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finding that because the incident occurred in Missouri, the Eastern District of Missouri had a greater local interest in the case than the district where the defendant's office are located
Summary of this case from Holmes v. Warrior Gulf Navigation CompanyOpinion
Civil Action No: 00-2602 Section: "J"(4)
August 29, 2001
ORDER AND REASONS
Before the Court is defendant Lawson and Lawson Towing Company's ("Lawson's") Motion to Transfer. Plaintiff, Florida Marine Transporters, Inc. ("Florida Marine") opposes the motion. The motion, set for hearing on August 15, 2001, is before the Court on briefs without oral argument. Having considered the record, the memoranda of the parties, and applicable law, the Court finds that defendant's motion should be GRANTED, for the reasons which follow.
BACKGROUND
This case arose following a collision between the M/V ERNEST H. DOSS, owned and operated by Florida Marine of Louisiana, and the M/V GALE C, operated by Lawson, and owned by Riverway Corporation ("Riverway"). The collision occurred at the 3.7 mile marker in the Upper Mississippi River near St. Louis, Missouri. The barges of the M/V ERNEST H. DOSS, and the M/V GALE C and its tow suffered damage from the collision. Lawson and Florida Marine both contracted with companies located in St. Louis, Missouri, to survey and repair their damaged vessels.
Following unsuccessful settlement negotiations between Riverway and Florida Marine, Riverway informed Florida Marine that it would be filing a claim for damages in the matter. On August 31, 2000, immediately following this notification, Florida Marine, filed suit in the Eastern District of Louisiana against Lawson. Within days, Riverway, without knowledge of the previously filed Louisiana suit, filed a similar suit in the Eastern District of Missouri against Florida Marine for the damage to its barge.
Lawson has filed the instant motion seeking a transfer of this case to the Eastern District of Missouri under 28 U.S.C. § 1404 (a) so that the two suits can be consolidated into one action in the interest of convenience. Arguments of the Parties
Apparently, Florida Marine has also filed a motion in the Eastern District of Missouri seeking to have the subsequently filed Missouri case transferred to the Eastern District of Louisiana.
Defendant Lawson argues that the instant case should be transferred to the Eastern District of Missouri due to its lack of connection with the Eastern District of Louisiana and the unwarranted burden that the case imposes on this court. The case could have been brought in the Eastern District of Missouri because the incident occurred within that jurisdiction. Also, the subsequently filed case of Riverway v. Florida Marine is pending in the Eastern District of Missouri and the two cases can be consolidated to promote judicial economy.
Lawson argues that there is no significant connection between the collision and the Eastern District of Louisiana, considering that all of the events took place in Missouri. Lawson's captain lives in St. Louis, the surveyors involved with the damaged vessels reside in the Eastern District of Missouri, the repairs to the vessels were made there, the documents containing sources of proof are located there, and there is a local interest in deciding the case in the Eastern District of Missouri because it is the location where the incident took place. In addition, all of the witnesses are closer to St. Louis than to New Orleans, there is subpoena power over the records custodians in the Eastern District of Missouri, and the survey reports from all of the vessels involved are in St. Louis.
In contrast, Florida Marine argues that based upon the "first to file" rule, its choice of venue should be given paramount consideration and the case should not be transferred unless it is proven to be absolutely necessary. Florida Marine also points out that Lawson did not demonstrate any special circumstances to indicate a transfer is necessary or would increase the level of convenience to the point of justifying a transfer of venue. Florida Marine also argues that Lawson completely ignores the inconvenience it would cause Florida Marine's witnesses and only focuses on making things easier for Lawson.
Florida Marine contends there would be no significant cost savings to the witnesses or parties since the distance they must travel is likely to require air travel and the difference in cost between flying to New Orleans rather than St. Louis is not enough of a hardship to justify the transfer. In addition, Florida Marine suggests that the necessary documents will be obtained in the discovery process no matter where the trial is held and is hardly an important consideration.
Florida Marine also points out that only one of Lawson's witnesses can actually be reached by the subpoena power of the Eastern District of Missouri and most of Lawson's witnesses are willing witnesses employed by Lawson. On the other hand, Florida Marine argues that it has three former employees who will be witnesses at trial. These witnesses are not willing, and Florida Marine will lose subpoena power over these witnesses if the case is transferred to St. Louis. Florida Marine argues that a transfer would be detrimental to its case and that this case should remain in Louisiana because Lawson has not proven that there are special circumstances which require a transfer.
Finally, Florida Marine argues that there is no more of a connection to the Eastern District of Missouri than there is to Louisiana. In fact, Florida Marine claims that there is more of a local interest in hearing the case in the Eastern District of Louisiana because it is between a Louisiana citizen and another company doing business in Louisiana. Florida Marine claims that neither of the parties involved are citizens of Missouri, nor are any of the vessels still located there. Other than some of defendant's witnesses being closer to St. Louis than New Orleans, there is virtually no connection between the incident and that jurisdiction.
DISCUSSION
Change of venue in admiralty cases, like ordinary civil cases, is governed by § 1404(a). See Continental Grain Co. v. The F.B.L. 585, 364 U.S. 19, 26-27, 80 S.Ct. 1470, 1475 (1960). Under 1404(a), "[f]or the convenience of parties, witnesses and in the interest of justice," courts may transfer an action "to any other district or division where it might have been brought."
A district where a lawsuit "might have been brought" is one in which the court would have had subject matter jurisdiction, the defendants would have been subject to personal jurisdiction, and venue would have been proper. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 1089-190 (1960)
In ruling on a 1404(a) motion, courts consider a set of "private interest" and "public interest" factors. The private interest factors include: [1] the "relative ease of access to sources of proof; [2] availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; [3] possibility of view of premises, if view would be appropriate to the action; and [4] all other practical problems that make trial of a case easy, expeditious and inexpensive." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843 (1947). The public interest factors to be considered are: [1] the administrative difficulties flowing from court congestion; [2] the "local interest in having localized controversies decided at home"; [3] the interest "in having the trial of a diversity case in a forum that is at home with the law that must govern" the action; [4] the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and [5] the unfairness of burdening citizens in an unrelated forum with jury duty. Id., at 67 S.Ct. 843. As an additional public interest factor, courts consider judicial economy — that is, whether a transfer would avoid duplicative litigation and prevent waste of time and money. Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 809 (1964). "But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Gilbert, 67 S.Ct. at 843.
The Gilbert case pre-dated the 1948 enactment of § 1404(a), but the factors set forth there (in the context of a discussion of a forum non conveniens dismissal) are instructive in considering 1404(a) motions. 5A Wright Miller, § 1352 at 269, citing Norwood v. Kirkpatrick, 349 U.S. 29, 31, 75 S.Ct. 544, 546 (1955)
Encompassed within the judicial economy factor is the judge-made doctrine known as the "first to file" rule. Under the "first to file" rule, "a district court may dismiss an action where the issues presented can be resolved in an earlier-filed action pending in another district court." West Gulf Maritime Assn. v. ILA Deep Sea Local 24, 751 F.2d 721, 728 (5th Cir. 1985). The purpose of the rule is to prevent (1) inconsistent rulings between courts of coordinate jurisdiction and equal power, (2) wasteful duplicative litigation, and (3) piecemeal resolution of disputes that require uniform results. Id. at 729.
However, certain exceptions exist to the "first to file" rule which result in less deference being given to the plaintiff's choice of forum. For instance, a complaint filed in anticipation of a subsequent suit brought by the defendant to the first action can avoid the operation of the first filed rule, when it appears the earlier filing was merely a forum-shopping maneuver. See, Pac. Empl. Ins. Co. v. M/V Capt. W.D. Cargill, 751 F.2d 801, 804 (5th Cir. 1985); see also, Sports Innovations, Inc., v. specialized Bicycle Components, Inc., No. 00-3272, 2001 WL 406264, *1 (E.D. La. Apr. 18, 2001)
The burden of proof in a motion to transfer is on the moving party, who must show that "the convenience of parties and witnesses" and "interest of justice" require a transfer to another district. Karim v. Finch Shipping Co., Ltd., 94 F. Supp.2d 727 (E.D. La. 2000), citing In re Air Crash Disaster Near New Orleans, 821 F.2d 1147 (5th Cir. 1987) (vacated and remanded on other grounds). As proof, the movant must provide affidavits containing admissible evidence (i.e., non-hearsay). Conclusory allegations are not sufficient — the moving party must identify the key witnesses to be called and present a generalized statement of what their testimony would include. Al Copeland Enterprises, Inc. v. Mowen, No. 92-1989, 1992 WL 300771, *2 (E.D. La., Oct. 6, 1992); see also,Heller Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989). In addition, the movant must show that trial in the district where the suit was originally filed will result in a balance of inconvenience to the movant — not that a transfer would merely shift the inconvenience to the non-moving party. Lewis v. Magnolia Marine Transport, No. 97-3063, 1998 WL 19626, *2 (E.D. La., Jan. 16, 1998)
Application of Law to Facts of Case
1. Private Interest Factors
The relevant private interest factors in this case center upon the witnesses: the convenience or inconvenience to them; the ability to compel the attendance of the unwilling; and the related costs. Lawson claims, and provides specific proof by affidavit, that because all of its witnesses and documents are closer to St. Louis than to New Orleans it would be more convenient, less expensive, and in the interest of judicial economy to consolidate the two trials in the Eastern District of Missouri.
In response to Florida Marine's claim that traveling to New Orleans rather than St. Louis would not impose greater costs on the witnesses because the distance requires air travel, Lawson argues that many of the witnesses they intend to call will drive to the proceedings. Thus, there will in fact be a significant increase in the expense of making these witnesses available to testify in New Orleans. In addition, although the documents would be obtained through discovery in either forum, there is a chance that record custodians will have to be subpoenaed in Missouri to testify so the documents can be effectively presented and interpreted. These custodians are not employees of Lawson and may not be willing witnesses.
Thus, the record before the Court indicates that defendant has brought forward proof of actual, substantial inconvenience related to the attendance of witnesses. In contrast, Florida Marine has never offered any information about the witnesses it claims it will lose subpoena power over — not even their names or the subject of their testimony. "Allegations of hardship `unsupported by particulars by way of proof or affidavit cannot be accorded much weight in balancing conveniences'"Essex Crane Rental Corp. v. Vic Kirsch Constr. Co., 486 F. Supp. 529 (S.D.N.Y. 1980) (quoting Hostetler v. Baltimore Ohio R. Co., 164 F. Supp. 72, 74 (W.D. Pa. 1958)). Therefore, the Court finds that the private interest factors weigh in favor of transferring this matter to the Eastern District of Missouri.
When asked in an interrogatory served in the parallel case in Missouri, Florida Marine swore that it believed that all of the crew members involved in the incident were presently employed by PBC Management, Inc., which shares the exact same address as Florida Marine in New Orleans.
Public Interest Factors
The parties in this matter have introduced no evidence going to the public interest factors that the Court must consider, although both argue that the local interest factor — the local interest in having localized controversies resolved at home — weighs in their favor.
Because the incident occurred in Missouri, the Court finds that the Eastern District of Missouri has the greater local interest in the case. In fact, the only connection the case has to Louisiana is that Florida Marine happens to maintain an office in New Orleans. For this reason, the Court finds that the public interest considerations also weigh in favor of transfer.
2. Judicial Economy the First to File Rule
While it is true that the Louisiana case was filed first, it appears it was filed only after (and immediately after) Riverway notified Florida Marine that it was rejecting its settlement offer and would file suit in Missouri. The Court finds that whatever consideration Florida Marine might otherwise be given because it filed first is nullified by its having filed the instant suit in order to preempt Riverway's venue selection.
Conclusion
"A fundamental principle guiding the Court's [1404(a) transfer] analysis is that litigation should proceed in that place where the case finds its `center of gravity.'" Laitram Corp. v. Hewlett-Packard Co., 120 F. Supp.2d 607, 609 (E.D. La. 2000) (internal quotations omitted). Consideration of the private and public interest factors demonstrate that this case's center of gravity lies in the Eastern District of Missouri, where the accident occurred. Defendant has specifically shown that the witnesses, evidence, and proof are all closer to St. Louis than New Orleans; the only connection between this case and Louisiana is Florida Marine's operations in New Orleans. The fact that Florida Marine was the first to file warrants only slight consideration because it appears the suit was filed with the intention of preempting another plaintiff's (Riverway's) choice of venue. Accordingly;
IT IS ORDERED that defendants' Motion to Transfer the instant case should be and is hereby GRANTED, and this matter should be and is hereby TRANSFERRED to the Eastern District of Missouri for possible consolidation with the related case.