Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ROYAL & SUNALLIANCE v. BRITISH AIRWAYS

April 12, 2001

ROYAL & SUNALLIANCE A/S/O PILOT AIR FREIGHT AND PPG INDUSTRIES, PLAINTIFF,
v.
BRITISH AIRWAYS, DEFENDANT.



The opinion of the court was delivered by: James C. Francis IV, United States Magistrate Judge.

  MEMORANDUM AND ORDER

This case involves a consignment of glass that was damaged during transit from Atlanta, Georgia to Rome, Italy. Plaintiff Royal & Sunalliance ("Royal"), as insurer and subrogee of Pilot Air Freight ("Pilot") and PPG Industries ("PPG"), seeks to recover $2,961.57 for damage incurred while the cargo was in the control of defendant British Airways of Great Britain and Northern Ireland ("British Airways"). The parties have consented to refer the case to me for all purposes including final disposition pursuant to 28 U.S.C. § 636(c). British Airways now moves pursuant to 28 U.S.C. § 1404(a) to transfer this case to the Northern District of Georgia for the convenience of the parties and witnesses and in the interest of justice. For the reasons that follow, the motion is granted.

Background

On July 30, 1998, Pilot delivered a two-piece consignment of glass weighing 4,544 kilograms to British Airways' warehouse at the Atlanta Airport in Georgia. (Affidavit of Stephen Fearon dated December 12, 2000 ("Fearon Aff."), ¶ 9). That same day, Pilot contracted with British Airways to transport the cargo from Atlanta to Rome via London. (Fearon Aff. ¶ 7). An agent of British Airways noted on the delivery receipt: "both crates poorly crated, not sturdy, band not tight." (Pilot International Delivery Cartage Receipt dated July 30, 1998, attached as Exh. E to Fearon Aff.). According to the plaintiff, the cargo was subsequently damaged during transit.*fn1 (Affidavit of David Loh dated December 19, 2000 ("Loh Aff."), ¶ 3). Pilot submitted a claim for damages to its insurer, Royal. (Affidavit of Frank Wiegl dated December 18, 2000 ("Weigl Aff."), ¶ 7). The claim was handled by Royal's New York City office, which made payment to Pilot under its insurance policy. (Weigl Aff. ¶¶ 8, 9).

Discussion

The statute governing transfer of cases provides that "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Here, there is no dispute that this action could have been brought in the Northern District of Georgia. Accordingly, the determination whether to transfer on grounds of convenience lies "within the broad discretion of the district court." Palace Exploration Co. V. Petroleum Development Co., 41 F. Supp.2d 427, 437 (S.D.N.Y. 1998) (quoting In re Cuyahoga Equipment Corp., 980 F.2d 110, 117 (2d Cir. 1992)). However, the burden of demonstrating the desirability of transfer rests with the moving party. See Filmline (Cross-Country) Productions, Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989); Queens Legal Services Corp. v. Legal Services Corp., No. 00 Civ. 3423, 2000 WL 1093001, at *3 (S.D.N.Y. Aug. 4, 2000).

In evaluating a forum non conveniens motion, courts take into account a variety of factors including: (1) the plaintiff's original choice of forum, (2) the locus of the operative facts, (3) the convenience and relative means of the parties, (4) the convenience of the witnesses, (5) the availability of process to compel the attendance of witnesses, (6) the location of physical evidence, including documents, (7) the relative familiarity of the courts with the applicable law, and (8) the interests of justice. See Rivera Trading Corp. v. Oakley, Inc., 944 F. Supp. 1150, 1159 (S.D.N.Y. 1996); Frasca v. Yaw, 787 F. Supp. 327, 330-33 (E.D.N.Y. 1992); 17 Moore's Federal Practice § 111.13[1][b] (3d ed. 1997). This list is not exhaustive. Some other factors, such as contractual choice of forum clauses or the enforceability of a judgment, are either irrelevant to this case or have not been addresses by the parties.

1. Plaintiff's Choice of Forum

A plaintiff's choice of venue is entitled to significant consideration and will not be disturbed unless other factors weigh strongly in favor of transfer. See In re Warrick, 70 F.3d 736, 741 (2d Cir. 1995); Eskofot A/S v. E.I. DuPont de Nemours & Co., 872 F. Supp. 81, 96; 17 Moore's Civil Practice § 111.13[1][c]. Royal originally brought a suit for damages to personal property in the Civil Court of the City of New York, Small Claims Part. (Fearon Aff. ¶ 4). British Airways then removed the action to federal court, alleging federal question jurisdiction based on the Warsaw Convention.*fn2 (Notice of Removal dated August 29, 2000, attached as Exh. B to Fearon Aff.). Though Royal did not file its initial complaint in United States District Court for the Southern District of New York, New York, not Georgia, is clearly its forum of choice. Accordingly, there must be other strong factors that compel transfer to another jurisdiction.

2. Locus of Operative Facts

The weight accorded to a plaintiff's choice of venue is significantly diminished, however, where the operative facts have no connection to the chosen district. See 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F. Supp. 128, 134 (S.D.N.Y. 1994); Morales v. Navieras de Puerto Rico, 713 F. Supp. 711, 712-13 (S.D.N.Y. 1989). The facts underlying this dispute occurred predominantly in Atlanta. The contract between Pilot and British Airways was executed at the defendant's warehouse in the Atlanta Airport. (Fearon 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.