from its Portland office addressed to ICEC at its New York
office ordering 200 metric tons of small Chinese white beans
"as per sample no. PC-16." Id. Delivery was to be to Los
Angeles, California. ICEB was to provide a weight certificate,
quality certificate, certificate of origin and bill of lading.
Id. Shortly thereafter"on August 4, 1988 the parties changed
some terms of the agreement through telephone communication.
The quantity purchased was increased to 230 metric tons, the
price was increased to $570 per metric ton, and the place of
delivery was changed to Portland, Oregon. Id. Plaintiff alleges
that the terms were "CANDF Liner Terms Portland Oregon." Pltf's
Memo at 3.
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 of Venue ("Deft's Memo
for Change of Venue") at 6 n.* Thus, we conclude that this
action could have been brought in the transferee forum, the
federal court for the District of Oregon.
Section 1404(a) allows a court in its discretion to transfer
a civil action to any other district where the action may have
been brought when the court is satisfied that the transfer is
"for the convenience of parties and witnesses, in the interest
of justice." 28 U.S.C. § 1404(a). Generally plaintiff's choice
of forum is entitled to
great weight and should rarely be disturbed unless the balance
of several factors is strongly in favor of defendant. See Gulf
Oil Corp v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91
L.Ed. 1055 (1947). The burden is on the movant to show why the
transfer is warranted. 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). However, that choice
should be accorded less weight to the degree that the case's
operative facts have little or no connection with the
transferor forum. See Uddyback v. New Jersey Transit Rail
Operations, 629 F. Supp. 1173 (S.D.N.Y. 1986).
The criteria weighed by a court in deciding a motion under
section 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. See Goodman v. Schmalz, 80 F.R.D. 296, 301
(E.D.N.Y. 1978) (citations omitted). The burden is on the
movant to make a "clear showing" that litigation in the
proposed transferee district would be more convenient and would
better serve the interests of justice. See Schneider v. Sears,
265 F. Supp. 257, 263 (S.D.N.Y. 1967). In the instant case the
defendants have made such a showing.
Defendant North Pacific asserts that venue should be changed
to Portland, Oregon because this suit arises out of a
transaction which has no nexus to the state of New York.
Further, it alleges that all the nonparty witnesses and
physical evidence are located in or around Portland, Oregon.
Thus, defendant argues that all sources of proof are within the
subpoena power of the U.S. District Court for the District of
Oregon. Deft's Memo at 1.
Plaintiff counters by pointing out that defendant has
consented to be sued in the Southern District by registering to
do business in New York, and that defendant therefore has no
claim to inconvenience in litigating a lawsuit in this
district. Pltf's Memo at 6-7. Further, plaintiff alleges that
defendant maintains an office in New York County. Id. at 6.
Second, plaintiff argues that defendant's own theory of this
case depends on "crucial events" which took place in the
Southern District, namely the communications with ICEC's office
in arranging the tender, bid and sampling of the beans and in
later protesting the shipment. Id. at 9. It was through
plaintiff's New York office that the representations as to
quality were made. The purchase order was also sent there. Id.
Finally, plaintiff argues that the location and condition of
the physical evidence is irrelevant now, since plaintiff
asserts that it was responsible for the condition of the beans
only at the time of placement aboard ships in Hong Kong.
Id. at 12.
Defendant North Pacific asserts that the convenience of both
the parties and that of material witnesses weigh in favor of
venue in Oregon. We agree. Defendant has named six witnesses
from the Portland, Oregon area or from Seattle (172 miles from
Portland) and has indicated the subject of their likely
testimony.*fn3 See November 15, 1989 Defendant's Reply
Memorandum of Law in Further Support of Motion for Change of
Venue ("Deft's Reply Memo") at 2-3. Defendants also cite the
need for testimony from three other inspectors or analysts from
the FDA's Seattle laboratory whose names were not available but
who would be expected to testify about the tests they conducted
on the samples of the beans after delivery to defendant. Id.
at 3. Thus, defendants have cited nine witnesses who either
reside or work in the Portland or Seattle area.
With respect to the convenience of defendant's witnesses from
the FDA, plaintiff asserts that the testimony of the government
inspectors from Seattle/Portland is "peripheral and
cumulative." Pltf's Memo at 4. Plaintiff cannot dispute,
however, that to the extent that FDA inspectors are called the
balance tips in favor of Portland.
Defendant also argues that there are representatives of the
Hong Kong shippers who issued the certificates of inspection
which preceded the delivery of the beans to Portland.
Id. at 4. The Hong Kong witnesses may also be of interest to
the plaintiff, since plaintiff's position is that the only time
the quality of the beans was relevant to this action was the
moment they were delivered for shipment at a Hong Kong port,
certified to the sample and released from the possession or
control of plaintiff. Pltf's Memo at 13.
In contrast, plaintiff names only one witness in New York who
is likely to be called upon to testify, Mr. Jim Lenti, an
employee of ICEC. In addition, plaintiff refers to its
employees who allegedly made statements to defendant
(representations as to quality), who will provide relevant
testimony. Pltf's Memo at 10. Plaintiff argues that the crucial
witnesses are from Hong Kong because the condition of the beans
upon their delivery to Portland is "of little import."
Id. at 12. And since New York is only "500 air miles" farther
from Hong Kong than Portland, the witnesses would not be any
more inconvenienced by coming to New York. Id. We agree that
while the added travel is slight the balance does tip slightly
in favor of Portland nevertheless.
In sum, we find that with regard to the convenience of
witnesses the weight of evidence is in favor of moving this
case to Portland. Regardless of whether the legal issue turns
on the condition of the beans in Hong Kong or their condition
on arrival in Portland, in both instances the nonparty
witnesses are closer to Portland than New York.
With regard to the factors of relative ease of access to
sources of proof and where the events in issue took place,
Portland is also more convenient than New York. The examination
of the beans on arrival took place there. Information about the
shipping containers and shipping conditions are more convenient
to Portland. Furthermore, the beans are presently still
physically located there. In contrast, the only events taking
place in New York are telephone conversations and the receipt
of the purchase order by ICEC. As discussed above, the content
of these conversations and the documents will be important in
determining the nature of the representations made regarding
the quality of the beans. However, the documents should be
easily obtained and plaintiff's one or two employees made
available for testimony. Therefore, because more events
involving more people and records relevant to this case took
place in Portland than in New York,*fn4 we find that the
balance tips in favor of Portland in considering access to
sources of proof and where the events at issue took place.
With respect to the criterion of calendar congestion, there
has been no argument that one forum is more or less congested
than the other. Thus, on this factor the balance remains equal.
In sum, in the interest of justice and for the convenience of
witnesses and access to sources of proof, we find that the
weighs in favor of transferring this case to Portland, Oregon.
For the above reasons, we grant defendant's motion for a
change of venue and order that this case be transferred to the
United States District Court for the District of Oregon.