GENERAL STATE AUTHORITY (OF PA.) v. Aetna Cas. & Sur. Co.

• Citation: 314 F. Supp. 422
• Decision Date: 17 June 1970
• Docket Number: No. 68 Civ. 363 D.N.E.,68 Civ. 363 D.N.E.
• Parties: The GENERAL STATE AUTHORITY (OF PENNSYLVANIA) for the Benefit of CROMPTON-RICHMOND CO., INC., FACTORS, Plaintiff, v. AETNA CASUALTY AND SURETY COMPANY, Defendant.
• Court: U.S. District Court — Southern District of New York

314 F. Supp. 422

The GENERAL STATE AUTHORITY (OF PENNSYLVANIA) for the Benefit of CROMPTON-RICHMOND CO., INC., FACTORS, Plaintiff, v. AETNA CASUALTY AND SURETY COMPANY, Defendant.

No. 68 Civ. 363 D.N.E.

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

June 17, 1970.

Hahn, Hessen Margolis & Ryan, New York City, for plaintiff.

Lawrence W. McKeown, Mineola, for defendant.

OPINION

EDELSTEIN, District Judge.

This is a diversity action against the defendant insurance company on a performance bond. Under the terms of the bond Aetna Casualty, ("Aetna"), as surety, and Frank M. Sheesley & Co., Inc., ("Sheesley"), as principal, guarantee the Pennsylvania General State Authority the faithful performance of a contract pursuant to which Sheesley was to construct a women's dormitory at West Chester State College, West Chester, Chester County, Pennsylvania.¹ The Pennsylvania General State Authority commenced this action on January 26, 1968, for the benefit of Crompton-Richmond, alleged assignee of certain accounts receivable of Garrett Industries, Inc., ("Garrett"), a subcontractor of Sheesley for work allegedly duly performed by Garrett in connection with the dormitory.

Defendant first moved this court, in April 1968, to transfer venue from the Southern District of New York to the Eastern District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a).² Upon examination of defendant's supporting papers, Judge Tyler then noted in particular the absence of a list of defendant's putative witnesses, their home or work addresses, and the nature and materiality of their testimony, citing Peyser v. General Motors Corp., 158 F.Supp. 526, at 529 (S.D.N.Y.1958). See also Riso Kagaku Corp., v. A. B. Dick Co., 300 F.Supp. 1007, 1010 (S.D.N.Y.1969); Holiday Rambler Corp. v. American Motors Corp., 254 F.Supp. 137, 140 (W.D.Mich. S.D., 1966). Therefore, notwithstanding his observation that "although there are factors present in this litigation which would tend to support a transfer to the District Court in Pennsylvania * * *" Judge Tyler felt constrained to deny defendant's motion without prejudice to renew "upon a more complete record."³ Defendant now renews its earlier motion under 28 U.S.C. § 1404(a).

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. Gallen v. Howard D. Johnson Co., 271 F.Supp. 680, 683 (S.D.N.Y. 1967). Factors relevant to such a showing include the convenience of the witnesses, the availability of process to compel the attendance of unwilling witnesses, the interests of justice and of the public, and "all other practical problems that make trial of a case easy, expeditious and inexpensive." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 91 L.Ed. 1055 (1946); also Gallen v. Howard D. Johnson Co., supra, 682-683 (S.D.N.Y.1967); Oil & Gas Ventures, etc. v. Kung, 250 F.Supp. 744, 754 (S.D. N.Y.1966).

While arguments have been advanced with respect to each of these factors, initial consideration is directed to defendant's list of 38 putative witnesses, their addresses, and a brief description of their knowledge of facts relating to the within action. The list consists principally of persons claiming to have firsthand knowledge of the dormitory project and the relevant agreements. As constituted, this list cures the defect noted earlier by Judge Tyler. Assuming, arguendo, that some of the testimony of the putative witnesses would be immaterial, or cumulative, and that the number of witnesses is exaggerated, yet it would be unrealistic to doubt that the defense will require the testimony of numerous witnesses so listed. See Schneider v. Sears, 265 F.Supp. 257, 265 (S.D.N.Y. 1967). Furthermore, none of the witnesses listed by defendant is a resident of New York; rather, all reside either in Pennsylvania or in New Jersey, at locations within comparatively easy reach of the District Court in Philadelphia. And for that matter, two of the five witnesses proposed by plaintiff reside in Pennsylvania, although the remaining three are residents of New York. Clearly the expense and inconvenience involved in a New York trial would greatly exceed that of trial in Philadelphia.

Moreover, the interest of justice weighs strongly in favor of transfer. As noted, all of defendant's and two of plaintiff's five witnesses are beyond the jurisdiction of this court. Process, therefore, would be unavailable to compel the attendance of unwilling witnesses, and athough an argument can be made for the use of deposition testimony, such testimony on key issues is a highly unattractive alternative to live testimony, the availability of which would not be in doubt should transfer be granted. Axe Houghton Fund A, Inc. v. Atlantic Research Corp., 227 F.Supp. 521, 524 (S.D. N.Y.1964).

Secondly, the papers indicate the possibility, albeit conjectural, of consolidating this case with actions now pending in the Pennsylvania state court; the advantages and benefits accruing from settlement of related disputes before a single tribunal cannot be minimized in weighing the merits of a transfer motion. E. g., Schlusselberg v. Werly, 274 F.Supp. 758, 764 (S.D.N.Y.1967); Schneider v. Sears, supra, 265 F.Supp. at 266-267; Rodgers v. Northwest Airlines, Inc., 202 F.Supp. 309, 313 (S.D. N.Y.1962). Next, the possibility that a view of the dormitory project might be necessary if appropriate to the issues cannot be altogether ignored. Spencer, White & Prentis, Inc. v. Jacet Construction Corp., 258 F.Supp. 473, 474 (S.D. N.Y.1966). Clearly such a procedure would be extremely impracticable were trial held here rather than in Philadelphia, within commuting distance of the dormitory. Compare, Breindel v. Levitt & Sons, Inc., 294 F.Supp....