Smith v. Smith et al

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
BISHME SMITH,
Plaintiff,
5:25-CV-1077
v. 	(MAD/DJS)
CLARENCE SMITH, et al.,
Defendants.
____________________________________
APPEARANCES:
BISHME SMITH
Plaintiff, Pro Se
Syracuse, New York 13261
DANIEL J. STEWART
United States Magistrate Judge
DECISION AND ORDER
Plaintiff Bishme Smith has moved for a transfer of venue of this matter to the
United States District Court for the Southern District of New York, pursuant to 28
U.S.C. § 1404(a). 	Dkt. No. 9, Mtn. to Transfer Venue at p. 1. 	For the reasons that
follow, Plaintiff’s Motion to Transfer Venue is denied.
I. PROCEDURAL HISTORY
This case centers around Family Court proceedings involving Plaintiff’s minor
child, B.S. 	See generally Dkt. No. 10, Am. Compl. 	Plaintiff generally alleges that
Defendant Julia A. Cerio, Onondaga County Family Court Judge, engaged in judicial
bias and had a conflict of interest by maintaining personal friendships with Defendants
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Heather 	A. 	Vincent, 	Robin 	C. 	Zimpel, 	and 	Michael 	J. 	Kerwin, 	attorneys 	who
participated in litigation before Defendant Cerio concerning Plaintiff’s custodial rights
to B.S. Mtn. to Transfer Venue at p. 2. Additionally, Plaintiff alleges that the Family
Court issued a series of ex parte dismissals, denied Plaintiff’s discovery requests, and
entered improper custodial orders without Plaintiff’s participation. Id.
II. STANDARD FOR TRANSFER OF VENUE
“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 purpose of section 1404(a) is to prevent
the waste of time, energy and money and to protect litigants, witnesses and the public
against unnecessary inconvenience and expense.” 	Chandler v. Skipper, 2025 WL
2442890, at *7 (N.D.N.Y. Aug. 25, 2025) (quotations omitted). “Whether to transfer a
case is within a court’s discretion.” Id. (citation omitted). “The party seeking transfer
bears the burden of establishing in the pleadings and affidavits the conditions necessary
to justify transfer.” Id. (quotations omitted).
In considering whether to transfer venue, “the court must first decide whether the
transferee forum is one where the action could have been brought.” Dixon v. Fischer,
2008 WL 141786, at * 1 (N.D.N.Y. Jan. 11, 2008) (citations and quotation omitted).
“[A]n 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
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transferee court.’” Guardian Life Insurance Company of America v. Coe, 724 F. Supp.
3d 206, 213 (S.D.N.Y. 2024) (citations and quotations omitted).
Venue in civil actions is governed by 28 U.S.C. § 1391, which provides that
venue is considered 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 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.
28 U.S.C. § 1391(b).
III. DISCUSSION
Initially, the Court notes that Plaintiff could not have brought this action in the
Southern District of New York because venue would not be proper in the Southern
District of New York. See, e.g., Kampfer v. Scullin, 989 F. Supp. 194, 198 (N.D.N.Y.
1997). 	First, while all Defendants named in the Amended Complaint are alleged to
reside or have their principal place of business in New York, none of the Defendants are
alleged to reside or have their principal place of business in the Southern District of New
York. See Am. Compl. at pp. 2-5; see, e.g., Rogers v. Clinton, 2019 WL 3469462, at *4
(N.D.N.Y. Apr. 1, 2019), report and recommendation adopted, 2019 WL 3454099
(N.D.N.Y. July 31, 2019). 	Rather, all Defendants are alleged to reside or have their
principal place of business in Syracuse, New York, see Am. Compl. at pp. 2-5, which is
within the Northern District of New York.
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Second, it does not appear that any of the events and omissions giving rise to
Plaintiff’s claims occurred in the Southern District of New York. 	See generally Am.
Compl. 	To the contrary, a substantial part of the events and omissions giving rise to
Plaintiff’s claims are alleged to have taken place in Onondaga County, namely at the
Onondaga County Family Court, which is located within the Northern District of New
York. See id.; see, e.g., Swinea v. Peters, 2025 WL 1470840, at *4 (N.D.N.Y. May 22,
2025), report and recommendation adopted, 2025 WL 1819710 (N.D.N.Y. July 2, 2025)
(holding that “venue may be proper under section 1391(b)(2)” and “declin[ing] to
recommend transfer” because “it appears at least some of the custody matters . . . were
entered within a court in this state and District”).
At this stage of the proceeding, the Northern District of New York is presumably
a proper venue for this action because all of the Defendants are alleged to reside or have
their principal place of business in the Northern District of New York and a substantial
part of the events and omissions underlying Plaintiff’s claims are alleged to have
occurred in the Northern District of New York. See Am. Compl. at pp. 2-6.
Accordingly, Plaintiff’s motion to transfer venue is denied.
IV. CONCLUSION
ACCORDINGLY, it is hereby
ORDERED, that Plaintiff’s Motion to Transfer Venue to the Southern District
of New York (Dkt. No. 9) is DENIED as set forth above; and it is further
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ORDERED, that the Clerk of the Court shall serve copies of this Memorandum-
Decision and Order on the parties.
Date: 	December 16, 2025
Albany, New York
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