contract action arose either at Flour City's plant in
Minneapolis or at the construction site in New York. If the
defendants did not knowingly cause the delay in performance (as
determined at the Minneapolis plant) or if the delay was caused
by changes in windload specifications or by poor coordination
of work with other contractors at the construction site in New
York, the determination of fraud could well hinge on events or
conduct occurring outside of Chicago. For these reasons,
Chicago is not conclusively where the cause of action arose
and, therefore, plaintiff's choice of forum will be given equal
consideration along with the other factors which must be
considered under § 1404.
Convenience of the Parties and Witnesses
Although § 1404(a) specifically points to the convenience of
both parties and witnesses, in the instant case, only the
latter factor need be analyzed by the Court. The facts
presented by this motion indicate that the convenience of the
parties is neutral in this case. Both plaintiff and defendants
will be inconvenienced if this action is brought in the other
parties' resident district and the financial strengths of the
parties are equivalent.
In analyzing the convenience of witnesses, the Court must look
to the expenses of transportation and the length of time the
witnesses will be absent from their jobs. In addition, this
Court must consider not only the number of potential witnesses
located in the transferor and transferee districts, but also
the nature and quality of their testimony and whether they can
be compelled to testify. Delay & Daniels v. Campbell Co., 71
F.R.D. 368, 372 (D.S.C. 1976); Wright, Law of Fed. Courts § 44.
Defendants have demonstrated that there exists a large number
of witnesses who might testify for defendants at trial.
Plaintiffs point out that there is some possibility that the
testimony provided by these witnesses would be cumulative.
Presumably, therefore, when faced with the expense of
transporting these people to Chicago, defendants might choose
to streamline their list of trial witnesses. Although this
possibility exists, it is inappropriate for this Court, at this
stage in the litigation, to speculate as to whether the
testimony will in fact be cumulative or, if so, how defendants
would prepare for trial if it were. Rather the Court must
assume that, in light of the large list of potential witnesses,
the possibility of prejudice to defendants is great.
With regard to the next factor to be considered, the nature and
quality of trial testimony, the Court notes that the most
important testimony in this case will very likely come from
non-party witnesses. In this breach of contract action, the
communications between the parties and non-parties is crucial
to determine the cause of the delay in the contract's
performance: whether the delay was caused by defendants
knowingly taking more orders for the Minneapolis plant than it
could accommodate or by plaintiff and its agent changing the
windload specifications for the curtain wall.
In light of the crucial character of the non-party witnesses
located in New York, this Court bases its order to transfer, in
part, on the primary concern of insuring whenever possible the
live presence of these material non-party witnesses. Poncy v.
Johnson & Johnson, 414 F. Supp. 551, 558 (S.D.Fla. 1976); 15
Wright & Miller, Fed. Prac. & Pro. § 3851. It is well settled
that the trier of fact should not be forced to rely on
deposition evidence when the deponent's live testimony can be
procured. Coats Co., Inc. v. Vulcan Equipment Co., Inc.,
459 F. Supp. 654, 657 (N.D.Ill. 1978); Blender v. Sibley,
396 F. Supp. 300, 302 (E.D.Pa. 1975). Neither the transferor
district nor the transferee district has process power over the
nonparty witnesses located in Minneapolis (Flour City's former
employees). Thus, the transfer of this action would have no
effect on the power to compel the presence of these witnesses
at trial. Additionally, although it is true that the transferee
district has no process power by which to obtain the presence
of plaintiff's non-party witnesses working in Chicago, those
witnesses are plaintiff's affiliates and consultants
and "are not the type of witness . . . likely to be reluctant
to testify." Cunningham v. Cunningham, 477 F. Supp. at 63. In
contrast, defendants' non-party witnesses (the architects,
construction and financial consultants employed in the
construction of the entire hotel) might be reluctant to testify
and their availability is necessary to a fair adjudication of
this action. In light of the foregoing, and the fact that the
former president and vice president of Flour City, as well as
plaintiff's agent, Morse/Diesel, reside in the New York area,
this Court concludes that considerations of potential problems
of service weigh in favor of transfer.
Interests of Justice
This Court concludes that the final factor to be considered
under § 1404(a) supports transfer to the Southern District of
New York. Under Illinois conflict of law principles, New York
law will be applied to this action because New York is the
place of the contract's making and performance. P.S. & E.,
Inc. v. Selastomer Detroit, Inc., 470 F.2d 125, 127 (7th Cir.
1972), citing Oakes v. Chicago Fire Brick Co., 388 Ill. 474,
58 N.E.2d 460 (1944). Additionally, the dispute over the
changing windload specifications involves the New York City
Building Code as enforced by the Port Authority of New York and
New Jersey. These facts make transfer of the action
appropriate. This is not because New York law is uncertain,
novel or complex, but merely because issues of local law are
best construed by courts most familiar with them. Vaughn v.
American Basketball Ass'n., 419 F. Supp. 1274, 1278 (S.D.N Y
1977); Kreisner v. Hilton Hotel Corp., 468 F. Supp. 176, 179
(E.D.N.Y. 1979). Color Technique, Inc. v. Don Wallace, Inc.,
241 F. Supp. 952, 954 (N.D.Ill. 1965).
For the reasons stated above, defendants' motion for transfer
IT IS SO ORDERED.
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