United States District Court, D. Maine
DECISION AND ORDER ON PLAINTIFF'S MOTION TO
CHANGE VENUE AND MOTION TO DISMISS
Brock Hornby United States District Judge.
question here is whether I should grant the plaintiff's
motion to transfer venue out of this forum after the
defendants previously won a motion to transfer venue into
this forum. I conclude that the answer is no.
case arises out of a 2010 highway accident on interstate I-95
near Saco, Maine. According to the Verified Complaint, a
leased truck driven by an employee of the defendant
Dunkin' Donuts Northeast Distribution Center, Inc.'s
corporate predecessor (“Dunkin' Donuts”)
rear-ended the plaintiff's car and caused her severe
injuries. (ECF No. 32-2).
plaintiff, who lives in New Jersey, recently consulted
(through her parents) her current New Jersey lawyer who also
is licensed in New York. He says that New Jersey and New York
have personal injury statutes of limitations of 2 years and 3
years respectively, and that he was pleasantly surprised to
learn that Maine has a 6-year statute of limitations that can
be extended in certain cases of disability. Verified Compl.
¶¶ 31-32; Certification of Robert A. Skoblar, Esq.
¶ 8, attached to Pl.'s Mot. (ECF No. 32-2).
2017, the plaintiff filed this lawsuit in federal court in
New Jersey against Dunkin' Donuts' corporate
predecessor, asserting that it was a Delaware corporation
with a principal place of business in Massachusetts; against
the truck driver, Dennis L. Lillard, who lived in Maine; and
against the corporate owner of the truck, Kris Way Truck
Leasing, Inc., incorporated and headquartered in Maine.
Verified Compl. ¶¶ 3-5. Dunkin' Donuts and Kris
Waymoved to dismiss the case for lack of
improper venue and lack of personal jurisdiction or,
alternatively, to transfer venue to the District of Maine.
Defs.' Br. at 3 (ECF No. 11-1) The plaintiff opposed the
motion and argued: “In the alternative, and for a host
of reasons to be set forth, if venue is to be transferred
it should be to a Federal District Court in New York and not
Maine.” Pl.'s Br. in Opp'n to First Mot.
to Dismiss at 1 (ECF No. 15) (emphasis added). The plaintiff
also stated: “If the court transfers venue to New York,
then the plaintiff would be willing to voluntarily dismiss
her case against Kris Way and Mr. Lillard, given Dunkin'
Donuts N.E.['s] concession that it had full control over
the subject vehicle and that Mr. Lillard was its employee at
the time of the accident.” Id. at 6.
Nevertheless, the New Jersey federal court transferred the
case to the District of Maine, not to any District in New
plaintiff did not give up on her quest for a New York forum.
Now in this District, she has dismissed the truck driver,
moved to dismiss the Maine corporate defendant Kris Way, and
moved to transfer venue for her remaining claim against
Dunkin' Donuts to the Southern or Eastern District of New
York (“SDNY” and “EDNY, ”
respectively) under 28 U.S.C. § 1404(a). Pl.'s Mot.
at 1, 3. Although the remaining two defendants are agreeable
to dismissal of the Maine corporate defendant, Kris Way, they
oppose the motion to transfer. Defs.' Opp'n at 1-2. I
Grant with prejudice the motion to dismiss
the defendant Kris Way.
of the Motion to Transfer
relevant venue transfer statute, 28 U.S.C. § 1404(a),
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 or to any district or division to which all parties
Congress amended the statute to add the last phrase regarding
all parties' consent (not applicable here), the United
States Supreme Court ruled that a court must assess personal
jurisdiction and venue in the proposed transferee district
(“where it might have been brought”) as of
the time the suit was brought. Hoffman v.
Blaski, 363 U.S. 335, 343 (1960). Since then, there has
been some debate among lower courts whether that assessment
must focus on all the defendants originally named, or only on
those defendants remaining in the lawsuit when the motion to
transfer is made.
case, if I assess venue as of the time the suit was filed
against all three defendants in the District of New Jersey,
then transfer is inappropriate, because the SDNY and EDNY
venues were improper as to the Maine driver and the Maine
corporate truck owner when the plaintiff filed her federal
lawsuit in 2017. But if I assess venue as of now, with the
truck driver dismissed, and if I grant the motion to dismiss
the corporate truck owner, then federal courts in New York
are appropriate for the remaining claim against Dunkin'
Donuts. The parties have not cited any First
Circuit cases on this issue. Both the Second and Third
Circuits allow the assessment to ignore defendants who are no
longer parties or who have been severed from the action being
transferred. See, e.g., Wyndham Assoc. v.
Bintliff, 398 F.2d 614, 619 (2d Cir. 1968); In re
Fine Paper Antitrust Litig., 685 F.2d 810, 819 (3rd Cir.
1982). I do not determine how the First Circuit
would rule, because I conclude for other reasons that the
requested transfer is inappropriate.
other section 1404(a) factors, the plaintiff asserts that
transfer is convenient to all her witnesses because they
(damage witnesses) are in New Jersey, close to the two New
York districts to which she seeks transfer. Pl.'s Mot. at
4. Dunkin' Donuts does not contest her assertion or
assert that it has witnesses in or close to Maine.
plaintiff also asserts that the two New York districts are
convenient to her as a party and her lawyer, because both she
and her lawyer are located in New Jersey and because her
lawyer is licensed to and accustomed to practicing in the New
York districts. Pl.'s Reply at 2 (ECF No. 34).