Freeman v. Farr et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DENNIS FREEMAN,
Plaintiff,
-against-
THOMAS DAVID FARR, JR. and PRINCE
EXPRESS, INC,
Defendants.
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DECISION & ORDER
24-CV-6880 (AMD)(PK)
Peggy Kuo, United States Magistrate Judge:
In this personal injury action brought by Dennis Freeman (“Plaintiff”) against Thomas David
Farr, Jr. and Prince Express, Inc (“Prince Express”) (collectively, “Defendants”), Defendants have
moved to transfer venue to the Western District of North Carolina pursuant to 28 U.S.C. § 1404(a).
(“Motion,” Dkt. 18; see also Defendants’ Brief in Support (“Def. Mem.”), Dkt. 18-3; Plaintiff’s
Memorandum of Law in Opposition (“Pl. Mem.”), Dkt. 19-1; Defendants’ Reply (“Def. Reply”), Dkt.
20.) For the reasons stated below, the Motion is denied.
FACTUAL BACKGROUND
Unless otherwise noted, the following facts are taken from the Complaint (Dkt. 2-2), the
Notice of Removal (Dkt. 2), and the parties’ submissions in connection with the Motion.
Plaintiff is a resident of Queens, New York. (Compl. ¶ 1.) Defendant Farr is a resident of
East Ridge, Tennessee, and Defendant Prince Express is a corporation incorporated in Tennessee,
with a principal place of business in Soddy Daisy, Tennessee. (Compl. ¶¶ 3-4; Notice of Removal ¶
5.)
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On January 9, 2024, a vehicle operated by Mr. Farr and owned by Prince Express collided with
Plaintiff’s vehicle in Waynesville, North Carolina. (Compl. ¶¶ 9-21.) Plaintiff was taken to Haywood
Regional Medical Center where he was treated and released the same day. (Plaintiff’s Statement of
Material Facts (“Pl. SOMF”) ¶ 9, Dkt. 19-2.) Plaintiff almost immediately returned to New York and
began treating with physicians in New York. (Pl. SOMF ¶¶ 9-14.)
Mr. Farr was issued a citation for failure to reduce speed in connection with the incident. (Pl.
SOMF ¶ 8; see also “Haywood District Court Case Summary,” Ex. B to Pl. SOMF, Dkt. 19-4.) He
pled responsible to the incident and paid restitution of $241.00. (Pl. SOMF ¶ 8; Haywood District
Court Case Summary at 3 (ECF pagination).)
PROCEDURAL HISTORY
This action was filed in the New York State Supreme Court, Queens County, and removed to
this Court on September 30, 2024. Defendants filed the Motion on May 30, 2025.
DISCUSSION
“For 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). The party requesting transfer “carries the ‘burden of making out a strong case for transfer,’”
and courts have applied “the clear and convincing evidence standard in determining whether to
exercise discretion to grant a transfer motion.” New York Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc.,
599 F.3d 102, 114 (2d Cir. 2010) (quoting Filmline (Cros-Country) Prods., Inc. v. United Artists Corp., 865
F.2d 513, 521 (2d Cir.1989)). “District courts have broad discretion in making determinations of
convenience under Section 1404(a) and notions of convenience and fairness are considered on a case-
by-case basis.” D.H. Blair & Co., Inc. v Gottdiener, 462 F.3d 95, 106 (2d Cir 2006).
To determine whether a motion to transfer venue should be granted, courts “must apply a
two-pronged test: (A) whether the action could have been brought in the proposed forum; and (B)
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whether the transfer would promote the convenience of parties and witnesses and would be in the
interests of justice.” Cameron v. Prosegur Servs. Grp., Inc., No. 23-CV-8789 (DLI)(TAM), 2024 WL
4145742, at *1 (E.D.N.Y. Sept. 11, 2024).
I. Whether This Action Might Have Been Brought in the Western District of North
Carolina
“[F]or the purposes of section 1404(a), 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.” Guardian Life Ins. Co. of Am. v. Coe, 724 F. Supp. 3d 206, 213 (S.D.N.Y. 2024).
Plaintiff does not argue that this action could not have been brought in the Western District
of North Carolina. Thus, only the second prong is at issue.
II. Convenience and Interests of Justice Factors
In considering convenience of the parties and witnesses and the interest of justice, the Court
analyzes various factors, including “(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 parties, (5) the locus of operative facts, (6) the availability of process to compel the
attendance of unwilling witnesses, [and] (7) the relative means of the parties.” D.H. Blair, 462 F.3d at
106-07 (alteration in original). “There is no strict formula for the application of these factors, and no
single factor is determinative.” Sarracco v. Ocwen Loan Servicing, LLC, 220 F. Supp. 3d 346, 356
(E.D.N.Y. 2016). “Instead, these factors should be applied and weighed in the context of the
individualized circumstances of the particular case.” Id.
“In seeking to meet their burden that clear and convincing evidence calls for transfer,
[Defendants] must establish that at least one of the factors weighs in favor of transfer, and that any
factors weighing in favor of transfer outweigh any factors weighing against it. If all the factors are
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neutral, the transfer motion should be denied.” In re Peloton Interactive, Inc. Sec. Litig., No. 21-CV-2369
(CBA)(PK), 2022 WL 1211516, at *2 (E.D.N.Y. Jan. 26, 2022).
A. Plaintiff’s Choice of Forum
Plaintiff’s choice of forum is given “great weight” and should not be disturbed unless other
factors weigh strongly in favor of transfer. See D.H. Blair, 462 F.3d at 107; EasyWeb Innovations, LLC
v. Facebook, Inc., 888 F. Supp. 2d 342, 348 (E.D.N.Y. 2012). That deference is “particularly strong”
where, as here, Plaintiff sues in his home state. See Buchanan v. Umhoefer, No. 10-CV-3175 (JS)(ETB),
2011 WL 3421502, at *1 (E.D.N.Y. Aug. 3, 2011).
Defendants argue that “New York’s sole relationship to this lawsuit is that Plaintiff is a resident
of New York,” and that pursuant to 28 U.S.C. § 1391, the general venue statute, Plaintiff’s place of
residence is “no basis for venue.” (Def. Mem. at 4; Def. Reply at 2 (“New York was never a proper
venue since the subject accident did not occur in New York and Defendants are not residents of New
York.”).)
Venue for removed cases, however, is governed by the removal statute, 28 U.S.C. § 1441, not
by 28 U.S.C. § 1391. PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 72 (2d Cir. 1998) (“[T]he
removal statute, and not the ordinary federal venue statute, 28 U.S.C.A. § 1391 . . . governs venue in
removed cases.”); see also Polizzi v. Cowles Mags., Inc., 345 U.S. 663, 665 (1953) (“But even on the
question of venue, § 1391 has no application to this case because this is a removed action. The venue
of removed actions is governed by [§ 1441(a)].”). Section 1441(a) provides that venue is proper in
“the district court of the United States for the district and division embracing the place where such
action is pending.” Because this action was originally filed in Queens County Supreme Court, venue
is proper in the Eastern District of New York, which embraces Queens County. 28 U.S.C. §§ 112(c),
1441(a). Plaintiff’s choice of forum in New York, therefore, should not be disturbed unless other
factors weigh strongly in favor of transfer.
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B. Locus of Operative Facts
In “cases arising out of vehicle collisions, courts have found the place of the accident is the
only relevant location” for the purpose of determining the locus of operative facts. Fulton v. Newkirk,
No. 20-CV-5479 (FB)(PK), 2021 WL 3037592, at *3 (E.D.N.Y. July 19, 2021). That is because “[m]ost,
if not all, witnesses and sources of proof concerning the accident itself and the initial treatment of the
Plaintiff will be found [at the place of the incident].” See Levy v. Air Prods. Chemicals, Inc., No. 89-CV-
3992 (SJ), 1993 WL 657856, at *2 (E.D.N.Y. Sept. 29, 1993).
Here, the collision and Plaintiff’s initial treatment occurred in North Carolina.
Plaintiff argues that “liability and location [are] an extremely minor part of the case” because
Mr. Farr “has already admitted and been adjudicated responsible for the happening of this accident,”
and the “sole issue that is in dispute is Plaintiff’s injuries and damages.” (Pl. Mem. at 8.)
Defendants do not address this issue. Nevertheless, even if liability is unlikely to be disputed,
because Plaintiff’s initial treatment—which concerns the disputed issue of damages—occurred in
North Carolina, the Court finds that this factor weighs slightly in favor of transfer.
C. Convenience of Parties and Witnesses and Availability of Witnesses
“The convenience of the parties favors transfer when transfer would increase convenience to
the moving party without generally increasing the inconvenience to the non-movant.” Liberty Mut. Ins.
Co. v. Fairbanks Co., 17 F. Supp. 3d 385, 399 (S.D.N.Y. 2014). In analyzing the convenience of the
witnesses, the moving party must “establish[] that convenience of the witnesses as a whole will be
increased through transfer of venue.” Lynch v. Nat’l Prescription Adm’rs, No. 03-CV-1303 (GBD), 2004
WL 385156, at *3 (S.D.N.Y. Mar. 1, 2004).
Defendants, who are residents of Tennessee, do not argue that transfer to North Carolina
would be more convenient for them. Rather, they argue that North Carolina would be more
convenient for witnesses at the scene of the incident and immediately afterwards, including the North
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Carolina State Highway Patrol officer who responded and individuals at Haywood Regional Medical
Center where Plaintiff was initially taken and treated. (Def. Reply at 4.)
Plaintiff, on the other hand, states that transfer would be inconvenient for him because he and
“all of his medical witnesses and treating doctors in this case are in New York,” and that he “would
likely be deprived of his choice of counsel.” (Pl. Opp. at 8.) Plaintiff submitted the names of five
different treating physicians, who all practice in New York. (Pl. SOMF ¶¶ 10-14.) In addition,
Plaintiff surmises that he would be required “to bear the cost to travel to North Carolina” to be
examined by Defendants’ medical expert (Pl. Opp. at 9), although Defendants assure him that “there
are an innumerable amount of physicians who can perform a defense independent medical
examination (‘IME’) of Plaintiff closer to where he resides.” (Def. Reply at 4.)
Defendants fail to show that North Carolina is a more convenient forum for the parties or the
witnesses as a whole. Given that both Plaintiff and Defendants would have to travel from their
respective home states to North Carolina for trial, convenience to the parties weighs against transfer.
In addition, while transfer might be more convenient for Defendants’ non-party witnesses, it would
greatly inconvenience Plaintiff’s witnesses. Thus, this factor also weighs against transfer.
D. Availability of Process to Compel Witnesses
The parties have not identified any potential non-party witnesses who would be unwilling to
testify absent a subpoena; thus, the availability of process to compel the attendance of unwilling
witnesses is neutral. See Eres N.V. v. Citgo Asphalt Ref. Co., 605 F. Supp. 2d 473, 482 (S.D.N.Y. 2009)
(finding that availability of process to compel attendance does not weigh in favor of transfer when no
witness indicated unwillingness to testify).
E. Location of Relevant Documents
“[T]he location of documents and records is not a compelling consideration when records are
easily portable.” Multiwave Sensor Inc. v. Sunsight Instruments, LLC, No. 16-CV-1361 (GHW), 2017 WL
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1498058, at *7 (S.D.N.Y. Apr. 26, 2017); see also EasyWeb Innovations, 888 F. Supp. 2d at 352 (“[T]he
Court does not view this factor as particularly significant given the technological age in which we live,
with the widespread use of, among other things, electronic document production.”).
The parties did not address whether the location of relevant documents weighs in favor of or
against transfer. Accordingly, this factor is neutral.
F. Relative Means of the Parties
“Where a disparity exists between the means of the parties, such as in the case of an individual
suing a large corporation, the court may consider the relative means of the parties in determining
where a case should proceed.” EasyWeb Innovations, 888 F. Supp. 2d at 354-55. A party arguing against
transfer because of inadequate means must offer evidence showing that transfer would be unduly
burdensome to his finances. See Jones v. Equifax Info. Servs. LLC, No. 25-CV-1535 (GHW)(SLC), 2025
WL 1466898, at *5 (S.D.N.Y. May 22, 2025).
Plaintiff offers no such evidence. Although Plaintiff argues that “a corporation would likely
have more means available to pay expenses of travel and finding new lawyers than an individual,” he
provides no information about the financial burden on him of traveling to North Carolina or retaining
local counsel. (Pl. Mem. at 10.) Accordingly, this factor is neutral.
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Having considered all the relevant factors, the Court concludes that, although the locus of
operative facts weighs slightly in favor of transfer to the Western District of North Carolina, all other
factors are either neutral or weigh against transfer. Defendants, thus, fail to meet their burden of
showing by clear and convincing evidence that this action should be transferred to the Western
District of North Carolina.
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CONCLUSION
For the foregoing reasons, Defendants’ Motion is denied.
SO ORDERED:
Peggy Kuo
PEGGY KUO
United States Magistrate Judge
Dated: Brooklyn, New York
December 29, 2025
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