The opinion of the court was delivered by: PETER LEISURE, District Judge
Plaintiffs, The Trustees of the University of Pennsylvania
("Penn") and Indian Harbor Insurance Company ("Indian Harbor"),
bring this action for declaratory judgment, pursuant to
28 U.S.C. § 2201, against defendant Factory Mutual Insurance Company d/b/a
FM Global ("FM"). Plaintiffs jointly seek a declaration that an
insurance policy issued by FM to Penn provides coverage for
damages Penn sustained at its veterinary hospital. Indian Harbor
further seeks a judgment declaring that its own policy with Penn
covers only those damages in excess of those covered by the FM
policy or, in the alternative, that Indian Harbor's obligation
should be apportioned based on the respective policy limits of
the Indian Harbor and FM policies.
Defendant FM filed the instant motion to transfer venue to the
Eastern District of Pennsylvania, pursuant to
28 U.S.C. § 1404(a), on April 25, 2005. It argues that transfer would advance
the convenience of parties and witnesses as well as the interests
of justice. Plaintiffs Indian Harbor and Penn oppose the motion
and wish to remain in the Southern District of New York. For the
reasons that follow, the Court finds that FM has borne its
burden, and defendant's motion to transfer is granted.
Plaintiff, Penn, is a Pennsylvania not-for-profit corporation,
which owns the New Bolton Center Veterinary Hospital ("NBC")
located in Chester County, Pennsylvania. (Complaint ("Compl.") ¶¶
1,6.) Penn is insured by plaintiff Indian Harbor and defendant FM
under two separate insurance policies. (Id. ¶ 1.) Indian Harbor
is incorporated in North Dakota, but conducts insurance business
throughout the United States, including New York. (Id. ¶ 5.) FM
is incorporated and has its primary place of business in Rhode
Island, and conducts insurance business in New York. (Id. ¶ 7.) FM's policy insures Penn against all risk of property loss and
damages up to $1 billion, from July 1, 2003 to July 1, 2004.
(Id. ¶ 8.) The FM policy was negotiated, underwritten, issued
and serviced by Thomas Tarczali, a Connecticut-based Senior
Account Manager at FM. (Affidavit of Thomas E. Tarczali
("Tarczali Aff.") ¶ 2.) Tarczali negotiated the policy with Ian
Anderson, a Vice President at Marsh USA, Penn's insurance broker.
This occurred primarily in Connecticut, but Tarczali also met
with Andersen and Kenneth Hoffman, Penn's Director of Risk
Management and Insurance, in Pennsylvania. (Id. ¶ 3.) Tarczali
sent the binder that led to the issuance of the FM policy to
Hoffman in Pennsylvania on July 1, 2003, and issued the FM policy
in Connecticut and had it delivered to Marsh USA's New York
office on July 10, 2003. (Id. ¶ 4.)
Indian Harbor issued a Pollution and Remediation Legal
Liability Policy that provided coverage for Penn from July 1,
2003 to July 1, 2006. The Indian Harbor policy coverage was
limited to $2 million for each loss, remediation or legal defense
expenses, and to $6 million in the aggregate, with a self-insured
retention (akin to a deductible) of $50,000, and was to cover
loss in excess of that covered by any other valid and collectible
insurance policy. (Id. ¶ 9.) The Indian Harbor policy contains
a forum selection clause under which Penn and Indian Harbor agree
to resolve any dispute arising from the policy in New York State,
and submit to New York State law. (Affidavit of Nolan C.
Burkhouse, Esq. ("Burkhouse Aff.") at 11.)
In March 2004, a number of animals at the NBC fell victim to an
outbreak of Salmonella Newport which impacted several of NBC's
barns and its neo-natal care unit. (Compl. ¶¶ 10-11, 14.) NBC's
efforts to control the outbreak were unsuccessful, and Penn was
forced to close the center completely from May 2004 through
August 2004. (Id. ¶ 12.) In order to decontaminate the clinic,
NBC sandblasted its walls, repainted, removed semi-porous
materials, including mats and flooring, and undertook additional cleaning measures. (Id.
¶ 13.) Penn reported its claim to both insurers, asserting a loss
to property of $3 million, less any deductible or self-insured
retention, and seeking to recover cleanup costs and business
interruption expense. (Id. ¶¶ 15-16.) FM assigned Steven Gioia,
a Pennsylvania-based General Adjuster for the company, to assess
the Penn claim. (Affidavit of Steven A. Gioia ("Gioia Aff.") ¶
2.) Gioia traveled to the site and physically inspected the
By letter to Penn on December 1, 2004, Indian Harbor stated it
was prepared to cover Penn's loss in excess of that covered by
the FM policy. (Compl. ¶ 17, Ex. C.) However, on February 16,
2005, FM denied Penn's claim on the grounds that Penn failed to
show physical loss to property, and that the claimed loss fell
under the pollution exclusion in the FM policy. (Id. ¶ 18.) FM
also claimed that the Indian Harbor policy should apply before
the FM policy. (Id. ¶ 18, Ex. D.)
On March 4, 2005, Indian Harbor and Penn filed the instant suit
against FM seeking declaratory judgment that the FM policy (1)
provides valid and collectible insurance for Penn's loss up to $1
billion, subject to Penn's applicable deductible; (2) is
sufficient to cover Penn's loss; and, (3) must be exhausted
before the Indian Harbor policy applies. (Id. ¶ 19.) In the
alternative, Indian Harbor maintains that coverage should be
apportioned in accordance with the respective coverage limits of
the FM and Indian Harbor policies. (Id. ¶ 19.) FM now petitions
the Court for a transfer of venue to the Eastern District of
Pennsylvania under 28 U.S.C. § 1404(a), for the convenience of
parties and witnesses, and in the interest of justice. DISCUSSION
Title 28 United States Code Section 1404(a) provides that, "for
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."
28 U.S.C. 1404(a). The statute is purposed to prevent waste "`of
time, energy and money and to protect litigants, witnesses and
the public against unnecessary inconvenience and expense.'"
Generale Bank, New York Branch v. Wassel, 779 F. Supp. 310, 313
(1991) (Leisure, J.) (quoting Van Dusen v. Barrack,
376 U.S. 612, 616 (1964)).
Defendant-movant bears the burden of establishing that
plaintiffs' choice of forum is inappropriate. Factors Etc., Inc.
v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), cert.
denied, 440 U.S. 908 (1979) (citations omitted). Defendant must
establish that (1) the action is one that "might have been
brought" in the proposed transferee district,*fn1
28 U.S.C. § 1404(a), and (2) the transfer is appropriate given the
convenience of parties and witnesses and in the interest of
justice. See Royal Ins. Co. of Am. v. Tower Records, Inc.,
No. 02 Civ. 2612, 2002 WL 31385815, at *2 (S.D.N.Y. Oct. 22,
2002) (Leisure, J.); Lesser v. Camp Wildwood, No. 01 Civ. 4209,
2002 WL 1792039, at *2 (S.D.N.Y. Aug. 2, 2002); Reliance Ins.
Co. v. Six Star, Inc., 155 F. Supp. 2d 49, 56 (S.D.N.Y. 2001).
The moving party must "make a clear-cut showing that transfer is
in the best interests of the litigation." Miller v. Bombardier
Inc., No. 93 Civ. 0376, 1993 WL 378585, at *2 (S.D.N.Y. Sept.
23, 1993) (Leisure, J.) (citing Schieffelin & Co. v. Jack Co. of Boca, Inc., 725 F. Supp. 1314, 1321 (S.D.N.Y. 1989));
see also Factors Etc., 579 F.2d at 218. Movant must "name the
witnesses who will be appearing and describe their testimony so
that the court may measure the inconvenience caused by locating a
lawsuit in a particular forum." Schieffelin & Co.,
725 F. Supp. at 1321 (citing, inter alia, Factors, 579 F.2d at 218).
"[M]otions for transfer lie within the broad discretion of the
district court and are determined upon notions of convenience and
fairness on a case-by-case basis." In re Cuyahoga Equip. Corp.,
980 F.2d 110, 117 (2d Cir. 1992) (citing Stewart Org., Inc. v.
Ricoh Corp., 487 U.S. 22, 29 (1988)). "A court of appeals will
issue a writ of mandamus to correct a district court's
disposition of a section 1404 transfer motion for a clear abuse
of discretion." Warrick v. General Elec. Co., 70 F.3d 736, 740
(2d Cir. 1995).
The Court assesses the balance of convenience and the interest
of justice by weighing: (1) the convenience of witnesses; (2) the
location of relevant documents and the relative ease of access to
sources of proof;*fn2 (3) the convenience of the
parties;*fn3 (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 interest of justice based on the totality of the
circumstances. See Posven, C.A., 303 F. Supp. 2d at 404;
Reliance Ins., 155 F. Supp. 2d at 56-57; Trehern v. OMI
Corp., No. 98 Civ. 0242, 1999 WL 47303, at *2 (S.D.N.Y. Feb. 1,
1999). "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) (citing S
& S Mach. Corp. v. Gen. Motors Corp., No. 93 Civ. 3237, 1994 ...