Nieves v. American Airlines

• Decision Date: 30 November 1988
• Docket Number: No. 87 Civ. 5917 (PKL).,87 Civ. 5917 (PKL).
• Citation: 700 F. Supp. 769
• Parties: Roselia NIEVES, Plaintiff, v. AMERICAN AIRLINES, Defendant.
• Court: U.S. District Court — Southern District of New York

700 F. Supp. 769

Roselia NIEVES, Plaintiff, v. AMERICAN AIRLINES, Defendant.

No. 87 Civ. 5917 (PKL).

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

November 30, 1988.

David M. Lee, New York City (Steven P. Germansky, of counsel), for plaintiff.

Bigham Englar Jones & Houston, New York City (Robert E. Hirsch, of counsel), for defendant.

OPINION & ORDER

LEISURE, District Judge:

Plaintiff Roselia Nieves, a New York resident, filed a complaint in this Court on August 17, 1987 against American Airlines, a Delaware corporation with its principal place of business in Texas, for injuries resulting from an accident at the Luis Munoz Marin International Airport in Puerto Rico. After bringing this action in New York, plaintiff instituted a second action against American Airlines for the same alleged injuries in the Superior Court of Puerto Rico. The defendant, American Airlines, now moves pursuant to Section 1404(a) of Title 28 of the United States Code for an order transferring this action to Puerto Rico or, alternatively, dismissing the action on forum non conveniens grounds.

FACTUAL BACKGROUND

Plaintiff Roselia Nieves traveled to Puerto Rico to visit relatives. In the Luis Munoz Marin International Airport in Puerto Rico, plaintiff allegedly twisted her knee when the heel of her shoe became stuck in an escalator step. Two accident reports for this injury were filled out, one by "Autoridad de los Puertos de Puerto Rico" ("Port Authority"), which had overall control of the airport facility, the other by a nurse employed by the Port Authority.

After bringing this action in New York, plaintiff instituted a second action against American Airlines for the same alleged injuries in the Superior Court of Puerto Rico. In that action plaintiff also sued the Port Authority and the Commonwealth of Puerto Rico in addition to American Airlines. Affidavit of Robert E. Hirsch, Esq., sworn to on September 30, 1988, ("Hirsch Aff."), Exhibit A.

DISCUSSION

1. Forum Non Conveniens

A motion to dismiss on forum non conveniens grounds rests in the sound discretion of the Court. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419 (1981); Farmanfarmaian v. Gulf Oil Corp., 588 F.2d 880 (2d Cir.1978). However, since the enactment of § 1404(a) of Title 28 of the United States Code, the courts have universally held that if the forum is found to be inconvenient, the remedy is transfer and not dismissal. Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955); Collins v. American Automobile Insurance Co., 230 F.2d 416 (2d Cir.1956); Chance v. E.I. Du Pont De Nemours & Co., 371 F.Supp. 439 (E.D.N.Y.1974) (where transfer to federal districts where accidents occurred is possible, more drastic action of dismissal on forum non conveniens grounds is inappropriate). However, if the more convenient forum is a court to which transfer cannot be made, for instance a foreign court, the suit can be dismissed on forum non conveniens grounds. See, e.g., Piper, supra.

The need for the District Court to retain flexibility in making a forum non conveniens determination has been repeatedly emphasized. Consequently, the courts have refused to identify specific circumstances which would require either grant or denial of the remedy. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981); Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). No "rigid rule has been laid down to govern discretion, and `each case turns on its facts.'" Piper, 454 U.S. at 249, 102 S.Ct. at 262 (quoting Williams v. Green Bay & Western R. Co., 326 U.S. 549, 557, 66 S.Ct. 284, 288, 90 L.Ed. 311 (1946)). "If central emphasis were placed on any one factor, the forum non conveniens doctrine would lose much of the very flexibility that makes it so valuable." Piper, 454 U.S. at 250, 102 S.Ct. at 263. However, defendant has offered no authority for the appropriateness of dismissal in this instance on forum non conveniens grounds.¹

The Court notes that "pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction...." Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). A party may bring suit in both a state and federal court.² Therefore, the fact that plaintiff has brought a subsequent suit in Puerto Rico, in and of itself, is not grounds for dismissal. The Court finds the doctrine of forum non conveniens inapplicable in the case at bar and defendant's motion to dismiss on forum non conveniens grounds is hereby denied.

2. Motion to Transfer

Alternatively, defendant has moved to transfer this action to Puerto Rico. The Court notes at the outset that plaintiff does not dispute the fact that she has initiated another action for the same accident against the defendant American Airlines in the Superior Court of Puerto Rico, nor does plaintiff dispute defendant's contention that Puerto Rico is the most convenient forum.³

28 U.S.C. § 1404(a) provides:

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.

A motion to transfer pursuant to this section rests in the sound discretion of the Court, Golconda Mining Corp. v. Herlands, 365 F.2d 856, 857 (2d Cir.1966), and the moving party "`bears the substantial burden of establishing that transferring this case is in the interest of justice.'" Motown Record Corp. v. Mary Jane Girls, Inc., 660 F.Supp. 174, 175 (S.D.N.Y.1987) (quoting, CT Chemical (USA), Inc. v. Horizons International, Inc., 106 F.R.D. 518, 521 (S.D.N.Y.1985)). The factors relevant to a determination of whether a transfer is warranted include the convenience to parties; the convenience of witnesses; the relative ease of access to sources of proof; the availability of process to compel attendance of witnesses; the cost of obtaining willing witnesses; the practical problems that make trial of a case easy, expeditious, and inexpensive; and the interests of justice. See, e.g., Designs By Glory, Ltd. v. Manhattan Creative Jewelers, Inc., 657 F.Supp. 1257 (S.D.N.Y.1987). The party seeking the transfer must make a clear-cut showing that it is warranted and, generally speaking, unless the balance of convenience weighs clearly in favor of the defendant, the plaintiff's choice of forum should not be disturbed. Y⁴ Design, Ltd. v. Regensteiner Pub. Enterprises, Inc., 428 F.Supp. 1067 (S.D.N.Y.1977). Applying this test to the present case, it is clear American Airlines has made the requisite showing.

Although the plaintiff's choice of forum is entitled to some weight, it is given reduced emphasis where, as here, the operative facts upon which the litigation is brought bear little material connection to the chosen forum. See, e.g., Essex Crane Rental Corp. v. Vic Kirsch Construction Co., 486 F.Supp. 529, 537 (S.D.N.Y.1980). In this action the underlying events all occurred in Puerto Rico. American Airlines has a leasehold at the Luis Munoz Marin International Airport. Allegedly there is an indemnification agreement between American Airlines and the Port Authority of Puerto Rico. Germansky Aff. ¶ 18. The issue at trial will be the precise situs of the accident and who had control over that area. Additionally, all of the identified witnesses testifying about the accident formerly, and presently, reside in Puerto Rico. The fact that plaintiff resides in New York is not dispositive. In sum, the center of gravity of the transaction in issue in this case is Puerto Rico.

Under the transfer of venue procedure in Section 1404(a), the most significant factor to be considered by this Court, in its exercise of discretion, is the convenience of the party and nonparty witnesses. See, e.g., Saminsky v. Occidental Petroleum Corp., 373 F.Supp. 257, 259 (S.D.N.Y. 1974). As noted above, in this action it is the precise location of the occurrence of the accident which is in issue. Proof of Nieves' claim will rest on whether American Airlines had control of the area at which the accident occurred. The essential witnesses to these facts, except plaintiff herself, are exclusively located in Puerto Rico. Under these circumstances transfer is appropriate. See, e.g., Computer Horizons Corp. v. Knauer, 483 F.Supp. 1272, 1273 (S.D.N.Y.1980) (where practically all witnesses having knowledge of relevant issues are located in California, transfer is ordered); Troyer v. Karcagi, 488 F.Supp. 1200, 1207 (S.D.N.Y.1980) (where material events and circumstances underlying transaction occurred in Ohio, transfer to Ohio is ordered despite presence of 2 witnesses for plaintiff in New York).

It is apparent that all of the witnesses, except plaintiff, who will testify reside in Puerto Rico. The defendant has specified the key witnesses to be called and the anticipated areas of their testimony is obvious.⁴See Hirsch Aff. ¶¶ 8, 9; Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978), cert denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979); Vaughn v. American Basketball Assn., 419 F.Supp. 1274 (S.D.N.Y.1976). Although it is the nature of the witnesses testimony rather than their number which is important, Vaughn, 419 F.Supp. at 1276-77, the testimony of most of these witnesses seems essential to the determination of the issue. The cost and expense of producing even some of these witnesses in this District would greatly exceed the outlays necessary to litigate in the District of Puerto Rico. Additionally, the fact that a defendant's nonparty witnesses are not subject to compulsory process in this forum is a factor in favor of transfer.⁵See, e.g., First National City Bank v. Nanz, Inc., 437 F.Supp. 184, 189 (S.D.N.Y.1975). All of defendant's witnesses are amenable to compulsory process in the District of Puerto Rico which would not be available if...