Opinion
02 Civ. 0780 (LAK)
April 3, 2002
ORDER
This is an action by two former shareholders of Hahn Automotive Warehouse, Inc. ("Hahn") who dissented from a going private transaction in which Glick LLC acquired Hahn by virtue of a cash-out merger. The complaint asserts a variety of claims including, among others, claims against the former Hahn directors and others for breach of fiduciary duty, against two former Hahn principals for self dealing and waste, and against one of the Hahn principals for violation of Sections 13(d), 14(d) and 14(e) of the Securities and Exchange Act of 1934. Hahn and its affiliates, who are almost all of the defendants, move to transfer this action pursuant to 28 U.S.C. § 1404(a) to the Western District of New York. Neither plaintiffs nor the defendants who have not joined in the motion have filed papers in opposition to it although the time for doing so has expired.
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, all but one of the seventeen defendants live or are based in Rochester, The Court includes in this tally Pricewaterhousecoopers LLP, although it is not headquartered in Rochester, because this matter was handled out of its Rochester office. New York, or its immediate environs.1 The only exception, Nathan Lewinger, resides in Florida but maintains an office in Rochester. Plaintiffs reside in Nevada. All or substantially all of the evidence relating to this case is in Rochester and little or none is in the Southern District of New York. It therefore is perfectly obvious that litigating this matter in Rochester would be for the convenience of the parties and in the interest of justice, even after according whatever deference might be due plaintiffs' choice of forum. Nor, in view of the residence in Rochester of all but one of the defendants in Rochester and the place of business there of the other, is there any doubt that personal jurisdiction could have been obtained and venue properly laid there.
In the last analysis, this is another case in which a plaintiff's attorney has filed an action in this district despite the lack of any rationale other than his own convenience for doing so. He has not even sought to defend his choice of this forum. The Court is entitled to expect more of the members of this Bar.
Motion granted. Action transferred to the Western District of New York.
SO ORDERED.