Tm Claims Service v. Klm Royal Dutch Airlines, 00 Civ. 4879(RMB).

• Citation: 143 F.Supp.2d 402
• Decision Date: 07 June 2001
• Docket Number: No. 00 Civ. 4879(RMB).,00 Civ. 4879(RMB).
• Parties: TM CLAIMS SERVICE A/S/O Fuji Photo Film, Inc., Plaintiff, v. KLM ROYAL DUTCH AIRLINES, Defendant.
• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York

Page 402

143 F.Supp.2d 402

TM CLAIMS SERVICE A/S/O Fuji Photo Film, Inc., Plaintiff, v. KLM ROYAL DUTCH AIRLINES, Defendant.

No. 00 Civ. 4879(RMB).

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

June 7, 2001.

Bigham Englar Jones & Houston, New York City by John MacCrate, III, of counsel, for plaintiff.

Condon & Forsyth, L.L.P., New York City by Stephen J. Fearon, for defendant.

DECISION AND ORDER

BERMAN, District Judge.

I. Introduction

On June 1, 2000, Plaintiff TM Claims Service, Inc. ("Plaintiff' or "TM Claims") filed this action in Supreme Court, New York County as subrogee for its insured, FUJI Photo Film, Inc. ("FUJI") against Defendant KLM Royal Dutch Airlines ("Defendant" or "KLM"). On June 30, 2000, Defendant removed the action to this Court pursuant to 28 U.S.C. § 1331 based upon federal question jurisdiction under the Convention for the Unification of Certain Rules Relating to International Transportation by Air ("Warsaw Convention").¹ Notice of Removal, dated June 30, 2000 ("Notice of Removal").

On March 13, 2001, Defendant filed the instant motion to transfer this action to the United States District Court for the Northern District of Georgia pursuant to 28 U.S.C. § 1404(a) on the grounds that "the litigation has no connection with the State of New York and transfer will be for the convenience of the parties and witnesses and in the interest of justice." (Def.'s Mem. at 2). For the reasons set forth below, Defendant's motion to transfer is granted.

II. Background

On May 25, 1998, M.O. Air Express International ("M.O.Air"), a consignee of FUJI's goods, contracted with KLM at Schiphol Airport in Amsterdam to transport a two-piece consignment of photographic base emulsion weighing 1,526 kilograms from Amsterdam to Atlanta, Georgia on May 29, 1998. Affidavit of Bartholomew J. Banino, sworn to on March 13, 2001, ¶ 7 ("Banino Aff."). Upon arrival, the consignment was trucked by an agent of M.O. Air from the airport in Atlanta to FUJI's warehouse in Greenwood, South Carolina. (Def.'s Mem. at 3). Plaintiff alleges that the consignment of photographic base emulsion "was discovered to have been damaged/destroyed upon arrival" in Atlanta. Plaintiff's Complaint, dated July 19, 2000, at 12.

III. Standard of Review

"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." 28 U.S.C. § 1404(a). "The determination [of] whether to grant a change of venue requires a balancing of conveniences, which is left to the sound discretion of the district court." Filmline (Cross-Country) Product., Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir.1989); see also Wyndham Assocs. v. Bintliff, 398 F.2d 614, 621 (2d Cir.1968). "The burden is on the party seeking to transfer to make a `clear-cut showing that it is warranted.'" UFH Endowment, Ltd. v. Nevada Manhattan Mining, Inc., No. 98 Civ. 5032, 2000 WL 1457320, at *3 (S.D.N.Y. Sept. 28, 2000) (quoting Nieves v. American Airlines, 700 F.Supp. 769, 771-72 (S.D.N.Y.1988)). "[T]he rule in this Circuit is that the plaintiff's choice of forum will not be disturbed unless the movant shows that the balance of convenience and justice weighs heavily in favor of transfer." Somerville v. Major Exploration Inc., 576 F.Supp. 902, 908 (S.D.N.Y. 1983) (citing Richardson Greenshields Sec., Inc. v. Metz, 566 F.Supp. 131, 134 (S.D.N.Y.1983)). "The core determination under Section 1404(a) is the center of gravity of the litigation." Bionx Implants, Inc. v. Biomet, Inc., No. 99 Civ. 740, 1999 WL 342306, at *3 (S.D.N.Y. May 27, 1999). The Court's discretion "will not be disturbed upon appeal without a clear showing of abuse." A. Olinick & Sons v. Dempster Bros. Inc., 365 F.2d 439, 443-444 (2d Cir.1966).

IV. Analysis

TM Claims does not dispute that its claim could have been filed in the Northern District of Georgia.

The Northern District of Georgia is, in fact, a proper venue for this action because: (1) substantial events or omissions giving rise to the claim occurred there; and (2) KLM conducts business in the State of Georgia and is subject to personal jurisdiction there. (Def.'s Mem. at 5). See also 28 U.S.C. § 1391(b), (c); Centennial Ins. Co. v. Burlington Air Express Inc., No. 97 Civ. 8512, 1998 WL 323486, at *2 (S.D.N.Y. June 17, 1998) (granting motion to transfer where "both defendants are deemed to reside in the district" and "a substantial part of the events giving rise to the claim" occurred there).

In determining "whether the convenience of the parties and witnesses and the interest of justice warrant a transfer," the Court weighs a series of factors, which include:

(1) the plaintiff's original choice of forum, (2) the locus of the operative facts, (3) the convenience and relative means of the parties, (4) the convenience of the witnesses, (5) the availability of process to compel the attendance of witnesses, (6) the location of physical evidence, including documents, (7) the relative familiarity of the courts with the applicable law, and (8) the interests of justice.

Royal & Sunalliance v. British Airways, No. 00 Civ. 6466, 2001 WL 363657, at *1 (S.D.N.Y. Apr. 12, 2001); UFH Endowment, 2000 WL 1457320, at *6 (motion to transfer granted where "the locus of operative facts, the issue of trial efficiency, and the interest of justice, weigh heavily in favor of transfer"). Analysis of these factors leads this Court to transfer the case to the Northern District of Georgia.

1. Plaintiff's Choice of Forum

"A plaintiff's choice of venue is entitled to significant consideration and will not be disturbed unless other factors weigh strongly in favor of transfer."² Royal & Sunalliance, 2001 WL 363657, at *2. However, "a plaintiff's choice of forum is given less weight where the case's operative facts have little connection with the chosen forum." 800-Flowers, Inc. v. Intercontinental Florist, Inc., 860 F.Supp. 128, 134 (S.D.N.Y.1994); Firestone v. Galbreath, 722 F.Supp. 1020, 1030 (S.D.N.Y. 1989) (transferring the case from New York to Ohio where "nearly all of the significant actions involved in this case took place outside New York."). The (principal) connection New York has with the present litigation is that New York is Plaintiff's "residence". Affidavit of John MacCrate III, sworn to on April 2, 2001, at 2 ("MacCrate Aff."). Plaintiff is a New York corporation with it's principal place of business in New York.³ Id. There is no evidence that the cargo at issue ever entered or passed through the State of New York. (Def.'s Mem. at 7). The fact that the claim was "handled and adjusted" by employees of TM Claims Service in New York does not mean that these individuals necessarily have any personal knowledge as to the events which allegedly caused damage to the subject cargo. Defendant's Reply Memorandum at 2 ("Def.'s Reply"). As will be shown, Plaintiff's choice of forum should not control here. Soto v. Bey Transp. Co., No. 95 Civ. 9329, 1997 WL 407247, at *6 (S.D.N.Y. July 21, 1997) ("Although the Court accords great deference to plaintiffs' choice of forum, the Court finds that New York has no other nexus to the facts underlying the action, deemphasizing any importance plaintiffs' choice of forum may have had in the analysis.").

2. Locus of Operative Facts

Here, the alleged damage/destruction to the consignment of photographic base emulsion occurred in Atlanta, (Banino Aff. ¶ 10) ("Plaintiff alleges that KLM did not properly refrigerate the consignment at its warehouse in Atlanta."), and was discovered in Atlanta. (Def.'s Reply at 1) ("The survey of the damage, commissioned by plaintiff, was undertaken by Mr. John R. Venneman and Mr. Thomas S. Adams of McLarens Toplis of Atlanta.... In addition, Leslie Purser from M.O. Air in Atlanta investigated the case and provided a detailed report."). See also Smart v. Goord, 21 F.Supp.2d 309, 316 (S.D.N.Y. 1998) (citations omitted) (emphasis added) ("The location of the operative events is a primary factor in determining a § 1404(a) motion to transfer."); Dr. Boy GmbH v. Nationwide Ins., No. 96 Civ. 3217, 1996 WL 350699, at *2 (S.D.N.Y. June 25, 1996) (when a party "has not shown that any of the operative facts arose in the Southern District of New York [,] this factor weighs heavily in favor of transfer[]").

3. Convenience and Relative Means of the Parties

When considering the convenience of the parties "the logical and relevant starting point is a consideration of the residence of the parties." Wine Markets Int'l v. Bass, 939 F.Supp. 178, 182 (E.D.N.Y.1996); United States Fidelity and Guar. Co. v. Republic Drug Co., Inc., 800 F.Supp. 1076, 1080 (E.D.N.Y.1992). As noted, Plaintiff TM Claims is a New York corporation with its principal place of business in New York. (MacCrate Aff. at 2). Defendant KLM is a foreign corporation, organized and existing under the laws of the Kingdom of the Netherlands, and conducts business and has offices throughout the United States, including Georgia and New York. (Def.'s Mem. at 6). This factor does not necessarily weigh in favor of transfer.⁴ Merkur v. Wyndham Int'l, Inc., No. 00 CV 5843, 2001 WL 477268, at *4 (E.D.N.Y. March 30, 2001).

4. Convenience of the Witnesses

"Under the transfer of venue procedure in Section 1404(a), the most significant factor to be decided by this Court, in its exercise of discretion, is the convenience of the party and nonparty witnesses." Nieves, 700 F.Supp. at 771-72; Insurance Co. of North Am. v. S/S "Ro Ro Genova", 661 F.Supp. 1578, 1580 (S.D.N.Y.1987) (action for cargo loss transferred from New York to Illinois where bill of lading was executed in Illinois, and shipment and witnesses were located in Illinois). The party seeking transfer "must clearly specify the key witnesses to be called and must make a general statement of what their testimony will cover." Howard v. Four Seasons Hotels, Ltd., No. 96 Civ. 4587, 1997 WL...