of process in
Florida and that Brous may litigate the instant dispute there. Also,
Florida courts have the power to apply New York law — the governing
law in this case. As such, Florida offers an adequate alternative forum.
c. The Balancing of the Interest Factors
Having decided that an adequate alternative forum exists, the Court
must now weigh the public and private interest factors to decide which
forum — New York or Florida — is more convenient and serves
the interests of justice. Iragorri, 274 F.3d at 73. The public interest
factors are: (1) settling local disputes in a local forum; (2) avoiding
the difficulties of applying foreign law; and (3) avoiding the burden on
jurors by having them decide cases that have no impact on their
community. Id. at 74. The private interest factors are: (1) the relative
ease of access to evidence; (2) the cost to transport witnesses to
trial; (3) the availability of compulsory process for unwilling
witnesses; and (4) other factors that make the trial more expeditious or
less expensive. Id. at 73-74.
None of the public interest factors favor Synthesis. Although Synthesis
is a Florida corporation, this fact alone does not make this a Florida
dispute considering that Brous drafted the Agreement that forms the basis
of this litigation in New York and provided services pursuant to the
Agreement in New York. Also, the Court does not have to apply foreign law
because New York law governs the dispute. Finally, this case would not
burden jurors by having them decide a case that does not impact their
community because the plaintiff has its principal place of business in
None of the private interest factors favor Synthesys. Here, the dispute
revolves around the interpretation of a contract and whether Synthesys
breached that contract. At this juncture, the only significant item of
documentary evidence appears to be the Agreement. As such, the access to
evidence factor does not favor Synthesys. Also, Synthesys will have the
ability to compel unwilling witnesses to this Court if it chooses.
Further, Synthesys provides the names of six of its employees who
allegedly were intimately involved with the events surrounding the
dispute and claims that the overwhelming majority of key witnesses are
located in South Florida. However, Synthesys does not explain how these
witnesses are intimately involved with the dispute and what relevant
information that they will offer at trial. It appears that the only key
witness on behalf of Synthesys will be Letizia who executed the Agreement
and appears to be the only employee, other than Tabor, who dealt with
Based upon a review of the public and private interest factors in light
of the great deference given to Brous' choice of its home forum, the
Court finds that Synthesys has failed to show that Florida is a more
convenient and just forum than New York. Accordingly, the motion to
dismiss on the ground of forum non conveniens is denied.
C. Change of Venue
Section 1404(a) provides that a court may transfer an action "[f]or the
convenience of parties and witnesses, in the interest of justice."
28 U.S.C. § 1404(a). Under Section 1404(a), a court determines
motions for transfer according to an "`individualized, case-by-case
consideration of convenience and fairness.'" Stewart Organization, Inc.
v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239 (1988) (citing Van Dusen
v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805 (1964)). The movant bears
the burden of showing that transfer is appropriate. Factors Etc., Inc. v.
Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), overruled on other
grounds by Pirone v. Macmillon, Inc., 894 F.2d 579 (2d Cir. 1990).
Initially, a court must determine whether the action is one that could have
been brought in the transferee court. Mattel, Inc. v. Robarb's, Inc.,
139 F. Supp.2d 487, 490 (S.D.N.Y. 2001). In this case, it is undisputed
that Brous could have brought this action in the Southern District of
Having determined that an alternative venue exists, the Court turns to
whether it is appropriate to transfer the case to that venue based upon
the "convenience of parties and witnesses" and in the "interest of
justice". Id. In making this decision, the following factors control: (1)
the convenience of the witnesses; (2) the location of relevant documents
and the relative ease of access to sources of proof; (3) the convenience
of the parties; (4) the locus of the operative facts; (5) the
availability of process to compel attendance of unwilling witnesses; (6)
the relative means of the parties; (7) a forum's familiarity with the
governing law; (8) the weight accorded a plaintiff's choice of forum; and
(9) trial efficiency and the interests of justice based on the totality
of the circumstances. Id.
"There is no rigid formula for balancing these factors and no single
one of them is determinative." Citigroup Inc. v. City Holding Co.,
97 F. Supp.2d 549, 561 (S.D.N.Y. 2000) (citations omitted). A court has
discretion in balancing the factors. Id. (citations omitted). "The core
determination under § 1404(a) is the center of gravity of the
litigation, a key test of which is the convenience of witnesses. . . .
Courts routinely transfer cases when the principal events occurred, and
the principal witnesses are located, in another district." Viacom Int'l,
Inc. v. Melvin Simon Prods., Inc., 774 F. Supp. 858, 868 (S.D.N.Y. 1991)
(citations omitted); see also Hernandez v. Graebel Van Lines,
761 F. Supp. 983, 988 (E.D.N.Y. 1991) ("The convenience of both the party
and non-party witnesses is probably considered the single-most important
factor in the analysis of whether a transfer should be granted.").
In this case, the Court finds that the transfer of venue to the
Southern District of Florida is not appropriate. None of the factors
compel transfer of venue. For example, the access to documentary evidence
presents no difficulties to Synthesys because of the limited number of
documents necessary to resolve this dispute. The Agreement, which is the
basis of the dispute, was drafted in New York and the services under the
Agreement were provided there. New York law governs the dispute. No one
forum is more convenient for all of the party and non-party witnesses
because they come from either New York, Florida or Arizona. There is no
reason to disturb Brous' choice of its home forum. Accordingly, the
motion to transfer venue is denied.
Based upon the foregoing, it is hereby
ORDERED, that the motion to dismiss for lack of personal jurisdiction
pursuant to Rule 12(b)(2) is denied; and it is further
ORDERED, that the motion to dismiss on the ground of forum non
conveniens is denied; and it is further
ORDERED, that the motion to transfer venue to the Southern District of
Florida pursuant to 28 U.S.C. § 1404(a) is denied; and it is further
ORDERED, that the parties are directed to contact United States
Judge William D. Wall immediately to schedule the completion
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