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TOWN OF WARWICK v. NEW JERSEY DEPT. OF ENVTL. PROT

November 7, 1986.

TOWN OF WARWICK, NEW YORK; Eugene Levy; Jared C. Bark; Paul De Coste; Warwick Against Radioactive Dump; Township of Montclair; Dorothy Tascoe; Harriette Nash; Township of West Orange and Hollis Reaves, Plaintiffs,
v.
NEW JERSEY DEPARTMENT OF ENVIRONMENTAL PROTECTION and Richard T. Dewling, as Commissioner of the New Jersey Department of Environmental Protection, Defendants.



The opinion of the court was delivered by: KEENAN

KEENAN, District Judge:

FACTS

This case concerns an environmental hazard posing a grave health risk. At issue is the emission of radon gas from soil surrounding homes in the New Jersey towns of Montclair, Glen Ridge and West Orange. The New Jersey Department of Environmental Protection ("DEP") became aware of these emissions in late 1983. After obtaining an $8 million appropriation from the New Jersey Legislature, the DEP undertook remedial efforts that involved excavating the soil, drumming it, and then having it disposed of. The action currently before the Court arises out of this clean-up program.

 On July 8, 1986, the DEP announced it would ship 14,500 steel barrels of soil contaminated with radioactive radium to a site in Vernon, New Jersey. This location is roughly one and half miles from the New York/New Jersey border, and the Town of Warwick, New York, a plaintiff in the case. The site is on porous soil, and is over an aquifer that supplies water to the Town of Warwick. *fn1"

 Plaintiffs instituted this action on July 21, 1986 seeking preliminary and permanent injunctive relief that would prevent the defendants from transporting and dumping the soil to the site in Vernon, New Jersey. On July 25, 1986, a virtually identical action was commenced against the DEP by the County of Orange, New York, in the United States District Court for the District of New Jersey, Trenton Division. The Town of Warwick is located within Orange County. Before this Court is defendants' motion to transfer this case to the United States District Court in Trenton, pursuant to 28 U.S.C. § 1404(a), or in the alternative, to stay any action in this case pending the outcome of a New Jersey state court action dealing with the same subject.

 DISCUSSION

 I. Change of Venue

 There are several factors to be considered when addressing a motion to change venue under section 1404(a). *fn2" These include the convenience of the parties and witnesses, the relative ease of access to the sources of proof, the availability of process to compel attendance of unwilling witnesses, considerations of trial efficiency and the furtherance of the interests of justice. See O'Neill v. Stanwood Corp., 577 F. Supp. 1001, 1003 (S.D.N.Y.1984) (quoting Y4 Design, Ltd. v. Regensteiner Pub. Enterprises, 428 F. Supp. 1067, 1068-69 (S.D.N.Y.1977)). In addition, considerable weight should be given to the plaintiffs' choice of forum. See Golconda Mining Corp. v. Herlands, 365 F.2d 856, 857 (2d Cir.1966). Before a section 1404(a) motion is granted, the moving party must make a clear showing that transfer is appropriate. See Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978), cert. denied, 440 U.S. 908, 99 S. Ct. 1215, 59 L. Ed. 2d 455 (1979). The defendants in this case have failed to meet this burden, and therefore, the motion to change venue is denied.

 The plaintiffs' lawsuit has been brought pursuant to the Resource Conservation and Recovery Act, 42 U.S.C.A. § 6972 (1982 & 1986 Supp.), which contains its own venue provision. The Act provides that an action "shall be brought in the district court in which the alleged violation occurred or the alleged endangerment may occur." 42 U.S.C.A. § 6972(a) (1986 Supp.). The alleged endangerment in this case is the possibility of the radium in the transported soil making its way into the aquifer which supplies water to Warwick. Thus, venue is proper in the Southern District. The issue then becomes whether venue would clearly be more appropriate in the District of New Jersey, Trenton Division.

 When weighing the relevant factors pertinent to a section 1404(a) motion, no single factor is predominant. Instead, all of the factors should be seriously scrutinized. A balancing of the considerations in this case reveals that venue is as proper in this district, as in the District of New Jersey.

 All but one of the original plaintiffs reside within the Southern District of New York; the non-resident plaintiff assists in the maintenance of a hiking trial within the district. *fn3" The defendant's principal office is in Trenton, New Jersey. While the defendant would be required to travel approximately 70 miles to New York, the plaintiffs, on the other hand, would be forced to travel approximately 80 miles to Trenton, if the case were transferred there, and roughly 50 miles if the case remains here. Thus, there is no reason to believe that Trenton is a greatly more convenient forum based on the location of the parties. Similarly, the location of witnesses does not point to Trenton as a more appropriate forum. This circuit requires that a party moving under section 1404(a) based on the convenience of witnesses "clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover." Pro Arts, 579 F.2d at 218. The defendants have failed to satisfy this requirement stating vaguely in their brief that the Commissioner of the DEP might be called as a witness. See Defendants' Br. at 14. No mention is made of what subjects the Commissioner's testimony would cover. Defendants have failed to show how witnesses would be greatly inconvenienced by this Court retaining jurisdiction.

 The defendants' contentions regarding access to sources of proof are equally unpersuasive. They claim that numerous documents will be relied on, and that these documents are located in Trenton. Yet, there is no reason why copies of these documents could not be made for use in the Southern District.

 However, of great concern to the Court is the possibility of duplicative litigation and the waste of judicial resources. On July 25, 1986, four days after the instant case was filed, the County of Orange instituted a similar suit in the United States District Court for the District of New Jersey, Trenton Division. As the Supreme Court has wisely stated, "[t]o permit a situation in which two cases involving precisely the same issues are simultaneously pending in different District Courts leads to the wastefulness of time, energy and money that § 1404(a) was designed to prevent. Moreover, such a situation is conducive to a race of diligence among litigants for a trial in the District Court each prefers." Continental Grain Co. v. The Barge FBL and Federal Barge Lines, Inc., 364 U.S. 19, 26, 80 S. Ct. 1470, 1474, 4 L. Ed. 2d 1540 (1960). This Court is extremely sensitive to the judicial risks caused by the pendency of two very similar actions in two different districts. Although the best approach for the parties and the courts would be consolidation pursuant to Federal Rule of Civil Procedure 42(a), that rule is inapplicable when cases are pending in different districts. See Wright & Miller, Federal Practice and Procedure: Civil § 2382 at 257 (1971).

 Clearly, these two cases could be consolidated. The first step, however, is their presence in the same district. The records from the United States District Court for the District of New Jersey indicate that neither a section 1404(a) decision has been issued, nor that any such motion has been made. While this Court obviously expresses no view as to whether a section 1404(a) motion is appropriate in the federal case in Trenton, this Court declines to deviate from the Second Circuit's view that "as a matter of sound judicial administration the first suit should have priority, 'absent the showing of balance of convenience in favor of the second action.'" See William Gluckin & Co. v. International Playtex Corp., 407 F.2d 177, 178 (2d ...


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