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is hereby rescinded.
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.
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 . . .
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