Opinion
01 Civ. 4561 (GBD)
February 25, 2002
MEMORANDUM OPINION AND ORDER
Plaintiff commenced this breach of contract action on May 30, 2001. Defendant is a Delaware corporation with its principal place of business in Charlotte, North Carolina. Under a written employment agreement, plaintiff was employed by defendant as "Head of Marketing and Business Development, and Head of the Company's New York City Office." Agreement at 1. Plaintiff alleges that, in violation of the terms of the employment agreement, defendant terminated plaintiff without cause by materially diminishing the nature and scope of his responsibilities. Defendant denies this allegation and has moved to transfer this action to the Western District of North Carolina pursuant to 28 U.S.C. § 1404.
Under 28 U.S.C. § 1404 (a), "[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." This statute gives district courts discretion to transfer cases according to "an individualized, case-by-case consideration of convenience and fairness." Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). In determining whether or not to grant a motion for change of venue, the district court must first consider whether the plaintiff could have commenced the action in the district to which the defendant seeks transfer. See Dahl v. HEM Pharmaceuticals Corp., 867 F. Supp. 194, 195 (S.D.N.Y. 1994). Once the court determines that the action could have been initiated in the forum to which the defendant is attempting transfer, the court then must consider several factors to determine whether transfer is appropriate. These factors include "(1) the place where the operative facts occurred; (2) the convenience to the parties; (3) the convenience of the witnesses; (4) the relative ease of access to sources of proof (5) the availability of process to compel attendance of witnesses; (6) the plaintiff's choice of forum; (7) the forum's familiarity with the governing law; and (8) trial efficiency and the interests of justice." APA Excelsior III v. Premiere Technologies, Inc., 49 F. Supp.2d 664, 667 (S.D.N.Y. 1999).
The burden of justifying transferring venue lies with the moving party. Factors v. Pro Arts Inc., 579 F.2d 215, 218 (2d Cir. 1978), overruled on other grounds by, Pirone v. Macmillon, Inc., 894 F.2d 579 (2d Cir. 1990); Aerotel. Ltd. v. Sprint Corp., 100 F. Supp.2d 189 (S.D.N Y 2000) (internal quotation marks and citation omitted). Additionally, the presumption against transferring venue is a strong one, and "the rule in this Circuit is that plaintiffs choice of forum will not be disturbed unless the movant shows that the balance of convenience and justice weighs heavily in favor of transfer." Manufacturers Hanover Trust Co. v. Palmer Corp., 798 F. Supp. 161, 164 (S.D.N.Y. 1992) (citing Somerville v. Major Exploration, Inc., 576 F. Supp. 902, 908 (S.D.N.Y. 1983)). See also Ford Motor Co. v. Ferguson, 182 F.2d 329, 330 (2d Cir. 1950) (holding that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed."). To overcome this burden, the moving party must demonstrate through clear and convincing evidence that the interests of justice require transfer to a venue other than the one chosen by the plaintiff. See Hall v. South Orange, 89 F. Supp.2d 488, 494 (S.D.N.Y. 2000) (citations omitted); see also Worldcom Technologies, Inc. v. ICC Intelea Communications, Inc., 37 F. Supp.2d 633, 638 (S.D.N.Y. 1999).
It is undisputed that this action could have been brought in the Western District of North Carolina, where defendant's principal place of business is located. Defendant's primary argument in support of its motion for transfer is that several key witnesses and numerous documents relating to this case are located in or around Charlotte, North Carolina. Furthermore, defendant argues that significant actions and statements regarding plaintiff's employment occurred in Charlotte and that the employment agreement is expressly governed by North Carolina law. This court is not persuaded by these arguments and finds that this District is the proper forum for this action.
"The convenience of both party and nonparty witnesses is probably considered the single most important factor in the analysis of whether a transfer should be granted." Aerotel, 100 F. Supp.2d 189, 197. Defendant has listed eight witnesses, most of whom are currently employed by defendant and under its control, who will be inconvenienced by leaving this action in this District. Alternatively, plaintiff has identified a list of twenty witnesses, former and current New York employees of defendant, who will be inconvenienced by transferring this action to North Carolina. Plaintiff has also named, without identifying their location, eight other potential witnesses who are business customers. Defendant argues that plaintiff's list is insufficient because it lacks the specific testimony that the witnesses will provide. Plaintiff's list identifies "New York based current or former employees or directors" along with their employment positions who "worked . . . closely" with plaintiff and can provide testimony regarding plaintiffs various employment responsibilities. Plaintiff's Memorandum at 2. This information is sufficient for this Court to imply the nature of those witnesses' testimony. See Arrow Electronics, Inc. v. Ducommun Inc., 724 F. Supp. 264, 267 n. 1 (S.D.N.Y. 1989). After reviewing the lists provided by the parties, this Court finds that the balance of convenience does not weigh in favor of transfer.
It is not, however, the number of witnesses alone that disfavors transfer. Defendant's other arguments are similarly unpersuasive. While some of the documents relevant to this action may be located in Charlotte, this factor is neutral "[i]n today's era of photocopying, fax machines and Federal Express." Coker v. Bank of America, 984 F. Supp. 757, 766 (S.D.N.Y. 1997); see also Aerotel, 100 F. Supp.2d 189, 197 n. 9. Additionally, although plaintiffs employment included interaction with defendant's headquarters in Charlotte, the majority of plaintiffs work was performed in this District as Head of Marketing and Development and as Head of the Company's New York City Office. Defendant actively conducts business in New York, which is the venue in which this dispute arose. Having a branch office and actively engaging in business in this District, defendant has little argument that it is burdensome to litigate here. Furthermore, given the nature of this contractual dispute, this Court is as familiar as the North Carolina court with the relevant principles of law. See About.com. Inc. v. Aptimus, Inc., 2001 WL 503251 at *3 (S.D.N.Y. May 11, 2001) (citing Marketing/Trademark Consultants Inc. v. Caterpillar, Inc., 1998 WL 474074, at *2 (S.D.N.Y. Aug. 10, 1998);Nat'l Patent Dev. Corp. v. Am. Hosp. Supply Corp., 616 F. Supp. 114, 119 (S.D.N.Y. 1984); Black Decker Corp. v. Vermont Am. Corp., 915 F. Supp. 933, 939 (N.D.Ill. 1995)).
Defending this action in the Western District of North Carolina might be more convenient for defendant, but "[i]t is elemental that a mere shifting of inconveniences is not grounds for transfer." Arrow Electronics, 724 F. Supp. 264, 266 (citing Finkielstain v. Seidel, 692 F. Supp. 1497, 1509-10 (S.D.N.Y. 1988), aff'd in part, rev'd in part, 857 F.2d 893 (2d Cir. 1988)). Defendant has not presented clear and convincing evidence that the balance of justice strongly favors transfer.
For the foregoing reasons, defendant's motion to transfer the case is denied.