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September 10, 2003


The opinion of the court was delivered by: Lewis Kaplan, District Judge


Plaintiff brings this action as the subrogated cargo underwriter of a shipment of electrical goods from Japan to Bolingbrook, Illinois, via defendant, a non-vessel owning cargo carrier, for defendant's alleged failure to deliver part of the shipment. Defendant Nippon Express U.S.A. (Illinois), Inc. ("Nippon"), moves to transfer the action to the Northern District of Illinois pursuant to 28 U.S.C. § 1404(a) or, in the alternative, to dismiss for failure to join indispensable parties.


Plaintiff's insured, Sony Computer Entertainment America ("Sony"), shipped nine containers of goods from Japan to Bolingbrook under Nippon's way bill number TYUS2738468, which contained a forum clause stating that:

"Disputes arising under this bill of lading shall be decided in accordance with the law of the United States of America, and no action shall be brought against the carrier except in the United States District Court in New York, N.Y. USA."
The circumstances of the loss of the container are disputed. This much, however, is clear. Nippon arranged to have Hanjin Shipping Co., Ltd. ("Hanjin"), an ocean carrier, transport the cargo from Japan to Tacoma, Washington, and then inland to Chicago. Hanjin in turn contracted with Norfolk Southern Railway Company to perform the rail carriage from Tacoma to Chicago. It engaged Jam Trucking, Inc. ("Jam") to move the containers from the Chicago rail yard, which was Page 2 operated by Omni Rail Intermodal, Inc. ("Omni") to Sony in Bolingbrook. The container in question was transported from Japan to Tacoma and thence to the rail yard in Chicago where it was picked up by a trucker who falsely presented himself as an employee of Jam. The imposter then was allowed by Omni to leave the yard with the container.

Following discovery of the loss, the parties engaged in a race to the courthouse. On April 14, 2003, Nippon brought an action in the Northern District of Illinois against plaintiff, Hanjin, Norfolk, Omni and Jam for a declaratory judgment. As soon as plaintiff learned of the Chicago action, it commenced this suit.

While the parties disagree as to the precise standard that governs liability in this action, it is perfectly clear that there are no witnesses in or within subpoena range of this district. Certainly anyone with personal knowledge relating to the circumstances of the delivery of the container to the imposter and the imposter's departure from Omni's yard are in or within subpoena range of the Northern District of Illinois.


Under Section 1404(a), a district court may transfer an action to any other district in which the action might have been brought if the transfer would be in the interest of justice and serve the convenience of parties and witnesses. "In considering whether a transfer would be for the convenience of the parties and witnesses and in the interest of justice, `[t]he plaintiff's choice of forum is entitled to substantial weight and will not be disturbed lightly.'" Schechter v. Tauck Tours, Inc., 17 F. Supp.2d 255, 260 (S.D.N.Y. 1998) (quoting Thunder Island, Inc. v. A.G. Sport, Inc., No. 97 Civ. 4136(LAK), 1997 WL 599414, at *1 (S.D.N.Y. Sept.26, 1997)). Where, however, the plaintiff is an alien or a stranger with no connection to the forum, the degree of deference accorded its choice is diminished. See Guidi v. Inter-Continental Hotels Corp., 224 F.3d 142, 145 (2d Cir. 2000); Capital Currency Exchange, N.V. v. Nat. Westminsterbank, PLC, 155 F.3d 603, 609 (2d Cir. 1998), cert. denied, 526 U.S. 1067 (1999);Murray v. British Broadcasting Corp., 81 F.3d 287, 289 (2d Cir. 1996); Revson v. Claire's Stores, Inc., 120 F. Supp.2d 322, 327 (S.D.N.Y. 2000). Whatever the degree of deference, however, considerations pertinent to assessing the balance of convenience "include (1) the convenience to the parties, (2) the convenience to the witnesses, (3) the relative ease of access to sources of proof, (4) the availability of process to compel the attendance of unwilling witnesses, (5) the cost of obtaining willing witnesses, (6) the practical problems indicating where the case can be tried more expeditiously and inexpensively, and (7) the interests of justice." Schechter, 17 F. Supp.2d at 260 (citing Karriem v. Amer. Kennel Club, 949 F. Supp. 220, 221 (S.D.N.Y.1996)).

The parties tacitly acknowledge that this action might have been brought in the Northern District of Illinois, which is hardly surprising in view of the fact that Nippon is an Illinois corporation and thus subject to personal jurisdiction and venue there. Preliminarily, however, the Court must address the significance of the forum selection clause upon which plaintiff relies in this Page 3 case.

Clauses such as this certainly are a factor on Section 1404(a) motions. But the Supreme Court has made clear that they "should receive neither dispositive consideration . . . nor no consideration . . ., but rather the consideration for which Congress provided in § 1404(a)." Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988). In other words, the parties' agreement that New York is the appropriate forum is pertinent but not controlling.

Passing then to the considerations typically controlling on Section 1404(a) motions, it is readily apparent that the balance heavily favors Nippon. Cutting in Mitsui's favor is the fact that its selection of this forum is entitled to deference, despite its foreign incorporation, both because that is the forum the parties chose and because its principal U.S. claims office is here. Cutting against it, however, is the fact that all of the potential witnesses relating to liability are located in and around Chicago; none is in the New York area. Indeed, from the standpoint of evidence and convenience of proof, there is no significant case for retaining the action here. All of the factors enumerated in Schechter, to the extent they are relevant at all, favor transfer save the circumstance that litigation here arguably would be modestly more convenient to plaintiff because its claims office is here. But the overriding consideration, in the Court's view, is which forum better would serve the interests of justice by affording an easier and more accurate means of ascertaining the critical facts. In view of the overwhelming superiority of a Chicago forum from that point of view, the factors favoring plaintiff's choice of this forum readily are overcome.*fn1


For the foregoing reasons, defendant's motion is granted to the extent that this action is transferred to the Northern District of Illinois ...

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