Gundle Lining Const. v. Fireman's Fund Ins.

• Decision Date: 02 March 1994
• Docket Number: Civ. A. No. H-93-3387.
• Citation: 844 F. Supp. 1163
• Parties: GUNDLE LINING CONSTRUCTION CORP., Petitioner, v. FIREMAN'S FUND INSURANCE COMPANY, Respondent.
• Court: U.S. District Court — Southern District of Texas

844 F. Supp. 1163

GUNDLE LINING CONSTRUCTION CORP., Petitioner, v. FIREMAN'S FUND INSURANCE COMPANY, Respondent.

Civ. A. No. H-93-3387.

United States District Court, Southern District of Texas, Houston Division.

March 2, 1994.

John L. Dagley, Porter & Clements, Houston, TX, for petitioner.

Brendan D. Cook, Verner, Liipfert, Bernhard, McPherson & Hand, Houston, TX, for respondent.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Pending before the court is defendant American Insurance Company's Motion to Transfer Venue (Docket Entry # 10). American Insurance Company ("American"), incorrectly named in the complaint as Fireman's Fund Insurance Company, seeks a transfer of venue under 28 U.S.C. § 1404(a) from the Southern District of Texas, Houston Division, to the District of New Jersey.

After reviewing the motion, the submissions of the parties, the pleadings, and the applicable law, the court is of the opinion that American's motion should be granted.

I. Background.

This claim arises out of the performance of a construction contract by Agate Construction Co., Inc. ("Agate") for the Gloucester County Improvement Authority ("GCIA") at the Gloucester County Solid Waste Complex located in Gloucester County, New Jersey. Under a subcontract dated March 19, 1992, plaintiff Gundle Lining Construction Corp. ("Gundle") furnished labor, material, and equipment to Agate at the New Jersey site for the installation of environmental lining systems. As surety, American issued a performance and payment bond covering Agate's performance on the project. Subsequently, the GCIA terminated Agate from the project and filed a lawsuit styled Gloucester County Improvement Authority v. Agate Construction Co., Inc. & American Insurance Company, No. L-1201-93, in the Superior Court of Gloucester County, New Jersey, for damages stemming from Agate's alleged delay in completing its performance on the project.

In this action, Gundle contends that Agate breached the subcontract by failing to pay the agreed price for work performed on the project and that American failed to satisfy Gundle's demand for payment under the bond. Gundle filed suit initially in the 151st District Court of Harris County, Texas. American removed the case to federal court and now seeks to transfer it to the District of New Jersey.

II. Analysis.

A motion to transfer venue from one federal district court to another is governed by 28 U.S.C. § 1404(a), which provides that "for the convenience of the 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 purpose of this statute is to prevent the waste of time, energy, and money and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense. Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964); Stabler v. New York Times Co., 569 F.Supp. 1131, 1137 (S.D.Tex.1983). Under § 1404(a), the movant has the burden of demonstrating that a change of venue is warranted. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir.1966); Stabler v. New York Times Co., 569 F.Supp. at 1137. To prevail, the moving party must show that the balance of convenience and justice weighs heavily in favor of the transfer. Acrotube, Inc. v. J.K. Fin. Group, Inc., 653 F.Supp. 470, 477 (N.D.Ga.1987). Therefore, when assessing the merits of a § 1404(a) motion, a court must determine if a transfer would make it substantially more convenient for the parties to litigate the case. Id.

The decision to transfer a pending case is committed to the sound discretion of the district court. Van Dusen v. Barrack, 376 U.S. at 616, 84 S.Ct. at 809; Parson v. Chesapeake & Ohio Ry. Co., 375 U.S. 71, 74, 84 S.Ct. 185, 187, 11 L.Ed.2d 137 (1963). The criteria weighed by a court in deciding a § 1404(a) motion include:

(1) the convenience of the parties;

(2) the convenience of material witnesses;

(3) the availability of process to compel the presence of unwilling witnesses;

(4) the cost of obtaining the presence of witnesses;

(5) the relative ease of access to sources of proof;

(6) calendar congestion;

(7) where the events in issue took place; and

(8) the interests of justice in general.

St. Cyr v. Greyhound Lines, Inc., 486 F.Supp. 724, 727 (E.D.N.Y.1980); Goodman v. Schmalz, 80 F.R.D. 296, 300-01 (E.D.N.Y. 1978). For a transfer of venue under § 1404(a), the plaintiff's choice of forum is not accorded the decisive weight it enjoyed under the doctrine of forum non conveniens. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253, 102 S.Ct. 252, 264, 70 L.Ed.2d 419 (1987). Today, the choice of forum is only one of many factors for a court to consider. Harris Trust & Sav. Bank v. SLT Warehouse, 605 F.Supp. 225, 227 (N.D.Ill.1985).

In the instant case, a review of the relevant factors indicates that a transfer is warranted. Under 28 U.S.C. § 1391, venue is proper in the District of New Jersey because that is where a substantial part of the events and alleged omissions occurred. While it may be somewhat more convenient for Gundle to litigate in this forum, the State of Texas lacks any significant connection to the underlying dispute. The events giving rise to this cause of action occurred in New Jersey; Gundle sent employees, materials, and equipment there to perform the subcontract; the environmental lining system constructed by Gundle remains in New Jersey; and the majority of the material witnesses and relevant documents are located there.

To support their respective positions, American and Gundle each list a number of witnesses whose testimony they contend will be required at trial. Gundle's list consists almost entirely of its own employees, whose testimony could be obtained by Gundle both in New Jersey and Texas and, in many instances, would merely be cumulative and directed to collateral issues. A vast majority of the non-party witnesses, who have the most information concerning the performance of the contract, reside in New Jersey. Compulsory process over these witnesses would be available in New Jersey, but not in Texas. Even if some of the witnesses were willing to testify, the cost of transportation to obtain their presence at trial in Texas would be substantial. The relative convenience to the witnesses is often recognized as the most important factor to be considered in ruling on a motion under § 1404(a). See Electronic Transaction Network v. Katz, 734 F.Supp. 492, 501 (N.D.Ga.1989); Saminsky v. Occidental Petroleum Corp., 373 F.Supp. 257, 259 (S.D.N.Y.1974). It is the convenience of nonparty witnesses, rather than that of employee witnesses, however, that is the more important factor and is accorded greater weight. See Aquatic Amusement Assoc. v. Walt Disney World, 734 F.Supp. 54, 57 (S.D.N.Y. 1990); see also DEV Indus., Inc. v. NPC, Inc., 763 F.Supp. 313, 315 (N.D.Ill.1991); Designs by Glory v. Manhattan Creative Jewelers, 657 F.Supp. 1257, 1259 (S.D.N.Y.1987). In this situation, the convenience of the nonparty witnesses, who appear to have greater knowledge of information material to this case, is better served by a trial in New Jersey.

Although Gundle claims that much of its documentary evidence is located in Texas, it ignores the fact that the documentary evidence held by Agate, American, the GCIA, and the other non-party witnesses is located in New Jersey. Also, a view of the premises would only be available in New Jersey, the site of the project. While Gundle's selection of Texas as the forum is entitled to some weight, it is not controlling given the substantial factors in favor of a New Jersey forum. See, e.g., Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 990-91 (E.D.N.Y. 1991); General Accident Ins. Co. v. Travelers Corp., 666 F.Supp. 1203, 1206 (N.D.Ill.1987); Waites v. First Energy Leasing Corp., 605 F.Supp. 219, 222 (N.D.Ill.1985); St. Cyr v. Greyhound Lines, Inc., 486 F.Supp. at 727.

Moreover, under Texas conflicts of law analysis, New Jersey law appears to be applicable to this dispute, as New Jersey has the most significant relationship to the occurrence and the parties. See Maxus Exploration Co. v. Moran Bros., Inc., 817 S.W.2d 50, 53 (Tex.1991); DeSantis v....