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AQUATIC AMUSEMENT v. WALT DISNEY WORLD

April 5, 1990

AQUATIC AMUSEMENT ASSOCIATES, LTD., PLAINTIFF,
v.
WALT DISNEY WORLD CO., HEERY INTERNATIONAL, INC., HEERY ARCHITECTS AND ENGINEERS, INC., HEERY ARCHITECTS, ENGINEERING AND PLANNING, INC., HEERY ARCHITECTS AND ENGINEERS, INC., AND HEERY ENGINEERING, INC., DEFENDANTS.



The opinion of the court was delivered by: McCURN, Chief Judge.

MEMORANDUM-DECISION AND ORDER

Defendant Heery International Inc. ("Heery") has moved for reconsideration of this court's bench decision of February 6, 1990. Defendant asserts that the court gave undue consideration to the plaintiff's choice of forum when making its determination to deny its motion to transfer the venue of this action to the Middle District of Florida. The parties have not placed any additional factual assertions or new case law before the court. Rather, defendant Heery simply asserts that the law was wrongfully applied. In its response, plaintiff has essentially rested on the litigation papers it filed in opposition to the original motion to transfer.

On March 28, 1990, the court issued an order which denied the defendant's motion for reconsideration on the grounds that it was untimely filed under Rule 10(m) of the Local Rules of the Northern District of New York. After discussion with counsel it appears that the motion for reconsideration was filed in a manner and time which warrants that it be considered on the merits. Therefore, the March 28, 1990, order is hereby rescinded.

Background

This suit arises out of the design and construction of the Typhoon Lagoon water park at Disney World near Orlando, Florida. On October 3, 1989, the court heard and denied defendant Walt Disney World Company's ("Disney") motion to dismiss for lack of personal jurisdiction. Presently before the court is a motion by the other defendant, Heery International Inc., to reconsider the court's February 6, 1990, denial of its motion to transfer this action to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). Disney has submitted a short memorandum and affidavit in support of Heery's original motion.

Legal Standard

Title 28 U.S.C. § 1404(a), which governs the transfer of civil cases, states:

  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.

The threshold question in a motion to transfer is whether the action could have been brought in the district to which transfer is sought. Arrow Electronics, Inc. v. Ducommun Inc., 724 F. Supp. 264, 265 (S.D.N.Y. 1989). Where, as here, the jurisdiction of the court is based on the diverse citizenship of the parties, the action may be brought "only in the judicial district where all the plaintiffs or all defendants reside, or in which the claim arose." 28 U.S.C. § 1391(a). This court has recently had the opportunity to thoroughly review the case law governing a motion to transfer. In Pellegrino v. Stratton Corp., 679 F. Supp. 1164 (N.D.N.Y. 1988) this court stated:

    A motion to transfer . . . is addressed to the
  sound discretion of the court. . . . It is well
  settled that the burden is on the defendant, when
  it is the moving party, to establish that there
  should be a change of venue. . . . A
  discretionary transfer under [section] 1404(a)
  "will not be granted `[a]bsent a clear cut and
  convincing showing by defendant[s] that the
  balance of convenience weighs strongly in favor
  of the transferee court . . .'" Vassallo v.
  Niedermeyer, 495 F. Supp. 757, 759 (S.D.N.Y. 1980).
    The factors relevant to the determination of
  whether this action should be transferred . . .
  include:
    the convenience to parties; the convenience of
    witnesses; the relative ease of access to
    sources of proof; the availability of process
    to compel attendance of unwilling witnesses;
    the cost of obtaining willing witnesses;
    practical problems that make trial of a case
    easy, expeditious, and inexpensive; and the
    interests of justice.
  Id. Further, in this circuit, when a party seeks a
  transfer based on convenience of witnesses pursuant
  to [section] 1404(a) he must clearly specify the
  key witnesses to be called and must make a general
  statement of their testimony. . . . That is so
  because convenience to the witnesses is a very
  important factor. In addition to the factors listed
  above, the relative financial hardship on the
  litigants and their respective abilities to
  prosecute or defend an action in a particular forum
  are legitimate factors to consider. . . . The
  ...

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