Aquatic Amusement Associates v. Walt Disney World

• Decision Date: 05 April 1990
• Docket Number: No. 89-CV-562.,89-CV-562.
• Parties: AQUATIC AMUSEMENT ASSOCIATES, LTD., Plaintiff, v. WALT DISNEY WORLD CO., Heery International, Inc., Heery Architects and Engineers, Inc., Heery Architects, Engineering and Planning, Inc., Heery Architects and Engineers, Inc., and Heery Engineering, Inc., Defendants.
• Court: U.S. District Court — Northern District of New York

734 F. Supp. 54

AQUATIC AMUSEMENT ASSOCIATES, LTD., Plaintiff, v. WALT DISNEY WORLD CO., Heery International, Inc., Heery Architects and Engineers, Inc., Heery Architects, Engineering and Planning, Inc., Heery Architects and Engineers, Inc., and Heery Engineering, Inc., Defendants.

No. 89-CV-562.

United States District Court, N.D. New York.

April 5, 1990.

DeGraff, Foy, Conway, Holt-Harris & Mealey (Christopher Massaroni, of counsel), Albany, N.Y., for plaintiff.

Ainsworth, Sullivan, Tracy & Knauf (Timothy J. O'Connor, of counsel), Albany, N.Y., and O'Brien, O'Rourke, Hogan & McNulty (James Moye, of counsel), Chicago, Ill., for defendants Heery.

Fitzpatrick, Cella, Harper & Scinto (Nicholas M. Cannella, of counsel), New York City, for Walt Disney World Co.

McCURN, Chief Judge.

MEMORANDUM-DECISION AND ORDER

Defendant Heery International Inc. ("Heery") has moved for reconsideration of this court's bench decision of February 6, 1990. Defendant asserts that the court gave undue consideration to the plaintiff's choice of forum when making its determination to deny its motion to transfer the venue of this action to the Middle District of Florida. The parties have not placed any additional factual assertions or new case law before the court. Rather, defendant Heery simply asserts that the law was wrongfully applied. In its response, plaintiff has essentially rested on the litigation papers it filed in opposition to the original motion to transfer.

On March 28, 1990, the court issued an order which denied the defendant's motion for reconsideration on the grounds that it was untimely filed under Rule 10(m) of the Local Rules of the Northern District of New York. After discussion with counsel it appears that the motion for reconsideration was filed in a manner and time which warrants that it be considered on the merits. Therefore, the March 28, 1990, order is hereby rescinded.

Background

This suit arises out of the design and construction of the Typhoon Lagoon water park at Disney World near Orlando, Florida. On October 3, 1989, the court heard and denied defendant Walt Disney World Company's ("Disney") motion to dismiss for lack of personal jurisdiction. Presently before the court is a motion by the other defendant, Heery International Inc., to reconsider the court's February 6, 1990, denial of its motion to transfer this action to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). Disney has submitted a short memorandum and affidavit in support of Heery's original motion.

The plaintiff, Aquatic Amusement Associates, Ltd., ("AAA") is a corporation engaged in the business of designing and engineering equipment for water amusement parks. AAA brought this action seeking damages under theories of quasi contract, unjust enrichment and tortious interference with a prospective business relationship. These claims are based on the assertion that Walt Disney World and its project manager on Typhoon Lagoon, Heery International, have wrongfully converted AAA's confidential technical data and design concepts in the course of constructing Typhoon Lagoon. The plaintiff's principle place of business is near Albany, New York. Defendant Disney is a resident of the Middle District of Florida and defendant Heery is a Georgia Corporation with its principal place of business in Atlanta.

Legal Standard

Title 28 U.S.C. § 1404(a), which governs the transfer of civil cases, states:

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 threshold question in a motion to transfer is whether the action could have been brought in the district to which transfer is sought. Arrow Electronics, Inc. v. Ducommun Inc., 724 F.Supp. 264, 265 (S.D.N.Y.1989). Where, as here, the jurisdiction of the court is based on the diverse citizenship of the parties, the action may be brought "only in the judicial district where all the plaintiffs or all defendants reside, or in which the claim arose." 28 U.S.C. § 1391(a). This court has recently had the opportunity to thoroughly review the case law governing a motion to transfer. In Pellegrino v. Stratton Corp., 679 F.Supp. 1164 (N.D.N.Y.1988) this court stated:

A motion to transfer ... is addressed to the sound discretion of the court.... It is well settled that the burden is on the defendant, when it is the moving party, to establish that there should be a change of venue.... A discretionary transfer under section 1404(a) "will not be granted `absent a clear cut and convincing showing by defendants that the balance of convenience weighs strongly in favor of the transferee court ...'" Vassallo v. Niedermeyer, 495 F.Supp. 757, 759 (S.D.N.Y.1980).

The factors relevant to the determination of whether this action should be transferred ... include:

the convenience to parties; the convenience of witnesses; the relative ease of access to sources of proof; the availability of process to compel attendance of unwilling witnesses; the cost of obtaining willing witnesses; practical problems that make trial of a case easy, expeditious, and inexpensive; and the interests of justice.

Id. Further, in this circuit, when a party seeks a transfer based on convenience of witnesses pursuant to section 1404(a) he must clearly specify the key witnesses to be called and must make a general statement of their testimony.... That is so because convenience to the witnesses is a very important factor. In addition to the factors listed above, the relative financial hardship on the litigants and their respective abilities to prosecute or defend an action in a particular forum are legitimate factors to consider.... The consideration of comparative calender conditions is also relevant.... Finally, ... the plaintiff's choice of forum is an additional consideration.

Id. at 1166-67 (citations omitted); see also Arrow Electronics, Inc. v. Ducommun Inc., 724 F.Supp. at 265-66 (recent summary of Second Circuit case law on transfer motions).

Discussion

A. Whether Florida Is An Appropriate Forum.

The Northern District of New York is clearly an appropriate venue under 28 U.S.C. §§ 1391(a) and 1404(a) because it is the district in which the plaintiff resides. The defendants, on the other hand, are citizens of different states. As a result, the Middle District of Florida is an appropriate venue only if this court finds that the plaintiff's claims arose in that district. The plaintiff contends that its claims for unjust enrichment/quasi contract and tortious interference with a prospective business relationship arose in New York and, therefore, the Middle District of Florida is not a proper venue.

The only concrete evidence, of contacts between the plaintiff and the defendants with respect to the Typhoon Lagoon project, has been provided through the detailed affidavit of Herbert Ellis, the president of plaintiff Aquatic Amusement Associates. According to Mr. Ellis, the parties engaged in extensive negotiations and transfers of technical information from the fall of 1986 through the spring of 1988. Mr. Ellis also describes two meetings over three separate days in which officials from the defendants, as well as other experts, traveled to New York for discussions concerning AAA's proposals for Typhoon Lagoon. Ellis Affidavit pars. 10-17.

For their part, the defendants have placed little or no evidence before the court concerning the interaction of the parties within the Middle District of Florida. Heery simply asserts that "both the Plaintiff and Defendant Heery International, Inc. had substantial and significant contacts with the Middle District of Florida." Heery's Mem. of Law at 4. Such bald statements, unsupported by affidavit, would in most circumstances be insufficient to show that the venue in a particular jurisdiction was proper. However, the court may properly conclude that the Middle District of Florida would be an appropriate venue. The claims asserted by the plaintiff against defendant involve allegations concerning a wrongful taking of ideas from New York, with wrongful use of those ideas in the design and construction of the Typhoon Lagoon park in Florida. Moreover, the "unjust enrichment" of the defendants, if any, would at least in part have taken place in Florida — with any loss to the plaintiffs taking place in New York. This court cannot help but conclude that significant acts with respect to plaintiff's claims took place in both New York and Florida. Venue could be assigned to either location with "approximately equal plausibility." Leroy v. Great Western United Corp., 443 U.S. 173, 185, 99 S.Ct. 2710, 2717, 61 L.Ed.2d 464 (1979); see also Davis v. Costa-Gavras, 580 F.Supp. 1082, 1089-90 (S.D.N.Y.1984). Therefore, the court holds that the Middle District of Florida would be an appropriate venue for the adjudication of this action.

B. Which Forum Is More Convenient?

As noted above, the party requesting the transfer "bears the burden of establishing, by a clear and convincing showing, the propriety of transfer." Morales v. Navieras De Puerto Rico, 713 F.Supp. 711, 712 (S.D.N.Y.1989); see also Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2nd Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). Defendant Heery claims that the Middle District of Florida is the preferred venue because it is the more convenient location for the majority of likely witnesses. While the convenience of party witness is a factor to be considered, Pellegrino v. Stratton Corp., 679 F.Supp. at 1166-67, the convenience of non-party witnesses is the more important factor. Nieves v. American Airlines, 700 F.Supp. 769, 772 (S.D.N.Y.1988). When determining whether a particular venue is more convenient to witnesses courts do not limit their investigation to a review of which party can produce the longer witness list. 15 Wright, Miller & Cooper, Federal Practice and...