The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Plaintiff, Mpower Communications Corp. ("Mpower"), commenced this
action on May 7, 2003, seeking damages for alleged breaches of certain
telecommunications service agreements ("agreements") between Mpower and
defendants. Defendants subsequently moved for various relief, including,
inter alia, an order either dismissing this action for lack of
personal jurisdiction and improper venue, or in the alternative,
transferring the action to the Northern District of Illinois.
On January 20, 2004, after hearing oral argument on defendants'
motions, the Court orally denied most of defendants' requests for relief
(including the motion to dismiss for lack of personal jurisdiction and
improper venue), but reserved decision on defendants' motion to transfer
this action to Illinois. The following Decision and Order constitutes my
ruling on that motion.
Section 1404(a) of Title 28 provides that "[f]or the convenience of
parties and witnesses, in the interest of justice, a district court may
transfer any civil action to any other district or division where it
might have been brought." "It is the defendants' burden to make a strong
showing in favor of transfer, and `[a] plaintiffs choice of forum will
not lightly be disturbed, especially where, as here, the plaintiff
resides in the judicial district where the suit is filed.'" Reynolds
Corp. v. National Operator Services, Inc., 73 F. Supp.2d 299, 306
(W.D.N.Y. 1999) (quoting Cerasoli v. Xomed, Inc., 952 F. Supp. 152,
154 (W.D.N.Y. 1997)). See also Nabisco, Inc. v. Brack's
Confections, Inc., No. 00 Civ. 5875, 2000 WL 1677935, at *3
(S.D.N.Y. Nov. 6, 2000); Toy Biz, Inc. v. Centuri Corp.,
990 F. Supp. 328, 330 (S.D.N.Y. 1998); Christina Canada Inc. v. Wior
Corp., 702 F. Supp. 461, 463 (S.D.N.Y. 1988) (noting that movant's
"burden is heavy").
In addition, the movant must support the motion with an affidavit
containing "detailed factual statements" explaining why the transferee
forum is more convenient, "including the potential principal witnesses
expected to be called and general statement of the substance of their
testimony." Golden First Mortg. Corp. v. Berger, 251 F. Supp.2d 1132,
1142 (E.D.N.Y. 2003) (citing Factors Etc., Inc. v. Pro Arts,
Inc., 579 F.2d 215, 218 (2d Cir. 1978), cert. denied,
440 U.S. 908 (1979)). Unless the movant makes a "clear and convincing
showing," the motion will be denied. Id. at 1141 (citing
Ford Mo tor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir.), cert.
denied, 340 U.S. 851 (1950)).
To determine whether transfer would be appropriate, courts have
considered the following factors: (1) the plaintiff's choice of forum;
(2) the locus of the operative facts; (3) convenience and
relative means of the parties; (4) convenience of the witnesses;
(5) availability of process to compel the attendance of witnesses; (6)
location of physical evidence; (7) relative familiarity of the courts
with the applicable law; and (8) interests of justice and trial
efficiency. Goggins v. Alliance Capital Mgmt. L.P.,
279 F. Supp.2d 228, 232 (S.D.N.Y. 2003); Kiss My Face Corp. v.
Bunting, No. 02-CIV-2645, 2003 WL 22244587, at *1 (S.D.N.Y. Sept.
30, 2003). District courts have "considerable discretion" in balancing
these factors. Red Bull Associates v. Best Western Int'l, Inc.,
862 F.2d 963, 967 (2d Cir. 1988).
The presence of a forum selection clause will also typically be "a
significant factor that figures centrally in the district court's
calculus" in the decision on whether to transfer venue. Stewart
Organization, Inc. v. Ricoh Corporation, 487 U.S. 22, 29 (1988).
Even when such a clause is present, however, the court must still "take
account of factors other than those that bear solely on the parties'
private ordering of their affairs," such as the convenience of the
witnesses and the other factors listed above. Id. at 30.
Nevertheless, it is clear that such clauses are not lightly disregarded;
a party opposing enforcement of a forum selection clause must
"demonstrate exceptional facts explaining why he should be relieved from
his contractual duty." Weiss v. Columbia Pictures Television,
Inc., 801 F. Supp. 1276, 1278 (S.D.N.Y. 1992). See also Stewart
Organization, 487 U.S. at 33 ("a valid forum-selection clause
[should be] given controlling weight in all but the most exceptional
cases") (Kennedy, J., concurring).
In the case at bar, plaintiff relies upon the following clause, which
is found at paragraph 23 of each of the agreements: "Governing Law. This
Agreement shall be governed by the laws of the State of New York and
customer agrees to be subject to the jurisdiction of the courts in Monroe
County, New York." Defendants are the "customer[s]" referred to.
Having reviewed the parties' submissions, I find that defendants have
failed to carry their burden to show that the interests of justice
support the transfer of this action. First, I disagree with defendants'
assertion that this clause is not a forum selection clause at all, but "a
governing law clause . . . with a permissive jurisdiction section."
Defendants' Reply Mem. (Docket #57) at 3. For one thing, there is no such
thing as "permissive jurisdiction"; one is either subject (or consents)
to jurisdiction in a given forum, or not. In addition, by consenting to
jurisdiction here, defendants implicitly consented to venue as well;
otherwise, the consent to jurisdiction would be meaningless. See
Doctor's Associates, Inc. v. Stuart, 85 F.3d 975, 983 (2d Cir. 1996)
("Because Defendants consented to personal jurisdiction in the District
of Connecticut, . . . they also consented to venue there").
The forum selection clause here is also valid and enforceable. Such
clauses are presumed to be valid, see Carnival Cruise Lines, Inc. v.
Shute, 499 U.S. 585, 589-95 (1991); Burger King Corp. v.
Rudzewicz, 471 U.S. 462, 473 n. 14 (1985); M/S Bremen v. Zapata
Off-Shore Co., 407 U.S. 1, 8-18 (1972), and the party resisting a
forum selection clause "must make a `strong showing' in order to overcome
the presumption of enforceability." New Moon Shipping Co. v. Man B
& W Diesel AG, 121 F.3d 24, 29 (2d Cir. 1997) (quoting
Bremen, 407 U.S. at 15). Defendants have made no such showing.
In support of their motion to transfer, the individual defendants have
submitted affidavits stating that they all reside in Chicago, and that
the relevant events all occurred in Chicago. They also identify certain
individuals who they allege will likely be witnesses in this action. Some
defendants also contend that it would impose a financial hardship on them
to litigate this action here rather than in Illinois.
I am not persuaded that defendants have made the "strong showing"
required to overcome plaintiffs choice of forum. Reynolds Corp.,
73 F. Supp.2d at 306. Although defendants have identified a number of
Illinois residents who they claim will be witnesses, I note that several
of those people are Mpower employees, and Mpower is the party
seeking venue in this district. If it does become necessary to call those
persons as witnesses, Mpower will presumably make them available.
Of the remaining alleged "key witnesses" identified by defendants,
see Nayfa Reply Aff. (Docket #58) f 7, three of them are
defendants in this action. While the relative convenience of the parties
is a relevant factor, I do not believe that it weighs so heavily in favor
of defendants as to warrant a transfer. The fourth alleged witness, Hasem
Al Bassam, is identified by ...