Y. Jan. 22, 1999).
It is undisputed that this case could have been brought in the District of Nevada. Defendant MGM Grand is a Nevada corporation having its principal place of business in Las Vegas, Nevada, and all events giving rise to the plaintiff's claims occurred in Nevada. See 28 U.S.C. § 1391(a). Mishnayot argues that the defendants are attempting an end run around the removal statute, for, had the action been commenced in state court in Nevada, they would not be permitted to remove the action to the District of Nevada. By statute, diversity actions are removable only if none of the defendants is a citizen of the state in which the action was brought. 28 U.S.C. § 1441(b). While it is true that the defendants would not have been permitted to remove the action to the District of Nevada had Mishnayot chosen to file this action in state court in Nevada, Mishnayot chose to file this action in state court in New York. Defendants properly removed the action, and they may now properly seek a transfer of venue for the convenience of parties and witnesses and in the interest of justice pursuant to 28 U.S.C. § 1404(a).
An application of the relevant factors indicates that transfer of this action to the District of Nevada is proper. Nevada is the locus of all operative facts in this action. Mishnayot played Baccarat and incurred losses in Nevada, defendants allegedly implemented their pre-shuffling procedure in Nevada, and Mishnayot's conversation with the MGM Grand employee took place in Nevada. All potential witnesses discernible from the face of the complaint are located in Nevada, as is any relevant documentary and other evidence. It appears that New York's only connection to this case is that the plaintiff happens to reside here. Mishnayot has not suggested that litigating this action in Nevada will be difficult for him, either in terms of travel or finances. In fact, the allegations in the complaint make it clear that the plaintiff was continuously present in the state of Nevada for nearly five months in the year 2000. A federal court in Nevada will be more familiar with the relevant provisions of the Nevada gaming statutes. In sum, the material facts that support the plaintiff's allegations occurred in Nevada, and any documents and witnesses that can prove or disprove these claims are located in Nevada. The totality of the circumstances, therefore, supports defendants' motion to transfer.
Having determined that this action should be transferred to the District of Nevada, this Court will not resolve defendants' motions to dismiss the litigation. Delarosa v. Holiday Inn, No. 99 Civ. 2873 (RWS), 2000 WL 648615, at *5 (S.D.N.Y. May 19, 2000); Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 992 (S.D.N.Y. 1991); see also Fort Knox Music, Inc. v. Baptiste, 257 F.3d 108, 112 (2d Cir. 2001) (A "district court has th[e] power to transfer venue even if it lacks personal jurisdiction over the defendants."). But see Security Insurance Company of Hartford v. ITA Textiles Corp., No. 99 Civ. 10942 (MBM), 2000 WL 1576879, at *2 (S.D.N.Y. Oct. 23, 2000).
CONCLUSION
The defendants' motion to transfer venue is granted. The Clerk of Court shall send a certified copy of this Opinion and any original documents filed in this action to the Clerk of Court for the District of Nevada.
SO ORDERED.