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BSB BANK & TRUST COMPANY v. MORRISON

March 13, 2003

BSB BANK & TRUST COMPANY, PLAINTIFF,
v.
GEORGE MORRISON, ANNIE MORRISON, ANNIE MORRISON TRUST #1-3, AND ITHACA PROPERTIES, LLC, DEFENDANTS.



The opinion of the court was delivered by: Thomas J. McAVOY, District Judge

DECISION & ORDER

Plaintiff BSB Bank and Trust ("BSB" or "Plaintiff") brought this action alleging the Defendants fraudulently conveyed certain property in order to avoid a judgment against them. Defendants removed the action to this Court on the basis of diversity of citizenship. Presently before this Court are Defendants' motion for change of venue to the Southern District of Florida and Plaintiff's motion for summary judgment.

I. Background

On February 22, 1999, Dr. Stephen K. Morrison, the son of Defendants George and Annie Morrison, borrowed the sum of $459,888.55 from BSB. Defendants personally guaranteed the loan. Listed as an asset was a home owned free and clear of any encumbrances by Annie Morrison as trustee of the Annie Morrison Revocable Trust.

In September 2001, BSB instituted suit against Stephen Morrison because of his non-payment, and against Annie and George Morrison as guarantors of the loan. A judgment was entered against all three of them in November of 2001. On September 5, 2001, Annie Morrison conveyed the aforementioned home to Ithaca Properties, LLC for a private annuity in the amount of $137,000.00.

BSB alleges that this conveyance and the transfer of other non-exempt assets into exempt annuities in order to avoid BSB's judgment constituted fraudulent conveyances.

Defendants ask this Court to transfer venue to the Southern District of Florida in the interests of justice because of the age of Defendants and their poor health. See Pl. Mem. L. p. 5. Plaintiffs have cross-moved for summary judgment on their complaint.

II. Discussion

A. Change of Venue Standard

28 U.S.C. § 1404(a) allows a Court to transfer the venue of an action "[f]or the convenience of parties and witnesses, [or] in the interest of justice . . . to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). It is not disputed that the action might have been brought in the Southern District of Florida since that is where the defendants reside. See 28 U.S.C. § 1391(b). Consequently, the Court must look to the convenience of the parties and the interests of justice.

In addressing a motion to change the venue of an action, the Court considers the following factors:

(1) the plaintiff's choice of forum; (2) the convenience of the parties; (3) the place where the operative facts occurred; (4) the relative ease of access to sources of proof; (5) the convenience of witnesses; (6) the availability of process to compel attendance of unwilling witnesses; (7) the forum's familiarity with the governing law; and (8) trial efficiency, means of the parties and the interest of justice. Viacom International, Inc. v. Melvin Simon Products, Inc., 774 F. Supp. 858, 868 (S.D.N.Y. 1991). Each factor need not be accorded equal weight. It is well established that determining whether a transfer is warranted pursuant to section 1404(a) lies within the broad discretion of the district court and is determined upon notions of convenience and fairness on a case by case basis. In re Cayahoga Equipment Corp., 980 F.2d 110, 117 (2d Cir. 1992).
Breeden v. Tricom Business Systems, 2003 WL 187223, at *2 (N.D.N.Y. Jan. 21, 2003) (Munson, S.J.).

Also of importance in this case is the presence of a forum selection clause in the contract. "The presence of forum selection clauses are a prominent though not dispositive consideration in a court's determination of whether to transfer a case in the interest of justice." Breeden, 2003 WL 187223, at *2 (citing Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)).

"[T]here is a strong policy in favor of enforcing such a clause." Id. (citing Chasser v. Achille Luro Lines, 844 F.2d 50, 54 (2d Cir. 1988), aff'd, 490 U.S. 495 (1989); Mediterranean Shipping Co. v. Pol-Atlantic, 229 F.3d 397, 405 (2d Cir. 2000) (there is a "heavy presumption" in favor of enforcing forum selection clauses)). A defendant seeking to overcome a forum selection clause must demonstrate "exceptional facts why he should be relieved of his ...


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