MARY HULEN, as personal representative of the heirs and estate of DONALD HULEN, deceased, Plaintiff,
CRANE CO. et al., Defendants.
Douglas von Oiste, Karst & von Oiste LLP, for PLAINTIFF MARY HULEN.
William T. Miedel., Harris Beach PLLC, for DEFENDANTS ARMSTRONG INTERNATIONAL, INC., AND MILWAUKEE VALVE COMPANY, INC.
OPINION & ORDER
JOHN F. KEENAN, District Judge.
Before the Court is a motion filed by Defendants Armstrong International, Inc. and Milwaukee Valve Company, Inc. (together, "Movants") to dismiss this asbestos case for forum non conveniens. In the alternative, Movants seek transfer to the Southern District of Texas pursuant to 28 U.S.C. § 1404(a). Although there are many other defendants in this case, none have objected to the motion. For the reasons that follow, the motion to dismiss is denied and the motion to transfer is granted.
Plaintiff Mary Hulen is a Texas resident, as was her late husband, Donald Hulen. Both Mr. and Mrs. Hulen were plaintiffs in this asbestos action until Mr. Hulen's death on November 19, 2012. Plaintiff is now the representative of Mr. Hulen's estate.
Plaintiff alleges that Mr. Hulen was exposed to asbestos throughout his life, which included service in the United States Navy from 1960 to 1989. As part of his Naval career, Mr. Hulen served on various ships in various shipyards before ultimately entering the Navy Reserves. One such ship was the U.S.S. Austin, where he served while it was docked at the Brooklyn Navy Yard for a period of four to six months in 1964.
Although Mr. and Mrs. Hulen were Texas residents, this action was originally filed in New York state court on August 24, 2012. Plaintiff chose such a distant forum in order to seek participation in the New York City Asbestos Litigation ("NYCAL") program's "in extremis" trial group, which endeavors to expedite the resolution of cases where the plaintiff is critically ill. See Oral Arg. Tr. at 10; see also Miedel Aff. Ex. C. The case was removed to the Southern District of New York on October 11, 2012 by Defendant Crane Company.
Movants now argue that the action should be dismissed for forum non conveniens. They emphasize that "throughout his twenty-nine years of Navy service (including both active duty and reserves duty) [Mr. Hulen] spent at most four months at a shipyard in Brooklyn, New York." (Mot. ¶ 16.) They point out that Plaintiff alleges considerable exposure to asbestos in Texas, including all of Mr. Hulen's Navy Reserve duty, as well as automobile and construction work there. Movants also assert that they are not New York corporations or have their principal place of business in New York; that Mr. Hulen never lived in the Southern District of New York; and that his past medical providers are all in Texas. Movants request that the action be transferred to the Southern District of Texas in the event that this Court denies their motion to dismiss.
Plaintiff opposes the motion. She argues that New York is just as convenient as Texas because she consents to travel to New York for trial and because some of her attorneys and medical experts are here. She further states that there are no witnesses that will be required to testify by compulsory process, and that the jury will not need to observe evidence in Texas. Plaintiff finally asserts that New York is a better forum than Texas for this action with respect to efficiency and the public interest.
The Supreme Court has repeatedly counseled that federal courts should apply the common law doctrine of forum non conveniens to dismiss an action only where the alternative forum is abroad, or "perhaps in rare instances where a state or territorial court serves litigational convenience best." Sinochem Int'l Co. Ltd. v. Malaysia Int'l Shipping Corp. , 549 U.S. 422, 430 (2007) (citations omitted). Although Movants' papers request dismissal under this doctrine, counsel acknowledged at oral argument that because the proposed alternative forum is the Southern District of Texas, this Court should not dismiss the action outright. (Oral Arg. Tr. at 3.) Instead, the Court's task is to determine whether the case should be transferred to Texas. See Sinochem , 549 U.S. at 430 (noting that Congress "has provided for transfer, rather than dismissal, when a sister federal court is the more convenient place for trial of the action"); Iragorri v. United Techs. Corp. , 274 F.3d 65, 72 n.4 (2d Cir. 2001) (en banc); Recurrent Capital Bridge Fund I, LLC v. ISR Sys. & Sensors Corp. , 875 F.Supp.2d 297, 305 (S.D.N.Y. 2012). Accordingly, the Court considers only Movant's motion in the alternative for transfer pursuant to 28 U.S.C. § 1404(a).
"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). Motions for transfer "lie within the broad discretion of the district court and are determined upon notions of convenience and fairness on a caseby-case basis." In re Cuyahoga Equip. Corp. , 980 F.2d 110, 117 (2d Cir. 1992). The court should rule based on the clear and convincing evidence standard after considering whether the moving party has carried its "burden of making out a strong case for transfer.'" N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc. , 599 F.3d 102, 113-14 (2d Cir. 2010) (quoting Filmline (Cross-Country) Prods., Inc. v. United Artists Corp. , 865 F.2d 513, 521 (2d Cir. 1989)).
"The inquiry on a motion to transfer venue is two-fold. First, the district court must determine whether the case could have been brought in the proposed transferee district." Frame v. Whole Foods Mkt., Inc., No. 06 Civ. 7058 , 2007 WL 2815613, at *4 (S.D.N.Y. Sept. 24, 2007) (citing Herbert v. Elec. Arts, Inc. , 325 F.Supp.2d 282, 285 (S.D.N.Y. 2004); In re Nematron Corp. Secs. Litig. , 30 F.Supp.2d 397, 400 (S.D.N.Y. 1998)). If the case could have been originally brought in the proposed transferee district, the court must next decide whether transfer is appropriate. Id . Factors the court may consider include: the weight to be accorded to plaintiff's choice of forum and the locus of operative facts; convenience of witnesses; convenience and relative means of the parties; location of relevant documents and the relative ease of access to sources of proof; the availability of process to compel the attendance of unwilling witnesses; and the comparative familiarity of each district with the governing law. See Johnson & Johnson Vision Care, Inc. v. CIBA Vision Corp., No. 04 Civ. 7369, 2004 WL 2314424, at *1 (S.D.N.Y. Oct. 13, 2004); Capitol Records, Inc. v. Kuang DYI Co. of RM, No. 03 Civ. 0520 , 2004 WL 405961, at *3 (S.D.N.Y. Mar. 4, 2004); Prudential Secs. Inc. v. Norcom Dev., Inc., No. 97 Civ. 6308 , 1998 WL 397889, at ...