United States District Court,

N.D. Illinois, Eastern Division.

COYOTE LOGISTICS, LLC, Plaintiff,

v.

AMC CARGO INC., Defendant.

16 C 6371

|

Signed 05/09/2017

Attorneys and Law Firms

Paul Anthony Gajewski, Joel H. Steiner, Axelrod, Goodman, Steiner & Bazelon, Chicago, IL, for Plaintiff.

John M. Kraft, Vincent Paul Formica, Jr., Fuksa Khorshid, LLC, Chicago, IL, for Defendant.

MEMORANDUM OPINION

Charles P. Kocoras, United States District Judge

*1 Before the Court is Defendant AMC Cargo Inc.’s (“AMC”) motion to vacate Plaintiff Coyote Logistics, LLC’s (“Coyote”) default judgment entered on September 19, 2016. For the following reasons, the Court grants AMC’s motion.

 

BACKGROUND

This lawsuit derives from AMC’s alleged failure to deliver a shipment of beer to the consignee. Coyote is a licensed property broker by United States Department of Transportation, Federal Motor Carrier Safety Administration (“FMCSA”). According to Coyote, on or about May 29, 2015, in its capacity as a broker, it entered into a contract with AMC by which AMC would transport a freight of Heineken beer (“the shipment”) from New Jersey to Illinois. Coyote further alleges that when it tendered the shipment to AMC for delivery it was in good order, good condition, and correct quantity. Coyote maintains that AMC never delivered the shipment to the consignee. On June 20, 2016, Coyote filed this lawsuit pursuant to the Carmack Amendment—a law governing interstate shipment and cargo loss. 49 U.S.C. § 14706. Coyote seeks to recover $27,457.04.

 

Coyote served AMC’s Registered Agent, Marek Tomczyk (“Tomczyk”), on June 22, 2016, with a copy of the Complaint. AMC was required to file an appearance and an answer by July 13, 2016. It failed to do either. Therefore, on August 18, 2016, this Court granted Coyote’s motion for an order of default. With no appearance or answer from AMC, on September 19, 2016, this Court granted default judgment in favor of Coyote. On November 4, 2016, AMC made an appearance on the record and moved to vacate the default judgment.

 

AMC contends that it did not receive notice of the lawsuit until September 21, 2016. According to Arek Cyran (“Cyran”), the principal of AMC, he received an email from Coverall Agency Inc. (“Coverall”), notifying AMC of the motion for default judgment. AMC alleges that, immediately after receiving the email, Cyran attempted to retain legal counsel, a feat made more difficult because he only speaks Polish. The first two Polish-speaking lawyers that AMC contacted were unable to represent it based on conflicts of interest with Coyote. On October 28, 2016, AMC secured the assistance of counsel, and on November 4, 2016, filed the present motion to vacate default judgment, which we grant.

 

LEGAL STANDARD

Fed. R. Civ. P. 55(c) and 60(b) govern motions to vacate default judgments. Pretzel & Stouffer, Chartered v. Imperial Adjusters, Inc., 28 F.3d 42, 44–45 (7th Cir. 1994). The standards for evaluating a motion to vacate under Rules 55(c) and 60(b) are the same for all practical purposes, Davis v. Hutchins, 321 F.3d 641, 646 (7th Cir. 2003), although they are applied more stringently when a party wishes to vacate a judgment rather than a mere order. Jones v. Phipps, 39 F.3d 158, 162 (7th Cir. 1994). Rule 60(b)(1) permits relief from judgment on grounds of “mistake, inadvertence, surprise, or excusable neglect.” Easley v. Kirmsee, 382 F.3d 693, 697 (7th Cir. 2004).

 

*2 Relief from a judgment under Rule 60(b)(1) is “an extraordinary remedy and is granted only in exceptional circumstances.” C.K.S. Engineers, Inc. v. White Mountain Gypsum Co., 726 F.2d 1202, 1204–05 (7th Cir. 1984). To receive relief from a default judgment, AMC bears the burden of establishing: “(1) good cause for the default; (2) quick action to correct it; and (3) a meritorious defense to the complaint.” Wehrs v. Wells, 688 F.3d 886, 890 (7th Cir. 2012) (citing Sun v. Bd. of Trs. of Univ. of Ill., 473 F.3d 799, 810 (7th Cir. 2007)). A decision related to default judgment should consider the well-established principal that favors a trial on the merits above a default judgment. Cracco v. Vitran Exp., Inc., 559 F.3d 625, 631 (7th Cir. 2009); Sun, 473 F.3d at 811.

 

DISCUSSION

1. Good Cause

Under Rule 60(b)(1), good cause can include “excusable neglect,” which encompasses “both simple, faultless omissions to act and, more commonly, omissions caused by carelessness.” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 388 (1993). The Seventh Circuit uses a “limited and stringent” definition of “excusable neglect” under Rule 60(b)(1), which “requires something more compelling than ordinary lapses of diligence or simple neglect to justify disturbing” the judgment. Jones, 39 F.3d at 162.

 

AMC does not allege that Coyote erred in service; instead, it claims that its registered agent, Tomczyk, never informed AMC of this litigation. Coyote argues that because it properly served Tomczyk, any failing on his part to forward the complaint or the summons to AMC is “legally insufficient to support a motion to vacate.” (citing J & J Sports Productions, Inc. v. Weiner, 2014 WL 1096171 (E.D. PA. Mar. 20, 2014)).

 

However, J & J Sports Productions is non-binding and distinguishable. In that case, the court denied a motion to vacate default judgment under Rule 60(b)(1) because the defendant did not “set forth any legal argument” in support of its motion and because it did not address the two additional factors beyond good cause. Id. at *3. Here, AMC provides a legal argument supporting good cause for its default. It also addresses the two additional factors necessary to support a motion to vacate default judgment.

 

Even though AMC’s default judgment derives from its registered agent’s failure to notify it of the pending litigation, we find that AMC has demonstrated excusable neglect. The degree to which a party’s or its agent’s carelessness can be termed excusable neglect is a matter largely within the discretion of this Court. Robb v. Norfolk & W. Ry. Co., 122 F.3d 354, 359 (7th Cir. 1997). Generally, a client is bound by his chosen agent’s deeds. U.S. v. 8136 S. Dobson St., Chi., Ill., 125 F.3d 1076, 1084 (7th Cir. 1997). However, in determining whether a defendant has established good cause for its default, courts should consider whether it “willfully ignore[d] the pending litigation.” Wehrs, 688 F.3d at 890 (finding good cause when a defendant’s counsel failed to provide him with the deadline for a pleading); Cracco, 559 F.3d at 629–31 (finding good cause when a registered agent forwarded the summons and the complaint to an employee who “did not understand their significance”).

 

AMC did not act willfully in ignoring the litigation. Similar to the defendant in Cracco, AMC “should have taken measures to ensure that service of process on its registered agent was forwarded to the appropriate employee.” 559 F.3d at 631. However, there is no evidence that AMC intentionally failed to respond to the Complaint. Id. Like the defendant in Cracco, AMC’s behavior, once becoming aware of the pending litigation, suggests that its default was due to inadvertence, rather than willful ignorance. Id. AMC filed its motion to vacate judgment just six days after securing counsel, which is less than the eight days taken by the defendant in Cracco. Id. In addition, nothing in the record suggests a pattern of disregard for the Court’s orders. See Passarella, 810 F.2d at 677 (suggesting that a “willful pattern of disregard for the court’s orders and rules” supports the absence of good cause). Since filing an appearance, AMC has complied with every deadline imposed by the Court. Therefore, AMC has demonstrated good cause for its default.

 

1. Quick Action

*3 AMC contends that Cyran acted diligently because, upon notification of the litigation, he took immediate actions to secure counsel. Coyote, basing its contentions upon its proper service, does not contest this argument. “What constitutes ‘quick action’ varies from case to case” and relies heavily upon the specific circumstances of the case. Trade Well Int’l v. United Cent. Bank, 825 F.3d 854, 861 (7th Cir. 2016). “In some cases a delay of even a few weeks is unacceptable.” Jones, 39 F.3d at 158. “In others, a ten-week delay is still considered prompt action.” Sullivan, 2007 WL 1030236, at *4 (citing Smith v. Widman Trucking & Excavating, Inc., 627 F.2d 792, 797–98 (7th Cir. 1980)). The action that a party takes after notification of the litigation should be what courts use in determining whether a defendant acted quickly. Trade Well Int’l, 825 F.3d at 861. Therefore, our inquiry begins when AMC received notification of the default judgment from Coverall.

 

AMC began to search for counsel immediately once it gained knowledge of the lawsuit. However, for various reasons it took six weeks to obtain representation. Because Cyran only speaks Polish, his pool of potential attorneys was limited. The first two Polish-speaking attorneys that Cyran attempted to retain were unable to assist AMC based on conflicts of interest. Cyran found a third attorney, one who was willing to take the case, on October 28, 2016. Once AMC acquired counsel, it took only one week for its attorney to make an appearance and to file a motion to vacate judgment. Therefore, AMC took quick action.

 

III. Meritorious Defense

As a meritorious defense, AMC contends that it did not enter into a contractual agreement with Coyote to transport the shipment. In response, Coyote raises two arguments. First, Coyote alleges that AMC did not provide “evidence of a meritorious defense” but merely provided statements “wishing and hoping” for a meritorious defense “with no reasonable basis.” Second, Coyote contends that AMC’s defense does not shield it from liability because AMC’s defense does not directly address any of the three enumerated issues in a Carmack suit.1 We address these two contentions separately in determining the sufficiency of AMC’s defense.

 

First, Coyote correctly asserts that a party must provide evidence to support a meritorious defense. The evidence must develop a legal and a factual basis for a meritorious defense, beyond general statements. Cracco, 559 F.3d at 630. This basis requires a party to provide more than “bare legal conclusions” but “less than a definitive showing that the defense will prevail.” Parker v. Scheck Mech. Corp., 772 F.3d 502, 505 (7th Cir. 2014). Here, AMC alleges more than simple conclusory legal statements to bolster its meritorious defense.

 

In support of its defense, AMC notes that although the Rate Confirmation2 provided by Coyote lists AMC, it lacks a signature by AMC. Additionally, AMC produces evidence that a different company altogether entered into the agreement with Coyote to transport the shipment. In Cyran’s supplemental affidavit, AMC alleges that Highway Xpress (“Highway”) offers similar services and maintains offices in the same building as AMC. AMC notes that the Bill of Lading for the shipment provided by Coyote lists Highway as the transporter. Furthermore, AMC provides a separate Bill of Lading for the same shipment. Here, “Highway” is crossed out as the transporter and “AMC Cargo” is handwritten in its place. Cyran alleges to have found this separate Bill of Lading in the common office space that Highway and AMC share. Moreover, Cyran’s supplemental affidavit contends that, after speaking with AMC’s drivers, he was unable to find anyone with whom Coyote had contracted to transport the shipment in question. These statements and documents provide the necessary evidentiary support to establish a meritorious defense.

 

*4 Finally, Coyote asserts that AMC’s defense does not directly address any of the three elements involved its Carmack suit. REI Transport, Inc. v. C.H. Robinson Worldwide, Inc., 519 F.3d 693, 697–98 (7th Cir. 2008). Here, AMC disputes the existence of any contract with Coyote relating to the shipment, or that a shipment even took place. Moreover, AMC has given a legal and a factual basis for its meritorious defense, beyond general statements. Cracco, 559 F.3d at 630. At this legal juncture, AMC has satisfied the allegations pertaining to shipment. Therefore, AMC has a meritorious defense.

 

CONCLUSION

For the aforementioned reasons, AMC’s motion to vacate is granted. AMC has thirty days to answer or otherwise respond to the Complaint. It is so ordered.

 

All Citations

Slip Copy, 2017 WL 1862642

 

 

Footnotes

1

To hold a carrier liable under 49 U.S.C. § 14706 the plaintiff must show that: (i) the goods were in good condition when given to the shipper; (ii) the goods were damaged when delivered (or were not delivered); and (iii) the amount of damages.

2

A rate confirmation is a document that is given to a carrier by a freight broker that lists all the pertinent information related to the load being transported.

United States District Court,

N.D. California,

San Jose Division.

NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, Plaintiff,

v.

UPS FREIGHT, INC., Defendant.

Case No. 16-cv-04785-BLF

|

Signed 05/10/2017

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER

[Re: ECF 34]

BETH LABSON FREEMAN, United States District Judge

*1 Plaintiff National Fire Insurance Company of Hartford (“National Fire”) brings this action for cargo damage against Defendant UPS Ground Freight, Inc. (“UPS Freight”) under the Carmack Amendment to the Interstate Commerce Act, 49 U.S.C. § 14706. First Am. Compl. (“FAC”), ECF 13. National Fire alleges that on or about August 5, 2014, in Bear, Delaware, UPS Freight received a consignment of video equipment (the “cargo”), in good order and condition, from Campus Televideo, the owner and shipper of the cargo. Id. ¶¶ 5, 7. National Fire insured Campus Televideo for the cargo’s loss or. Id. ¶ 6. National Fire claims that UPS Freight issued a clean, straight bill of lading (No. 747422371), and thereby undertook to transport the cargo by truck from Bear, Delaware to Seaside, California, and to deliver the cargo there in the same good order and condition as when received. Id. ¶ 8. Plaintiff further alleges that on or about August 11, 2014, UPS Freight delivered the cargo in Seaside, California in a “severely damaged condition,” which caused Campus Televideo to suffer a constructive total loss in the amount of $64,832.97. Id. ¶¶ 9, 10. Pursuant to the insurance policy, National Fire indemnified Campus Televideo for its loss and now seeks to recover its loss from UPS Freight by subrogation and assignment. Id. ¶ 11.

 

Presently before the Court is UPS Freight’s motion to transfer venue pursuant to 28 U.S.C. § 1404(a). Mot., ECF 34. Defendant asks the Court to transfer the action from this district to the District of Delaware. Id. at 1. The Court finds this matter suitable for resolution without oral argument and thus VACATES the hearing scheduled for this motion. See Civ. L.R. 7-1(b). For the reasons set forth below, the Court GRANTS Defendant’s motion to transfer this action.

 

1. LEGAL STANDARD

A court may transfer an action to another district: (1) for the convenience of the parties; (2) for the convenience of the witnesses; and (3) in the interest of justice. 28 U.S.C. § 1404(a). To determine if a transfer of venue is appropriate under § 1404(a), courts apply a two-part test. Ctr. For Biological Diversity v. McCarthy, No. 14-cv-5138, 2015 WL 1535594, at *1 (N.D. Cal. Apr. 6, 2015) (citing Hatch v. Reliance Ins. Co., 758 F.2d 409 (9th Cir. 1985)). First, courts consider whether the case could have been brought in the proposed transferee district. Id. Second, if the case could have been brought in the transferee district, courts determine if the case should be moved to that forum “for convenience of parties and witnesses [and] in the interest of justice.” McCarthy, 2015 WL 1535594, at *1; 28 U.S.C. § 1404(a). As the Ninth Circuit explained in Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000), a court may also consider:

*2 (1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff’s choice of forum, (4) the respective parties’ contacts with the forum, (5) the contacts relating to the plaintiff’s cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.

Jones, 211 F.3d at 498.

 

“No single factor is dispositive, and a district court has broad discretion to adjudicate motions for transfer on a case-by-case basis.” Ctr. for Biological Diversity v. Kempthorne, No. 08-1339, 2008 WL 4543043 (N.D. Cal. Oct. 10, 2008) (citation omitted). The burden is on the party seeking transfer to show that when these factors are applied, the balance of convenience clearly favors transfer. Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). It is not enough for the defendant to merely show that it prefers another forum, and transfer will not be allowed if the result is merely to shift the inconvenience from one party to another. Van Dusen v. Barrack, 376 U.S. 612, 645–46 (1964).

 

1. DISCUSSION

Defendant asks the Court to transfer this action to the District of Delaware pursuant to 28 U.S.C. § 1404(a). Plaintiff opposes the transfer.

 

As a preliminary matter, National Fire suggests that UPS Freight’s motion should be denied as untimely. See Opp’n 2 (“Now, over 9 months after this action was initiated, UPS has moved to transfer the case to the District of Delaware.”). However, “[s]ection 1404(a) sets no limit on the time when a motion to transfer may be made.” 15 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3844 (4th ed. 2017). Thus, courts have found that an action may be transferred under § 1404(a) at any time during the pendency of the case, even after judgment has been entered. Id. Defendant has also provided an adequate explanation for any delay in filing this motion—it contends that it could not have known that Delaware was a more convenient venue until Plaintiff served its discovery responses in December 2016, four months before Defendant filed the instant motion. Reply 4, ECF 37. “[T]he Ninth Circuit has never held that a five month delay necessitates the denial of a motion to transfer,” and the Court declines to find otherwise here, particularly where Plaintiff does not claim that it would be prejudiced by the transfer. See Saleh v. Titan Corp., 361 F. Supp. 2d 1152, 1168 (S.D. Cal. 2005).

 

Accordingly, the Court now determines whether venue would be proper in the District of Delaware, assesses the convenience factors as dictated by section 1404(a), and determines whether it would be in the interest of justice to transfer the action.

 

1. Venue Would Be Proper in the District of Delaware

Applying the first prong of the § 1404(a) inquiry, this action could have been brought in the District of Delaware.

 

The Carmack Amendment has a special venue provision, § 14706(d), that expressly governs any action brought under it. 49 U.S.C. § 14706(d); Smallwood v. Allied Van Lines, Inc., 660 F.3d 1115, 1121 (9th Cir. 2011). It provides that, when suing the delivering carrier, “[a] civil action … may be brought … in a district court of the United States … in a judicial district … through which the defendant carrier operates.” 49 U.S.C. § 14706(d)(1). Or, when suing the carrier alleged to have caused the damage, “[a] civil action … may be brought … in the judicial district in which such loss or damage is alleged to have occurred.” Id. § 14706(d)(2). “[I]n light of the legislative history of the Carmack Amendment … the right of the shipper to sue the carrier in a convenient forum of the shipper’s choice is a right that Congress intended to codify.” Aaacon Auto Transp., Inc. v. State Farm Mut. Auto. Ins. Co., 537 F.2d 648, 654 (2d Cir. 1976). Here, the shipper is located in Delaware, and there is no indication that Congress was concerned about the convenience of an insurance carrier.

 

*3 The allegations here indicate that UPS Freight was both the delivering carrier and the carrier alleged to have caused the damage, and thus, to the extent either section 14706(d)(1) or 14706(d)(2) allow for the suit to be brought in Delaware, venue would be proper there. National Fire suggests, however, that the Court should analyze venue pursuant to section 14706(d)(2) alone. Opp’n 3. Accordingly, it argues that because UPS Freight has admitted that the “freight must have sustained damage while in transit from Salt Lake City to [San Leandro, California],” venue is proper in this district, the District of Utah, or some judicial district in between. Id. (citing and quoting Ex. A to Fant Decl., ECF 36-1).

 

In reply,1 UPS Freight asserts that because it operates through Delaware, as evidenced by the fact that the shipment originated in Delaware venue would be proper in the District of Delaware pursuant to section 14076(d)(1). Reply 2. Defendant further contends that because National Fire has not established where the alleged damage occurred, venue would be proper in Delaware or any of the other districts through which the cargo was transported. Id. at 3.

 

The Court is not persuaded that section 14706(d)(1) does not apply given the definitions in section 14706(a), and National Fire provides no authority to the contrary. Accordingly, the Court agrees with UPS Freight, and concludes that venue would be proper in the District of Delaware because UPS Freight operates through Delaware.

 

1. Convenience Factors

The Court now assesses the convenience factors with respect to this district and the District of Delaware.

 

1. Location Where the Relevant Agreement Was Negotiated and Executed

Neither party addresses this issue. Accordingly, the Court finds this factor to be neutral.

 

1. The State Most Familiar with the Governing Law

Because this case is governed exclusively by federal law, any federal court could comprehend and correctly apply the applicable law. See also Mot. 8. Accordingly, the Court finds this factor neutral as to transfer.

 

iii. Plaintiff’s Choice of Forum

The importance of Plaintiff’s choice of forum depends on the degree of deference to which it is entitled. Typically, “substantial deference” is given to the plaintiff’s choice of forum. McCarthy, 2015 WL 1535594, at *3. Under that standard, defendants bear the burden of “mak[ing] a strong showing of inconvenience to warrant upsetting the plaintiff’s choice of forum.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). This is especially true where the plaintiff has chosen to bring suit at home. Ctr. for Biological Diversity v. Lubchenco, No. C-09-4087, 2009 WL 454169, at *4 (N.D. Cal. Nov. 30, 2009). On the other hand, where “the operative facts have not occurred within the forum of original selection and that forum has no particular interest in the parties or the subject matter, the plaintiff’s choice is entitled only to minimal consideration.” Pac. Car & Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968) (emphasis added); see also Lubchenco, 2009 WL 454169, at *4 (denying transfer and noting that the usual deference to plaintiff’s choice of forum will not be discounted unless both conditions are fulfilled).

 

UPS Freight argues that National Fire’s choice of forum should not receive substantial deference because its interests are tied to the insured, Campus Televideo, which is a Delaware company. Mot. 5. National Fire does not address this factor.

 

The only connection between this district and the circumstances at issue in this case is that the cargo was found to be damaged in the district. See Opp’n 3; Ex. A to Fant Decl. Nevertheless, neither party knows exactly where the damage occurred. Moreover, this district has no particular interest in the parties or the subject matter. As UPS Freight points out, National Fire’s insured is in Delaware; National Fire has not asserted that it is limited to writing policies in California; and the insurance policy that covered the cargo covered goods packed in Delaware, loaded in Delaware, and transported from Delaware. Mot. 5–6. UPS Freight also contends that this district has no particular interest in the parties or the subject matter because all of the facts, interest, records, relevant witnesses, and the cargo itself are in Delaware. Id. at 8. The Court finds UPS Freight’s arguments persuasive. Therefore, the Court will not accord National Fire’s choice of forum significant weight.

 

1. Respective Parties’ Contacts with the Forum

*4 UPS Freight contends that National Fire’s contacts with the forum are minimal. Specifically, UPS Freight asserts that National Fire’s only contact with California is the fact that its counsel is located in California. Mot. 6. UPS Freight also states that it is permitted to, and does, transport freight across the lower 48 States. Id. By contrast, UPS Freight emphasizes that in this litigation, National Fire stands in the shoes of its insured, which is located in Delaware. According to Defendant, this makes Plaintiff’s connection to the District of Delaware significant. Id. Moreover, UPS Freight states that it has a substantial presence and an agent for service of process in Delaware. Id. National Fire does not address this factor in its papers. Accordingly, the Court finds that this factor weighs in favor of transfer.

 

1. Contacts Relating to the Plaintiff’s Cause of Action in the Chosen Forum

UPS Freight argues that the connection between National Fire’s cause of action and this forum is insignificant. Id. at 5. In particular, UPS Freight notes that the insured is located in Delaware; National Fire has not asserted that it is limited to writing policies in California; and National Fire insured goods packed in Delaware, loaded in Delaware, and transported to Delaware. Id. National Fire does not address this factor in its papers. The Court finds UPS Freight’s arguments persuasive, and thus finds that this factor weighs in favor of transfer.

 

1. Differences in Costs of Litigation

In this case, UPS Freight argues that the cost of litigating in the District of Delaware would be lower than litigating in this district. Reply 5. Specifically, it contends that unless the case is transferred to Delaware, the parties will encounter “unjustifiable” costs to transport multiple fact witnesses from Delaware to California. Id. In Plaintiff’s answer to Defendant’s interrogatories, National Fire identifies fourteen witnesses. Ex. A to Martin Decl. (“Pl.’s Ans. to Interrog.”) at 6, ECF 34-2. Of those witnesses, two are located in this district; two are located in Delaware; and three are located in Colorado, Illinois, and Dallas. Id. The locations of the remaining witnesses are unknown to National Fire, but Defendant suggests the majority are in Delaware. Id.; Mot. 4. In addition, the cargo is located in Delaware. Mot. 3. As such, UPS Freight argues that counsel for both parties would have to travel to Delaware to inspect it. Id. at 7.

 

In opposition, Plaintiff contends that the location of the cargo is irrelevant because the parties need not inspect it to litigate this case. Opp’n 5. Plaintiff argues that UPS Freight’s clean bill of lading can establish that UPS Freight received the cargo in good condition. Opp’n 4. Plaintiff also asserts that it can prove the cargo arrived at the destination in a damaged condition through the testimony of personnel from UPS Freight’s San Leandro terminal or personnel from the intended recipient of the cargo, all of whom are located in this district. Id. In addition, National Fire claims that presenting witness testimony in deposition form during trial would mitigate the cost of bringing witnesses to this district. Id.

 

The Court finds National Fire’s arguments unpersuasive. Plaintiff does not contest the accuracy of the facts upon which UPS Freight relies; instead, National Fire seeks to dictate how UPS Freight should present its defense to minimize the cost of litigating in this district. The Court is disinclined to dictate how a party litigates its case. And, the uncontested facts demonstrate that the cost of litigating this action in this district would be higher than litigating in the District of Delaware. Thus, this factor weighs in favor of transfer.

 

vii. The Availability of Compulsory Process to Compel Attendance of Unwilling Non-Party Witnesses

*5 Defendant argues that the relevant witnesses, documents, and the cargo itself are located in Delaware, and are therefore beyond the subpoena power of this Court. Mot. 7. National Fire, however, correctly asserts that deposition testimony can be compelled by this Court’s nationwide subpoena power under Fed. R. Civ. P. 45. Opp’n 4. However, because the relevant documents and cargo, and at least some of the witnesses are located in Delaware, the process would be much simpler if this case were heard in the District of Delaware. Accordingly, this factor weighs in favor of transfer.

 

viii. Ease of Access to Sources of Proof

As previously discussed, many of the sources of proof—the cargo, witnesses, and documents—are located in Delaware. Thus, this factor weighs in favor of transfer.

 

1. Interest of Justice

In evaluating the interest of justice, a court may consider “public interest factors such as court congestion, local interest in deciding local controversies, conflicts of laws, and burdening citizens in an unrelated forum with jury duty.” Decker Coal, 805 F.2d at 843 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6 (1981)). UPS Freight makes four arguments as to how the interest of justice weighs in favor of transfer: First, this district hears significantly more cases than the District of Delaware. Mot. 7. Second, there is no local interest in this district—the insured is a Delaware company and the issue is one of federal law. See Mot. 8. Third, there are no conflict of law issues because this case is governed exclusively by federal law. Id. Finally, because there is no local interest in this case, it would be unfair to burden citizens in this district with jury duty. Id. In opposition, National Fire asserts that this motion is “not intended to serve the interests of justice. Instead, it is but another procedural attempt to avoid addressing the merits of this case.” Opp’n 5.

 

As a preliminary matter, the Court finds National Fire’s conclusory contention unconvincing. The Court also finds UPS Freight’s first and fourth arguments unpersuasive. As to the former, Defendant concedes that the median time interval from filing to disposition of civil cases is shorter in this district despite the larger caseload. Mot. 7; Ex. R to Martin Decl., ECF 34-2. Accordingly, that this district hears more cases is unimportant. As to the latter, the parties have consented to a bench trial, and thus, no jury will be empaneled. Nevertheless, Defendant’s remaining arguments persuade the Court that the interest of justice would be best served by transferring this case.

 

III. ORDER

Because the majority of the convenience factors weighing in favor of transfer and because transfer would serve the interests of justice, the Court GRANTS Defendant’s motion to transfer venue to the District of Delaware pursuant to § 1404.

 

The Clerk shall transfer this action to the District of Delaware and close the file.

 

All Citations

Slip Copy, 2017 WL 1927683

 

 

Footnotes

1

UPS Freight does not address the Carmack Amendment’s venue provision in its motion.