Free Memorandum in Opposition to Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-00583-JCH

Document 80

Filed 02/23/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT PRISONER CIVIL NO. 3:03CV583 (JCH)(HBF)

LUIS FERNANDEZ v. JOHN ARMSTRONG, ET AL.

: : :

FEBRUARY 22, 2005

MEMORANDUM IN RESPONSE TO PLAINTIFF'S MOTION FOR CHANGE IN VENUE By Motion for Change of Venue dated January 24, 2005 and received February 15, 2005, plaintiff pro se inmate asks this Court to transfer this case to another district "in the interests of justice and for the protection of the plaintiff Pro Se fundamental Right" apparently because the Court returned his Motion for Disqualification because, at the time, the record indicated that the case was closed. Plaintiff's Motion, p. 2. Plaintiff subsequently claimed that his pleadings were timely under the Prisoner Mailbox Rule. We urge the court to deny the request. It is well settled that motions for transfer lie within the broad discretion of the district court and are determined on a case-by-case basis. In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (1992). However, that discretion is not unlimited, nor is it subject to plaintiff's self-interest. Transfers may be made "in the interests of justice" or "for the convenience of the parties and witnesses." 28 U.S.C. § 1404(a). A transfer can be made "to any district or division in which it could have been brought." 28 U.S.C. § 1406(a). See also, § 1404(a), supra. "In determining whether transfer is warranted, the following factors are considered relevant: (1) the convenience of the parties; (2) the convenience of material witnesses; (3) plaintiff's choice of forum; (4) where the operative facts occurred; (5) the availability of process to compel appearance of unwilling witnesses; and (6) trial efficiency and other considerations affecting the interests of

Case 3:03-cv-00583-JCH

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justice." Bridgeport Machines, Inc. v. Alamo Iron Works, Inc., 76 F. Supp. 2d 214, 216 (D. Conn. 1999). That plaintiff thinks the court made a wrong ruling, post-judgment, is not grounds for transfer. Post-filing forum shopping is not a reason for granting transfer; to the contrary, it is reason for preventing transfer. See, e.g., Spar, Inc. v. Information Resources, Inc., 956 F.2d 392, 395 (2nd Cir. 1995). Moreover, considering the fact that this case concerns a complaint by a Connecticut inmate claiming insufficient access to the library, typewriters and photocopy services at the Cheshire Correctional Institution, the availability of another district with jurisdiction is inconceivable. Accordingly, we urge the court to deny plaintiff's motion.

DEFENDANTS John Armstrong, et al. RICHARD BLUMENTHAL ATTORNEY GENERAL

BY:

_____/s/_______________________ Robert F. Vacchelli Assistant Attorney General 110 Sherman Street Hartford, CT 06105 Federal Bar #ct05222 E-Mail: [email protected] Tel.: (860) 808-5450 Fax: (860) 808-5591

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Case 3:03-cv-00583-JCH

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Filed 02/23/2005

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CERTIFICATION I hereby certify that a copy of the foregoing was mailed to the following on this 22nd day of February, 2005:

Luis Fernandez, Inmate No. 279900 MacDougall-Walker Correctional Institution 1153 East Street South Suffield, CT 06080

_______/s/________________________ Robert F. Vacchelli Assistant Attorney General

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