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FONTANA v. E.A.R.

March 30, 1994

MARIO FONTANA, Plaintiff,
v.
E.A.R., a Division of CABOT CORPORATION, INC., Defendant.



The opinion of the court was delivered by: ALLEN G. SCHWARTZ

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 Defendant, E.A.R., a Division of Cabot Corporation, *fn1" moves pursuant to 28 U.S.C. § 1404(a) to transfer this action to the District of Wyoming or, in the alternative, to the Southern District of Indiana. For the reasons set forth below, defendant's motion is granted no this action is transferred to the District of Wyoming.

 I. FACTS

 Defendant is a Delaware corporation; it maintains its corporate offices in Southbridge, Massachusetts and manufactures, distributes, designs and tests earplugs (including the type of soft foam earplug referenced in the Complaint) in Indianapolis, Indiana for nationwide sales. Affidavit of Mark V.B. Tremallo, Esq. dated February 3, 1994 at PP 5-6.

 Plaintiff alleges that on or before January 3, 1992, he purchased soft foam earplugs, manufactured by the defendant, from Outdoor Sports, 988 West Broadway, Jackson, Wyoming. See Complaint at PP 14-16; Fontana Affidavit at 1-2. Plaintiff further alleges that on January 3, 1992, he went target shooting in Wyoming with his friend, Edmond Mekerteshian and that soft foam earplugs failed to provide the proper protection causing severe and permanent injuries. See Complaint at 17; Fontana Affidavit at 1-2. The Complaint, while thinly pleaded sounds in breach of implied and express warranty negligence and strict products liability.

 II. DISCUSSION

 Defendant moves pursuant to 28 U.S.C. § 1404 (a) to transfer this action to the District of Wyoming or, in the alternative, to the Southern District of Indiana. Section 1404(a) provides that:

 
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.

 28 U.S.C. § 1404(a) (1993).

 As a threshold matter, this Court must determine whether the proposed transferee jurisdiction is a proper forum for resolution of this dispute. This action could been brought in Wyoming in the first instance: (1) the defendant does business in Wyoming and, consequently, is amenable to personal jurisdiction there; and (2) plaintiff alleges that he purchased the soft foam earplugs and was injured in Wyoming and, consequently, venue is appropriate there. See Viacom Int'l, Inc. v. Melvin Simon Productions, Inc., 774 F. Supp. 858, 868 (S.D.N.Y. 1991).

 In determining whether a case should be transferred under § 1404(a), the Court considers the following factors:

 
(1) the place where the operative facts occurred; (2) the convenience to parties; (3) the convenience of witnesses; (4) the relative ease of access to sources of proof; (5) the availability of process to compel attendance of unwilling witnesses; (6) the plaintiff's choice of forum; (7) the forum's familiarity ...

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