Opinion
01 Civ. 7008 (LAK)
December 20, 2001
ORDER
This is an action for breach of contract, breach of bailment obligations and negligence brought under the Warsaw Convention. The case concerns a shipment of a chemical from Germany to San Francisco with intermediate stops in Paris, France, and Memphis, Tennessee. Neither the shipment nor any of the transactions relevant to the case took place in New York, and the plaintiff is headquartered in Skokie, Illinois. Defendant moves, pursuant to 28 U.S.C. § 1404(a), to dismiss the action on the ground of forum non conveniens or, alternatively, to transfer it to the Northern District of California.
In order to obtain a transfer pursuant to Section 1404(a), the movant must establish that the action could have been brought in the proposed transferee forum and that a transfer to that forum would be in the interest of justice and for the convenience of parties and witnesses. E.g., Banco de Seguros de Estado v. Employers Insurance of Wausau, 171 F. Supp.2d 330, 332 (S.D.N Y 2001). An action "might have been brought" in the proposed transferee forum if subject matter and personal jurisdiction could have been obtained and venue properly laid there. E.g., Schechter v. Tauck Tours, Inc., 17 F. Supp.2d 255, 258 (S.D.N.Y. 1998).
In this case, defendant has not sought to demonstrate that the action might have been brought in the Northern District of California. Nevertheless, there is enough in its papers to conclude that it could have done so, and plaintiff does not dispute the point. Defendant asserts that it has operations and employee witnesses in San Francisco, thus suggesting that it is doing business and therefore subject to suit in the Northern District. Subject matter jurisdiction obviously would exist there as it does here. Venue would have been appropriate since the shipment was destined for and actually delivered there.
The question therefore becomes whether defendant has demonstrated that a transfer would be in the interest of justice and for the convenience of parties and witnesses — a process that begins with a presumption in favor of the plaintiff's choice of forum (undermined somewhat here by the lack of any connection between plaintiff and the Southern District of New York) and proceeds to a consideration of well established factors bearing on convenience. See, e.g., Banco Seguros de Estado, 171 F. Supp.2d 330; Schechter, 17 F. Supp.2d 255.
In this case, all or most of the defendant's witnesses are located in San Francisco, and none is located in New York. (Scotto Decl. ¶ 14) Plaintiff's personnel knowledgeable about this shipment are located in Illinois and Puerto Rico. (Eagan Aff. ¶ 4) It claims that persons knowledgeable about this type of product and its quality control procedures are located in Peapack, New Jersey (id. ¶ 3), but it makes no showing as to why testimony from such persons is material or even relevant in this case. It concedes that its customer, Alza Corporation, is in California (id. ¶ 5) and, in consequence, suggests that any witnesses to be found at Alza are located there. Other potential witnesses are in Missouri and London. (Id. ¶ 6)
Drawing all of this together, all of the relevant personnel of the defendant and of plaintiff's customer, Alza, are in California. Other witnesses are located in Illinois and Missouri; trial in New York versus California is of little moment to them. And while a trial here would be more convenient for one potential witness in Puerto Rico and perhaps for one potential witness in London, their convenience is insufficient to overcome the manifest inconvenience of proceeding here for the defendant and Alza employees.
Accordingly, defendant's motion to dismiss or transfer is granted to the extent that this action is transferred to the United States District Court for the Northern District of California.
SO ORDERED.