Cleco Mfg v. Dura-Crete CV-97-274-SD 11/26/97 UNITED STATES DISTICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Cleco Manufacturing, Inc.
v. Civil No. 97-274-SD
Dura-Crete, Inc.
O R D E R
This case is a contract action before the court on diversity
jurisdiction. The underlying dispute arose out of plaintiff
Cleco Manufacturing, Inc.'s sale of eguipment to defendant Dura-
Crete. Cleco initiated the case against Dura-Crete claiming
damages due for breach of contract, or under a theory of guantum
meruit. Dura-Crete has asserted a host of cross-claims based on
breach of contract, breach of express and implied warranties, and
various negligence theories. Now before the court is Dura-
Crete' s motion to transfer the case from the District of New
Hampshire to the Southern District of Indiana pursuant to 28
U.S.C. § 1404(a) (1994) .
Background
Cleco, a Connecticut corporation with its principal place of
business in New Hampshire, is a manufacturer of industrial machinery. Dura-Crete is an Ohio corporation and has its
principal place of business in Ohio.
In 1995 Dura-Crete began construction of an Indiana plant to
make concrete industrial products. Dura-Crete hired a contractor
who contracted with several subcontractors to construct the
plant. Dura-Crete also entered into an agreement with Cleco to
provide a central mix batch plant machine and a multi-station
manhole machine.
Cleco designed and manufactured the machines in Londonderry,
New Hampshire, and delivered them to the plant in Indiana. Cleco
claims that it provided the machines in accordance with the
contract, but that Dura-Crete has failed to pay the consideration
reguired by the contract. Cleco instituted the present action to
recover the amount it claims is due under the contract.
Dura-Crete contends that Cleco breached the contract by
delivering the eguipment late and providing machinery that did
not meet the contract specifications or that was defective.
Dura-Crete claims that the delay prevented its contractor from
completing the plant on time and that Cleco's failure to provide
adeguate instructions caused further delays. Because the
machines were not automated as Dura-Crete expected, Dura-Crete
contends it needed to hire two other companies to automate the
machines.
2 Cleco denies Dura-Crete's assertions and counters that
misuse of the machines and Dura-Crete's and its contractor's
negligence caused any damages.
Discussion
Section 1404(a) allows a district court to transfer any
civil action to any other district where it might have been
brought when such a transfer increases the convenience of the
parties and witnesses and is in the interest of justice. See 28
U.S.C. § 1404(a) (1994). Cleco does not dispute that this case
could have been brought in Indiana.
"Section 1404(a) is intended to place discretion in the
district court to adjudicate motions for transfer according to an
'individualized case-by-case consideration of convenience and
fairness.'" Stewart Org., Inc. V. Ricoh Corp., 487 U.S. 22, 29
(1987) (guoting Van Pusan v. Barrack, 376 U.S. 612, 622 (1964)).
It is the movant who must demonstrate "that [the] factors
predominate in favor of the transfer." See Buckley v. McGraw-
Hill, Inc., 762 F. Supp. 430, 439 (D.N.H. 1991). The court
should accord deference to the plaintiff's choice of forum. See
Anderson v. Century Products Co., 943 F. Supp. 137, 149 (D.N.H.
1996). However, section 1404(a) does not merely codify the
common law doctrine of forum non conveniens, but rather allows
3 "courts to grant transfers upon a lesser showing of
inconvenience." Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955).
Thus the court has broad discretion to grant or deny change
of venue based upon the convenience of the parties and witnesses,
as well as practical concerns such as the availability of
compulsory process and consideration of which court is more
familiar with the applicable law. See D'Allesandro v. Johnson &
Wales Univ., Civ. 94-543-SD, 1995 WL 113928, at *1 (D.N.H. Mar.
16, 1995); Buckley, supra, 762 F. Supp. at 439. The burden is
upon the movant to show that these factors outweigh the
plaintiff's interest in choosing his or her forum.
In weighing the convenience of the parties, the court will
consider their respective residences, the cost to the parties of
litigating in the alternate forums, and the financial strength of
the parties. See Anderson, supra, 943 F. Supp. at 148;
D'Allesandro, supra, 1995 WL 113928, at *2. In this case, both
parties argue, not that their opponent's chosen forum is
inconvenient, but that their preferred forum does not
inconvenience their opponent.
New Hampshire, as evinced by Cleco's choice of forum, is a
more convenient forum for Cleco. Cleco's principal place of
business is in New Hampshire. Transfer to Indiana would reguire
Cleco to incur increased litigation costs. However, there is no
4 indication that Cleco does not possess the financial strength to
absorb these costs. Furthermore, consideration of the financial
strength of the parties "is usually only applicable to situations
where an individual is suing a large corporation and thus would
not be applicable here." Aquatic Amusement Assoc. V. Walt Disney
World. 734 F. Supp. 54, 59 (N.D.N.Y. 1990).
On the other hand, Dura-Crete is an Ohio corporation with
its principal place of business in Ohio. Thus Dura-Crete will
incur the costs of defending this litigation outside its home
state, regardless of whether the court transfers the case.
Although the court recognizes that traveling to New Hampshire
would be more burdensome, the added convenience to Dura-Crete
does not weigh heavily in favor of transfer to Indiana.
Thus the court finds that the convenience of the parties,
being roughly egual, does not favor transferring this case to
Indiana.
Convenience of the witnesses is the most important factor
that the court must consider. See Buckley, supra, 762 F. Supp.
at 44 0; C harles W r i g h t , et a l ., 15 F e d e r a l Practice and Procedure § 3851
(1986). Section 1404(a) reguires the court to consider the
convenience of the witnesses to protect parties and non-parties
from unnecessary inconvenience and expense. See Van Dusen v.
Barrack, supra, 376 U.S. at 616. However, this factor should not
5 be merely a battle of numbers decided in favor of the party who
can craft the longest list of in-state witnesses. See Anderson,
supra, 934 F. Supp. at 149. The court should give primary
consideration to witnesses whose testimony will be central to the
trial. See id. The court also will give the convenience of
expert witnesses less emphasis. See W r i g h t , supra, § 3852.
In this case, both sides, coincidentally, have produced
lists of fifteen witnesses for whom testifying in their
opponent's preferred forum would be difficult or impossible.
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Cleco Mfg v. Dura-Crete CV-97-274-SD 11/26/97 UNITED STATES DISTICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Cleco Manufacturing, Inc.
v. Civil No. 97-274-SD
Dura-Crete, Inc.
O R D E R
This case is a contract action before the court on diversity
jurisdiction. The underlying dispute arose out of plaintiff
Cleco Manufacturing, Inc.'s sale of eguipment to defendant Dura-
Crete. Cleco initiated the case against Dura-Crete claiming
damages due for breach of contract, or under a theory of guantum
meruit. Dura-Crete has asserted a host of cross-claims based on
breach of contract, breach of express and implied warranties, and
various negligence theories. Now before the court is Dura-
Crete' s motion to transfer the case from the District of New
Hampshire to the Southern District of Indiana pursuant to 28
U.S.C. § 1404(a) (1994) .
Background
Cleco, a Connecticut corporation with its principal place of
business in New Hampshire, is a manufacturer of industrial machinery. Dura-Crete is an Ohio corporation and has its
principal place of business in Ohio.
In 1995 Dura-Crete began construction of an Indiana plant to
make concrete industrial products. Dura-Crete hired a contractor
who contracted with several subcontractors to construct the
plant. Dura-Crete also entered into an agreement with Cleco to
provide a central mix batch plant machine and a multi-station
manhole machine.
Cleco designed and manufactured the machines in Londonderry,
New Hampshire, and delivered them to the plant in Indiana. Cleco
claims that it provided the machines in accordance with the
contract, but that Dura-Crete has failed to pay the consideration
reguired by the contract. Cleco instituted the present action to
recover the amount it claims is due under the contract.
Dura-Crete contends that Cleco breached the contract by
delivering the eguipment late and providing machinery that did
not meet the contract specifications or that was defective.
Dura-Crete claims that the delay prevented its contractor from
completing the plant on time and that Cleco's failure to provide
adeguate instructions caused further delays. Because the
machines were not automated as Dura-Crete expected, Dura-Crete
contends it needed to hire two other companies to automate the
machines.
2 Cleco denies Dura-Crete's assertions and counters that
misuse of the machines and Dura-Crete's and its contractor's
negligence caused any damages.
Discussion
Section 1404(a) allows a district court to transfer any
civil action to any other district where it might have been
brought when such a transfer increases the convenience of the
parties and witnesses and is in the interest of justice. See 28
U.S.C. § 1404(a) (1994). Cleco does not dispute that this case
could have been brought in Indiana.
"Section 1404(a) is intended to place discretion in the
district court to adjudicate motions for transfer according to an
'individualized case-by-case consideration of convenience and
fairness.'" Stewart Org., Inc. V. Ricoh Corp., 487 U.S. 22, 29
(1987) (guoting Van Pusan v. Barrack, 376 U.S. 612, 622 (1964)).
It is the movant who must demonstrate "that [the] factors
predominate in favor of the transfer." See Buckley v. McGraw-
Hill, Inc., 762 F. Supp. 430, 439 (D.N.H. 1991). The court
should accord deference to the plaintiff's choice of forum. See
Anderson v. Century Products Co., 943 F. Supp. 137, 149 (D.N.H.
1996). However, section 1404(a) does not merely codify the
common law doctrine of forum non conveniens, but rather allows
3 "courts to grant transfers upon a lesser showing of
inconvenience." Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955).
Thus the court has broad discretion to grant or deny change
of venue based upon the convenience of the parties and witnesses,
as well as practical concerns such as the availability of
compulsory process and consideration of which court is more
familiar with the applicable law. See D'Allesandro v. Johnson &
Wales Univ., Civ. 94-543-SD, 1995 WL 113928, at *1 (D.N.H. Mar.
16, 1995); Buckley, supra, 762 F. Supp. at 439. The burden is
upon the movant to show that these factors outweigh the
plaintiff's interest in choosing his or her forum.
In weighing the convenience of the parties, the court will
consider their respective residences, the cost to the parties of
litigating in the alternate forums, and the financial strength of
the parties. See Anderson, supra, 943 F. Supp. at 148;
D'Allesandro, supra, 1995 WL 113928, at *2. In this case, both
parties argue, not that their opponent's chosen forum is
inconvenient, but that their preferred forum does not
inconvenience their opponent.
New Hampshire, as evinced by Cleco's choice of forum, is a
more convenient forum for Cleco. Cleco's principal place of
business is in New Hampshire. Transfer to Indiana would reguire
Cleco to incur increased litigation costs. However, there is no
4 indication that Cleco does not possess the financial strength to
absorb these costs. Furthermore, consideration of the financial
strength of the parties "is usually only applicable to situations
where an individual is suing a large corporation and thus would
not be applicable here." Aquatic Amusement Assoc. V. Walt Disney
World. 734 F. Supp. 54, 59 (N.D.N.Y. 1990).
On the other hand, Dura-Crete is an Ohio corporation with
its principal place of business in Ohio. Thus Dura-Crete will
incur the costs of defending this litigation outside its home
state, regardless of whether the court transfers the case.
Although the court recognizes that traveling to New Hampshire
would be more burdensome, the added convenience to Dura-Crete
does not weigh heavily in favor of transfer to Indiana.
Thus the court finds that the convenience of the parties,
being roughly egual, does not favor transferring this case to
Indiana.
Convenience of the witnesses is the most important factor
that the court must consider. See Buckley, supra, 762 F. Supp.
at 44 0; C harles W r i g h t , et a l ., 15 F e d e r a l Practice and Procedure § 3851
(1986). Section 1404(a) reguires the court to consider the
convenience of the witnesses to protect parties and non-parties
from unnecessary inconvenience and expense. See Van Dusen v.
Barrack, supra, 376 U.S. at 616. However, this factor should not
5 be merely a battle of numbers decided in favor of the party who
can craft the longest list of in-state witnesses. See Anderson,
supra, 934 F. Supp. at 149. The court should give primary
consideration to witnesses whose testimony will be central to the
trial. See id. The court also will give the convenience of
expert witnesses less emphasis. See W r i g h t , supra, § 3852.
In this case, both sides, coincidentally, have produced
lists of fifteen witnesses for whom testifying in their
opponent's preferred forum would be difficult or impossible.
Dura-Crete's list includes contractors and subcontractors who
were involved in constructing the plant and installing the Cleco
eguipment, employees of the companies that Dura-Crete hired to
automate the machines, as well as former and current Dura-Crete
employees, all of whom are residents of Indianapolis. Dura-Crete
intends to call these witnesses to testify about the problems
Dura-Crete encountered with the Cleco machines, the lack of
adeguate instructions, and damages caused by the nonperformance
of the eguipment. These witnesses clearly are central to Dura-
Crete' s claims that the eguipment did not conform to the contract
specifications, that Cleco breached warranties, and that the
machines were defective. The testimony of these witnesses is
also pertinent to determining Dura-Crete's damages and is
relevant to Cleco's defense that Dura-Crete misused the eguipment
and was contributorily negligent.
Cleco's list of witnesses consists of nine New Hampshire
6 residents, three Massachusetts residents, one resident of
Vermont, and two Canadians. The court rejects the claim that the
convenience of the Canadian witnesses favors New Hampshire.
These witnesses, who will be traveling from Montreal, will
require airline transportation and hotel accommodations,
regardless of whether they testify in New Hampshire or Indiana.
C f . Studienqesellschaft Kohle MBH v. Shell Oil Co., Civ. 93-1868
(PKL) 1993 WL 403340, at * 4 (S.D.N.Y. Oct. 8, 1993) (holding
appearing in Texas instead of New York increased burden to German
plaintiff only marginally). However, the convenience of the
Massachusetts and Vermont witnesses does weigh in favor of New
Hampshire.
The court also suspects that some of Cleco's witnesses may
be characterized more properly as expert witnesses.
Specifically, Peter Wagner, David Kobisky, and Doug Carr do not
appear, according to Cleco's memorandum, to posses personal
knowledge about the machines sold to Dura-Crete. See Memorandum
of Law in Support of Plaintiff's Objection to Defendant's Motion
to Change Venue at 6-7. Instead, these witnesses will provide
general testimony about the operation of the type of machines
involved and opinion testimony about the quality of Cleco
machines and their component parts.
The remaining Cleco witnesses are employees or contractors
who will testify about the design of the equipment Cleco sold to
Dura-Crete. This testimony is central both to Cleco's contention
7 that the equipment met contractual specifications and to refute
Dura-Crete's claim that the machines were defective.
Thus either choice of forum would inconvenience key
witnesses. However, because more of the central witnesses are
located in Indiana, this factor weighs in favor of transfer.
Consideration of witnesses does not end with their
convenience, however. The court must now weigh the interest of
justice. Because justice is better served when testimony is
live, the court must consider the availability of compulsory
process to compel the testimony of key witnesses. See Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 511 (1947) ("to fix the place of
trial at a point where litigants cannot compel personal
attendance and may be forced to try their cases on deposition, is
to create a condition not satisfactory to court, jury or most
litigants"); Anderson, supra, 943 F. Supp. at 149. In this
calculation, the court discounts witnesses who are employees of a
party because the court assumes their attendance can by obtained
by that party. See W r i g h t , supra, § 3851.
Both parties to this case, as discussed above, would like to
call witnesses who are outside the jurisdiction of their
opponent's preferred forum. Cleco's list of witnesses includes
eight potential witnesses who are non-employees and are within
the jurisdiction of the New Hampshire court. Dura-Crete plans to
call twelve non-employee witnesses who are Indianapolis
residents. The court finds that the preference for live testimony
favors Indianapolis. Although the court recognizes that there
are key witnesses on both sides whom the court cannot compel to
testify in the alternate forum, the court finds that this factor
weighs in Dura-Crete's favor because it has more key witnesses in
Indianapolis and all of its witnesses profess first hand
knowledge relevant to central issues in this case.
After weighing all the factors in this case, the court finds
that transfer to Indiana is appropriate. The court is persuaded
by the fact that the most important factor--the convenience of
witnesses--favors transfer. Furthermore, the strong preference
for live testimony dictates that justice will be better served by
transfer to Indiana.
Conclusion
For the above-mentioned reasons, the Motion of Defendant
Dura-Crete, Inc. To Change Venue (document 9) must be and
herewith is granted.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
November 26, 1997
cc: Jeffrey B. Osburn, Esg. Lawrence M. Edelman, Esg. Mark C. Bissinger, Esg.