Summary
refusing to transfer slip and fall claim to Puerto Rico where defendant operated more than 200 hotel properties around the world
Summary of this case from Orthodox Jewish Cong. of America v. Brach's Confections, Inc.Opinion
00 CV 5843 (ILG)
March 30, 2001
Larry Weiss, Weiss Cohen.
Richard Gash, Mintzer Sarowitz Zeris Ledva.
MEMORANDUM ORDER
This personal injury action was initiated in New York State Supreme Court on August 24, 2000 and removed to federal court on September 28, 2000. Now before the court is defendant Wyndham International, Inc.'s ("Wyndham") motion to transfer the action to the District of Puerto Rico pursuant to 28 U.S.C. § 1404(a). For the following reasons, Wyndham's motion is denied.
Background
The Verified Complaint alleges that on February 22, 2000 plaintiff Renee Merkur was vacationing in San Juan, Puerto Rico with her husband, plaintiff Marty Merkur, and two friends when she walked through the lobby of their hotel, the El San Juan Hotel and Casino ("El San Juan" or the "Hotel"), and fell over what she alleges was a broken section of the tile lobby floor. Defendant Wyndham International, Inc. ("Wyndham") owns, leases or manages over 200 hotels, including El San Juan. Wyndham is incorporated under the laws of Delaware and headquartered in Dallas, Texas. Defendant DiTocco Construction Company ("DiTocco") is the contractor that Wyndham hired to remodel and replace part of the tile in the Hotel's lobby area. DiTocco is incorporated under the laws of Puerto Rico and its principal place of business is in Carolina, Puerto Rico.
The Merkurs reside in East Meadow, New York. Mrs. Merkur's fall was witnessed by her husband and her two friends, Jerry and Denise Leibner. The Leibners reside in Baldwin, New York. Plaintiffs and the Leibners will testify that the Hotel lobby's floor was partially tiled where the accident occurred and that construction work on the floor was in progress at the time of the accident. Plaintiffs and the Leibners will also testify that no warning signs had been placed in the lobby to warn guests of the broken tile. After her fall, plaintiff was taken to a hospital in San Juan, where she was treated for injuries to her right foot and ankle. Upon her return to New York, her physician discovered an avulsion fracture of her distal fibula. Through this action, plaintiff seeks compensation for her medical damages, pain and suffering, and loss of services and consortium.
Discussion
A motion to transfer venue is governed by 28 U.S.C. § 1404(a), which 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 where it might have been brought. 28 U.S.C. § 1404(a); O'Hopp Contifinancial Corp., 88 F. Supp.2d 31, 34 (E.D.N.Y. 2000). The goal of § 1404 is "to prevent waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616(1964) (internal quotation marks and citations omitted). "[M]otions for transfer lie within the broad discretion of the district court and are determined upon notions of convenience and fairness on a case-by-case basis." 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)). A change of venue is appropriate if: (1) the plaintiff could have brought the case initially in the proposed transferee forum, and (2) transfer would promote the convenience of the parties and witnesses and the interest of justice. See 28 U.S.C. § 1404(a); Baker v. Bennett, 942 F. Supp. 171, 175-76 (S.D.N.Y. 1996).
The burden of demonstrating that a case should be transferred is on the moving party, see Factors Etc., Inc. v. Pro Arts. Inc., 579 F.2d 215, 218 (2d Cir. 1978), cert. denied, 440 U.S. 908 (1979), and a "clear-cut showing" must be made that transfer is in the best interest of the litigation. Schieffelin Co. v. Jack Co. of Boca, Inc., 725 F. Supp. 1314, 1321 (S.D.N.Y. 1989); Connors v. Lexington Ins. Co., 666 F. Supp. 434, 454 (E.D.N.Y. 1987). Among the factors the court should consider in making this decision are: (1) the weight accorded the plaintiffs choice of forum; (2) the place where the operative facts took place; (3) the convenience of the parties; (4) the convenience of the witnesses; (5) the availability of process to compel unwilling witnesses; (6) the location of relevant documents and the relative ease of access to sources of proof; (7) the district court's familiarity with the governing law; and (8) trial efficiency and the interests of justice. Balaban v. Pettigrew Auction Co., Inc., No. 96 CV 3177, 1997 WL 470373 *2 (E.D.N.Y. June 27, 1997) (citing Bernal v. DuPont De Nemours E.I. and Corp., No. 93 Civ. 1639, 1993 WL 378790 (S.D.N.Y. Sept. 24, 1993); Designs by Glory, Ltd. v. Manhattan Creative Jewelers, Inc., 657 F. Supp. 1257, 1258-59 (S.D.N.Y. 1987)); see Orb Factory. Ltd. v. Design Science Toys, Ltd., 6 F. Supp.2d 203 (S.D.N.Y. 1998) (citing Wilshire Credit Corp. v. Barrett Capital Management Corp., 976 F. Supp. 174, 181 (W.D.N.Y. 1997)).
Application of § 1404(a) to this Case
I. Is Venue Proper in the District of Puerto Rico
In addressing a transfer motion, the threshold question is whether the action could have been brought in the proposed transferee district. Arrow Electronics, Inc. v. Ducommun Inc., 724 F. Supp. 264, 265 (S.D.N.Y. 1989). 28 U.S.C. § 1391(a) provides that in a diversity action, venue is proper in a judicial district (1) where any defendant resides if all defendants reside in the same state, (2) where a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated, or (3) in which defendants are subject to personal jurisdiction at the time the action is commenced.
Plaintiffs in this action could have brought the case initially in the District of Puerto Rico. Defendant Wyndham is located in and conducts business in Puerto Rico. Defendant DiTocco is a Puerto Rican company with offices in Puerto Rico. The contract between Wyndham and DiTocco was formed in Puerto Rico and contemplated that the tile work was to be performed in Puerto Rico. Finally, the accident took place in Puerto Rico. Therefore, the action could have been brought in Puerto Rico, a district where a substantial part of the events or omissions giving rise to the claim occurred. Having determined that venue would be proper in the District of Puerto Rico, the court will now address the question of whether a transfer would be in the best interests of the litigation.
II. Plaintiff's Forum Choice
When considering a § 1404(a) motion, the general rule is that "plaintiff's forum choice should not be disturbed unless the balance of the factors tips heavily in favor of a transfer." S-Fer Int'l. Inc. v. Paladion Partners, Ltd., 906 F. Supp. 211, 213 (S.D.N.Y. 1995); see also Seagoing Uniform Corp. v. Texaco, Inc., 705 F. Supp. 918, 936 (S.D.N.Y. 1989) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508(1947)). Plaintiffs' choice of forum will be accorded less weight where the plaintiffs' chosen forum is neither their home nor the place where the operative facts of the action occurred. Here, although the accident occurred in Puerto Rico, plaintiffs filed their action in New York, which is also their home state. Accordingly, this factor dictates against transfer.
III. Locus of Operative Facts and Access to Proof
Wyndham argues that because the accident occurred in Puerto Rico and all sources of proof are located in Puerto Rico, that District is the locus of operative facts and would provide easiest access to all relevant evidence. The court disagrees that these considerations warrant transfer to Puerto Rico. Although the accident did occur in Puerto Rico, defendant does not dispute that the accident site has since been altered by the completion of the tile work that allegedly was underway when Mrs. Merkur was injured. Plaintiff already has disclosed photographs of the accident site that will be available to the jury. Moreover, any documentary evidence that currently is in Puerto Rico, including the contract between DiTocco and Wyndham and any other evidence concerning the work performed on the Hotel lobby floor, can be easily transferred to New York. See e.g., Dwyer v. General Motors Corp., 853 F. Supp. 690, 695 (S.D.N.Y. 1994) ("[R]ecords, investigative reports and other such documents could easily be brought into this District. Depositions of most of the non-party witnesses listed by defendant could be used. Additionally, . . . it is conceivable that the majority of the necessary documentation concerning liability would be found at defendant's principal place of business and not in [transferee forum]."). Accordingly, while Puerto Rico is the place where the injury underlying this action took place and where most of the evidence may be located, this factor does not strongly weigh in favor of transfer.
IV. Convenience of the Parties and Witnesses
The convenience of parties and witnesses is generally the most important factor in a court's determination of whether to grant a motion for transfer. Dwyer, 853 F. Supp. at 692 (S.D.N.Y. 1994); Arrow Electronics, 724 F. Supp. at 265 (citing Nieves v. American Airlines, 700 F. Supp. 769 (S.D.N.Y. 1988)).
A. The Witnesses
Plaintiffs argue that since most of the proposed witnesses, including Mrs. Merkur, the eye witnesses to the accident and the medical personnel who diagnosed and treated Mrs. Merkur, are located in New York and will provide crucial information for the plaintiffs' case, the action should remain in New York. Wyndham, on the other hand, claims that most of the witnesses on the issue of damages reside in Puerto Rico and that those witnesses will be providing critical testimony for the determination of liability. In its disclosures, Wyndham lists four prospective witnesses who reside in Puerto Rico, including three Wyndham employees who allegedly observed the condition of the lobby floor immediately after the accident. In addition, Wyndham proposes to call a Vice-President of DiTocco whom it alleges has sole knowledge as to work performed and scheduled to be performed at the Hotel work site, as well as methods for cordoning off and placing warnings around the construction area. However, it is not the number of prospective witnesses that determines the appropriateness of a transfer but, rather, the materiality of their anticipated testimony. Dwyer, 853 F. Supp. at 693 (citing Catalano v. BRI. Inc., 724 F. Supp. 1580, 1584 (E.D.Mich. 1989).
Although Wyndham's proposed witnesses reside in Puerto Rico and would be inconvenienced by having to travel to New York to testify, Wyndham acknowledges that those witnesses did not observe the accident and do not have personal knowledge of the events and conditions at the time of the accident. Accordingly, the inconvenience to those witnesses is not as important as the inconvenience to plaintiffs that would be incurred through a transfer of venue.
B. The Parties
Another factor to be considered in a transfer motion is the residence of the parties. Heyco, Inc. v. Heyman, 636 F. Supp. 1545, 1550 (S.D.N.Y. 1986) (citing Copulsky v. Boruchow, 545 F. Supp. 126, 128-29 (E.D.N.Y. 1982)). A transfer should not merely shift the burden of inconvenience from one party to the other. Schieffelin Co., 725 F. Supp. at 1322. Defendant Wyndham is a Delaware corporation with its principal place of business in Texas. Accordingly, defendant will be obligated to travel regardless of whether this action is heard in the Eastern District of New York or in the District of Puerto Rico. Plaintiffs, on the other hand, reside in New York and would be inconvenienced if required to travel to Puerto Rico for the adjudication of this case.
A court may also consider the relative means of the parties in deciding a transfer motion. Hernandez, 761 F. Supp. at 989; Arrow Electronics, 724 F. Supp. at 266 (citing Goldstein v. Rusco Industries, Inc., 351 F. Supp. 1314, 1318 (E.D.N.Y. 1972)). Plaintiffs are individuals who are suing a large corporation which possesses considerably greater financial assets. To force plaintiffs to travel to Puerto Rico in order to go forward with their claim would merely increase the financial burdens they may already face. Any added expenses that Wyndham might incur as a consequence of defending itself in this district do not justify shifting those expenses to plaintiffs. The equities in this case provoke the court to make the additional observation that Wyndham's motion must be considered in context of the countless dollars it admittedly devotes to advertising designed to lure guests, such as the Merkurs, from all over the world to its hotels. To grant the motion would have the effect of forcing those guests who allege injuries caused by negligence on the part of a Wyndham hotel to litigate in the forum where the hotel is located, effectively precluding those guests from seeking compensation for their injuries. Accordingly, transfer to Puerto Rico would inconvenience the plaintiffs more than Wyndham.
V. Ability to Compel Attendance of Witnesses
The ability to compel the attendance of witnesses is an important factor in the court's determination of a transfer motion. Hernandez v. Graebel Van Lines, 761 F. Supp. 983, 990 (E.D.N.Y. 1991); however, it is "generally relevant only with respect to third-party witnesses, since employees of the parties will as a practical matter be available in any venue by virtue of the employment relationship." Praxair, Inc. v. Morrison Knudsen Corp., No. 00-CV-0892E, 2001 U.S. Dist. LEXIS 1130, *13 (W.D.N.Y. Feb. 6, 2001); Citigroup, Inc. v. City Holding Company, 97 F. Supp.2d 549, 561 (S.D.N.Y. 2000).
Here, Wyndham premises its motion to transfer on the fact that DiTocco employees cannot be compelled to testify in New York. However, Wyndham has only listed one DiTocco employee in its automatic disclosure and that employee does not appear to be a witness to the actual accident, but an executive. In addition, as plaintiff correctly notes, if the action were transferred to Puerto Rico, the converse would be true as plaintiffs' eye witnesses could not be compelled to testify in the District of Puerto Rico. On balance, the court finds that, although the live testimony of the DiTocco witness would certainly be preferable, that testimony is not as crucial to this case as the testimony of the eye witnesses who actually viewed the condition of the floor at the precise time of Mrs. Merkur's fall. Moreover, Wyndham would suffer comparatively little prejudice if the testimony of the DiTocco witness were offered to the jury via deposition, in contrast to plaintiffs, whose witnesses are more material since they are eye witnesses. Id. at 693 ("Since the factual setting of the accident is not in dispute, it would not be harmful to the defendant's case if the witnesses who would testify to [driver]' s fault were unavailable or unwilling to appear at this trial and, therefore, have their testimony presented to the jury by way of deposition."). Accordingly, this factor does not weigh heavily in favor of transfer.
VI. Familiarity with Governing Law
Defendants next argue that the law of Puerto Rico should be applied and, therefore, the District Court in Puerto Rico would be better equipped to decide this action. Plaintiffs maintain that even if Puerto Rico law is applied, transfer is not necessary as this action involves a relatively simple case of personal injury.
Where an action does not involve complex questions of another state's laws, courts in this district accord little weight to this factor on a motion to transfer. Vassallo v. Niedermeyer, 495 F. Supp. 757, 759 (S.D.N.Y. 1980); see also Nat. Patent Dev. Corp. v. American Hospital Supply, 616 F. Supp. 114, 119 (S.D.N.Y. 1984). Therefore, whether the substantive law of Puerto Rico or New York applies in this action "is of little consequence in the determination of this motion." Dwyer, 853 F. Supp. at 694. Moreover, the fact that Puerto Rico law may apply "is not more significant than convenience to the parties and witnesses." Schwarz v. R. H. Macy's Inc, 791 F. Supp. 94, 96(1992) (citing Noreiga v. Lever Bros., Co., 671 F. Supp. 991, 996 (S.D.N.Y. 1987). Accordingly, this factor does not weigh heavily in favor of transfer to Puerto Rico.
VII. Trial Efficiency and the Interests of Justice
One of the primary functions of § 1404(a) is to avoid the wasting of judicial resources and unnecessary expenses. See Van Dusen v. Barrack, 376 U.S. 612, 616(1964) (quoting Continental Grain Co. v. Barge FBL — 585, 364 U.S. 19, 26, 27(1960)).
Here, Wyndham argues that the interests of justice and concerns of judicial economy would favor transferring the action to Puerto Rico because neither plaintiff nor Wyndham can obtain personal jurisdiction over DiTocco in this district. Wyndham argues that DiTocco is a necessary party because it contracted with Wyndham to install the tiles in the lobby area where plaintiff alleges she was injured and because DiTocco is contractually obligated to indemnify Wyndham for any negligence in connection to the work DiTocco performed on El San Juan's lobby floor. In addition, Wyndham argues that if DiTocco cannot be sued in New York, Wyndham would be forced to sue DiTocco in Puerto Rico, necessitating a second lawsuit where the same issues of negligence would have to be relitigated and where Wyndham would not be able to compel the production of plaintiffs as witnesses because they lie outside the subpoena power of the District of Puerto Rico. Plaintiffs, on the other hand, argue that Wyndham's inability to implead or obtain personal jurisdiction over DiTocco in New York does not overcome the strong interest in litigating near plaintiffs' residence. Moreover, they argue that Wyndham will not be prejudiced by its inability to implead DiTocco in this action because, in the event plaintiff is successful, Wyndham will be free to sue DiTocco for its share of any damages that may be awarded.
As a general principle, "[t]he ability to implead a third party defendant in a proposed transferee forum is an important consideration favoring transfer of venue, since the interests of fairness, efficiency and judicial economy support trying cases in forums where related claims can be joined." Halliwell v. Moran Towing Transp. Co., No. 98 Civ. 6500, 1999 U.S. Dist. LEXIS 6316, *4 (S.D.N.Y. April 29, 1999) (citingOuding v. National Railroad Pass. Corp., No. 93 Civ. 7621, 1994 WL 381437, *1 (S.D.N.Y. July 19, 1994); Falconwood Fin'l Corp. v. Griffin, 838 F. Supp. 836, 842-43 (S.D.N.Y. 1993); Vassallo, 495 F. Supp. at 761;Prentice-Hall Corp. Sys., Inc. v. Insurance Co. of N. America, 81 F.R.D. 477, 481 (S.D.N.Y. 1979)). However, plaintiffs are correct that possible third-party practice does not necessarily require a transfer of venue.See Vincent v. Davis-Grabowski, Inc., 628 F. Supp. 430, 433 (S.D.N.Y. 1985) ("While third-party joinder is an important consideration, it does not overcome [the] strong interest in litigating near [plaintiffs] residence.") (citing Vassalo, 495 F. Supp. at 760-61 (S.D.N.Y. 1980) ("defendants claim that `an issue as to the safety of the roadway' on which the accident occurred may necessitate the joining of additional parties. Though they have failed to make this argument explicitly, presumably defendants contend that they would be able to join or implead third parties in Georgia but cannot do so in New York. The capability of joining third parties in the proposed transferee district, which might be absent in the district from which transfer is sought, is an important consideration in determining whether a transfer is appropriate. For this consideration to be afforded any weight, however, the moving party must persuade the Court that the need for third-party practice is more than just a remote possibility. Defendants' mere assertion that an unspecified roadway-safety issue may require bringing in additional parties falls well short of this mark.") (internal citation omitted)).
Here, the possibility of third-party practice in the district of Puerto Rico is just that: a possibility. DiTocco is a named defendant and has not yet answered the complaint or otherwise appeared in this action to challenge personal jurisdiction, and while Wyndham argues vigorously that DiTocco's lack of contacts with New York prevent it from being sued here, the issue of DiTocco's amenability to personal jurisdiction in New York simply has not been adjudicated yet. As such, Wyndham cannot rely on a "remote possibility" of duplicative third party practice in Puerto Rico in opposing this motion. Vassalo, 495 F. Supp. at 760-61. Moreover, even assuming that this court's denial of the motion to transfer would create the possibility of third party practice in Puerto Rico, denial of transfer may still be appropriate where the court's consideration of other factors either outweighs the efficiency that would be gained by a transfer or where such a gain is not to be expected. See Halliwell, 1999 U.S. Dist. LEXIS 6316 at *4 n. 4 (citing Busch v. Sea World of Ohio, 95 F.R.D. 336, 341 (W.D.Pa. 1982) (plaintiff a resident of the district in which case was brought, and many operative facts and most witnesses located in area); Vassalo, 495 F. Supp. at 761 (plaintiff a resident of district where case filed and third party claim only a "remote possibility"); Prentice-Hall Corp. v. Insurance Co. of North America, 81 F.R.D. 477, 481 (S.D.N.Y. 1979) (third party claim might not involve any of the same evidence as plaintiff's claim); Hervey v. United States, 450 F. Supp. 1148, 1149 (E.D.Wis. 1978) (plaintiff was a resident of district in which case filed and medical difficulties made it difficult for plaintiff to travel to proposed forum)). Accordingly, this factor does not favor transfer.
Conclusion
In light of all of the foregoing considerations, the court finds that New York is a convenient and efficient forum for the trial of this action. Accordingly, Wyndham's motion to transfer to the District of Puerto Rico is denied.
SO ORDERED.