UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF NEW YORK 

-----------------------------------------------------------X 

BARBARA FORLASTRO and ROBERT G. 

FORLASTRO, as Co-Administrators of The 

Estate of ROBERT J. FORLASTRO, 

Plaintiffs, 

07 Civ. 3288 (RPP) 

- against - 

OPINION AND ORDER

JAMES COLLINS, 

Defendant. 

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ROBERT P. PATTERSON, JR., U.S.D.J.

 The parties of this wrongful death action are in dispute as to which state’s choice of law 

analysis and substantive law of damages should apply to the claim. On June 1, 2007, Plaintiffs 

filed a Motion for Application of Connecticut Law, asserting that, since the case was transferred 

from the District of Connecticut pursuant to 28 U.S.C. § 1404(a), the Connecticut choice of law 

rules must apply, and Connecticut substantive law of damages should apply to the claims. On 

July 2, 2007, Defendant responded with an Affirmation in Opposition and a Memorandum of 

Law in Opposition to Plaintiff’s Motion for the Application of Connecticut Law, in which 

Defendant asserted improper venue in the District of Connecticut and argued that the application 

of New York choice of law rules is proper and further that, applying those rules, New York 

substantive law would apply. Plaintiffs’ motion is denied. 

BACKGROUND 

A. Underlying Facts 

Decedent Robert Forlastro was killed after being struck by a large utility vehicle, driven 

by Defendant James Collins, in a deli parking lot in Carmel, NY. (Compl. ¶¶ 1, 2, 4, 6.) Mr. 

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Forlastro was a resident of Danbury, Connecticut, while Mr. Collins was and is a resident of 

Brewster, New York.1 (Id. at “Jurisdictional Statement.”) Mr. Forlastro’s employer was a waste 

disposal company located and operating in Danbury, Connecticut. (Pls.' Mem. at 1.) Mr. Collins 

was an employee of New York State Electric and Gas Corp. (Compl. ¶ 1.) On the morning of 

the accident, Mr. Forlastro was assigned to work in Carmel, New York. (Id.) After his death, 

Mr. Forlastro’s parents petitioned to have Mr. Forlastro’s estate opened in Connecticut for the 

purpose of seeking a wrongful death claim. (Pls.' Mem. at 2.) Additionally, service of process 

on Mr. Collins was effected in Connecticut. (Id.) 

B. Procedural History 

Plaintiffs brought this claim against Defendant in the United States District Court for the 

District of Connecticut on October 2, 2006.2

 The Complaint was filed by Mr. Forlastro’s 

parents, as Co-Administrators of his estate, alleging a cause of action for negligence. On 

February 23, 2007, the parties conferred for a “planning meeting,” as required by Federal Rules 

of Civil Procedure 16(b) and 26(f), and pursuant to Local Civil Rule 26(e) of the District of 

Connecticut, and filed a subsequent report to the district court, dated February 27, 2007, stating: 

The Plaintiffs contend that this Court has jurisdiction over the claims 

presented in this action pursuant to 28 U.S.C. § 1332. The Defendant 

denies the Plaintiff’s allegation and intends to contest the Plaintiff’s claim 

by filing a Motion to Dismiss and/or Motion to Transfer on the basis that 

venue in this district is improper pursuant to 28 U.S.C. § 1391(a). 

(Report of Parties’ Planning Meeting (“Report”) 2.) A stipulation to transfer the action to the 

Southern District of New York pursuant to § 1404(b) was executed by attorneys for both the 

 

1

 Since the Defendant and the Plaintiffs, the co-administrators of a Connecticut estate, are residents of two different 

states, federal court jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332(1). 

2

 Two other actions were commenced by Plaintiffs against both Defendant and New York State Electric and Gas 

Corporation. The first, a state action, was brought on or about March 21, 2006, in New York Supreme Court, 

Putnam County and was later discontinued. (Affirmation in Opposition (“Def.’s Affm.”) ¶ 5.) The other, a federal 

action brought on or about November 30, 2006, in the United States District Court for the Southern District of New 

York, was dismissed without prejudice by order dated March 27, 2007, based on Plaintiffs having commenced an 

identical action in the United States District Court for the District of Connecticut. (Id. ¶¶ 9, 11.) 

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Plaintiffs and Defendant and converted to a transfer pursuant to § 1404(a) by Judge Chatigny on 

April 13, 2007. Defendant filed his answer on April 27, 2007, in the Southern District of New 

York, contesting the propriety of venue in the District Court of Connecticut. 

On June 1, 2007, Plaintiffs filed a Motion for Application of Connecticut Law in this 

Court, asserting that, based on the § 1404(a) transfer and the Supreme Court cases of Farens v. 

John Deere Co., 494 U.S. 516 (1990) and Van Dusen v. Barrack, 376 U.S. 612 (1964), the 

Connecticut choice of law analysis must apply, and under that analysis, Connecticut substantive 

law should apply to the claims. On July 2, 2007, Defendant responded with an Affirmation in 

Opposition and a Memorandum of Law in Opposition to Plaintiffs' Motion for the Application of 

Connecticut Law, in which Defendant argued that because venue was improper in the District of 

Connecticut, New York choice of law rules apply and, further, that under that analysis, New 

York substantive law would apply. Finally, Plaintiffs, on July 9, 2007, filed a Reply 

Memorandum in Support of Motion for Application of Connecticut Law, responding to the 

Defendant’s challenge of improper venue in the transferor court. 

VENUE ANALYSIS 

A. Transfers Pursuant to 28 U.S.C. § 1404(a) 

A federal court sitting in diversity must apply the choice of law analysis of the state 

where the district court sits. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496 (1941). 

The Supreme Court has held, however, that “following a transfer under § 1404(a) the transferee 

court must follow the choice of law rules that prevailed in the transferor court.” Ferens, 494 U.S. 

at 519; see Van Dusen, 376 U.S. at 639. Requiring the transferee court to apply the law of the 

transferor court protects the parties’ expectations of the relevant and applicable law and the 

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plaintiff’s right to select the forum in which to adjudicate the claim, while allowing all parties to 

have their claims potentially heard in a convenient place. See Farens, 494 U.S. at 529-30. 

Critically, the rule of Van Dusen and Farens is limited to cases that could have been 

maintained in their original forum. Van Dusen, 376 U.S. at 633-34 (“There is nothing, however, 

in the language or policy of § 1404(a) to justify its use by defendants to defeat the advantages 

accruing to plaintiffs who have chosen a forum which, although it was inconvenient, was a 

proper venue.”) (emphasis added); Farens, 494 U.S., at 525 (stating that § 1404(a) “exists to 

eliminate inconvenience without altering permissible choices under the venue statutes”); see also

Levy v. Pyramid Co. of Ithaca, 687 F. Supp. 48, 52 (N.D.N.Y. 1988) (holding that “to remove 

the incentive to forum shop, several circuits have held that the Van Dusen rule applies only if the 

action could have been maintained in the original forum”) (internal quotes omitted) aff’d, 871 

F.2d 9, 10 (2d Cir. 1989). 

“[W]hen a transferor court has not ruled on the propriety of venue, the transferee court 

must determine whether venue would have been proper in the transferor court in order to decide 

which forum state's law will apply under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)].” 

Levy, 687 F. Supp. at 52 (citations omitted); see also Martin v. Stokes, 623 F.2d 469, 474-75 

(6th Cir. 1980); Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1107 (5th Cir. 1981); Roofing 

& Sheet Metal Servs., Inc. v. La Quinta Motor Inns, Inc., 689 F.2d 982, 992-93 (11th Cir. 1982). 

If a transfer is the result of, or incident to, the initial forum being an improper venue, the 

transferee court must apply the choice of law analysis of the state in which the transferee court 

sits, as required by Klaxon, 313 U.S. at 496. Von Grabe v. Ziff Davis Publ’g Co., 1995 WL 

688912, at *4 (S.D.N.Y. Nov. 20, 1995). 

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The present case was transferred from the District of Connecticut to the Southern District 

of New York as a result of an order by Judge Chatigny, approving a stipulation of transfer 

pursuant to 28 U.S.C § 1404(b), but changed as follows: 

Approved. The parties consent to transfer the case to the United States 

District Court, Southern District of New York, White Plains Division, 

pursuant to 28 U.S.C. § 1404(a). 

(Signed and Approved Stipulation to Transfer, April 13, 2007.) Plaintiffs assert that 1) by 

specifically granting the transfer pursuant to § 1404(a), the Judge implicitly ruled on Defendant’s 

improper venue claim, and that 2) if the Judge had felt venue was improper in Connecticut, he 

would have granted the transfer pursuant to 28 U.S.C. § 1406(a)3

 rather than § 1404(a). (Reply 

Memorandum in Support of Motion for Application of Connecticut Law (“Pls.' Reply Mem.”) at 

1.); (Transcript of Oral Argument, July 31, 2007 (“Tr.”) at 15.) There is no evidence in the 

record, however, and the Plaintiffs provided none at oral argument, that Judge Chatigny ruled on 

the propriety of venue in the District of Connecticut. Therefore, the task falls to this Court to 

determine whether venue was proper in the transferor court in order to decide which state’s 

choice of law analysis will apply to this claim. 

B. Title 28 U.S.C. § 1391(a) 

Title 28 of the United States Code § 1391(a), the applicable venue statute for diversity 

cases, reads as follows: 

A civil action wherein jurisdiction is founded only on diversity of 

citizenship may, except as otherwise provided by law, be brought only in 

(1) a judicial district where any defendant resides, if all defendants reside 

in the same State, (2) a judicial district in which a substantial part of the 

events or omissions giving rise to the claim occurred, or a substantial part 

of property that is the subject of the action is situated, or (3) a judicial 

district in which any defendant is subject to personal jurisdiction at the 

 

3

 “The district court of a district in which is filed a case laying venue in the wrong division or district shall 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). 

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time the action is commenced, if there is no district in which the action 

may otherwise be brought. 

28 U.S.C. § 1391(a). Under § 1391(a)(1), venue is improper in Connecticut and proper in New 

York because the sole defendant, Mr. Collins, is a New York resident and domiciliary. (Compl. 

at “Jurisdictional Statement.”) Moreover, under § 1391(a)(2), Connecticut is an improper venue 

since it was not the location of a “substantial part of the events or omissions giving rise to the 

claim.” Furthermore, § 1391(a)(3) is inapplicable since it only applies if venue was improper 

under § 1391(a)(1) or § 1391(a)(2). Maldonado v. Inanovich, 1998 WL 323483, at *1 (S.D.N.Y. 

June 17, 1998). 

Plaintiffs argue that because Connecticut is the location of a “substantial part of the 

events,” venue in Connecticut was proper pursuant to § 1391(a)(2). To support their position, 

Plaintiffs cite two facts: (1) they were individually appointed by the Connecticut Probate Court 

as executors of the estate under Connecticut General Statute § 52-555, thus specifically 

authorizing them to commence the wrongful death action against the Defendant on behalf of the 

estate and (2) Defendant was served in Connecticut. (Pls.' Reply Mem. at 2; Tr. at 20.) Since the 

present action could not have commenced prior to the Danbury Probate Court’s appointment of 

executors of the estate, Plaintiffs argue that the “substantial part of the events or omissions 

giving rise to the claim” was their appointment, which occurred in Connecticut. Section 

1391(a)(2) requires, however, that a “substantial part of the events or omissions giving rise to the 

claim” occur in the state for venue to be proper there. 28 U.S.C. § 1391(a)(2). The sequence of 

procedural steps resulting in the commencement of the lawsuit relied on by Plaintiffs are not the 

type of events that this section contemplates as “events or omissions giving rise to the claim,” 

nor have Plaintiffs submitted any case law that supports that proposition. In cases specifically 

dealing with car accidents between residents of different states, the location of the accident is the 

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determinative factor used by the courts in deciding where the “substantial part of the events 

giving rise to the claim” occurred. See Maldonado, 1998 WL 323483, at *1; see also Fanselow 

v. Rice, 213 F. Supp. 2d 1077, 1080 (D. Neb. 2002); Young v. Sullwold, 2000 WL 1448816, at 

*3 (E.D. Pa. Sept. 28, 2000); Syed v. Housel, 106 F. Supp. 2d 397, 399 (D. Conn. 2000); Zafonte 

v. Mattel, Inc., 2000 WL 516406, at *1 (E.D.N.Y. Mar. 20, 2000); Cunningham v. Hinds, 1999 

WL 112049, at *2 (E.D.N.Y. Oct. 4, 1999); Dwyer v. General Motors Corp., 853 F. Supp. 690, 

692 (S.D.N.Y. 1994). Pursuant to § 1391(a)(2), the facts are insufficient to prove that 

Connecticut is a location where a “substantial part of the events or omissions giving rise to the 

claim” occurred, and therefore venue cannot be successfully established there pursuant to § 

1391(a)(2). 

Since the District of Connecticut was an improper venue under § 1391(a), and there is 

proper venue in New York under § 1391(a)(1), the New York choice of law analysis must be 

utilized to determine which state’s substantive law will apply to this claim. Klaxon, 313 U.S. at 

496. 

At the time of the pre-trial order, the Court will expect briefing by the parties as to how, 

under the New York choice of law analysis, New York would determine damages when the 

accident occurred in New York and the parties are domiciled in Connecticut and New York. 

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CONCLUSION 

Since venue was improper in the District of Connecticut prior to thc transfer to this Court 

pursuant to 9: 1404(a), New York State's choice of law jurisprudence applies 

IT IS SO ORDERED. 

Dated: New York, New York 

August H, 2007 

Robert P. Patterson, Jr. 

U.S.D.J. 

Copy of this Opinion and Order sent to: 

Stratton Faxon 

59 Elm Street 

New Havcn. Connecticut 065 10 

Attn: Joel Faxon, Esq. 

Michael A. Stratton, Esq 

Tel: (203) 624-9500 

Fax: (203) 624-91 00 

Mcad. Hecht, Conklin & Gallagher, LLP 

109 Spencer Place 

Mamaroneck, New York 10543 

Attn: El~~abeth M.Hecht, Esq. 

Sara l,uca Salvi, Esq. 

Tcl: (914) 899-3 100 

Fax: (914) 899-3101 

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