Summary
affording "relatively little weight" to plaintiff's choice of New York for her forum when the plaintiff suffered an injury at a hotel in North Carolina and underwent initial medical treatment in North Carolina, but later received additional medical treatment in New York
Summary of this case from Rosen v. Ritz-Carlton Hotel Co.Opinion
99 Civ. 2873 (RWS)
May 18, 2000
Marie E. Kaiser, Esq., Napoli, Kasier Bern, (of counsel), Attorney for Plaintiff.
Joseph E. Donat, Esq., Herzfeld Rubin, (of counsel), Attorney for Defendants
OPINION
Defendants Holiday Inn, Inc. ("Holiday Inn") and Independence Plaza Hotel, Inc. ("Independence Plaza") have moved to dismiss the complaint in this action for lack of personal jurisdiction or to transfer this action to the United States District Court for Charlotte, North Carolina, pursuant to 28 U.S.C. § 1404(a). In her complaint, Josephine Delarosa ("Delarosa") alleges that she was injured as a result of defendants' negligence while staying at the Holiday Inn Independence Hotel (the "Hotel") in Charlotte, North Carolina.
The Hotel is referred to variously in the pleadings and other submissions of the parties as the "Holiday Inn, Independence Plaza Hotel," the "Holiday Inn-Independence Plaza Hotel," the "Holiday Inn Independence," and the "Independence Plaza Hotel".
For the reasons set forth below, the motion to transfer is granted.
Delarosa also sought by separate motion to supplement the summons, amend the complaint, and amend the caption of this matter, which motion Holiday Inn opposed. This motion is rendered moot by the decision to transfer venue.
The Parties
Plaintiff Delarosa is a citizen of New York.
Defendant Holiday Inn is a Delaware corporation with its principal place of business in Georgia.
Defendant Independence Plaza is a North Carolina corporation with an office in Charlotte, North Carolina.
Prior Proceedings
Delarosa commenced this action on April 21, 1999, against Holiday Inn and Independent Plaza for personal injuries sustained by Delarosa on the premises of the Hotel on August 23, 1998. The instant motion was filed on November 17, 1999. Oral argument was heard on January 26, 2000, at which time this motion was deemed fully submitted.
Facts
At this stage the facts are derived from the pleadings and the parties' submissions. In August 1998, Delarosa traveled by car from New York City to Charlotte, North Carolina with her four-year old daughter and several friends to attend the family reunion of one of those friends. The group stayed at the Hotel, which is located at 3501 East Independence Boulevard, Charlotte, North Carolina.
The Hotel is owned by Independence Plaza and operated pursuant to a licensing agreement with Holiday Inn Hospitality Franchising, Inc.
Delarosa alleges that on the evening of August 23, 1998, she was severely injured when, after exiting the hotel pool, she sat in a chair located by the pool and the chair collapsed. She further alleges that she cut her leg and suffered back injuries as a result of her fall.
Delarosa reported the accident to the night manager, Alison Blue ("Blue"). Blue interviewed Delarosa and completed an incident report which Delarosa reviewed and signed. Blue is no longer employed at the Hotel.
Delarosa was treated and released on August 23, 1998 at Mercy Hospital in Charlotte, North Carolina.
Delarosa subsequently returned to New York, where she received medical treatment and physical therapy which she alleges was for injuries she sustained in the accident at the Hotel.
Discussion
I. The Motion to Transfer Will Be Granted
Holiday Inn and Independence Plaza assert that this action should be transferred to the United States District Court for the Eastern District of North Carolina pursuant to 28 U.S.C. § 1404(a). Section 1404(a) provides that:
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.28 U.S.C. § 1404(a).
This section is a statutory recognition of the common law doctrine of forum non conveniens as a facet of venue in the federal courts. See Wilshire Credit Corp. v. Barrett Capital Management Corp., 976 F. Supp. 174, 180 (W.D.N.Y. 1997). Section 1404(a) strives to prevent waste "`of time, energy and money' and to `protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" Wilshire, 976 F. Supp. at 180 (quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 27 (1960)).
"'[M]otions for transfer lie within the broad discretion of the courts and are determined upon notions of convenience and fairness on a case-by-case basis.'" Linzer v. EMI Blackwood Music Inc., 904 F. Supp. 207, 216 (S.D.N.Y. 1995) (quoting In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992)) (citing Stewart Org. Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). The burden of demonstrating the desirability of transfer lies with the moving party.
In determining whether transfer is warranted "for the convenience of the parties and witnesses [and] in the interest of justice" under § 1404(a), there is no single dispositive factor. The factors to be considered include (1) the convenience of witnesses, (2) the convenience of the parties, (3) the locus of operative facts, (4) the availability of process to compel the attendance of unwilling witnesses, (5) the location of relevant documents and the relative ease of access to sources of proof, (6) the relative means of the parties, (7) the forum's familiarity with the governing law, (8) the weight accorded the plaintiff's choice of forum, and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. See Orb Factory, Ltd. v. Design Science Toys, Ltd., 6 F. Supp.2d 203 (S.D.N.Y. 1998) (citing Wilshire, 976 F. Supp. at 181); see also Constitution Reinsurance Corp. v. Stonewall Ins. Co., 872 F. Supp. 1247, 1250 (S.D.N.Y. 1995); Cento Group, S.p.A v. OroAmerica, Inc., 822 F. Supp. 1058, 1060 (S.D.N.Y. 1993).
The threshold requirement that the action be one that could have been brought in the United States District Court for Charlotte, North Carolina, is satisfied here, since that is the district in which a substantial part of the acts or omissions giving rise to the claim occurred. See 28 U.S.C. § 1391(a)(2).
Consideration of the balancing factors, discussed below, leads to the conclusion that transfer is warranted.
1. Convenience of Witnesses
The convenience of both party and non-party witnesses is a major factor to be considered in a transfer application. See, e.g., Wine Markets Int'l, Inc. v. Bass, 939 F. Supp. 178, 183 (E.D.N.Y. 1996). There is no discussion in the papers regarding party witnesses. With respect to nonparty witnesses, however, this factor militates in favor of transfer.
The medical personnel who treated Delarosa immediately after her accident are located in Charlotte, North Carolina. Holiday Inn and Independence Plaza state that they plan to call these personnel to testify at trial regarding the extent of the injuries Delarosa claims to have suffered. The testimony of these witnesses is material and relevant evidence. Holiday Inn and Independence Plaza also state that they plan to call Blue, the night manager, regarding her observations of Delarosa's injuries and the surrounding circumstances. It is not clear from the papers, however, where night manager Blue resides presently because she has left the employ of the Hotel. Therefore, Blue's convenience must be considered a neutral factor.
Delarosa complains that Holiday Inn and Independent Plaza have not met their burden to support their motion to transfer with admissible evidence such as sworn affidavits. The defendants' papers are indeed less than exemplary. For example, they should have been more specific with respect to the identities of the Mercy Hospital medical personnel whom they plan to call and they should have specified where night manager Blue resides. They do, however, make representations as to the general nature of the testimony they will seek from the Mercy witnesses, and they submit an affidavit to the effect that Blue is no longer within the control of Independence Plaza and will thus have to be subpoenaed. Moreover, it has been observed that a failure to make a specific showing may be excused where logic suggests that witnesses and documents would in fact be in the proposed transferee court. See Wine Markets, 939 F. Supp. at 182; Tomchuck v. Union Trust Co., 875 F. Supp. 242, 244-45 (S.D.N.Y. 1995). That is certainly the case here given that the underlying events occurred entirely within North Carolina.
Delarosa states that she will call "all" of her New York treating physicians to testify at trial. The record indicates that she was treated by three doctors in New York. Transferring this action does not mean, however, that Delarosa cannot obtain this testimony. The court notes that litigants have made increasing use of videotaped expert testimony as an alternative to live testimony. See Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 989 (E.D.N.Y. 1991) (noting increasing use of videotaped expert testimony); Longo v. Wal-Mart Stores, Inc., 79 F. Supp.2d 169, 172 (E.D.N.Y. 1999) (noting options of video deposition or live video testimony by plaintiff's medical providers). This would be an option Delarosa could consider.
Finally, although Delarosa states in her pleadings that she plans to call as witnesses the friends who accompanied her on the trip, she has not made any showing as to what their testimony would consist of nor how it would be material. There is nothing in the record indicating that any of her friends witnessed the accident. Indeed, although Delarosa testified in her deposition that there were witnesses to the accident, she also testified that she could not remember the names of those individuals. Thus, no weight can be assigned to Delarosa's assertions in this regard. See Wine Markets, 939 F. Supp. at 185.
2. Convenience of the Parties
Holiday Inn is a Delaware corporation with its principal place of business in Georgia. Independence Plaza is a North Carolina corporation with offices in Charlotte. Delarosa is a resident of New York City. New York is more convenient for Delarosa, while North Carolina is more convenient for Independence Plaza. It is not clear that either forum would be more convenient than the other for Holiday Inn. A transfer should not serve merely to redistribute the balance of inconveniences. Therefore, this factor is neutral.
3. Locus of Operative Facts
The site of the operative facts is an obvious consideration when considering whether to transfer an action. See Wine Markets, 939 F. Supp. at 182. This is a personal injury arising out of an incident that took place on the premises of a hotel in Charlotte, North Carolina. Delarosa was interviewed that same day by Blue, a manager at the hotel, who prepared a report which the plaintiff then reviewed and signed. Delarosa then went to the emergency room of Mercy Hospital, near to the hotel, where she was treated and released. The only factual connection with New York is the fact that Delarosa obtained further medical treatment here. This is a very attenuated link. See Hernandez, 761 F. Supp. 983, 988, 990. The factual nexus is undoubtedly in favor of North Carolina, and further supports a transfer.
4. Availability of Process
The ability of the court to compel the attendance of unwilling witnesses is an important factor in deciding a transfer motion. Holiday Inn and Independence Plaza plan to call as witnesses the medical personnel who treated Delarosa at Mercy Hospital in Charlotte, North Carolina, as well as Blue, the hotel manager on duty on the day of the accident. Blue has since left the hotel's employ and therefore is not under the control of either defendant. There is no indication that any of these witnesses would be subject to compulsory process by this court to compel their attendance at trial, nor does Delarosa contend otherwise. See Fed.R.Civ.P. 45(e). Thus, this factor supports transfer.
5. Location of Relevant Documents and Sources of Proof
Based on the potential documentary evidence identified by the parties, which consists primarily of the various medical records as well as certain corporate documents, the court concludes that most or all of the documentary evidence could be easily mailed to either forum. If an inspection of the hotel premises were required that would of course favor the North Carolina forum, but the papers do not indicate whether such an inspection will be called for. Thus, this factor must be considered to be neutral.
6. Relative Means of the Parties
The existence of a disparity in means between the parties may be considered by the court in determining whether to grant a transfer. See, e.g., Hernandez, 761 F. Supp. at 989. However, although the defendants here are both corporations and the plaintiff is an individual, Delarosa has made no showing (nor even alleged) that litigating this action in the District of North Carolina would cause an undue hardship. Thus, this factor is also neutral.
7. Familiarity with the Substantive Law
A transferee court is bound by the choice of law rules of the transferor court (assuming a conflict of applicable laws giving rise to the need for such an analysis). See Van Dusen v. Barrack, 376 U.S. 612 (1964). Therefore, New York choice of law rules would apply to this case upon its transfer. With respect to tort actions, these rules call for application of the law of the forum with the greater interest in the adjudication. See Curley v. AMR Corp., 153 F.3d 5, 12 (2d Cir. 1998). Interest is determined with reference to the facts or contacts that relate to the purpose of the particular laws in conflict, which facts or contacts are "almost exclusively, the parties' domiciles and the locus of the tort." Id. If there does need to be a choice of law analysis, these rules would almost certainly call for the application of the substantive law of North Carolina. See id.
Greater familiarity of the transferee court with the governing substantive law, while not a highly significant factor, favors transfer. See Hernandez, 761 F. Supp. at 991. The District Court sitting in North Carolina is likely to be more familiar with that state's law than is this court. See Longo, 79 F. Supp.2d at 173; Hernandez, 761 F. Supp. at 991. Thus, this factor supports transfer.
8. Plaintiff's Choice of Forum
This court respects a plaintiff's right to file suit in the forum of her choosing. That choice is not entitled to the weight it is generally accorded, however, where there is no material connection between the forum and the events underlying the cause of action. See, e.g., Pyramyd Stone Int'l Corp. v. Crosman Corp., No. 95 Civ. 6665, 1997 WL 66778, at *17 (S.D.N.Y. Feb. 18, 1997); Wine Markets, 939 F. Supp. at 183; Cain v. New York State Board of Elections, 630 F. Supp. 221, 227 (E.D.N.Y. 1986). It is undisputed that the underlying events alleged in this action have no connection with this forum. Indeed, the only connection between the action and this forum is the presence of Delarosa and her medical providers. Therefore, the fact that Delarosa chose this forum carries relatively little weight in the analysis here.
It has also been observed that the plaintiff's choice of forum is of less significance in a 1404(a) analysis than it would be in the context of a forum non conveniens motion because the consequence of granting a 1404(a) motion is merely that the action is transferred rather than being dismissed. See Wine Markets, 939 F. Supp. at 183.
9. Interests of Justice
The District of North Carolina is the forum with a meaningful connection with the events underlying the instant action, whereas this forum has none. North Carolina is the location of material nonparty witnesses who would be inconvenienced by litigation in this forum and who would not be subject to compulsory process by this court. If a choice of law analysis has to be conducted, the substantive law governing the action will be the law of North Carolina. The other factors to be weighed are either neutral or do not weigh strongly enough to overcome the factors in favor of transfer. In short, the natural focus of this litigation is North Carolina. Transfer to that district is consistent with the interests of justice.II. Necessity of Deciding The Personal Jurisdiction Issue
The issue of personal jurisdiction over the defendants need not be resolved because a court may transfer a case to another district even in the absence of personal jurisdiction. See Hernandez, 761 F. Supp. at 992 (citing Goldlawr v. Heiman, 369 U.S. 463 (1962).
Conclusion
For the reasons set forth above, the motion by Holiday Inn and Independence Plaza to transfer this action to the District Court for North Carolina is granted.
It is so ordered.