Ayers v. Arabian American Oil Co.

• Decision Date: 22 July 1983
• Docket Number: No. 82 Civ. 7936 (RLC).,82 Civ. 7936 (RLC).
• Citation: 571 F. Supp. 707
• Parties: David L. AYERS, and Sandra Ayers, his wife, Plaintiffs, v. ARABIAN AMERICAN OIL COMPANY, Defendant.
• Court: U.S. District Court — Southern District of New York

571 F. Supp. 707

David L. AYERS, and Sandra Ayers, his wife, Plaintiffs, v. ARABIAN AMERICAN OIL COMPANY, Defendant.

No. 82 Civ. 7936 (RLC).

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

July 22, 1983.

Kreindler & Kreindler, Attorneys, New York City, for plaintiffs; Paul S. Edelman, New York City, of counsel.

White & Case, Attorneys, New York City, for defendant; Thomas J. O'Sullivan, Alice R. Belair, New York City, of counsel.

OPINION

ROBERT L. CARTER, District Judge.

The motion to transfer is denied. Plaintiffs, husband and wife, residents of Ohio, have brought this action in this forum to recover damages for injuries to the husband sustained in an accident while he was employed by defendant in Saudi Arabia. Defendant is a Delaware Corporation and claims that it is not doing business in New York and has no connection with New York. Defendant seeks to have this action transferred to the Southern District of Texas, Eastern Division, pursuant to 28 U.S.C. § 1404(a). It contends that it is a foreign corporation that has a service agreement with Aramco Services Co. ("ASC"). The latter corporation is doing business in Texas and has its principal place of business in Houston, Texas. Under the service agreement, ASC arranges for defense of lawsuits brought against defendant.

The central focus of any forum non conveniens inquiry is to ensure that the situs of the trial is convenient. There is a strong presumption in favor of a citizen or resident plaintiff's choice of forum unless private and public interest factors clearly point to trial in the alternate forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 265-266, 70 L.Ed.2d 419 (1981).

Although defendant claims lack of contact with New York, it did have an office in New York at 1345 Avenue of the Americas, New York, New York, and was listed at that address in official state proceedings as late as February, 1983. Plaintiff, David Ayers, applied for unemployment insurance under New York law and is processing this claim before the New York State Department of Labor. Defendant is participating in that proceeding, and in a determination dated February 13, 1983, defendant's address is given as 1345 Avenue of the Americas. Since there is no reference in the February 13, 1983 determination to a protest by defendant concerning its participation in the state proceedings and no assertion in this case that it resisted plaintiffs' effort to invoke New York's unemployment insurance law, it is safe to assume that defendant participated in the proceedings before the New York State Department of Labor as an employer within the reach of the employment insurance laws of the state. Moreover, as of December, 1982, it was registered with the New York Department of State as doing business in New York, with C.T. Corporation cited as its agent for service of process.

Plaintiffs chose the forum in which defendant was doing business and maintained an office. Until this motion was filed, they apparently had every right to believe that their choice of New York was a convenient forum for defendant. Under the circumstances, even though now none of the parties apparently has any contacts with New York, plaintiffs' choice is still entitled to some deference, and the "burden of persuasion regarding the appropriateness of a discretionary 28 U.S.C. § 1404(a) transfer lies with the movant." Star Lines, Ltd. v. Puerto Rico Maritime Shipping Authority, 442 F.Supp. 1201, 1207 (S.D.N.Y. 1978) (Carter, J.). "Absent a clear and convincing showing" that the balance of convenience strongly favors the alternate forum, General State Authority (of Pennsylvania) v. Aetna Casualty and Surety Co., 314 F.Supp. 422, 423 (S.D.N.Y.1970) (Edelstein, J.), discretionary transfers are not favored. Where the balance of convenience is in equipoise, plaintiff's choice of forum should not be disturbed. Bastille Properties, Inc. v. Hometels of America, Inc., 476 F.Supp. 175, 182 (S.D.N.Y.1979) (Carter, J.).

All the witnesses to the accident, records, and doctors who first treated plaintiff are in Saudi Arabia. Defendant contends that it has two weekly charter flights from Saudi Arabia to Houston. Therefore, to transport these witnesses, records and doctors, if necessary, to Houston rather than New York would, defendant suggests, substantially reduce the cost of transportation. The added cost and inconvenience of bringing the people and documents here, however, would appear to be so insignificant as not to...