rise to Plaintiff's complaint occurred in California. According to Defendant, the allegedly defective computers were manufactured by GoldStar in California, and were resold to the NCGA (located in Pebble Beach, California), which then distributed those units to affiliated golf clubs in Northern California. Furthermore, all of the individuals with whom Plaintiff communicated regarding the purchase of GoldStar equipment, and who are specifically named in Plaintiff's fraud claim, are former GoldStar employees who worked out of the San Jose offices, and who still reside there. These people, according to Defendant, are material non-party witnesses who are no longer its employees and who cannot be compelled to testify at a trial in this district. Finally, Defendant asserts that it has no assets in Western New York, and that any judgment rendered against it here could not be easily enforced.
As far as the utilization of judicial resources, Defendant argues that the congestion of this court's docket, compared to the docket of the Northern District of California, weighs in favor of transfer. According to statistics cited by Defendant, the median time from filing to disposition in the Western District of New York is 14 months, compared to 8 months in the Northern District of California.
Plaintiff opposes this transfer motion. According to Plaintiff, he would be severely prejudiced by transfer to Northern California since he lacks the personal or business assets necessary to litigate there. Plaintiff argues that Defendant is a subsidiary of a successful multinational corporation with offices in New Jersey and with substantial revenues in New York State. According to Plaintiff, several of his key non-party witnesses are USGA officials who reside in New Jersey and who will testify on crucial issues relating to the development and implementation of the GHIN software, as well as Plaintiff's relationship to USGA, which is headquartered in Far Hills, N.J.
Balancing all of these factors, I find that Defendant has failed to meet its burden of establishing a "strong case for a transfer." The plaintiff's choice of forum is entitled to considerable weight, and should not be disturbed unless the balance of the several factors is strongly in favor of the defendant. Kolko v. Holiday Inns, Inc., 672 F. Supp. 713, 715 (S.D.N.Y. 1987). Where the factors are equally balanced, the plaintiff is entitled to its choice of forum. Teachers Insurance & Annuity Association of America v. Butler, 592 F. Supp. 1097, 1106 (S.D.N.Y. 1984). Further, the plaintiff's choice is generally accorded more deference where the plaintiff is a resident of the forum district. See, e.g., Amvest Capital Corp. v. Banco Central, S.A., 628 F. Supp. 1258 (S.D.N.Y. 1986). Where transfer would merely shift the inconvenience from one party to the other, "the plaintiff's choice of forum should not be disturbed. De Luxe Game Corp. v. Wonder Products Co., 166 F. Supp. 56, 61 (S.D.N.Y. 1958).
In this case, the relative ease of access to sources of physical and documentary evidence does not weigh strongly in favor of transfer to California. Documentary evidence can readily be transported to Western New York, if necessary, and a representative Gold Star 386 unit, and a copy of the GHIN software, should be readily available for inspection or demonstration in this district.
The dispute here can be reduced to the relative convenience of the witnesses. In this regard, Defendant's argument relating to the California residents who are former employees of the Defendant is balanced by Plaintiff's argument as to non-party witnesses residing in New Jersey.
Furthermore, Plaintiff argues that the actual representations made by Defendant -- i.e., that Defendant's hardware is compatible with Plaintiff's software -- are not in dispute. The real issue is whether the incompatibility can fairly be attributed to Defendant's hardware, in which case Defendant may be liable, or whether the problem lies elsewhere, in which case Defendant would not be liable. Thus, even if unavailable, the testimony of these witnesses may not be material to the resolution of the case.
Defendant has not addressed this issue, and therefore the court can only assume that Plaintiff's point has validity.
Defendant has not described what the testimony of the California witnesses would be, shown that the testimony is material, or demonstrated that the witnesses are in fact unwilling to appear. All of these elements are required to support Defendant's motion. Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir. 1978), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 455, 99 S. Ct. 1215 (1979) (movant must specifically identify and provide general description of the testimony of key witnesses); Heller Financial, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286 (7th Cir. 1989) (movant must show that witnesses' testimony is material); Zets v. Scott, 498 F. Supp. 884 (W.D.N.Y. 1980) (movant must demonstrate that its witnesses are either unwilling or unable to appear).
Based on these considerations, it is apparent to the court that transfer would merely shift the inconvenience from Defendant to Plaintiff. Plaintiff is a small business, with relatively few resources to litigate out of state, whereas Defendant is a multi-national corporation. While "the relative economic ability of the parties to proceed with a case has rarely been a dispositive reason" to grant or deny a motion to transfer, Kolko v. Holiday Inns, supra, 672 F. Supp. at 716, financial ability to bear the costs of a change of venue is a relevant factor for the court to consider in weighing the convenience to the parties. Id.
The location of assets in California does not weigh strongly in Defendant's favor since Defendant also undeniably has assets in New Jersey which could be used to satisfy any judgment without great inconvenience to Plaintiff. As to the relative congestion of court calendars, this by itself does not significantly tip the balance, since this court is confident of the ability of the courts in the Western District of New York to administer justice fairly and with reasonable dispatch.
Accordingly, the interest of justice in this case requires that venue remain in the Western District of New York. Defendant's motion for transfer is denied.
DATED: Buffalo, New York
February 8, 1993
Carol E. Heckman
United States Magistrate Judge