that non-party witnesses are identified whose testimony may prove significant, there is no reason to suppose that they are within the subpoena power of this Court, whereas they are quite likely to be within the subpoena power of either the Northern of Western District. Hence, this factor favors transfer as well. Neither side suggests that there may be non-party witnesses to anything relevant to the AKC's involvement in this matter.
Plaintiff argues that New York City would be a more convenient forum for several willing non-party witnesses. To the extent this is substantiated, it of course favors retention of the case here. Plaintiff, however, has overstated his case. Two of these witnesses, Mrs. Eddy Golt and Christiane Golt, reside in Maine and have no substantial convenience interest in a New York City forum. One, Mr. Smith, is an expert witness, whose convenience is immaterial according to settled principles. A fourth is the Director of the AKC's Investigations and Inspections Unit. In view of the AKC's lack of objection to transfer, plaintiff cannot rely on his convenience. Plaintiff's non-party witnesses whose convenience is material here and favors a New York forum therefore are two, one of whom resides in Connecticut and the other in New Paltz, New York.
Taking all of these considerations together, the Court concludes that the moving defendants have met their burden of overcoming the weight properly attached to plaintiff's choice of forum and demonstrating that a transfer would be in the interest of justice and serve the convenience of the parties and witnesses. The heavy preponderance of parties in the Seneca County area, the greater likelihood that unwilling witnesses could be compelled to appear in that area, and plaintiff's non-residence overcome plaintiff's preference, the presence here of the AKC and defendant Crowley, and the legitimate convenience interests of the non-party witnesses identified by plaintiff.
There remains the question whether the action might have been brought in the prospective transferee districts and, if so, the choice of destination. In a multidefendant case like this, an action "might have been brought" only in a district in which all defendants are amenable to process and in which venue would be proper for all of them. 15 CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND PROCEDURE: JURISDICTION AND RELATED MATTERS 2D § 3485, at 351 (1986).
In view of the fact that the incidents constituting the major part of the events at issue here -- the encounter with the State Park Police and the FLKC disciplinary action -- took place in the Western District of New York and form the basis for the subsequent events involving the AKC, there is no doubt that "a substantial part of the events or omissions giving rise to the claim occurred" in that district and that venue therefore would be appropriate there as to all defendants. 28 U.S.C. § 1391(b)(2). All defendants would be subject to service of process in an action filed anywhere in the state, the New York defendants by virtue of their residence and the one out-of-state defendant by virtue of his alleged tortious actions within the state.
See N.Y. CPLR §§ 302(a), subd. 2 (long arm jurisdiction based on tortious acts within the state),
308, subd.1 (natural persons may be served "within the state"), 311 (corporations served by delivery of process to appropriate representative). Hence, the action "might have been brought" in the Western District.
The action, however, could not have been brought in the Northern District because venue would not lie there. As Seneca County is in the Western District and nothing is alleged to have occurred in the Northern District, venue may not be premised on 28 U.S.C. § 1391(b)(2). Section 1391(b)(1), which permits venue to be laid in any district in which a defendant resides if all defendants reside in the state does not apply because defendant Robert H. Slay is alleged to be a resident of South Carolina. And Section 1391(b)(3), which establishes venue where any defendant resides if there is no other district in which the action otherwise may be brought, is inapplicable in consequence of the availability of a forum in the Western District. Accordingly, the Court concludes that the Western District of New York is the only permissible transferee forum among those suggested by the defendants.
For the foregoing reasons, this action is transferred to the United States District Court for the Western District of New York.
Dated: December 30, 1996
Lewis A. Kaplan
United States District Judge