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TM CLAIMS SERVICE v. KLM ROYAL DUTCH AIRLINES

June 7, 2001

TM CLAIMS SERVICE A/S/O FUJI PHOTO FILM, INC., PLAINTIFF,
v.
KLM ROYAL DUTCH AIRLINES, DEFENDANT.



The opinion of the court was delivered by: Berman, District Judge.

DECISION AND ORDER

I. Introduction

On June 1, 2000, Plaintiff TM Claims Service, Inc. ("Plaintiff' or "TM Claims") filed this action in Supreme Court, New York County as subrogee for its insured, FUJI Photo Film, Inc. ("FUJI") against Defendant KLM Royal Dutch Airlines ("Defendant" or "KLM"). On June 30, 2000, Defendant removed the action to this Court pursuant to 28 U.S.C. § 1331 based upon federal question jurisdiction under the Convention for the Unification of Certain Rules Relating to International Transportation by Air ("Warsaw Convention").*fn1 Notice of Removal, dated June 30, 2000 ("Notice of Removal").

On March 13, 2001, Defendant filed the instant motion to transfer this action to the United States District Court for the Northern District of Georgia pursuant to 28 U.S.C. § 1404(a) on the grounds that "the litigation has no connection with the State of New York and transfer will be for the convenience of the parties and witnesses and in the interest of justice." (Def.'s Mem. at 2). For the reasons set forth below, Defendant's motion to transfer is granted.

II. Background

On May 25, 1998, M.O. Air Express International ("M.O.Air"), a consignee of FUJI's goods, contracted with KLM at Schiphol Airport in Amsterdam to transport a two-piece consignment of photographic base emulsion weighing 1,526 kilograms from Amsterdam to Atlanta, Georgia on May 29, 1998. Affidavit of Bartholomew J. Banino, sworn to on March 13, 2001, ¶ 7 ("Banino Aff."). Upon arrival, the consignment was trucked by an agent of M.O. Air from the airport in Atlanta to FUJI's warehouse in Greenwood, South Carolina. (Def.'s Mem. at 3). Plaintiff alleges that the consignment of photographic base emulsion "was discovered to have been damaged/destroyed upon arrival" in Atlanta. Plaintiff's Complaint, dated July 19, 2000, at 12.

III. Standard of Review

"For the convenience of the 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). "The determination [of] whether to grant a change of venue requires a balancing of conveniences, which is left to the sound discretion of the district court." Filmline (Cross-Country) Product., Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989); see also Wyndham Assocs. v. Bintliff, 398 F.2d 614, 621 (2d Cir. 1968). "The burden is on the party seeking to transfer to make a `clear-cut showing that it is warranted.'" UFH Endowment, Ltd. v. Nevada Manhattan Mining, Inc., No. 98 Civ. 5032, 2000 WL 1457320, at *3 (S.D.N.Y. Sept. 28, 2000) (quoting Nieves v. American Airlines, 700 F. Supp. 769, 771-72 (S.D.N.Y. 1988)). "[T]he rule in this Circuit is that the plaintiff's choice of forum will not be disturbed unless the movant shows that the balance of convenience and justice weighs heavily in favor of transfer." Somerville v. Major Exploration Inc., 576 F. Supp. 902, 908 (S.D.N.Y. 1983) (citing Richardson Greenshields Sec., Inc. v. Metz, 566 F. Supp. 131, 134 (S.D.N.Y. 1983)). "The core determination under Section 1404(a) is the center of gravity of the litigation." Bionx Implants, Inc. v. Biomet, Inc., No. 99 Civ. 740, 1999 WL 342306, at *3 (S.D.N.Y. May 27, 1999). The Court's discretion "will not be disturbed upon appeal without a clear showing of abuse." A. Olinick & Sons v. Dempster Bros. Inc., 365 F.2d 439, 443-444 (2d Cir. 1966).

IV. Analysis

TM Claims does not dispute that its claim could have been filed in the Northern District of Georgia.

The Northern District of Georgia is, in fact, a proper venue for this action because: (1) substantial events or omissions giving rise to the claim occurred there; and (2) KLM conducts business in the State of Georgia and is subject to personal jurisdiction there. (Def.'s Mem. at 5). See also 28 U.S.C. § 1391(b), (c); Centennial Ins. Co. v. Burlington Air Express Inc., No. 97 Civ. 8512, 1998 WL 323486, at *2 (S.D.N.Y. June 17, 1998) (granting motion to transfer where "both defendants are deemed to reside in the district" and "a substantial part of the events giving rise to the claim" occurred there).

In determining "whether the convenience of the parties and witnesses and the interest of justice warrant a transfer," the Court weighs a series of factors, which include:

(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.

Royal & Sunalliance v. British Airways, No. 00 Civ. 6466, 2001 WL 363657, at *1 (S.D.N.Y. Apr. 12, 2001); UFH Endowment, 2000 WL 1457320, at *6 (motion to transfer granted where "the locus of operative facts, the issue of trial efficiency, and the interest of justice, weigh heavily in favor of transfer"). Analysis of these ...


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