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