The opinion of the court was delivered by: LOUIS STANTON, District Judge
Derek Oubre, a New York resident,*fn1 filed a complaint in
New York Supreme Court, New York County, against his former
employer, Clinical Supplies Management, Inc. ("CSM"), a North
Dakota corporation with its principal place of business in Fargo,
North Dakota. CSM removed the case to this court and asserted
several counterclaims. CSM now moves pursuant to
28 U.S.C. § 1404(a) for a change of venue to the United States District Court
for the District of North Dakota.
CSM assists pharmaceutical companies with clinical drug trials.
Oubre alleges that he and CSM signed a written employment contract in November 2001, whereby CSM agreed to
employ him as a financial consultant for thirty-six months at
$50.00 per hour plus an annual stipend for board service and
reimbursement of business expenses. CSM also allegedly granted
him options to acquire 11,112 shares of CSM stock. Oubre claims
CSM breached the 2001 employment agreement by firing him in March
2004 and by failing to pay him his salary and grant him the stock
CSM alleges that Oubre forged the signature of Gerald Finken,
CSM's chief executive officer, on the employment and stock option
contracts. According to CSM, Oubre worked for CSM from November
2001 to September 2003 pursuant to an unwritten agreement, which
did not entitle him to stock options.
In November 2003, while still employed by CSM but allegedly
without its knowledge, Oubre became a director and chief
financial officer of LaGray Chemical Corp., an Illinois
pharmaceutical company based in Chicago and Ghana.
Oubre and CSM acknowledge they made an employment agreement in
December 2003, whereby Oubre became CSM's full-time chief
financial officer and interim chief operating officer as of
September 1, 2003, and CSM granted him ten percent of CSM stock.
In turn, Oubre was to generate a business plan for CSM's
packaging and labeling operation, and prepare CSM's financial statements, among other things. Oubre and CSM each claim that the
other breached the 2003 employment agreement.
Oubre also signed non-competition and confidentiality
agreements in September 2003. CSM claims he breached these
agreements and diverted corporate opportunities from CSM, in
violation of his fiduciary duty of loyalty, while he was employed
by LaGray. Oubre contends that CSM officers were aware of his
relationship with LaGray, and that LaGray does not compete with
Section 1404 (a) of title 28 of the United States Code 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." The action could have been brought in the District of
North Dakota because venue would be proper and CSM would be
subject to process there.
In determining whether venue should be transferred to the
District of North Dakota for the convenience of parties and
witnesses, the relevant factors include:
(1) the convenience of witnesses; (2) the location of
relevant documents and the relative ease of access to
sources of proof; (3) the convenience of the parties; (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 interests of justice, based on the
totality of the circumstances.
Lewis v. CRI, Inc., No. 03 Civ. 651 (MBM), 2003 WL 1900859, at
*2 (S.D.N.Y. Apr. 17, 2003). The court has broad discretion to
balance these factors and to consider the evidence 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, 108 S. Ct. 2239, 2243,
101 L. Ed. 2d 22 (1988).
"Absent a clear cut and convincing showing by defendant that
the balance of convenience weighs strongly in favor of the
transferee court, plaintiff's choice of forum will not be set
aside." Gen. State Auth. (of Pa.) for Benefit of
Crompton-Richmond Co., Inc. v. Aetna Cas. & Sur. Co.,
314 F. Supp. 422, 423 (S.D.N.Y. 1970); see also Ford Motor Co. v.
Ryan, 182 F.2d 329, 330 (2d Cir. 1950) (defendant must make a
strong case for transfer). III. Discussion
A. Convenience of Witnesses
The convenience of witnesses is a major factor in evaluating a
transfer motion. 800-Flowers, Inc. v. Intercontinental Florist,
Inc., 860 F. Supp. 128, 134 (S.D.N.Y. 1994). "When weighing the
convenience of the witnesses, courts must consider the
materiality, nature, and quality of each witness, not merely the
number of witnesses in each district." Royal & Sunalliance v.
British Airways, 167 F. Supp. 2d 573, 577 (S.D.N.Y. 2001). To
enable the court to make that evaluation, a movant relying on the
convenience of witnesses "must clearly specify the key witnesses
to be called and must make a general statement of what their
testimony will cover." Factors Etc., Inc. v. Pro Arts, Inc.,
579 F.2d 215, 218 (2d Cir. 1978).
Oubre and CSM both recognize the importance of testimony from
LaGray employees Paul Lartey and Alexandra Graham. However,
because they are both based in Ghana (Lartey Aff. ¶ 8; Graham
Aff. ¶ 8) and will have to travel a long distance to either
proposed venue, they are not considered in the venue transfer
analysis. Varsity Spirit v. I.I.P. Inc., No. 03 Civ. 2069
(LLS), 2003 WL 22772638, at *2 (S.D.N.Y. Nov. 24, 2003) ...