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DAHL v. HEM PHARMS. CORP. IN CARE OF PRENTICE HALL

October 26, 1994

KRISTINA A. DAHL, Plaintiff,
v.
HEM PHARMACEUTICALS CORP. in care of PRENTICE HALL CORP. SYSTEMS, INC., f/k/a HEM RESEARCH, INC. and HEM PHARMACEUTICALS, INC., Defendant.



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

 ALLEN G. SCHWARTZ, DISTRICT JUDGE:

 This is a diversity action that was removed by defendant from New York State Supreme Court. The Complaint alleges two causes of action arising out of plaintiff's participation in a medical clinical trial of an experimental pharmaceutical compound manufactured by defendant called Ampligen, which is used for the treatment of Chronic Fatigue Immune Dysfunction Syndrome ("CFIDS"). The first cause of action is for lack of informed consent; plaintiff alleges that defendant was aware of but, in violation of its duties and obligations, failed to disclose to plaintiff "the reasonable and foreseeable risks and perils involved in treatment with Ampligen, including, inter alia, the risks and perils as a result of treatment, followed by hiatus of treatment and subsequent re-administration of Ampligen." Complaint at P 26. Plaintiff's second cause of action is for fraud. Specifically, plaintiff alleges that defendant made false representations that induced her to participate in the clinical trial of Ampligen.

 Defendant, HEM Pharmaceuticals Corp. ("HEM"), moves pursuant to 28 U.S.C. § 1404(a) to transfer this action to the District of Nevada. On October 13, 1994, the Court held an oral argument with respect to HEM's motion (the "Oral Argument"). For the reasons set forth below, HEM's motion is granted.

 DISCUSSION

 
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).

 As a threshold matter, this Court must determine whether the proposed transferee jurisdiction is a proper forum for resolution of this dispute. This action initially could have been brought in Nevada. The clinical trial of Ampligen (the "AMP-502 clinical trial"), which HEM sponsored and in which plaintiff, Dr. Kristina A. Dahl ("Dahl"), participated, was conducted in Incline Village, Nevada. Consequently, HEM is amenable to personal jurisdiction in Nevada and venue is also appropriate in Nevada. See Viacom Int'l, Inc. v. Melvin Simon Prods., Inc., 774 F. Supp. 858, 868 (S.D.N.Y. 1991); 28 U.S.C. § 1391(a), (c)

 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 with the governing law; and (8) trial efficiency and the interest of justice.

 Viacom Int'l, 774 F. Supp. at 867-868 (citations omitted). Balancing these factors is left to the sound discretion of the District Court. Filmline (Cross-Country) Productions, Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989) ("The determination whether to grant a change of venue requires a balancing of conveniences which is left to the sound discretion of the district court") (citations omitted).

 The burden is on HEM to establish that there should be a change of forum. Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2nd Cir. 1978), cert. denied, 440 U.S. 908, 99 S. Ct. 1215, 59 L. Ed. 2d 455 (1979) (citations omitted) ("There can be no doubt that the burden is on the defendant, when it is the moving party, to establish that there should be a change of forum"); see also Milgrim Thomajan & Lee P.C. v. NYCAL Corp., 775 F. Supp. 117, 122 (S.D.N.Y. 1991) ("moving party must make a clear showing to justify the change of venue") (citations omitted).

 HEM contends that upon consideration of the factors referred to above transfer is appropriate here. The thrust of HEM's argument is that this action should be dismissed because of the "pendency" of a related case in the District of Nevada (the "Nevada Action") and ...


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