UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------x
DOROTHY NESKE and CHRISTOPHER NESKE, as Parents and Natural Guardians of A.N., and DOROTHY NESKE and MEMORANDUM & ORDER CHRISTOPHER NESKE, Individually, 20-CV-4801(EK)(JRC)
Plaintiffs,
-against-
NEW YORK CITY DEPARTMENT OF EDUCATION, MEISHA PORTER,
Defendants.
------------------------------------x ERIC KOMITEE, United States District Judge:
Plaintiffs, on behalf of themselves and their minor
child, A.N., claim that A.N. was denied a Free Appropriate
Public Education (“FAPE”) and seek relief pursuant to the
Individuals with Disabilities Education (“IDEA”) Act. See 20
U.S.C. § 1415(i). Defendants moved to transfer this action to
the Southern District of New York, where Judge Valerie Caproni
adjudicated three similar actions filed by Plaintiffs. For the
following reasons, the Court grants Defendants’ motion to
transfer.
Background
Plaintiffs seek reimbursement for A.N.’s attendance at
a private school for special-needs children. Compl. ¶ 14, ECF
No. 1. The Neskes have filed several federal actions seeking
funding under the IDEA Act. They filed their first complaint in
the Southern District of New York on April 2, 2019, seeking
Section 1415(j) “pendency funding” for the 2018-2019 school
year. Compl., Neske v. N.Y.C. Dep't of Educ. (“DN I”), No. 19-
CV-2933, ECF No. 1. After Judge Caproni dismissed that
complaint, and while their motion for reconsideration was
pending, Plaintiffs filed a second complaint in the Southern
District on September 23, 2019, seeking pendency funding for the
2019-2020 school year. Compl., Neske v. Carranza (“DN II”), No.
19-CV-8817, ECF No. 1. Because they did not identify the DN II
filing as related to DN I, the case was randomly assigned to
Judge Oetken; Judge Oetken transferred it to Judge Caproni over
Plaintiffs’ objection. DN II, ECF No. 2, 22.
On May 1, 2020, Plaintiffs filed a third complaint,
this time in the Eastern District of New York, again seeking
pendency funding for the 2019-2020 school year. Neske v. N.Y.C.
Dep't of Educ., No. 20-CV-2009, 2020 WL 2542118, at *1 (E.D.N.Y.
May 19, 2020) (“DN III”). On May 19, 2020, this Court
transferred DN III to the Southern District of New York, where
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the other two actions remained pending before Judge Caproni.
Id. at *3.
Plaintiffs filed this action on October 6, 2020,
challenging the DOE’s “denial of reimbursement for tuition and
related services for A.N. to attend iBRAIN for the 2018-2019
school year.” Compl. ¶ 24(a). The challenge stems from an
initial hearing officer’s decision that while A.N. was denied a
FAPE, he was not entitled to tuition reimbursement. Id. ¶ 19.
The New York State Education Department’s Office of State Review
affirmed that decision on June 8, 2020. Id. ¶ 21. Rather than
file their complaint in the Southern District of New York, where
DN III remained pending,1 Plaintiffs sued in the Eastern District
of New York.
Analysis
“For 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. . . .” 28 U.S.C. § 1404(a). Moving parties must
show by “clear and convincing evidence” that transfer is proper.
See New York Marine & Gen. Ins. Co. v. Lafarge, 599 F.3d 102,
1 Judge Caproni dismissed DN III on February 25, 2021. Neske v. N.Y.C. Dep't of Educ., No. 20-CV-3912, 2021 WL 797653, at *7 (S.D.N.Y. Feb. 25, 2021).
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113-14 (2d Cir. 2010). “Motions for transfer lie within the
broad discretion of the district court and are determined upon
notions of convenience and fairness on a case-by-case basis.”
In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992).
Courts conduct a two-part test when deciding whether
to transfer an action under Section 1404. See Ahmed v. TJ Maxx
Corp., 777 F. Supp. 2d 445, 448 (E.D.N.Y. 2011). First, the
Court must find that the action “might have been brought” in the
transferee court. See id.2 Second, courts consider whether the
transfer would promote convenience and justice. Id.; see also
New York Marine, 599 F.3d at 112. In doing so, courts weigh
several factors, including “(1) the plaintiff’s choice of forum,
(2) the convenience of witnesses, (3) the location of relevant
documents and relative ease of access to sources of proof, (4)
the convenience of parties, (5) the locus of operative facts,
(6) the availability of process to compel the attendance of
unwilling witnesses, and (7) the relative means of the parties.”
D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106-07 (2d
Cir. 2006).3
2 Because the parties do not dispute that this action could have been brought in the Southern District of New York, “the sole inquiry before the Court . . . is whether convenience and the interests of justice support the transfer.” Ahmed, 777 F. Supp. 2d at 448-49.
3 Unless otherwise noted, when quoting judicial decisions this order omits all alterations, citations, footnotes, and internal quotation marks.
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Given the close physical proximity of the Southern and
Eastern Districts, courts typically find that convenience
considerations “are relatively neutral with regard to transfer.”
Ahmed, 777 F. Supp. 2d at 449; see also Williams v. City of New
York, No. 03–CV–5342, 2006 WL 399456, at *3 (S.D.N.Y. Feb. 21,
2006). Likewise, although “[p]laintiffs’ choice of forum is
usually entitled to considerable weight, [it] is accorded less
deference where (as here) the plaintiffs’ chosen forum is
neither their home nor the place where the operative facts of
the action occurred.” Columbia Pictures Indus., Inc. v. Fung,
447 F. Supp. 2d 306, 310 (S.D.N.Y. 2006). The Neskes do not
allege that they live in this district or that any operative
facts occurred here. In fact, the locus of operative facts is
in the Southern District, where A.N. attends private school and
received services for the 2018-2019 school year. Plaintiffs’
choice also carries less weight because they previously brought
related claims in the Southern District. See Williams, 2006 WL
399456, at *3. Though this action is pursuant to a different
provision of the IDEA Act, it seeks funding from the same
defendant, and involves the same student and school as DN I and
DN II – both of which Plaintiffs filed across the river.
The Court concludes that transfer is appropriate. The
locus of operative facts favors transfer, as do the interests of
justice. It is telling that Plaintiffs began filing in this
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district only after Judge Caproni dismissed DN I and after they
sought – but failed – to have DN II assigned to a different
judge. See Pierce v. Coughlin, 806 F. Supp. 426, 429 (S.D.N.Y.
1992) (“Where it appears that the plaintiff was forum shopping
and that the selected forum has little or no connection with the
parties or the subject matter, plaintiff's choice of forum is
entitled to no weight whatever, and transfer of venue is
appropriate.”).
Conclusion
For the foregoing reasons, this action is transferred
to the United States District Court for the Southern District of
New York pursuant to 28 U.S.C. § 1404(a). All other relief
sought by Plaintiffs is denied without prejudice to the renewal
of the requests before the transferee court. The Clerk of Court
is respectfully directed to transfer this case to the Southern
District of New York. Local Rule 83.1 of the Eastern District
of New York, which requires a seven-day delay between the date
of this Order and transfer, is waived.
SO ORDERED. /s/ Eric Komitee ERIC KOMITEE United States District Judge Dated: December 2, 2021 Brooklyn, New York
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