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LONGO v. WAL-MART STORES

December 18, 1999

FRANCESCA LONGO, PLAINTIFF
v.
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 Arkansas.

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 Arizona.

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.

DISCUSSION

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).


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