to be turned over are also located in New York City along with
Gibbs' collection of Project documents and the personnel which
Harbert seeks to compel Gibbs to make available.
Harbert's offices are located in Alabama and the joint
venture was organized under Alabama law. The joint venture
entered into the prime contract with the Alabama Electric
Cooperative in Alabama and the project site is located in
Alabama, albeit in a different district then where the Alabama
Action is filed. Gibbs' principal allegation is that Harbert
mismanaged the joint venture and virtually all of Harbert's
activities in managing the joint venture have taken place in
The convenience of the parties are evenly split but the
operative facts under consideration — that the design work was
to be performed in New York, and that the physical project, the
home of the contract, the locus of the joint venture, and
Harbert's management are all in Alabama tip decidedly in favor
of transfer to Alabama.
B. Convenience of Witnesses
The witnesses who will be called to refute Gibbs' allegations
of mismanagement include numerous Alabama employees of the
principal subcontractors and the owner of the Project, the
Alabama Electric Cooperative. Of the thirteen principal
subcontractors, seven are located in Alabama and four more are
located in the nearby states of Georgia, Louisiana and Florida.
The Alabama Electric Cooperative is located in Alabama, as are
its employees and records. Although Gibbs' documents —
including those sought to be compelled in the disputed
scheduled depositions — are located in New York, the documents
relating to the joint venture and the construction of the
Project are maintained by Harbert, as the Sponsor, in Alabama.
One of the joint venture's principal subcontractors, Dresser
Rand, is located in Allegheny County New York. Two other
principal parties are in the Midwest. There are numerous other
parties sprinkled all over the country.
The myriad locations of the witnesses do not favor either
C. Choice of Forum and Familiarity with Governing Law
As the Supreme Court recently reiterated, a diversity case
should be tried in a "forum that is at home with the state law
that must govern the case." Ferens v. John Deere Co., ___ U.S.
___, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990) (quoting Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 509, 67 S.Ct. 839, 843, 91
L.Ed. 1055 (1947)). The Second Circuit likewise has found
choice of law provisions relevant for purposes of evaluating a
§ 1404(a) motion. See Filmline (Cross-Country) Prods., Inc. v.
United Artists Corp., 865 F.2d 513, 529 (2d Cir. 1989) (citing
Van Dusen v. Barrack, 376 U.S. 612, 645, 84 S.Ct. 805, 824, 11
L.Ed.2d 945 (1964)).
The factor that most decidedly turns in favor of transferring
this case to Alabama is the choice of Alabama law clause
All questions and disputes relative to the
execution, validity, interpretation and
performance of this Agreement shall be governed
and construed in accordance with the law of the
State of Alabama.
Although Gibbs disputes the applicability of the choice of law
provision and suggests that Alabama state law may not be
preempted by federal arbitration law, this decision itself will
require a familiarity with Alabama law. The district court in
Alabama is presumed to be more familiar with the law of that
state than this court sitting in New York and accordingly, this
factor weighs strongly in favor of Alabama as the most
appropriate forum for the present dispute — irrespective of
whether the provision ultimately applies.