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United States District Court, Northern District of New York

March 13, 2003


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


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 contractual duty." Id. (citing Strategic Marketing & Communications v. Kmart, 41 F. Supp.2d 268, 273 (S.D.N.Y. 1998)).

B. The Present Action

This case is an unusual one. Normally, the Court would have little difficulty denying the motion to change venue on the basis that the forum selection clause was controlling. Here, however, the Court is presented with two elderly defendants, both of whom have significant health problems. Mrs. Morrison has arrhythmogenic right ventricular cardiomyopathy. George Morrison has Parkinson's disease, coronary artery disease, has had a bypass, a St. Jude aortic valve, and a cardiomyopathy. Dr. Vinci has submitted a letter in which he states that:

Annie Morrison . . . is at risk for sudden death and is currently scheduled for an internal cardiac defibrillator. She has episodes of syncope (passes out). On the basis of this unpredictability of her illness and consequences of sudden death, it is recommended that there would be possible health consequences of a trial in New York . . .
George Morrison . . . is also at risk for sudden death and arrhythmias which may be fatal causing him to pass out. . . .
Because of these illnesses, which may include sudden death, it is felt that the travel to New York may be burdensome on this elderly and frail couple.
Vinci Letter, Attached to Reizes Supplemental Declaration. Dr. Bailyn, who treats George Morrison's Parkinson disease, wrote to the Court indicating: "[t]he patient is severely handicapped neurologically. It is my opinion that travel to New York for purposes of court testimony would be deleterious to his general physical condition." Bailyn Letter, attached to Reizes Declaration.

Dr. Rosenbaum wrote to the Court that he treats Annie Morrison for her heart condition, that she is scheduled to have a defibrillator implanted, and that until therapy is completed, "it is extremely dangerous for Mrs. Morrison to fly anywhere out of town. I understand there is a trial that is planned in New York, and request that it be transferred to Florida so that my patient may attend." Rosenbaum Letter, attached to Reizes Declaration.

Additionally, George Morrison testified at trial that he had not been back to New York since his move to Florida and did not think he could make the trip. George Morrison Depo. p. 13. In the face of this significant medical evidence, the Court finds that the proper action is to transfer the case to the Southern District of Florida. The Court does so only because of the extreme nature of the illnesses facing the Defendants. Indeed, it appears that were this action to continue in New York, Defendants would be entirely left out of the process due to their health concerns. The Court finds that, although many of the other factors weigh in favor of the Plaintiff and in favor of keeping the action in New York, transfer is necessary here. The "exceptional circumstances" necessary to overcome a valid forum selection clause are present in this case.

Plaintiff will not be prejudiced by the transfer as significantly as Defendants will be by having the action remain in New York. A large portion of the evidence is documentary, and thus, easily transportable. See Breeden, 2003 WL 187223, at *3. Further, the Florida court will still be bound to apply New York law as the contract requires.

In light of the Court's decision to transfer the action, the Court declines to rule on the summary judgment motion. That motion is more appropriately addressed by the Court that will ultimately handle a trial, should there be one, in this case.

III. Conclusion

For the foregoing reasons, Defendants' motion to transfer the action to the Southern District of Florida is granted. The Clerk is directed to transfer the file forthwith.



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