Hardaway Constructors v. Conesco Industries, Civ. 82-14.

• Citation: 583 F. Supp. 617
• Decision Date: 22 March 1983
• Docket Number: Civ. 82-14.
• Parties: HARDAWAY CONSTRUCTORS, INC., Plaintiff, v. CONESCO INDUSTRIES, LTD., Defendant.
• Court: U.S. District Court — District of New Jersey

583 F. Supp. 617

HARDAWAY CONSTRUCTORS, INC., Plaintiff, v. CONESCO INDUSTRIES, LTD., Defendant.

Civ. 82-14.

United States District Court, D. New Jersey.

March 22, 1983.

Paul Lewis, Paramus, N.J., for plaintiff.

Robert B. Turk, West Orange, N.J., for defendant.

OPINION

BIUNNO, Senior District Judge.

Hardaway is a Georgia corporation that entered into a contract with the Maryland Department of Transportation, State Highway Administration, to build a bridge over the South River in that State.

Conesco, a New Jersey citizen, submitted a proposal to Hardaway to provide "custom forms" for containing and shaping concrete to be poured under water in the formation of the reinforced footings for the bridge. In response, Hardaway sent Conesco its purchase order, which Conesco accepted in New Jersey. The last part of the purchase order sets out printed terms, one of which draws in the plans and specifications for the job.

Hardaway's suit is, in general, for damages largely claimed to be due to delay. As described at argument, Conesco had designed some ingenious forms somewhat like a clamshell, but the engineers were of the view that their approval would have to be conditioned on the achievement of the specified compressive strength of the concrete and on the ability to incorporate complex reinforcing steel to achieve the specified tensile strength.

Presumably, Conesco was unwilling to proceed under those conditions and the exchange went through a series of approaches ending in the supplying of some other design of form. Naturally, the rest of the bridge could not proceed while this went on. Conesco denies fault and counterclaims for sums claimed to be due and unpaid.

This opinion does not address the merits of the dispute; what has been said merely serves to identify and describe it. Rather, it deals with the question whether the case should be here, or whether it should be transferred to the District of Maryland where the bridge, the Department of Transportation (State Highway Administration), an office of the engineers, the plans, and site knowledgeable witnesses are located. The question was raised on the court's initiative after reviewing the file which had come to its attention when defendant filed a motion for summary judgment largely based on the proposition that its contract was made in New Jersey, was for the sale of goods, and that the claim was governed by the Uniform Commercial Code which has been enacted by both jurisdictions. That motion is not decided here, and the case is ordered transferred. The reasons follow.

A. Jurisdiction

Conesco is located here, was served here, and is properly "in court". There is no issue of in personam jurisdiction.

Subject matter jurisdiction rests on diversity of citizenship and amount in controversy, 28 U.S.C. § 1332(a), and all the requirements are satisfied.

As a suit for damages for default in performance of a contract, with a denial and counterclaim for the unpaid purchase price, it has all the appearance of a transitory action properly brought in this District, rather than a "local" action that can only be brought in Maryland.

Yet, it has much of the flavor and characteristics of a local action. See the discussion in Minichiello etc. v. Britt, 460 F.Supp. 896 (D.N.J.1978), and in X-Rail Systems, Inc. v. Norfolk & W. Ry. Co., 485 F.Supp. 553 (D.N.J., 1980). Whether the action be local or transitory under New Jersey law, assuming the Erie doctrine controls, need not be decided. It seems rather obvious that the heart of the dispute, i.e., whether Conesco performed or defaulted, will require some court to consider the plans and specifications, the various designs submitted which were acceptable only with conditions not agreeable to Conesco, and the like. It would be different if the purchase order had been for barrels of 10d box nails, or coils of No. 10 AWG copper wire with 500 volt insulation, or 4' × 8' sheets of ¾" outdoor fir plywood, or any other such item that could be looked at as a "shelf item", or a "staple article of commerce", see Dawson Chem. Co. v. Rohm & Haas Co., 448 U.S. 176, 100 S.Ct. 2601, 65 L.Ed.2d 696 (1980).

These were "custom" forms designed for this bridge, and the experience in construction litigation is that to resolve the dispute the fact finder will need to have access to the engineer and perhaps several other outside experts, as well as to the documentary records.

In the initial exposition of Parkinson's Law, it was recorded that for every ship constructed for the British Navy, there was created and accumulated a store of plans, specifications and drawings aggregating a tonnage greater than that of the ship itself, and that even after the ship had served out its useful life, its officers and crew transferred or retired, and the ship itself scrapped, the tonnage of paper continued to survive in the Admiralty, tended to by an army of civil servants in greater number than the officers and crew at the peak of the battle.

So it is with buildings and with bridges. The colloquy at hearing indicates that there is, in Maryland, the body of records that stay with the bridge, the Maryland officials and the engineers who drew the plans and specifications. Where those records and witnesses are seems to the court to be the best place to litigate the dispute, even if the claims be transitory. This is a matter of venue. And, see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981).

B. Venue

The Supreme Court has explained that the purpose of 28 U.S.C. § 1404(a)¹ 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, 809, 11 L.Ed.2d 945, 950 (1964) citing Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26, 27, 80 S.Ct. 1470, 1474, 1475, 4 L.Ed.2d 1540, 1545 (1960). The court's discretion in granting a transfer under § 1404(a) is broader than when it exercises its powers under the doctrine of forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955). Although a lesser showing of inconvenience is required under the statute, "the principles justifying application of the doctrine ... are still implicit in the language of the section." Anschell v. Sackheim, 145 F.Supp. 447 (D.N.J.1956). See also, Solomon v. Continental American Life Insurance Co., 472 F.2d 1043 (CA-3 1973) (Gibbons, J.); All States Freight v. Modarelli, 196 F.2d 1010 (CA-3 1952); Thus, the three factors of the statute—convenience of parties, and of witnesses, and the interests of justice—can be examined in detail using the Supreme Court's analysis of forum non conveniens set down in Gulf Oil v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). In Gilbert, supra, the Court outlined two sets of factors to be examined. These interests were private interests of litigants including:

—plaintiff's choice of forum

—ease of access to sources of proof

—compulsory process for unwilling witnesses and cost of obtaining attendance of unwilling witnesses —enforceability of possible judgment

—obstacles to fair trial (or advantages)

—availability of impleader

—all other problems that make trial easy, expeditious, and inexpensive.

The Court also pronounced a public interest embodied in the doctrine which consisted of:

—administrative difficulties (reflecting a desire to keep litigation in courts with crowded dockets to a minimal level)

—placing the burden of jury duty on those with the closest ties to the action

—local interest in having localized controversies decided at home

—and finally and most significant in the instant case, the court noted that "there is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflicts of laws, and in law foreign to itself." Id. at 508-509, 67 S.Ct. at 843.

The general rule is that unless the balance is strongly tipped in favor of transfer, the plaintiff's choice of forum should not be disturbed. Gulf Oil v. Gilbert, supra at 508, 67 S.Ct. at 843. However, the deference afforded to plaintiff's choice has "reduced value where ... there is an absence of any significant contact by the forum state with the plaintiff or the transactions or conduct underlying the cause of action." National Surety Corporation v. Robert M. Barton Corp., 484 F.Supp. 222, 224 (W.D.Okl.1979) citing Chicago Rock Island & Pacific R.R. Co. v. Igoe, 220 F.2d 299, 304 (7th Cir.1955), cert. denied, 350 U.S. 822, 76 S.Ct. 49, 100 L.Ed. 735 (1955) and additional district court cases.

The Gilbert criteria were applied to a motion for transfer in a construction case in Koehring Company v. Hyde Construction Company, 324 F.2d 295 (CA-5, 1963) (Wisdom, J.). That case concerned the construction of a concrete plant at the erection site of a spillway at Keystone Dam on the Arkansas River in Oklahoma. Id. at 295. After the plant did not meet the standards of the contract the plaintiff, a Mississippi corporation, brought an action in breach of contract against defendant, a Wisconsin corporation, in the Southern District of Mississippi. The defendant's motion for transfer to the Northern District of Oklahoma was denied by the trial court. The Fifth Circuit reversed. The Court noted that the plant was physically in Oklahoma, and "all relevant factors concerning its failure to perform occurred in Oklahoma". Id. at 296. Most witnesses lived near the site and a view of the site could only be had in Oklahoma. Id. The court also pointed to a disparity in docket crowding. Id. Recalling the Seventh Circuit's decision in Chicago, Rock Island & Pacific Railroad Co. v. Igoe, 220 F.2d 299 (1955), the Koehring court noted that the "interests of justice" should be given paramount importance. 324 F.2d at 297.

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