located in the New York area" (Plaintiff's Memorandum of Law at
p. 3 [unnumbered]). Under these circumstances, where the
accident occurred in Florida and most of the witnesses are
within the proposed transferee district as well, in this
Court's view the plaintiff's choice of forum is not entitled to
the same "great weight" that might normally attach to a motion
to dismiss based on forum non conveniens. As such, the Court
finds that the mere fact that the plaintiff chose New York is
of less significance under these circumstances.
Calendar Congestion. Although certainly not decisive, docket
conditions or calendar congestion of both the transferee and
transferor districts is a proper factor for the Court to
consider and is accorded "some weight" (see Foster v. Litton
Indus., Inc., 431 F. Supp. 86, 88 [S.D.N.Y. 1977]; Schneider v.
Sears, supra, 265 F. Supp. at p. 267).
It takes approximately nineteen months for a civil action to
reach the trial calendar from the time issue is joined in the
Eastern District of New York, whereas it takes approximately
eleven months in the Southern District of Florida (see 1990
Federal Court Management Statistics of the Administrative
Office of the United States, at pp. 47, 162). This
consideration, therefore, also favors a transfer.
Forum Court's Familiarity With The Governing Law. Following
the transfer of an action initiated by a defendant under
section 1404(a), the transferee court is bound by the choice of
law rules of the transferor court (Van Dusen v. Barrack,
376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 ; see also Ferens
v. John Deere Co., 494 U.S. 516, 110 S.Ct. 1274, 108 L.Ed.2d
443  [same rule applies if plaintiff initiates
transfer]). Thus, in this case New York choice of law rules
apply which, when applied to these facts, indicate that the
application of the substantive law of Florida to this
controversy would be appropriate to determine liability (see
Bing v. Halstead, 495 F. Supp. 517 [S.D.N.Y.1980], citing
Neumeier v. Kuehner, 31 N.Y.2d 121, 286 N.E.2d 454, 335
N YS.2d 64  [Fuld, Ch. J.]).
Accordingly, it appearing that Florida law would govern this
personal injury action, this factor, although not generally
considered a highly significant one (see Vassallo v.
Niedermeyer, 495 F. Supp. 757, 760 [S.D.N.Y.1980]), favors a
transfer, since it is judicially desirable to have cases
decided by a court familiar with the substantive law to be
applied (see Heyco, Inc. v. Heyman, supra, 636 F. Supp. at pp.
1550-51; see also Kreisner v. Hilton Hotel Corp., 468 F. Supp. 176,
179 [E.D.N.Y.1979] ["[w]hile there may not be novel or
complex issues of State law to be resolved, construction of
State law is best left to courts most familiar with it"]
Practical Difficulties. In light of the locus of operative
facts being Florida, and the convenience of the witnesses
favoring a transfer to the Southern District of Florida, it
would, in this Court's view, be more practical for this case to
be tried in Florida. Discovery, including depositions of the
non-party witnesses, could take place in Florida where these
witnesses reside. The case is likely to reach the trial
calendar in Florida in much less time than here. Finally, it is
the view of this Court that it is more appropriate for this
case to be tried to a jury selected from residents of the state
having the most interest in this litigation, namely, where the
accident occurred. In sum, a consideration of the practical
aspects dictate a transfer.
Interest of Justice. Balancing all of the material
circumstances of this case in light of the factors set forth
above, this Court finds that in the interest of justice, the
action should be transferred to the Southern District of
Florida. The cause of action arose there. Most, if not all, of
the witnesses and sources of proof, namely, investigative
reports, documents and photographs, if any, may be found in
Florida. It may be impossible to compel the attendance of key
witnesses if this case were to remain in this Court. Although
the burden on the party seeking a transfer is a heavy one, in
this case a balance of the factors
indicates to the Court that it has been clearly met.
Having determined to transfer this action to the Southern
District of Florida, the Court must now consider whether the
issue of in personam jurisdiction over the defendant Johnson
has to be reached.
B. Necessity of Deciding In Personam Jurisdiction:
The springboard of any discussion on this issue must
necessarily begin with Judge Weinfeld's oft-cited statement in
the seminal case of Volk Corp. v. Art-Pak Clip Art Serv.,
432 F. Supp. 1179 (S.D.N.Y. 1977):
"Whether there is personal jurisdiction over the
defendants, and whether venue is proper in this
district, raise substantial questions. However,
the Court need not resolve them, since it has the
power to transfer the case even if there is no
personal jurisdiction over the defendants . . .,
if a transfer would be in the interest of justice"
(id. at pp. 1180-81 [footnotes omitted]).
This statement is based on the early Supreme Court decision
of Goldlawr v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39
(1962), which held that even if venue is improper in the
transferor district and the Court lacks in personam
jurisdiction over the defendant, the Court nonetheless has the
power to transfer under 28 U.S.C. § 1406(a).
One year later in 1978, writing for the Second Circuit, then
Circuit Judge Oakes expressly adopted Judge Weinfeld's
statement as the law of this Circuit (see Corke v. Sameiet M.
S. Song of Norway, 572 F.2d 77, 80 [2d Cir.1978]). Since then,
the district courts within the Second Circuit have repeatedly
held that the Court's power to transfer is unaffected by the
lack of in personam jurisdiction over the defendant (see, e.g.,
Sheet Metal Workers' Nat'l Pension Fund v. Gallagher,
669 F. Supp. 88, 91 [S.D.N.Y.1987] [Edelstein, J.]; Saudi Computer
Aided Translation, Ltd. v. Weidner Communications Corp.,
663 F. Supp. 1104, 1108 [S.D.N.Y.1987] [Leval, J.]; Fresca v.
Arnold, 595 F. Supp. 1104, 1105 [E.D.N.Y. 1984] [McLaughlin,
Accordingly, the Court need not resolve the personal
jurisdiction issue, since it is clear that it does have the
power to transfer even in the absence of personal jurisdiction.
Therefore, the motion of the plaintiff to strike the first
affirmative defense and the motion by the defendant Johnson to
dismiss for lack of personal jurisdiction, are denied, without
prejudice and with leave to renew.
For the reasons stated above, after considering the relevant
factors, the Court concludes that this action should be, and
hereby is, transferred to the Southern District of Florida.
Accordingly, the motions are decided as follows:
(1) The motion of the defendants to transfer pursuant to
28 U.S.C. § 1404(a), is granted.
(2) The motion of the plaintiff to strike certain affirmative
defenses is denied without prejudice and with leave to renew in
the transferee court.
(3) The motion of the defendant Willie Johnson to dismiss for
lack of in personam jurisdiction is denied without prejudice
and with leave to renew in the transferee court.
The Clerk of the Court is directed to forthwith effectuate
the transfer of this action to the Southern District of
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