The opinion of the court was delivered by: Stewart, District Judge:
This is a diversity action in which plaintiff International
Commodities Export Corporation ("ICEC") seeks a declaratory
judgment under 28 U.S.C. § 2201 and 2202 stating that it has
fully performed its obligations under a contract for the
shipment of beans to defendant. Defendant North Pacific Lumber
Company ("North Pacific") denies that the claim arose in the
Southern District of New York ("the Southern District"),
alleges that the complaint fails to state a claim, and denies
that this court has in personam jurisdiction over it. Further,
defendant counterclaims for breach of express and implied
warranty and seeks return of its payment to plaintiff, lost
profits and additional storage costs and fees.
Defendant now moves for an order pursuant to
28 U.S.C. § 1404(a)*fn1 changing the venue of this action to the District
of Oregon located in Portland, Oregon. For the reasons stated
below, we grant the order for change of venue.
Plaintiff ICEC is a Delaware corporation with its principal
place of business in Purchase, New York. ICEC is in the
business of importing and exporting various agricultural
products and commodities for distribution to and from
manufacturers and wholesalers around the country. See September
28, 1989 Affidavit of Robert Reynolds in Support of Motion for
Change of Venue ("Reynolds Affidavit") at ¶ 3.
Defendant North Pacific is an Oregon corporation which has
its principal place of business in the county of Multnomah, in
the city of Portland, Oregon. North Pacific, through its
various divisions, among other things, buys and sells
agricultural products and commodities in the wholesale market.
Id. at ¶ 4.
The major facts in this case are not disputed. In July 1988
ICEC from its White Plains office sent for inspection a packet
of sample small Chinese white beans to North Pacific at its
office in Portland, Oregon. The sample was identified as
"Sample PC-16." Defendant alleges that ICEC represented that
these beans were of a quality sufficient to permit their
importation into the United States. Reynolds Affidavit at ¶ 5.
In September 1988 the beans were shipped from Hong Kong to
Portland aboard two separate ships. Plaintiff alleges that the
beans were of the agreed-upon quantity and condition when
placed at the disposal of two vessels in Hong Kong for shipment
to Portland, Oregon. Id. The shipments were preceded by the
documentation required by the terms of the purchase order and
confirmation. Reynolds Affidavit ¶ 6. By wire transfers dated
September 16, 1988 and October 25, 1988, respectively, North
Pacific paid ICEC $129,190.50 for the beans, based on receipt
of the required documentation. Id. at ¶ 7.
North Pacific claims that upon physical inspection of the
beans, they discovered that the beans were of inferior quality
with the presence of filth, mold and discoloration.
Id. at ¶ 8. Defendant alleges that the beans were not of a
minimum quality necessary for importation into the United
States and were consequently detained in Portland, Oregon by
the U.S. Food and Drug Administration ("FDA"). Id. Agents of
the FDA conducted physical inspection and tests of the beans.
Defendant alleges that upon notifying ICEC of the problem with
the beans, plaintiff sent its representative, Mr. Jim Lenti, to
Portland. Id. at ¶ 8. According to defendant Mr. Lenti agreed
that the beans were of a lower quality than that evidenced by
Sample PC-16. Id.
Meanwhile, rather than reject the shipment immediately, North
Pacific sought, allegedly at ICEC's urging, to obtain FDA
approval of a plan to "recondition" the beans in order to bring
them up to import standards. Id. at ¶ 9. This plan has been
unsuccessful. The government has refused to lift the detention
order, and the beans have been stored in a warehouse in
On July 3, 1989 North Pacific notified ICEC by letter that it
was rejecting the shipments for failure to conform with Sample
PC-16 as warranted by ICEC. Id. Defendant demanded repayment of
the $129,190.50 purchase price, as well as interest and storage
costs amounting to $8000 and increasing at the rate of $1000
per month. Pltf's Memo at 4.
The threshold question in a motion to transfer is whether, as
required by § 1404(a), the action could have been brought in
the transferee forum. See In re Air Crash Disaster at John F.
Kennedy International Airport, 479 F. Supp. 1118, 1123 (E.D.N Y
1978). Defendant North Pacific is an Oregon corporation with
its principal place of business located in Portland, Oregon.
Although in its answer to the complaint North Pacific refuses
to concede that this court has personal jurisdiction over it
under § 302(a)(1) of New York's long-arm statute, it does agree
that the District of Oregon clearly has personal jurisdiction
over North Pacific. See October 2, 1989 Defendant's Memorandum
of Law in Support of Motion for Change ...