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Girllawsuit

Girllawsuit

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT NEW YORK 
------------------------------------X 
 
LEONEL RUIZ, behalf his  
daughter, E.R., minor, 
   Plaintiff,   MEMORANDUM AND ORDER against    13-CV-1241 (KAM)(SMG) 
         
UNITED STATES AMERICA,     
   Defendant. 
 
------------------------------------X 
MATSUMOTO, United States District Judge: March 2013, Leonel Ruiz (plaintiff), behalf his minor daughter, E.R., filed this action against the United States (defendant Government), pursuant the Federal Tort Claims Act (FTCA), U.S.C.  2671 seq., claiming that March 11, 2011, United States Customs and Border Protection (CBP) Officers improperly detained E.R., United States citizen who the time was four years old, Washington Dulles International Airport (Dulles) Virginia and effectively deported her Guatemala following her arrival Dulles from Guatemala.  (ECF No. Complaint filed 3/8/13 (Compl.).)  Plaintiff brings claims false imprisonment, intentional infliction emotional distress, and negligence.  (See Compl. 13-16.) October 23, 2013, the United States moved dismiss the complaint for lack subject matter jurisdiction pursuant Federal Rule Civil Procedure 12(b)(1), or, the alternative, for judgment the pleadings under Federal Rule Civil Procedure 12(c), transfer the case the United States District Court for the Eastern District Virginia pursuant U.S.C.  1404(a).  (ECF No. 23, Motion Dismiss filed 10/30/13 (Govt Mot.); ECF No. 23-1, Govt Memorandum Support Motion Dismiss filed 10/30/13 (Govt Br.).)  Plaintiff opposes the Governments motions their entirety.  (ECF No. 24, Plaintiffs Opposition filed 10/30/13 (Pl.s Opp.).)    
  For the reasons stated herein, the court finds, based the current record before the court, that the actions the CBP Officers not fall within the discretionary function exception the Federal Tort Claims Act.  Accordingly, defendants motion dismiss for lack subject matter jurisdiction respectfully denied without prejudice renew based more fully developed record.  The court further finds that defendant has shown clear and convincing evidence that the interests justice would best served transferring this case the United States District Court for the Eastern District Virginia, and accordingly, defendants motion transfer venue granted.  Defendants remaining motion for judgment the pleadings will transferred the Eastern District Virginia.     
 
 
BACKGROUND 
  The facts, stated plaintiffs complaint and other documents properly considered the context Rule 12(b)(1) motion,1 are follows.  E.R. was born Long Island, New York June 2006.  (Compl. ECF No. 23-2, AUSA Kolbe Declaration filed 10/30/13 (Kolbe Decl.), Ex. 14-15.) February 12, 2010, E.R.s parents, Leonel Ruiz (Mr. Ruiz) and Brenda Dubon (Ms. Dubon), signed document stating that E.R. was authorized travel and from Guatemala with her maternal grandfather, Luis Dubon (Mr. Dubon).  (Kolbe Decl., Ex. Autorizacion dated 2/12/10.)  The document was written Spanish and notarized Suffolk County, New York.  (Id.)  The document listed E.R.s parents names, passport numbers (but country citizenship), well telephone number call case emergency.  (Id.)   Where subject matter jurisdiction challenged court may consider materials outside the pleadings, such affidavits, documents and testimony.  U.S. rel. Phipps Comprehensive Cmty. Dev. Corp., 152 Supp. 443, 449 (S.D.N.Y. 2001) (citing Kamen Am. Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). October 22, 2010, when E.R. was four years old, her parents sent her Guatemala for winter vacation with her relatives, that E.R. could spend time with her extended family, practice Spanish, and enjoy any health benefits from the warmer climate.  (Compl. 3.)  Approximately five months later, March 10, 2011, E.R. and Mr. Dubon boarded TACA Airlines (TACA) flight from Guatemala City, Guatemala, bound for John Kennedy International Airport (JFK) New York.  (Id.)  Due inclement weather, the flight was diverted Dulles, where E.R. and Mr. Dubon arrived between approximately 2:00 a.m. and 3:00 a.m. March 11, 2011.  (Id.) Dulles, E.R. and Mr. Dubon submitted their personal documents for inspection CBP agents.  E.R., who was traveling her valid United States passport, was authorized enter the United States approximately 3:45 a.m. when the examining CBP Officer stamped her passport.  (Id.)  Mr. Dubon presented the notarized document authorizing him travel with E.R.  (Id.)  The examining CBP Officer, finding what believed was irregularity Mr. Dubons documentation, directed Mr. Dubon secondary inspection area pending further investigation determine was admissible the United States.  (Id.)  E.R. accompanied Mr. Dubon this area.  (Id.)   
  Plaintiff alleges that for nearly fourteen hours, CBP Officers continued detain E.R. without contacting E.R.s parents, despite Mr. Dubons repeated requests so.2  (Compl. 5.)  Mr. Dubon, who was determined CBP officers non-citizen and denied admission the United States, was  According the Record Deportable/Inadmissible Alien completed CBP Officer, [a]ttempts contact the parents the minor were met with negative results. about 17:30 hours, March 2011 this office was able contact the minors father .  (Kolbe Decl., Ex. Record Deportable/Inadmissible Alien dated 3/11/11, 2.)  
not free leave the secondary inspection area and enter the United States.not free leave the secondary inspection area and enter the United States.not free leave the secondary inspection area and enter the United States.3  CBP Officials determined that Mr. Dubon was Guatemalan citizen, that was not possession valid visa border crossing identification card, and that had attempted fraudulently procure admission into the United States failing disclose that had previously been unlawfully present the United States.  (See Determination Inadmissibility.)   
  Meanwhile, waited JFK airport New York March 11, 2011, for the arrival E.R. and Mr. Dubon, Mr. Ruiz eventually learned that the TACA flight originally bound for JFK had been diverted Dulles, and that the passengers that plane would arriving JFK about 8:00 a.m. March 11.  (Compl. 6.)  After E.R. did not arrive with the other TACA passengers, Mr. Ruiz eventually learned from TACA employee that E.R. was being held Dulles CBP.  (Id.)   
  Later that day, approximately 5:30 p.m., CBP Officer contacted Mr. Ruiz his cellular phone notify him that Mr. Dubon was not permitted enter the United States and would sent back Guatemala.  (Id.)  The CBP Officer also told Mr. Ruiz that E.R. was being held CBP.  (Id.)  The CBP Officer asked for and was given Mr. Ruizs name and other identifying information about Mr. Ruiz and his wife.  (Id. 7.)  The CBP Officer informed Mr. Ruiz that E.R. would sent JFK soon suitable flight was found.  (Id.)   
  Plaintiff alleges that after the CBP Officer had spoken Mr. Ruiz telephone, unidentified woman approached E.R. and attempted induce E.R. leave her grandfather.  (Id.) result, E.R. fear[ed] that she was being taken from her family and was brought tears.  (Id.)  E.R. continued cry and refused accompany the woman, who soon left the area.  (Id. 8.)  Soon thereafter, Mr. Dubon began feeling unwell, and was taken the emergency room Reston Hospital Center approximately 6:30 p.m.  (Id.)  While Mr. Dubon was the hospital, E.R. was left with different unidentified woman, presumably TACA employee.  (Id.) approximately 8:00 p.m., while Mr. Dubon was still the hospital, CBP Officer again contacted Mr. Ruiz telephone.  (Id.)  Plaintiff alleges that the CBP Officer told Mr. Ruiz could not send E.R. flight New York because he was not allowed return E.R. illegals.  (Id. 8-9.)  Mr. Ruiz gave consent return E.R. Guatemala with her grandfather.  (Id. 9.)  Plaintiff alleges that CBP Officers forced Mr. Ruiz into giving consent send E.R. Guatemala threatening that otherwise CBP would send E.R. adoption center Virginia.  (Id.)  After the telephone call, approximately 9:30 p.m., Mr. Dubon returned Dulles airport from the hospital.  (Id. 8.)  
  E.R. and Mr. Dubon left for Guatemala early morning flight March 12, 2011.  (Id. 11.)  Plaintiff alleges that while E.R. was detained Dulles, she was not given adequate food drink and was fed only cookie and soda. (Id. 10.) addition, plaintiff alleges that E.R. was barely able sleep the cold room, and that CBP Officers failed provide her with blanket pillow.  (Id.) March 29, 2011, plaintiff flew back the United States accompanied local attorney.  (Id. 11.) April 2011, E.R. met with child psychologist New York, Dr. Roy Aranda, who concluded that the March 11, 2011 incident had traumatized E.R., and diagnosed E.R. with Posttraumatic Stress Disorder (PTSD).  (Id. 12.)4  Plaintiff now resides Guatemala, with current plans return the United States. (ECF No. 31, Letter from Plaintiffs Counsel dated 9/2/14.)   Plaintiff alleges that during E.R.s forced stay Guatemala, she had bouts hysterical crying and refused speak Mr. Ruiz over the telephone because she believed had not wanted come the airport pick her up.  (Id. 11.)  After E.R. returned the United States, she began overeat, throw tantrums, and soil her pants, hid when people knocked the front door, refused let her fathers hand when outside the house, and became frightened when the lights were off night.  (Id. 12.) 
DISCUSSION  Discretionary Function Exception and Subject Matter  Jurisdiction  
   
   Plaintiff brings this suit pursuant the Federal Tort Claims Act (FTCA), U.S.C.  2671 seq., which waives the sovereign immunity the United States limited circumstances. relevant part, the FTCA authorizes suits against the federal government recover damages  
for injury loss property, personal injury death caused the negligent wrongful act omission any employee the Government while acting within the scope his office employment, under circumstances where the United States, private person, would liable the claimant accordance with the law the place where the act omission occurred. 
 
Title U.S.C.  1346(b)(1).   
    One the exceptions the FTCAs waiver sovereign immunity the discretionary function exception, which provides that Congresss authorization sue the United States for damages does not apply any claim based upon the exercise performance the failure exercise perform discretionary function duty the part federal agency employee the Government, whether not the discretion involved abused. U.S.C.  2680(a).  The discretionary function exception marks the boundary between Congress willingness impose tort liability upon the United States and its desire protect certain governmental activities from exposure suit private individuals.  Berkovitz United States, 486 U.S. 531, 536 (1988) (quoting United States S.A. Empresa Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 808 (1984)).  Because the FTCA operates grant subject matter jurisdiction the federal courts, a finding that the discretionary function exception applies tantamount holding that the court lacks jurisdiction.  Caban United States, 671 F.2d 1230, 1235 n.5 (2d Cir. 1982).   
  Here, defendant moves, inter alia, pursuant Federal Rule Civil Procedure 12(b)(1) (Rule 12(b)(1)) dismiss plaintiffs FTCA claims the grounds that the actions the CBP Officers fall within the discretionary function exception, and that accordingly, the court lacks subject matter jurisdiction.  (See generally Govt Br.)   
  The plaintiff bears the burden establishing, preponderance the evidence, that the court retains authority adjudicate case.  Makarova United States, 201 F.3d 110, 113 (2d Cir. 2000); Loew U.S. Postal Serv., No. 03-CV-5244, 2007 2782768, (E.D.N.Y. Feb. 2007).  Generally, motion dismiss for lack subject matter jurisdiction under Rule 12(b)(1) reviewed under the same standard motion dismiss for failure state claim under Rule 12(b)(6), which requires court accept true the facts alleged the complaint, and draw all reasonable inferences favor the plaintiff.  Loew, 2007 2782768, *4.  Where, however, the jurisdictional challenge based the FTCA, the government receives the benefit any ambiguities.  Id.; Moreno United States, 965 Supp. 521, 524 (S.D.N.Y. 1997) (Because the FTCA creates waiver sovereign immunity, strictly construed and all ambiguities are resolved favor the United States.).  Subject matter jurisdiction must shown affirmatively, and that showing not made drawing from the pleadings inferences favorable the party asserting it.  APWU Potter, 343 F.3d 619, 623 (2d Cir. 2003) (internal quotation marks and citation omitted). plaintiff bears the initial burden state claim that not barred the DFE.  Neither the Second Circuit nor the United States Supreme Court has explicitly answered whether the United States plaintiff bears the ultimate burden proving the applicability the discretionary function exception.  See Charles Wright, Arthur Miller, Edward Cooper, Federal Practice and Procedure  3658.1 (3d ed. 1998) (collecting cases).  Other courts have held that the government bears the burden proving that the exception applies.  See, e.g., id.; Saint-Guillen United States, 657 Supp. 376, 387 n.5 (E.D.N.Y. 2009) (noting that once plaintiff satisfies the pleading requirement allege facts which would support finding that the challenged actions fall outside the exception, the burden shifts the government prove that the exception applies); Moltchatsky United States, 778 Supp. 421, 431 (S.D.N.Y. 2011) (same); King United States, 491 Supp. 286, 296 (D. Conn. 2007); Carboniero United States, 211 F.3d 749, 756 n.5 (3d Cir. 2000).   
facts which would support finding that the conduct the investigative agents fell outside the scope the exception.). Two-Pronged Discretionary Function Exception Test 
  Under the Supreme Courts Gaubert test, the discretionary function exception precludes suits against the United States only two conditions are met: (1) the acts alleged negligent must discretionary, that they involve element judgment choice and are not compelled statute regulation and (2) the judgment choice questions must grounded considerations public policy susceptible policy analysis.  Coulthurst United States, 214 F.3d 106, 109 (2d Cir. 2000) (citing United States Gaubert, 499 U.S. 315, 322-23 (1991) and Berkovitz, 486 U.S. 536-37)).  
  Under the first prong the test, it the nature the conduct, rather than the status the actor that determines whether challenged act discretionary.  Gaubert, 499 U.S. 322. there exists mandatory federal statute, regulation, policy that specifically prescribes course conduct for employee follow, the first prong the test requiring element judgment choice not met because the employee has rightful option but adhere the directive.  Berkovitz, 486 U.S. 536. there established explicit implicit governmental policy, policy allows government agent exercise discretion, then under the second prong the Gaubert test, the court must determine whether the conduct can said grounded the policy the regulatory regime, focusing not the agents subjective intent but the nature the actions taken and whether they are susceptible policy analysis.  Gaubert, 499 U.S. 325. there exists regulation allowing employee discretion, the very existence the regulation creates strong presumption that discretionary act authorized the regulation involves consideration the same policies which led the promulgation the regulations.  Gaubert, 499 U.S. 324 (internal citation omitted). the challenged conduct involved element judgment choice, then under the second prong the discretionary function exception test, that judgment choice must grounded considerations public policy susceptible policy analysis protected the discretionary function exception.  See Coulthurst, 214 F.3d 109; Gaubert, 499 U.S. 325-25; Varig Airlines, 467 U.S. 814 (noting that the discretionary function exception intended shield from judicial second-guessing judgments grounded social, economic, and political policy).  Accordingly, the second prong the test distinguishes between discretionary decisions that are grounded public policy considerations, and decisions that are made out carelessness laziness.  Gaubert, 499 U.S. 324-25, 325 n.7 (remarking that while government agent who drives car while government mission exercises discretion driving the car, any decisions made drive the car are not grounded public policy, and therefore the discretionary function exception would not protect negligent driving).  Application Discretionary Function Test 
  Plaintiffs complaint raises claims (1) false imprisonment based on, inter alia, the CBP Officers alleged detention E.R. for more than twenty hours, refusal contact E.R.s parents and allow her continue New York after she was admitted the United States, and the decision send E.R. back Guatemala; (2) intentional infliction emotional distress based the above actions, well the CBP Officers alleged threat send E.R. adoption center, the deprivation food and water, and keeping E.R. unsuitable conditions for four-year-old child; and (3) negligence, based the conditions which E.R. was kept and the CBP Officers alleged refusal contact E.Rs parents.   
  Applying the discretionary function exception test set forth Gaubert, the court first finds that the CBP Officers initial decision detain Mr. Dubon after failed establish his entitlement enter the United States was not discretionary.  Under the relevant provision the Immigration and Nationality Act (INA), immigration officer determines that alien who arriving inadmissible the officer shall order the alien removed without further hearing review. U.S.C.  1225(b)(1)(A)(i) (emphasis added).  Thus, because the statute mandates particular conduct, and the employee obey[ed] the direction, the Government will protected because the action will deemed furtherance the policies which led the promulgation the regulation.  Gaubert, 499 U.S. 324. Similarly, the CBP Officers decision admit E.R. into the country once they determined she was citizen traveling valid passport was required under the law and was not discretionary, which neither party has disputed.  See Caban, 671 F.2d 1234 (noting the basically mechanical duty ascertain whether applicant meets the minimal standards for entry into this country not protected the discretionary function exception). contrast, under Gaubert and Caban, the decision keep E.R. with Mr. Dubon while performing secondary inspection Mr. Dubon, the alleged failure contact E.R.s parents for fourteen hours and provide adequate food and care for E.R. during the approximately twenty hours she spent the secondary area, the alleged refusal send E.R. the next flight JFK reunite with her parents, and the CBP Officers alleged decision provide Mr. Ruiz one hour decide whether send E.R. back Guatemala adoption center, not fall within the discretionary function exception.  Absent from this record are any discernible social, economic, political policy considerations the regulatory statutory regime that would explain the CBP Officers decisions after they moved E.R. and Mr. Dubon the secondary area.   
    Plaintiff argues that CBPs treatment E.R. violated the Flores Reno Settlement Agreement (the Flores Agreement) regarding the detention minors, well its own internal policies, including the Office Border Protections Hold Room and Short Term Custody policy and the Office Field Operations Secure Detention, Transport and Escort Procedures Ports Entry.  (Id.; Pl.s Opp. 8-9.)   Under Gaubert, violations mandatory law regulation government officials fall outside the discretionary function exception.  499 U.S. 324.   
    The Flores Agreement class action settlement agreement from Flores Meese, No. 85-cv-4544 (C.D. Cal. Sept. 16, 1996), and binding the Department Homeland Security, which includes CBP.  See Bunikyte, rel. Bunikiene Chertoff, No. A-07-CA-164-SS, 2007 1074070, (W.D. Tex. Apr. 2007) (summarizing history and provisions Flores Agremeent); Flores Meese Stipulated Settlement Agreement dated 1/17/97 (Flores Agreement), Case No. 85-CV-4544-RJK, available https://www.aclu.org/sites/ default/files/ assets/ flores_settlement_final_plus_extension_of_settlement011797.pdf.  Although the Flores Agreement was intended stopgap measure until the United States could promulgate reasonable, binding standards for the detention minor[s], remains the only binding legal standard directly applicable the detention minor aliens the United States government.  Bunikyte, 2007 1074070, *2.  The Flores Agreement sets forth policy and conditions confinement relating the detention, treatment, and release unaccompanied minors CBP custody.  See generally Flores Agreement.  Although the Agreement arose out case challenging the detention standards alien minors government custody, its terms applies any person under the age eighteen (18) years who detained the legal custody the INS successor organizations.  Id.   Relevant here, the Flores Agreement requires minors held facilities that provide access drinking water and food appropriate, well adequate temperature control and ventilation.  Flores Agreement  12A.  The Agreement also expresses explicit policy favoring the release minors their parent legal guardian.  Flores Agreement  14. comply with the Flores Agreement, the CBP has established internal policies.  The CBPs Hold Room and Short Term Custody policy (Short Term Custody Policy), issued 2008, establishes the national policy for the short-term custody persons arrested detained Border Patrol Agents and detained hold rooms facilities that are under the control U.S. Customs and Border Protection.  See CBP Hold Rooms and Short Term Custody Policy (2008)  available http://foiarr.cbp.gov/ streamingWord.asp?i=378 (last accessed Sept. 15, 2014).  According the policy, meals must offered juvenile detainees every six hours, and two three meals must hot.  Short Term Custody Policy  6.8.  Juvenile detainees must also offered regular access snacks, milk, and juice.  Id.  Similarly, the CBPs Secure Detention, Transport, and Escort Procedures Ports Entry policy includes requirements for juveniles have access meals, snacks, and drinks any time.  See Department Homeland Security, Office Inspector General, CBPs Handling Unaccompanied Alien Children Report, Sept. 2010, available http://www.oig.dhs.gov/assets/ Mgmt/OIG_10-117_Sep10.pdf (last accessed Sept. 15, 2014).     
  Here, plaintiff alleges that CBP Officers refused contact E.R.s parents for fourteen hours, that E.R. was fed only cookie and soda during the twenty hour period, and that she was not provided with blanket pillow the cold holding area.  (Compl. 10.)  Thus, alleged plaintiff, the CBP Officers Dulles airport failed follow the explicit policies and procedures the Flores Agreement and the CBPs internal policies. immaterial whether the policies allow room for discretion act, because the result under Gaubert the same. the policies allow room for discretion and are mandatory, and the employee violates the mandatory regulation, there will shelter from liability because there room for choice and the action will contrary policy.  Gaubert, 499 U.S. 324. there established governmental policy, policies allow government agent exercise discretion, then under the second prong the Gaubert test, the court must determine whether the conduct can said grounded the policy the regulatory regime, focusing not the agents subjective intent but the nature the actions taken and whether they are susceptible policy analysis.  Id. 325.   
    Here, the Government has not disputed that the standard care expressed the Flores Agreement and the CBPs internal policies apply the CBP Officers treatment E.R. providing proper food, drink, and care.  (See generally Govt Br.; ECF No. 25, Govt Reply filed 10/30/13 (Govt Reply).)  Consequently, the court finds that the CBP Officers failed follow clear directive reunite E.R. with her parents without unnecessary delay and failed provide meal E.R. every six hours, and that the discretionary function exception cannot apply plaintiffs negligence claim based this record.   
    Moreover, even the binding guidance set the Flores Agreement and the CBPs internal policies did not apply the circumstances here, permitted the CBP Officers exercise discretion, the court would still find that under the second prong the discretionary function test, the CBP Officers treatment E.R. during the approximate twenty-hour period, cannot said susceptible policy analysis.  The court cannot discern how deciding wait fourteen hours before contacting E.R.s parents and only provide the child with cookie and soda over twenty hours could constitute considered judgment grounded social, economic, political policies.  See Gaubert, 499 U.S. 323.  Indeed, the Government has not offered any reason why the CBP Officers actions this regard were justified susceptible policy analysis.  Rather, based plaintiffs allegations, the CBP Officers actions appear more plausibly the result negligence laziness, and these acts not warrant the application the discretionary function exception.  Coulthurst, 214 F.3d 112 (holding that prison officials absent-minded lazy decisions failing inspect prison exercise equipment, alleged the complaint, are examples negligence that not involve considerations public policy (internal citation and quotation marks omitted)); Gaubert, 499 U.S. 325 n.7 (explaining that government officials negligent driving car while official business clearly falls outside the discretionary function exception not grounded public policy considerations). addition, plaintiff also seeks hold the Government liable for the CBP Officers alleged deportation E.R. alleged plaintiff, CBP Officers told E.R.s father that had less than hour decide whether allow them send E.R. Guatemala with her grandfather, they would send E.R. adoption center.  (Compl. 9.)  According the allegations the complaint, the CBP Officer told Mr. Ruiz that could not send E.R. flight New York because he was not allowed return E.R. illegals.  (Compl. 8-9 (emphasis added).)   
      The Government fails identify any policy, guideline regulation relating the situation admitted minor U.S. citizen being separated from her parents that would justify the application the discretionary function exception, and offers authority why CBP Officers could properly exercise discretion simply refusing reunite verified U.S. minor citizen with her biological and legal parents.  Indeed, despite the Governments arguments the contrary, appears that the CBP Officers did not question the identity Mr. Ruiz E.R.s father, they first promised reunite E.R. sending her flight from Dulles JFK, then reneged and obtained his permission send E.R. back Guatemala.  (Compl. 9.)     
  Thus, based the record before the court and the allegations the complaint being accepted true for the purposes this motion, and absent any explanation how discretion was being exercised the government pursuant what governmental regulatory policy, the court holds that the discretionary function exception does not apply plaintiffs claims regarding the treatment E.R. during the time she spent the secondary area Dulles.  Accordingly, the court finds there subject matter jurisdiction proceed, and denies the Governments motion dismiss under Rule 12(b)(1).  
II. Motion Transfer Venue  
  The Government requests, the alternative, transfer venue the United States District Court for the Eastern District Virginia pursuant U.S.C.  1404(a).6 The Government also argues that venue not proper the Eastern District New York. (Govt Br. 18-19.)  The court, however, disagrees, E.R. 
the real party interest whose residency, the time the action commenced, relevant for purposes venue. U.S.C.  1402(b) (Any civil action tort claim against the United States may prosecuted only the judicial district where the plaintiff resides wherein the act omission complained occurred.).  
(Govt Br. 20-24.)  Plaintiff opposes the motion transfer venue.  (Pl.s Opp. 23-30.)   
  Under U.S.C.  1404(a), [f]or the convenience parties and witnesses, and the interest justice, district court may transfer any civil action any other district division where might have been brought. U.S.C.  1404(a).  Section 1404(a) is intended prevent waste time, energy and money and protect litigants, witnesses and the public against unnecessary inconvenience and expense.  Rindfleisch Gentiva Health Sys., Inc., 752 Supp. 246, 250 (E.D.N.Y. 2010) (internal quotation marks, brackets, and citation omitted). district court has broad discretion making determinations convenience under Section 1404(a) and notions convenience and fairness are considered case-by-case basis.  Romano Banc Am. Ins. Servs., 528 Supp. 127, 129 (E.D.N.Y. 2007) (quoting D.H. Blair Co, Inc. Gottdiener, 462 F.3d 95, 106 (2d Cir. 2006)) (internal quotation marks omitted).  The party seeking transfer carries the burden making out strong case for transfer clear and convincing evidence.  N.Y. Marine Gen. Ins. Co. Lafarge Am., Inc., 599 F.3d 102, 114 (2d Cir. 2010) (quoting Filmline (Cross-Country) Prods., Inc. United Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989)) (internal quotation marks omitted). determining whether transfer venue, district court may only transfer (1) the plaintiff could have brought the case initially the proposed transferee forum; and (2) the transfer would promote the convenience the parties and witnesses and would the interests justice.  Coker Bank Am., 984 Supp. 757, 764 (S.D.N.Y. 1997) (internal quotation marks and citation omitted).  The factors considered determining whether grant motion transfer venue include: (1) the plaintiff's choice forum, (2) the convenience witnesses, (3) the location relevant documents and relative ease access sources proof, (4) the convenience parties, (5) the locus operative facts, (6) the availability process compel the attendance unwilling witnesses, and (7) the relative means the parties. Lafarge Am., 599 F.3d 112; Rindfleisch, 752 Supp. 250-51.  Other factors that may considered include the desirability having the case tried forum familiar with the substantive law applied, and the interests justice.  Modern Computer Corp. Ma, 862 Supp. 938, 948 (E.D.N.Y. 1994). single factor dispositive and there set formula for how apply them; instead, they should applied and weighed the context each particular case.  Rindfleisch, 752 Supp. 250-51.   
  First, regarding whether plaintiff could have initially brought this FTCA action the Eastern District Virginia, the court answers the affirmative.  Under the relevant provisions the FTCA governing venue, the Government can sued in the judicial district where the plaintiff resides wherein the act omission complained occurred. U.S.C.  1402(b).  Although E.R.s residence was the Eastern District New York the time the complaint was filed, the alleged acts occurred Dulles airport the Eastern District New York. whether transferring this action the Eastern District Virginia would promote the convenience parties and witnesses and serve the interests justice, the court turns the discretionary factors. Plaintiffs Choice Forum 
  Plaintiff chose bring this action the Eastern District New York rather than the Eastern District Virginia.  Although plaintiffs choice forum generally accorded some weight, is not entitled the weight generally accorded such decision where there lacking any material connection significant contact between the forum and the events allegedly underlying the cause action.  Cain N.Y.S. Bd. Elections, 630 Supp. 221, 227 (E.D.N.Y. 1986);  
accord. Hernandez Graebel Van Lines, 761 Supp. 983, 990 (E.D.N.Y. 1991).  Moreover, the weight given the plaintiffs choice less in the transfer context than forum non conveniens motion, since transfer motion does not seek dismissal the complaint.  Jones United States, No. 1017, 2002 2003191, (E.D.N.Y. Aug. 26, 2002) (granting motion transfer venue Southern District Georgia FTCA case where plaintiff, New York resident, alleged that had received inadequate medical care during his incarceration Georgia facility).   
  Therefore, although the court gives some weight plaintiffs choice forum, and finds that weighs against transfer, the court does not give plaintiffs choice great deference.   Convenience Parties and Witnesses and Availability Process Compel Attendance Unwilling Witnesses 
   
   The convenience party and non-party witnesses is probably considered the single most important factor the analysis whether transfer should granted.  Coker, 984 Supp. 765; Neil Bros. Ltd. World Wide Lines, Inc., 425 Supp. 325, 329 (E.D.N.Y. 2006).  The logical relevant starting point determining the convenience the parties their residence.  Neil Bros. Ltd., 425 Supp. 328. Because the core inquiry under  1404(a) where the center gravity the litigation located, courts routinely transfer cases when the principal events occurred, and the principal witnesses are located, another district.  Viacom Intl, Inc. Melvin Simon Prods., Inc., 774 Supp. 858,   868 (S.D.N.Y. 1991).  Generally, support motion transfer based the convenience the parties and witnesses, the movant submits affidavits the potential principal witnesses expected called and general statement the substance their testimony.  Laumann Mfg. Corp. Castings USA, Inc., 913 Supp. 712, 720 (E.D.N.Y. 1996) (internal quotation marks and citation omitted); Factors Etc., Inc. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), abrogated other grounds Pirone MacMillan, Inc., 894 F.2d 579 (2d Cir. 1990).   
  Here, defendant has identified eight witnesses, CBP Officers, who have first-hand knowledge about the events that occurred Dulles airport and which gave rise plaintiffs FTCA claims.7  (See Kolbe Decl., Ex. Affidavits Potential Witnesses.)  None the Governments eight witnesses resides   Plaintiff argues that defendants submitted affidavits not adequately apprise the court the witnesses likely testimony its probative value.  (Pl.s Opp. 25-26.)  The court, however, disagrees, only general statement the substance their testimony required.  See Laumann Mfg. Corp., 913 Supp. 720 (emphasis added).  The court finds that the affidavits adequately explain each witnesss role the alleged events and the general subjects about which each witness would testify.   
the Eastern District New York; indeed, all but one are stationed the Eastern District Virginia and not routinely travel the Eastern District New York for work.  (Id.) the time the complaint was filed, only E.R., her parents, and Dr. Aranda resided the Eastern District New York, and only E.R. and Mr. Ruiz witnessed were part any the events Dulles airport.  (See generally Compl.)  Moreover, E.R. has since moved Guatemala and presently has plans return the Eastern District New York.  (ECF No. 31, Letter from Plaintiffs Counsel dated 9/2/14.)  Accordingly, because only two potential witnesses, Mr. Ruiz and Dr. Aranda, currently reside the Eastern District New York, eight potential witnesses reside near the Eastern District Virginia, and E.R. does not reside the United States, the convenience the parties and witnesses weighs heavily favor transfer. the availability process compel the attendance unwilling witnesses, under Federal Rule Civil Procedure 45(c)(3)(B)(ii), district court can only subpoena non-party witnesses that are within its district within 100 miles the district. district court must quash modify subpoena that would require person travel beyond the geographical limits Rule 45(c).  Fed. Civ. 45(d)(3)(A)(ii).  This factor generally relevant only with respect third-party witnesses, because employee witnesses are subject compulsory process either forum virtue their employment relationship with party.  Pecorino Vutec Corp., 934 Supp. 422, 443 (internal quotation marks and citation omitted); Fuji Photo Film Co., Ltd. Lexar Media, Inc., 415 Supp. 370, 375 (S.D.N.Y. 2006).   
    Here, the only identified non-party witness Dr. Aranda, whom plaintiff appears rely upon for his expertise assessing plaintiffs mental and emotional condition.  Neither party has provided any affidavits stating that any prospective non-party witnesses would not appear this case remained the Eastern District New York were transferred the Eastern District Virginia.  Accordingly, this factor neutral.   Locus Operative Facts and Relative Ease Access Sources Proof  
   
   The locus operative facts primary factor motion transfer venue.  Fuji Photo Film, 415 Supp. 375 (citing ZPC 2000, Inc. SCA Grp., Inc., Supp. 274, 279 (S.D.N.Y. 2000)).  When determining the locus operative facts, district court must look the site events from which the claim arises.  Pecorino, 934 Supp. 440 (internal quotation marks and citation omitted).  This factor includes consideration the relative ease access the sources proof.  Pall Corp. PTI Techs., Inc., 992 Supp. 196, 200 (E.D.N.Y. 1998) (citations omitted). the principal events occurred and the principal witnesses are located another district, the locus facts provides strong reason transfer.  Jones, 2002 2003191, (quoting Berman Informix, Supp. 653, 658 (S.D.N.Y. 1998)).   
    Here, all the events giving rise plaintiffs FTCA claim occurred Dulles airport the Eastern District Virginia, and discussed supra, eight potential witnesses are located near the Eastern District Virginia.  Thus, virtually all the witnesses, documents, and events critical the litigation are the Eastern District Virginia.  Larca United States, No. Civ. 3952, 2012 6720910, (S.D.N.Y. Dec. 16, 2012) (transferring plaintiffs FTCA suit from the Southern District New York the Northern District Ohio, where alleged events occurred).  Plaintiff argues that E.R.s contact with Virginia was serendipitous and that she had no reasonable expectation that she would forced litigate Virginia vindicate her rights.  (Pl.s Opp. 27-28.)  This argument, however, unavailing, many courts have transferred cases different venues despite only serendipitous encounter between the plaintiff and the transferee forum.  See, e.g., Larca, 2012 6720910, (transferring venue from New York Ohio where plaintiff, New York resident, received medical treatment while incarcerated Ohio, and little nothing connects this case New York other than Plaintiffs domicile); Jones, 2002 2003191, (transferring FTCA case from New York Georgia where the basis plaintiffs claims alleging medical mistreatment occurred after was transferred Georgia prison).  Moreover, plaintiff has not cited any binding legal authority support this contention.  Thus, even recognizing that the physical evidence this case would likely consist documents that are easily transferred via electronic means, this primary factor still weighs heavily favor transfer. Relative Means Parties party opposing transfer because inadequate means must offer documentation show that transfer would unduly burdensome his finances.  Jones, 2002 2003191, (quoting Advance Relocation Storage, Inc. Wheaton Van Lines, Inc., No. 99-2491, 2000 33155640, (E.D.N.Y. Sept. 15, 2000)).  Here, plaintiff has filed declaration stating that [t]his action was commenced the Eastern District New York because the district which E.R. lives, and where will least costly and least difficult for Mr. Ruiz and E.R. maintain this action.  (ECF No. 28, Shapiro Declaration dated 10/16/13 (Shapiro Decl.), 2.)  The declaration also states that [t]he costs travel the Eastern District Virginia participate this lawsuit would financially burdensome for E.R.s family.  (Id.) stated before, E.R. longer lives the United States and has plans return.  However, the court also presumes that Mr. Ruizs means are modest compared the United States.  See Jones, 2002 2003191, *3.  Accordingly, this factor weighs against transfer.   Desirability Having Case Tried Forum Familiar  
   with Substantive Law Applied 
  
   While this factor not significant one, particularly where action does not involve complex questions, Schwartz Marriott Hotel Servs., Inc., 186 Supp. 245, 251 (E.D.N.Y. 2002), nevertheless judicially desirable have cases decided court familiar with the substantive law applied.  Hernandez, 761 Supp. 991; see also Kreisner Hilton Hotel Corp., 468 Supp. 176, 179 (E.D.N.Y. 1979) (While there may not novel complex issues State law resolved, construction State law best left courts most familiar with it.).   Under the FTCA, district court applies the law the place where the act omission occurred, U.S.C.  1346(b), which the parties agree Virginia state law.  (See Govt Br. 24; Pl.s Opp. 29.)       Because federal district court sitting the Eastern District Virginia would certainly more familiar with [Virginia] law than district court sitting New York, Jones, 2002 2003191, *4, this factor weighs favor transfer. Interests Justice  
  Balancing all the factors set forth above, the court concludes that the Government has clearly shown that the interests justice would best served transferring this case the Eastern District Virginia, where all the actions giving rise plaintiffs FTCA claims occurred, the vast majority witnesses are located, and which more familiar with the substantive state law applied.  Little connects this case the Eastern District New York other than that E.R.s fathers and Dr. Arandas domicile.    
   Consequently, the Governments motion transfer venue the Eastern District Virginia granted.   
 
CONCLUSION 
  For the foregoing reasons, the court respectfully denies the Governments motion dismiss the complaint for lack subject matter jurisdiction under Rule 12(b)(1), and grants the Governments motion transfer venue the Eastern District Virginia under U.S.C.  1404(a).  The Governments motion for judgment the pleadings shall transferred the Eastern District Virginia.  The Clerk Court respectfully requested transfer the case the United States District Court for the Eastern District Virginia. ORDERED. 
Dated: September 18, 2014 
Brooklyn, New York 
  
__________/s/_________________ 
KIYO MATSUMOTO 
United States District Judge 
Eastern District New York