Wm. H. McGee & Co., Inc. v. United Arab Shipping

• Decision Date: 29 May 1997
• Docket Number: Civil Action No. 97-2019 (AJL).
• Court: U.S. District Court — District of New Jersey
• Parties: WM. H. MCGEE & COMPANY, INC. as subrogated insurer of Pennington Seed, Inc., Plaintiff, v. UNITED ARAB SHIPPING CO., S.S. Saudi Abbha v. 88, her engines, boilers, etc. TCI Trucking and XYZ Corp, Defendants.

6 F.Supp.2d 283

WM. H. MCGEE & COMPANY, INC. as subrogated insurer of Pennington Seed, Inc., Plaintiff, v. UNITED ARAB SHIPPING CO., S.S. Saudi Abbha v. 88, her engines, boilers, etc. TCI Trucking and XYZ Corp, Defendants.

Civil Action No. 97-2019 (AJL).

United States District Court, D. New Jersey.

May 29, 1997.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Jennifer A. Cottell, Law Offices of Gerard F. Smith, Denville, NJ, for Plaintiff.

Robert A. Milana, Kirlin, Campbell & Keating, Caldwell, NJ, for Defendant United Arab Shipping.

OPINION

LECHNER, District Judge.

This is an action brought by plaintiff WM. H. McGee & Co. ("McGee"), as subrogated insurer of Pennington Seed, Inc. ("Pennington Seed"), against defendants, United Arab Shipping Co. ("United Arab"), S.S. SAUDI ABBHA v. 88 ("SAUDI ABBHA"), her engines, boilers, etc., TCI Trucking ("TCI Trucking") and XYZ Corp. (collectively, the "Defendants"). The instant action involves a damaged shipment of "Niger Seed" (the "Cargo"), shipped from Calcutta, India to New Orleans, Louisiana on board the SAUDI ABBHA. See Complaint, Schedule A; Friberger Aff., ¶ 2. United Arab has filed a motion for change of venue, pursuant to 28 U.S.C. § 1404(a) ("Section 1404(a)") (the "Motion to Transfer").¹

I. Background

1. Facts

At all relevant times, the SAUDI ABBHA was operated by the National Shipping Company Saudi Arabia ("National Shipping"). Friberger Aff., ¶ 2. United Arab had chartered space on board the SAUDI ABBHA and had agreed to carry the Cargo for Pennington Seed, pursuant to a bill of lading (the "Bill of Lading"), dated 14 February 1996. Friberger Aff., ¶ 2, Exh. A.

United Arab is "headquartered in Kuwait," but maintains an office in Cranford, New Jersey. See Milana Aff., ¶ 6; Friberger Aff., ¶¶ 1, 10. The "Notify Address" for Pennington Seed, listed on the Bill of Lading, is Madison, Georgia. See Bill of Lading. The Irwin Brown Company of New Orleans, Louisiana is listed in the Bill of Lading as a second "Notify Party." Id. The Bill of Lading indicates the shipper for the cargo was M/S Agrimpex Pvt. Ltd., of Kathmandu, Nepal. Id.

The SAUDI ABBHA arrived with the Cargo in New Orleans, Louisiana, on or about 22 April 1996. Friberger Aff., ¶ 4. After the arrival of the Cargo, United Arab "hired Con-Surve, who used a New Orleans surveyor, Mike Marziale to survey the [C]argo ...." Id.

TCI Trucking is a business located in New Orleans, Louisiana. Friberger Aff., ¶ 6. TCI Trucking "attended and coordinated with the surveyors" of the Cargo and transported the Cargo to a sterilization facility operated by Import Sterilization, Inc. ("Import Sterilization") Id. The Cargo was "stripped at Import Sterilization ... where it was inspected and fumigated." Id., ¶ 7. "The local movement of the [C]argo was coordinated by the Irwin Brown Co., customs brokers, also located in New Orleans." Id., ¶ 9.

All documentation relating to the Cargo and McGee's claims "as well as all relevant ship's records, logs, notes, arrival notices, delivery records, and other information is in New Orleans in the possession of Keer Steamship, United Arab's local agent, or is with the vessel owner in Saudi Arabia." Friberger Aff., ¶ 8. United Arab's New Jersey agents had no involvement in the shipment of the Cargo. Id., ¶ 10. At least three witnesses, including two surveyors and Jack Jensen ("Jensen") of Import Sterilization, TCI Trucking and National Shipping are all located in Louisiana. Milana Aff., ¶ 11. There is no indication that any witnesses with information relevant to the instant action are present in New Jersey. There is no indication, moreover, that TCI Trucking has any contact with New Jersey and jurisdiction over TCI Trucking in New Jersey does not appear to exist.

2. Procedural History

McGee filed the instant Complaint in the Superior Court of New Jersey, Law Division Morris County on 4 March 1997. The Complaint contains five counts. The first count alleges the Cargo, or portions thereof, were "damaged or lost" while in the control of Defendants. Complaint, First Count, ¶ 4. The second count alleges Defendants "breached their contract of bailment, freight forwarding and carriage, as a result of which, [McGee's] insured's merchandise was greatly depreciated in value and [McGee's] insured lost the use of same for which it claims damages." Id., Second Count, ¶ 3. The third count alleges Defendants "caused damages to [McGee's] insured's property," while it was in the "custody, care and control" of Defendants. Id., Third Count, ¶ 4-5. The fourth count alleges Defendants breached "their agreements" with Pennington Seed. Id., Fourth Count, ¶ 3. The fifth count alleges Defendants "were negligent and careless, and as a result of the negligence and carelessness of ... [D]efendants ... [McGee] suffered damages." Id., Fifth Count, ¶ 2.

On 18 April 1997, United Arab removed the instant matter to this court. See Notice of Removal. On 22 April 1997, United Arab filed an amended notice of removal. On 25 April 1997, United Arab filed an answer. On 16 May 1997, United Arab filed the instant Motion to Transfer.

Discussion

1. Motion to Transfer

United Arab argues this matter should be transferred to the United States District Court for the Eastern District of Louisiana, the location most convenient to the majority of the parties and witnesses. Moving Brief at 1. United Arab argues the instant action bears no connection with New Jersey and that TCI Trucking is not subject to jurisdiction in New Jersey. Id.

McGee argues United Arab has failed to overcome the strong preference for litigating in McGee's choice of forum and has failed to establish that the balance of conveniences weigh strongly in favor of transfer. Opposition at 3. The Opposition consists of a two page brief. McGee argues:

Defendant, United Arab, moves for removal (sic) based on forum non conveniens. Factors which it argues support removal (sic) include the goods were shipped to a port in Georgia² and relevant witnesses are located in Georgia. The fact that the goods were shipped to Georgia is not an important consideration because the goods are no longer in Georgia or subject to inspection. In addition, not all witnesses are located solely within the State of Georgia. [McGee] itself is located in the States of New York and New Jersey, and is an essential witness in assessing the loss. Most of the documents are located in the New York office as well as in plaintiff's attorney's possession and control in New Jersey. Therefore [McGee's] choice of forum was permitted, and is proper.

Further, under 28 U.S.C. § 1404(a), it not be (sic) in the interests of justice to have this action removed (sic), as [United Arab] contends. Removing (sic) this case would be more expensive for all parties involved as it is a relatively small claim, discovery has already proceeded, and the parties have discussed possible settlement. Based on these additional factors, removal (sic) is improper.

Opposition Brief at 3.

2. Standard of Review Under 28 U.S.C. § 1404(a)

Section 1404(a) permits a District Court to transfer a case to any other district where venue is proper "[f]or the convenience of the parties and witnesses, in the interests of justice...." 28 U.S.C. § 1404(a).³ The purpose of Section 1404(a) "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, 11 L.Ed.2d 945 (1964) (quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 27, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960)); see also Solomon v. Continental Am. Life Ins. Co., 472 F.2d 1043, 1045 (3d Cir.1973); Ricoh Co., Ltd v. Honeywell, Inc. ("Honeywell"), 817 F.Supp. 473 (D.N.J.1993); American Tel. & Tel. v. MCI Communications Corp., 736 F.Supp. 1294, 1305 (D.N.J.1990). As a preliminary matter, it must be determined that the transferee venue is one in which the case "could have been brought."⁴ Job Haines Home for the Aged v. Young, 936 F.Supp. 223, 227 (D.N.J. 1996); see also Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971).

The terms of the statute set forth three factors to consider when determining whether to transfer a matter: (1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice. See Section 1404(a); Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.1995); Honeywell, 817 F.Supp. at 479; Sandvik, Inc. v. Continental Ins. Co., 724 F.Supp. 303, 306 (D.N.J.1989); Derry Finance N.V. v. Christiana Cos., 555 F.Supp. 1043, 1045 (D.Del.1983). The transfer analysis, however, should not be limited to these three factors. Rather, the decision to transfer must incorporate "all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum." Jumara, 55 F.3d at 879 (citing 15 Charles A. Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure: Jurisdiction and Related Matters § 3847 (2d ed.1986)); Hudson United Bank v. Chase Manhattan Bank, 832 F.Supp. 881, 888 (D.N.J.1993), aff'd, 43 F.3d 843 (3d Cir.1994).

3. Private and Public Interests

Transfer analysis under Section 1404 is flexible and must be made on the unique facts presented in each case. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29-30, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988); Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249-250, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), reh'g denied, 455 U.S. 928, 102 S.Ct. 1296, 71 L.Ed.2d 474 (1982); Van Dusen, 376 U.S. at 624, 84 S.Ct. 805; Job Haines Home for the Aged, 936 F.Supp. at 227. A determination that transfer to another jurisdiction is appropriate represents an "`exercise[] of structured discretion by trial judges appraising the practical inconveniences posed to...