The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge
Pursuant to 28 U.S.C. § 1404, defendants move to transfer the instant diversity action from the Eastern District of New York to the United States District Court of Minnesota. Defendants, PM Beef Group, L.L.C., and PM Beef Holdings, L.L.C., (collectively "PM Beef" or "defendants"), are Delaware limited liability companies with principal offices in Kansas City, Missouri. (Answer ¶¶ 18--19.) Plaintiffs, International Kosher Meat Processing Corp. and Globex Kosher Foods, Inc. (collectively "plaintiffs" or "International"), are New York corporations with principal offices in Brooklyn, NY. (Compl. ¶ 1--2.) PM Beef argues that the events that gave rise to the instant lawsuit took place predominantly in its Minnesota meat processing plant, and therefore this action should be transferred to the Minnesota district court. Arguing against transfer, plaintiffs contend that, because the contract upon which this lawsuit is based was negotiated in New York and the locus of operative facts is in New York, the suit was properly filed here. Additionally, plaintiffs point to the fact that its principal offices are in this district and that four of their non-party witnesses reside here. Finally, plaintiffs contend that compared to Minnesota, New York has a large Orthodox Jewish population and consequently a greater interest in the outcome of the litigation. Thus, the action should remain in the Eastern District of New York. For the reasons that follow, defendant's motion for a change of venue is denied.
In April 2002, plaintiffs, purveyors of kosher meat, and defendants, meat suppliers, entered into a contract. (Compl. ¶ 11.) The contract called for defendants PM Beef to provide a certain number of cattle per week to be slaughtered under glatt kosher supervision at defendants' meat processing plant in Minnesota. The glatt kosher supervision was to be provided by an independent contractor hired by plaintiffs. (Id.) Defendants were then required to ship the processed kosher meat to plaintiffs in Brooklyn, NY, where plaintiffs, in turn, sold the kosher meat to its largely Orthodox Jewish customers. (Id. at ¶¶ 12--15.)
Plaintiffs assert claims for breach of contract that generally fall into two categories: (1) those claims having to do with PM Beef's suspension of Rabbi Lazar Jacob from its Minnesota meat processing plant in March 2004-thereby allegedly "destroy[ing] plaintiffs' business" (Id. at ¶¶ 18--19, 22--27, 34, 39, 43.); and (2) those claims arising from plaintiffs' allegations that defendants improperly processed, packaged, and priced meat shipped to plaintiffs. (Id. at ¶¶ 54, 61, 67-71, 79, 86, 96, 101, 114, 124, 132, 143, 150.)
In its answer, defendants counterclaim (1) seeking a declaratory judgment that an alleged March 2004 settlement agreement-an agreement that would have resolved the instant claims-is binding (Answer ¶¶ 25, 28); (2) seeking specific performance of the settlement agreement (Id. at ¶ 30); (3) asserting a claim for a breach of contract based upon plaintiffs' failure to abide by the settlement agreement (Id. at ¶ 37); and (4) asserting a claim for tortious interference with the contract based upon an alleged newspaper ad campaign waged by plaintiffs against defendants in an effort to induce a different kosher certifying agency to breach its contract with defendants (Id. at ¶ 43).
"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 District of Minnesota is a district "where [suit] might have been brought" under 28 U.S.C. § 1391(a) given that a significant portion of the events underlying this action occurred in Minnesota. The central inquiry, then, is whether a transfer would promote convenience and justice.
"[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, 108 S.Ct. 2239, 101 L.Ed. 2d 22 (1988)). The following factors bear on the court's determination: "(1) the convenience of the witnesses, (2) the convenience of the parties, (3) the locus of operative facts, (4) the availability of process to compel the attendance of unwilling witnesses, (5) the location of relevant documents and the relative ease of access to sources of proof, (6) the relative means of the parties, (7) the forum's familiarity with the governing law, (8) the weight accorded the plaintiff's choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of circumstances." In re Hanger Orthopedic Group, Inc. Secs. Litig., 418 F. Supp. 2d 164, 168 (E.D.N.Y. 2006) (internal citations omitted). Each one of these factors is analyzed below.
1. The Convenience of the Witnesses
The convenience of witnesses, especially non-party witnesses, is one of the most important factors in a §1404(a) motion to transfer. See Id. at 168 (citing Viacom Int'l, Inc. v. Melvin Simon Prods., 774 F. Supp. 858, 868 (S.D.N.Y. 1991)).
Defendants have identified thirteen principal witnesses. Although defendants assert that "[t]he PM Beef workers who performed services for [plaintiffs] at the facility . . . live in Minnesota" and are critical witnesses, (AuWerter Aff. ¶ 2), in fact, only two of these witnesses reside in Minnesotta. (Ebert Letter dated July 21, 2006.) The remaining witnesses reside in Ohio, Missouri, Virginia, and Iowa. (Id.)
Plaintiffs have identified their key non-party witnesses as Rabbi Lazar Jacob ("Rabbi Jacob"), who lives in Israel, and Rabbis Shlomo Stern and Yitzhok Stein ("the Rabbis"), who reside in New York and are the rabbinical heads of the Congregation hired by plaintiffs as the independent contractor "kosher slaughterers." (Chaimovitz Aff. ¶¶ 4, 19--20.) Plaintiffs contend that the Rabbis will be called to explain why Rabbi Jacob's suspension from defendants' meat processing plant "meant that none of the other rabbis and shochtim could work there any longer."*fn1 (Binsky Aff. ¶ 4.) Plaintiffs also contend that the Rabbis' testimony is necessary for defending against the counterclaim of tortious interference with contract: they will explain why the newspaper ads that allegedly discredited the defendants were necessary and legitimate thus negating the legal elements of the claim.(Id. at ¶¶ 6--7.) In short, the Rabbis will be testifying as non-party expert witnesses.
Plaintiffs also have identified four additional non-party witnesses to testify about meat shipments sent by defendants that included short-weighted and mis-cut meat. (Binsky Letter dated July 21, 2006.) ...