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UNITED STATES FID. & GUAR. CO. v. REPUBLIC DRUG CO

August 21, 1992

UNITED STATES FIDELITY AND GUARANTY COMPANY, Plaintiff, against REPUBLIC DRUG COMPANY, INC., Defendant.

SPATT


The opinion of the court was delivered by: ARTHUR D. SPATT

SPATT, District Judge.

 In this declaratory judgment action the plaintiff moves, pursuant to Rule 15 of the Federal Rules of Civil Procedure, for leave to amend the Complaint and the defendant moves, pursuant to 28 U.S.C. § 1404(a), to transfer venue of this case to the United States District Court for the Western District of New York.

 For the reasons set forth below, the plaintiff's motion to amend the Complaint is denied, and the defendant's motion to transfer this case to the western District of New York is granted.

 BACKGROUND

 This action arises out of the slew of litigation concerning the drug diethylstilbestrol ("DES"). Briefly, it is alleged that DES, which was used by pregnant women to prevent miscarriage and fetal death, causes a variety of disorders in those who ingested the drug, including uterine deformities and breast cancer, as well as harm to the fetus. (See In re DES Cases, 789 F. Supp. 552, 558 [E.D.N.Y. 1992].)

 The defendant in this action, Republic Drug Company, Inc. ("Republic"), is a defendant in at least two of these actions pending in courts of the State of New York. In these cases, Republic is alleged to have manufactured, sold, and/or distributed DES, and/or have had a portion of the share of the DES market during the relevant periods. (Complaint, P 8.)

 Republic contends that under a number of insurance policies issued by the plaintiff United States Fidelity and Guaranty Company ("USF&G"), the carrier is obligated to defend and/or indemnify Republic in the New York DES cases. USF&G maintains that it never insured Republic in this respect and commenced this action, seeking a declaratory judgment that it has no obligation to defend or indemnify Republic.

 MOTION TO AMEND

 USF&G moves, pursuant to Rule 15 of the Federal Rules of Civil Procedure, for leave to serve and file an amended complaint. The Court's file contains a document entitled "Complaint for Declaratory Relief and Demand for Jury Trial", which was filed on July 15, 1991, and another document entitled "Amended Complaint for Declaratory Relief and Demand for Jury Trial", filed August 7, 1992. Furthermore, attached to Republic's motion to transfer venue is a third "Complaint", which differs from the "Complaint" and "Amended Complaint" contained in the Court file. Because it is unclear which "Complaint" is the Complaint of record, and whether there already has been an amendment of the Complaint, the Court denies the plaintiff's motion for leave to serve and file an amended complaint, with leave to renew this motion upon the elimination of this confusion.

 MOTION TO TRANSFER

 Republic moves, pursuant to 28 U.S.C. § 1404(a), to transfer the venue of this case to the United States District Court for the Western District of New York.

 According to Republic, the factors relevant to a motion to transfer venue favor a transfer. Republic contends that it is more convenient for this case to be heard in the western District, as Republic's principal place of business is located in Buffalo, New York, located within the Western District. Republic further contends that since USF&G's principal place of business is in Baltimore, Maryland, a trial in the Eastern District of New York is not significantly more convenient to USF&G than a trial in the Western District.

 Furthermore, Republic maintains that all of the witnesses which will testify on its behalf live in the Buffalo metropolitan area, and has submitted three affidavits which name each of these potential witnesses. These affidavits, however, do not provide a summary of the testimony of these witnesses. Additionally, Republic alleges that the pertinent events occurred in Buffalo, specifically its alleged purchases of the relevant insurance policies from USF&G's alleged Buffalo agent, the Freedman-Harris Agency. Republic concludes that these factors require that this case be transferred to the Western District.

 In opposing this motion, USF&G states that while its principal place of business is in Baltimore, its claim personnel and claim files along with relevant information regarding USF&G's alleged issuance of insurance policies to Republic are located in USF&G's offices in Purchase, Westchester County, New York. USF&G asserts that it anticipates calling witnesses from the Westchester office, as well as its offices in Baltimore and in Blue Bell, Pennsylvania, a suburb of Philadelphia, but it does not state who these witnesses are.

 Furthermore, USF&G maintains that transfer of this case would make travel ford its witnesses considerably more inconvenient. However, surprisingly, in its Memorandum of Law USF&G states that the "close proximity" of the Eastern and Western Districts would not inconvenience any of Republic's witnesses. (See Memorandum of Law in Opposition, pp.5-6.) In apparent contradiction of its earlier assertion that transferring this case to the Western District would be inconvenient for it, USF&G states that Uniondale and Buffalo are in "relatively close proximity" so that "to maintain this case in the Eastern District of New York will not impose any inconvenience upon Republic or its non-party witnesses sufficient to support a change of venue." (Memorandum of Law in Opposition, p.6.)

 USF&G further contends that the "transactions" which have taken place over the years between USF&G and Republic are not limited to western New York State, but does not state that these transactions are related to the Eastern District, or the New York metropolitan area, for that matter, or how these "transactions" are relevant to the instant action. USF&G further claims that Republic unreasonably delayed in making this motion, as this action was pending for ten months before Republic moved to transfer venue.

 DISCUSSION

 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 relevant 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 which "might have been brought" in the district court in 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 ...


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