Bits & Pieces

Forest Technologies Export, Inc. v. A.P. Moeller-Maersk A_S

United States District Court,

S.D. Texas.




Civil Action No. H-07-300.


March 12, 2009.


LYNN N. HUGHES, District Judge.


1. Background.


Forest Technologies Export, Inc., moved for new trial, saying that (a) Savannah was not congested by Hurricane Katrina; (b) the routes and times proposed by A.P. Moeller-Maersk A/S were unreasonable; and (c) the court did not notify Forest that it would rule on issues other than the carriage of the ninety containers.


2. Congestion.


Evidence in the record that Savannah’s port was congested from the hurricane’s dislocation to trade was undisputed. For example, the corporate representatives of Forest had testified that the hurricane caused a delay in traffic of their cargo from New Orleans. Also in Forest’s e-mails to its customers about the delay, its managers wrote that “the vessels are very full because of the hurricane problems,” as well as, “due to Katrina, we need to divert some of our tonnages from New Orleans.”While these do no say Savannah was congested, Forest did not dispute that Savannah was busier than usual. In response to a court order, Forest did not supply a basis for doubting Savannah’s high usage.


3. Deviations.


The parties did not fix a rate, select a date or time, or choose a vessel for Savannah. Maersk did not issue a bill of lading to carry Forest’s ninety containers. Maersk only offered to carry them when it was reasonable-retaining its right to roll bookings by substituting vessels and times. When Maersk chose to carry Forest’s cargo either on an indirect route or in a different month, Forest rejected it simply because it did not like Maersk’s conditions-not because they were unreasonable.


When afforded another opportunity to demonstrate if Maersk’s deviations were unreasonable, Forest supplemented the record with excerpts of voyages from the port of Charleston to show Maersk carried some containers for other companies during October and November of 2005. Because Forest does not know how much Maersk was contractually obliged to carry or by when with those companies, the excerpts mean nothing. Further, Maersk has never said it did not carry cargo after Katrina; it carried 53 containers from Savannah and 270 from Houston for Forest in October and November of 2005.


Further still, even if the other companies had identical space reservations to Forest’s, the port congestion of Charleston was never raised, only Savannah’s. Forest’s supplement only illustrates that Maersk could have accommodated Forest by carrying the containers on a less direct route-even if it was from Charleston, a port one hundred miles farther from Central America, and to no avail, Forest would have and did reject Maersk’s alternative.


Nothing Forest has supplied in its response after being ordered or even from the inception of the case has shown that Savannah was not congested. In essence, Forest did not dispute this basis in good faith.


4. Notice.


The only question for final decision in this case is what was Maersk contractually obliged to carry, if anything. The hurricane’s dislocation to trade during the months in question as well as the issue of Maersk’s obligation for fixed rates under the service contract are inextricably linked in ascertaining if Maersk was obliged to carry Forest’s ninety containers. By submitting its bookings plus e-mails and depositions of its representatives on the hurricane’s effect to its cargo, Forest itself submitted all facets of Maersk’s contractual obligation.


More important, Forest never articulated in its motion for new trial what supporting facts it had to change the outcome if given another opportunity to respond. Having no just reason for delay, the court disposed of the case.


5. Conclusion.


The motion for new trial of Forest Technologies Export, Inc., will be denied.



Forest Technologies Export, Inc. v. A.P. Moeller-Maersk A/S

Slip Copy, 2009 WL 649567 (S.D.Tex.)



Federal Ins. Co. v. Custom Expedite LLC

United States District Court,

S.D. New York.

FEDERAL INSURANCE COMPANY, a/s/o Metalex Manufacturing, Inc., Plaintiff,


CUSTOM EXPEDITE LLC and Custom Delivery, Inc., Defendants.

No. 08 Civ. 6149(RJS).


Feb. 24, 2009.




RICHARD J. SULLIVAN, District Judge.


Plaintiff Federal Insurance Company (“Plaintiff” or “Federal”), as subrogee of Metalex Manufacturing, Inc. (“Metalex”), brings this action against Defendants Custom Expedite LLC and Custom Delivery, Inc. (collectively, “Defendants” or “Custom”), alleging a violation of the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706, as well as common law claims under theories of bailment and negligence. Before the Court is Defendants’ motion to transfer venue pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, Defendants’ motion is granted.




Metalex hired Defendants to transport a rocket nozzle assembly from Cincinnati, Ohio to Hampton, Virginia. (Compl. ¶ 5; Pl.’s Mem. at 2.) During shipment by Defendants, on July 6, 2006, an accident near Institute, West Virginia damaged the nozzle. (Compl.¶ 12.) Plaintiff brought this suit seeking to recover the relevant monetary losses from the damaged cargo.


Plaintiff filed its Complaint on July 3, 2008. On October 28, 2008, Defendants filed a motion to transfer venue to the Southern District of Ohio pursuant to 28 U.S.C. § 1404(a). Plaintiff filed an opposition brief on November 18, 2008, and Defendants replied on December 9, 2008.




Section 1404(a) provides that “[f]or 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). Motions for transfer lie within the broad discretion of the district court, and the court is to exercise that discretion with reference to notions of convenience and fairness on a case-by-case basis. D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 106 (2d Cir.2006) (citing In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir.1992)). The burden of demonstrating that the action should be transferred to another District lies with the moving party. Id.


In considering a § 1404(a) motion, a court must determine first whether the case could have been brought in the proposed transferee district. Reliance Ins. Co. v. Six Star, Inc., 155 F.Supp.2d 49, 56 (S.D.N.Y.2001). The Court must then determine whether transfer is appropriate. D.H. Blair, 462 F.3d at 106. Factors informing that decision (the “Transfer Factors”) include: “(1) the plaintiffs’ choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, and (7) the relative means of the parties.” Id. at 106-07.


Here, because jurisdiction is premised on a federal question under the Carmack Amendment and because a substantial part of the events surrounding the shipment at issue occurred in and around Ohio, the action could have been brought in the Southern District of Ohio. 28 U.S.C. § 1391(b)(2); (Compl.¶ 3.) Accordingly, the analysis proceeds to a balancing test. Applying the seven factors listed in D.H. Blair, the Court finds that Defendants have met their burden in establishing that the suit should be transferred.


First, information pertaining to potential witnesses and evidence (Transfer Factors 2, 3, 4, 6, 7) weighs heavily in favor of transfer. Numerous courts have held that “[c]onvenience of both the party and non-party witnesses is probably the single-most important factor in the analysis of whether transfer should be granted.” Fuji Photo Film Co. v. Lexar Media, Inc., 415 F.Supp.2d 370, 373 (S.D .N.Y.2006) (citing Berman v. Informix Corp., 30 F.Supp.2d 653, 657 (S.D.N.Y.1998) (internal citations omitted)). And often “[t]he convenience of non-party witnesses is accorded more weight than that of party witnesses.” Indian Harbor Ins. Co. v. Factory Mut. Ins. Co., 419 F.Supp.2d 395, 402 (S.D.N.Y.2005).


Defendants contend, without objection from Plaintiff, that to make out a valid claim for relief, Plaintiff must show (1) the condition of the cargo at its origin, (2) its condition at the destination, and (3) damages suffered. (Defs.’ Mem. at 4.) Defendants argue that proof for each element requires witnesses-including many non-party witnesses-and evidence that is located primarily in Ohio. With respect to the first element, testimony and evidence about the original condition of the cargo will likely come from two sources-employees and former employees of Metalex and Custom, including the driver, who were responsible for loading the cargo and for transporting it. All of these witnesses are in Ohio. (Id. at 5; Aff. of Barry N. Gutterman (“Gutterman Aff.”) ¶ 5.)


Similarly, with regard to the second element-the condition of the cargo at the destination-the primary witness will likely be the driver, who is an Ohio resident. Moreover, five of the seven individuals identified on the police accident report are also Ohio residents. (Defs.’ Mem. at 6; Gutterman Aff. ¶ 6.)


Finally, on the third element of Plaintiff’s claim-damages-it is likewise the case that many of the witnesses expected to testify are also located in Ohio. For example, the cost of actual repairs to the nozzle are critical to the damages calculations in this matter. (Defs.’ Reply Mem. at 5.) Significantly, Plaintiff’s independent adjuster who inspected the cargo and twenty-three Metalex employees who worked on the repair are all located in Ohio. (Defs.’ Mem. at 6; Defs.’ Reply Mem. at 5-6; Gutterman Aff. ¶ 7.)


Witnesses and evidence weighing against transfer are sparse. Plaintiff cites two groups of potential witnesses and documents in and around New York. First, Plaintiff points to three Federal employees “in the tri-state area.” (Pl.’s Mem. at 2.) Angela Liapis, who is allegedly in charge of the subrogation claim at issue, is the only one located in this District. (Decl. of Angela Liapis (“Liapis Decl.”) ¶ 3.) The claim was processed by someone in New Haven, Connecticut, who was supervised by a third employee in Philadelphia, Pennsylvania. Although Ms. Liapis “presume[s]” that New York City is convenient for those two potential witnesses (Liapis Decl. ¶ 6), their distance from this District leaves the Court hesitant to give much weight to that presumption. In addition to these potential witnesses, Plaintiff states that the records related to the subrogation claim are presently in New York. (Liapis Decl. ¶ 5.) As Defendants point out, however, the documents may be in New York, but the “relative ease of access” from Ohio is difficult to specify without information about the quantity and nature of those documents or the difficulty in transporting them. (Defs.’ Reply Mem. at 6 (citing Kiss My Face Corp. v. Bunting, No. 02 Civ. 2645(RCC), 2003 WL 22244587, at(S.D.N.Y. Sept. 30, 2003).) Plaintiff has not stated why access to the documents from Ohio would be so difficult as to require the inconvenience of the majority of the potential witnesses in this case.


Plaintiffs other purported link to this District comes from five employees of Alliant Techsystems, Inc. (“ATK”), the purchaser of the nozzle. (Pl.’s Mem. at 2.) Plaintiff alleges that they were involved in mitigating the loss from damage to the nozzle and will therefore offer testimony relevant to calculating damages. ATK is located in Ronkonkoma, New York, approximately fifty miles from Manhattan. (Pl.’s Mem. at 2; Decl. of David L. Mazaroli (“Mazaroli Decl.”) ¶¶ 6-7.) While it is certainly true that this District would be more convenient than the transferee District for these potential witnesses, ATK is located in the Eastern District of New York. More importantly, as Defendants argue, it is unclear how material these witnesses will be for the purposes of calculating actual damages. (Defs.’ Reply Mem. at 5.) A deposition may suffice, and testimony more central to the issue will likely come from numerous witnesses identified above, who are in Ohio. Accordingly, the location, convenience, and availability of witnesses, parties, and documents all counsel strongly toward transfer.


D.H. Blair’s fifth factor is the locus of operative facts. D.H Blair, 462 F.3d at 107. Little, if any, operative facts relate to New York City. Instead, the operative facts-such as the cargo’s condition at the place of origin, the repair, and of course, the accident-all took place in Ohio and West Virginia. Institute, West Virginia is less than fifty miles from Ohio and considerably closer to Cincinnati than to Manhattan.Thus, like the prior factors, the locus of operative facts weighs in favor of transfer.


The Court may take judicial notice of facts “not subject to reasonable dispute [which are] capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.”Fed.R.Evid. 201(b). Distances from a map fall into this category. See, e.g., Glisson v. Mantello, 287 F.Supp.2d 414, 427 n. 3 (S.D.N.Y.2003) (taking judicial notice of the distance between two addresses).


In light of the foregoing, Plaintiffs opposition to transfer must fall back on the significant weight given to a plaintiff’s choice of forum. While the Court is sensitive to this factor’s importance, see, e.g., Lykes Bros. Steamship Co. v. Sugarman, 272 F.2d 679, 681 (2d Cir.1959), the Court finds that it should not be assigned dispositive weight in this case. “[W]hen the operative facts have few meaningful connections to the plaintiff’s chosen forum,” as here, “the importance of the plaintiffs choice … measurably diminishes.” Harris v. Brody, 476 F.Supp.2d 405, 406 (S.D.N.Y.2007) (citations omitted).


In light of all these factors, the Court finds that, on balance, Plaintiff’s choice of forum is not significant enough to overcome the strength of the other six factors. Accordingly, Defendants have met their burden in establishing that the action should be transferred to the Southern District of Ohio pursuant to 28 U.S.C. § 1404(a).




For the foregoing reasons, the Court grants Defendants’ motion to transfer venue pursuant to 28 U.S.C. § 1404(a). The Clerk of the Court is respectfully directed to transfer any files to the United States District Court for the Southern District of Ohio, and to terminate the motion docketed as document number 9. This case shall be marked as CLOSED.



© 2024 Central Analysis Bureau