The opinion of the court was delivered by: Kram, District Judge.
MEMORANDUM OPINION AND ORDER
This is an action in diversity for allegedly negligent advice given by
the defendant union and two of its representatives. Presently before this
Court is the union's motion to transfer to the United States District
Court for the Eastern District of Michigan, pursuant to
28 U.S.C. § 1404(a).
Plaintiff Austin is a domicillary of New York. Defendant International
Brotherhood of Teamsters-Airline Division 2747 (hereinafter "Local 2747"
or "the Union")*fn1 is a Michigan branch of a nationwide trade union
headquartered in New York City. Defendants Staetter and Graham, the Union
representatives, are both Michigan citizens residing and working in
Prior to moving to New York, plaintiff Hilda Austin lived in Michigan
and worked for six and a half years as a flight attendant for Northwest
Airlines. On June 7, 1989 plaintiff reported to the Detroit Airport for
flight duty, at which time her supervisor told her that she smelled of
alcohol and insisted that she take a blood alcohol test. Plaintiff agreed
to take the test and proceeded towards the testing location. At the
testing site, Northwest representatives told plaintiff that she was
entitled to Union representation, which at first she declined. After
further discussion, however, plaintiff agreed to meet with Union
representatives prior to submitting to a blood alcohol test. Upon advice
of defendants Staetter and Graham, in their capacity
as Local 2747 representatives, Austin refused to submit to the test.
Consequently, Northwest Airlines discharged plaintiff for refusal to
comply with her supervisor's order.
The Union contends that pursuant to 28 U.S.C. § 1404(a), Austin's
case should be transferred from the Southern District of New York to the
Eastern District of Michigan. The defendant union argues that the
location of the witnesses and the interests of the forum state make
Michigan better suited to handle her claim. While the Complaint does not
plead a specific nexus between defendants' acts in Michigan and her cause
of action in New York, plaintiff responds that it would be impossible
financially for her to try the case in Michigan. Discussion
Plaintiff's choice of forum should not be disturbed unless the
balancing factors strongly favor the defendant. Gulf Oil Co. v. Gilbert,
330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). The
defendant-movant has the burden of establishing that the interests of
justice as well as the convenience of the parties would better be served
by transfer. 28 U.S.C. § 1404(a). 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).
This Court considers the following factors under a 1404(a) motion to
transfer: 1) the convenience to parties; 2) convenience to witnesses; 3)
access to sources of proof; 4) availability of process to compel
attendance of unwilling witnesses; 5) the cost of obtaining willing
witnesses; 6) practical problems indicating where the case can be more
speedily and inexpensively tried; and 7) the interests of justice with
regard to particular circumstances of each case. National Union Fire
Ins. Co. v. Mason Perrin & Kanovsky, 709 F. Supp. 411, 417 (S.D.N.Y.
1989) (quoting Schneider v. Sears, 265 F. Supp. 257, 263 (S.D.N Y
Both the interests of justice and the special deference which is given
plaintiff's choice of forum militate in favor of denying this motion.
Plaintiff states in her affidavit that she will be unable to go to
Michigan to pursue the action on account of severe financial strain.
Affidavit of Hilda Austin, ¶¶ 6, 11. In McKrell v. Penta Hotels
(France) S.A., 703 F. Supp. 13 (S.D.N Y 1989), this Court upheld the
Magistrate's recommendation that a foreign forum was not a viable
alternative available because plaintiff would have been unable
financially to pursue her claim in the alternate forum. See also Fiorenza
v. United States Steel International, Ltd., 311 F. Supp. 117 (S.D.N.Y.
1969) (denying defendant's motion to transfer because plaintiff could not
afford to finance litigation); Odita v. Elder Dempster Lines Ltd.,
286 F. Supp. 547 (S.D.N.Y. 1968) (denying British defendants' motion to
transfer action to Great Britain in deference to impecunious plaintiff,
despite presence of witnesses in Great Britain and British interest in
resolving the matter); Hokanson v. Helene Curtis Industries Inc.
177 F. Supp. 701 (S.D.N.Y. 1959).
The Court recognizes that defendants will incur some inconvenience
should the suit go forward in this jurisdiction. Because this Court lacks
the jurisdictional power to subpoena non-party witnesses from Detroit to
New York, the parties may have difficulty in securing the testimony of
unwilling witnesses. While it is true that in many situations, the
"unavailability of compulsory attendance of these key witnesses is a
compelling reason to transfer the case," Ruth Hoppe v. G.D. Searle &
Co., 683 F. Supp. 1271, 1276 (D.Minn. 1988), deposition testimony is an
available alternative to live testimony.
Defendant also contends that litigating in New York represents a large
financial burden on it. The defense intends to call approximately seven
non-party witnesses, each of them from Michigan. The costs and the
inconvenience of transporting witnesses is often an important factor in
deciding whether or not to grant a transfer. Essex Crane Rental v. Vic
Kirsch Constr. Co., 486 F. Supp. 529, 537 (S.D.N.Y. 1980). While the
Court sympathizes with the inconvenience which defendant must suffer, a
transfer would simply shift the inconvenience
to plaintiff; that shift might deprive her of any forum in which to
vindicate her rights. Odita supra, 286 F. Supp. at 551.
Defendant finally contends that Michigan would be a better choice of
forum because Michigan courts and juries would have a greater connection
with the subject matter. Plaintiff's claim arose out of a controversy
that occurred in Michigan while she was residing there. This Court takes
into account the interests of the forum state, although they are not by
themselves decisive and must be weighed with other facts. Vaughn v.
American Basketball Ass'n, 419 F. Supp. 1274, 1278 (S.D.N.Y. 1976). New
York was not an inappropriate choice of forum for plaintiff. She lived
there before she began her career as a flight attendant and moved back
when she could no longer find work in Michigan. Thus the Court notes that
both New York and Michigan have some interest in this matter.
Accordingly, the motion to transfer is denied. The basis for this
decision is not to be construed broadly. Indeed, if plaintiff were in a
more secure financial situation, the outcome would probably be
different. See Bayless v. Dresser Industries Inc., 702 F. Supp. 79
(S.D.N.Y. 1988) (reversing Court's own opinion to transfer a ...