Court of Appeal of Louisiana,

First Circuit.

ALL CRANE RENTAL OF GEORGIA, INC.

v.

Ricky VINCENT d/b/a Tree Surgery by Ricky Vincent.

No. 2010 CA 0116.

 

Sept. 10, 2010.

 

Before KUHN, PETTIGREW, and McCLENDON, JJ.

 

PETTIGREW, J.

 

In this case, Ricky Vincent d/b/a Tree Surgery by Ricky Vincent (“Vincent”) challenges the trial court’s judgment granting summary judgment in favor of Scottsdale Insurance Company (“Scottsdale”) and dismissing his claims for damages. For the reasons that follow, we affirm.

 

FACTS AND PROCEDURAL HISTORY

 

This matter arises in connection with a lawsuit filed by plaintiff, All Crane Rental of Georgia, Inc. (“All Crane”), against defendant, Vincent. All Crane alleged that on September 30, 2005, Vincent entered into a rental contract with All Crane for the use of a Manitex 22101 C 21-Ton/Mack CL713 (“the crane”) in his tree-trimming business. All Crane asserted that Vincent “contractually agreed that any damage occurring while [the crane] was in his care, custody and control was his responsibility.” All Crane further alleged that the crane was “damaged and repaired” while Vincent had “care, custody and control” of it and that Vincent had failed to pay several months of rental fees.

 

Vincent answered All Crane’s petition, generally denying the allegations, and filed a cross-claim, naming Williams Insurance Agency, Inc. (“Williams”), Burns & Wilcox, Ltd. (“Burns & Wilcox”), Certain Underwriters at Lloyd’s, London (“Underwriters”), and Scottsdale as defendants. In said cross-claim, Vincent alleged that because of the way Williams “wrote up the insurance certificates, it is quite possible that [Scottsdale] has an interest in this litigation and out of an abundance [of caution] is hereby named as a defendant.” In response to the cross-claim, Scottsdale filed a peremptory exception raising the objection of no cause of action and a dilatory exception raising the objection of vagueness and ambiguity. After a hearing on the peremptory exception raising the objection of no cause of action, the court sustained the exception and ordered Vincent to amend his petition within fifteen days.

 

On September 25, 2007, Vincent filed an amended petition for damages alleging as follows:

 

[Scottsdale] is liable unto third party plaintiff, [Vincent] for coverage as an insurer. On the Certificate of Liability issued by [Williams,] defendant [Scottsdale] is listed as the insurer on the inland marine policy. This policy covered, according to the Acord 25, physical damage on equipment (Manitex 22101C21 Ton Crane) that included boom, jib and overload. The time period of the effective date of policy was October 3, 2005 to January 3, 2006.

 

Scottsdale filed a motion for summary judgment on June 3, 2008, alleging that there were no genuine issues of material fact as to Vincent’s claims against Scottsdale and that it was entitled to summary judgment as a matter of law. Scottsdale argued that the policy it issued to Vincent, Policy No. CLS1176939, provided commercial general liability (“CGL”) coverage for the period from October 5, 2005 through October 5, 2006. Scottsdale maintained that the claims made by Vincent were not covered by this policy as it specifically excluded coverage for property that Vincent owns or leases, or property that is in his care, custody or control.

 

The matter was heard by the trial court on September 22, 2008, at which time the trial court granted summary judgment in favor of Scottsdale. On September 14, 2009, the trial court rendered judgment granting Scottsdale’s motion for summary judgment and dismissing, with prejudice, Vincent’s claims against Scottsdale. The trial court found that the insurance policy in question provided no coverage for the loss sustained by Vincent and, therefore, Scottsdale had no obligation to defend Vincent. It is from this judgment that Vincent has appealed, assigning the following specifications of error:

 

1. The trial court was clearly wrong, when it determined that the insurance binder issued to [Vincent], on 10-6-05, which describes [Scottsdale] as the principal to an “inland marine policy” designated as policy no 6051M10/03, and specifically covering “Boom Jib and overload,” was somehow meant to describe “a policy issued by [Underwriters]”[;]

 

2. The trial court erred when it granted [Scottsdale’s] motion for summary judgment, finding that no genuine issue of material fact existed on the issue of insurance coverage on behalf of [Vincent];

 

3. The trial court erred, when it failed to apply the law of [principal] and agent, and hold Scottsdale liable as insurer to [Vincent], based on the insurance binder ALONE[;]

 

4. The trial court erred by not finding that in addition to the insurance binder, [Scottsdale] was liable to indemnify [Vincent] under the terms and provisions of a[CGL] policy, which issued long after the damages which form as a basis for this lawsuit occurred;

 

5. The trial court erred when it failed to order [Scottsdale] to provide a defense to [Vincent], to pay for past attorney expenses paid by their client [Vincent].

 

SUMMARY JUDGMENT

 

A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine issue of material fact. Gonzales v. Kissner, 20082154, p. 4 (La.App. 1 Cir. 9/11/09), 24 So.3d 214, 217. Summary judgment is properly granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law. La.Code Civ. P. Art. 966(B), Summary judgment is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La.Code Civ. P. art. 966(A)(2); Aucoin v. Rochel, 2008-1180, p. 5 (La.App. 1 Cir. 12/23/08), 5 So.3d 197, 200, writ denied, 2009-0122 (La.3/27/09), 5 So.3d 143.

 

On a motion for summary judgment, the burden of proof is on the mover. If, however, the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden on the motion does not require that all essential elements of the adverse party’s claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment. La.Code Civ. P. art. 966(C)(2); Robles v. ExxonMobile, 2002-0854, p. 4 (La.App. 1 Cir. 3/28/03), 844 So.2d 339, 341.

 

In ruling on a motion for summary judgment, the trial court’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. Guardia v. Lakeview Regional Medical Center, 2008-1369, p. 3 (La.App. 1 Cir. 5/8/09), 13 So.3d 625, 628. A trial court cannot make credibility decisions on a motion for summary judgment. Monterrey Center, LLC v. Education Partners, Inc., 2008-0734, p. 10 (La.App. 1 Cir. 12/23/08), 5 So.3d 225, 232. In deciding a motion for summary judgment, the trial court must assume that all of the witnesses are credible. Independent Fire Ins. Co. v. Sunbeam Corp., 99-2181, pp. 16-17 (La.2/29/00), 755 So.2d 226, 236. Despite the legislative mandate that summary judgments are now favored, factual inferences reasonably drawn from the evidence must be construed in favor of the party opposing the motion, and all doubt must be resolved in the opponent’s favor. Willis v. Medders, 2000-2507, p. 2 (La.12/8/00), 775 So.2d 1049, 1050.

 

Appellate courts review evidence de novo under the same criteria that govern the trial court’s determination of whether summary judgment is appropriate. Boudreaux v. Vankerkhove, 2007-2555, p. 5 (La.App. 1 Cir. 8/11/08), 993 So.2d 725, 729-730. An appellate court thus asks the same questions as does the trial court in determining whether summary judgment is appropriate: whether there is any genuine issue of material fact, and whether the mover-appellant is entitled to judgment as a matter of law. Ernest v. Petroleum Service Corp., 2002-2482, p. 3 (La.App. 1 Cir. 11/19/03), 868 So.2d 96, 97, writ denied, 2003-3439 (La.2/20/04), 866 So.2d 830. The issue of whether an insurance policy, as a matter of law, provides or precludes coverage is a dispute that can be resolved properly within the framework of a motion for summary judgment. Dixon v. Direct General Ins. Co. of Louisiana, 2008-0907, p. 4 (La.App. 1 Cir. 3/27/09), 12 So.3d 357, 360. Summary judgment declaring a lack of coverage under an insurance policy may not be rendered unless there is no reasonable interpretation of the policy, when applied to the undisputed material facts shown by the evidence supporting the motion, under which coverage could be afforded. Halphen v. Borja, 2006-1465, p. 3 (La.App. 1 Cir. 5/4/07), 961 So.2d 1201, 1204, writ denied, 2007-1198 (La.9/21/07), 964 So.2d 338. An insurer seeking to avoid coverage through summary judgment must prove some provision or exclusion applies to preclude coverage. Henly v. Phillips Abita Lumber Co., Inc., 2006-1856, p. 4 (La.App. 1 Cir. 10/3/07), 971 So.2d 1104, 1108.

 

INSURANCE POLICY INTERPRETATION

 

An insurance policy is a contract between the parties and should be construed employing the general rules of interpretation of contracts set forth in the Louisiana Civil Code. Lewis v. Jabbar, 2008-1051 p. 5 (La.App. 1 Cir. 1/12/09), 5 So.3d 250, 255. The judicial responsibility in interpreting insurance contracts is to determine the parties’ common intent. See La. Civ.Code art.2045. Words and phrases used in a policy are to be construed using their plain, ordinary, and generally prevailing meaning, unless the words have acquired a technical meaning. See La. Civ.Code art.2047. Where the language in the policy is clear, unambiguous, and expressive of the intent of the parties, the agreement must be enforced as written. See La. Civ.Code art.2046. The court should not strain to find ambiguity where none exists. Strickland v. State Farm Ins. Cos., 607 So.2d 769, 772 (La.App. 1 Cir.1992). Whether a contract is ambiguous is a question of law. Id.

 

DISCUSSION

 

The crux of Vincent’s appeal is that not only does the CGL policy issued by Scottsdale provide coverage for the damages at issue, but the “Certificate Of Liability Insurance,” issued on October 6, 2005, by Williams as an agent for Scottsdale, is the equivalent of a binder and operates to provide coverage. Thus, Vincent maintains, the trial court erred in failing to order Scottsdale to provide Vincent with a defense. We find no merit to Vincent’s arguments on appeal.

 

In support of its motion for summary judgment below, Scottsdale submitted into evidence a copy of the “Certificate Of Liability Insurance,” arguing that the certificate did not create coverage under its policy. According to the certificate, there were allegedly two policies of insurance issued by Scottsdale, a CGL policy effective from 10/5/05 to 10/5/06, and an inland marine policy effective from 10/3/05 to 1/3/06. The following description is given as to the coverage provided: “GENERAL LIABILITY INCLUDES ALL CRANE RENTAL OF GEORGIA, INC. AS AN ADDITIONAL INSURED. INLAND MARINE INLCUDES LOSS PAYEE IN FAVOR OF ALL CRANE RENTAL OF GEORGIA, INC. INLAND MARINE COVERS PHYSICAL DAMAGE ON EQUIPMENT THAT INCLUDES BOOM, JIB AND OVERLOAD.” The only insurer listed on the certificate is Scottsdale. Citing La. R.S. 22:881  and Citgo Petroleum Corp. v. Yeargin, Inc., 95-1574 (La.App. 3 Cir. 2/19/97), 690 So.2d 154, writs denied, 97-1223, 97-1245 (La.9/19/97), 701 So.2d 169, 170, Scottsdale maintained that the certificate failed to meet the requirements of La. R.S. 22:881 and thus could not be considered in determining whether it modified the terms of coverage afforded by its CGL policy.

 

[10][11] At the outset, we note that a certificate of insurance is not the same as a binder. A binder is used to bind insurance temporarily pending the issuance of the policy. No binder shall be valid beyond the issuance of the policy as to which it was given. La. R.S. 22:870.  Thus, binders are authorized by law. Although a binder is sufficient to evidence a contract, it does not stand independent from the policy. Donaldson v. United Community Ins. Co., 98-1187, p. 11 (La.App. 3 Cir. 2/10/99), 741 So.2d 676, 683, writ denied, 99-0727 (La.5/7/99), 740 So.2d 1285. A binder is subject to the conditions of the policy contemplated. Pigron v. Allstate Ins. Co., 2007-641, p. 6 (La.App. 3 Cir. 12/19/07), 972 So.2d 1269, 1273.

 

A binder is not an insurance policy, but is generally taken to be a contract providing for interim insurance effective as of the date of the application and terminating at either completion or rejection of the principal policy.

 

Although a binder may be sketchy and informal in comparison with the policy contemplated for issuance and delivery in the future, it is a contract of insurance in praesenti, subject only to the conditions which it itself imposes. Generally, a binder contemplates a subsequent and more formal agreement, and by its nature incorporates the terms of the prospective policy whether those terms are prescribed by law or are part of the customary policy issued by the insurer. Thus, a binder is a written contract by a duly authorized agent of an insurance company recognizing liability on a forthcoming contract during negotiations for such contract, and assuming that a valid or legally operative binder has been executed, it is immaterial that a loss covered by the binder occurs before the formal policy of insurance is issued. A contract of temporary insurance is binding upon the insurer even though, after an accident, the insured refuses to take the policy and pay the premium as agreed. [Footnotes omitted.]

 

Lee R. Russ and Thomas F. Segalla, 1A Couch on Insurance 3d, § 13:1 (1997) (“Couch on Insurance 3d”). To the contrary, the jurisprudence has consistently held that a certificate of insurance is typically issued for informational purposes alone and cannot modify the terms of coverage provided in an insurance policy.

 

In Citgo, the court was asked to determine whether a certificate of insurance issued by a policyholder to an additional insured, which purported to extend, modify or limit coverage, was binding on the original insurer.   Citgo, 95-1574 at 10-13, 690 So.2d at 162-163. The certificate contained a disclaimer that it was issued solely for informational purposes and that it did “not amend, extend or alter” the policy’s coverage. Citgo, 95-1574 at 11, 690 So.2d at 162.

 

The court looked to the provisions of La. R.S. 22:881 for the scope of its inquiry: “Every insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy, and as amplified, extended, or modified by any rider, endorsement, or application attached to or made a part of the policy .” Citgo, 95-1574 at 13, 690 So.2d at 163. The court concluded:

 

[La. R.S. 22:881,] by its clear wording, limits our inquiry in this case solely to the meaning of the terms and conditions of the [original] policy and “any rider, endorsement or application.” A certificate of insurance is not a “rider, endorsement, or application.” We cannot examine the certificate for purposes of determining if it modifies the terms of coverage because, by operation of this statute, the certificate cannot amplify, extend or modify coverage.

 

Citgo, 95-1574 at 13, 690 So.2d at 164. The court noted further that even if applicable law allowed it to consider the language of the certificate, the certificate’s disclaimer was clear and unambiguous that it did not “amend, extend or alter” the coverage afforded under the policy and that it was issued for informational purposes only. Id. Cf. Ferguson v. Plummer’s Towing & Recovery Inc., 98-2894, pp. 5-6 (La.App. 1 Cir. 2/18/00), 753 So.2d 398, 401 (citing La. R.S. 10:1-307  and holding that a certificate of insurance is prima facie evidence of the genuineness of the facts stated therein if the certificate was issued between the parties to legal action but that a third party may not rely on the certificate to “change the coverage provided” by an insurance policy).

 

Similarly, the “Certificate Of Liability Insurance” issued in this case contains the exact disclaimer as the one in the Citgo case: “THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.” While in an action by Vincent against Williams in connection with the certificate of insurance, the certificate would be prima facie evidence of its authenticity, with respect to Scottsdale, the language in the certificate does not operate to change the coverage provided in the CGL policy issued by Scottsdale. See Ferguson, 98-2894 at 5-6, 753 So.2d at 401. Accordingly, we must look only to the policy in question to determine whether Vincent’s claims were covered by the CGL policy, thus requiring Scottsdale to provide Vincent with a defense.

 

The “Insuring Agreement” of the CGL policy provides as follows:

 

We will pay those sums that the insured becomes legally obligated to pay as damages because of “bodily injury” or “property damage” to which this insurance applies. We will have the right and duty to defend the insured against any “suit” seeking those damages. However, we will have no duty to defend the insured against any “suit” seeking damages for “bodily injury” or “property damage” to which this insurance does not apply. We may, at our discretion, investigate any “occurrence” and settle any claim or “suit” that may result.

 

Furthermore, the CGL policy contains the following exclusions:

2. Exclusions

 

This insurance does not apply to:

 

….

 

j. Damage To Property

 

“Property damage” to:

 

(1) Property you own, rent, or occupy, including any costs or expenses incurred by you, or any other person, organization or entity, for repair, replacement, enhancement, restoration or maintenance of such property for any reason, including prevention of injury to a person or damage to another’s property;

 

….

 

(4) Personal property in the care, custody or control of the insured[.]

 

In moving for summary judgment, Scottsdale argued that its policy was a CGL policy that did not provide commercial inland marine coverage. Scottsdale further asserted that according to Exclusions (j)(1) and (j)(4), the policy specifically excluded coverage for property that Vincent owns or leases, or property that is in his care, custody or control. Thus, Scottsdale maintained, because there was no dispute that the crane was leased to Vincent at the time that it sustained damages, these exclusions clearly barred coverage for Vincent’s claims.

 

Scottsdale’s policy is a CGL policy. Such policies are designed to protect the insured against losses to third parties arising out of the operation of the insured’s business. 9A Couch on Insurance 3d, § 129:2. The damages sought by All Crane do not fit within the coverage of a CGL policy. Furthermore, based on the clear and unambiguous language of the exclusions in the Scottsdale CGL policy, we agree with Scottsdale that this policy afforded no coverage to Vincent for the damages at issue herein.

 

As alleged by All Crane in its petition for damages, the crane that was damaged was leased to Vincent at all pertinent times hereto. There is no claim that Vincent’s use of the crane caused any damages to third party property. Thus, it follows that the exclusion for damage to property rented by Vincent clearly and unambiguously bars coverage for the claims asserted. Moreover, it is asserted in the petition for damages that the crane was damaged while in the care, custody and control of Vincent. Therefore, the “care, custody and control” exclusion clearly and unambiguously operates to bar coverage as well. Further, we note that in opposition to Scottsdale’s motion for summary judgment, Vincent failed to produce factual support sufficient to satisfy his evidentiary burden at trial; i.e., that the CGL policy issued by Scottsdale afforded him coverage for the damage to the crane such that Scottsdale was required to provide Vincent with a defense. Accordingly, there was no genuine issue of material fact. Summary judgment in favor of Scottsdale was warranted.

 

CONCLUSION

 

For the above and foregoing reasons, we find no error in the trial court’s ruling granting summary judgment in favor of Scottsdale and dismissing, with prejudice, Vincent’s claims against Scottsdale. Thus, we affirm the judgment of the trial court. All costs associated with this appeal are assessed against defendant-appellant, Ricky Vincent d/b/a Tree Surgery by Ricky Vincent.

 

AFFIRMED.

 

By order of the court dated September 10, 2007, Vincent’s claims against Burns & Wilcox were dismissed, with prejudice. Subsequently, Underwriters appeared before the court, unopposed, on November 26, 2007, on a motion for summary judgment regarding Vincent’s claims. The court granted summary judgment in favor of Underwriters, thereby dismissing Vincent’s claims against Underwriters, with prejudice.

 

The original judgment in this case, which was rendered on October 16, 2008, formed the basis of a prior appeal by Vincent. However, because the October 16, 2008 judgment did not include appropriate decretal language, this court dismissed Vincent’s previous appeal and remanded the matter to the trial court for further proceedings. All Crane Rental of Georgia, Inc. v. Ricky Vincent, 2009-0118 (La.App. 1 Cir. 9/11/09) (unpublished). Subsequently, on September 14, 2009, the trial court rendered a valid final judgment, which forms the basis of the appeal currently before us.

 

This statute was renumbered from La. R.S. 22:654 by Acts 2008, No. 415, § 1, eff. Jan. 1, 2009.

 

This statute was renumbered from La. R.S. 22:631 by Acts 2008, No. 415, § 1, eff. Jan. 1, 2009.

 

This statute was renumbered from La. R.S. 10:1-202 by Acts 2006, No. 533, § 1.

United States District Court,

E.D. New York.

FEDERAL INSURANCE COMPANY, and Stark Carpet Corp. Inc., Plaintiffs,

v.

BAX GLOBAL INC. and Mainfreight, Inc., Defendants.

Mainfreight, Inc., Third-Party Plaintiff,

v.

Betty Scripps and Now Express Cartage, Inc., Third-Party Defendants.

Civil Action No. 09-CV-2739 (DGT).

 

Sept. 20, 2010.

 

MEMORANDUM AND ORDER

 

TRAGER, District Judge.

 

This action arises from a shipment of twenty-four rolls of carpet, which were damaged while en route from Rancho Santa Fe, California to Calhoun, Georgia. Federal Insurance Company (“F.I.C.”) and Stark Carpet Corp. Inc. (“Stark Carpet”) (collectively “plaintiffs”) bring this action against cargo transporters Mainfreight, Inc. (“Mainfreight”) and Bax Global, Inc. (“Bax”) (collectively “defendants”), alleging a violation of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, as well as various common law claims. Plaintiffs seek $80,606.31 in damages. Pls.’ Compl. ¶ 6.

 

These claims include, inter alia, negligence, deviation, tort, tortious interference with contract, breach of warranty and contract, and conversion. Pls.’ Compl. ¶ 4.

 

Defendants move to transfer venue to the Southern District of California pursuant to 28 U.S.C. § 1404(a). For the reasons stated below, defendants’ motion to transfer is granted.

 

Background

 

(1)

 

The Carpet Shipment

 

Betty Scripps (“Scripps”), who resides in Rancho Santa Fe, California, bought twenty-four rolls of carpet from plaintiff Stark Carpet, a Manhattan-based carpet dealer. Pls.’ Decl. in Opp’n to Defs. Mot. to Transfer (“Pls.’ Decl. in Opp’n”) at ¶¶ 8, 22. These carpets were custom-made for Scripps’ home by non-party Glen Eden Wool Carpets (“Glen Eden”), a carpet manufacturer based in Calhoun, Georgia. Id. at ¶¶ 9, 22. On or about June 25, 2008, Scripps notified Stark Carpet that she wanted to return the carpets because of a “manufacturing deficiency.” Pls.’ Exs. 6, 14. However, the precise nature of this “deficiency” remains unclear.

 

On September 3, 2009, Mainfreight filed a third-party complaint against Scripps and Now Express Cartage, Inc. See Am. Third Party Compl. Against Betty Scripps and Now Express Cartage, Inc. (“Third Party Compl.”). Scripps and Now Express have not filed any papers on the instant venue motion, nor have they answered the complaint.

 

Stark Carpet is incorporated in New York State and has a Manhattan, New York service address. Pls. Ex. 5. Plaintiff F.I.C. insured the carpet shipment at issue here and brings this action as subrogee of Stark Carpet. See Compl. ¶ 2. According to the record, plaintiff F.I.C. “is located” in Manhattan, New York as well. Pls. Decl. in Opp’n at ¶ 8.

 

On or about June 30, 2008, Stark Carpet arranged to ship the carpets from Scripps to Glen Eden through non-party ICC Logistics Services (“ICC”), a transportation and logistics consulting firm based in Hicksville, New York. Pls.’ Decl. in Opp’n ¶ 9. ICC Chief Executive Officer Anthony Nuzio (“Nuzio”) and his assistant Pat Kober (“Kober”) booked Scripps’ return shipment with defendant Mainfreight, an international transportation and logistics company. Id. at ¶ 2; Pls.’ Ex. 6.

 

At some point soon thereafter, the carpets were picked up at Scripps’ residence and loaded onto a truck by Scripps’ contact person, Bob Clapp (“Clapp”), Scripps’ forklift driver and an employee from Now Express Cartage, Inc. (“Now Express”), a local hauling company. Mainfreight Mem. of Points and Authorities in Supp. Mot. to Transfer Case Pursuant to 28 U.S.C. 1404(a) (“Mainfreight Mem. in Supp.”) at 2; Decl. Matthew T. Loesberg in Supp. Mot. Transfer (“Loesberg Decl.”) at ¶ 2. Now Express then transported the carpets from Scripps’ home in Rancho Santa Fe to Mainfreight’s warehouse in San Diego, California. Rose Decl. at 1. The carpets arrived on or about July 3, 2008, and Mainfreight issued a clean bill of lading  for the shipment.  Pls.’ Decl. in Opp’n at ¶ 11; Def. Bax’s Ex. 2.

 

Although it is unclear from the record, it appears that Mainfreight hired Now Express to transport the carpets from Scripps’ home to Mainfreight’s warehouse in San Diego, California. See Decl. of William Rose in Supp. Mot. to Transfer Case Pursuant to 28 U.S.C. 1404(a) (“Rose Decl.”) at 2.

 

“A bill of lading records that a carrier has received goods from the party that wishes to ship them, states the terms of carriage, and serves as evidence of the contract for carriage.” Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14, 18-19, 125 S.Ct. 385, 160 L.Ed.2d 283 (2004).

 

It is unclear if the carpets were received by Mainfreight on the same day that the bill of lading was issued. It is also unclear which Mainfreight employee filled out the bill of lading.

 

Now Express then transported the carpets from Mainfreight’s San Diego warehouse to the San Diego facilities of defendant Bax, an international transportation and logistics company subcontracted by Mainfreight for the shipment. Pls.’ Decl. in Opp’n at ¶ 25; Bax Reply in Opp’n to Pls.’ Letter Mot. to Compel or Sanction Defs. at 1-2, Dec. 23, 2009, ECF No.32 (“Bax Reply in Opp’n to Mot. to Compel”). After receiving the carpets in its warehouse, Bax transported them from San Diego to Atlanta, Georgia. Bax Reply in Opp’n to Mot. to Compel at 1-2. Once in Atlanta, Georgia, a local hauler transported the carpets to Glen Eden in Calhoun, Georgia. Id.

 

When the carpets were received by Glen Eden on July 11, 2008, they were severely damaged. Pls.’ Decl. in Opp’n at ¶ 11. According to a handwritten note on the bill of lading, dated July 11, 2008, the carpets were: “Dirty, some w/ holes[.] Pictures have been taken/has original packaging, never been open.”  Def. Bax’s Ex. 2; see also Pls. Ex. 14 (photographs of the damaged carpets).

 

This note was written by “C. Wells” but there is no indication in the record as to who this is. It is assumed that he or she was a Glen Eden employee.

 

Glen Eden immediately notified Don Benis (“Benis”), a Stark Carpet employee, that the carpets were damaged. Pls’ Decl. in Opp’n at ¶ 12. Benis then contacted Nuzio and Kober at ICC, the New York-based company that had originally booked the shipment with Mainfreight, to inform them of the damage. Id. At Stark Carpet’s request, Kober began an investigation on July 14, 2008 to determine exactly when, where and how the damage occurred. Id. at ¶¶ 12-13.

 

It is unclear from the record exactly what this investigation entailed. However, at the very least, this investigation included a series of inconclusive e-mails, faxes and letters, dated from July 2008 to November 2008, between the following people: Kober and Nuzio, both based in Hicksville, New York; Mainfreight employee Bob Andrews (“Andrews”), based in Greensboro, North Carolina; Mainfreight employee Ed Nowicki (“Nowicki”), based in Carolina Shores, North Carolina; Mainfreight employee Joanne Charles (“Charles”), based in Carson, California; Stark Carpet employee Rob Meistrich (“Meistrich”), based in New York, New York; and Stark Carpet employee Benis, based in Dania Beach, Florida. Pls. Exs. 7-15.

 

It seems that as part of this investigation, Kober repeatedly attempted to get information from Mainfreight on the shipment, specifically the documentation on each transfer point from Rancho Santa Fe to Calhoun. Pls.’ Decl. in Opp’n at 15-18; Pls’ Exs. 10, 15. On November 4, 2008, Mainfreight employee Charles e-mailed Kober that she could not provide her with this information but directed Kober to contact Mainfreight employees Andrews and Nowicki, stating that “they may be in a better position to provide this information.” Pls.’ Ex. 13. On November 24, 2008, Andrews wrote to Kober that: “We are not able to determine exactly where or when the damage occurred. The damage happened while the cargo was in the care of our carrier. Please file the claim with our claim department and they will take it from there.”  Pls.’ Ex. 15.

 

Although Andrews instructed Kober to file a claim in his November 24, 2008 e-mail, it appears from the record that she had already done so about a month earlier. Notably, on October 24, 2008, Kober filed a claim with Mainfreight, which stated that Mainfreight was responsible for $78,362 worth of damage to the carpets. Pls. Ex. 12. However, on November 5, 2008, Mainfreight rejected the claim, noting that “claims for lost or damaged freight must be received by Mainfreight within 90 days from the date of shipment.” Id.

 

In addition to the investigation performed by ICC, plaintiffs FIC and Stark Carpet hired Charles Williams, a Georgia-based surveyor, to assess the carpet damage at the Glen Eden factory in Calhoun, Georgia. Pls’ Decl. in Opp’n at ¶ 20. In a report dated November 25, 2008, Williams noted that the carpets could not be repaired because they were stained with grease and dock dirt and contained many cuts. Pls.’ Ex. 14. Williams also noted that the damage “was the result of careless and/or rough handling at sometime during the possession of Mainfreight, Inc.” Id.

 

(2)

 

Procedural History

 

Plaintiffs filed the instant action in the Southern District of New York on March 18, 2009, asserting a federal cause of action against plaintiffs under the Carmack Amendment, 49 U.S.C. § 14706. On June 15, 2009, Judge Deborah A. Batts sua sponte transferred the case to the Eastern District of New York pursuant to 28 U.S.C. § 1404(a), finding that “the only connections between Plaintiffs’ suit and the Southern District of New York [were] Plaintiffs’ places of business.” Order by Judge Deborah A. Batts Transferring Venue, June 15, 2009, ECF No. 8. In further support of the sua sponte transfer, Judge Batts noted that 1) both defendants were located outside of the Southern District of New York; and 2) there was no reference in the complaint to any events occurring in the Southern District of New York. Id. According to Judge Batts, venue was proper in the Eastern District of New York because Bax “may be found in Jamaica, New York.”  Id.

 

Judge Batts was likely referencing the fact that the service address listed for Bax was in Jamaica, New York. See Pls.’ Decl. in Opp’n at ¶ 5.

 

This case was opened in the Eastern District on June 26, 2009. On January 8, 2010, defendants filed a § 1404(a) motion to transfer the case to the Southern District of California in the interest of judicial efficiency and for the convenience of parties and witnesses .0

 

0. The Southern District of California includes Imperial and San Diego counties. 28 U.S.C. § 84(d).

 

Discussion

 

(1)

 

Motion to Transfer Venue

 

Section 1404(a) provides that “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).1 “The determination whether to grant a change of venue requires a balancing of conveniences, which is left to the sound discretion of the district court.” Filmline (Cross Country) Prods., Inc. v. United Artists Corp., 865 F.2d 513, 520 (2d Cir.1989).

 

1. Although defendants have moved pursuant to § 1404(a), which allows a court to transfer an action in the interests of convenience and justice, they repeatedly claim throughout their papers that New York is the improper venue for the instant action, rather than merely an inconvenient venue. See, e.g., Mainfreight Mem. in Supp. at 2, 3; Reply Brief of Bax Global Inc. in Further Supp. of Mot. to Transfer Venue Pursuant to 28 U.S.C. § 1404(a) (“Bax Reply Brief”) at 1. This is more consistent with a 28 U.S.C. § 1406(a) motion, which allows a court to dismiss or transfer an action brought in an improper venue. Section 1404(a) differs from § 1406(a) in that venue does not need to be improper for § 1404(a) to apply. However, because resolution of the transfer issue under § 1404(a) is dispositive in this case, it is unnecessary to determine whether transfer is also appropriate under § 1406(a).

 

Courts in the Eastern District of New York have adopted a two-pronged inquiry for deciding whether to grant a § 1404(a) motion to transfer. Launer v. Buena Vista Winery, Inc., 916 F.Supp. 204, 212 (E.D.N.Y.1996). “The first inquiry is whether the action sought to be transferred is one that might have been brought in the district court in which the moving party seeks to have the case litigated.” Id. at 212-13. The second inquiry asks “whether the ‘convenience of the parties and witnesses’ and the ‘interest of justice’ favor transfer.” Id. at 213. Factors that may be considered in deciding this second prong include:

 

(1) convenience of the parties; (2) convenience of witnesses; (3) relative means of the parties; (4) locus of operative facts and relative ease of access to sources of proof; (5) attendance of witnesses; (6) the weight accorded the plaintiff’s choice of forum; (7) calendar congestion; (8) the desirability of having the case tried by the forum familiar with the substantive law to be applied; (9) practical difficulties; and finally, (10) the Court should also consider how best to serve the interest of justice, based on an assessment of the totality of material circumstances.

 

Photoactive Prods., Inc. v. AL-OR Int’l Ltd., 99 F.Supp.2d 281, 291-92 (E.D.N.Y.2000). However, “[t]here is no rigid formula for balancing these factors and no single one of them is determinative.” Citigroup, Inc. v. City Holding Co., 97 F.Supp.2d 549, 561 (S.D.N.Y.2000). The moving party bears the burden to make a clear and convincing showing that a transfer is appropriate.   N.Y. Marine and Gen. Ins. Co. v. Lafarge N. Am., 599 F.3d 102, 114 (2d Cir.2010).

 

a. This Action Could Have Been Brought in the Southern District of California

 

Applying the first prong of the § 1404(a) inquiry, this action could have been brought in the Southern District of California. Specifically, under the Carmack Amendment’s special venue provision, venue is proper in California.

 

Before addressing the venue issue, however, some background on the Carmack Amendment is necessary. The Carmack Amendment imposes liability on common carriers for damages and losses to goods caused by the carrier in interstate shipment. 49 U.S.C. § 14706(a)(1). “The purpose of the Carmack Amendment was to relieve shippers of the burden of searching out a particular negligent carrier from among the often numerous carriers handling an interstate shipment of goods.” Reider v. Thompson, 339 U.S. 113, 119, 70 S.Ct. 499, 94 L.Ed. 698 (1950). Under the Carmack Amendment, the shipper, or “the person entitled to recovery under the bill of lading,” can bring suit “for the actual loss or injury to the property caused by … the delivering carrier ….” 49 U.S.C. § 14706(a)(1).2 The statute defines the “delivering carrier” as “the carrier performing the line-haul transportation nearest the destination but does not include a carrier providing only a switching service at the destination.” Id.

 

2. It is assumed that the shipment at issue here was performed via motor carrier, given that the parties repeatedly cite to § 14706(a)(1), the motor carrier liability provision of the Carmack Amendment. Indeed, in a letter filed by Mainfreight on November 17, 2009, Mainfreight conceded “that there was no air carriage involved in respect to the subject shipment.” Mainfreight Letter in Reply to Pls.’ Mot. for Pre-Mot. Conference, Nov. 17, 2009, ECF 28.

 

The Carmack Amendment has a special venue provision, § 14706(d) (1), that expressly governs any action brought under the Carmack Amendment. Sompo Japan Ins. Co. of Am. v. Yang Ming Marine Transp. Corp., 578 F.Supp.2d 584, 595 (S.D.N.Y.2008), overruled on other grounds by Rexroth Hydraudyne B.V. v. Ocean World Lines, Inc., 547 F.3d 351, 361 (2d Cir.2008); see also Meserole St. Recycling, Inc. v. CSX Transp., Inc., No. 06-CV4652, 2007 WL 2891424 at(E.D.N.Y. Sept. 28, 2007) (“Special venue provisions are typically attached to statutes providing substantive rights and are intended to control all claims brought under such statutes.”). Subsection 14706(d)(1) states that “[a] civil action … may be brought against a delivering carrier in a district court of the United States … [if it] is in a State through which the defendant carrier operates.” Thus, to establish venue pursuant to § 14706(d)(1), it must be determined who was the delivering carrier and where that delivering carrier “operates.”

 

Here, the parties dispute whether Mainfreight or Bax was the delivering carrier. Plaintiffs and Mainfreight argue that both Mainfreight and Bax were the delivering carriers, but Bax claims that only Mainfreight can be characterized as such.3 See Pls.’ Mem. of Law in Opp’n to Defs. Mot to Transfer Pursuant to 28 U .S.C. § 1404(a) (“Pls.’ Mem. in Opp’n”) at 6; Def. Mainfreight’s Reply to Pls.’ Opp’n (“Mainfreight’s Reply”) at 2; Bax Reply Brief at 2. However, regardless of whether Mainfreight or Bax was the delivering carrier, the § 14706(d)(1) venue analysis would be the same. Assuming that Mainfreight was the delivering carrier, venue would be proper in the Southern District of California because Mainfreight clearly “operates” there, as evidenced by the fact that it maintains a warehouse in San Diego. Similarly, assuming that Bax, and not Mainfreight, was the delivering carrier, venue would still be proper in the Southern District of California because Bax “operates” there, as is evident from the fact that it also maintains a warehouse in San Diego.4 Thus, either way, venue would be proper in the Southern District of California under § 14706(d)(1), and this action could have been brought there originally.5 Defendants, therefore, meet the first prong of the § 1404(a) inquiry.

 

3. According to the definition provided in § 14706(a)(1), it certainly seems that Bax was the “delivering carrier.” However, because there is some dispute on this point among the parties, this opinion will address the issue as if it is unclear.

 

4. Plaintiffs argue that because Bax “operates” in Jamaica, New York, venue is proper in the Eastern District of New York under § 14706(d)(1). This may indeed be the case. However, because this is a § 1404(a) motion, it is only necessary to decide if venue would be proper in the Southern District of California, not whether venue is improper in the Eastern District of New York. See supra n. 11.

 

5. The parties also invoke § 14706(d)(2) of the Carmack Amendment as a basis for determining venue in this case. Under § 14706(d)(2), venue is proper “against the carrier alleged to have caused the loss or damage, in the judicial district in which such loss or damage is alleged to have occurred.” However, because it is clear that venue is proper in the Southern District of California under § 14706(d)(1), it is unnecessary to address the application of § 14706(d)(2).

 

b. Convenience Factors Under a § 1404(a) Motion to Transfer

 

The second step of the § 1404(a) inquiry includes a balancing of the ten convenience factors listed above. The factors relevant to the instant motion will be addressed in turn.

 

i. Plaintiffs’ Choice of Forum

 

“Generally speaking, [a] plaintiff’s choice of forum is entitled to substantial weight and will not be disturbed lightly.” Myers v. Lennar Corp., No. 08-CV-2799, 2010 WL 1992200, at(E.D.N.Y. May 17, 2010) (internal citations omitted). However, a plaintiff’s choice is accorded less deference “where the plaintiff does not reside in the chosen forum or where there is little connection between that forum and the circumstances at issue in the litigation.” Quan v. Computer Sci. Corp., Nos. 06-CV-3927, 06-CV-5100, 2008 WL 89679, at(E.D.N.Y. Jan. 7, 2008).

 

Here, the Eastern District of New York does not reflect plaintiffs’ choice of forum, as plaintiffs originally filed this action in the Southern District of New York. Additionally, plaintiffs do not reside in this district. Of course, while the Eastern District of New York was not plaintiffs’ initial choice, it is certainly geographically closer to Manhattan than the Southern District of California. See Habrout v. City of New York, 143 F.Supp.2d 399, 401 (S.D.N.Y.2001) (“New York’s Southern District Courthouse … lies just across the East River and just over the Brooklyn Bridge from the Eastern District ….”). But even assuming that the Eastern District of New York somehow reflects plaintiffs’ choice of forum given its proximity to the Southern District of New York, there is still little connection between this district and the circumstances at issue in this case. In particular, the carpets travelled from Rancho Santa Fe, California to Calhoun, Georgia, but never passed through New York.

 

In an effort to demonstrate that there is a connection between this district and the instant action, plaintiffs point to the fact that Scripps originally ordered the carpets from Stark Carpet’s New York office. However, this action concerns the later damage to the carpets, not Scripps’ original carpet order. Therefore, plaintiffs’ choice of forum is not accorded significant weight.

 

ii. Convenience and Attendance of the Witnesses

 

“The convenience of the witnesses is probably the single most important factor in the transfer analysis.” Neil Bros. Ltd. v. World Wide Lines, Inc., 425 F.Supp.2d 325, 329 (E.D.N.Y.2006). “When assessing the convenience of witnesses, a court does not merely tally the number of witnesses who reside in the current forum in comparison to the number located in the proposed transferee forum. Instead, the court must qualitatively evaluate the materiality of the testimony that the witnesses may provide.” Herbert Ltd. P’ship v. Elec. Arts Inc., 325 F.Supp.2d 282, 286 (S.D.N.Y.2004) (emphasis added). Thus, to assess this factor here, it is necessary to first determine which witnesses might offer material testimony.

 

The central issue of this litigation concerns when and where the carpets were damaged-more specifically, whether the damage occurred prior to or during the pick-up at Scripps’ home or subsequently as the carpets were transported across California and then to Georgia. The witnesses who can possibly answer this material question are located in California and include: (1) Scripps, who can shed light on the condition of the carpets at the time she received and returned them; (2) Scripps’ assistant Clapp and her forklift driver, who can testify on the procedures they used to load the carpets on to the truck at Scripps’ home; (3) the Now Express driver, who picked up the carpets from Scripps’ home and drove them to Mainfreight’s San Diego warehouse, and can testify on the loading procedures at Scripps’ home and the receiving procedures at Mainfreight’s warehouse; and (4) the Bax employees, who received the carpets in their San Diego warehouse prior to transporting them to Atlanta.

 

Additionally, Rose, the Night Manager at Mainfreight’s San Diego warehouse, may serve as an important witness. At the very least, as the manager, Rose has knowledge of the general receiving and inspection procedures that were likely conducted upon the arrival of the carpets at the Mainfreight warehouse. Furthermore, he has stated that he is “personally familiar” with this particular shipment and may therefore provide more specific information in his testimony.6 Rose Decl. at 1.

 

6. In his declaration, Rose also identifies three other California-based Mainfreight witnesses, who are “familiar with this incident”: Sarah Pfeffer, Customer Service Representative in San Diego; Joanne Charles, Claims Supervisor in Los Angeles; and Susannah Beattic, Vice President Operations in Los Angeles. Rose Decl. at 1.

 

Plaintiffs argue that these California-based witnesses are not actually material because the damage occurred after these witnesses were involved with the shipment. More specifically, plaintiffs point to the clean bill of lading issued by Mainfreight upon its receipt of the carpets as evidence that the damage had not yet occurred when the shipment arrived at Mainfreight’s San Diego warehouse. Pls.’ Decl. Opp’n ¶¶ 23, 25, 29. However, this argument fails because a bill of lading often only notes the condition of the exterior packing. Caemint Food, Inc. v. Brasileiro, 647 F.2d 347, 352 (2d Cir.1981). “Although a clean bill of lading normally constitutes prima facie evidence that cargo was in good condition at the time of shipment, courts have long recognized that it does not have this probative force where … the shipper seeks to recover for damage to goods shipped in packages that would have prevented the carrier from observing the damaged condition had it existed when the goods were loaded.” Id.; see also The Niel Maersk, 91 F.2d 932, 933 (2d Cir.1937) (holding that a clean bill of lading on a shipment of sardines was only prima facie evidence that the external packaging was in good condition and did not necessarily demonstrate that the sardines contained inside were not spoiled). It is certainly possible that the packaging of the carpets prevented Mainfreight personnel from observing the interior damage. Indeed, when Glen Eden received the carpets about a week after Mainfreight issued the clean bill of lading, an employee wrote on the bill of lading that the carpets were in their “original packaging” and had “never been open.” See Pls. Ex. 9. Thus, Mainfreight’s issuance of a clean bill of lading hardly indicates that the damage occurred after the involvement of the California-based witnesses. 7

 

7. Plaintiffs also argue that these California-based witnesses are not material because Mainfreight has conceded that the damage occurred while the carpets were already in its custody. Plaintiffs point to the November 24, 2008 e-mail from Mainfreight employee Andrews to ICC employee Kober, which as described above, stated: “We are not able to determine exactly where or when the damage occurred. The damage happened while the cargo was in the care of our carrier.” Pls.’ Ex. 15. However, Andrews’ statement is inherently contradictory, and as such, it is stretch to say that Mainfreight has conceded liability. Additionally, as is evident from the record, the investigation into the damage was inconclusive, and Andrews may have had no basis for his statement. Moreover, Andrews’ statement is possibly inadmissible hearsay; it is unclear whether it qualifies an admission by a party-opponent under the Federal Rules of Evidence. See Fed.R.Evid. 801(d)(2)(c).

 

Plaintiffs also claim that the material witnesses are located not in California but rather in New York. Specifically, plaintiffs point to ICC employees Kober and Nuzio and Stark Carpet employees Benis and Meistrich. However, these individuals have limited to no knowledge as to when and where the damage occurred, as evidenced by their inconclusive investigation. See Pls. Exs. 7-11, 13. Although these individuals may certainly have some relevant information, the issue of where and when the damage occurred can more likely be answered by the California-based witnesses described above. Similarly, plaintiffs argue that New York-based F.I.C. employees J. Scott Scherban and Rose DePino are material witnesses because they “may have to offer testimony about the insurance coverage, claim adjustment … and payment of the claim.” Pls.’ Mem. Opp’n at 11. However, there is no evidence in the record that these individuals have any personal knowledge as to when and where the carpet damage occurred.

 

Finally, plaintiffs contend that Mainfreight employees Nowicki and Andrews are material witnesses. While they may indeed be material, Nowicki and Andrews are in North Carolina, not New York. Thus, because the majority of the material witnesses are located in California, the convenience and attendance of the witnesses strongly weighs in favor of transfer to the Southern District of California.

 

iii. Convenience of the Parties

 

Plaintiffs concede that this factor is neutral because “plaintiffs are in New York and defendants are in California.” 8 Pls.’ Mem. in Opp’n at 14. Plaintiffs are correct that “[t]he convenience of the parties becomes a neutral factor in the transfer analysis if transferring venue would merely shift the inconvenience to the other party.” IDT Domestic Telecom, Inc. v. Estrella Telecom, Inc., No. 09-CV-10436, 2010 WL 1047648, at(S.D.N.Y. Mar.19, 2010). However, the third-party defendants in this action, Scripps and Now Express, are both located in California, which adds some weight to this factor in favor of transfer.9

 

8. Despite plaintiffs’ statement that “defendants are in California,” plaintiffs also state that Bax is located in Jamaica, Queens and that Mainfreight is incorporated in New York. See Pls. Decl. in Opp’n at ¶¶ 5 and 7. Thus, it must be that their statement, “defendants are in California,” refers to the fact that Mainfreight and Bax also have offices and warehouses in California and that these were the offices and warehouses involved in the shipment at issue.

 

9. It is unclear whether this district has personal jurisdiction over Scripps or Now Express, both of whom Mainfreight has impleaded but have not yet appeared. On the other hand, the Southern District of California would certainly have personal jurisdiction over all of the parties here, including Scripps and Now Express. This issue of personal jurisdiction is reason enough to grant defendants’ motion to transfer venue. See Myers, 2010 WL 1992200, at(“The ability to implead a third party is a significant consideration on a motion to transfer.”);   Posven, C.A. v. Liberty Mut. Ins. Co., 303 F.Supp.2d 391, 406 (S.D.N.Y.2004) (“[I]t is well established that the ability to implead a third-party in the proposed transferee forum and thereby resolve related claims in a single action weighs heavily in favor of transfer.”); see also Winona Foods, Inc. v. Timothy J. Kennedy, Inc., No. 07-CV-1003, 2008 WL 2570600, at(E.D. Wis. June 26, 2008) (granting transfer of venue where there was no personal jurisdiction over defendants even though venue was technically proper under the Carmack Amendment and noting that the Carmack Amendment’s “specific venue provisions are not a substitute for personal jurisdiction-the court must still ensure at the outset that it has the power to compel the defendant to appear in its court”).

 

iv. The Locus of Operative Facts

 

Turning next to the location of events giving rise to the action, it is clear that the damage to the carpets occurred either in California, Georgia or somewhere in between. In any event, it is undisputed that the damage did not occur in this district. Although it is not clear that the damage occurred in the Southern District of California, it is also undisputed that the shipment originated there. Thus, it is, at the very least, possible that the damage at issue in this case occurred there.

 

As such, this factor weighs in favor of a transfer to California. See, e.g., Centennial Ins. Co. v. Burlington Air Exp. Inc., No. 97-CV-8512, 1998 WL 323486, at(S.D.N.Y. June 17, 1998) (granting a motion to transfer venue from the Southern District of New York to the Western District of Tennessee when the damaged shipment at issue never passed through New York but originated in Memphis).

 

v. Forum Familiar with Substantive Law

 

“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.” Merkur v. Wyndham Int’l, Inc., No. 00-CV-5843, 2001 WL 477268, at(E.D.N.Y. Mar.30, 2001). Here, because plaintiffs bring this action as a violation of federal interstate commerce law, there are no “complex questions of another state’s laws.” Accordingly, this factor does not weigh heavily in either direction.

 

Although no single factor in the § 1404(a) analysis is dispositive, defendants have met their burden to demonstrate that transfer is indicated for convenience and in the interests of justice. In particular, the convenience and attendance of the witnesses strongly weighs in favor of defendants’ transfer of venue motion.

 

Conclusion

 

For the foregoing reasons, defendants’ motion to transfer venue to the Southern District of California pursuant to 28 U.S.C. § 1404(a) is granted.

 

SO ORDERED: