Christi, Inc., 932 F. Supp. 621, 623 (S.D.N.Y. 1996) (internal
Billing has alleged that oral statements made during and after the
interview process led him to believe in the existence of a contract of
employment; that terms of this alleged contract that were negotiated
during these meetings were subsequently breached; that during the
employment negotiations, and specifically at the time of his interviews
in January and February of 2000, he was fraudulently reassured about the
business status of the company; and that during the interview process and
negotiations, he was misled as to the financial status of the company and
as to the execution of a contract of employment.
The statements underlying the contract and fraud claims allegedly took
place during interviews and negotiations that were held in AppNet's
Bethesda, Maryland office. Additionally, the terms and conditions of
Billing's alleged employment contract were negotiated in person or
telephonically with AppNet representatives in the Bethesda office.
In Praxair, Inc. v. Morrison Knudson Corp., No. 00 Civ. 0892E (SC),
2001 WL 118585, at *4 (W.D.N.Y. Feb. 6, 2001), the court found that
negotiations that took place in New York were not relevant because the
main cause of action raised in the complaint was a breach of contract
action arising from the defendant's mismanagement of a construction
project. Accordingly, the locus of operative facts was where the contract
was performed, not where it was proposed and negotiated. Id. Similarly,
in Westwood Ventures, Ltd. v. Forum Financial Group, No. 97 Civ. 514 (WK)
1997 WL 266970, at *4 (S.D.N.Y. May 15, 1997), a lawsuit involving
fraud, breach of contract, and negligence in the formation and
performance of certain agreements, the court disregarded two meetings in
New York between the parties involving issues that arose after the
expiration of the agreements at issue. The two meetings, the court
reasoned, did not establish a sufficient nexus between New York and the
underlying litigation. Id. The fact that one interview took place in New
York is not sufficient to defeat a motion to transfer. See St. Regis
Mohawk Tribe v. Cuomo, 774 F. Supp. 185, 189 (S.D.N.Y. 1991).
Convenience of the Parties
AppNet has maintained its principal office in Bethesda, Maryland.
Commerce has an office in New York, but that office did not have an
active role in the subject negotiations, and none of Commerce's witnesses
worked in that office. Billing resides in New Jersey.
Convenience of Witnesses
"The convenience of the witnesses is an important consideration in the
determination of venue." Smart, 21 F. Supp.2d at 316 (citing In re
Eastern Dist. Repetitive Stress Injury Litig., 850 F. Supp. 188, 194
(E.D.N.Y. 1994)). Commerce has identified as witnesses, Wiele,
Pearlstein, Miller, Bajaj, Tobaccowala, Rhodes, and Dawson. Five out of
seven of these witnesses live and work in the greater Washington, DC
area, all within a fifty-mile radius from the United States District
court for the District of Maryland, sitting in Greenbelt, Maryland.
The Attendance of Witnesses
"The availability of process to compel the testimony of important
witnesses is an important consideration in transfer motions." Arrow
Electronics v. Ducommun, Inc., 724 F. Supp. 264, 266 (S.D.N.Y. 1989)
(citation omitted). Rule 45 of the Federal Rules of Civil Procedure
provides the district courts limited enforcement rights concerning
subpoenas. Under that rule, a district court can enforce a trial subpoena
served on a witness within the judicial
district of the court, or within 100 miles of the court. See Fed. R.
Civ. P. 45(b)(2) & (e). Several non-party witnesses reside in the
Bethesda area. Accordingly, to the extent these third-party witnesses are
not willing to testify, the United States District Court for the District
of Maryland could compel their presence at trial.
Notes or records of the interviews, to the extent they exist, would
likely be in Maryland.
Familiarity with Applicable Law
It is assumed that the federal courts in both this district and the
District of Maryland are equally familiar with the legal principles
necessary to resolve this case. Accordingly, this factor does not weigh
in favor of either party.
Interests of Justice
The final factor, trial efficiency and the interests of justice, favors
transfer. The dockets of the competing districts are relevant to this
inquiry. Praxair, 2001 WL 118585, at *5.
The Administrative Office of the United States Courts compiles a host
of data concerning cases filed in the U.S. courts. For the twelve month
period ending September 30, 2000, that office has provided the following
data concerning the United States District Court for the Southern
District of New York and the United States District Court for the
District of Maryland:
Total Civil Number of Cases Pending
Cases Pending Three years or More
of New York 11,599 1,098
District of Maryland 2,496 67
Leonidas Ralph Mecham, Judicial Business of the United States Courts,
2000 Annual Report of the Director, at 129, 168, and the length of time
this comparatively simple motion has been pending underscores these
On balance, the above factors including Billing's effort to arbitrate
in Maryland favor transfer. Were Billing a New York resident, in this
near equipoise, his choice of forum would control, but he is not.
The motion is therefore granted.
It is so ordered.