Coker's argument, the federal courts in New York (and, perhaps, a few other jurisdictions with U.S. "gateway" airports) would become the courts of convenience for most diversity cases involving foreign nationals. This factor weighs heavily in favor of transfer.
Ease of Access of Proof
BANTSA's documents are in New Mexico. (Strong Aff. P 12; BANTSA Br. at 5.) Coker asserts that the documents needed to try the case "could be electronically generated, [and] therefore could be generated in [BANTSA's] office in New York." (Coker Br. at 8; Coker Aff. P 12.) In today's era of photocopying, fax machines and Federal Express, BANTSA's documents easily could be sent to New York, since not many documents are involved. See 15 Wright, Miller & Cooper, Federal Practice & procedure: Jurisdiction 2d § 3853. As Judge Keenan has previously stated, "even assuming Defendant's documents are easily transported, however, this ease of transport weighs no more heavily in favor of this district than the proposed transferee district." Raines v. Switch Mfg. Corp., 1996 WL 413720 at *2. This factor, therefore, is neutral.
Plaintiff's Choice of Forum
"'[A] plaintiff's choice of forum is generally given substantial weight.'" Geiger v. Du Pont, 1997 WL 83291 at *5 (quoting D'Anton JOS, S.L. v. Doll Factory, Inc., 937 F. Supp. 320, 323 (S.D.N.Y. 1996); see also, e.g., Howard v. Four Seasons Hotels, 1997 WL 107633 at *3; Town of Warwick, New York v. New Jersey Dep't of Environmental Protection, 647 F. Supp. 1322, 1323 (S.D.N.Y. 1986). However, when the connection between the forum and the facts and issues in the case is minimal, the "court need not give great weight to plaintiff's choice of forum." Anadigics, Inc. v. Raytheon Co., 903 F. Supp. 615, 617 (S.D.N.Y. 1995); see also, e.g., D'Anton v. Doll Factory, 937 F. Supp. at 323; Dr. Boy v. Nationwide Ins., 1996 WL 350699 at *3; Bordiga v. Directors Guild of America, 159 F.R.D. 457, 462-63 (S.D.N.Y. 1995); St. Regis Mohawk Tribe v. State of New York, 774 F. Supp. 185, 189 (S.D.N.Y. 1991); Arrow Elecs., Inc. V. Ducommun Inc., 724 F. Supp. 264, 265 (S.D.N.Y. 1989); 1 Michael C. Silberberg, Civil Practice in the Southern District of New York § 1021; 15 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3848 at 380-81 & n.15.
Coker's choice of the New York forum also is entitled to lesser weight because Coker has chosen a forum that is not his residence. See, e.g., Eskofot v. Du Pont, 872 F. Supp. at 96 (the "deference accorded to plaintiff's choice of forum, however, is diminished substantially where the forum is neither plaintiff's home district nor the place where the events or transactions underlying the action occurred."); Thomas America Corp. v. Fitzgerald, 1994 U.S. Dist. LEXIS 11193, 94 Civ. 0262, 1994 WL 440935 at *5 (S.D.N.Y. Aug. 11, 1994) ("the plaintiff's choice of forum is accorded less weight where the plaintiff's chosen forum is neither plaintiff's home nor the place where the operative facts of the action occurred."); De Jesus v. National R.R. Passenger Corp., 725 F. Supp. 207, 208 (S.D.N.Y. 1989) ("A plaintiff's choice of forum is entitled to substantial weight. . . . But where a plaintiff chooses a forum that is not his residence, that weight is diminished."); Alexander & Alexander, Inc. v. Donald F. Muldoon & Co., 685 F. Supp. 346, 349 (S.D.N.Y. 1988); Matra Et Manurhin v. International Armament Co., 628 F. Supp. 1532, 1536 (S.D.N.Y. 1986).
In light of the nonexistent connection between this action and the Southern District of New York, Coker's choice of forum is entitled to little weight.
The Forum's Familiarity with the Governing Law
This diversity case is governed by New Mexico law. However, the "fact that the law of another jurisdiction governs the outcome of the case is a factor accorded little weight on a motion to transfer . . . especially in an instance such as this where no complex questions of foreign law are involved." Vassallo v. Niedermeyer, 495 F. Supp. 757, 760 (S.D.N.Y. 1980); Dwyer v. General Motors Corp., 853 F. Supp. at 694; see generally 15 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3854 at 466-68; but see, e.g., Howard v. Four Seasons Hotels, 1997 WL 107633 at *3 (transferee district court "is presumably more familiar with" that state's law, which weighs in favor of transfer). While of little weight, this factor certainly does not support keeping the case in New York.
The Interest of Justice
Coker argues that transfer should be denied because "defendant never complained of forum non conveniens until the court invited [the transfer] motion." (Coker Br. at 7; see also Coker Aff. P 14.) Coker's contention that transfer is inappropriate because the Court invited the transfer motion is meritless:
The broad language of 28 U.S.C. § 1404(a) would seem to permit a court to order transfer sua sponte. While § 1404(b) contains the proviso that transfer may be ordered "upon motion, consent or stipulation of all parties," there is no such limitation in § 1404(a). Cases addressing the question have been surprisingly few, but those that have arisen suggest such power does exist.
Lead Industries Ass'n, Inc. v. OSHA, 610 F.2d 70, 79 n.17 (2d Cir. 1979) (emphasis added & citations omitted); see also, e.g., Atlantic City Elec. Co. v. I-T-E Circuit Breaker Co., 247 F. Supp. 950, 955 (S.D.N.Y. 1965) ("to the extent that any party has joined in the [court's suggested] motions to transfer, the motion may be regarded as though that party had originally moved."); 15 Wright, Miller & Cooper, Federal Practice & Procedure: Jurisdiction 2d § 3844 at 329 & n.2 (§ 1404(a) "is broad enough that a judge can transfer on his own initiative") (citing cases).
Coker also asserts that "to transfer the case to New Mexico will be to frustrate this case and shut the door of justice against [him]." (Coker Aff. P 13; Coker Br. at 8.) To the extent Coker's claim of unfairness is based on counsel's convenience or the additional expense of Coker's flying from Nigeria to New Mexico (over the expense of flying from Nigeria to New York), those factors are entitled to little weight. See, e.g., Raines v. Switch Mfg. Corp., 1996 WL 413720 at *3 (while consideration of parties' relative financial means can be appropriate, minimal financial inconvenience to plaintiff is not determinative, "especially where Plaintiffs and this action have no substantial contacts with this district."); Dr. Boy v. Nationwide Ins., 1996 WL 350699 at *2 ("'mere inconvenience to counsel is not an appropriate factor to consider on a motion to transfer venue'"); Bordiga v. Directors Guild, 159 F.R.D. at 463 ("First, this Court accords little weight to the convenience of plaintiffs' attorneys. . . . Second, the economic situation of the parties does not weigh heavily on this Court's decision."); Thomas America Corp. v. Fitzgerald, 1994 WL 440935 at *5 ("Although the court may also consider the relative means of the parties in deciding a transfer motion, . . . the relative economic ability of the parties to proceed with a case has rarely been a dispositive reason to grant or deny a transfer motion"); Berke v. Gilreath Indus., Inc., 1989 U.S. Dist. LEXIS 12472, 88 Civ. 8350, 1989 WL 129481 at *2 (S.D.N.Y. Oct. 24, 1989) (Keenan, J.) (same); Kolko v. Holiday Inns, Inc., 672 F. Supp. 713, 715-16 (S.D.N.Y. 1987) ("The convenience of plaintiff's attorney, without more, is not decisive in determining whether to grant or deny a transfer motion. . . . The relative economic ability of the parties to proceed with a case has [also] rarely been a dispositive reason"); Matra Et Manurhin v. International Armament Co., 628 F. Supp. at 1535 n.5 ("The Court notes that mere inconvenience to counsel is not an appropriate factor to consider on a motion to transfer venue.").
Balancing All the Factors
When all of these factors are taken into consideration, the balance clearly favors transfer to the District of New Mexico. The events in question happened in New Mexico; the witnesses and documentary proof are located in New Mexico. The "center of gravity" of this action thus clearly lies in New Mexico. See, e.g., Bordiga v. Directors Guild, 159 F.R.D. at 462, 463 ("'The core determination under § 1404(a) is the center of gravity of the litigation. . . .").
Moreover, Coker concedes that the case has no connection to New York, other than that it is more convenient for him to fly from Nigeria to New York than to New Mexico. While the City's tourism department might appreciate Coker's argument, the Court does not. As Judge Keenan has previously stated:
Finally, the Court notes that the Southern District of New York is one of the busiest in the nation. The interests of judicial economy demand that parties may bring suit here only by showing a substantial connection between the cause of action and this district.
Raines v. Switch Mfg. Corp., 1996 WL 413720 at *3. Here, as in Raines, this case has no connection to New York. It should be transferred to the District of New Mexico.
For the reasons set forth above, the Court recommends that BANTSA's (1) partial summary judgment motion as to the Third Count of Coker's complaint (account closing claim) be granted, (2) motion to dismiss for failure to satisfy the amount in controversy requirement be denied, and (3) motion to transfer the case to the District of New Mexico be granted.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from receipt of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John F. Keenan, 500 Pearl Street, Room 1930, and to the chambers of the undersigned, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Keenan. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86, 130 L. Ed. 2d 38 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825, 121 L. Ed. 2d 696 (1992); Small v. Secretary of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72, 6(a), 6(e).
DATED: New York, New York
August 18, 1997
Andrew J. Peck
United States Magistrate Judge