United States District Court, S.D. Florida
ALTMAN UNITED STATES DISTRICT JUDGE.
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]. 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.
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
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. 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.
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.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. 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.
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. ¶¶
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].
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].
28 U.S.C. § 1406(a)
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
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 ...