Hernandez v. Graebel Van Lines

• Decision Date: 13 April 1991
• Docket Number: No. CV-90-1229(ADS).,CV-90-1229(ADS).
• Citation: 761 F. Supp. 983
• Parties: Cesar HERNANDEZ, Plaintiff, v. GRAEBEL VAN LINES and Willie Johnson, Defendants.
• Court: U.S. District Court — Eastern District of New York

761 F. Supp. 983

Cesar HERNANDEZ, Plaintiff, v. GRAEBEL VAN LINES and Willie Johnson, Defendants.

No. CV-90-1229(ADS).

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

April 13, 1991.

COPYRIGHT MATERIAL OMITTED

Ross, Suchoff, Taroff, Egert & Hankin, P.C., New York City (Mark L. Hankin, of counsel), for plaintiff.

White, Fleischner, Fino & Wade, New York City (John Mulcahy, of counsel), for defendants.

OPINION AND ORDER

SPATT, District Judge.

This diversity action arose out of a rearend collision between two tractor trailers that occurred in the early evening hours on a highway located in Port St. Lucie, Florida. Except for the plaintiff and his treating physician(s), all other witnesses and the material evidence are located within the confines of the State of Florida. The plaintiff commenced this action in his home forum, the Eastern District of New York, and the defendants, both nonresidents, now seek to transfer the action to the Southern District of Florida.

Since the Court finds, among other things, that the convenience of the non-party witnesses and the interest of justice are best served if this action is tried in Florida, the motion of the defendants to transfer is granted.

I. FACTUAL BACKGROUND

On November 22, 1989, the defendant Willie Johnson ("Johnson"), was operating a tractor trailer owned by the defendant Graebel Van Lines ("Graebel"), travelling northbound on SR-9 in Port St. Lucie, Florida. The plaintiff Cesar Hernandez ("the plaintiff"), also operating a tractor trailer, was proceeding directly behind Johnson when he collided with the rear of the Johnson's vehicle. The plaintiff allegedly sustained severe and permanent injuries as a result of the accident.

The plaintiff commenced this negligence action against the defendants Johnson and Graebel, basing federal jurisdiction on diversity of citizenship (see 28 U.S.C. § 1332a1). The plaintiff is a resident of New York, Johnson is a Tennessee resident, and Graebel is a Wisconsin corporation licensed to do business in New York. The amount in controversy exceeds $50,000.

The defendants, both represented by the same counsel, interposed an answer asserting several affirmative defenses, including, inter alia, lack of in personam jurisdiction (first affirmative defense) and improper service of process (fifth affirmative defense).

II. PROCEDURAL SETTING

The plaintiff moves pursuant to Fed.R. Civ.P. 12(f) to strike both the first and fifth affirmative defenses. In opposition, the defendants agree to withdraw the fifth affirmative defense (improper service) as to both defendants, and to withdraw the first affirmative defense (lack of in personam jurisdiction) as to the defendant Graebel only. Defendant Johnson, however, opposes the plaintiff's motion to strike the affirmative defense of lack of personal jurisdiction as to him and, in turn, cross-moves to dismiss on that ground pursuant to Fed. R.Civ.P. 12(b)(2). In addition, both defendants move to transfer this action to the Southern District of Florida pursuant to 28 U.S.C. § 1404(a).

III. DISCUSSION

The Court first considers the propriety of a transfer, then addresses the issue of personal jurisdiction over the defendant Johnson.

A. Motion to Transfer:

A motion to transfer venue from one federal district court to another, when venue is initially proper, is governed by 28 U.S.C. § 1404(a), which provides, in pertinent part:

"(a) 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 goal of 28 U.S.C. § 1404(a) "is to prevent 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 1964, quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26-27, 80 S.Ct. 1470, 1474-75, 4 L.Ed.2d 1540 1960). The inquiry on such a motion to transfer is two-fold: First, whether the action sought to be transferred is one that "might have been brought" in the district court which the movant seeks to have the case litigated, i.e., the "transferee" court. If so, second, whether, considering "the convenience of parties and witnesses" and "the interest of justice", a transfer to the proposed district is appropriate (see Schneider v. Sears, 265 F.Supp. 257, 261 S.D.N.Y.1967 Weinfeld, J.).

On such a motion to transfer, the movant bears the burden to "clearly" establish that a transfer is appropriate and that the motion should be granted (see Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218-19 2d Cir.1978, cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 1979; see also Arrow Elecs., Inc. v. Ducommun, Inc., 724 F.Supp. 264, 265 S.D.N.Y.1989, quoting Morales v. Navieras de Puerto Rico, 713 F.Supp. 711, 712 S.D.N.Y.1989; Schneider v. Sears, supra, 265 F.Supp. at p. 263).

With these principles in mind, the Court addresses the two-part inquiry.

(1) "Might Have Been Brought":

As to the first query, the parties do not dispute, and the Court finds, that the Southern District of Florida is a district where the action "might have been brought" originally (28 U.S.C. § 1404a; see also Plaintiff's Memorandum of Law at p. 12; Mulcahy Reply Aff't ¶¶ 2-3). Therefore, the transferee district, namely, the Southern District of Florida, is a proper place of venue for the trial of this action in accordance with 28 U.S.C. § 1391(a).

The Court must now turn to the second prong of the test, namely, whether a transfer is warranted in light of the convenience of the parties and witnesses, and if it would be in the interest of justice.

(2) "For the Convenience of Parties and Witnesses" and "in the Interest of Justice":

Whether an action should be transferred under section 1404(a) "is left to the sound discretion of the district court" (Filmline (Cross-Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir. 1989) citing cases). In order to assist in this determination, the courts have employed a variety of factors that serve as a guidepost, none of which are singly dispositive. Those factors include: (1) convenience of the parties; (2) convenience of witnesses; (3) relative means of the parties; (4) locus of operative facts and relative ease of access to sources of proof; (5) attendance of witnesses; (6) the weight accorded the plaintiff's choice of forum; (7) calendar congestion; (8) the desirability of having the case tried by the forum familiar with the substantive law to be applied; (9) practical difficulties; and finally, (10) the Court should also consider how best to serve the interest of justice, based on an assessment of the totality of material circumstances (see, e.g., Gibbs & Hill, Inc. v. Harbert Int'l, Inc., 745 F.Supp. 993, 996 S.D.N.Y.1990; Schieffelin & Co. v. Jack Co. of Boca, Inc., 725 F.Supp. 1314, 1321 S.D.N.Y.1989; Turner v. Hudson Transit Lines, Inc., 724 F.Supp. 242, 243 S.D. N.Y.1989; Miller v. County of Passaic, 699 F.Supp. 409, 411 (E.D.N.Y.1988), citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-08, 67 S.Ct. 839, 842-43, 91 L.Ed. 1055 1946; Cain v. New York State Bd. of Elections, 630 F.Supp. 221, 227 E.D.N.Y. 1986; Schneider v. Sears, supra, 265 F.Supp. at p. 263). Although these factors are essentially the same as those considered in determining whether an action should be dismissed for forum non conveniens (see Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 1955), section 1404(a) vests courts with power to exercise broader discretion to grant transfers upon a lesser showing of inconvenience than is required under the forum non conveniens analysis (see Norwood v. Kirkpatrick, supra, 349 U.S. at p. 32, 75 S.Ct. at p. 546; see generally 3 Cyclopedia of Federal Practice § 4.46, at pp. 134-35 3d rev. ed. 1985 collecting cases).

As stated above, a party seeking a transfer under section 1404(a) bears the burden to make a "clear" showing that a transfer is appropriate (see Factors Etc., Inc. v. Pro Arts, Inc., supra, 579 F.2d at pp. 218-19; Schneider v. Sears, supra, 265 F.Supp. at p. 263), and must support the application with an affidavit containing detailed factual statements relevant to the factors set forth above, including the potential principal witnesses expected to be called and a general statement of the substance of their testimony (see Factors Etc., Inc. v. Pro Arts, Inc., supra, 579 F.2d at p. 218; Schieffelin & Co. v. Jack Co. of Boca, Inc., supra, 725 F.Supp. at p. 1321; Riso Kagaku Corp. v. A.B. Dick Co., 300 F.Supp. 1007, 1010 S.D.N.Y.1969).

Each of those factors is considered below, seriatim.

Convenience of the Parties. Both defendants request a transfer, which the plaintiff strenuously opposes. The logical and relevant starting point is a consideration of the residence of the parties (see Heyco, Inc. v. Heyman, 636 F.Supp. 1545, 1550 S.D.N.Y.1986, citing Copulsky v. Boruchow, 545 F.Supp. 126, 128-29 E.D. N.Y.1982). In this regard, any inconvenience that might enure to counsel is unpersuasive and generally not a factor to consider (see, e.g., Vaughn v. American Basketball Ass'n, 419 F.Supp. 1274, 1277 S.D. N.Y.1976 citing cases; see generally 15 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure § 3850, at pp. 412-13 1986 noting "bulk of the cases" either do not consider location of counsel at all, or at the very least accord it "very little weight").

The plaintiff presently resides in New York. At the time of the accident, however, the plaintiff resided in Newark, New Jersey (see Police Report, dated Nov. 22, 1989, at p. 1). He also had a New Jersey driver's license, and was operating the tractor trailer with New Jersey license plates (id.).

The defendant Johnson has resided in Memphis, Tennessee for approximately twenty-five years to the present time (see Johnson Aff't ¶ 1). He never lived in New York State, nor does he...