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Weiner v. Novartis Pharmaceuticals Corporation

United States District Court, District Circuit

November 20, 2013

WEINER, et al., Plaintiffs,


JOHN D. BATES, District Judge.

Plaintiffs Susan and Peter Weiner bring this action against defendant Novartis Pharmaceuticals Corporation, alleging that Susan Weiner suffered injuries as a result of her treatment with drugs marketed and distributed by Novartis. Before the Court is [7] plaintiffs' unopposed motion to transfer this case to the Southern District of New York. Upon consideration of the motion, defendant's consent, applicable law, and the entire record herein, and for the reasons explained below, the Court will grant the motion and transfer this action to the Southern District of New York.


The Weiners are residents of New York, New York, in the Southern District of New York. Pls.' Compl. [ECF No. 1] ("Compl.") ¶¶ 2-3. The events leading up to this lawsuit occurred in New York and the surrounding area. Pls.' Renewed Mot. to Transfer [ECF No. 7] ("Pls.' Mot.") 1. Novartis is a multinational corporation that markets and distributes Zometa, a drug used to treat diseases that have metastasized to bone, throughout all fifty states and the District of Columbia. Compl. ¶¶ 1, 5, 7. Mrs. Weiner was prescribed, purchased, and was infused with Zometa. Id . ¶ 2. Plaintiffs claim that Zometa caused the bone tissue of Mrs. Weiner's jaw to die, a painful and disfiguring condition known as osteonecrosis. Id . They further claim that Novartis knew or should have known of this adverse effect, and that it nonetheless continued to market and distribute Zometa. Id . ¶¶ 10-21. Invoking diversity jurisdiction, plaintiffs filed suit in this district on November 21, 2007. Id . ¶ 6. They seek compensatory and punitive damages under a number of different theories, including strict liability, failure to warn, and, in Mr. Weiner's case, loss of consortium. Id . ¶¶ 22-43. On January 8, 2008, the Judicial Panel on Multidistrict Litigation transferred this case to the Middle District of Tennessee, where hundreds of similar lawsuits have been consolidated to litigate common factual questions more efficiently. See In re Aredia and Zometa Prods. Lia. Litig., No. 3:06-md-1760 (M.D. Tenn. 2006) ("MDL-1760"); Letter from J.P.M.L. [ECF No. 2]. Now that the Panel has remanded the case back to this Court, plaintiffs seek to transfer venue to the Southern District of New York, and Novartis consents to transfer. Conditional Remand Order from J.P.M.L. [ECF No. 4]; Pls.' Mot.; Def.'s Notice of Consent [ECF No. 9].


District courts have discretion to transfer a case "[f]or the convenience of parties and witnesses, in the interest of justice... to any other district or division where it might have been brought." 28 U.S.C. § 1404(a).[1] Courts assess motions to transfer venue according to an "individualized, case-by-case consideration of convenience and fairness." Stewart Org., Inc. v. Ricoh Corp. , 487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack , 376 U.S. 612, 622 (1964)). However, "a court may not transfer a case from a plaintiff's chosen forum simply because another forum, in the court's view, may be superior to that chosen by the plaintiff." Sierra Club v. Van Antwerp , 523 F.Supp.2d 5, 11 (D.D.C. 2007) (internal quotation marks omitted). The moving party bears the initial burden of establishing that transfer is proper. S. Utah Wilderness Alliance v. Lewis , 845 F.Supp.2d 231, 234 (D.D.C. 2012).

The threshold requirement of section 1404(a) is met here: the transferee forum is a district "where [the action] might have been brought." § 1404(a); see Thayer/Patricof Educ. Funding v. Pryor Res., Inc. , 196 F.Supp.2d 21, 32 (D.D.C. 2002). Venue and jurisdiction are proper in both the Southern District of New York and this district. Novartis is the only defendant, so venue is proper in any district where it is subject to personal jurisdiction. See 28 U.S.C. §§ 1391(b)(1), (c)(2). This Court would likely have personal jurisdiction because Novartis "does business" in this jurisdiction and the exercise of jurisdiction would comport with due process. See Shirlington Limo. & Transp., Inc. v. San Diego Union-Tribune , 566 F.Supp.2d 1, 4-5 (D.D.C. 2008) (interpreting D.C. Code § 13-334 as a grant of general jurisdiction). New York would also likely have specific personal jurisdiction over Novartis because that is where Novartis sold the Zometa. See N.Y. C.P.L.R. §§ 302(a)(3). New York also probably has general personal jurisdiction over Novartis because it markets and distributes Zometa in New York. See id. § 302(a)(1). Moreover, Novartis does not object to personal jurisdiction or the propriety of venue in either district, and has arguably consented to both by consenting to this section 1404(a) motion, the predicate of which is proper venue in both the transferor and transferee fora. See Freeman v. Bee Mach. Co. , 319 U.S. 448, 453 (1943) ("[V]enue [is] a personal privilege which may be lost... by submission through conduct.") (internal quotation marks omitted). Neither party disputes that the action could have been brought in either district.

In deciding whether the "convenience of parties and witnesses" and "the interest of justice" warrant transfer, courts have identified several relevant factors. Mirroring the statutory language, these factors fall under two broad headings, private-interest factors and public-interest factors. See Trout Unlimited v. U.S. Dep't of Agric. , 944 F.Supp. 13, 16 (D.D.C. 1996). "[I]f the balance of private and public interests favors a transfer of venue, then a court may order a transfer." Montgomery v. STG Int'l, Inc. , 532 F.Supp.2d 29, 32 (D.D.C. 2008).

A. Private-interest Factors

In determining whether "the convenience of parties and witnesses" favors transfer, courts consider the following private-interest factors: (1) the plaintiff's choice of forum; (2) the defendant's choice of forum; (3) whether the claim arose elsewhere; (4) the convenience of the parties; (5) the convenience of the witnesses, particularly if important witnesses may actually be unavailable to give live trial testimony in one of the districts; and (6) the ease of access to sources of proof. Id. at 32-33; see Trout Unlimited , 944 F.Supp. at 16. The Court will consider each factor in turn.

1. Plaintiffs' forum choice favors transfer

The plaintiff's choice of forum is a "paramount consideration in any determination of a transfer request." Thayer/Patricof , 196 F.Supp.2d at 31 (internal quotation marks omitted). Here, although plaintiffs initially chose to file their action in this district, they now wish to press their claims in the Southern District of New York. Moreover, none of the events connected to the lawsuit occurred in the District of Columbia; everything happened in the Southern District of New York. The Weiners reside in New York, Mrs. Weiner appears to have been treated with Zometa in New York, and any injuries suffered by the Weiners appear to have been suffered in New York. The only tie between this case and the District of Columbia appears to be this Court's in personam jurisdiction over Novartis, which may exist in most districts across the country, given the scope of Novartis's sales. Hence, plaintiffs' choice of forum weighs in favor of transfer.

2. Defendant's forum choice favors transfer

Although the defendant's choice of forum is a consideration when deciding a section 1404(a) motion, it is not ordinarily entitled to deference. See Mahoney v. Eli Lilly & Co. , 545 F.Supp.2d 123, 127 (D.D.C. 2008). Here, Novartis consents to transfer. Thus, it need not establish that the added convenience and justice of litigating in its chosen forum overcomes the deference ordinarily given to the plaintiffs' choice. See In re Vitamins Antitrust Litig. , 263 F.Supp.2d 67, 69 (D.D.C. 2003) (finding that defendant has burden to establish appropriateness of transfer despite lessened deference given to plaintiff's choice). In addition, Novartis, a multinational corporation, readily able to defend this lawsuit in either district, has no real stake in having the case heard in either forum. ...

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