The Court first considers the propriety of a transfer before addressing the issue of a § 1985(3) cause of action.
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, 11 L. Ed. 2d 945, 84 S. Ct. 805 , quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26-27, 4 L. Ed. 2d 1540, 80 S. Ct. 1470 ).
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 Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 986 [E.D.N.Y. 1991]; Schneider v. Sears, 265 F. Supp. 257, 261 [S.D.N.Y. 1967]).
On 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, 218-19n [2d Cir. 1978], cert. denied, 440 U.S. 908, 59 L. Ed. 2d 455, 99 S. Ct. 1215 ; 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":
In this civil action, the question of whether venue is initially proper is governed by 28 U.S.C. § 1391(b), which provides in pertinent part:
"(b) A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only if (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought."
As to the first query, the parties do not dispute, and the Court finds, that the Northern District of New York is a district where the action "might have been brought" originally. Therefore, the transferee district, namely, the Northern District of New York, is a proper place of venue for the trial of this action in accordance with 28 U.S.C. § 1391(b).
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 if it would be in the interest of justice.
(2) "For the convenience of Parties and Witnesses" and "in the Interest of Justice":
Whether an action should be transferred under section 1404(a) "is left to the sound discretion of the district court" ( Filmline (Cross-Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 520 [2d Cir. 1989] [citing cases]). In order to assist in this determination, the courts have employed a variety of factors that serve as a guidepost, none of which are singly dispositive. Those factors include: (1) convenience of the parties; (2) convenience of witnesses; (3) relative means of the parties; (4) locus of operative facts and relative ease of access to sources of proof; (5) availability of process to compel the attendance of witnesses to testify at trial (6) the weight accorded the plaintiff's choice of forum; (7) calendar congestion; (8) the desirability of having the case tried by the forum familiar with the substantive law to be applied; (9) practical difficulties; and finally, (10) the Court should also consider how best to serve the interest of justice, based on an assessment of the totality of material circumstances (see e.g., Gibbs & Hill, Inc. v. Harbert Int'l, Inc., 745 F. Supp. 993, 996 [S.D.N.Y. 1990]; Schieffelin & Co. v. Jack Co. of Boca, Inc., 725 F. Supp. 1314, 1321 [S.D.N.Y. 1990]; Turner v. Hudson Transit Lines, Inc., 724 F. Supp. 242, 243 [S.D.N.Y. 1989]; Miller v. County of Passaic, 699 F. Supp. 409, 411 [E.D.N.Y. 1988], citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-08, 67 S. Ct. 839, 842-43, 91 L. Ed. 1055 ).
Although these factors are essentially the same as those considered in determining whether an action should be dismissed for forum non conveniens (see Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S. Ct. 544, 546, 99 L. Ed. 789 ), section 1404(a) vests courts with power to exercise broader discretion to grant transfers upon a lesser showing of inconvenience than is required under the forum non conveniens analysis (see Norwood v. Kirkpatrick, supra, 349 U.S. at p. 32, 75 S. Ct. at p. 546).
Each of the factors is considered below, seriatim.
(i.) Convenience of the Parties
All of the defendants requests a transfer, which the plaintiff opposes. The logical starting point is a consideration of the residence of the parties (see Heyco, Inc. v. Heyman, 636 F. Supp. 1545, 1550 [S.D.N.Y. 1986], citing, Copulsky v. Boruchow, 545 F. Supp. 126, 128-29 [E.D.N.Y. 1982]). The plaintiffs reside in Nassau County on Long Island. However, the plaintiffs also own a second residence in Lake George. The dispute giving rise to the arrest of Lawrence Frasca occurred on or near the Lake George property.
The defendants all reside in Essex County. The defendant municipality lies within the Northern District of New York as well. It is not disputed by the plaintiffs that the incidents giving rise to this lawsuit occurred in the Northern District of New York. The Court finds unavailing the plaintiffs' assertion that the land sale contract for the Lake George house was executed in Hempstead, Long Island. The land sale contract has no apparent relevance with regard to the instant cause of action.
Counsel for the plaintiffs urges the Court to deny the motion based upon Mr. Frasca's status as a retired New York City fireman and as financial supporter to his family. However, the plaintiffs have set forth no factual allegations in this regard, nor have they submitted appropriate affidavits. In fact, the Court takes note of the fact that counsel for the plaintiffs, in his Memorandum of Law in Opposition, does not cite a single legal authority for the arguments he proffers.
Viewing the entire circumstances, the Court finds that although there would be some degree of inconvenience to the plaintiffs, on balance, this factor favors a transfer.
(ii.) Convenience of Witnesses
The location of relevant witnesses and other evidence is a major factor to be considered in a transfer action (see Mobile Video Servs., Ltd. v. National Ass'n of Broadcast Employees & Technicians, 574 F. Supp. 668, 670-71 [S.D.N.Y. 1983]). The convenience of both the party and non-party witnesses is probably the single-most important factor in the analysis of whether a transfer should be granted (see Hernandez v. Graebel Van Lines, supra, 761 F. Supp. at 988-989; Nieves v. American Airlines, 700 F. Supp. 769, 772 [S.D.N.Y. 1988]; Saminsky v. Occidental Petroleum Corp., 373 F. Supp. 257, 259 [S.D.N.Y. 1974]).
Other than the plaintiffs, all of the witnesses to the arrest of Lawrence Frasca reside in the Northern District of New York. Police Officer Yaw and Commissioner Connery are employed by the Town of Ticonderoga. Defendants Julius Daby, James LeFevre and Louis LeFevre are all residents of Ticonderoga. The District Attorney of Essex County also resides in the Northern District of New York. Any potential witnesses to the incident occurring on or adjacent to Lake George as well as the arrest and booking of Lawrence Frasca all reside in the Northern District.
Based on a review of the potential witnesses to be called, this factor clearly favors a trial in the Northern District of New York.
(iii.) Relative Means of the Parties
Where a disparity between the parties exists, such as an individual plaintiff suing a large corporation, the Court may also consider the relative means of the parties in determining whether to transfer (see, e.g., Goldstein v. Rusco Indus., Inc., 351 F. Supp. 1314, 1318 [E.D.N.Y. 1972]). Here, several of the defendants are municipal entities, while the remaining six are individuals. No sufficient showing has been made by the plaintiffs that litigating this action in the Northern District of New York would impose an undue hardship upon the plaintiffs. Therefore, the Court finds that this factor is of little or no significance in the analysis under these circumstances.
(iv.) Locus of Operative Facts
Where the operative facts occurred is an obvious factor to consider ( Mobile Video Servs., Ltd. v. National Ass'n of Broadcast Employees & Technicians, supra, 574 F. Supp. at pp. 670-71; Copulsky v. Boruchow, supra, 545 F. Supp. at p. 128-29), which includes the relative ease of access to the sources of proof (see, e.g., Y4 Design, Ltd. v. Regensteiner Publishing Enters., Inc., 428 F. Supp. 1067, 1069-70]).
Unlike a complex securities litigation involving numerous interstate transactions with witnesses and voluminous documents located throughout several states (see Seagoing Uniform Corp. v. Texaco, Inc., 705 F. Supp. 918, 936 [S.D.N.Y. 1989]), this is a civil rights action confined to a relatively small geographic area that arose out of an alleged illegal arrest. The only locus of operative facts is Ticonderoga, Essex County. Accordingly, this factor favors a trial in the Northern District of New York.
(v.) Attendance of Witnesses
Another important consideration is the availability of process to compel the attendance of witnesses to testify at trial ( Arrow Elecs., Inc. v. Ducommun Inc., supra, 724 F. Supp. at p. 266, citing Designs by Glory, Ltd. v. Manhattan Creative Jewelers, Inc., 657 F. Supp. 1257, 1258-59 [S.D.N.Y. 1987] [other citation omitted]). It is undisputed that most of the witnesses expected to testify at trial are residents of Ticonderoga and/or Essex County. There is no indication from the parties that such witnesses would be subject to the process of this Court to compel their attendance at a trial conducted in this district (see Fed. R. Civ. P. 45[e]). The Court notes that the physical distance between the two districts is more than 100 miles.
This is a significant factor in the Court's consideration -- one that favors a transfer.
(vi.) The Plaintiffs' Choice of Forum
The plaintiffs' initial choice of forum is normally entitled to "great weight" ( Miller v. County of Passaic, supra, 699 F. Supp. at p. 411). However, where the transactions or facts giving rise to the action have no material relation to significant connection to the plaintiffs' chosen forum, then the plaintiffs' choice is not accorded the same "great weight" and, in fact, is given reduced significance (see Cain v. New York State Bd. of Elections, 630 F. Supp. 221, 227 [E.D.N.Y. 1986]); see also Arrow Elecs., Inc. v. Ducommun Inc., supra, 724 F. Supp. at p. 227).
Section 1401(a) is "intended to permit courts to grant transfers upon a lesser showing of inconvenience" than under forum non conveniens dismissal ( Norwood v. Kirkpatrick, supra, 349 U.S. at p. 32, 75; 1A Moore's Federal Practice P0.345, 4360-62 [2d ed. 1990]).
Under these circumstances, where the incident occurred in Ticonderoga 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 plaintiffs chose the Eastern District of New York is of less significance under these circumstances.
(vii.) Calendar Congestion; Forum Court's Familiarity With the Governing Law
The Court finds both of these considerations unpersuasive. It is unlikely that a transfer to the Northern District of New York will in any way delay the appropriate disposition of this case. Further, the Northern District of New York shares equal familiarity with the application of New York law in these circumstances
(viii.) Practical Difficulties
In light of the locus of operative facts being Essex County, and the convenience of the witnesses favoring a transfer to the Northern District of New York, it would, in this Court's view, be more practical for the case to be tried in the Northern District. In sum, a consideration of the practical aspects dictates a transfer.
(ix.) 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 Northern District of New York. The cause of action arose there. Most, if not all, of the witnesses and sources of proof, namely, investigative reports, police reports, documents, and photographs, if any, may be found in the Northern District.
Although the burden on the parties seeking a transfer is a heavy one, in this case, a balancing of the factors indicates to the Court that the burden has been met.
Having determined that transfer of the action is appropriate, the Court need not resolve the motion to dismiss the cause of action as to Margaret Frasca, or the motion to dismiss the § 1985(3) cause of action.
For the reasons stated above, after considering the relevant factors, the Court concludes that this action should be, and hereby is, transferred to the Northern District of New York.
Therefore, the respective motions of each of the defendants to transfer this action, pursuant to 28 U.S.C. § 1404(a) are granted.
The Clerk of the Court is directed to forthwith effectuate the transfer of this action to the Northern District of New York.
The Clerk of the Court is hereby notified that this action closes the case.
Dated: Uniondale, New York
March 26, 1992
ARTHUR D. SPATT
United States District Judge
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