5. Plaintiff's counsel in purchasing the center and its asbestos expert either reside in or regularly travel to New York, but are not subject to compulsory process in Kentucky.
As is readily apparent, each side has stretched far in making its case on this motion, and each has ignored some rather fundamental truths pertinent here. For example, the convenience of plaintiff's litigation counsel and expert is not a relevant factor on a motion of this kind under cases far too numerous to require citation. Similarly, defendant's reliance on the location of documents overlooks the fact that copying technology has made the use of original documents in litigation about as common as the dodo bird except in unusual circumstances involving issues of authenticity and legibility. Moreover, the importance of the location of the Center itself is overstated. Evidence concerning the extent of asbestos-containing material in the Center is likely to come in predominantly, perhaps exclusively, via expert testimony. If counsel think it useful, and the Court thinks it material, for the trier of fact to see parts of the Center, that probably can be accomplished by video as readily -- perhaps more readily -- than by a view of the premises.
In the last analysis, then, we come to this. Plaintiff's choice of forum is entitled to great deference and will be disturbed only upon a strong showing that the balance of convenience and the interest of justice weigh heavily in favor of a transfer. E.g., Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 455, 99 S. Ct. 1215 (1979); Zangiacomi v. Saunders, 714 F. Supp. 658, 660 (S.D.N.Y. 1989), quoting Zorn v. Anderson, 263 F. Supp. 745, 749 (S.D.N.Y. 1966). And only two of the factors cited by the parties warrant much discussion in the context of this motion: the availability of compulsory process for unwilling witnesses
and the relative congestion of the proposed transferor and transferee courts.
Mellon argues that the availability of compulsory process argues strongly in favor of transfer because there are several nonparties, whose personnel cannot be expected to testify voluntarily, within subpoena range in Louisville, but not New York. It cites employees of Harry K. Moore & Sons, Inc., the managing agent for the Center, DEI, and J.C. Penney, a tenant at the Center that allegedly did its own asbestos testing. If the Court were persuaded that all of these people had material evidence and that they were subject to process, and therefore likely to testify, only in Louisville, we would be extremely receptive to defendant's motion. But we are not persuaded given the sparseness of defendant's showing. See, e.g., Factors Etc., Inc., 579 F.2d at 218.
Defendant notes its understanding that Moore & Sons hired DEI. But that is all it has to say on the subject. There is no showing that any of the Moore People know anything about any fact likely to be at issue in this case. Nor is there any showing of the present whereabouts of the handful of Moore employees identified in defendant's papers.
The availability of compulsory process for the relevant DEI employees seems at first blush much more persuasive. But Plaintiff has offered evidence to the effect that DEI has been acquired by another company, that all of the DEI personnel knowledgeable about the Center have left the company, and that no one now at DEI knows anything about the matters at issue here. Hence, even if defendant's relatively conclusory showing as to the likely testimony of the former DEI personnel were sufficient, defendant has failed to establish the present whereabouts of any of them.
Finally, defendant's reference to J.C. Penney does not advance its cause. Plaintiff does allege that Penney had its own survey done, that the survey showed more asbestos than the DEI report provided to plaintiff, and that defendant knew of the Penney study. But the fact that Penney has a store in the Center does not even begin to establish that any knowledge J.C. Penney may have concerning these matters is located in Louisville as distinguished, perhaps, from a real estate department located elsewhere.
Nor is defendant's argument concerning relative congestion persuasive. The argument rests on Administrative Office data showing that the average number of pending cases per district judge as of September 30, 1993 was significantly higher in this District than it was in the Western District of Kentucky. Defendant, however, ignores the very substantial reduction in the average number of pending cases per judge in this District since September 30, 1993 by reason of the filling of almost all of a record number of judicial vacancies.
For the foregoing reasons, defendant's motion to transfer this action is denied at this time. The Court recognizes that the matter may appear differently upon further development of the facts through the discovery process. In consequence, this ruling is without prejudice to renewal of the motion following the completion of discovery should defendant then be able to demonstrate either that the availability of compulsory process or of a view of the Center would result in a transfer materially advancing the interests of justice. In view of this disposition, it is unnecessary to address plaintiff's contention that this action may not be transferred to the Western District of Kentucky because that is not a district in which it might have been brought.
Dated: January 17, 1995
Lewis A. Kaplan
United States District Judge