United States District Court,

N.D. Texas,

Dallas Division.

FLEETCOR TECHNOLOGIES OPERATING COMPANY, LLC, Plaintiff,

v.

BULK SERVICES TRANSPORTATION, INC., and Donald Smith a/k/a Donny Smith, Defendants.

Civil Action No. 3:08-CV-0756-K.

July 7, 2009.

MEMORANDUM OPINION AND ORDER

ED KINKEADE, District Judge.

Before the Court is Plaintiff FleetCor Technologies Operating Company, LLC’s Motion for Summary Judgment (Doc. No. 27). Because there are no genuine issues of material fact, the Court GRANTS the motion and enters summary judgment for Plaintiff.

I. Factual and Procedural Background

Plaintiff FleetCor Technologies Operating Company, LLC (“FleetCor”) is a Georgia limited liability company that provides businesses a method to pay for fuel and maintenance services for their fleet vehicles. Its “Fuelman” charge cards allow customers to purchase fuel and services at locations across the country.

Defendant Bulk Services Transportation, Inc. (“Bulk Services”) is a trucking company that specializes in the transportation of bulk products. Bulk Services is based in Terrell, Texas, within this judicial district. Defendant Donald Smith (“Smith”) is Bulk Services’ president.

In May 2005, Bulk Services submitted a Fuelman credit application signed by Smith as personal guarantor. The application agreement provided that Smith, as guarantor, “unconditionally and irrevocably” guaranteed the payment and performance of Bulk Services. FleetCor approved the application and issued “access cards” to Bulk Services. The cards allowed Bulk Services employees to purchase fuel and maintenance services on credit. FleetCor sent weekly invoices for the charges, some of which went unpaid. Bulk Services contends that in the parties’ course of dealing, FleetCor allowed it to make partial payments, late payments, and to catch up on delinquencies and past-due amounts.

In June 2007, FleetCor sent a letter to Bulk Services demanding payment of $243,951.01 in overdue charges. Bulk Services sent FleetCor two checks totaling $15,000 in July and August 2007. FleetCor filed this suit in August 2007, contending that Defendants owed an outstanding balance of $232,374.83. Bulk Services suspended its operations in June 2008.

Defendants admit they owe money to Plaintiff, but dispute the amount. In its Answer (Doc. No. 15), Defendants admit they “failed to remit some of the money due and owing to Plaintiff, but denies that they owe $243,951 to Fleetcor.”Answer ¶ 11. Defendants’ response asserts that the $15,000 was not credited to Bulk Services’ account, and “there is some double billing” in Plaintiff’s calculation of the amount owed. Defendants contend that the course of dealing and performance between the parties reflects an implied contract that would allow late payments. Defendants further assert the affirmative defense of accord and satisfaction.

II. Legal Standard

Summary judgment is appropriate when the pleadings, affidavits and other summary judgment evidence show that no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party bears the burden of identifying those portions of the record it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 322-25. Once a movant makes a properly supported motion, the burden shifts to the nonmovant to show that summary judgment should not be granted; the nonmovant may not rest upon the allegations in the pleadings, but must support the response to the motion with summary judgment evidence showing the existence of a genuine fact issue for trial. Id. at 321-25; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255-57, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). All evidence and reasonable inferences must be viewed in the light most favorable to the nonmovant. United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962).

III. Analysis

A federal court must apply the substantive law of the forum state in a diversity case. Ideal Mut. Ins. Co. v. Last Days Evangelical Ass’n, 783 F.2d 1234, 1240 (5th Cir.1986). Consequently, Texas state law is controlling.

To recover for breach of contract under Texas law, a plaintiff must show (1) the existence of a valid contract; 2) that it performed or tendered performance under the contract; 3) breach of the contract by defendant(s); and 4) damages to the plaintiff resulting from the breach. See Lewis v. Bank of America N.A., 343 F.3d 540, 544-45 (5th Cir.2003) (enumerating elements under Texas law). Smith, as Bulk Services’ president, admits he signed the credit agreement, that FleetCor provided his company credit for fuel and maintenance services, and that Bulk Services failed to pay the amount in full. Thus, Defendants do not effectively dispute the elements of the claim, instead only contesting the amount of damages for which they are liable.

A. Bulk Services’ Liability

Defendant Bulk Services admits that it is liable for some outstanding balance owed to Plaintiff. Defendants have placed this amount close to $200,000, whereas Plaintiff claims it is owed exactly $232,374.83. Plaintiff’s detailed records from May 30, 2005, to August 11, 2007, support its calculation. In contrast, Defendant has provided no detailed alternative calculation and no documentation that certain charges were the result of double billing. Plaintiff has presented an analysis conducted by Defendants’ own accountant showing the $232,374.83 owed to FleetCor. Plf.’s App 26. Thus it appears that Plaintiff and Defendants agree that this was the amount owed in August 2007, when this suit was filed.

Defendants argue it was actually FleetCor that breached the agreement when it terminated Bulk Services’ ability to use the access cards in June 2007. Defendants contend the prior course of dealings and performance between the companies created an implied contract that allowed Defendants “to pay late, make partial payments, and alter the terms and conditions of the contract.”Def.’s Resp. 10. Defendants cite Tex Bus. & Comm.Code §§ 1.303, 2.207 to contend that the course of performance and course of dealing between the parties, evidenced by Plaintiff’s acquiescence to late or non-existent payments, effectively modified the express terms of the contract.

Plaintiff contends the course of dealing between the parties reflected its initial willingness to work amicably to obtain payment without resorting to more onerous measures, like terminating Defendants’ ability to use the access cards or filing a lawsuit. Plaintiff notes that it provided due dates on all statements, charged late fees, and actively sought payment in full. Defendants have provided no evidence Plaintiff acquiesced to non-payment or that either party genuinely considered the terms of the contract to be changed by implication. “[T]he express terms of an agreement and any applicable course of performance, course of dealing, or usage of trade must be construed whenever reasonable as consistent with each other. If such a construction is unreasonable express terms prevail over course of performance, course of dealing, and usage of trade.”TEX. BUS. & COMM.CODE § 1.303(e). The express terms of the contract required payment and must necessarily prevail over an unreasonable construction that would allow Defendants to forego paying the debt or to pay at its leisure. Additionally, Defendants cannot demonstrate that they performed under the contract, by paying for the services provided, as the accruing debt spiraled well above $200,000. It is clear that Defendants breached the contract by failing to pay for the debt incurred.

Defendants further assert the affirmative defense of accord and satisfaction, claiming that an October 1, 2007, statement sent to them showed the outstanding balance as zero. The statement reads: “9/27/2007 Credit: Bad Debt $232,374.83 CR.” Def.’s App. 6. Defendants contend this reflects FleetCor’s acceptance of the $15,000 as payment for the outstanding debt, or at least a portion of the debt owed. Plaintiff counters that the statement merely reflects its write-off of the bad debt from its books for accounting purposes and does not demonstrate an agreement to simply forgive the debt.

The defense of accord and satisfaction “rests upon a new contract, express or implied, in which the parties agree to the discharge of the existing obligation by means of the lesser payment tendered and accepted.” Jenkins v. Henry C. Beck Co., 449 S.W.2d 454, 455 (Tex.1969) (citing Industrial Life Ins. Co. v. Finley, 382 S.W.2d 100 (Tex.Sup.1964)).

The evidence must establish an assent of the parties to an agreement that the amount paid by the debtor to the creditor was in full satisfaction of the entire claim. The minds must meet and where resting in implication the facts proved must irresistibly point to such conclusion. There must be an unmistakable communication to the creditor that tender of the lesser sum is upon the condition that acceptance will constitute satisfaction of the underlying obligation. It has been said that the conditions must be made plain, definite and certain; that the statement accompanying the tender of a sum less than the contract price must be so clear, full and explicit that it is not susceptible of any other interpretation; that the offer must be accompanied with acts and declarations which the creditor is “bound to understand.”

Jenkins, 449 S.W.2d at 455 (internal citations omitted).“[W]ithout additional consideration, a debtor’s part-payment of a liquidated debt does not constitute an accord and satisfaction, even if the creditor and debtor agree that the debt is thereby discharged .” Long v. Turner, 134 F.3d 312, 316 (5th Cir.1998). Additionally, “a write-off of a debt on the creditor’s books is an accounting practice that does not of itself amount to a discharge or release of the debt.”Id.

As evidence of its payments to FleetCor, Defendants have provided two check stubs totaling $15,000. Def.s’ App. 7-8. Yet Plaintiff’s documentation shows that it credited Defendant with two check payments totaling $15,000, corresponding to the dates of the checks in July and August 2007. A review of Plaintiff’s accounting shows this amount was credited to Defendants’ account and therefore subtracted from the Plaintiff’s calculation of Defendants’ outstanding balance. The zero-balance statement was sent after the filing of the instant lawsuit and expressly notes that the amount was considered “bad debt.” As such, it cannot amount to a discharge or release. See Long, 134 F.3d 316.

Thus, there was no additional consideration provided by Defendant, and no assent by the parties to an agreement that payment of the $15,000 would satisfy the entirety of the debt. Other than the two check stubs, Defendants have provided no documentation as to additional payments nor any sworn statements attesting to when such payments were made or how much the payments totaled. Defendants have provided no cancelled checks, bank statements, or other documentation that would create a fact issue. Thus, Defendants have wholly failed to produce evidence that would raise a genuine issue of material fact, and summary judgment is appropriate for Plaintiff.

B. Smith’s Personal Liability

Plaintiff seeks to hold Smith, Bulk Services’ president, personally liable for the debt. Plaintiff points to the terms of the credit agreement, which Smith signed as a personal guarantor for Bulk Services’ payment of debts incurred.

Defendant Smith has contended that he is not personally liable because FleetCor actually breached the agreement, the zero-balance statement of October 2007 constitutes an accord and satisfaction, and because gas companies, like FleetCor, were price gouging. Smith has further contended that a handwritten notation of a $135,000 credit limit on the application limits his liability to no more than that amount.

Because the Court has found that FleetCor did not breach the agreement and the zero-balance statement does not demonstrate accord and satisfaction, the first two arguments are inapplicable. Further, Smith’s belief that FleetCor was price gouging is supported by no evidence and appears wholly irrelevant to his personal liability for the debt incurred.

Turning to the $135,000 notation, Plaintiff contends that it was simply a proposed internal credit limit for Bulk Services purchases. Plaintiff notes that it was in a below-the-line section marked for “office use only,” and FleetCor never sent any information to Bulk Services or Smith showing a credit limit on the account. Plaintiff’s accounting shows Bulk Services had outstanding debt of more than $135,000 in June 2005-within a month of the company commencing use of the Fuelman cards. There is no indication that Smith ever saw the notation prior to this litigation, and it was not part of the contract to which he agreed. Thus, summary judgment is appropriate for Plaintiff, and Smith is personally liable as guarantor of the debt.

IV. Conclusion

For the foregoing reasons, the Court GRANTS Plaintiff’s motion for summary judgment against Defendants Bulk Services and Donald Smith. The Court will consider FleetCor’s request for attorneys’ fees if filed as a separate motion. Accordingly, the Court will enter a separate judgment for Plaintiff FleetCor in the amount of $232,374.83 plus attorneys’ fees, costs, and interest, if any.

SO ORDERED.

N.D.Tex.,2009.

Fleetcor Technologies Operating Co., LLC v. Bulk Services Transp., Inc.

Slip Copy, 2009 WL 1953036 (N.D.Tex.)

END OF DOCUMENT

United States District Court,

S.D. New York.

FIREMAN’S FUND INSURANCE COMPANY, Plaintiff,

v.

PERSONAL COMMUNICATIONS DEVICES, LLC, Defendant.

No. 09-cv-1349 (SHS).

July 8, 2009.

OPINION & ORDER

SIDNEY H. STEIN, District Judge.

This action stems from the October 2008 theft of more than $7.5 million worth of wireless communications devices from defendant Personal Communications Devices (“PCD”) while in transit from PCD’s California warehouse to Kentucky. In February 2009, plaintiff Fireman’s Fund Insurance Company, which issued PCD an “Ocean Marine Cargo Policy” effective during the time of the theft, filed this suit seeking a declaratory judgment that it has no duty to pay pursuant to the policy it issued because PCD breached several provisions of that policy.

PCD now seeks transfer of this action to the Central District of California “for the convenience of parties and witnesses, in the interest of justice” pursuant to 28 U.S.C. § 1404(a). It contends that all of the relevant facts giving rise to this action occurred in California, that all of the most relevant trial witnesses and evidence are in California, and that this case is substantially related to two other suits currently pending in the Central District of California.

Fireman’s opposes transfer, arguing that the relevant policy was negotiated, written, and issued in New York and, accordingly, that the Southern District of New York is the most appropriate forum for resolving disputes about that policy’s coverage. Fireman’s also contends that New York courts are best positioned to adjudicate this case because, it contends, New York law will apply.

Motions for change of venue pursuant to section 1404(a) are governed by a well established nine-factor test, one that encompasses the convenience of the parties and witnesses, the locus of the operative facts giving rise to the suit, and the familiarity of the court with the governing law. See, e.g., Bristol-Myers Squibb Co. v. AndRX Pharm., LLC, No. 03 Civ. 2503, 2003 U.S. Dist. LEXIS 21967, at(S.D.N.Y. Dec. 4, 2003). Applying that test, the Court concludes that the action should be transferred to the Central District of California “for the convenience of parties and witnesses, in the interest of justice.”Accordingly, PCD’s motion for transfer pursuant to 28 U.S.C. § 1404(a) is granted.

I. BACKGROUND

The following facts are drawn from plaintiff’s complaint and the parties’ declarations and accompanying exhibits submitted in support of the present motion:

Fireman’s is an insurance company licensed to do business in New York and with principal place of business in California. (Am.Compl.¶¶ 1-2.) PCD is a telecommunications company in the business of selling communications products to wireless carriers and other customers throughout North and South America. (Decl. of Neil Levine dated June 1, 2009 (“Levine Decl.”) ¶ 4.) PCD is a Delaware corporation with principal place of business in New York. (Am.Compl.¶ 3.)

On or about July 31, 2008, plaintiff prepared a final “binder of insurance”  for PCD bearing policy number OC-96525900 with coverage attaching on July 1, 2008. (Id. ¶ 15; Ex. 1 to Am. Compl. at 1; Ans. ¶ 15.) The policy was negotiated in New York between a broker working on PCD’s behalf, Wells Fargo Insurance Services of New York, and Fireman’s New York office. (Am. Compl. ¶¶ 10-14.) The policy contained two requirements of particular relevance to this dispute: first, the policy provided that any shipments of PCD wireless devices worth $2.5 million or more must have “two drivers for the duration of the journey.”(Id. ¶ 35.)Second, the policy expressly limited Fireman’s liability to “$5,000,000 per any one truck or truck/trailer.”(Id. ¶¶ 45-46.)

“[A]n insurance binder is a temporary or interim policy [in place] until a formal policy is issued.” Springer v. Allstate Life Ins. Co., 94 N.Y.2d 645, 649 (2000); see also Black’s Law Dictionary 190 (9th ed.2009) (defining insurance binder as “[a]n insurer’s memorandum giving the insured temporary coverage while the application for an insurance policy is being processed or while the formal policy is being prepared”).

On or about October 3, 2008, a tractor-trailer carrying $7,692,149.60 worth of PCD wireless devices was stolen from a cargo holding facility in Santa Ana, California. (Id. ¶¶ 22, 28-31.)PCD had previously retained a third-party contractor, Platinum Cargo Logistics, to transport the shipment from PCD’s Brea, California facility to PCD customers in Kentucky. (Id. ¶¶ 20-21.)Platinum Cargo in turn hired third-party contractor Celestial Freight Solutions, which provided the tractor-trailor and drivers to transport the merchandise from Platinum Cargo’s California facility to Kentucky. (Id. ¶¶ 24-25; Supplemental Decl. of John T. Wolak dated June 1, 2009, ¶¶ 8-9.) According to the amended complaint, despite the requirements of the policy, the truck never had more than one driver on board, and that sole driver left the truck parked and unattended the night the theft occurred. (Id. ¶¶ 27-30.)

After the theft, PCD promptly notified Fireman’s of the loss and made a claim under the policy. (Id. ¶ 32.)On December 15, 2008, Fireman’s denied that claim, contending that the truck had only one driver and that the one driver had left the truck unattended at the time of the theft in violation of the policy. (Id. ¶¶ 35, 38-43.)Fireman’s also argued that because the loss exceeded the policy’s $5 million limit on single-conveyance liability, even if PCD were entitled to coverage for the loss in question, Fireman’s liability could not exceed $5,000,000, less the $500,000 per occurrence deductible.(Id. ¶¶ 47-48.)

In February 2009, Fireman’s commenced this action in the Southern District of New York seeking a declaratory judgment that it had no duty to insure PCD under the policy, but, if it did, that its duty to insure did not extend beyond the policy’s $5 million single-conveyance limit. PCD has counter-claimed for a declaratory judgment that Fireman’s does have a duty to insure it for the loss and seeking damages for breaches of contract and the duty of good faith arising from Fireman’s investigation and denial of the claim. The parties now dispute whether the case should proceed in New York where the policy was negotiated and issued, or in the Central District of California where the loss triggering the insurance claim occurred.

II. DISCUSSION

A. 28 U.S.C. § 1404(a)

Section 1404(a) authorizes transfer “for the convenience of parties and witnesses” and “in the interest of justice” to “any other district or division where it might have been brought.”28 U .S.C. § 1404(a). The section gives courts discretion to transfer cases based on “an individualized, case-by-case consideration of convenience and fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988); In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992) (“Motions for transfer lie within the broad discretion of the district court.”).

In order to prevail on a motion for transfer pursuant to section 1404(a), the moving party bears the burden of establishing that the convenience of parties and witnesses and the interests of justice will be better served by transfer to another forum. See Toy Biz, Inc. v. Centuri Corp., 990 F.Supp. 328, 330 (S.D.N.Y.1998); Christina Canada Inc. v. Wior Corp., 702 F.Supp. 461, 464 (S.D.N.Y.1988).“That burden is heavy: ‘unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.’ “ Id. at 463 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501,508(1947)).

A prerequisite to transfer pursuant to section 1404(a) is a finding that there is another forum available where the action “might have been brought.” 28 U.S.C. § 1404(a); Alfadda v. Fenn, 159 F.3d 41, 44 (2d Cir.1998)). Here, that requirement is met-no party disputes that the Central District of California has jurisdiction over the case and parties, and venue would be proper as a “substantial part” of the events giving rise to this litigation occurred there. 28 U.S.C. § 1391(a)(2).

B. The Governing Nine-Factor Test

Having so found, a court evaluating a section 1404(a) transfer motion considers at least nine factors: (1) the locus of the operative facts; (2) the convenience of the witnesses; (3) the location of relevant documents and the relative ease of access to sources of proof; (4) the convenience of the parties; (5) the availability of process to compel attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum’s familiarity with the governing law, (8) the weight accorded a plaintiff’s choice of forum; and (9) trial efficiency and the interests of justice based on the totality of the circumstances. See Royalty Ins. Co. of Am. v. Tower Records, Inc., No. 02 Civ. 2612, 2002 U.S. Dist. LEXIS 20109, at * 7-8 (Oct. 22, 2002); see also United States v. Nature’s Farm Prods., 2004 U.S. Dist. LEXIS 8485, at *10-11 (S.D.N .Y. May 13, 2004).

“There 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). Instead, as noted above, weighing the balance “is essentially an equitable task” left to the Court’s discretion. Id. (quoting First City Nat’l Bank & Trust Co. v. Simmons, 878 F.2d 76, 80 (2d Cir.1989)). The Court thus considers each factor in turn.

1. Locus of Operative Facts

The locus of operating facts is a “primary factor” in evaluating a motion to transfer pursuant to section 1404(a), Mattel, Inc. v. Procount Bus. Svcs., No. 03 Civ. 7234, 2004 U.S. Dist. LEXIS 3895, at * 9 (S.D.N.Y. Mar. 10, 2004), because it helps the court identify a suit’s “center of gravity,” and thus, where it should properly proceed. Foothill Capital Corp. v. Kidan, No. 03 Civ. 3976, 2004 U.S. Dist. LEXIS 3634, at(S.D.N.Y. Mar. 8, 2004) (citation omitted).

Here, the parties dispute the nature of the suit itself and therefore the makeup of its “operative facts” and the location from which it “arises.” As Fireman sees it, the dispute is one of policy construction and interpretation, and since the policy was negotiated and issued in New York, they assert New York is the locus of the operative facts and the site of the essential evidence. Cf. Am. S.S. Owners Mut. Pro. & Indem. Ass’n v. Lafarge N. Am., 474 F.Supp.2d 474, 485 (S.D.N.Y 2007) (where suit centers on “insurance coverage issues, the locus in question is the site of the execution of the contract, not the location of the incident triggering the claim”).

By contrast, as PCD sees it, the litigation does not turn on construction of the policy but rather on a factual dispute as to whether the provisions of that policy were actually violated. Accordingly, it contends the operative facts, evidence, and witnesses are in all California, where the loss took place. Cf. Avemco Ins. Co. v. GSF Holding Corp., No. 96 Civ. 8323, 1997 U.S. Dist. LEXIS 13716, at (S.D.N.Y. Sept. 11, 1997) (“In determining the locus of operative facts, a court must look to the site of events from which the claim arises.”(citation omitted)).

Defendants have the stronger argument. As presented thus far, the case turns not on legal questions related to interpretation of an ambiguous policy but rather on factual disputes about whether PCD violated the terms of that policy. For example, while Fireman’s alleges that recovery is precluded because the shipment had only one driver, PCD contends that-to the best of its knowledge-two drivers were with the shipment, or supposed to be with it, at all times. (Am. Compl. ¶ 27; Ans. ¶ 27.) Similarly, while Fireman’s contends the shipment was left unattended in violation of the policy, PCD disputes any knowledge of, or responsibility for, that fact. (Am. Compl. ¶ 29; Ans. ¶ 29.).

By contrast, neither party appears to dispute the meaning of any of the relevant provisions. Accordingly, while Fireman’s correctly notes that in an “action concerning the interpretation of an insurance policy contract, [a court] consider[s] where the insurance contract was made,” Indian Harbor Ins. Co. v. Factory Mut. Ins. Co., 419 F.Supp 2d 395, 405 (S.D.N.Y.2005) (emphasis added), policy interpretation is not the core of the dispute in this case.

The Court therefore finds that the locus of operative facts rests in California where the truck and truck drivers were hired, the wireless devices loaded and transported from PCD’s warehouse, the truck allegedly left unattended, and the merchandise ultimately stolen. The first factor thus weighs in favor of transferring this action to California.

Fireman’s contends PCD’s counterclaims, which include breach of contract claims, should also considered and moreover that those counterclaims support Fireman’s theory of the case and weigh against transfer. However, it is well established that “the focus of a court’s inquiry in deciding a motion to transfer under § 1404(a) is on the action as filed and not on the counterclaims interposed by the party seeking transfer.”NBA Props., Inc. v. Salvino, Inc., 99 Civ. 11799, 2000 U.S. Dist. LEXIS 3799, at n. 2 (S.D.N .Y. Mar. 27, 2000) (collecting authorities).

2. Convenience of the Witnesses

Evaluation of the second factor-which some courts view as “the single most important factor,” see Lynch v. Nat’l Prescriptions Adm’rs., No. 03 Civ. 1303, 2004 U.S. Dist. LEXIS 3134, at(S.D.N.Y. Mar. 1, 2004)-requires the parties to identify the witnesses to be called and the testimony those witnesses are likely to offer. See Royalty Ins. Co., 2004 U.S. Dist. LEXIS 20109, at *13. Where, as here, both parties identify witnesses for whom their proposed venue is more convenient, the Court evaluates the materiality of the testimony to be offered by each party’s witnesses in resolving this first factor. Indian Harbor, 419 F.Supp.2d at 403.

Here, PCD contends all of the relevant non-party witnesses to the loss are in California and identifies sixteen specific such witnesses, including the two truck drivers and others involved in loading and handling the truck before the theft. (Supplemental Decl. of John T. Wolak dated June 1, 2009, ¶¶ 6-22.) By contrast, Fireman’s contends all of the witnesses with knowledge of the negotiation and issuance of the policy are in New York and accordingly the witnesses with the most material testimony would be inconvenienced by the transfer.

As noted, the primary issues in dispute in this litigation are factual ones relating to the loss, including whether one or two drivers were assigned to transport PCD’s merchandise, whether one or two drivers actually accompanied the truck at all times, and whether PCD knew of or had responsibility for the value of the goods being transported. Accordingly, the witnesses with the most significant testimony are all in California and would therefore be significantly inconvenienced by a trial in New York. The second factor, thus, also weighs in favor of PCD and its motion for transfer.

3. Location of the Relevant Documents and the Relative Ease of Access to Sources of Proof

For similar reasons, the third factor also weighs slightly in favor of PCD and transfer. While absent a showing of significant burden, this third factor is generally “entitled to little weight” in this “era of photocopying, fax machines and Federal Express,”Bristol-Myers, 2003 U.S. Dist. LEXIS 21967, at(citation omitted); see also Constitution Reinsurance Corp. v. Stonewall Ins. Co., 872 F.Supp. 1247, 1251 (S.D.N.Y.1995), PCD correctly argues that the majority of the documents and evidence most relevant to the issues in dispute-including police reports, witness accounts, and other evidence pertaining to the theft-are in California. Accordingly, while not a significant factor, it nonetheless weighs slightly in favor of transfer. See e.g., Nature’s Farm Products, 2004 U.S. Dist. LEXIS 8485, at *14; see also Matra et Manurhin v. Int’l Armament Co., 628 F.Supp. 1532, 1534 (S.D.N.Y.1986).

4. Convenience of the Parties

In considering the convenience of the parties, “the logical and relevant starting point is a consideration of the residence of the parties.”Nature’s Farm Prods., 2004 U.S. Dist. LEXIS 8485, at (quoting Wine Markets Int’l v. Bass, 939 F.Supp. 178, 182 (E.D.N.Y.1996)). Here, plaintiff’s principal place of business is California. And while PCD is a New York company, it has California operations-including those relevant to this dispute-and seeks transfer there for its convenience and the convenience of its witnesses. The Court acknowledges that Fireman’s contends that its New York office issued the policy, and thus, under Fireman’s theory of the case, New York is most convenient for it and its employees. However, the Court is unwilling to conclude that transferring this suit to Fireman’s home district would be inconvenient.This factor, therefore, is neutral.

5. Availability of Process to Compel Attendance of Unwilling Witnesses

Both parties contend they will rely on the testimony of non-party witnesses whose attendance they may be unable to compel in the other party’s selected forum. Cf. TM Claims Svc. v. KLM Royal Dutch Airlines, 143 F.Supp.2d 402, 406 (S.D.N.Y.2001) (finding that the availability of process is only a factor as to third-party witnesses). For example, Fireman’s points to the insurance brokers involved in negotiating the policy-all of whom are based in New York-while PCD argues that all of the witnesses to the loading and transport of the cargo-including the truck drivers-are based in California and are not PCD employees and thus could not be compelled to appear in a New York courtroom.

The actual likelihood that either party would have significant difficulty compelling the presence of these witnesses-virtually all of whom work for companies the relevant party has an outstanding business relationship with-is not clear on this record. However, since the Court has already found that PCD’s non-forum witnesses are likely to offer more materially relevant testimony to the issues in dispute in this litigation, to the extent the Court deems this factor relevant, it tips slightly in favor of PCD and transfer.

6. Relative Means of the Parties

Where both parties are corporations with ample resources, the relative means of the parties is not a significant factor. See Royalty Ins. Co., 2002 U.S. Dist. LEXIS 20109, at (“[R]elative means of the parties is entitled to little weight where both parties are corporations.”) Here, neither party contends that it lacks the means to pursue this case in either forum, and accordingly, the Court finds it to be a neutral factor. Cf Federman Assocs. v. Paradigm Med. Indus., Inc., No. 96 Civ. 8545, 1997 U.S. Dist. LEXIS 23685, at(S.D.N.Y. Apr. 8, 1997) (factor not considered absent documentary proof as to economic hardship that flow to either party).

7. Forum’s Familiarity with the Governing Law

While a court’s familiarity with the governing law is “not generally considered a highly significant” factor, Hernandez v. Graebel Van Lines, 761 F.Supp. 983, 991 (E.D.N.Y.1991) (citing Vassallo v. Niedermayer, 495 F.Supp. 757, 760 (S.D.N.Y.1980)), giving it any weight is difficult here because the parties dispute whether New York or California law should govern this action. However, as noted above, the action turns on factual disputes, not significant legal questions, and moreover, the legal questions presented are neither novel nor complex. Accordingly, the Court finds this to be a neutral factor, as both New York and California courts could readily apply either state’s law in the context of this dispute. See Schwartz v. Marriott Hotel Svcs., Inc., 186 F.Supp.2d 245 (E.D.N.Y.2000) (“Where an action does not involve complex questions … courts … accord little weight to this factor on a motion to transfer.”).

Finally, insofar as the parties’ choice-of-law dispute remains unresolved, no party will be prejudiced by a transfer because “[f]ollowing [a section 1404(a) ] transfer, the transferee court must follow the choice-of-law rules that prevailed in the transferor court.” Fin. One Pub. Co. v. Lehman Bros. Special Fin. Inc., 414 F.3d 325, 333 (2d Cir.2005) (quoting Ferens v. John Deere Co., 494 U.S. 516, 519 (1990)).

8. Weight Accorded a Plaintiff’s Choice of Forum

As a general rule, “attention must always be paid” to the plaintiff’s choice of forum, and “unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”Nature’s Farm Prods., 2004 U.S. Dist. LEXIS 8485, at (citations omitted). However, “the emphasis that a court places on a plaintiff’s choice of forum diminishes where … the facts giving rise to the litigation bear little material connection to the chosen forum.” Fontana v. E.A.R., 849 F.Supp. 212, 215 (S.D.N.Y.1994).

Here, as discussed at length above, New York has “a substantially weaker connection to the operative facts of the litigation than the proposed transferee forum does.”Nature’s Farm Prods., 2004 U.S. Dist. LEXIS 84845, at *20. Accordingly, Fireman’s choice of New York does not weigh heavily against transfer. Cf. Ayala-Branch v. TAD Telecom, Inc., 197 F.Supp.2d 13, 14 (S.D.N.Y.2002) (transfer appropriate where “the operative facts have few meaningful connections to the plaintiff’s chosen forum”).

9. Trial Efficiency and the Interests of Justice

While both parties generally aver that their desired forum would better foster judicial economy and the interests of justice, PCD is able to point to the existence of two related suits currently pending in the Central District of California by way of establishing the heightened efficiency of proceeding there. Cf. LTV Steel Co. v. City of Buffalo, 2002 U.S. Dist. LEXIS 5318 at (S.D.N.Y. Mar. 29, 2002) (“The existence of related litigation in the transferee court strongly supports a motion to transfer.”(citations omitted)).

By way of response, Fireman’s contends the suits in California do not weigh in favor of transfer because they raise different factual and legal issues. The argument is without merit: even a cursory review of the complaints reveals that the suits are undeniably “related” insofar as they stem from the same loss and involve many of the same parties involved directly or indirectly in this action. One action involves PCD and Platinum Cargo, which retained Celestial Freight Solutions-the employer of the truck drivers used in this loss and likely to testify in this action-to transport the cargo at issue in this action and seeks “a determination concerning the limit of Platinum Cargo’s liability, if any, for the loss.”(Compl. ¶ 3, Navigators Ins. Co. a/s/o Platinum Cargo Logistics, Inc. v. Pers. Commc’ns Devices, LLC, No. 09-cv-455 (C.D.Cal. Apr. 13, 2009), Ex. A to Decl. of John T. Wolak dated May 1, 2009.)

Similarly, the second action, filed by PCD against Platinum Cargo, Celestial Freight, and two individuals defendant identifies as the drivers of the truck “seeks to recover damages [PCD] suffered” from a “loss that occurred on or about October 2, 2008, involving the theft of … wireless communication devices” with “a value of $7,692,149.60” (Compl. ¶¶ 8-9, Personal Commc’ns Devices, LLC v. Platinum Cargo Logistics, et al., No. 09-cv-516 (C.D.Cal. May 1, 2009), Ex. 4 to Decl. of John A.V. Nicoletti dated May 22, 2009.)

While the complaint does not provide any additional information about the two individuals it names, Thuong Truong and Lai Dang, defendants have identified each as an “employee of Celestial Freight Solutions” and as “one of two drivers who were responsible for transporting the shipments of PCD’s wireless communication devices.”(Supplemental Decl. of John T. Wolak dated June 1, 2009, ¶¶ 8-9.)

All three actions, therefore, stem from the same loss and involve overlapping issues, witnesses, and evidence. Transferring the case to the Central District of California, thus, will promote judicial economy by allowing one court to oversee three litigations raising intertwined factual and legal issues and will avoid the duplicative work that would ensue if this matter remained in the Southern District of New York. This final factor therefore weighs in favor of transfer.

III. CONCLUSION

Having evaluated each of the nine relevant factors, and having found that each of them is either neutral or weighs in favor of transfer, the Court concludes that PCD has met its burden and that transfer of this action is warranted. Accordingly, defendant’s motion for transfer of this action to the Central District of California pursuant to 28 U.S.C. § 1404(a) is granted.

SO ORDERED.