5. Availability of Process to Compel Attendance of Unwilling Witnesses.
Based on the affidavits and statements submitted, the parties believe that all potential nonparty witnesses reside in New York State. Both the Western and Southern Districts have co-extensive subpoena powers within New York. Defendants argue that the Southern District should be favored because that court has the ability to reach into New Jersey and Connecticut to subpoena witnesses. However, defendants do not identify any potential witnesses residing outside of New York State. Accordingly, this factor does not favor either district.
6. Relative Means of the Parties.
Neither party has provided information necessary to assess the weight of this factor.
7. Forum's Familiarity with Governing Law.
This court must assume that the federal courts in both this district and in the Southern District of New York are equally familiar with the legal principles necessary to resolve this issue, as well as the substantive issues of New York law. Accordingly, this factor does not favor either party.
8. Weight Accorded Plaintiff's Choice of Forum.
Generally, the plaintiff's choice of forum is entitled to considerable weight, and should not be disturbed unless the balance of the several factors is strongly in favor of the defendant. Kolko v. Holiday Inns, Inc., 672 F. Supp. 713, 715 (S.D.N.Y. 1987). Where the factors are equally balanced, the plaintiff is entitled to its choice of forum. Teachers Insurance & Annuity Association of America v. Butler, 592 F. Supp. 1097, 1106 (S.D.N.Y. 1984). Further, the plaintiff's choice is generally accorded more deference where there is a material connection or significant contact between the forum state and the events allegedly underlying the claim, Levitt v. State of Maryland Deposit Insurance Fund Corp., 643 F. Supp. 1485, 1493 (E.D.N.Y. 1986), or where the plaintiff is a resident of the forum district. See, e.g., Amvest Capital Corp. v. Banco Central, S.A., 628 F. Supp. 1258 (S.D.N.Y. 1986). Where transfer would merely shift the inconvenience from one party to the other, "the plaintiff's choice of forum should not be disturbed." De Luxe Game Corp. v. Wonder Products Co., 166 F. Supp. 56, 61 (S.D.N.Y. 1958).
I find that plaintiff's choice of forum is not entitled to substantial deference. As the preceding analysis demonstrates, the primary locus of the relevant events and documents is in Westchester County, in the Southern District of New York. With the exception of the "convenience of witnesses," the remaining factors are either neutral or weigh in favor of transfer. Further, plaintiff does not reside in the Western District.
9. Trial Efficiency.
Neither party has provided information regarding this factor. However, this court notes that the case load of this district appears to be somewhat higher than that of the Southern District. For example, in 1996, each judge in the Western District had 630 pending cases and the average time from the filing of a civil action to trial was 35 months. Each judge in the Southern District had 503 pending cases, with civil actions taking 24 months from filing to trial. 1996 Federal Court Management Statistics.
Accordingly, in light of the foregoing analysis and considering the totality of the circumstances, I find that the interests of justice require transfer of this action to the Southern District of New York pursuant to 28 U.S.C. § 1404(a).
II. Dismissal Based on Statute of Limitations.
Defendants claim that a six-year statute of limitations applies to plaintiff's claims under New York law. N.Y. Civ. Prac. L. & R. 213(2). They contend that the limitations period began to run no later than the date of Barrett Leasing's last payment, and that plaintiff's suit, initiated in February 1996, is untimely. In response, plaintiff claims that as the RTC's assignee, it is entitled to the benefit of the statute of limitations available to the RTC pursuant to 12 U.S.C. § 1821(d)(14)(A) and (B).
This case having been transferred to the Southern District of New York, it is appropriate for the Court in that district to decide the question of dismissal based on the statute of limitations. See Lencco Racing, supra, 953 F. Supp. at 73-74; S.C. Johnson & Son, Inc. v. Gillette Co., 571 F. Supp. 1185, 1188 (N.D.Ill. 1983) (After granting motion to transfer, court denied motion for preliminary injunction, leaving the matter to the transferee court).
Therefore, defendants' motion to dismiss on the ground that the action is barred by the statute of limitations is denied without prejudice, with leave to renew in the Southern District of New York.
For the foregoing reasons, defendants' motion (Item 7) to dismiss for improper venue is DENIED, defendants' motion to transfer venue to the Southern District of New York is GRANTED, and defendants' motion to dismiss on the ground that the action is barred by the statute of limitations is DENIED without prejudice, with leave to renew in the Southern District of New York.
CAROL E. HECKMAN
United States Magistrate Judge
DATED: Buffalo, New York
July 15, 1997
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