Aff. ¶ 8). It was there
that the cargo was tendered and an agent of British Airways took
exception to the condition of the consignment. (Fearon Aff. ¶ 9.) At
no time did the cargo enter or pass through the State of New York.
(Fearon Aff. ¶ 10). The only event that took place in New York was
Royal's adjustment of Pilot's insurance claim. (Weigh Aff. ¶¶ 8, 9).
Because the issue in dispute here bears little connection to New York,
Royal's choice of forum must be afforded less weight.
3. Convenience and Relative Means of the Parties
When considering the convenience of the parties, "[t]he logical
starting point is a consideration of the residence of the parties."
Frasca, 787 F. Supp. at 331 (citing Heyco, Inc. v. Heyman,
636 F. Supp. 1545, 1550 (S.D.N.Y. 1986)). Royal is a multinational
insurance company with its United States headquarters located in
Charlotte, North Carolina and a principal place of business in New York
City. (Loh Aff. ¶ 7). British Airways is a foreign corporation
organized under the laws of the United Kingdom, but which does business
throughout the United States, including in Georgia. (Fearon Aff. ¶
6). Thus, both parties are capable of litigating in either district; this
is not a case where one party has disproportionate resources. See Dwyer
v. General Motors Corp., 853 F. Supp. 690, 693-94 (S.D.N.Y. 1994).
Accordingly, the convenience of the parties is not an significant
consideration in this case.
4. Convenience of the Witnesses
When weighing the convenience of the witnesses, courts must consider
the materiality, nature, and quality of each witness, not merely the
number of witnesses in each district. See Aquatic Amusements Associates
v. Walt Disney World Co., 734 F. Supp. 54, 57 (N.D.N.Y. 1990). The party
seeking transfer "must clearly specify the key witnesses to be called and
must make a general statement of what their testimony will cover." Howard
v. Four Seasons Hotels, Ltd., No. 96 Civ. 4587, 1997 WL 107633, at *3
(S.D.N.Y. Mar. 10, 1997) (quoting Factors Etc., Inc. v. Pro Arts, Inc.,
579 F.2d 215, 218 (2d Cir. 1978)). Finally, the convenience of non-party
witnesses is more significant than that of party witnesses. See Nieves
v. American Airlines, 700 F. Supp. 769, 773 (S.D.N.Y. 1988).
Royal argues that it needs the testimony of Frank Weigl and Susan
Smith, two claims adjusters at its New York office, to establish damages
and to authenticate business records. (Loh Aff. ¶ 5). Royal also
asserts that it intends to depose witnesses from PPG and Pilot who are
located in Pittsburgh and Lima, Pennsylvania, respectively. (Loh Aff.
¶ 5). Finally, Royal has stated that it does not plan to call any
witnesses from Georgia. (Loh Aff. ¶ 6.). British Airways argues
that Mr. Weigl and Ms. Smith "are, at best, peripheral witnesses with no
personal knowledge of the handling of the consignment." (Defendant's Reply
Memorandum of Law dated January 9, 2001 ("Def. Reply Memo."), at 3).
The defendant contends that damages can be established with receipts,
while authenticity of business documents can be verified by affidavit.
(Def. Reply Memo. at 3). British Airways further alleges that it must
conduct depositions of non-party witnesses located in Georgia including
Jeff Campbell, the Aerolink International Manager who accepted the
freight at the Atlanta warehouse, and various Pilot employees. (Def.
Reply Memo. at 3).
British Airways has demonstrated that the witnesses needed in Georgia
are more material to this case than are the various claims adjusters
located in New York and Pennsylvania. Mr. Campbell is necessary to "give
testimony regarding the condition of the consignment when delivered to
the [British Airways] Atlanta warehouse and whether [Pilot] had notice
of improper packaging." (Def. Reply Memo. at 3). Such testimony goes to the
heart of this case, in contrast to the testimony of the claims adjusters
from Royal, Pilot, and PPG who are needed only to establish damages and
authenticate business records. There is no evidence that these employees
had any direct knowledge of the condition of the cargo when it arrived in
Atlanta. Furthermore, the presence of witnesses in Pennsylvania must be
afforded even less weight because they too are located outside the
plaintiff's chosen venue. See U.S. Fidelity & Guaranty Co. v. Republic
Drug Company, 800 F. Supp. 1076, 1082 (E.D.N.Y. 1992).
The convenience of witnesses has been characterized as "the most
powerful factor governing the decision to transfer a case." In re Eastern
District Repetitive Stress Injury Litigation, 850 F. Supp. 188, 194
(E.D.N.Y. 1994) (citing Saminsky v. Occidental Petroleum Corp.,
373 F. Supp. 257, 260 (S.D.N.Y. 1974)). Here, this factor cuts in favor
5. Ability to Compel Witness Testimony
"Related to the convenience of witnesses is the ability to compel the
attendance of witnesses who might be reluctant to appear voluntarily."
Royal Insurance Co. of America v. United States, 998 F. Supp. 351, 354
(S.D.N.Y. 1998). This factor also favors British Airways. The only
non-party witness listed by either of the parties is Mr. Campbell, who is
a manager at Aerolink International. All the other witnesses are
employees or within the control of named litigants. This includes the
claims adjusters from Pilot and PPG. See id. (presuming that insured
party, though not a named plaintiff, would be required by terms of his
insurance to cooperate with insurance company).
6. Location of Physical Evidence
Though the location of physical evidence favors transfer in this case,
it is not a significant factor.
It seems unlikely that finder of fact will have to visit the Atlanta
warehouse to observe the movement of a typical consignment, as suggested
by the defendant. Though most of the documents related to this matter are
located in Atlanta, they are not voluminous and are easily transported.
Cf. id. (citing McEvily v. Sunbeam-Oster Co., 878 F. Supp. 337, 348
(D.R.I. 1994)) (ease of access to large quantity of documents favors
7. Familiarity with Governing Law
When courts consider the relative familiarity of a potential venue with
the applicable law, they are concerned with the application of state law
in diversity suits. See, e.g., Lauman Manufacturing Corp. v. Castings
USA, Inc., 913 F. Supp. 712, 721-22 (E.D.N.Y. 1996); Eastern District
Repetitive Stress Injury Litigation, 850 F. Supp. at 196. This case,
however, is in federal court because it arises under an international
treaty to which the United States is a party. All federal courts are
presumed to be fully capable of ruling on nationally applicable legal
principles. See Royal Insurance, 998 F. Supp. at 355. Accordingly, this
factor does not support transfer.
8. Interest of Justice
The court must also consider whether a transfer is in the interest of
justice, "a concern which relates primarily to issues of judicial
economy." Dostana Enterprises LLC v. Federal Express Corp., No. 00 Civ.
0747, 2000 WL 1170134, at *7 (S.D.N.Y. Aug. 16, 2000).
British Airways argues that a trial in Georgia would be more
expeditious and less expensive than a trial in New York. (Def. Memo. at
7). "Although certainly not decisive,
docket conditions or calendar
congestion of both the transferee and transferor districts is a proper
factor for the Court to consider and is afforded `some weight.'"
Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 991 (E.D.N.Y. 1991)
(citations omitted). Indeed, it has been noted that the Southern District
of New York is one of the busiest courts in the nation. See Raines v.
Switch Manufacturing Corp., No. 96 Civ. 2361, 1996 WL 413720, at *3
(S.D.N.Y. July 24, 1996). Accordingly, retention of a case such as this,
with only minimal connections to New York, would not serve the interest
of justice, and would only "delay adjudication of other cases brought by
parties who are compelled to sue [here]." Kanbar v. U.S. Healthcare,
Inc., 715 F. Supp. 602, 606 (S.D.N.Y. 1989).
Notwithstanding Royal's choice of New York as the venue for this
action, the relevant factors favor transferring it to the Northern
District of Georgia.
Accordingly, British Airways' motion is granted and the Clerk of Court
shall effect the transfer.