Opinion
Civil Action No. 03-CV-3291.
May 27, 2004
MEMORANDUM AND ORDER
Presently before the Court are Defendant Barnes Wentworth, Inc.'s ("Barnes") Motion to Dismiss Pursuant Fed.R.Civ.P. 12(b)(2) and 12(b)(3) or to Transfer Pursuant to 28 U.S.C. §§ 1404, 1406 (Doc. No. 6). For the following reasons we will transfer the case to the Southern District of New York pursuant to 28 U.S.C. § 1404.
Defendant JP Morgan Chase Co.'s ("JP Morgan") has filed a Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (Doc. No. 11). Since we are transferring the matter to the Southern District of New York we will not address that Motion.
I. Background
This action stems from an alleged breach of contract by Barnes. Plaintiff, General Fiber Communications, Inc. ("General Fiber") d/b/a AeroComm, is a business incorporated in Delaware with its principal place of business in Pennsylvania. In 2002, Plaintiff bid on a Verizon Wireless job involving work in New York City. The job involved installing telecommunications infrastructure in the Brooklyn-Battery and Queens-Midtown Tunnels ("tunnel project"). As a condition of being awarded the contract, Plaintiff was required to hire Barnes as a subcontractor. Barnes is a New York corporation. It has offices only in New York City, and it has good relationship with Verizon. As a condition of the contract with Verizon, Barnes was required to "insure" the tunnel project with a $300,000 performance bond. In exchange for "bonding" the project, Barnes required Plaintiff to place $300,000 into a bank account maintained by Barnes, as security in the event that Plaintiff did not perform its obligations under the contract and the bond was "called in" by Verizon. This account was established at Defendant JP Morgan in New York.
Barnes claims that Plaintiff later authorized the withdrawal of money from this account to pay amounts owed to Barnes for its work on other joint-projects in New York. Barnes claims that it is still owed at least $800,000 for its work on various New York City Housing Authority projects where it also served as a subcontractor for Plaintiff. Plaintiff has filed this action, claiming that the bank account has been improperly "invaded" and "depleted," and that Barnes has failed to account for the funds. (Compl. ¶¶ 9, 10.) Plaintiff also claims that JP Morgan, "serving as a depository of certain funds belonging to Plaintiff," has violated its fiduciary duty to Plaintiff.
II. Discussion
Barnes moves to dismiss the Complaint for lack of personal jurisdiction and improper venue. In the alternative, Barnes request that we transfer the case to the Southern District of New York. We will first consider whether the Eastern District of Pennsylvania is the appropriate forum for this case.
Venue questions in federal court are governed either by 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406. Section 1404(a) provides: "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). The burden of establishing the need for transfer rests with the movant. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) (citingShutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970)). "A motion to transfer is determined by the same factors relevant to a determination of a forum non conveniens motion. . . ."National Mort. Network, Inc. v. Home Equity Ctr., Inc., 683 F. Supp. 116, 119 (E.D. Pa. 1988) (citing Norwood v. Kirkpatrick, 349 U.S. 29 (1955)). See also Salovaara v. Jackson Nat. Life Ins. Co., 246 F.3d 289, 298 (3d Cir. 2001) (stating that "Before permitting such a transfer, a district court also must consider `all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum.'") (quoting Jumara, 55 F.3d at 879).
The factors to be considered in determining whether to transfer include both private and public interests. Private interests include: (1) the plaintiff's forum preference as manifested by the plaintiff's original forum choice; (2) the defendant's forum preference; (3) whether the claim arose elsewhere; (4) the convenience of the parties as indicated by their relative physical and financial condition; (5) the convenience of the witnesses — but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; and (6) the location of the books and records. Praxair, Inc. v. ATMI, Inc., No. Civ. A. 03-1158, 2004 WL 883395, *1 (D. Del. Apr. 20, 2004) (citing Jumara, 55 F.3d at 879. The public interests include: (1) the enforceability of the judgment; (2) practical considerations that could make the trial easy, expeditious, or inexpensive; (3) the relative administrative difficulty in the two fora resulting from court congestion; (4) the local interest in deciding local controversies at home; and (5) the familiarity of the trial judge with the applicable state law in diversity cases. Id.
Addressing first the private interests, Plaintiff has chosen to bring the suit in the Eastern District of Pennsylvania. "A plaintiff's choice of forum normally is entitled to great weight." National Mort., 683 F. Supp. At 119. See also Jumara, 55 F.3d at 879. "However, a plaintiff's choice of forum is deserving of less weight where none of the operative facts of the action occurred in the selected forum." Musser v. Consolidated Rail Corp., No. Civ. A. 96-3388, 1996 WL 417352, *2 (E.D. Pa. July 19, 1996) (citing Schmidt v. Leader Dogs for the Blind, Inc., 545 F. Supp. 42, 47 (E.D. Pa. 1982)). In the instant case, most, if not all, of the events giving rise to the Complaint occurred in New York. Plaintiff went to New York to solicit a contract from Verizon for work to be done in New York. Plaintiff sought Barnes cooperation in New York to perform the tunnel project. To secure Barnes assistance on the tunnel project, Plaintiff placed $300,000 into a bank account controlled by Barnes, at JP Morgan in New York. The only events which allegedly occurred in this district were negotiations held between representatives of Plaintiff and Barnes. These facts combined with Defendant's preference to try the case in the Southern District of New York; the presence of the other Defendant, JP Morgan and the bank account in the Southern District of New York; the fact that most of the books and records relating to the tunnel project and the bank account held at JP Morgan, are in New York; the fact that all of the work done on this project by Plaintiff and Barnes was done in New York; the fact that the other projects that Barnes worked on with Plaintiff for which Plaintiff alleges that it has not been paid and which will be filed as counterclaims in this matter are in New York; and the fact that most of the witnesses are located in New York, suggests that the private factors weigh heavily in favor of transferring the case.
We say allegedly because affidavits filed by the president of Barnes and the vice president of Plaintiff concerning the negotiations that lead to this conduct directly contradict each other. When one reads these affidavits one comes to the inescapable conclusion that someone is not telling the truth.
Addressing the public factors, while we cannot speak to the relative congestion of the Southern District of New York vis a vis the congestion in this district, for the practical reasons already stated, we believe that the litigation would proceed more efficiently and inexpensively in the Southern District of New York. Moreover, since this case involves contracts made in New York, for work done in New York, and a bank account opened in New York in a New York bank, we expect that the matter will be substantially governed by New York law. On balance, the Southern District of New York appears to be a much more suitable venue for this suit. Moreover, Plaintiff has put forward no compelling reason why transfer is unwarranted. Accordingly, we will grant Defendant's motion to transfer this case pursuant to 28 U.S.C. § 1404(a).
An appropriate Order follows.
ORDER
AND NOW, this 27th day of May, 2004, upon consideration of Defendant Barnes Wentworth, Inc.'s Motion to Dismiss Complaint Pursuant to Fed.R.Civ.P. 12(b)(2) and 12(b)(3) or to Transfer Pursuant to 28 U.S.C. §§ 1404, 1406 (Docket No. 6), and all papers filed in support thereof, and opposition thereto, it is ORDERED that:1. Barnes Wentworth, Inc.'s Motion to Transfer Pursuant to 28 U.S.C. §§ 1404, 1406, (Doc. No. 6), is GRANTED; and
2. The Clerk of Courts is directed to TRANSFER this case to the Southern District of New York.
IT IS SO ORDERED.