Pellegrino v. Stratton Corp.
| Decision Date | 26 February 1988 |
| Docket Number | No. 87-CV-549.,87-CV-549. |
| Citation | 679 F. Supp. 1164 |
| Parties | Colette PELLEGRINO, Plaintiff, v. The STRATTON CORPORATION, d/b/a Stratton Mountain, Defendant. |
| Court | U.S. District Court — Northern District of New York |
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Lombardi Reinhard Walsh & Harrison, Albany, N.Y., for plaintiff; Richard P. Walsh, Jr., of counsel.
Damon & Morey, Buffalo, N.Y., for defendant; James M. Mucklewee, of counsel.
On February 2, 1988, the court heard oral argument on defendant's motion to transfer venue to the Vermont District Court pursuant to 28 U.S.C. § 1404(a); or, in the alternative, to dismiss the complaint based upon lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2). The court also heard oral argument on plaintiff's cross-motion to dismiss defendant's affirmative defense of lack of personal jurisdiction. For the reasons set forth herein, defendant's motion to transfer venue is denied; and defendant's alternative motion to dismiss the complaint is also denied, but without prejudice to renew. Plaintiff's motion to dismiss defendant's affirmative defense of lack of personal jurisdiction is denied.
This personal injury action arises out of a skiing accident at Stratton Mountain, Vermont. On March 6, 1987, plaintiff, a New York resident, alleges that while skiing at Stratton Mountain, Vermont she was injured when she struck an obscured object. Plaintiff then commenced the present action against the Stratton Corporation d/b/a Stratton Mountain ("Stratton"). Stratton is a Vermont corporation with its principal place of business in Stratton, Vermont. Zweig Affidavit (12/14/87) at par. 10. With the exception of plaintiff serving a Request for Admissions, no other discovery has been conducted.
Defendant has now moved to transfer venue to the Vermont District Court pursuant to 28 U.S.C. § 1404(a), which 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.
28 U.S.C. § 1404(a) (West 1976). A motion to transfer pursuant to that section is addressed to the sound discretion of the court. Wyndham Associates v. Bintliff, 398 F.2d 614, 621 (2d Cir.), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968). It is well settled that the burden is on the defendant, when it is the moving party, to establish that there should be a change of venue. Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978) (citations omitted), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979). A discretionary transfer under § 1404(a) "will not be granted `absent a clear cut and convincing showing by defendants that the balance of convenience weighs strongly in favor of the transferee court ...'" Vassallo v. Niedermeyer, 495 F.Supp. 757, 759 (S.D.N.Y.1980) (citations omitted).
The factors relevant to the determination of whether this action should be transferred to the Vermont District Court 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 unwilling witnesses; the cost of obtaining willing witnesses; practical problems that make trial of a case easy, expeditious, and inexpensive; and the interest of justice.
Id. (citations omitted). Further, in this Circuit, when a party seeks a transfer based on convenience of witnesses pursuant to § 1404(a), he must clearly specify the key witnesses to be called and must make a general statement of their testimony. Factors Etc., 579 F.2d at 218. That is so because the convenience of the forum for the witnesses is a very important factor. Saminsky v. Occidental Petroleum Corporation, 373 F.Supp. 257, 259 (S.D.N.Y. 1974) (); Computer Horizons Corp. v. Knauer, 483 F.Supp. 1272, 1273 (S.D.N.Y.1980).
In addition to the factors listed above, the relative financial hardship on the litigants and their respective abilities to prosecute or defend an action in a particular forum are legitimate factors to consider. Vaughn v. American Basketball Ass'n., 419 F.Supp. 1274, 1277 (S.D.N.Y.1976) (citations omitted). The consideration of comparative calendar conditions is also relevant in deciding whether to transfer a particular case. McCrystal v. Barnwell Cty., South Carolina, 422 F.Supp. 219, 225 (S.D.N.Y. 1976). Finally, as plaintiff correctly noted, the plaintiff's choice of forum is an additional consideration. That factor, however, is no longer to be given the near decisive weight previously afforded under the predecessor to 28 U.S.C. § 1404(a), the doctrine of forum non conveniens. Vassallo, 495 F.Supp. at 75 citing Norwood v. Kilpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546-47, 99 L.Ed. 789 (1955).
A consideration of the factors set forth above indicates that it is an extremely close call in this case as to whether defendant has met its heavy burden of proof justifying a transfer. Insofar as convenience to the parties and witnesses is concerned, it appears to the court that the parties would be equally inconvenienced by a transfer. Plaintiff and all five of her witnesses, none of whom are under her control, reside in New York. As defendant pointed out, however, in light of plaintiff's admission that she has been traveling to Stratton Mountain for over 20 years, it is difficult to imagine how plaintiff herself would be inconvenienced by a few more trips to Vermont for the purposes of this litigation. At oral argument, plaintiff asserted that she would be inconvenienced by a transfer to Vermont because of upcoming surgery, which she anticipates will prevent her from traveling. Because the Vermont District Court would undoubtedly grant plaintiff a continuance, in the unlikely event her case is called for trial while she is recovering from surgery, the court is not persuaded that plaintiff herself would be inconvenienced by such transfer. Plaintiff's witnesses would, however, be somewhat inconvenienced by a transfer.
Defendant also plans on calling five witnesses, two of whom are its employees. Defendant's proposed witnesses are from Vermont, Connecticut and Massachusetts. Neither party provided any proof indicating that any of their proposed witnesses would be unwilling to testify in one forum or the other. Neither did they indicate the cost of obtaining testimony from those unwilling witnesses, if any. Therefore, the convenience factor does not tip decidedly in favor of either party.
One factor which does weigh in favor of a transfer is the difference in court calendars. Based upon conversations with the Vermont deputy court clerk, defendant has indicated that this case could be tried there in October of this year. Zweig Affidavit at pars. 14-16. The same is not true in the Northern District of New York. Nevertheless, if the balance of inconvenience is equipoise, as it is here, plaintiff's choice of forum should not be disturbed. Motown Record Corp. v. Mary Jane Girls, Inc., 660 F.Supp. 174, 175 (S.D.N.Y.1987) (citation omitted). Thus, because the court finds that the balance of inconvenience does not weigh strongly in favor of the transferee court, defendant's motion to transfer to the Vermont District Court is denied.
According to defendant's president, Stratton is a Vermont corporation with its principal place of business in Stratton Mountain, Vermont. Granquist Affidavit (9/21/87) at par. 2. Defendant's president further avers that Stratton "is not now and never has been licensed and authorized to do business in the State of New York...." Id. at par. 3. Stratton does not have any bank accounts in New York; nor does it have a New York mailing address. Id. Stratton also claims that it does not "now have or has it ever had any officer or agency in the State of New York." Id. Based upon the foregoing, defendant has moved, in the alternative, to dismiss the complaint for lack of personal jurisdiction pursuant to Fed.R.Civ.P. 12(b)(2).
Plaintiff has cross-moved to dismiss the defendant's affirmative defense of lack of personal jurisdiction. In the alternative, plaintiff is requesting that defendant's motion be denied to give plaintiff an opportunity to conduct discovery on the jurisdiction issue. In support of her motion, plaintiff relies upon the following assertions, some of which are substantiated and others which are not. First, plaintiff points out that in connection with its sale of debentures, defendant filed an "Issue Statement" with the New York State Department of Law, Walsh Affidavit (11/6/87), Exhibit A; and defendant does not contest that allegation. Crawford Affidavit (11/25/87) at par. 5.
Next, relying upon defendant's subordinated debentures offering circular, plaintiff asserts that a "great number" of the cluster homes, residential lots and condominium units, which defendant allegedly develops and sells, are sold to New York residents. Id. at par. 3. There is nothing in the offering circular, however, to verify that claim and plaintiff did not provide any additional proof in support of that assertion. In response to plaintiff's assertion regarding condominium sales, Robert Crawford, Stratton's Chief Financial Officer, states:
Although it is true that New York State residents have purchased condominiums in Vermont which were developed by The Stratton Corporation, to the best of your deponent's knowledge, The Stratton Corporation has always used a broker in the State of Vermont to sell the condominiums developed in the State of Vermont by The Stratton Corporation, and the initial sales of those condominiums by The Stratton Corporation have been consummated only in the State of Vermont.
Crawford Affidavit (11/25/87) at par. 11.
Plaintiff makes several other assertions based ...
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