Opinion
Civil Action No. 01-3333, Section: I/4
August 19, 2002
ORDER AND REASONS
Defendants, the Tug EAST COAST, its engines, boilers, etc. ("the Tug"), Fladel-Mar, Inc. ("Fladel"), and Dann Marine Towing, Inc. ("Dann Marine"), have filed a motion pursuant to 28 U.S.C. § 1404(a) to transfer this action, including the third-party complaint filed herein, to the United States District Court for the District of South Carolina, for possible consolidation with Dann Marine Towing L.C. v. The St. Paul Fire Marine Ins. Co. Dann Ocean Towing, Inc., Great Lakes Dredge Dock Co., the Tug Colonel, and the GL-63, Civil Action No. 01-2766-18. Dann Marine Towing is a declaratory judgment action arising out of the same collision which is the subject of the instant action. Plaintiff, St. Paul Fire and Marine Insurance Co. ("St. Paul"), and third-party defendant, Great Lakes Dredge Dock Co. ("Great Lakes"), oppose the motion.
Rec. Doc. No. 8.
Rec. Doc. No. 10.
Rec. Doc. No. 22.
This is an action by plaintiff, St. Paul, the subrogated underwriter of Neptune Towing Company and Dann Ocean Towing Company, Inc., to recover the insurance proceeds it paid to or on behalf of its insured for damages to barges GL-62 and GL-63. On August 5, 1999, barges GL-62 and GL-63 collided in the Charleston Harbor in Charleston, South Carolina, when the Tug COLONEL and the Tug EAST COAST were attempting to pass each other in the channel near the Fort Sumter and Mount Pleasant Ranges. Both tugs were working pursuant to a contract with the Great Lakes. After St. Paul paid insurance proceeds to Great Lakes for damages to barges GL-62 and GL-63 incurred as a result of the August 5, 1999, collision, Great Lakes assigned litigation rights to plaintiff, St. Paul.
The Tug COLONEL was owned by Neptune Towing and operated by Dann Ocean Towing, Inc. Rec. Doc. No. 8, p. 1.
The Tug EAST COAST was owned by Fladel-Mar and operated by Dann Marine Towing, Inc. Rec. Doc. No. 8, p. 1
On May 17, 2001, plaintiff, St. Paul, filed a corporate notice of claim or lien against the Tug EAST COAST in the sum of $600,000.00, seeking a preferred maritime tort lien arising out of the August 5, 1999, collision. On June 27, 2001, defendant, Dann Marine, filed a declaratory judgment action against St. Paul, Dann Ocean Towing, Inc., Great Lakes, the Tug COLONEL, and the barge GL-63, in the United States District Court for the District of South Carolina, Charleston Division, seeking a judicial determination of non-liability for the collision and/or for contribution and indemnity from Great Lakes. On November 3, 2001, plaintiff, St. Paul, filed the instant action seeking both reimbursement of amounts paid for repairs to the two barges and a warrant for the arrest and seizure of the Tug EAST COAST. To avoid arrest and seizure, the Tug EAST COAST furnished security, i.e., a Letter of Undertaking, with respect to the instant litigation. Defendants, Tug EAST COAST, Fladel-Mar, and Dann Marine have appeared in this lawsuit and have filed an answer and a third-party complaint against Great Lakes.
In the instant complaint, plaintiff alleged that the Tug EAST COAST is or will be present within the jurisdiction of the United States District Court for the Eastern District of Louisiana. Rec. Doc. No. 1, p. 2.
Rec. Doc. Nos. 3 and 6.
Rec. Doc. No. 7.
Defendants move to transfer this action to the United States District Court for the District of South Carolina, Charleston Division, pursuant to 28 U.S.C. § 1404(a). 28 U.S.C. § 1404(a) provides that "[f]or 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." "In moving for transfer under § 1404, a party concedes that venue properly lies in both the transferor and transferee district but argues that transfer will save the parties, witnesses and public unnecessary inconvenience and expense." The Black and Decker Corporation v. Vermont American Corporation, 915 F. Supp. 933, 936 (N.D.Ill. 1995), citing Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26, 80 S.Ct. 1470, 1474-75, 4 L.Ed.2d 1540 (1960). While 28 U.S.C. § 1391, the general venue provision, is inapplicable in an admiralty case, 28 U.S.C. § 1404(a) applies to maritime actions. In re McDonnell-Douglas Corporation, 647 F.2d 515, 516-517 (5th Cir. 1981)
venue in an in personam admiralty action is proper wherever the suit can be served upon the defendant or wherever any of the defendant's personal property can be attached. Davis v. Hill Engineering, Inc., 549 F.2d 314, 324 (5th Cir. 1977). The defendants have not moved to dismiss for lack of venue, but instead have moved to transfer pursuant to 28 U.S.C. § 1404(a).
The party moving for transfer bears the burden of establishing that the forum should be changed. Time, Inc. v. Manning, 366 F.2d 690, 698 (5th Cir. 1966); Antley v. Aries Marine Corporation, 2001 WL 6727 at *1 (Vance, J.) (E.D.La. 2001); Denson v. United States of America, 99 F. Supp.2d 792, 794 (S.D.Tex. 2000). "A motion to transfer venue is addressed to the discretion of the trial court and will not be reversed on appeal absent an abuse of discretion." Peteet v. Dow Chemical Co., 868 F.2d 1428, 1436 (5th Cir. 1989).
In deciding whether to transfer the action, the court must review "all relevant factors to determine whether or not on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum." Peteet, 868 F.2d at 1436, quoting 15 C. Wright, A. Miller E. Cooper, Federal Practice and Procedure, § 3847, at 379 (1986). "Relevant case-specific factors include the relative ease of accessing sources of proof, the availability of compulsory process to compel witness attendance, the cost of attendance for willing witnesses, and other practical problems that make trying a case easy, expeditious, and inexpensive." Antley, 2001 WL 6727 at *1, citing Syndicate 420 at Lloyd's London v. Early Am. Ins. Co., 796 F.2d 821, 831 (5th Cir. 1986); Continental Ins. Co. v. I.T.O. Corp., 2000 WL 777909 at *2 (Sear, J.) (E.D.La. 2000). "Relevant public-interest factors include court congestion, local interest, forum familiarity with the governing law, and avoiding unnecessary problems of conflict of law."Id. "The plaintiff's choice of forum is entitled to great weight in the balancing of factors, and unless the balance strongly favors defendants, the plaintiff's choice of forum should not be overturned."Syndicate 420, 796 F.2d at 830.
In Riley Stoker Corp. v. Lloyd's Companies, 1988 WL 141991 (Heebe, J.) (E.D.La. 1988), the court listed the following factors to be considered when determining whether an action should be transferred pursuant to 28 U.S.C. § 1404(a):
(1) the convenience to parties; (2) the convenience of witnesses; (3) the relative ease of access to sources of proof; (4) the availability of process to compel attendance of unwilling witnesses; (5) the cost of obtaining willing witnesses; (6) the practical problems indicating where the case can be tried more expeditiously and inexpensively; and (7) the interests of justice, a term broad enough to cover the particular circumstances of each case, which in sum indicate that the administration of justice will be advanced by a transfer."
1988 WL 141991 at *2, citing Berg v. First American Bankshares, Inc., 576 F. Supp. 1239, 1241 (S.D.N.Y. 1983).
See also, In re McDonnell-Douglas Corp., 647 F.2d at 517, citing Gulf Oil Co. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).
Defendants primarily seek a transfer to the United States District Court for the District of South Carolina, Charleston Division, so that this action may be consolidated with the declaratory judgment action which was pending there. However, on April 23, 2002, United States District Judge David C. Norton granted the motion of defendants to dismiss the declaratory judgment action, Dann Marine v. St. Paul, Civil Action No. 01-2766-18, which was then pending in the District of South Carolina, Charleston Division. The court noted that the only issue remaining before it is whether the owner and/or operator of the Tug EAST COAST is liable for the damage sustained by the barges and that to allow an alleged tortfeasor to choose the forum of its choice for determining a negligence claim would not effectuate the purposes of the Declaratory Judgment Act.
See, Dann Marine Towing, L.C. v. St. Paul Fire and Marine Ins. Co., No. 01-2766-18 (D.S.C. 2002), order attached as Court Exhibit 1.
Court Exhibit 1, Dann Marine, pp. 5-6. Counsel for plaintiff, St. Paul, advises that a notice of appeal has been filed seeking review of Judge Norton's ruling, but no decision has yet been rendered on appeal.
A review of the case-specific factors inherent in a § 1404(a) transfer motion does not tilt the scale in favor of a transfer to South Carolina. With respect to the convenience of the parties, neither plaintiff nor defendants reside in either the Eastern District of Louisiana or the District of South Carolina, although plaintiff, St. Paul, has a presence in both districts. With respect to the convenience of witnesses and ease and costs in securing the attendance of witnesses, this factor is at best neutral. Although the parties argue back and forth about which forum is closer or more convenient, it is apparent that no matter where this case proceeds, travel will be a part of life for the parties and most witnesses.
Rec. Doc. No. 8, memorandum in support of defendants' motion to transfer, p. 6.
Regarding public-interest factors such as court congestion, forum familiarity with governing law, and avoiding conflicts of law problems, these factors do not militate in favor of transfer. Admiralty law will apply regardless of the venue such that there will be no conflicts of law difficulties. There is no evidence that the South Carolina federal court's docket is any more or less congested than the Eastern District's docket or that it is more familiar with admiralty law than this Court.
After considering the case-specific and public-interest factors applicable to a venue transfer motion, the Court finds that defendants have failed to meet their burden of demonstrating that the forum should be changed. The reasons offered by defendant for a transfer to South Carolina do not outweigh the plaintiff's choice of forum.
Accordingly, for the above and foregoing reasons,
IT IS ORDERED that the motion of defendants, the Tug EAST COAST, its engines, boilers, etc., Fladel-Mar, Inc., and Dann Marine Towing, Inc., to transfer is DENIED.