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Santos Camacho v. United States

United States District Court, S.D. Florida

November 19, 2019




         THIS MATTER comes before the Court on the Defendant's Motion to Transfer Venue (the “Motion”) [ECF No. 17]. The Plaintiff filed his Response in Opposition (“Response”) on August 23, 2019 [ECF No. 32]. And the matter ripened on September 6, 2019, when the Defendant filed its Reply [ECF No. 35].[1] On October 4, 2019, the Court held a hearing, at which the parties presented their oral arguments. The Court has considered the Motion, the parties' other filings and arguments, and the governing law. For the reasons set out below, the Court hereby GRANTS the Defendant's Motion.


         The Defendant asks the Court to transfer this case to the United States District Court for the District of Puerto Rico under 28 U.S.C. § 1406(a) or, in the alternative, under 28 U.S.C. § 1404(a). See Mot. at 3-10. Section 1406 authorizes district courts “of a district in which is filed a case laying venue in the wrong division or district [to] dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.” 28 U.S.C. § 1406(a). Section 1404, by contrast, 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 or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). Thus, “[u]nlike § 1406(a), § 1404(a) does not condition transfer on the initial forum's being ‘wrong.'” Atl. Marine Const. Co. v. U.S. Dist. Court for W. Dist. of Tex., 571 U.S. 49, 59 (2013).

         The Plaintiff brought this negligence action against the Defendant under the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671-2680. See Compl. [ECF No. 1] at 1. The FTCA has its own venue provision, 28 U.S.C. § 1402, which provides, in relevant part, as follows: “Any civil action on a tort claim against the United States under subsection (b) of section 1346 of this title may be prosecuted only in the judicial district where the plaintiff resides or wherein the act or omission complained of occurred.” 28 U.S.C. § 1402(b). The Complaint alleges that venue is proper in the Southern District of Florida because the Plaintiff resides here. See Compl. at 2.[2] The Plaintiff seeks damages arising from the alleged negligence of several physicians at the Department of Veterans Affairs (“VA”) who treated him in Puerto Rico. Id. at 2-6.

         THE FACTS

         The Plaintiff owns a home in Puerto Rico, which he inherited from his mother. See First M. Santos Camacho Decl. [ECF No. 32-1] ¶ 6. The Plaintiff also “regularly” spends time in Puerto Rico to “visit his sons and receive some care at the VA Hospital in Puerto Rico.” Id. ¶¶ 10-11.[3]The VA records the Defendant submitted suggest that the Plaintiff has received continuous medical care in Puerto Rico since 2012. See L. Colon Decl. Ex. D [ECF No. 27]. And every allegedly negligent act or omission the Complaint describes occurred in Puerto Rico, not Florida.[4] See Compl. at 2-5. Specifically, the Plaintiff says that he “was diagnosed with a priapism that was caused by a combination of medications” prescribed by the Puerto Rico VA's doctors who, he contends, failed to warn him that those medications “could potentially put him at risk for priapism.” Id. ¶ 9. The Complaint goes on to aver that, although a doctor at the Puerto Rico VA operated on him to relieve his priapism, this surgery actually caused him to suffer erectile dysfunction. Id. ¶¶ 10-11. According to the Complaint, on the same doctor's recommendation, the Plaintiff then “underwent surgery to implant an inflatable penile prosthesis to address his erectile dysfunction.” Id. ¶¶ 11-12. Doctors at the Puerto Rico VA later “performed four additional invasive and severely painful surgeries to implant, replace, and repair penile prostheses over a period of three years.” Id. ¶ 13. And, the Plaintiff insists, “[e]ach surgery was motivated by the doctors' knowing efforts to conceal the egregious medical errors committed by their colleagues.” Id.

         The Plaintiff claims that he has continuously resided in Florida since 2016. See First M. Santos Camacho Decl. ¶ 4. To support this contention, the Plaintiff avers that he currently leases an apartment in Pembroke Pines, Florida; that he maintains another address in Hollywood, Florida; that he possesses a Florida driver's license; and that he owns an account at a bank in Broward County, Florida. Id. ¶¶ 7-9. He also says that he receives most of his medical treatment at a VA hospital in Miami-and that, despite his “regular” travels to Puerto Rico, he always intends to return to his Pembroke Pines “home.” See First M. Santos Camacho Decl. ¶¶ 10-11.

         In response, the Defendant points out that the lease the Plaintiff submitted as evidence of his Pembroke Pines “residence” is unsigned; that his Florida driver's license lists, not a residence, but a commercial address owned by another individual; and that the Plaintiff's Florida auto insurance policy lists only a Hollywood post office box-not a street address. See Reply [ECF No. 35] at 3-4; see also [ECF Nos. 35-1, 35-2, 35-3, 35-4].


         In its Motion, the Defendant, invoking § 1406(a), contends that the Plaintiff resides in Puerto Rico-which, of course, would render this District an improper venue under § 1402(b). Mot. at 4-6. The Plaintiff, for his part, vehemently disputes the Defendant's characterization of his domicile and, to that end, has filed a declaration, which, he says, establishes his Florida residence. See Resp. [ECF No. 32] at 4-7; see also First M. Santos Camacho Decl. [ECF No. 32-1].

         I. 28 U.S.C. § 1406(a)

         “When a defendant challenges venue as improper, the plaintiff bears the burden of showing that the venue selected is proper.” Robey v. JPMorgan Chase Bank, N.A., 343 F.Supp.3d 1304, 1313 (S.D. Fla. 2018). “[T]he facts as alleged in the complaint are taken as true to the extent they are uncontroverted by defendants' affidavits.” Home Ins. Co. v. Thomas Indus., Inc., 896 F.2d 1352, 1355 (11th Cir. 1990) (internal quotation marks omitted). When the parties' affidavits do conflict, however, “the court is inclined to give greater weight to the plaintiff's version of the jurisdictional facts and to construe such facts in the light most favorable to the plaintiff.” Id.

         The evidence the parties shave submitted on the question of the Plaintiff's residence is, it goes without saying, in conflict-a conflict the Court would need a lengthy evidentiary hearing to resolve. Fortunately, the Court need not engage in this arduous fact-finding mission because, under the ...

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