Royal & Sun Alliance Insurance, PLC v. Nippon Express USA, Inc.

202 F. Supp. 3d 399, 2016 U.S. Dist. LEXIS 118310, 2016 WL 4523885
CourtDistrict Court, S.D. New York
DecidedAugust 18, 2016
Docket15 Civ. 7849 (VM)
StatusPublished
Cited by15 cases

This text of 202 F. Supp. 3d 399 (Royal & Sun Alliance Insurance, PLC v. Nippon Express USA, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Royal & Sun Alliance Insurance, PLC v. Nippon Express USA, Inc., 202 F. Supp. 3d 399, 2016 U.S. Dist. LEXIS 118310, 2016 WL 4523885 (S.D.N.Y. 2016).

Opinion

DECISION AND ORDER

VICTOR MARRERO, United States District Judge.

Plaintiff Royal & Sun Alliance Insurance, PLC (“RSA”), insurer of Johnson & Johnson Group (“J&J”), brings this action against defendants Nippon Express USA, Inc. (“NEU”) and Maersk Line A/S (“Maersk”) (collectively, “Defendants”) for [404]*404breach of contract. (“Third Amended Complaint,” Dkt. No. 42.) RSA alleges that J&J delivered a shipment, insured by RSA, of temperature sensitive reactive mix monomers (“Shipment”) to the care and custody of NEU in Atlanta, Georgia in good order and condition. (Id. at 1-2.) RSA claims that NEU received and accepted the Shipment and agreed, in exchange for payment, to properly and safely, store, handle, and protect the Shipment and to deliver the Shipment to J&J or its desig-nee in the same condition as when received. (Id at 2-3.) However, RSA alleges that NEU did not properly set or monitor the required temperatures on the shipping containers. (Id. at 3.) Thereafter, the Shipment was delivered to Maersk in Atlanta, Georgia for transportation to Charleston, South Carolina and ultimately Limerick, Ireland. (Id.) RSA claims that Maersk agreed to transport the Shipment and deliver it in the same order and condition as when received. (Id.) RSA alleges that Defendants failed to perform their services as agreed upon and further alleges that the Shipment was damaged in value, all in violation of Defendants’ obligations. (Id. at 3-4.)

By letter dated April 14, 2016 (“Motion”), NEU moved for a transfer of venue to the Atlanta Division of the Northern District of Georgia. (Dkt. No. 25.) Among its arguments, NEU contends that (1) the operative facts occurred in Georgia; (2) key witnesses and documents are in Georgia, and the Northern District of Georgia would have the ability to compel the attendance of unwilling witnesses; and (3) it is more efficient to resolve the claim where it arose. (Id. at 2-5.)

In a letter to the Court dated June 1, 2016 (“Maersk’s Response”), Maersk responds to NEU’s Motion. (Dkt. No. 37.) Maersk notes that the bill of lading governing the Shipment provides for mandatory and exclusive jurisdiction in the Southern District of New York, and the Service Contract with J&J indicates that the parties agreed to arbitrate any disputes in New York. (Id. at 1.) However, Maersk agrees to waive its right to arbitrate under the Service Contract if the present action continues in the Southern District of New York. (Id. at 1-2.) However, Maersk expressly reserves the right to enforce the arbitration clause if the action is transferred to the Northern District of Georgia or any other venue. Additionally, Maersk notes that it routinely conducts litigation in New York since the bill of lading includes the New York jurisdiction clause and therefore has no objections to proceeding in this venue. (Id. at 2.)

By letter dated July 7, 2016 (Dkt. No. 47) and amended letter dated July 25, 2016 (“RSA’s Response”), RSA argues that a transfer of venue is not warranted because (1) the remaining third-party witnesses to be deposed are in the New York area or RSA agrees to depose them in their home location; (2) all five of the actual and &! facto parties to the dispute are located in the New York metropolitan area; (3) many of the operative facts occurred in New York, including the contracting process and the subsequent investigation of the damage to the Shipment; (4) judicial economy counsels in favor of maintaining the action in the Southern District of New York as only two months remain in the discovery schedule. (Dkt. No. 60 at 2-5.)

In a letter dated July 18, 2016, NEU replied to RSA’s Response (“Reply”). (Dkt. No. 52.) NEU reiterates that most of the operative facts occurred in the Northern District of Georgia. (Id. at 1.) In addition, NEU contends that the Motion is timely, and any delay in consideration of this Motion was created by RSA.1 (Id. at 2.)

[405]*405For the reasons set forth below, NEU’s Motion to transfer venue to the Northern District of Georgia pursuant to 28 U.S.C. Section 1404(a) (“Section 1404”) is DENIED.

I. LEGAL STANDARD

“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 or to any district or division to which all' parties have consented.” 28 U.S.C. § 1404(a).

In considering a motion to transfer venue, the inquiry is twofold. Smart Skins LLC v. Microsoft Corp., No. 14 Civ. 10149, 2015 WL 1499843, at *4 (S.D.N.Y. Mar. 27, 2015) (“The Second Circuit applies a two-part test to motions to transfer venue under § 1404(a).”).

First, the court must determine whether the action could have been brought in the proposed transferee forum. See AEC One Stop Grp., Inc, v. CD Listening Bar, Inc., 326 F.Supp.2d 525, 528 (S.D.N.Y.2004) (“ ‘The threshold question in deciding transfer of venue ... is whether the action could have been brought in the transferee forum.’ ”).

If the action could have been filed in the proposed transferee district, the court must then determine whether transfer is appropriate. Courts typically consider nine factors in this regard: “(1) convenience of witnesses; (2) convenience of the parties; (3) location of relevant documents and the relative ease of access to sources of proof; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the comparative familiarity of each district with the governing law; (8) the weight accorded to plaintiffs choice of forum; and (9) judicial economy and the1 interests of justice.” Frame v. Whole Foods Mkt., Inc., No. 06 Civ. 7058, 2007 WL 2815613, at * 4 (S.D.N.Y. Sept. 24, 2007).

“No one factor is dispositive and the relative weight of each factor depends on the particular circumstances of the case.” Smart Skins LLC, 2015 WL 1499843, at *4. However, because the discretion under Section 1404 “ ‘must be exercised at the very outset of the case, when relatively little is known about how the case will develop, courts have typically accorded substantial weight to the [eighth] factor, plaintiffs choice of forum.’” Atl. Recording Corp. v. Project Playlist, Inc., 603 F.Supp.2d 690, 695 (S.D.N.Y.2009); see also Columbia Pictures Indus., Inc. v. Fung, 447 F.Supp.2d 306, 309 (S.D.N.Y.2006) (“ ‘Absent a clear cut and convincing showing by defendant that the balance of convenience weighs strongly in favor of the transferee court, plaintiffs choice of forum will not be set aside.’ ”).

II. DISCUSSION

A. WHETHER THE ACTION COULD HAVE BEEN BROUGHT IN THE NORTHERN DISTRICT OF GEORGIA

The Court will first consider whether the action could have been brought in the Northern District of Georgia.

Under 28 U.S.C. Section 1391(c) (2), “an entity with the capacity to sue and [406]

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202 F. Supp. 3d 399, 2016 U.S. Dist. LEXIS 118310, 2016 WL 4523885, Counsel Stack Legal Research, https://law.counselstack.com/opinion/royal-sun-alliance-insurance-plc-v-nippon-express-usa-inc-nysd-2016.