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O'BRIEN v. GOLDSTAR TECH.

February 8, 1993

DANIEL O'BRIEN, Individually and d/b/a DANIEL O'BRIEN & ASSOCIATES, and NUTEK DISTRIBUTING, Plaintiffs,
v.
GOLDSTAR TECHNOLOGY, INC., Defendant.


Heckman


The opinion of the court was delivered by: CAROL E. HECKMAN

This matter was referred to the undersigned by Hon. William M. Skretny pursuant to 28 U.S.C. § 636(b)(1)(A) for all pretrial matters. Pending is Defendant's motion to transfer this case to the Northern District of California. For the following reasons, Defendant's motion is denied.

 BACKGROUND

 Plaintiff is a Tonawanda, New York resident, doing business in New York and throughout the United States as Daniel O'Brien & Associates and Nutek Distributing, a computer marketing and distribution business. In November, 1990, Plaintiff became the sole representative for the marketing and distribution of a computer software package used for golf handicaps, which was developed by the United States Golf Association ("USGA"). This package, known as the Golf Handicap Information Network ("GHIN"), was marketed in combination with computer hardware manufactured by the Defendant, GoldStar Technology, Inc. GoldStar is a California corporation which, until November, 1992, had its principal place of business in San Jose, California. As of November, 1992, Defendant's principal place of business is Englewood Cliffs, New Jersey.

 In August of 1990, Plaintiff and Defendant commenced discussions which led to a contract entered in November, 1990, under which Plaintiff agreed to purchase GoldStar 286 Computer Systems at $ 975.00 per system. Plaintiff alleges that Defendant warranted that the GoldStar hardware would be non-defective and compatible with the GHIN software. Beginning in November, 1990, Plaintiff sold several GHIN/GoldStar packages to golf clubs around the country, apparently to the purchasers' satisfaction.

 In July of 1991, Defendant developed a new hardware system, referred to as Goldstar 386. Plaintiff updated the GHIN/GoldStar package to include the 386 model for new purchasers.

 After filling an initial order for twenty-five GHIN/GoldStar 386 packages for the Northern California Golf Association ("NCGA"), Plaintiff learned of problems with the compatibility of the GHIN software and the GoldStar 386 hardware. These problems could not be resolved, and Plaintiff eventually lost his position as USGA/GHIN representative.

 Plaintiff filed his complaint in this diversity action on October 13, 1992, alleging breach of contract, breach of warranty and fraud. Defendant has now moved to transfer the action to the Northern District of California pursuant to 28 U.S.C. § 1404(a).

 DISCUSSION

 28 U.S.C. § 1404(a) provides:

 
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.

 This section is a statutory recognition of the common law doctrine of forum non conveniens. 1A Moore's Federal Practice, P 0.345[3.-1]. The district court has broad discretion on a transfer motion according to an individualized, case-by-case consideration of convenience and fairness." Van Dusen v. Barrack, 376 U.S. 612, 622, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964); Red Bull Associates v. Best Western International, Inc., 862 F.2d 963, 967 (2d Cir. 1988).

 The moving party bears the burden of demonstrating "a strong case for a transfer" by showing that, under all of the circumstances, the interests of justice and of the parties will be better served by the transfer. Delaware Credit Corp. v. Aronoff, 1992 WL 170896, *4 (W.D.N.Y. July 10, 1992) (Skretny, J.) (quoting Filmline (Cross-Country) Productions, Inc. v. United Artists Corp., 865 F.2d 513, 521 (2d Cir. 1989)); see also Austin v. International Brotherhood of Teamsters, 739 F. Supp. 206, 208 (S.D.N.Y. 1990). However, this burden is less stringent than under the former doctrine of forum non conveniens since transfer under § 1404(a) does not result in dismissal. Delaware Credit Corp. v. Arnoff, supra; Moore's, supra at P 0.345[5].

 In ruling on a motion to transfer, the court should consider both the interest of the litigants and the public interest. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). The interest of the litigants includes (1) plaintiff's initial choice of forum, (2) the convenience of the parties and the witnesses, (3) the relative ease of access to sources of proof, (4) the availability of compulsory process for the attendance of witnesses, (4) the location of relevant documents and other tangible evidence, (5) questions as to the enforceability of a judgment if one is obtained, and (6) "all other practical problems that make trial of a case easy, expeditious and ...


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