over defendant Castings comports with traditional due process concerns of "notice and fair play." Therefore, based on the facts of the instant case, personal jurisdiction over Castings under CPLR § 302(a)(1) passes constitutional muster.
B. DEFENDANT'S MOTION TO TRANSFER FOR IMPROPER VENUE
In the instant action for breach of contract, venue is governed by the general venue statute, 28 U.S.C. § 1391 (West Supp. 1991). The plaintiff contends that venue is proper in the Eastern District of New York, pursuant to section 1391(a)(2), because a substantial part of the events giving rise to the breach of contract claim occurred within this district, where the plaintiff's offices are located and where the plaintiff conducts its business. Section 1391(a)(2) provides that a civil action wherein jurisdiction is founded only on diversity of citizenship, may, except as otherwise provided by law, be brought only in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated. 28 U.S.C. § 1391(a)(2).
On the other hand, Castings asserts that venue is not proper in this district. Castings contends that the proper district is the Eastern District of Arkansas. The defendant contends that none of the requirements of the applicable venue statute have been satisfied. Specifically, venue cannot be established, pursuant to section 1391(a)(1), (2), or (3) because Castings does not reside in the Eastern District of New York, no substantial part of the events or omissions occurred in this district, and there is another district where venue is proper, namely, the Eastern District of Arkansas. Moreover; Castings contends that the Eastern District of New York is an improper venue pursuant to section 1391(c), because, it claims that Castings is not subject to personal jurisdiction in New York.
It is this court's view that the Eastern District of New York is the proper venue to adjudicate this dispute, however not for the reasons relied upon by the plaintiff. Section 1391(a)(1) provides in pertinent part: "A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in . . . a judicial district where any defendant resides, if all defendants reside in the same state." 28 U.S.C. § 1391(a). Pursuant to 28 U.S.C. § 1391(c), a corporate defendant is considered a resident of a judicial district if it is subject to personal jurisdiction in that particular district at the time the action is commenced. 28 U.S.C. § 1391(c). The official commentary to § 1391(c) explains that, "anything that, would make the corporation amenable to jurisdiction in that district, or permit extraterritorial service of the court's summons . . . would ipso facto make the district a proper venue as well." Commentary on Section 1391, David D. Siegal, 28 U.S.C. § 1391. Essentially, section 1391(c) "equates jurisdiction with venue, for corporate defendants." Guardala Mouthpieces, Inc. v. Sugal Mouthpieces, Inc., 779 F. Supp. 335, 337 (S.D.N.Y. 1991). Thus, Castings is deemed to reside in the Eastern District of New York because as previously discussed, the requirements of personal jurisdiction have been satisfied. Bicicletas Windsor, S.A. v. Bicycle Corporation of America, 783 F. Supp. 781, 785 (S.D.N.Y. 1992). As such, venue is proper in this district. Accordingly, the defendant's motion to dismiss based on improper venue is denied.
C. DEFENDANT'S MOTION TO TRANSFER VENUE TO ANOTHER DISTRICT
In the alternative, Castings moves to transfer the entire action to the Eastern District of Arkansas. A motion to transfer venue from one federal district court to another, when venue is initially proper, is governed by 28 U.S.C. § 1404(a), which provides in relevant part: "for the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil case to an other district or division where it might have been brought." 28 U.S.C. § 1404(a) (West Supp. 1988); Filmline Cross-Country) Prods. v. United Artists, 865 F.2d 513, 520 (2d Cir. 1989).
The goal of 28 U.S.C. § 1404(a) "is to prevent waste 'of time, energy and money' and 'to protect litigants, witnesses and the public against unnecessary inconvenience an expense.'" Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964), quoting, Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 80 S. Ct. 1470, 4 L. Ed. 2d 1540 (1960). The inquiry on a motion to transfer is two-fold. The first issue is whether the action sought to be transferred is on that "might have been brought" in the district court in which the moving party seeks to have the case litigated, namely, the transferee court. If the initial threshold question is answered affirmatively, the court must then look to whether, "the convenience of parties and witnesses" and "the interest of justice", weighs in favor of a transfer to the proposed district. Modern Computer Corp. v. Hsi Ma, 862 F. Supp. 938, 947-48 (E.D.N.Y. 1994); Hernandez v. Graetal Van Lines, 761 F. Supp. 983, 986 (E.D.N.Y. 1991); Schneider v. Sears, 265 F. Supp. 257, 261 (S.D.N.Y. 1967).
In putting forth a § 1404(a) motion to transfer, the moving party has the "burden to clearly establish that a transfer is appropriate and that the motion should be granted." Modern Computer Corp., 862 F. Supp. at 948; see also Factors Etc. Inc. v. Pro Arts, Inc., 579 F.2d 215, 218-19 (2d Cir. 1978), cert. denied, 440 U.S. 908, 59 L. Ed. 2d 455, 99 S. Ct. 1215 (1979); Arrow Elec., Inc. v. Ducommun, Inc. 724 F. Supp. 264, 265 (S.D.N.Y. 1989), quoting, Morales v. Naveiero de Puerto Rico, 713 F. Supp. 711, 712 (S.D.N.Y. 1989); Schneider, 265 F. Supp. at 263. The moving party must support the motion with an affidavit containing detailed factual statements explaining why the transferee forum is more convenient, including "the potential principal witnesses expected to be called and a general statement of the substance of their testimony." Modern Computer Corp., 862 F. Supp. at 948; see also Factors, 579 F.2d at 218; Schieffelin & Co. v. Jack Co. of Boca, Inc., 725 F. Supp. 1314, 1321 (S.D.N.Y. 1989).
Moreover, courts have employed a variety of factors that assist in determining whether to transfer a case to another district. However, none of the criteria employed are individually dispositive. Modern Computer Corp., 862 F. Supp. at 948. In considering a motion to transfer, the plaintiff's choice of forum should not be disturbed by the court unless the following criteria weighs strongly in defendant's favor. Schwartz v. R.H. Macy's, Inc., 791 F. Supp. 94, 95 (S.D.N.Y. 1992). These criterion include: (1) convenience of the parties; (2) convenience of witness; (3) relative means of the parties; (4) locus of operative facts and relative ease of access to sources of proof; (5) attendance of witnesses; (6) the weight accorded the plaintiff's choice of forum; (7) calendar congestion; (8) the desirability of having the case tried by the forum familiar with the substantive law to be applied; (9) practical difficulties; and (10) how best to serve the interest of justice, based on an assessment of the totality of material circumstances. Modern Computer Corp., 862 F. Supp. at 948; see also Gibbs & Hill, Inc. v. Harbert Int'l, Inc., 745 F. Supp. at 1321; Miller v. County of Passaic, 699 F. Supp. 409, 411 (E.D.N.Y. 1988), citing, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1946); Schneider, 265 F. Supp. at 263.
However, most importantly, when a section 1404(a) motion to transfer an action is submitted to the court, the decision whether or not to transfer venue is left to the sound discretion of the district court. Filmline (Cross-County) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989); Modern Computer Corp., 862 F. Supp. at 948. That discretion will not be disturbed upon appeal without a clear showing of abuse. Filmline (Cross-Country) Prods., Inc., 865 F.2d at 520.
In the instant action, the defendant contends that the Eastern District of Arkansas is more convenient. Initially, Castings asserts that it satisfied the threshold question, since this instant litigation could have been brought in the Eastern District of Arkansas. Second, the defendant contends that because the contract was no negotiated in New York and the manufactured "arms" were shipped F.O.B. Arkansas, the location of the operative events were Arkansas. Third, the defendant contends that it is more convenient for the parties and witnesses to the action to transfer venue to Arkansas because of the hardship on Castings' employees if the action were tried in New York. Fourth, the defendant contends that the plaintiff's choice of forum should be given no weight at all in evaluating the transfer of venue because their choice was not based on any factors from the applicable venue statute. Finally, the defendant contends that because the Eastern District of New York has a busier docket than the Eastern District of Arkansas, that the parties will achieve an earlier resolution to the dispute, if the venue is transferred to Arkansas.
In this Court's view, Castings has not met its burden to require this Court to disturb the plaintiff's choice of venue. Although the defendant does reside in Arkansas and this dispute could have been brought in the Eastern District of Arkansas, the defendant fails to satisfy the other relevant factors that courts rely upon when deciding whether to transfer venue. The contract was not exclusively negotiate in New York (negotiations were conducted by telephone, FAX, and mail). However, the operative events relating to the claim can be said to have occurred in of New York. The breach of contract claim stems from the manufacturing and shipping to New York of allegedly defective "arms" by Castings to Laumann where the alleged defects were discovered by Laumann in New York. The alleged defective "arms" are now in Laumann's possession and Laumann's employees who initially detected the defects in the part are in New York. The F.O.B. Arkansas clause in the contract, within the context of venue, is irrelevant. Therefore, since the operative events relating to the breach of contract claim did occur in New York, New York is the proper forum.
Second, although the defendant included in his supporting affidavit, a list of key witnesses who are located in Arkansas, it has failed to provide what their testimony will be, and why it would be inconvenient for any witness if the case remained in the Eastern District of New York. Factors Etc. Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978). In sum, the defendant's contentions of increased convenience to the parties and witnesses are supported only by mere general allegations of convenience.
Third, the plaintiff's choice of forum should not be disturbed by the Court unless the above-mentioned criteria strongly weighs in the defendant's favor. Schwartz v. R.H. Macy's, 791 F. Supp. 94 (S.D.N.Y. 1992). In this court's view, it does not. Deference should be given to the plaintiff's choice of forum. Congressional Financial Corporation v. John Morrell and Co., 761 F. Supp. 16, 17 (S.D.N.Y. 1992). The purpose of 1404(a) is not to shift the inconvenience from one party to the other. Milgrim Thomajan & Lee P.C v. NYCAL Corp., 775 F. Supp. 117 (S.D.N.Y. 1991). In fact, there will usually be greater inconvenience to one of the parties depending upon where the trial is held, in this case whether it will be New York or Arkansas. The plaintiff's choice of forum should only be disturbed if that choice is completely and utterly outweighed by the severe inconvenience of the defendant. The defendant has not satisfied this standard. Accordingly, "the plaintiff is entitled to the benefit of its choice of forum." Trafalgar Capital Corp. v. Oil Producers Equipment Corp., 555 F. Supp. 305, 314 (S.D.N.Y. 1983).
Finally, the defendant asserts that the interest of justice will be served more efficiently by a transfer because the docket of this court, the Eastern District of New York, is more congested than the District Court of Eastern District of Arkansas. Although this factor should be accorded some weight in determining a motion pursuant to § 1404(a), it is not dispositive. Foster v. Litton Industries, Inc., 431 F. Supp. 86, 88 (S.D.N.Y. 1977); Milgrim Thomajan & Lee, P.C. v. NYCAL Corp., 775 F. Supp. 117, 122 (S.D.N.Y. 1991). This court is not swayed by the defendant's argument, given all of the other factors weighing against a transfer. In any event, if the parties move along as urged by the Magistrate Judge in charge of discovery, a jury case can be heard within two years in this Court.
An additional point not addressed by the defendant, however, is the New York choice of law provision in the contract between the parties. Since both parties agreed to apply New York law to govern all disputes arising from the contract, the district court in making its venue determination, is entitled to give some weight to the fact that the agreement calls for New York law to govern. Filmline (Cross-Country) Prods. v. United Artists, 865 F.2d 513, 520 (2d Cir. 1989); 15 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 3854, at 466-68. According to the Supreme Court of the United States in Van Dusen v. Barrack, 376 U.S. 612, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964), "there is an appropriateness . . . in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself." Van Dusen, 376 U.S. at 645, quoting, Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1940).
All of the aforementioned factors militate in favor of a New York forum, and against transferring the case. In this court's view, a trial in this forum would not establish "oppressiveness and vexation to a defendant . . . out of all proportion to plaintiff's convenience." American Dredging Co. v. Miller, 127 L. Ed. 2d 285, 114 S. Ct. 981, 985 (1994).
Accordingly, Castings' motion to transfer this action to another district pursuant to 28 U.S.C. § 1404(a) is denied in all respects.
After reviewing the parties' submissions, and for the reasons stated above, it is hereby
ORDERED, that the defendant's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(2) on the ground of lack of personal jurisdiction over the defendant is DENIED; it is further
ORDERED, that the defendant's motion to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(3) on the ground that venue is improper in the Eastern District of New York is DENIED; it is further
ORDERED, that the defendant's motion to transfer this case to another district pursuant to 28 U.S.C. § 1404(a) is DENIED; and it is further
ORDERED, that the parties report to the assigned Magistrate Judge and proceed to complete discover expeditiously.
Dated: Uniondale, New York
February 9, 1996
Hon. Arthur D. Spatt
United States District Judge
© 1992-2004 VersusLaw Inc.