IMUNDO v. POCONO PALACE, INC., (D.N.J. 2002)

WILLIAM BASSLER, United States District Judge.

Plaintiffs move pursuant to Loc. Civ.R. 7.1(g) for reargument of this Court's order filed June 14, 2002, dismissing the Complaint for lack of personal jurisdiction; and pursuant to 28 U.S.C. § 1406(a) and 1631 to transfer venue to the Eastern District of Pennsylvania. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332 (diversity) because Plaintiffs are citizens of New Jersey and Defendants are citizens of Pennsylvania and the amount in controversy exceeds $75,000. For the following reasons, Plaintiffs' motion is granted.

This action arises from personal injuries allegedly sustained by plaintiff Joseph Imundo ("Joseph") when he slipped and fell on the property owned and operated by defendants Pocono Palace, Inc., Cove Haven, Inc. and/or John Does 1-5. The Complaint alleges that on or about December 30, 1998, Joseph was caused to slip and fall due to ice conditions in the parking lot on Defendants' premises. On December 22, 2000, Joseph and his wife brought this action in the Superior Court of New Jersey, Law Division, Essex County to recover damages for their injuries, alleging negligence and loss of consortium.

On February 14, 2001, Defendants removed the action to this Court and interposed an Answer, asserting the affirmative defense of lack of personal jurisdiction. Defendants subsequently moved pursuant to Fed.R.Civ.P. 12(b)(2) to dismiss the Complaint for lack of personal jurisdiction.

It is undisputed that Defendants are Pennsylvania corporations, having their principal place of business in the Commonwealth of Pennsylvania, where they operate vacation resorts, one of which is where Joseph allegedly slipped and fell, sustaining personal injuries. Because this Court found that Defendants lacked the minimum contacts with the State of New Jersey required under constitutional due process, on June 14, 2002, this Court dismissed the Complaint for lack of personal jurisdiction over Defendants.

Plaintiffs now move pursuant to Loc. Civ.R. 7.1(g) for reargument and pursuant to 28 U.S.C. § 1406(a) and 1631 to transfer venue to the Eastern District of Pennsylvania.

The Third Circuit has stated that the purpose of a motion for reconsideration "is to correct manifest errors of law or fact or to present newly discovered evidence." Harsco Corp. v. Alotnicki, 779 F.2d 906, 909 (3d Cir. 1985). A court may also grant a motion for reconsideration under Local Civil Rule 7.1(g) based upon an intervening change in the law. Natural Resources Defense Council v. U.S.E.P.A., 705 F. Supp. 698, 702 (D.D.C. 1989) (citations omitted). Such a motion must be filed within 10 days of the entry of the order on the original motion and must set forth "the matters or controlling decisions which counsel believes the Judge or Magistrate has overlooked." Rule 7.1(g). The order here was entered on June 17, 2002. Plaintiff filed this motion for reconsideration on June 27, 2002. Therefore, Plaintiffs' motion for reconsideration is timely.

A party seeking reconsideration under Local Rule 7.1(g) must do more than disagree with the Court's decision. Mere "recapitulation of the cases and arguments considered by the Court before rendering its original decision fails to carry the moving party's burden." G-69 v. Degnan, 748 F. Supp. 274, 275 (D.N.J. 1990); see also Fontenot v. Mesa Petroleum Co., 791 F.2d 1207, 1219 (5th Cir. 1986); Youmans v. Simon, 791 F.2d 341, 349 (5th Cir. 1986). Additionally, a motion for reconsideration is improper when it is used "to ask the Court to rethink what it has already thought through — rightly or wrongly." Oritani Sav. Loan Ass'n v. Fidelity Deposit Co. of Md., 744 F. Supp. 1311, 1314 (D.N.J. 1990) (citations omitted), rev'd on other grounds, 989 F.2d 635 (3d Cir. 1993).

Moreover, reconsideration motions may not be used to relitigate old matters or raise arguments or present evidence that could have been raised prior to entry of judgment. Polizzi Meats, Inc. v. Aetna Life Casualty Co., 931 F. Supp. 328, 339-39 n. 2 (D.N.J. 1996); see also Resorts Intern. V. Great Bay Hotel and Casino, 830 F. Supp. 826, 831 (D.N.J. 1992) (noting that Local Rule 7.1(g) invites counsel to draw the court's attention to decisions that may have been overlooked by the court, not those overlooked by counsel). Finally, "only if the matters which were overlooked, if considered by the Court, might reasonably have resulted in a different conclusion will the court entertain such a motion." Polizzi Meats, Inc., 931 F. Supp. at 339.

Plaintiffs, relying on 28 U.S.C. § 1406(a) or, alternatively, 28 U.S.C. § 1631, contend that in deciding Defendants' motion to dismiss for lack of personal jurisdiction, this Court "overlooked and/or did not consider that jurisdiction was otherwise proper in the Federal District Court, and that the appropriate remedy should have been the transfer of venue from the United States District Court of New Jersey, to the United States District Court for the Eastern District of Pennsylvania, which would have had personal jurisdiction over the defendants." Pl. Br. In Supp., at 4.

Plaintiffs do not ask this Court to reconsider the issue of personal jurisdiction. For purposes of this motion, Plaintiffs appear to concede that this Court lacks personal jurisdiction over Defendants. Plaintiffs merely ask that this Court reconsider its judgment of dismissal.

Upon finding that this Court lacked personal jurisdiction over Defendants, this Court did not consider the possibility of transferring the action rather than dismissing it; nor did the Court consider the statutes relied on by Plaintiffs in this motion. Defendants argue, however, that because Plaintiffs could have, but did not, at any time prior to the present motion, request a transfer of venue, "reconsideration" of that issue is improper under Rule 7.1(g).

Although it would have been more prudent for Plaintiffs to have filed a cross-motion to transfer the case in the event the Court found that there was no personal jurisdiction over Defendants, their failure to do so does not preclude the Court from considering the issue now. In the motion to dismiss, this Court did not, as it could have done, recognize sua sponte its authority under Sections 1406 and 1631. See Verissimo v. I.N.S., 204 F. Supp.2d 818, 820 (D.N.J. 2002); Chicosky v. Presbyterian Medical Center, 979 F. Supp. 316, 320 (D.N.J. 1997). Therefore, the Court may do so now upon reconsideration.

First, Plaintiffs rely on 28 U.S.C. § 1406(a), which permits a district court, where venue is improper, to transfer the action to any district in which it could have been brought if it is in the interests of justice. Pursuant to the federal venue statute, the District of New Jersey is clearly not the proper venue for this action since neither of the defendants resides in this District, they are not subject to jurisdiction in this District, nor did the alleged incident giving rise to the claims occur in this District. See 28 U.S.C. § 1391.

The Supreme Court, however, teaches that Section 1391 has no application in a removed action, such as this. Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 668 (1953); Chicosky v. Presbyterian Medical Center, 979 F. Supp. 316, 320 (D.N.J. 1997). Instead, venue in removed actions is governed by 28 U.S.C. § 1441. Under Section 1441, venue in this district is technically not improper since it is the only district to which the action could have been removed from the Superior Court of New Jersey. See id. Therefore, "Section 1406, which deals with `laying venue in the wrong district,' is inapplicable." Id. at 319 (citations omitted); but see Carteret Savings Bank, F.A. v. Sushan, 721 F. Supp. 705 (D.N.J. 1989) (finding that the term "wrong district" used in § 1406 applies to any obstacle which prevents an orderly, expeditious, adjudication of a case on its merits, including lack of personal jurisdiction in an otherwise correct venue).

Plaintiffs next rely on 28 U.S.C. § 1631, which permits a district court, for want of jurisdiction, to transfer the action to any court in which it could have been brought at the time it was filed if it is in the interests of justice. As set forth in the motion to dismiss, there is certainly want of jurisdiction in this Court.

Moreover, an action may be transferred under Section 1404(a) to cure a defect in personal jurisdiction. Id. at 320. Section 1404(a) provides that "[f]or 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." The Supreme Court has stated that Section 1404(a) "gives district judges broad powers to transfer civil actions from one district to another `in the interest of justice.'" Polizzi, 345 U.S. at 670-71.

Accordingly, this Court has the power under both Sections 1404(a) and 1631 to transfer instead of dismissing the action, so long as it could have been brought in the Eastern District of Pennsylvania and it is in the interest of justice to do so.

With regard to the first issue, the Court notes that Defendants are subject to personal jurisdiction in Pennsylvania and the incident giving rise to Plaintiffs' claims occurred in Pennsylvania. Defendants argue, however, that their principal place of business is located in Monroe County, which is not in the Eastern District, but the Middle District of Pennsylvania. Plaintiffs respond that "[i]f that is the case, plaintiffs stand corrected and would equally request that the matter be transferred to the Middle District of Pennsylvania, if that jurisdiction would be appropriate." Therefore, it is undisputed that jurisdiction and venue are proper in the Middle District of Pennsylvania.

Additionally, the action was not time-barred in Pennsylvania. It appears that Pennsylvania's two year statute of limitations applicable to personal injury actions expired on December 30, 2000, two years from the date the incident is alleged to have occurred. However, because the action was filed in New Jersey Superior Court on December 22, 2000, the action would seem to have been timely filed if it had originally been filed in Pennsylvania.

Nevertheless, Defendants argue that because the statute of limitations has already run in that district, transferring the action to the Eastern District of Pennsylvania would be improper and would not be in the interest of justice. In Kitces v. Wood, 917 F. Supp. 338, 343-44 (D.N.J. 1996), the district court found that where the statute of limitations in the proposed transferee district had run prior to the action being filed in the district of New Jersey, dismissal, rather than transfer was appropriate. That is distinct from the present situation, where the statute of limitations had not yet run in Pennsylvania at the time of the original filing of the action in this state. Unlike Kitces, because it appears that the action here could originally have been brought in Pennsylvania, transfer is appropriate. See Chicosky, 979 F. Supp. at 321.

Finally, the Court finds that the interests of justice would best be served by transfer, rather than dismissal. Because Pennsylvania appears to be the only appropriate forum for this action and because the statute of limitations has now run in that state, dismissal at this point would completely deprive Plaintiffs of their day in court and would substantially prejudice their rights.

On the other hand, transfer does not prejudice Defendants. They have had notice of this claim since the time it was filed in the Superior Court. Defendants argue that Plaintiffs' blanket statement that the Eastern District will be more convenient for Defendants is insufficient to justify transfer under Section 1404(a), since Defendants' principal place of business is not in the Eastern District, but the Middle District of Pennsylvania. Defendants, however, cannot honestly dispute that transfer to the Middle District of Pennsylvania, where their principal place of business and presumably most of their witnesses are located, will be more convenient for them. Additionally, the cost of defending the action will be significantly reduced by litigating in their home state.

Moreover, Plaintiffs appear to have made a good faith mistake in believing that personal jurisdiction could have been based on Defendants' Worldwide Web site, www.caesarspoconoresorts.com. Defendants argue that because the possibility of obtaining personal jurisdiction over Defendant in this jurisdiction was so remote, Plaintiffs should have filed a "protective suit" in the District Court of Pennsylvania. Def. Br. In Opp., at 5. However, nothing in the rules of civil procedure entitles a plaintiff to simultaneously file the same action in multiple forums in anticipation of dismissal. Surely Plaintiffs were aware that had they simultaneously filed a second action in another forum, alleging the same facts and causes of action against the same Defendants, they risked being sanctioned by the Court for vexatiously multiplying the litigation and increasing the burden on Defendants. See Fed.R.Civ.P. 11.

Because the action could initially have been brought in the Middle District of Pennsylvania and because the Court finds that it is in the interest of justice to do so, the Court vacates and reverses its prior order of dismissal and transfers the action, pursuant to 28 U.S.C. § 1404(a) and 1631, to the Middle District of Pennsylvania.