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