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SOUTHLAND TERRACE ASSOCS. v. MELLON BANK

January 17, 1995

SOUTHLAND TERRACE ASSOCIATES, Plaintiff, against MELLON BANK, N.A., Defendant.


The opinion of the court was delivered by: LEWIS A. KAPLAN

 KAPLAN, District Judge.

 Plaintiff Southland Terrace Associates purchased a Louisville, Kentucky, shopping center (the "Center") from defendant Mellon Bank, N.A. in 1992. During negotiations to purchase the property, Mellon allegedly provided plaintiff with a report prepared by Diagnostic Environmental Inc. ("DEI") which purported to describe the extent of asbestos-containing material in the Center. Plaintiff now claims that the DEI report was inaccurate, that defendant knew it, and in consequence that plaintiff was defrauded in the purchase of the Center. Defendant moves pursuant to 28 U.S.C. § 1404(a) to transfer the action to the Western District of Kentucky.

 Defendant argues that litigation on this action in Louisville would serve the convenience of the parties and witnesses, as well as the interest of justice, essentially for the following reasons:

 1. The Center, which defendant characterizes as "the most important source of proof concerning the amount of asbestos-containing material and the damages, if any," is in Louisville. It therefore would be more accessible to experts and, should a view be thought useful, to the Court if the action were in that forum.

 2. The DEI report, as well as plaintiff's own due diligence relating to asbestos in the Center, was prepared from work done at the Center.

 3. The building manager is located in Louisville and DEI is located in Cincinnati, which is within subpoena range of Louisville.

 4. Many documents relating to the action, including the building plans for the Center upon which plaintiff relies, are in Louisville.

 5. The Western District of Kentucky, according to defendant, is less congested that this district.

 Plaintiff counters by contending that:

 1. Defendant has failed to establish that this action might have been brought in the Western District of Kentucky, which is a prerequisite to transfer under Section 1404(a).

 2. Plaintiff, which is based in New York, as well as its New York counsel, would be inconvenienced by litigation in Louisville.

 3. All or most of the relevant documents are located in New York or Pittsburgh, not Louisville.

 4. Defendant, in plaintiff's view, has not adequately identified witnesses, and the substance of testimony, upon whom it would rely and therefore has not made the necessary showing from which the Court might conclude that the ...


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