42003915;2 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK BUFFALO DIVISION CHRISTINA BOERGERS, Plaintiff, v. MIAMI DOLPHINS, LTD. and SOUTH FLORIDA STADIUM LLC, Defendants. Case No.: 1:17-cv-00401-WMS NOTICE OF MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR TRANSFER OF VENUE ORAL ARGUMENT REQUESTED PLEASE TAKE NOTICE, that upon accompanying Declaration of Scott M. Kessler, sworn to on June 13, 2017, the Declaration of Brandon Michael Briggs, Counsel to Defendant Miami Dolphins, Ltd., sworn to on June 13, 2017, the Declaration of Brandon Michael Briggs, Counsel to Defendant South Florida Stadium LLC, sworn to on June 13, 2017, and the memorandum of law, dated June 13, 2017, Defendants, MIAMI DOLPHINS, LTD. (“Miami Dolphins”) and SOUTH FLORIDA STADIUM LLC (“SFS”) (collectively “Defendants”), will move this Court, before the Honorable William M. Skretny, in the U.S. Courthouse at 2 Niagara Square, Buffalo, NY 14202, on a date to be determined in accordance with Local Civil Rule 7, or on such other date as the Court may determine, for an order, pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(2), 12(b)(3), and 12(b)(6), dismissing the Complaint of Plaintiff, CHRISTINA BOERGERS (“Plaintiff”), or in the alternative, transferring venue of this lawsuit to the United States District Court for the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). PLEASE TAKE FURTHER NOTICE, that, pursuant to Local Civil Rule 7, Plaintiff shall have fourteen (14) days after service of this motion to file and serve responding papers, and Case 1:17-cv-00401-WMS Document 5 Filed 06/13/17 Page 1 of 2 2 42003915;2 Defendants shall have seven (7) days after service of the responding papers to file and serve reply papers, unless briefing deadlines are otherwise set by Order of this Court. PLEASE TAKE FURTHER NOTICE, that Defendants respectfully request oral argument of this motion at a date and time to be determined by the Court. Dated: New York, NY June 13, 2017 AKERMAN LLP 666 Fifth Avenue 20th Floor New York, NY 10103 Telephone: (212) 880-3800 Facsimile: (212) 880-8965 By: s/Scott M. Kessler Scott M. Kessler, Esq. Primary E-mail: scott.kessler@akerman.com Secondary E-mail: gina.mckenna@akerman.com Counsel for Defendants Miami Dolphins, Ltd. and South Florida Stadium LLC Case 1:17-cv-00401-WMS Document 5 Filed 06/13/17 Page 2 of 2 Case 1:17-cv-00401-WMS Document 5-1 Filed 06/13/17 Page 1 of 1 Case 1:17-cv-00401-WMS Document 5-2 Filed 06/13/17 Page 1 of 7 Case 1:17-cv-00401-WMS Document 5-2 Filed 06/13/17 Page 2 of 7 Case 1:17-cv-00401-WMS Document 5-2 Filed 06/13/17 Page 3 of 7 Case 1:17-cv-00401-WMS Document 5-2 Filed 06/13/17 Page 4 of 7 Case 1:17-cv-00401-WMS Document 5-2 Filed 06/13/17 Page 5 of 7 Case 1:17-cv-00401-WMS Document 5-2 Filed 06/13/17 Page 6 of 7 Case 1:17-cv-00401-WMS Document 5-2 Filed 06/13/17 Page 7 of 7 Case 1:17-cv-00401-WMS Document 5-3 Filed 06/13/17 Page 1 of 3 Case 1:17-cv-00401-WMS Document 5-3 Filed 06/13/17 Page 2 of 3 Case 1:17-cv-00401-WMS Document 5-3 Filed 06/13/17 Page 3 of 3 Case 1:17-cv-00401-WMS Document 5-4 Filed 06/13/17 Page 1 of 3 Case 1:17-cv-00401-WMS Document 5-4 Filed 06/13/17 Page 2 of 3 Case 1:17-cv-00401-WMS Document 5-4 Filed 06/13/17 Page 3 of 3 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK BUFFALO DIVISION CHRISTINA BOERGERS, Plaintiff, v. MIAMI DOLPHINS, LTD. and SOUTH FLORIDA STADIUM LLC, Defendants. Case No.: 1:17-cv-00401-WMS MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS, OR IN THE ALTERNATIVE, MOTION FOR TRANSFER OF VENUE Akerman LLP 666 Fifth Avenue 20th Floor New York, NY 10103 Dated: New York, New York June 13, 2017 Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 1 of 28 i TABLE OF CONTENTS Page INTRODUCTION ………………………………………………………………………………..1 LEGAL ARGUMENT ……………………………………………………………………………2 I. THIS COURT LACKS PERSONAL JURISDICTION OVER DEFENDANTS AND THEREFORE MUST DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(2) .........................................................................................2 A. There Is No Jurisdiction under New York’s Personal Jurisdiction Statutes .........................................................................................................4 B. Subjecting Defendants to This Court’s Jurisdiction Would Run Afoul of Federal Due Process ......................................................................8 II. THIS COURT IS AN IMPROPER VENUE FOR ADJUDICATING THIS ACTION AND THEREFORE MUST DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(3) ................................................................................................12 III. PLAINTIFF PLEADS ONLY LEGAL CONCLUSIONS AND FAILS TO ESTABLISH A PLAUSIBLE CLAIM FOR NEGLIGENCE SUCH THAT THIS COURT MUST DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(6) ..................................................................................................................14 IV. THE MIAMI DOLPHINS ARE AN IMPROPER PARTY TO THIS ACTION AND MUST BE DISMISSED PURSUANT TO FED. R. CIV. P. 12(b)(6) ..............................................................................................................16 V. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER THIS ACTION AND THEREFORE MUST DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1) .......................................................................................16 VI. IN THE ALTERNATIVE, THIS COURT SHOULD TRANSFER THE ACTION TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA ...............................................................17 CONCLUSION ………………………………………………………………………………….21 Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 2 of 28 ii TABLE OF AUTHORITIES CASES PAGE(S) 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F. Supp. 128 (S.D.N.Y. 1994) ……………………………………………………...20 Arar v. Ashcroft, 532 F.3d 157 (2d Cir. 2008) ………………………………………………………………3 Asahi Metal Indus. Co. v. Superior Ct., 480 U.S. 102 (1987) …………………………………………………………………..9, 11 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ……………………………………………………………………..14 Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779 (2d Cir. 1999) ………………………………………………………………3 Bankers Trust Co. of W. New York v. Crawford, 559 F. Supp. 1359 (W.D.N.Y. 1983) ……………………………………………………18 Beacon Enter., Inc. v. Menzies, 715 F.2d 757 (2d Cir. 1983) ……………………………………………………………5, 7 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) …………………………………………………………………14, 15 Carter v. CIOX Health, LLC, No. 14-CV-6275-FPG, 2017 WL 2334886 (W.D.N.Y. May 30, 2017) …………......14-15 Delgado v. Laundromax, Inc., 65 So. 3d 1087 (Fla. 3d DCA 2011) …………………………………………………….16 DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81 (2d Cir. 2001) ………………………………………………………………..7 Donchatz v. HSBC Bank USA, N.A., No. 14-CV-194-JTC, 2015 WL 860760 (W.D.N.Y. Feb. 27, 2015) …………………..3-4 Donchatz v. HSBC Bank USA, N.A., 648 F. App’x 158 (2d Cir. 2016) ………………………………………………………3-4 Gams v. Westchester Cty. Dep’t of Prob., 232 F.R.D. 202 (S.D.N.Y. 2005) …………………………………………………………2 Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 3 of 28 iii Giuliano v. Barch, No. 16 CV 0859 (NSR), 2017 WL 1234042 (S.D.N.Y. Mar. 31, 2017) …………………6 Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353 (2d Cir. 2005) ……………………………………………………………..13 Hubbard v. Kelley, 752 F. Supp. 2d 311 (W.D.N.Y. 2009) ………………………………………………...2, 3 In re Braskem S.A. Sec. Litig., No. 15 CIV. 5132 (PAE), 2017 WL 1216592 (S.D.N.Y. Mar. 30, 2017) …………..4, 8, 9 Int’l Shoe Co. v. Washington, 326 U.S. 310 (1945) ………………………………………………………………..4, 9, 10 Kernan v. Kurz-Hastings, Inc., 175 F.3d 236 (2d Cir. 1999) ………………………………………………………………3 Lebron v. Encarnacion, No. 16-CV-4666(ADS)(ARL), 2017 WL 2352856 (E.D.N.Y. May 31, 2017) ……..6, 7, 8 L.F. Rothschild, Unterberg, Towbin v. McTamney, 89 A.D.2d 268, 452 N.Y.S.2d 630 (1st Dep’t 1982), aff’d 59 N.Y.2d 651 (1983) ……………. ………………………………………………..5 Licci ex rel. Licci v. Lebanese Canadian Bank, SAL., 732 F.3d 161 (2d Cir. 2013) ………………………………………………………………9 Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553 (2017) ……………………………………………………………………..2 Lipin v. Bergquist, 574 F. Supp. 2d 423 (S.D.N.Y. 2008) ……………………………………………………7 McGowan v. Smith, 52 N.Y.S.2d 268 (1982) …………………………………………………………………..5 Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560 (2d Cir. 1996) ……………………………………………………3, 4, 8, 9, 11 Mrs. U.S. Nat. Pageant, Inc. v. Miss U.S. Org., LLC, 875 F. Supp. 2d 211 (W.D.N.Y. 2012) …………………………………………………...8 Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 4 of 28 iv Niagara Restitution Servs., Inc. v. Degen, No. 15-CV-580-FPG, 2016 WL 3004665 (W.D.N.Y. May 23, 2016) ………………….14 Posven C.A. v. Liberty Mut. Ins. Co., 303 F. Supp. 2d 391 (S.D.N.Y. 2004) …………………………………………………..18 Promuto v. Waste Mgmt., Inc., 44 F. Supp. 2d 628 (S.D.N.Y. 1999) ……………………………………………………19 Robinson v. Overseas Military Sales Corp., 21 F.3d 502 (2d Cir. 1994) ……………………………………………………………..3, 4 Romano v. Levitt, No. 15CV518A, 2017 WL 193502 (W.D.N.Y. Jan. 18, 2017) ………………………….19 Satterfield v. Maldonado, 127 F. Supp. 3d 177 (S.D.N.Y. 2015) …………………………………………………..12 Smolen v. Brauer, 177 F. Supp. 3d 797 (W.D.N.Y. 2016) ………………………………………………….18 Taylor Devices, Inc. v. Walbridge Aldinger Co., 538 F. Supp. 2d 560 (W.D.N.Y. 2008) …………………………………………………...9 Universal Grading Serv. v. eBay, Inc., No. 08-CV-3557 (CPS), 2009 WL 2029796 (E.D.N.Y. June 10, 2009) …………………3 U.S. ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 110 F.3d 861 (2d Cir. 1997) ………………………………………………………………2 Van Dusen v. Barrack, 376 U.S. 612 (1964) ……………………………………………………………………..18 Wenhold v. Lebreaux, No. 1:17-CV-38-GWC, 2017 WL 2378017 (W.D.N.Y. May 31, 2017) …………………7 Westcode, Inc. v. Mitsubishi Elec. Corp., 171 F. Supp. 3d 43 (N.D.N.Y. 2016) ……………………………………………………17 Wilshire Credit Corp. v. Barrett Cap. Mgmt. Corp., 976 F. Supp. 174 (W.D.N.Y. 1997) …………………………………………………18, 19 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 (1980) …………………………………………………………………..9, 10 Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 5 of 28 v Youngman v. Robert Bosch LLC, 923 F. Supp. 2d 411 (E.D.N.Y. 2013) …………………………………………………..12 STATUTES 28 U.S.C. § 1332 ………………………………………………………………………………...16 28 U.S.C. § 1391(b) ……………………………………………………………………..12, 13, 14 28 U.S.C. § 1391(c) ……………………………………………………………………………..13 28 U.S.C. § 1404(a) ……………………………………………………………………………..17 N.Y. C.P.L.R. § 301 (2017) ……………………………………………………………..3, 6, 7, 12 N.Y. C.P.L.R. § 302(a) (2017) ………………………………………………………..4, 5, 6, 7, 12 OTHER AUTHORITIES Fed. R. Civ. P. 12(b)(1) ………………………………………………………………………….16 Fed. R. Civ. P. 12(b)(2) ………………………………………………………………………...2, 3 Fed. R. Civ. P. 12(b)(3) ……………………………………………………………………...12, 13 Fed. R. Civ. P. 12(b)(6) ……………………………………………………………………...14, 15 Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 6 of 28 1 Defendants, MIAMI DOLPHINS, LTD. (“Miami Dolphins”) and SOUTH FLORIDA STADIUM LLC (“SFS”) (collectively “Defendants”), by and through their undersigned counsel, hereby move this Honorable Court to dismiss Plaintiff’s Complaint for lack of personal jurisdiction, improper venue, failure to state a claim upon which relief can be granted, and lack of subject matter jurisdiction. In the alternative, Defendants move this Honorable Court to transfer venue to the United States District Court for the Southern District of Florida. INTRODUCTION Plaintiff, a New York resident, commenced this action against two Florida entities on or about May 10, 2017. See Complaint attached to the accompanying Declaration of Scott M. Kessler, sworn to on June 13, 2017 (“Kessler Dec.”), as Exhibit A. In her terse two-count Complaint, sounding in negligence, Plaintiff alleges that Defendants are liable for injuries she sustained in Miami, Florida, from an accident in which she fell to the floor after sitting down in a folding chair at Sun Life Stadium on November 13, 2014. Plaintiff maintains that the chair, which she characterizes as “inherently dangerous,” collapsed after she sat down in it. According to Plaintiff, Defendants are responsible for her injuries because they failed to properly inspect the chair and because they ignored the chair’s supposed defective condition prior to providing Plaintiff with the chair. Regardless of the reason why Plaintiff fell, this action must be dismissed. First, pursuant to Fed. R. Civ. P. 12(b)(2), this Court lacks personal jurisdiction over either Defendant. There is no meaningful connection between the State of New York and the Miami Dolphins or SFS. Second, pursuant to Fed. R. Civ. P. 12(b)(3), venue is improper in the Western District of New York. Defendants reside in the Southern District of Florida, all of Defendants’ alleged tortious conduct took place in Florida, all evidence and witnesses exist in Florida, and Florida law likely Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 7 of 28 2 controls Plaintiff’s claims. Third, even assuming all of Plaintiff’s allegations as true, Plaintiff has failed to allege a plausible negligence action against Defendants pursuant to Fed. R. Civ. P. 12(b)(6). Fourth, the Miami Dolphins must be dismissed as a party to the action because they are not the owners and/or operators of Sun Life Stadium. Fifth, pursuant to Fed. R. Civ. P. 12(b)(1), this Court lacks subject matter jurisdiction over this case because Plaintiff has failed to allege sufficient facts to establish that the amount in controversy in this action exceeds $75,000.00. Accordingly, dismissal is warranted. In the alternative, this lawsuit should be transferred to the United States District Court for the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). LEGAL ARGUMENT I. THIS COURT LACKS PERSONAL JURISDICTION OVER DEFENDANTS AND THEREFORE MUST DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(2) Prior to taking any other action, a Court must first decide whether it can exercise personal jurisdiction over a defendant. See Lightfoot v. Cendant Mortg. Corp., 137 S. Ct. 553, 562 (2017) (“A court must have the power to decide the claim before it (subject matter jurisdiction) and power over the parties before it (personal jurisdiction) before it can resolve a case.”); Gams v. Westchester Cty. Dep’t of Prob., 232 F.R.D. 202, 205 (S.D.N.Y. 2005) (“The fact that a court has subject matter jurisdiction, however, is not alone sufficient to enable it to adjudicate a case or controversy placed before it. It must obtain personal jurisdiction over the individuals against whom relief is sought.”). “Personal jurisdiction ‘is concerned with the relationship of a given defendant to the particular geographic area in which a case is brought.’” Hubbard v. Kelley, 752 F. Supp. 2d 311, 315 (W.D.N.Y. 2009) (quoting U.S. ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 110 F.3d 861, 864 (2d Cir. 1997)). “The requirement that federal courts have personal jurisdiction over the litigants before them arises from an individual’s liberty interest in Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 8 of 28 3 not being subject to the binding judgments of a forum with which he has established no meaningful contacts, ties, or relations.” Universal Grading Serv. v. eBay, Inc., No. 08-CV-3557 (CPS), 2009 WL 2029796, at *5 (E.D.N.Y. June 10, 2009) (quoting Arar v. Ashcroft, 532 F.3d 157, 173 (2d Cir. 2008)). Plaintiff bears the burden to establish that the Court has personal jurisdiction over Defendants. See Metro. Life Ins. Co. v. Robertson-Ceco Corp., 84 F.3d 560, 566 (2d Cir. 1996) (“On a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of showing that the court has jurisdiction over the defendant.”) (citing Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 507 (2d Cir. 1994)); Kernan v. Kurz-Hastings, Inc., 175 F.3d 236, 240 (2d Cir. 1999) (same); Hubbard, 752 F. Supp. 2d at 315 (“The burden of proving personal jurisdiction is on the party asserting it.”). Notably, the Complaint is devoid of any allegation explaining how the Court has personal jurisdiction over either of the Defendants. See Kessler Dec., Exhibit A at ¶¶ 7-8.1 The Court’s determination of personal jurisdiction over a non-resident defendant entails a two-part analysis. First, the Court must determine whether there is a basis for jurisdiction under New York’s personal jurisdiction statutes. Second, the Court then must determine whether an exercise of jurisdiction over the defendant is consistent with federal due process requirements. See Bank Brussels Lambert v. Fiddler Gonzalez & Rodriguez, 171 F.3d 779, 784 (2d Cir. 1999); Donchatz v. HSBC Bank USA, N.A., No. 14-CV-194-JTC, 2015 WL 860760, at *4 (W.D.N.Y. Feb. 27, 2015), aff'd, 648 F. App'x 158 (2d Cir. 2016) (“Personal jurisdiction of a federal court over a non-resident defendant is governed by the law of the state in which the court sits- 1 For purposes of this motion, Defendants first analyze New York’s long-arm statute in arguing that the Complaint should be dismissed for lack of personal jurisdiction because there is no alleged general jurisdiction over Defendants pursuant to N.Y. C.P.L.R. § 301. Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 9 of 28 4 subject, of course, to certain constitutional limitations of due process.”) (quoting Robinson, 21 F.3d at 510). The due process inquiry requires a further two-part analysis. First, the Court must determine whether the defendant has sufficient minimum contacts with the forum (the “minimum contacts” inquiry). If so, the Court then inquires whether the exercise of personal jurisdiction comports with “traditional notions of fair play and substantial justice” (the “reasonableness” inquiry). See In re Braskem S.A. Sec. Litig., No. 15 CIV. 5132 (PAE), 2017 WL 1216592, at *24 (S.D.N.Y. Mar. 30, 2017); Metro. Life Ins. Co., 84 F.3d at 567 (“The due process test for personal jurisdiction has two related components: the ‘minimum contacts’ inquiry and the ‘reasonableness’ inquiry”) (citing Int’l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). Where either the New York personal jurisdiction statutes or the due process inquiry are not satisfied, the Court may not exercise personal jurisdiction over a non-resident defendant. A. There Is No Jurisdiction under New York’s Personal Jurisdiction Statutes Under New York’s long-arm statute, N.Y. C.P.L.R. § 302(a), personal jurisdiction over a non-domiciliary may only exist in certain limited circumstances. The statute provides in relevant part: (a) Acts which are the basis of jurisdiction. As to a cause of action arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any non-domiciliary, or his executor or administrator, who in person or through an agent: 1. transacts any business within the state or contracts anywhere to supply goods or services in the state; or 2. commits a tortious act within the state, except as to a cause of action for defamation of character arising from the act; or 3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 10 of 28 5 (i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce; or 4. owns, uses or possesses any real property situated within the state. Id. at § 302(a)(1)-(4). In the present matter, Plaintiff has not provided an iota of support to establish personal jurisdiction over either Defendant under New York’s long-arm statute. Notably, Plaintiff does not even attempt to invoke the statute or assert any allegations such as would come within its ambit. A cause of action “arises from” an act of the defendant where it bears an “articulable nexus” or “substantial relationship” between the cause of action and the defendant’s act. See Beacon Enter., Inc. v. Menzies, 715 F.2d 757, 762 (2d Cir. 1983) (citing McGowan v. Smith, 52 N.Y.2d 268, 272 (1982)). See also L.F. Rothschild, Unterberg, Towbin v. McTamney, 89 A.D.2d 540, 541, 452 N.Y.S.2d 630, 632 (1st Dep’t 1982), aff’d, 59 N.Y.2d 651 (1983) (jurisdictional allegations unrelated to the cause of action have no bearing on whether defendant is subject to “long-arm” jurisdiction under § 302). Here, Plaintiff’s negligence causes of action, which arise wholly and solely to her fall at Sun Life Stadium in Miami, Florida, do not arise from the transaction of business within New York to supply goods or services in New York. See N.Y. C.P.L.R. § 302(a)(1). The Complaint, moreover, does not allege that Defendants’ purported tortious conduct was committed in New York. See id. at § 302(a)(2). All supposed negligence occurred in Florida. Likewise, Plaintiff cannot plausibly contend that her negligence causes of action arise from Defendant’s ownership, use, or possession of real property within New York. See id. at § 302(a)(4). Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 11 of 28 6 Plaintiff cannot, additionally, seek refuge under the New York long-arm statute even though Defendants’ alleged negligence in Florida possibly caused injury to her in New York. See id. at § 302(a)(3). As an initial matter, Plaintiff does not point to any injury that was caused in New York. The accident happened in Florida. Her conclusory charge that her physical injuries caused her loss of employment and forced her to seek medical treatment does not indicate whether any such injury arose in New York. But even if it does (which it does not), jurisdiction would still be improper under this subparagraph because Plaintiff has failed to satisfy the remaining elements under § 302(a)(3). More specifically, Plaintiff has provided no allegation or showing whatsoever that Defendants “regularly” do business or engage in persistent course of conduct in New York or that Defendants “expect or should reasonably expect” a personal injury accident in Florida to have consequences in New York. See id. at § 302(a)(3)(i)- (ii). See also accompanying Declaration of Brandon Michael Briggs, sworn to on June 13, 2017, as Counsel to Miami Dolphins (“Miami Dolphins Dec.”), and Declaration of Brandon Michael Briggs, as Counsel to Defendant SFS (“SFS Dec.”), which have been filed contemporaneously herewith. There is a high burden, moreover, to satisfy this prong of the long-arm statute, and Plaintiff could not meet this bar even if she tried. See Giuliano v. Barch, No. 16 CV 0859 (NSR), 2017 WL 1234042, at *10 (S.D.N.Y. Mar. 31, 2017) (“This limitation [N.Y. C.P.L.R. § 302(a)(3)] is ‘more stringent than any constitutional requirement,’ and requires a showing of contacts somewhere between the large quantity required for general jurisdiction under N.Y. C.P.L.R. 301 and the ‘one shot’ single business transaction that can satisfy Section 302(a)(1).”) (citation omitted). “[C]ourts determining whether there is injury in New York sufficient to warrant § 302(a)(3) jurisdiction must generally apply a ‘situs-of-injury test, which asks them to Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 12 of 28 7 locate the ‘original event which caused the injury.’” Lebron v. Encarnacion, No. 16-CV- 4666(ADS)(ARL), 2017 WL 2352856, at *8 (E.D.N.Y. May 31, 2017)) (quoting DiStefano v. Carozzi N. Am., Inc., 286 F.3d 81, 84-85 (2d Cir. 2001)). “[T]he situs of the injury is the location of the original event which caused the injury, not the location where the resultant damages are subsequently felt by the plaintiff.” Lipin v. Bergquist, 574 F. Supp. 2d 423, 432 (S.D.N.Y. 2008) (citation omitted). Here, Plaintiff’s purported accident in Florida is a discrete “original event” that allegedly caused her injuries. Florida, therefore, is the situs of her injuries, and personal jurisdiction under § 302(a)(3) is accordingly unavailable. For these same reasons, general personal jurisdiction cannot be asserted over Defendants pursuant to N.Y. C.P.L.R. § 301. This statute provides that a “court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore.” See id. “Under the New York courts’ interpretation of section 301, a non-domiciliary subjects herself to personal jurisdiction in New York with respect to any cause of action if she is ‘engaged in such a continuous and systematic course of ‘doing business’ here as to warrant a finding of [her] ‘presence’ in this jurisdiction.’” Beacon Enter., Inc., 715 F.2d at 762 (emphasis in original; citation omitted). “The non-domiciliary must be ‘doing business’ in New York ‘not occasionally or casually, but with a fair measure of permanence and continuity.’” Id. Stated differently, a defendant is considered “doing business” if it is engaged in “continuous, permanent, and substantial activity in New York.” Wenhold v. Lebreaux, No. 1:17- CV-38-GWC, 2017 WL 2378017, at *1 (W.D.N.Y. May 31, 2017). These dealings with New York must be so extensive that the defendant is essentially “at home” in New York. See Lebron, 2017 WL 2352856, at *7 (granting motion to dismiss for lack of personal jurisdiction under both § 301 and § 302 and explaining that defendant professional baseball player’s regular Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 13 of 28 8 trips to New York each baseball season and his sports agents and representatives’ promotion of his interests in New York fail to establish a “continuous and systematic” presence in the state). Here, Plaintiff has not made a single allegation in her Complaint that addresses the availability of personal jurisdiction, either generally or through the long-arm statute, over Defendants. Further, she has provided no factual allegations whatsoever that support finding continuous, permanent, and substantial activity in New York. Simply put, there is no basis to find that Defendants are “at home” in New York or are “doing business” there so as to confer general personal jurisdiction. Dismissal is thus appropriate. B. Subjecting Defendants to This Court’s Jurisdiction Would Run Afoul of Federal Due Process Plaintiff’s inability to properly invoke personal jurisdiction over Defendants under New York’s personal jurisdiction statutes alone compels dismissal. But even if it did not, dismissal is warranted because the exercise of jurisdiction over Defendants does not comport with federal due process. “The due process test for personal jurisdiction has two related components: the ‘minimum contacts’ inquiry and the ‘reasonableness’ inquiry.” Metro. Life Ins. Co., 84 F.3d at 567; Mrs. U.S. Nat. Pageant, Inc. v. Miss U.S. Org., LLC, 875 F. Supp. 2d 211, 219 (W.D.N.Y. 2012); In re Braskem S.A. Sec. Litig., 2017 WL 1216592, at *24; Lebron, 2017 WL 2352856, at *3. Under the “minimum contacts” prong, the Court must first determine whether Defendants have sufficient contacts with New York so as to justify the Court’s exercise of personal jurisdiction. See Metro. Life Ins. Co., 84 F.3d at 567. In making this determination, “a court evaluates the ‘quality and nature’ of the defendant’s contacts with the forum. The Court considers these contacts in totality, with the crucial question being whether the defendant has ‘purposefully avail[ed] itself of the privilege of conducting activities within the forum State, thus Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 14 of 28 9 invoking the benefits and protections of its laws’ ‘such that [the defendant] should reasonably anticipate being haled into court there.’” In re Braskem S.A. Sec. Litig., 2017 WL 1216592, at *24 (internal citations omitted); Licci ex rel. Licci v. Lebanese Canadian Bank, SAL., 732 F.3d 161, 170 (2d Cir. 2013); Taylor Devices, Inc. v. Walbridge Aldinger Co., 538 F. Supp. 2d 560, 581 (W.D.N.Y. 2008). The “minimum contacts” requirement serves two functions: “[i]t protects the defendant against the burdens of litigating in a distant or inconvenient forum” and “acts to ensure that the States through their courts, do not reach out beyond the limits imposed on them by their status as coequal sovereigns in a federal system.” World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291-92 (1980). Under the “reasonableness” prong, the Court must determine whether the assertion of personal jurisdiction “comports with ‘traditional notions of fair play and substantial justice’ - that is, whether it is reasonable under the circumstances of the particular case.” Metro. Life Ins. Co., 84 F.3d at 568 (quoting Int’l Shoe Co., 326 U.S. at 316); Taylor Devices, Inc., 538 F. Supp. 2d at 581 (same). In making this determination, the Court must evaluate the following five factors: “(1) the burden that the exercise of jurisdiction will impose on the defendant; (2) the interests of the forum state in adjudicating the case; (3) the plaintiff’s interest in obtaining convenient and effective relief; (4) the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy; and (5) the shared interest of the states in furthering substantive social policies.” Metro. Life Ins. Co., 84 F.3d at 568 (quoting Asahi Metal Indus. Co. v. Superior Ct., 480 U.S. 102, 113-14 (1987)). “A court that reaches this inquiry evaluates reasonableness in tandem with the defendant’s minimum contacts, such that a lesser showing as to one inquiry may be tolerated if the other strongly favors an exercise of jurisdiction, and vice Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 15 of 28 10 versa.” In re Braskem S.A. Sec. Litig., 2017 WL 1216592, at *24. Under either of these two analyses, subjecting Defendants to this Court’s jurisdiction would violate federal due process. The Complaint fails to allege even a paucity of support for the proposition that Defendants have sufficient minimum contacts with New York State. Defendants are Florida entities, and none of Plaintiff’s allegations remotely permit the inference that either defendant has any contact at all with New York. See Miami Dolphins Dec. at ¶¶ 3,4, 7, 8; SFS Dec. at ¶¶ 3, 4, 6, 7, 8, 9, 10. In fact, the “quality and nature” of Defendants’ contacts with New York is non-existent. According to Plaintiff, at all relevant times, she was purportedly injured by Defendants’ negligence in Florida caused entirely by an activity (sitting down in a chair) that bears no discernible connection in any way to New York. It, therefore, cannot be concluded that Defendants “purposefully availed” themselves of the benefits and protections of New York’s laws or that Defendants “should reasonably anticipate being haled into court” there because of a personal injury accident in Miami, Florida. See Int’l Shoe Co., 326 U.S. at 319 (explaining that the due process clause “does not contemplate that a state may make binding a judgment in personam against an individual or corporate defendant with which the state has no contacts, ties, or relations”). See Miami Dolphins Dec. at ¶ 8; SFS Dec. at ¶¶ 9, 10. Further, any collateral connection either Defendant could conceivably have with New York is insufficient to exert personal jurisdiction. See World-Wide Volkswagen Corp., 444 U.S. at 299 (“[F]inancial benefits accruing to the defendant from a collateral relation to the forum State will not support jurisdiction if they do not stem from a constitutionally cognizable contact with that State. In our view, whatever marginal revenues petitioners may receive by virtue of the fact that their products are capable of use in Oklahoma is far too attenuated a contact to justify that State’s exercise of in personam jurisdiction over them.”) (citation omitted). Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 16 of 28 11 Traditional notions of fair play and substantial justice, moreover, would be violated in the event that personal jurisdiction is exercised in this instance. As noted above, the Court must consider the five Asahi factors in determining whether it would be “reasonable” to assert jurisdiction in this case. Clearly, it is not reasonable. First, Defendants would be severely burdened by having to defend this action in New York. Defendants are both Florida entities, all evidence and records of the alleged accident are located in Florida, all witnesses apart from Plaintiff are located in Florida, and the financial costs to Defendants of having to be haled into a foreign forum to which Plaintiff has failed to show they have any connection to would be inequitable. See Miami Dolphins Dec. at ¶¶ 3, 9, 11; SFS Dec. at ¶¶ 3, 11, 13. Second, New York’s interests in adjudicating this case are sparse. The only relation between the accident and the State is that Plaintiff is a New York resident. Florida, on the other hand, has substantial interest because it is the locus of alleged wrongdoing, Defendants continue to operate in Florida under Florida laws, and all evidence of Defendants’ supposed negligence is in Florida. See Miami Dolphins Dec. at ¶¶ 10, 11; SFS Dec. at ¶¶ 12, 13. Third, Plaintiff’s interest in obtaining convenient and effective relief is not eliminated by bringing suit in Florida. Plaintiff was voluntarily present in Florida on the date of her accident, and Florida courts are well-equipped to expeditiously adjudicate negligence actions arising out of conduct in Florida. See Miami Dolphins Dec. at ¶ 12; SFS Dec. at ¶ 14. Fourth, the interstate judicial system’s interest in obtaining the most efficient resolution of the controversy is furthered in Florida instead of New York. “In evaluating this factor, courts generally consider where witnesses and evidence are likely to be located.” Metro. Life Ins. Co., 84 F.3d at 574. Given that this action arises completely out of a personal injury accident in Miami, Florida, it is proper to conclude that evidence and witnesses are located there. See Miami Dolphins Dec. at ¶ 11; Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 17 of 28 12 SFS Dec. at ¶ 13 Fifth, the shared interest of the states in furthering substantive social policies is promoted by bringing suit in Florida, compared to New York, because Plaintiff was injured in Florida, Defendants are Florida entities, and Florida law likely governs Plaintiff’s claims.2 In short, personal jurisdiction cannot be exercised in this case over Defendants because New York’s personal jurisdiction statutes, N.Y. C.P.L.R. §§ 301, 302, are not satisfied and because asserting jurisdiction here would be inconsistent with federal due process. Defendants do not have sufficient “minimum contacts” with New York and exercising jurisdiction would offend “traditional notions of fair play and substantial justice.” Lacking not one, but all three legs of the personal jurisdiction tripod, Plaintiff’s bare attempt to have this Court exercise personal jurisdiction over Defendants in this case does not even get off the ground. II. THIS COURT IS AN IMPROPER VENUE FOR ADJUDICATING THIS ACTION AND THEREFORE MUST DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(3) Just as with personal jurisdiction, Plaintiff makes no attempt to establish that the Western District of New York is the proper venue for adjudicating this action. However, even if she were to try, her efforts would likewise fall short. Pursuant to 28 U.S.C. § 1391(b), venue is proper in “(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or 2 Under New York’s choice of law principles, Florida law controls Plaintiff’s negligence causes of action. See, e.g., Satterfield v. Maldonado, 127 F. Supp. 3d 177, 189 n.11 (S.D.N.Y. 2015) (“A federal court exercising diversity jurisdiction applies the substantive law of the state in which it is sitting, including that state’s conflict of law rules. ‘New York applies an ‘interest analysis’ to its choice of law, under which the law of the jurisdiction having the greatest interest in the litigation controls.’ In a tort case, the significant contacts ‘are, almost exclusively, the parties’ domiciles and the locus of the tort.’ ‘Where the parties are domiciled in different states, the locus of the tort will almost always be determinative in cases involving conduct-regulating laws.’ Negligence law regulates conduct.’”) (internal citations omitted); Youngman v. Robert Bosch LLC, 923 F. Supp. 2d 411, 418 (E.D.N.Y. 2013) (“Virtually every pertinent case confirms that a tort ‘occurs’ for purposes of [New York’s] choice of law analysis at the location of the accident.”). Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 18 of 28 13 omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action.” Id. District courts are “required to construe the venue statute strictly.” Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2d Cir. 2005). A civil action may be brought in this Court only if one of three scenarios above is satisfied. Here, Plaintiff cannot establish that this Court is the proper venue for this action under any prong of § 1391(b). Dismissal under Fed. R. Civ. P. 12(b)(3), therefore, is appropriate. For venue purposes, a defendant resides in “any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question[.]” See 28 U.S.C. § 1391(c). Defendants are both Florida entities, and as illustrated supra, New York courts cannot properly exercise personal jurisdiction over Defendants. See Miami Dolphins Dec. at ¶¶ 3, 4, 7, 8; SFS Dec. at ¶¶ 3, 4, 6, 7, 8, 9, 10. On this basis alone, venue is improper anywhere in New York. See §§ 1391(c); 1391(b)(3). But even assuming that was not so, dismissal would still be warranted because neither Defendant resides in this venue. See id. at § 1391(b)(1). Further, the Western District of New York would still be an improper venue because there is no basis to find that “a substantial part of the events or omissions giving rise to the claim occurred” here. See id. at § 1391(b)(2). For venue to be proper under § 1391(b)(2), “significant events or omissions material to the plaintiff’s claim must have occurred in the district in question, even if other material events occurred elsewhere. It would be error, for instance, to treat the venue statute’s ‘substantial part’ test as mirroring the minimum contacts test employed in personal jurisdiction inquiries.” Gulf Ins. Co., 417 F.3d at 357 (emphasis in original). In assessing this prong, “a two-part inquiry is Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 19 of 28 14 appropriate: courts first identify the nature of the claims involved and the alleged acts or omissions that gave rise to those claims, and then determine whether a substantial part of those acts or omissions occurred in the district where suit was filed.” Niagara Restitution Servs., Inc. v. Degen, No. 15-CV-580-FPG, 2016 WL 3004665, at *2 (W.D.N.Y. May 23, 2016). Here, Plaintiff’s tort claims all arise from an accident in Miami in which Plaintiff fell after sitting down in a folding chair. No “substantial,” “significant,” or “material” aspect of this incident ever involved New York. Instead, the only venue that satisfies any (and all) of the scenarios in § 1391(b) is the Southern District of Florida. It is, thus, necessary to dismiss Plaintiff’s Complaint for improper venue. III. PLAINTIFF PLEADS ONLY LEGAL CONCLUSIONS AND FAILS TO ESTABLISH A PLAUSIBLE CLAIM FOR NEGLIGENCE SUCH THAT THIS COURT MUST DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(6) Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a complaint that fails to state a claim upon which relief can be granted. See id. “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim for relief that is plausible on its face. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks and citations omitted). Essentially, Plaintiff must “nudge[]” her claim across the line from “conceivable to plausible” in order to survive a motion to dismiss under Rule 12(b)(6). See Bell Atl. Corp. v. Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 20 of 28 15 Twombly, 550 U.S. 544, 570 (2007). A “pleading that consists of ‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not do.’” Carter v. CIOX Health, LLC, No. 14-CV-6275-FPG, 2017 WL 2334886, at *2 (W.D.N.Y. May 30, 2017) (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id. Additionally, the Court is not required to accord “legal conclusions, deductions, or opinions couched as factual allegations . . . a presumption of truthfulness.” Id. Here, Plaintiff’s sole factual allegations that the Court should take as true are that she attended a football game at Sun Life Stadium on November 13, 2014, that she was provided a folding chair, and that she fell to the floor after sitting in it for an unknown duration. All other material allegations provided by Plaintiff amount to little more than legal conclusions - “At all times on November 13, 2014, Plaintiff was using due care,” Defendants “failed to properly inspect the chair their agents provided to Plaintiff,” “through its inspection of other stadium folding chairs . . . Defendants were constructively aware of the potential defects and dangers associated with the folding chair given to Plaintiff,” the “defective chair was inherently dangerous.” See Kessler Dec., Exhibit A at ¶¶ 15, 19, 26, 28. Although it is “conceivable” or “possible” that Plaintiff was injured by Defendants’ purported misconduct, Plaintiff has not “nudged” her claims to a “plausible” level such that she could be entitled to relief. Her threadbare recital of the elements of a negligence action, moreover, are not supported by factual enhancement. This is fatal to her claims. Dismissal, therefore, pursuant to Fed. R. Civ. P. 12(b)(6) is appropriate. Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 21 of 28 16 IV. THE MIAMI DOLPHINS ARE AN IMPROPER PARTY TO THIS ACTION AND MUST BE DISMISSED PURSUANT TO FED. R. CIV. P. 12(B)(6) Plaintiff improperly asserts that the Miami Dolphins are the “maintainer and/or lessee in possession of” Sun Life Stadium and that they are “responsible for the maintenance, repair and upkeep of the” Stadium. See Kessler Dec., Exhibit A at ¶¶ 4, 9. These allegations are categorically false, and Plaintiff provides no independent basis upon which to maintain her claims against the Miami Dolphins. In fact, the Miami Dolphins are not now, and were not on November 13, 2014, the owners and/or operators of the Stadium. See Miami Dolphins Dec. at ¶¶ 5, 6. Any attempt to impute liability to the Miami Dolphins in this instance is simply misguided. Indeed, Plaintiff’s claims against the Miami Dolphins for her injuries are as preposterous as if she brought suit against film actors on screen for injuries related to falling to the floor after sitting down in a seat in a movie theater. Under the Complaint, as pled, the Miami Dolphins are an improper party to this action and do not, as a matter of law, owe Plaintiff any duties. See Delgado v. Laundromax, Inc., 65 So. 3d 1087, 1089 (Fla. 3d DCA 2011) (Under Florida law, the elements of a negligence action are “(1) a duty to the plaintiff; (2) the defendant’s breach of that duty; (3) injury to the plaintiff arising from the defendant’s breach; and (4) damage caused by the injury to the plaintiff as a result of the defendant’s breach of duty”). She cannot, therefore, set forth facts that would establish the ultimate elements of her claims against the Miami Dolphins. Dismissal with prejudice, as to the Miami Dolphins, on this separate point is warranted. V. THIS COURT LACKS SUBJECT MATTER JURISDICTION OVER THIS ACTION AND THEREFORE MUST DISMISS PURSUANT TO FED. R. CIV. P. 12(B)(1) Plaintiff asserts that this Court has subject matter jurisdiction over this action, pursuant to 28 U.S.C. § 1332, because there is diversity of citizenship and because the amount in Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 22 of 28 17 controversy allegedly exceeds the statutory threshold of $75,000.00. However, no proper showing has been made under the Complaint so as to permit the Court to accept Plaintiff’s conclusion that her alleged injuries exceed $75,000.00. “When a party moves to dismiss a claim pursuant to Federal Rule of Civil Procedure 12(b)(1), ‘the movant is deemed to be challenging the factual basis for the court’s subject matter jurisdiction.’ For purposes of such a motion, ‘the allegations in the complaint are not controlling, and only uncontroverted factual allegations are accepted as true.’ . . . ‘Furthermore, ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’” Westcode, Inc. v. Mitsubishi Elec. Corp., 171 F. Supp. 3d 43, 47 (N.D.N.Y. 2016) (citations omitted). Here, Plaintiff provides only hollow charges that her accident supposedly “caused Plaintiff[’s] loss of employment and compelled Plaintiff to seek continuing healthcare treatment, the combined costs of which exceed seventy-five thousand dollars ($75,000.00).” See Kessler Dec., Exhibit A at ¶¶ 16, 21, and “wherefore” clause at 5. No extrinsic support for this dollar amount is shown, and the remaining allegations provided in the Complaint fail to substantiate this figure. The Court need not accept Plaintiff’s conclusory amount in controversy as true and should not considering the dearth of factual allegations Plaintiff provides in her Complaint. Accordingly, dismissal for lack of subject matter jurisdiction is appropriate. VI. IN THE ALTERNATIVE, THIS COURT SHOULD TRANSFER THE ACTION TO THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA Dismissal with prejudice is the appropriate course of action in this case given the lack of personal jurisdiction over Defendants, the improper venue, Plaintiff’s failure to state her claims upon which relief can be granted, and the lack of subject matter jurisdiction over this action. In Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 23 of 28 18 the alternative, should this Court be disinclined to dismiss, the case should be transferred to the United States District Court for the Southern District of Florida. Pursuant to 28 U.S.C. § 1404(a), “[f]or the convenience of the 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.” Id. The purpose of § 1404 is to prevent waste of time, energy, and money, and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense. See Van Dusen v. Barrack, 376 U.S. 612, 616 (1964); Bankers Trust Co. of W. New York v. Crawford, 559 F. Supp. 1359, 1363 (W.D.N.Y. 1983) (citing Van Dusen and noting that the “paramount consideration, however, is the interest of justice”). When deciding a motion to transfer, the court must first determine whether the action sought to be transferred is one that “might have been brought” in the transferee court and then determine whether transfer is appropriate considering the “convenience of the parties and witnesses” and the “interest of justice.” See Smolen v. Brauer, 177 F. Supp. 3d 797, 800 (W.D.N.Y. 2016) (citing Wilshire Credit Corp. v. Barrett Cap. Mgmt. Corp., 976 F. Supp. 174, 180 (W.D.N.Y. 1997)). “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., 303 F. Supp. 2d 391, 401 (S.D.N.Y. 2004). These elements are easily satisfied here. Taking all of Plaintiff’s allegations as true, the Southern District of Florida would have subject matter jurisdiction over this action under diversity of citizenship, personal jurisdiction extends over Defendants because they are Florida entities based Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 24 of 28 19 in the Southern District of Florida, and venue would be proper there under any prong of 28 U.S.C. § 1391(b). See Miami Dolphins Dec. at ¶ 3; SFS Dec. at ¶ 3. Next, the Court must determine whether transfer is appropriate. In doing so, the Court is to consider the following factors: (1) the convenience of the parties; (2) the convenience of material witnesses; (3) the relative means of the parties; (4) the locus of operative events; (5) the relative ease of access to sources of proof; (6) the weight accorded to plaintiff’s choice of forum; (7) the availability of process to compel the presence of unwilling witnesses; (8) the forum’s familiarity with the governing law; and (9) trial efficacy and the interests of justice based upon the totality of the circumstances. See Promuto v. Waste Mgmt., Inc., 44 F. Supp. 2d 628, 637 (S.D.N.Y. 1999); Wilshire Credit Corp., 976 F. Supp. at 181; Romano v. Levitt, No. 15CV518A, 2017 WL 193502, at *3 (W.D.N.Y. Jan. 18, 2017). “No one factor is controlling or determinative, rather the Court must, in its discretion, balance all of the factors in making its decision.” Romano, 2017 WL 193502, at *3 (citation omitted). Consideration of these factors militates strongly in favor of transfer should the Court decline to dismiss the Complaint. First, the convenience of the parties favors transfer because both Defendants are Florida residents and are located in the Southern District of Florida and have no connection with the Western District of New York. See Miami Dolphins Dec. at ¶¶ 3, 4, 7, 8; SFS Dec. at ¶¶ 3; 4; 6, 7, 8, 9, 10. Second, the convenience of material witnesses also favors transfer because the allegedly tortious accident occurred in Florida, and the witnesses relevant to the issues in this litigation likely reside in South Florida in comparison to upstate New York. See Miami Dolphins Dec. at ¶¶ 10, 11; SFS Dec. at ¶¶ 12, 13. Third, the relative means of the parties does not favor Plaintiff because both Defendants reside in Florida and the costs associated with transporting both of their witnesses and evidence to New York would exceed that of Plaintiff’s. Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 25 of 28 20 See Miami Dolphins Dec. at ¶ 9; SFS Dec. at ¶ 11. Further, Plaintiff’s relative means should be entitled to less deference in this case as she has chosen to file suit in the present venue, which bears no discernible relation to the alleged events. Fourth, the locus of the operative events lies wholly in the Southern District of Florida. See Miami Dolphins Dec. at ¶ 10; SFS Dec. at ¶ 12. Plaintiff’s alleged accident occurred in Miami, and the only connection New York has to this case is that Plaintiff resides there. Fifth, the relative ease of access to sources of proof favors transfer because the accident occurred in Florida and all evidence of Defendants’ supposed negligence is located there. See Miami Dolphins Dec. at ¶ 10; SFS Dec. at ¶ 12. Sixth, this Court should not accord Plaintiff’s choice of forum much weight because “a plaintiff’s choice of forum is given less weight where the case’s operative facts have little connection with the chosen forum.” 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F. Supp. 128, 134 (S.D.N.Y. 1994). This is especially so in this case because Plaintiff’s accident, related to her falling to the floor after sitting in a chair, bears no connection with this current forum. Seventh, the availability of process to compel the presence of unwilling witnesses does not favor Plaintiff because this Court lacks subpoena power to compel non-party witnesses to produce documents or appear for depositions in the Western District of New York. By contrast, the Southern District of Florida would have subpoena power to compel documents or deposition appearances. Considering that the alleged accident occurred in Florida, this factor favors transfer. Eighth, the forum’s familiarity with the governing law favors Florida because Plaintiff’s negligence causes of action are controlled by Florida law, and Florida courts are certainly familiar with personal injury law. See Miami Dolphins Dec. at ¶ 12; SFS Dec. at ¶ 14. Ninth, trial efficacy and the interests of justice favor transfer because the accident occurred in Miami, Florida has a more substantial interest in the case than New York Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 26 of 28 21 considering that all alleged wrongdoing took place there, and all evidence of Plaintiff’s accident remains there. Applying the above factors, this case should not remain in this Court. All factors tip the scales substantially in favor of transferring the present case to the Southern District of Florida. CONCLUSION For the reasons set forth herein, Defendants, MIAMI DOLPHINS, LTD and SOUTH FLORIDA STADIUM LLC, respectfully request that this Court enter an order: (i) dismissing Plaintiff’s Complaint with prejudice, or (ii) in the alternative, transfer venue to the United States District Court for the Southern District of Florida, and (iii) grant Defendants such other and further relief as this Court deems just and proper. Respectfully Submitted, AKERMAN LLP 666 Fifth Avenue 20th Floor New York, NY 10103 Telephone: (212) 880-3800 Facsimile: (212) 880-8965 By: s/Scott M. Kessler Scott M. Kessler, Esq. Primary E-mail: scott.kessler@akerman.com Secondary E-mail: gina.mckenna@akerman.com Counsel for Defendants, Miami Dolphins, Ltd. and South Florida Stadium LLC Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 27 of 28 22 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on June 13, 2017, I electronically filed a true and correct copy of the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached service list in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. s/Scott M. Kessler Scott M. Kessler Service List Joseph J. Marusak, Esq. Kloss, Stenger & Lotempio 69 Delaware Avenue, Suite 1003 Buffalo, New York 14202 Telephone: 716-853-1111 Email: jjmarusak@klosslaw.com Case 1:17-cv-00401-WMS Document 5-5 Filed 06/13/17 Page 28 of 28
