events with the most relevance to this action, the initial
contact between McNulty and DealTime, where McNulty contends he
disclosed all relevant information regarding the SEC action in
early January 1999, and the February 22, 1999 lunch meeting at
which McNulty wrote the $250,000 check that was the basis of the
subsequent Agreement, took place in New York.
This factor weighs against transfer.
4. The Availability of Compulsory Process
McNulty alleges that he would not be able to compel his
witnesses to testify in the Southern District of New York, but
that DealTime's witnesses could be compelled to testify in the
Central District of California by virtue of their employment and
agent status with the corporation. While this contention may be
true with regard to DealTime's witnesses, it does not tip the
balance in favor of transfer in light of the option of
videotaping testimony of witnesses unwilling to travel. See
Fed. R.Evid. 804(a)(5); Citigroup Inc. v. City Holding Co.,
97 F. Supp.2d 549, 561-62 (S.D.N.Y. 2000).
The availability of compulsory process is a neutral factor in
the transfer analysis.
5. Location of Documents and Access to Proof
Neither party argues that the location of documents and other
proof is a relevant factor to the transfer analysis.
6. Familiarity With Governing Law
To the extent this action raises questions of federal law,
either forum is equally capable of hearing and deciding those
questions. This case also raises state law issues. If, pursuant
to a choice of law analysis, it is determined that these issues
will be governed by the state law of one forum rather than the
other, then the greater familiarity of the federal court sitting
in that forum militates somewhat in favor of transfer. See Longo
v. Wal-Mart Stores, Inc., 79 F. Supp.2d 169, 173 (E.D.N.Y. 1999);
Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 991 (E.D.N Y
Whether or not this case is transferred, any choice of law
analysis will be conducted under the choice of law rules of New
York. See Van Dusen v. Barrack, 376 U.S. 612, 621, 84 S.Ct.
805, 11 L.Ed.2d 945 (1964) (choice of law analysis governed by
transferor court's choice of law rules); Klaxon Co. v. Stentor
Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477
(1941) (federal court applies choice of law rules of state in
which it sits). With respect to tort actions, New York calls for
application of the law of the forum with the greater interest in
the adjudication. See Curley v. AMR Corp., 153 F.3d 5, 12 (2d
Cir. 1998). Interest is determined with reference to the facts or
contacts that relate to the purpose of the particular laws in
conflict, which facts or contacts are "almost exclusively, the
parties' domiciles and the locus of the tort." Id. McNulty is
domiciled in the proposed transferee venue, while DealTime is an
Israeli corporation. However, both parties' theories of the case
at least implicitly recognize New York as the locus of the tort,
and therefore these rules would call for application of the
substantive law of New York. See id.
This factor weighs against transfer.
7. Deference to DealTime's Choice of Forum
A plaintiff's choice of forum is generally entitled to
"substantial deference." Piper Aircraft Company v. Reyno,
454 U.S. 235, 256, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). However, a
foreign plaintiff's forum choice may merit less deference in a
motion to transfer pursuant to § 1404. See Creaciones Maternales
De Mexico, S.A. de C.V. v. Kiddie Products, Inc., No. 94 Civ.
8007(JPK), 1995 WL 617188, *3 (S.D.N.Y. Oct.20, 1995)
(recognizing lower deference standard and transferring action to
to § 1404(a) despite Mexican plaintiff's choice of forum in the
Southern District of New York).*fn1
McNulty argues that he should not have to litigate in
DealTime's choice of forum simply because DealTime "won the race
to the courthouse". However, DealTime disputes this
characterization and argues that its claims are legitimate rather
than merely anticipatory, and have a clear nexus to this venue.
As discussed above, the most relevant events did take place in
New York, so there has been no improper forum shopping. See Toy
Biz, Inc. v. Centuri Corp., 990 F. Supp. 328, 332 (S.D.N.Y. 1998)
(finding no forum shopping where facts of case had significant
connection to forum).
Deference to DealTime's choice of forum — even under the lower
standard that may be applicable to foreign plaintiffs — weighs
8. The Interest of Justice
McNulty has not argued that being haled into court in this
venue will cause him undue financial hardship, nor offered any
documentation to that effect. See Dostana, 2000 WL 1170134, *4.
C. Transfer is Not Warranted by the Weight of the Balancing
After balancing the convenience to the parties and witnesses
and the interests of justice, McNulty has not shown that transfer
is warranted. His motion is denied.