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April 13, 1991


The opinion of the court was delivered by: Spatt, District Judge.


This diversity action arose out of a rear-end collision between two tractor trailers that occurred in the early evening hours on a highway located in Port St. Lucie, Florida. Except for the plaintiff and his treating physician(s), all other witnesses and the material evidence are located within the confines of the State of Florida. The plaintiff commenced this action in his home forum, the Eastern District of New York, and the defendants, both nonresidents, now seek to transfer the action to the Southern District of Florida.

Since the Court finds, among other things, that the convenience of the non-party witnesses and the interest of justice are best served if this action is tried in Florida, the motion of the defendants to transfer is granted.


On November 22, 1989, the defendant Willie Johnson ("Johnson"), was operating a tractor trailer owned by the defendant Graebel Van Lines ("Graebel"), travelling northbound on SR-9 in Port St. Lucie, Florida. The plaintiff Cesar Hernandez ("the plaintiff"), also operating a tractor trailer, was proceeding directly behind Johnson when he collided with the rear of the Johnson's vehicle. The plaintiff allegedly sustained severe and permanent injuries as a result of the accident.

The plaintiff commenced this negligence action against the defendants Johnson and Graebel, basing federal jurisdiction on diversity of citizenship (see 28 U.S.C. § 1332[a][1]). The plaintiff is a resident of New York, Johnson is a Tennessee resident, and Graebel is a Wisconsin corporation licensed to do business in New York. The amount in controversy exceeds $50,000.

The defendants, both represented by the same counsel, interposed an answer asserting several affirmative defenses, including, inter alia, lack of in personam jurisdiction (first affirmative defense) and improper service of process (fifth affirmative defense).


The plaintiff moves pursuant to Fed.R. Civ.P. 12(f) to strike both the first and fifth affirmative defenses. In opposition, the defendants agree to withdraw the fifth affirmative defense (improper service) as to both defendants, and to withdraw the first affirmative defense (lack of in personam jurisdiction) as to the defendant Graebel only. Defendant Johnson, however, opposes the plaintiff's motion to strike the affirmative defense of lack of personal jurisdiction as to him and, in turn, cross-moves to dismiss on that ground pursuant to Fed. R.Civ.P. 12(b)(2). In addition, both defendants move to transfer this action to the Southern District of Florida pursuant to 28 U.S.C. § 1404(a).


The Court first considers the propriety of a transfer, then addresses the issue of personal jurisdiction over the defendant Johnson.

A. Motion to Transfer:

A motion to transfer venue from one federal district court to another, when venue is initially proper, is governed by 28 U.S.C. § 1404(a), which provides, in pertinent part:

  "(a) 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 goal of 28 U.S.C. § 1404(a) "is to prevent waste 'of time, energy and money' and 'to protect litigants, witnesses and the public against unnecessary inconvenience and expense'" (Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 809, 11 L.Ed.2d 945 [1964], quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26-27, 80 S.Ct. 1470, 1474-75, 4 L.Ed.2d 1540 [1960]). The inquiry on such a motion to transfer is two-fold: First, whether the action sought to be transferred is one that "might have been brought" in the district court which the movant seeks to have the case litigated, i.e., the "transferee" court. If so, second, whether, considering "the convenience of parties and witnesses" and "the interest of justice", a transfer to the proposed district is appropriate (see Schneider v. Sears, 265 F. Supp. 257, 261 [S.D.N.Y.1967] [Weinfeld, J.]).

On such a motion to transfer, the movant bears the burden to "clearly" establish that a transfer is appropriate and that the motion should be granted (see Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218-19 [2d Cir.1978], cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 [1979]; see also Arrow Elecs., Inc. v. Ducommun, Inc., 724 F. Supp. 264, 265 [S.D.N.Y.1989], quoting Morales v. Navieras de Puerto Rico, 713 F. Supp. 711, 712 [S.D.N.Y.1989]; Schneider v. Sears, supra, 265 F. Supp. at p. 263).

With these principles in mind, the Court addresses the two-part inquiry.

(1) "Might Have Been Brought":

As to the first query, the parties do not dispute, and the Court finds, that the Southern District of Florida is a district where the action "might have been brought" originally (28 U.S.C. § 1404[a]; see also Plaintiff's Memorandum of Law at p. 12; Mulcahy Reply Aff't ¶¶ 2-3). Therefore, the transferee district, namely, the Southern District of Florida, is a proper place of venue for the trial of this action in accordance with 28 U.S.C. § 1391(a).

The Court must now turn to the second prong of the test, namely, whether a transfer is warranted in light of the convenience of the parties and witnesses, and ...

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