Zangiacomi v. Saunders

• Decision Date: 06 June 1989
• Docket Number: No. 87 Civ. 8896 (IBC).,87 Civ. 8896 (IBC).
• Citation: 714 F. Supp. 658
• Parties: Marcelo ZANGIACOMI, Plaintiff, v. Coke Anne SAUNDERS, Defendant.
• Court: U.S. District Court — Southern District of New York

714 F. Supp. 658

Marcelo ZANGIACOMI, Plaintiff, v. Coke Anne SAUNDERS, Defendant.

No. 87 Civ. 8896 (IBC).

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

June 6, 1989.

Kevin Concagh, P.C., New York City, for plaintiff; Kevin Concagh, of counsel.

Quirk and Bakalor, P.C., New York City, for defendant; Robert E. Quirk, of counsel.

OPINION

IRVING BEN COOPER, District Judge.

Defendant Coke Anne Saunders moves pursuant to 28 U.S.C. § 1404(a) to transfer the instant action to the District of Connecticut. Plaintiff opposes the motion and cross-moves for summary judgment under Federal Rule of Civil Procedure 56; this defendant opposes.

STATEMENT OF FACTS

On June 17, 1987 defendant Coke Anne Saunders (hereafter "Saunders") contracted with John Hood (hereafter "Hood") of Construction Development Service for renovation work to be performed on her home in Westport, Connecticut. Specifically, Hood was to "perform certain work at 25 S. Turkey Hill Road, Westport, Connecticut according to plans and specifications (contract set) presented by the Owner Saunders to the Contractor Hood." In addition, Hood was to "obtain and advise" Saunders "of the availability of subcontractors to do the required work." Moreover, Hood apparently served as on-site supervisor of the project.

Subsequently, defendant contracted (via Hood) with Peter Lyden (hereafter "Lyden") to perform carpentry and roof work on the Saunder's home.¹ It appears from the papers before us that plaintiff Marcelo Zangiacomi was working for Lyden at the time of the accident and was responsible for sheet rocking inside the house. Unresolved is the question of whether plaintiff was an employee or a subcontractor of Lyden. For the purpose of the motions before us, we need not make this latter determination.

On November 10, 1987 there was a rainstorm, and the roof of the Saunder's house, which was in the process of being repaired, began to leak. Consequently, plaintiff was told to spread plastic sheets on the roof and while performing this task he slipped and fell off, sustaining serious personal injuries. He alleges that his fall resulted from the dangerous condition created by rain and ice on the roof, as well as the lack of available safety devices, such as a rope.

Plaintiff, a resident of New Rochelle, New York and a citizen of Brazil, commenced this personal injury action December 15, 1987. Defendant is a resident of New York City, New York and the owner of a one-family home in Westport, Connecticut, the situs of the accident. Lyden, a non-party to this action, resides in Connecticut.

CLAIMS OF THE PARTIES

The first claim, brought by defendant, is a motion to transfer venue. Defendant contends that this matter should be transferred from New York to Connecticut because Lyden and Troy Insurance, Inc. (hereafter "Troy") should be joined as parties to this action. According to defendant, such transfer is necessary because this Court does not have personal jurisdiction over Lyden and Troy, whereas Connecticut does. Defendant also asserts that it would be more convenient for the parties and potential witnesses to litigate in Connecticut.

The second motion before us is brought by plaintiff for summary judgment, alleging defendant is strictly liable for his injuries under New York Labor Law § 240.

We shall discuss each motion separately.

DISCUSSION

I. CHANGE OF VENUE

Defendant moves to transfer venue to the District of Connecticut pursuant to 28 U.S.C. § 1404(a):

"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).

Subject matter jurisdiction for the case at bar is founded only upon diversity of citizenship. 28 U.S.C. § 1332. Accordingly, venue is proper and a civil action may, "except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose." 28 U.S.C. § 1391(a).

Venue is thus proper in either District. The issue before us is where the interests of justice and the convenience of the parties and witnesses will be best served.

There is a strong presumption in favor of the resident-plaintiff's original choice of forum, Ayers v. Arabian American Oil Co., 571 F.Supp. 707, 708 (S.D.N.Y. 1983); Zorn v. Anderson, 263 F.Supp. 745, 749 (S.D.N.Y.1966), to overcome this presumption, the moving party has the burden "to make a clear showing that the proposed transferee district is a more convenient one, and that the interests of justice would be better served by a trial there." Schneider v. Sears, 265 F.Supp. 257, 263 (S.D.N.Y.1967). "The plaintiff's choice of forum will not be disturbed ... unless the balance of convenience and justice has been shown to weigh heavily in favor of the defendant...." Zorn, 263 F.Supp. at 749 (citations omitted). Where the inconvenience to the parties and witnesses are evenly balanced, the plaintiff is entitled to his choice of forum. Teachers Insurance & Annuity Ass'n of America v. Butler, 592 F.Supp. 1097, 1106 (S.D.N.Y.1984).

Defendant advances three arguments in favor of the transfer. First, that the transfer to the District of Connecticut is necessary so that she may implead potential third-party defendants Lyden and Troy who are apparently not subject to the process of this Court. Second, that a number of unnamed witnesses reside in Connecticut and for their convenience this case must be transferred. Third, Connecticut law is the applicable substantive law; accordingly that District presumably has more expertise in interpreting its own law.

In support of the first argument regarding potential third-parties Lyden and Troy, defendant contends there will be great inconvenience unless we grant her motion because duplicative evidence will have to be presented in two different fora; once in the instant action and again in Connecticut if and when defendant brings suit against Lyden and Troy. Her argument rests upon two premises: first, that a cause of action against Lyden and Troy requires presentation of the same evidence as that in the instant action, and second, if the court finds as a matter of convenience these matters should be tried together, then this case must be transferred to Connecticut because we allegedly lack personal jurisdiction over Lyden and Troy.

"The ability to join third parties in the transferee district is an important, although not conclusive consideration in determining whether a change of venue is in order." Prentice-Hall Corporation Systems, Inc. v. Insurance Company of North America, 81 F.R.D. 477, 481 (S.D.N. Y.1979). This factor is entitled to less weight when defendant has not met her burden of showing that the balance of convenience weighs heavily in her favor and where it is not clear that the same evidence will be required to prove plaintiff's case against the third-party defendant. Id.

As to defendant's first argument in favor of transfer, she has not convinced us that the balance of convenience weighs heavily in her favor. We note that both defendant and plaintiff reside in New York. Moreover, it is far from clear that resolution of the conflict between plaintiff and defendant would require presentation of the same evidence to resolve the conflict between defendant and Lyden and Troy.

The cause of action between defendant and potential third parties Lyden and Troy would involve a contractual claim predicated on Lyden's representations to Saunders that he had obtained insurance through Troy that would sufficiently indemnify her if she was found liable. In the instant case, plaintiff brings an action sounding in tort against Saunders for injuries sustained on her property. The contractual relationship between Lyden and defendant for insurance and the question of whether defendant is liable for the personal injuries to plaintiff are two separate and distinct issues, each relying on different sets of facts and the testimony of different witnesses.

Resolution of the insurance issue requires evidence regarding the contractual relationship between defendant, Lyden and Troy. To this end, evidence is likely to include Lyden's oral representations to Saunders at the time the contract was signed, the insurance policy, Lyden's insurance history, etc.; whereas the liability issue between Saunders and plaintiff focuses on the November 10, 1987 accident at the jobsite. The latter issue would address the safety conditions or lack thereof at the Connecticut work-site. Thus, convenience does not dictate that these two actions be consolidated because there will not be significant duplication of evidence if we chose not to try them together.

In support of her second argument, defendant contends that because a number of the witnesses are located in Connecticut, it would be more convenient to transfer venue. The law is clear that the burden is on the moving party to "clearly specify the key witnesses to be called and ... make a general statement of what their testimony will cover." Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir.1978), cert. denied, Pro Arts, Inc. v. Factors Etc., Inc., 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979).

We find defendant has not met this unavoidable burden. Defendant merely "notes" that potential witnesses include municipal employees connected with the local Police Department, Fire Department, and Emergency Medical Service and simply "contemplates" that medical staff from Norwalk Hospital of Connecticut might be called to testify. Moreover, defendant has failed to state even generally what their testimony will cover.

In Prentice-Hall, the defendant "mentioned the possibility of calling certain ... witnesses; they are the Sheriff who served Buchanan, as well as members of Buchanan's staff." The court stressed:

"However, defendant nowhere names these potential witnesses nor gives any indication whether they are still

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