United States District Court, Eastern District of New York
December 18, 1999
FRANCESCA LONGO, PLAINTIFF
WAL-MART STORES, INC., DEFENDANT.
The opinion of the court was delivered by: Spatt, District Judge.
MEMORANDUM OF DECISION AND ORDER
As we approach the dawn of a new millennium, the age of the video
deposition, at least as it relates to the testimony of treating
physicians, is upon us. This is a personal injury action to recover
damages for injuries allegedly suffered by the Plaintiff when she slipped
and fell in a store owned by the Defendant Wal-Mart Stores, Inc. in
Arizona. Presently before the Court is the Defendant's motion to transfer
the case to the District Court for the District of Arizona.
The Plaintiff's complaint alleges that on September 29, 1996, she
slipped and fell on a wet floor in a Wal-Mart store located in Glendale,
Arizona and suffered substantial injuries. The Plaintiff commenced an
action on April 30, 1998 in New York State Supreme Court, Kings County,
seeking $940,000 in damages. The complaint alleged that "at the time of
the commencement of this action, Plaintiff Francesca Longo resided in the
County of Kings, State of New York." The Defendant removed the case to
this Court on diversity grounds on June 18, 1998, indicating that the
Defendant was a Delaware corporation with its principal office in
At some unspecified point thereafter, the Plaintiff was deposed at
which time she testified that although she presently resided in New
York, she intended to move permanently to Glendale, Arizona "within the
next thirty days." Subsequently, on April 30, 1999, the Defendant served
a request for admission on the Plaintiff's counsel, requesting that the
Plaintiff admit that she presently resides in Glendale, Arizona.
According to the Defendant's motion papers, no response to that request
for admission was ever served by the Plaintiff, and therefore, the
request is deemed admitted pursuant to Fed. R.Civ.P. 36(a). In addition,
the Defendant alleges in its moving papers (and the Plaintiff does not
dispute) that all of the potential witnesses, other than some of the
doctors who have treated the Plaintiff, are all currently residing in
The Plaintiff opposes transfer of the case, alleging that she has been
treated by six different medical providers, and that the burden on her of
producing those witnesses for trial in Arizona would be extreme. By
contrast, she alleges that there are only two potential fact witnesses
for the Defendant, and that as a corporation of great financial means,
the Defendant could more easily absorb the cost of producing those
witnesses for trial in New York.
The moving party has the "burden to clearly establish that a transfer
is appropriate and that the motion should be granted." Laumann Mfg.
Corp. v. Castings USA Inc., 913 F. Supp. 712, 720 (E.D.N.Y. 1996), see
also Factors Etc. Inc. v. Pro Arts, Inc., 579 F.2d 215, 218-19 (2d
Cir. 1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d
455(1979). The Court's inquiry on a motion to transfer is two-fold. The
first issue is whether the action sought to be transferred is one that
"might have been brought" in the district court in which the moving party
seeks to have the case litigated, namely, the transferee court. Here, the
parties are diverse, with the Plaintiff admittedly being an Arizona
resident and the Defendant's being a Delaware Corporation with its
principal place of business in Arkansas. 28 U.S.C. § 1332. Venue in
the District of Arizona would be proper under 28 U.S.C. § 1391(a)(2),
as it is the district in which a substantial part of the acts or
omissions giving rise to the claim occurred.
Because the initial threshold question is answered affirmatively, then
the court must then examine whether, "the convenience of parties and
witnesses" and "the interest of justice", weighs in favor of a transfer
to the proposed district. Laumann Mfg. Corp., 913 F. Supp. at 720; Modern
Computer Corp. v. Ma, 862 F. Supp. 938, 947-48 (E.D.N.Y. 1994). The
moving party has the "burden to clearly establish that a transfer is
appropriate and that the motion should be granted." Laumann Mfg. Corp.,
913 F. Supp. at 720 (quoting Modern Computer Corp., 862 F. Supp. at
948); see also Factors Etc., 579 F.2d at 218-19.
Although courts have employed a variety of factors that serve as a
guidepost in helping to determine whether to transfer a case to another
district, none of the factors are singly dispositive. Modern Computer
Corp., 862 F. Supp. at 948. The criteria 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. Pall Corp. v. PTI Technologies, Inc., 992 F. Supp. 196,
199 (E.D.N.Y. 1998); Wine Markets Int'l, Inc. v. Bass, 939 F. Supp. 178,
181 (E.D.N.Y. 1996); Modern Computer Corp., 862 F. Supp. at 948.
1. Convenience of the parties
The Court finds that the convenience of the parties is best served by
transferring the case. The Plaintiff presently resides in Arizona, and
thus, a transfer of the case actually works to her convenience. The
Defendant, being principally located in Arkansas, is equally
inconvenienced by trial in either New York or Arizona. However, since its
Glendale, Arizona store is the location at issue here, trial in Arizona
is more convenient to the Defendant than would be a trial in New York, as
none of Defendant's New York stores are involved in the case.
2. Convenience and attendance of the witnesses
The convenience of witnesses also seems to tip in favor of a transfer.
The Defendant has identified two principal defense witnesses, Ken Money
and Kimberly Matos, both of whom are Arizona residents. In addition, the
Defendant's motion papers indicate that Plaintiff's primary fact
witness, Joseph Gluck, also resides in Arizona. All three of these
witnesses would be convenienced by a trial in Arizona rather than New
York. Moreover, all three are beyond this Court's subpoena power, a
factor that weighs especially heavily in favor of transfer. See Fischer
v. Enterprise Rent-A-Car, 1996 WL 251426 (E.D.N Y 1996) citing Hernandez
v. Graebel Van Lines, 761 F. Supp. 983, 990 (E.D.N Y 1991).
The Plaintiff's main argument in opposition to the motion to transfer
venue to Arizona is that the Plaintiff was treated by five doctors and
one "health care provider." The Plaintiff's papers do not identify
these providers. The Plaintiff's opposition to the motion implies that
these medical providers are located in New York, although logic suggests
that, if the Plaintiff was injured in Arizona, some of her medical
providers — such as persons providing first aid or immediate
treatment for her injuries — may be located in Arizona. Even
assuming that all her medical providers reside in New York, the Plaintiff
has not indicated whether all of the providers will necessarily testify
live, nor does she indicate what hardships might arise from having such
witnesses testify by deposition pursuant to Fed.R.Civ.P. 32. In the
absence of such evidence to counterbalance the clear advantages shown by
the Defendant of having the three identified fact witnesses testify in
Arizona, the Court finds that the convenience of the witnesses weighs in
favor of transfer.
In addition, the Plaintiff can effectively place the testimony of her
New York physicians before an Arizona jury by either a video deposition
or live video testimony. It is recognized that a videotaped deposition is
generally more effective than reading a transcript for the presentation
of deposition testimony. In addition, the substantial fee of a physician
witness can be reduced and valuable presentation time can be conserved by
using videotaped depositions. For a discussion of the advantages of the
use of video depositions at trial, see Federal Judicial Center, Manual
for Complex Litigation 3d § 22.332 (1995), citing Michael J. Henke,
The Taking and Use of Videotaped Depositions, 16 Am.J. Trial Advoc. 151,
165(1992) and Joseph, Modern Visual Evidence, § 3.03[f] (1984;
Supp. 1997). See also Sandidge v. Salen Offshore Drilling Co.,
764 F.2d 252, 259 n. 6 (5th Cir. 1985); United States v. Tunnel,
667 F.2d 1182, 1185 (5th Cir. 1982); Weiss v. Wayes, 132 F.R.D. 152,
154-55 (M.D.Pa. 1990); Rice's Toyota World v. S.E. Toyota Distrib., 114
F.R.D. 647, 649 (M.D.N.C. 1987); U.S. v. Baker, 45 F.3d 837 (4th Cir.
1995) (video conference procedure in civil commitment hearing did not
violate constitutional due process protection).
3. Relative means of the partiesu
In determining whether to transfer a case, the Court may consider
whether a disparity between the parties exists with respect to their
relative means, especially in cases such as this one where an individual
plaintiff is suing a large corporation. See e.g. National Utility
Service, Inc. v. Queens Group, Inc., 857 F. Supp. 237, 242 (E.D.N.Y.
1994). However, in this unusual situation, the Plaintiff is now a
permanent resident of the transferee jurisdiction. Under these
circumstances, the Court finds that a transfer of the case to Arizona
would actually place less of a strain on the Plaintiff's means than would
keeping the case in New York, which would require her to travel to this
location to attend the trial. Thus, in this situation, the disparity of
means between the individual Plaintiff and the corporate Defendant
actually favors transferring the case.
4. Locus of operative facts and relative ease of access to sources of
The injury at issue was sustained by the Plaintiff in Arizona. Transfer
of the case to Arizona places the parties closer to the store location at
issue for any discovery and inspection. Also, with the Plaintiff residing
in Arizona, the most convenient place to conduct medical examinations of
her by the Defendant would be Arizona. While transfer would move the
parties further away from any medical providers the Plaintiff used in New
York, discovery involving these providers would likely be conducted in
large part by videotaped deposition or by documents that can be easily be
mailed to Arizona. On the whole, the Defendant has demonstrated that this
factor weighs in favor of transfer.
5. The weight accorded the plaintiffs choice of forum
The Plaintiff's choice of forum is afforded "great weight" in
appropriateness of a transfer. Wine Markets Int'l, supra. at 183. Here,
the Plaintiff initially commenced this action in New York State.
However, the Court observes that the Plaintiff's decision to commence the
suit in New York may have been motivated by her residence being in New
York at the time the case was filed. The fact that she has since
relocated to Arizona causes the Court to question the logic of deferring
to her initial selection of New York as a forum. Nevertheless, the Court
will consider this factor as weighing in favor of denying transfer of the
7. Calendar congestion
The Defendant has not offered any proof regarding the relative press of
business in the District of Arizona. The Court notes that its own
caseload is among the highest in the Federal judiciary, and on this
basis, finds that this factor probably weighs in favor of transfer.
However, because the Defendant has offered no evidence showing the
District of Arizona's current caseload, the Court finds that this factor
should be given minimal weight in the overall analysis.
8. The desirability of having the case tried by the forum familiar with
the substantive law to be applied.
This case concerns allegations of negligence against the Defendant.
Thus, the case is governed by the substantive law of the state in which
the acts or omissions took place, namely Arizona. Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188(1938); Block v. First
Blood Assocs., 988 F.2d 344, 349 (2d Cir. 1993); Humphreys v. Humphreys,
949 F. Supp. 1014, 1020 (E.D.N.Y. 1997). While the Defendant has not
offered any factual assertion that the substantive law of negligence in
Arizona is significantly different from that applied in New York, the
Court nevertheless finds that as a general rule, a District Court sitting
in Arizona is more likely to be familiar with the substantive tort law of
the State of Arizona than this Court. Therefore, the Court finds that
this factor weighs slightly in favor of transfer.
9. Practical difficulties
The Defendant has not offered any evidence of practical difficulties,
other than those issues described above, that would result unless a
transfer is granted. Therefore, the Court does not find that this factor
weighs in favor of transfer.
10. How best to serve the interest of justice, based on an assessment of
the totality of material circumstances
Examining the totality of the circumstances, the Court is convinced
that trial of this case in Arizona will best serve the interests of
justice. The Court finds that the Plaintiff's current residence in
Arizona makes a transfer there more convenient for her, as well as for
the Defendant. The inconvenience of having some of the Plaintiff's
medical providers travel to Arizona or, more reasonably, testify by video
deposition or video testimony is clearly outweighed by the convenience of
having discovery and trial take place in the district where the Plaintiff
and all of the primary fact witnesses reside.
Therefore, the Defendant's motion to transfer this case to the United
States District Court for the District of Arizona is GRANTED. The Clerk
of Court is directed to transfer the case.
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