The opinion of the court was delivered by: NEAHER
This removed action to recover for personal injuries allegedly sustained by plaintiff while a passenger on one of defendant's busses is now before the court on defendant's motion pursuant to 28 U.S.C. § 1404(a) to transfer this case to the Eastern District of Virginia and plaintiff's cross-motion for partial summary judgment, Rule 56(c), F.R.Civ.P. For the reasons which follow, the court declines to grant summary judgment and holds that the convenience of parties and witnesses and the interest of justice require that the action be transferred.
The following facts appear to be undisputed. Plaintiff purchased a round-trip passenger ticket to Norfolk, Virginia, at defendant's bus terminal in New York City on the evening of February 7, 1978, for the purpose of attending the funeral of her sister-in-law. Shortly after 4:30 A.M. the next morning, while travelling on U.S. Route 13 south of Wierwood, Virginia, defendant's bus collided with a snowplow truck owned by the Virginia Department of Highways and Transportation and operated by the Department's employee, Calvin Morris. As a result of the accident, plaintiff sustained personal injuries and was admitted to Norfolk General Hospital in Virginia, where she remained for treatment until March 2, 1978. The driver of defendant's bus, Joseph Verbitski, was found guilty of improper driving and fined $ 50.00 by the General District Court for the County of Northampton, Virginia, on March 3, 1978.
We deal first with plaintiff's cross-motion for summary judgment. Summary judgment may be rendered only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), F.R.Civ.P. Pursuant to the 1963 amendments, Rule 56(e) provides that when a motion for summary judgment is supported by proper affidavits, "an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."
In determining whether to grant a motion for summary judgment, the court "cannot try issues of fact; it can only determine whether there are issues to be tried." American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2 Cir. 1967), quoted in Securities Exchange Commission v. Research Automation Corp., 585 F.2d 31, 33 (2 Cir. 1978). It must accept as true factual statements in the opposing party's affidavits, draw all permissible inferences in that party's favor, Hill v. A-T-O, Inc., 535 F.2d 1349 (2 Cir. 1976), and resolve any doubts in favor of the latter, American Mfrs. Mut. Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., supra. "The very mission of the summary judgment procedure (however) is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial." Adv.Com. Note to Proposed Amendments to Rule 56(e), 31 F.R.D. 648 (1962). See generally Applegate v. Top Associates, Inc., 425 F.2d 92 (2 Cir. 1970); Donnelly v. Guion, 467 F.2d 290, 292 (2 Cir. 1972).
In the context of actions alleging a defendant's negligence, summary judgment is only rarely granted since the existence or non-existence of negligence is to be determined by the appropriate trier of fact's application of the "reasonable man" standard, and therefore genuine issues of fact are almost always presented. Mertens v. Agway, Inc., 278 F. Supp. 95, 99 (S.D.N.Y.1967). See, e.g., In re M/T Alva Cape, 405 F.2d 962, 967 (2 Cir. 1969); Samuels v. Health and Hospitals Corporation of the City of New York, 432 F. Supp. 1283 (S.D.N.Y.1977). Issues concerning negligence, such as observance of due care and the avoidability of an accident, are ordinarily not susceptible to summary adjudication, Arney v. U. S., 479 F.2d 653 (9 Cir. 1973); Willetts v. General Telephone Directory Co., 38 F.R.D. 406 (S.D.N.Y.1965), and even where plaintiff appears to have established a prima facie case, if defendant has submitted an explanation in opposition the determination regarding negligence should not be taken away from the jury by a grant of summary judgment. Noth v. Scheurer, 285 F. Supp. 81 (E.D.N.Y.1968).
In support of her motion for summary judgment, plaintiff has submitted the certified transcript of the proceeding wherein the General District Court for the County of Northampton, Virginia, found the driver of defendant's bus guilty of improper driving. In response, defendant has come forward with the driver's affidavit and accident report, filed with defendant shortly after the incident, which, although at least in part contradicted by testimony and cross-examination in the Virginia proceeding, may raise issues of material facts concerning the road and weather conditions at the time of the accident. Plaintiff argues that the Virginia court's finding of guilty necessarily implied a rejection of the driver's version of the accident and, therefore, that defendant has not come forward with sufficient showing of a genuine issue of fact to forestall summary judgment on the issue of liability for negligence.
It is true that under Virginia law violation of one or more of the criminal statutes defining reckless driving is evidence of negligence sufficient to establish a prima facie case for plaintiff in a civil action if such negligence was the proximate cause of the injury sustained. Richardson v. Commonwealth, 192 Va. 55, 63 S.E.2d 731 (1951); White v. Doe, 207 Va. 276, 148 S.E.2d 797 (1966). However, the driver was found guilty of the lesser violation of improper driving pursuant to Va.Code § 46.1-192.2, which authorizes a Virginia trial court, in its discretion, to make such a finding in a prosecution for reckless driving "where the degree of culpability is slight." Plaintiff has not offered, nor has the court found, authority for the proposition that a Virginia conviction for improper driving is sufficient evidence to establish a civil plaintiff's prima facie case of negligence. Moreover, even if the driver's conviction could be shown to require such a finding, this court might still find it difficult to say, resolving all ambiguities and drawing all reasonable inferences in its favor, Heyman v. Commerce and Industry Co., 524 F.2d 1317, 1319 (2 Cir. 1975), that defendant's submissions in opposition to plaintiff's cross-motion are too incredible to be accepted by reasonable minds and therefore insufficient to avoid a grant of summary judgment for plaintiff. Price v. Worldvision Enterprises, Inc., 455 F. Supp. 252, 266 (S.D.N.Y.1978). See Arnstein v. Porter, 154 F.2d 464, 469 (2 Cir. 1945).
However, these issues will involve determinations of State law which we believe a district court sitting in Virginia is in a better position to make than this court. Vaughn v. American Basketball Assn., 419 F. Supp. 1274, 1278 (S.D.N.Y.1976). Under these circumstances, and in the light of our decision to transfer the action to the Eastern District of Virginia, the court is of opinion that the better course is to decline to rule on plaintiff's cross-motion for partial summary judgment and leave its resolution to the court which will be responsible for the final disposition of the entire case. See, e.g., Hercules Co. v. S. S. Aramis, 226 F. Supp. 599 (D.C.La.1964); U. S. v. Swift & Co., 158 F. Supp. 551 (D.D.C.1958); Anthony v. RKO Radio Pictures, 103 F. Supp. 56 (S.D.N.Y.1951).
Turning next to defendant's motion to transfer, 28 U.S.C. § 1404(a) provides:
"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."
Plaintiff is a citizen of New York. Defendant is a citizen of California and Arizona, and does business in Virginia. Since the cause of action arose in Virginia, and diversity of citizenship exists, the action could originally have been brought in Virginia. It is also clear that a removed action may be transferred to a more appropriate district. See Benton v. Elkins, Weems and Searls, 255 F.2d 299 (2 Cir.), cert. denied, 358 U.S. 885, 79 S. Ct. 123, 3 L. Ed. 2d 113 (1958).
While a motion to change venue is directed to the sound discretion of the district court, Goldstein v. Rusco Industries, Inc., 351 F. Supp. 1314, 1316 (E.D.N.Y.1972), a plaintiff's choice of venue should not be lightly upset. A Olinick & Sons v. Dempster Bros. Inc., 365 F.2d 439 (2 Cir. 1966). The criteria weighed by a court in deciding a motion under § 1404(a) are: (1) convenience of the parties; (2) convenience of material witnesses; (3) availability of process to compel the presence of unwilling witnesses; (4) the cost of obtaining the presence of witnesses; (5) the relative ease of access to sources of proof; (6) calendar congestion; (7) where the events in issue took place; and (8) the interests of justice in general. Goodman v. Schmalz, 80 F.R.D. 296 (E.D.N.Y.1978); Scheinbart v. Certain-Teed Products Corp., 367 F. Supp. 707 (S.D.N.Y.1973). The burden is on the movant to make a clear-cut showing that the balance of conveniences and the interests of justice favor a trial in the proposed transferee forum. Y 4 Design, Ltd. v. Regensteiner Publishing Enterprises, Inc., 428 F. Supp. 1067 (S.D.N.Y.1977). Defendant here has made such a showing.
Although plaintiff's choice of forum normally would be entitled to considerable weight, the deference due her choice is seriously undermined by the factor that none of the conduct complained of in this action occurred in this district. Chicago, R. I. & P. R. Co. v. Igoe, 220 F.2d 299 (7 Cir.), cert. denied, 350 U.S. 822, 76 S. Ct. 49, 100 L. Ed. 735 (1955); Goodman v. Schmalz, supra; Foster v. Litton Industries, Inc., 431 F. Supp. 86 (S.D.N.Y.1977). It is clear that defendant's alleged negligence in the control and operation of its bus on the morning of February 8, 1978 must have taken place, if anywhere, in ...