Kalawa v. United States

AMARA KALAWA and ALFREDA BANGURA, Plaintiffs, v. UNITED STATES OF AMERICA, U.S. GEN'L SERVS. ADMIN.,FEDERAL BUREAU OF INVESTIGATION, MICHAEL WITKOWSKI,COURTNEY HUCKS, EMMANUEL MANLEY, JUSTIN MANLEY,JOHN/JANE DOE 1-10, and/or ABC CORP 1-10, Defendants.

Civil Action No. 19-cv-16089-FLW-DEA

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

July 2, 2020

*NOT FOR PUBLICATION*

OPINION

WOLFSON, Chief Judge:

This matter arises out of a car accident between federal employee Michael Witkowski ("Witkowski") and Amara Kalawa and Alfreda Bangura ("Kalawa" and "Bangura" or, collectively, "Plaintiffs"), who allege that Witkowski injured them when he rear-ended a car in which they were passengers. Plaintiffs brought suit under the Federal Tort Claims Act ("FTCA") against the United States, the U.S. General Services Administration ("GSA"), the Federal Bureau of Investigations ("FBI"), and Witkowski (collectively, "Defendants").¹ Defendants move to dismiss the Complaint under Fed. R. Civ. P. 12(b)(5) or, in the alternative, transfer the case to theUnited States District Court for the District of Maryland. For the following reasons, Defendants' Motion to Transfer is GRANTED.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

For the purposes of this motion, the Court sets forth only the facts that it deems relevant to the parties' dispute over whether to transfer venue. On October 6, 2017, while driving a government-owned car on federal land in Maryland, Witkowski allegedly rear-ended a vehicle in which Kalawa and Bangura were passengers.² See Def.'s Mot., at 4-5. Bangura received medical care at the scene of the accident, and it appears she was transported to a local hospital. Subsequently, both Plaintiffs received additional medical treatment in New Jersey. On July 30, 2019, Plaintiffs filed a Complaint in this Court, asserting claims under the FTCA against Defendants. At the time of the accident, each resided in New Jersey. By the time they filed their Complaint, however, the United States had deported Kalawa to Sierra Leone. According to Plaintiffs, Bangura remains a New Jersey resident, and Kalawa still considers New Jersey his domicile.

On March 6, 2020, Defendants filed a Motion to Dismiss for untimely service, claiming that Plaintiffs failed to send a copy of their Complaint and summons to the United States Attorney General, as required by Fed. R. Civ. P. 4(i)(1)(B), within the 90-day time period specified in Fed. R. Civ. P. 4(m). In the alternative, they seek to transfer the case to the District of Maryland because that is where the accident occurred, Maryland tort law applies, and New Jersey courts are the busiest in the nation. Plaintiffs oppose the transfer and cross-move to "enlarge the time period for service and deem the government defendants served." See Opp. Br., at 5.

II. STANDARD OF REVIEW

The Court may transfer an action to any venue "where [it] might have been brought . . . for the convenience of the parties, in the interests of justice." 28 U.S.C. § 1404(a). The decision to transfer is within "the sound discretion of the trial court." See Teva Pharmaceuticals USA, Inc. v. Sandoz Inc., No. 17-275, 2017 WL 2269979, at *4 (D.N.J. May 23, 2017); Days Inns Worldwide, Inc. v. RAM Lodging, LLC, No. 09-2275, 2010 WL 1540926, at *2 (D.N.J. April 14, 2010); Cadapult Graphic Sys. v. Tektronix, Inc., 98 F. Supp. 2d 560, 564 (D.N.J. 2000). In deciding a motion to transfer under § 1404(a), the Court first determines whether the transferee district is one in which the action "might have been brought." See Solomon v. Cont'l Am. Life. Ins. Co., 472 F.2d 1043, 1045 (3d Cir. 1973). The transferee district must be a proper venue under the relevant venue provision and it must have personal jurisdiction over the defendants. See Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir. 1970); Control Screening, LLC v. Integrated Trade Sys., Inc., No. 10-499, 2011 WL 3417147, at *4 (D.N.J. Aug. 3, 2011); Teva, 2017 WL 2269979, at *5.

If the transferee district is proper, the Court then considers whether convenience and fairness weigh in favor of transfer on an individualized, case-by-case basis. See Lawrence v. Xerox Corp., 56 F. Supp. 2d 442, 450 (D.N.J. 1999); Calkins v. Dollarland, Inc., 117 F. Supp. 2d 421, 428 (D.N.J. 2000) (noting the inquiry "is flexible and must be made on the unique facts of each case"). The Third Circuit has enumerated certain private and public factors that bear on this analysis. See Jumara v. State Farm Ins. Co., 55 F.3d 873, 879, 883 (3d Cir. 1995). However, the Jumara factors are not exhaustive, "[t]here is no rigid rule governing a court's determination," and "each case turns on its facts." Lacey v. Cessna Airfract Co., 862 F.2d 38, 43 (3d Cir. 1988) (internal quotations omitted); Solomon, 472 F.2d at 1045 ("[T]he district court is vested with a large discretion."); Control Screening, 2011 WL 3417147, at *4 (same, but "broad" discretion). Themoving party has the burden of demonstrating that transfer is not only adequate but more appropriate. See Myers v. American Dental Ass'n, 695 F.2d 716, 732 (3d Cir. 1982) (Garth, J., concurring in part and dissenting in part); Yocham v. Novartis Pharms. Corp., 565 F. Supp. 2d 554, 557 (D.N.J. 2008) (noting a transfer motion "must not be lightly granted") (further citations omitted); Hoffer v. InfoSpace.com. Inc., 102 F. Supp. 2d 556, 572 (D.N.J. 2000) (collecting cases).

III. DISCUSSION

Defendants move to dismiss this case for untimely service. In the alternative, they move to transfer it to the District of Maryland, arguing that Maryland is the more appropriate venue because the car accident occurred there, its tort law applies, and New Jersey courts are particularly congested. Plaintiffs argue that, under § 1402(b), they have the right to file their claims in New Jersey, because Bangura resides in the state and Kalawa considers it his domicile even though he was deported.

While a "question of personal jurisdiction . . . is typically decided in advance of venue . . . a court may reverse the normal order" and decide venue first, for "neither . . . is fundamentally preliminary in the sense that subject-matter jurisdiction is," nor an "absolute stricture[] on the court." Leroy v. Great Western United Corp., 443 U.S. 173, 180 (1979) (citing C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3801, pp. 5-6 (1976)).³ Critically, a defect in service, as Defendants allege here, is a defect in personal jurisdiction, "which goes to the court's power to exercise control over the parties." Id. Because the United States has sufficient minimum contacts in every forum state, a court establishes the authority to adjudicate a case against thegovernment through service of process itself. See Sanders v. United States, No. 14-7157, 2015 WL 248439, at *3 (D.N.J. Jan. 20, 2015) ("Before the District Court can exercise personal jurisdiction over the United States, the procedural requirements of service of a summons must be satisfied."); see also Omni Capital Int'l, Ltd. V. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) ("Service of summons is the procedure by which a court having venue and jurisdiction of the subject matter of the suit asserts jurisdiction over the person of the party served."). The Court, accordingly, decides whether to transfer Plaintiffs' claims to the District of Maryland without reaching the question whether Plaintiffs made timely service on the United States. See Control Screening, 2011 WL 3417147, at *4.

With respect to transfer, Defendants contend that, because Kalawa is no longer a New Jersey resident, New Jersey is an improper venue under 28 U.S.C. § 1402(b). That provision states that FTCA claims must be brought either "in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred."⁴ In turn, according to Defendants, 28 U.S.C. § 1406(a) requires the Court to dismiss Kalawa's claim unless, "in the interests of justice," it may be transferred to Maryland, which is the place of the accident and the only other proper venue under § 1402(b). See Def. Mot., at 8-10. They also urge the Court to transfer Bangura's claim under § 1404(a), since her claim arises out of the same event as Kalawa's and it would waste judicial resources to try them separately.⁵ Id. at 10. Plaintiffs do not dispute that venue in Marylandwould be proper—if they chose to file there. They also do not dispute that their claims should be "consolidated."⁶ See Opp. Br., at 14. Rather, Plaintiffs argue that New Jersey, not Maryland, is the more appropriate venue under § 1402(b), since Bangura resides there and it is Kalawa's domicile.

Kalawa plainly is not domiciled in New Jersey. By definition, being deported means that Kalawa cannot form a lawful intent to be in any state. See, e.g., Lok v. I.N.S., 681 F.2d 107, 109-10 (2d Cir. 1982) ("Lok established his lawful domicile only when his intent to remain was legal under the immigration laws . . . . As a seaman who had overstayed his 29 days, Lok was in the United States illegally. He could not establish lawful domicile . . . . The requirement that Lok's domicile be 'lawful' is more than a formality; it is a commandment installed in the 1952 Immigration and Naturalization Act as a deliberate change from prior law."); see also Elkins v. Moreno, 435 U.S. 647, 665-66 (1978). As such, his claim is improperly venued in New Jersey, and Maryland is the only appropriate venue under § 1402(b). While the parties did not discuss whether Kalawa may anchor his claim to Bangura's to establish venue in this district, and regardless of whether New Jersey is a proper venue based on that theory, the Court has broad discretion to transfer Plaintiffs' entire suit to Maryland under § 1404(a), and will do so.

In determining whether to transfer a suit under § 1404(a), the threshold question is whether the transferee venue is one in which the suit "might have been brought." 28 U.S.C. § 1404(a); Solomon, 472 F.2d at 1045; Sh...