Ward et al v. Stewart

Filing 17

MEMORANDUM-DECISION AND ORDER denying Deft's 10 Motion to Change Venue. The parties' proposed 13 stipulated order is rejected. Signed by Judge David N. Hurd on 9/29/15. (sfp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------KEVIN A. WARD, SR. and PAMELA
WARD, individually and as Administrators
of the Estate of Kevin A. Ward, Jr.,
deceased,
Plaintiffs,
-v-

7:15-CV-1023

ANTHONY WAYNE STEWART,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

FARACI, LANG LAW FIRM
Attorneys for Plaintiffs
28 East Main Street, Suite 1100
Rochester, NY 14614

HADLEY L. MATARAZZO, ESQ.

THE LANIER LAW FIRM
Attorneys for Plaintiffs
6810 FM 1960 Road West
Houston, TX 77069

JUDSON A. WALTMAN, ESQ.

126 East 56th Street, 6th Floor
New York, NY 10022

WILLIAM M. LANIER, ESQ.

WOODS OVIATT GILMAN LLP
Attorneys for Defendant
350 Main Street, Suite 1900
Buffalo, NY 14202

BRIAN D. GWITT, ESQ.

DAVID N. HURD
United States District Judge

MEMORANDUM–DECISION and ORDER
I. INTRODUCTION
Plaintiffs Kevin A. Ward, Sr. and Pamela Ward (collectively "plaintiffs") initially filed
this action in Supreme Court, Lewis County, against defendant Anthony Wayne Stewart
("Stewart" or "defendant"), asserting four causes of action arising from his involvement in the
untimely death of their son, Kevin A. Ward, Jr. ("decedent"). Thereafter, defendant removed
the action to federal court, answered plaintiffs' complaint, and asserted a counterclaim for
indemnity arising out of a liability release that allegedly covers the events giving rise to
plaintiffs' claims.
Stewart has now moved pursuant to 28 U.S.C. § 1404(a) to transf er venue in this
action to the United States District Court for the Western District of New York, Rochester
Division. Plaintiffs have not filed a formal opposition; rather, they have submitted a proposed
stipulated order consenting to transfer. The motion will be considered on the basis of these
submissions without oral argument.
II. BACKGROUND1
In the years prior to his death, decedent had enjoyed a brief but promising career as a
young race car driver, finding success "at every level of competition" as he quickly
progressed to racing "bigger and faster cars on bigger and faster tracks." Compl. ¶¶ 4-5.
Stewart, a more seasoned competitor, has also enjoyed tremendous success in the sport of
car racing. See id. ¶¶ 8-9. Yet despite his international renown as a successful participant in

1

The following factual allegations are drawn from plaintiffs' complaint and are assumed true only for
purposes of this motion. See, e.g., Calabrese v. Teoco Corp., 637 F. Supp. 2d 160, 161 (S.D.N.Y. 2009).
-2-

some of the most popular racing series in the world, defendant is still known to occasionally
race in smaller, more local events. Id. ¶ 11.
That was the case on August 9, 2014, when decedent, Stewart, and twenty-two other
drivers began the final race of a "Super Sprint" series event being held at Canandaigua
Motorsports Park in Canandaigua, New York.2 Compl. ¶¶ 12, 15. During the fourteenth lap,
defendant's race car made contact with decedent's car, causing decedent to "crash into the
wall at the high side of the track." Id. ¶ 16. At or around this same time, the race track also
came under a "yellow caution" flag, understood by the drivers as a signal that required them
to "slow down and move away" from a hazard on the track "by either moving higher on the
track or lower depending on where the hazard is located." Id. ¶¶ 7, 17.
While the remaining drivers, including Stewart, continued the final race, decedent
exited his now-disabled race car and "made his way a short distance down the track on
foot." Compl. ¶ 18. Although "6 cars safely passed [decedent] while he was standing on the
track," defendant approached decedent in his race car and " gunned his engine, causing his
700 horsepower vehicle to slide and strike [decedent] with his right rear tire, crushing
[decedent] and flinging his body an estimated 25 feet down the track." Id. ¶¶ 18, 20.
Decedent suffered injuries that soon proved fatal. Id. ¶ 21.

2

Sprint cars are high-powered race cars designed to run on a banked circular track that is one-half
mile in length. See Compl. ¶ 6. Both decedent and Stewart had successfully completed one eight-lap
qualifier "heat" to secure their positions in the final race. Id. ¶ 14.
-3-

III. DISCUSSION
Stewart argues that maintaining the action in this District will pose an undue hardship
on the litigants and witnesses. Plaintiffs, for their part, have signed a proposed stipulated
order indicating they would consent to defendant's proposed transfer.
As an initial matter, "consent of all parties is not a basis for ordering transfer" pursuant
to § 1404(a). 15 Charles Alan W right, Arthur R. Miller, Edward H. Cooper, & Richard D.
Freer, Federal Practice and Procedure § 3841 (4th ed. 2013). Rather, " [t]he transferor court
must still conclude that the Section 1404(a) statutory factors of convenience and the interest
of justice justify transfer." Id. (explaining that the parties are not consenting to transfer, but
are instead consenting to the transferee court after the transferor court determines that
transfer is proper based upon the longstanding statutory factors).
In fact, a review of case law confirms that district courts regularly conduct the same
multi-factor analysis regardless of whether plaintiffs have signaled their consent to the
proposed transferee forum. See, e.g., Hess v. McBride, 2015 WL 4740792, at *2 (E.D.N.C.
Aug. 10, 2015) (conducting venue transfer analysis where plaintiffs' response stated "only
that [they] consent to the transfer of this matter" (citation and internal quotation marks
omitted)); Oliver v. United States, 2014 WL 4543005, at *1 (E.D.N.Y. Sept. 12, 2014)
(conducting same analysis despite plaintiff's consent to transfer); Banc of America Leasing &
Capital, LLC v. Windermere West Valley Partners, LLC, 2009 WL 3806403, at *1 (N.D. Iowa
Nov. 10, 2009) (same); Harris v. Lawson, 2008 WL 4003999, at *1 (M.D. Ga. Aug. 27, 2008)
(same); O'Brien & Gere, Inc. of N. Am. v. Barton Rands, Ltd., 497 F. Supp. 2d 507, 510
(W.D.N.Y. 2007) (same). Accordingly, the same approach will be applied in this case.

-4-

Specifically, this approach is grounded in 28 U.S.C. § 1404(a), which 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 or to
any district or division to which all parties have consented."
"In determining whether a transfer of venue pursuant to 28 U.S.C. § 1404(a) is
appropriate, district courts engage in a two-part inquiry, asking: (1) whether an action 'might
have been brought' in the proposed transferee forum, and if so, (2) whether the transfer
promotes convenience and justice." Wilson v. DirectBuy, Inc., 821 F. Supp. 2d 510, 515 (D.
Conn. 2011).
A. Whether This Action Might Have Been Brought in the Proposed Forum
There is no question that this action "might have been brought" in the Western District
of New York.
"To decide whether an action 'might have been brought' in the proposed transferee
forum, the court must first determine whether the defendants are subject to personal
jurisdiction in that forum, and whether venue would properly lie there." Wilson, 821 F. Supp.
2d at 515.
Taking the second element of this inquiry first, the relevant statute provides that venue
in a civil action may be laid in "a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred." 28 U.S.C. § 1391(b)(2). Here, the facts alleged
in plaintiffs' complaint concern events that occurred over the span of a few minutes in
Canandaigua, New York. Because Canandaigua, which is located in Ontario County, is in
turn situated within the confines of the proposed transferee forum, venue would properly lie

-5-

there. See 28 U.S.C. § 112(d) (enumerating the list of counties comprising the Western
District of New York).
These same factual allegations would also appear to provide a basis for the exercise
of personal jurisdiction over Stewart in the proposed transferee forum. "In a diversity or
federal question case, personal jurisdiction is determined by the law of the state in which the
district court sits." Doe v. Ciolli, 611 F. Supp. 2d 216, 220 (D. Conn. 2009).
As relevant here, New York's long-arm statute provides for personal jurisdiction over a
non-domiciliary who "commits a tortious act within the state" while physically present there.
N.Y. C.P.L.R. § 302(a)(2); see also Emerald Asset Advisors, LLC v. Schaffer, 895 F. Supp.
2d 418, 430 (E.D.N.Y. 2012) (analyzing § 302(a)(2) and noting that the Second Circuit has
consistently construed New York law to require the tortfeasor's physical presence in the
state). Stewart is an Indiana domiciliary who committed the allegedly tortious acts while
physically present in Canandaigua, New York.3 See Compl. ¶¶ 2, 20. Accordingly, this
action "might have been brought" in the Western District of New York.4
B. Whether Transfer Promotes Convenience and Justice
"Section 1404(a) is intended to prevent waste of time, energy and money and to
protect litigants, witnesses and [the] public against unnecessary inconvenience and
expense." Rindfleisch v. Gentiva Health Sys., Inc., 752 F. Supp. 2d 246, 250 (E.D.N.Y.

3

Subject matter jurisdiction would remain unaffected by the proposed inter-district transfer since
plaintiffs are domiciled in Port Leyden, New York. Compl. ¶ 1; see also 28 U.S.C. § 1332 (providing federal
jurisdiction over civil actions between citizens of different states where the "matter in controversy exceeds the
sum or value of $75,000, exclusive of interests and costs").
4
Notably, however, there appears to have been no guarantee that the plaintiffs would have drawn
the Rochester Division had they chosen to file there. See, e.g., Gorzynski v. JetBlue Airways Corp., 10 F.
Supp. 3d 408, 411 (W.D.N.Y. 2014) (discussing that District's Local Rule regarding random case
assignments between divisions).

-6-

2010) (alteration in original) (citation and internal quotation marks omitted). Accordingly, the
second prong of the transfer analysis requires careful consideration of: (1) the plaintiff's
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 the parties; (5) the locus
of operative facts; (6) the availability of process to compel the attendance of unwilling
witnesses; (7) the relative means of the parties; (8) the proposed forum's familiarity with the
governing law; and (9) trial efficiency and the interests of justice, based on a totality of the
circumstances. Horanzy v. Vemma Nutrition Co., –F. Supp. 3d–, 2015 W L 728379, at *3
(N.D.N.Y. Feb. 18, 2015).
Importantly, "[t]here is no strict formula for the application of these factors, and no
single factor is determinative." Rindfleisch, 752 F. Supp. 2d at 250. "Instead, these factors
should be applied and weighed in the context of the individual circumstances of the particular
case." Id. Ultimately, however, "[t]he movant bears the burden of establishing the propriety
of transfer by a clear and convincing showing." Horanzy, 2015 WL 728379, at *3 (quoting
Wilson, 821 F. Supp. 2d at 513). Indeed, " absent a strong showing that the balance of
factors favors the alternative forum, the plaintiff's choice of forum will not be
disturbed." Fellner v. Cameron, 2010 WL 68128, at *3 (W.D.N.Y. Feb. 24, 2010).
Stewart asserts that the relevant factors all weigh heavily in favor of a transfer to the
Western District of New York, Rochester Division.
1. Plaintiffs' Choice of Forum
"The Second Circuit has consistently held that a plaintiff's choice of forum is
presumptively entitled to substantial deference." Atl. Recording Corp. v. Project Playlist, Inc.,
603 F. Supp. 2d 690, 698 (S.D.N.Y. 2009) (Chin, J.) (citation and internal quotation marks
-7-

omitted). "This deference stems from the presumption that a plaintiff selects a forum based
on convenience." Medien Patent Verwaltung AG v. Warner Bros. Entm't, Inc., 749 F. Supp.
2d 188, 190 (S.D.N.Y. 2010) (citation omitted).
In this case, plaintiffs chose to file suit in state court in Lewis County, a location
embraced by the Northern District of New York. See N.D.N.Y. Gen. Order 12; see also 28
U.S.C. § 112(a) (enumerating the list of counties comprising the Northern District of New
York). Because this is also the county in which plaintiffs reside, this fact would ordinarily
weigh heavily against transfer. See Atl. Recording Corp., 603 F. Supp. 2d at 698 (noting that
the presumption in favor of a plaintiff's choice of forum is at its strongest "where the chosen
forum is also the plaintiff's home"); see also EasyWeb Innovations, LLC, 888 F. Supp. 2d at
349 (concluding plaintiff's decision to file in his "home district" was entitled to strong
deference).
Indeed, even though Stewart's removal of this action to federal court may have
compromised plaintiffs' initial choice of forum to some degree, maintaining the action in this
District would work to preserve plaintiffs' initial decision to file suit in a location close to
home.5 See Harris, 2008 WL 4003999, at *4 (reaching similar conclusion regarding this
factor where defendant removed from state to federal court). And since the federal removal
statute provides that an action may only be removed to the district court "for the district and
division embracing the place where such action is pending," defendant's conscious decision
to nevertheless remove this case arguably means he has effectively "chosen" this forum as
well. See § 1441(a).
5

Plaintiffs filed this action in Lewis County, New York, whose courthouse sits approximately 55 miles
from the Northern District of New York, Utica Division's courthouse, but over 150 miles from the Western
District of New York, Rochester Division's courthouse.
-8-

However, courts have also noted that the weight ordinarily afforded this factor should
be somewhat diminished where, inter alia, the operative facts alleged in the lawsuit have
"little or no connection" to the forum chosen by the plaintiff. Rindfleisch, 752 F. Supp. 2d at
251. That is the case here. As the factual allegations detailed above reveal, Stewart is
correct to argue that the locus of operative facts lies in the proposed transferee
forum. Likewise, plaintiffs' decision to signal their consent to defendant's proposed forum
would also seem to diminish the degree of deference ordinarily afforded this element in the
analysis. Bearing all these competing facts in mind, this factor is neutral with regard to
transfer.
2. Convenience of Witnesses6
"In deciding whether to disturb a plaintiff's choice of forum, the convenience of the
witnesses is generally the most important factor in the transfer analysis." Rindfleisch, 752 F.
Supp. 2d at 252. "Parties seeking consideration of this factor must specify the identity of key
witnesses and the nature of their likely testimony, and support these statements with
affidavits." Wilson, 821 F. Supp. 2d at 517. 7
In support of this factor, Stewart first identifies five Ontario County employees and
officials who were directly involved in the factual investigation of the events that occurred at
Canandaigua Motorsports Park: (1) Investigator John Abraham; (2) Brad Falkey; (3) Kevin
Henderson; (4) Deputy William Martin; and (5) Michael Rago. Gwitt Affirmation ¶¶ 16a-16e.

6
Because plaintiffs did not submit a list of witnesses believed to be relevant to this action, only those
individuals identified in Stewart's papers have been considered in this analysis.
7

Stewart has not submitted an affidavit from any potential witnesses; rather, he has submitted an
attorney affidavit detailing possible witnesses and their likely testimony.
-9-

Defendant asserts that Mr. Falkey and Mr. Rago reside somewhere in Ontario County, while
Mr. Henderson resides somewhere in Canandaigua, New York.8 Id.
Stewart further identifies four additional witnesses who may also be in a position to
provide relevant, material testimony: (1) Jeremie Corcoran, a resident of Central Square,
New York and the owner of Canandaigua Motorsports Park; (2) Brian Ennis, a resident of
Andover, New York and an Empire Super Sprint technician who was eyewitness to the event;
(3) Chuck Hebing, a resident of Ontario, New York and the driver of the race car who was
immediately in front of defendant prior to his collision with decedent; and (4) Dean Reynolds,
a resident of North Syracuse, New York and the first person to whom defendant spoke
following the events at issue in this case. 9 Gwitt Affirmation ¶¶ 19a-19d.
Finally, Stewart identifies three individuals who reside outside New York State and are
believed to be relevant in this case: (1) Jimmy Carr, a resident of Missouri or Indiana and the
individual who built the race car defendant was driving on the day in question; (2) Gary
Cooper, a resident of Illinois and an investigator retained by defendant to analyze evidence
resulting from the incident; and (3) Chad Johnston, a resident of North Carolina and
defendant's "crew chief." Gwitt Affirmation ¶¶ 21a-21c.
Of course, the testimony of the Ontario County officials who were directly involved in
the factual investigation of the incident will undoubtedly be the sort of valuable, material
testimony that matters in evaluating this factor. See Berger v. Cushman & Wakefield of Pa.,
Inc., 2013 WL 4565256, at *5 (S.D.N.Y. Aug. 28, 2013) ("In evaluating this factor, the court
8
Notably, however, the attorney's affidavit does not appear to directly identify where Investigator
Abraham or Deputy Martin are actually believed to reside.
9

As discussed in more detail below, both Mr. Corcoran and Mr. Reynolds reside in the Northern
District of New York.
- 10 -

should look beyond the quantity of witnesses and assess the quality of the testimony to be
offered."). By the same token, however, each of the other witnesses identified by Stewart,
many of whom are individuals that were directly involved in organizing and conducting the
race when the incident occurred, would seem to be in the same sort of privileged position.
Notably, several of these witnesses reside in the Northern District of New York or in one of
several out-of-state locations.
Nevertheless, Stewart argues that transfer is warranted because travel to the Western
District of New York, Rochester Division courthouse will be significantly more convenient for
the witnesses located in Ontario County. Defendant further argues that, because the City of
Rochester has an international airport while the City of Utica does not, travel to the Western
District of New York, Rochester Division for the out-of-state witnesses will be significantly
more convenient. These facts, defendant argues, tip the balance of this factor heavily in
favor of transfer.
However, the mere physical distance between the courthouses of the Northern District
of New York, Utica Division and the Western District of New York, Rochester Division does
not automatically require a finding that this factor favors transfer. To be sure, the
courthouses themselves sit roughly 135 miles apart.10 But closer scrutiny reveals that travel
to either location by all of the various non-party witnesses identified by Stewart would require
some degree of travel and, therefore, some degree of inconvenience.

10

Distances and geographic locations noted in this opinion were calculated using Google Maps, see
http://maps.google.com, and judicially noticed pursuant to Federal Rule of Evidence 201, an accepted
practice among courts analyzing these motions. See, e.g., Rindfleisch, 752 F. Supp. 2d at 259 n. 13 (noting
that courts "commonly use internet mapping tools to take judicial notice of distance and geography" and
collecting cases).
- 11 -

First, this argument ignores the fact that a number of the witnesses Stewart identifies
actually reside either in the Northern District of New York (such as Mr. Reynolds and Mr.
Corcoran) or in one of several out-of-state locations (such as Mr. Carr, Mr. Cooper, and Mr.
Johnston). Of course, the Utica Division courthouse will be a more convenient trip for both
Mr. Reynolds and Mr. Corcoran. And putting aside the fact that Syracuse-Hancock
International Airport, located in the Northern District of New York, sits only 56 miles away
from the Utica Division courthouse, the marginal difference in convenience that may accrue
to out-of-state witnesses who will be forced to travel from one airport or the other regardless
of whether transfer is ultimately granted (Mr. Carr, Mr. Cooper, and Mr. Johnston) is not
actually a significant factor in this analysis. See Atl. Recording Corp., 603 F. Supp. 2d at 696
n. 8 (collecting cases noting that, where an individual will be required to travel regardless of
whether a transfer is granted, a marginally shorter distance is not significant); see also Orb
Factory, Ltd. v. Design Science Toys, Ltd., 6 F. Supp. 2d 203, 209 (S.D.N.Y. 1998) (noting in
context of this factor that an "extra hour's drive does not warrant transfer of this case").
Further, although Brad Falkey, Kevin Henderson, and Michael Rago are each believed
to reside somewhere in Ontario County, these witnesses will also be required to travel some
distance regardless of where trial is ultimately held: either 32 miles west to reach the
Western District of New York, Rochester Division's courthouse or approximately 120 miles
east to reach the Northern District of New York, Utica Division's courthouse steps. 11

11

It also bears noting that Ontario County is a relatively large political subdivision of New York State.
Consequently, simply stating in an affidavit that an anticipated witness resides somewhere within the confines
of a large county is of limited value in determining the actual distance that must be traveled.
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At the end of the day, then, the issue becomes whether the additional amount of travel
required to reach the courthouse in downtown Utica—at most, an additional 88 miles for
several key witnesses—constitutes the sort of significant inconvenience that would tip the
balance in favor of transfer.12 A review of the case law makes it easy to conclude that it does
not. See, e.g., Gorzynski, 10 F. Supp. 3d at 413 (concluding that requiring witnesses to
travel 60 additional miles from Buffalo Division to Rochester Division was not the kind of
"inconvenience" that supports § 1404(a) transfer); Moore v. Allentown Vill. Soc., Inc., 2013
WL 4008740, at *2 (W.D.N.Y. Aug. 5, 2013) (concluding that, although intra-district transfer
motions are judged by an even less rigorous standard, defendants' motion still failed
because, inter alia, "any inconvenience of parties or witnesses traveling from Buffalo to
Rochester for court proceedings is de minimus"); Schwartz v. Marriott Hotel Servs., Inc., 186
F. Supp. 2d 245, 249-50 (E.D.N.Y. 2002) (judicially noticing that venues at issue were only
65 miles apart and collecting cases expressing skepticism about the weight to be accorded
such a marginal difference); People v. Operation Rescue Nat'l, 69 F. Supp. 2d 408, 417
(W.D.N.Y. 1999) (noting that "courts have repeatedly held that traveling [this sort of relatively
short distance] is not the type of 'inconvenience' that supports a motion to transfer
under § 1404(a)" and collecting additional cases); Orb Factory, Ltd., 6 F. Supp. 2d at 209
(noting an "extra hour's drive does not warrant transfer of this case"); Jenkins v. Wilson
Freight Forwarding Co., 104 F. Supp. 422, 425 (S.D.N.Y. 1952) (noting that § 1404(a) should

12
It is further noted that the Honorable Thérèse Wiley Dancks, the U.S. Magistrate Judge to whom
this case has been referred for purposes of all pre-trial proceedings, sits in the Northern District of New York,
Syracuse Division courthouse. This courthouse is actually located even closer than the Utica Division, sitting
only 70 miles to the east of Ontario County.

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not ordinarily be used to facilitate transfer from the Southern District of New York to adjoining
districts).
In other words, because: (1) several key out-of-state witnesses will be forced to travel
regardless of whether transfer is granted; (2) other key witnesses already reside within this
District; (3) the additional travel that may be required of one or more Ontario County
residents is relatively minimal; and (4) there are no affidavits from any potential witnesses
claiming a particular hardship, this factor weighs against transfer.
3. Location of Documents and Access to Sources of Proof
With respect to this factor, Stewart first asserts that "the Ontario County Sheriff's office
may still be in possession of documents" related to its investigation of the incident at issue in
this case. Gwitt Affirmation ¶ 17. However, "[t]he location of relevant documents is largely a
neutral factor in today's world of faxing, scanning, and emailing documents." Am. S.S.
Owners Mut. Prot. & Indemn. Ass'n v. Lafarge N. Am., Inc., 474 F. Supp. 2d 474, 484
(S.D.N.Y. 2007). Because defendant has not represented that there would be some
additional degree of difficulty associated with transmitting any relevant documents that may
be in the Sheriff's Office's possession to the current forum, this fact does not weigh in favor
of transfer.
Further, although Stewart also asserts that "inspection of the track" may be necessary
to prepare for trial, he has provided no explanation regarding how such inspection would be
impeded by maintaining the action in this District. 13 See Gwitt Affirmation ¶ 22. And to the

13

To the extent Stewart also claims that additional, as-yet-unidentified witnesses will likely be located
near the site of the race track in Canandaigua, New York, travel to the Utica Division will not be an undue
hardship on these individuals for the same reasons explained above.
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extent defendant's statement is construed as suggesting a jury view of the track may become
necessary, this course of action is generally "frowned upon and should rarely be
used." Mohamed v. Mazda Motor Corp., 90 F. Supp. 2d 757, 778 (E.D. T ex. 2000) (citation
omitted). In any event, defendant would bear the burden of demonstrating the need for a jury
view, and his free-standing assertion, made at this early stage of the case, does not suffice
to meet that burden. See 15 Charles Alan W right, Arthur R. Miller, Edward H.
Cooper, & Richard D. Freer, Federal Practice and Procedure § 3854 (4th ed. 2013) (" Courts
should refuse to take into account the possibility of a jury view unless the moving party has
shown how a view of the locality of the events could be helpful."). Accordingly, this factor
does not favor transfer.
4. Convenience of Parties
"Where transfer would merely shift the inconvenience from one party to the other, the
Court should leave plaintiff's choice of venue undisturbed." Rindfleisch, 752 F. Supp. 2d at
258. However, "transfer of venue may be appropriate where inconvenience for the party
moving for transfer could be completely eliminated without substantially adding to the
nonmoving party's inconvenience." Id.
Those circumstances are not present here. Stewart, a resident of Indiana, would be
obligated to travel regardless of whether this action is heard in the Northern District of New
York or the proposed transferee forum. And plaintiffs, residents of Lewis County, would
actually be required to travel a greater distance to reach the proposed forum than they would
otherwise be required to travel within this district; in fact, a change of venue would impose a
three-fold increase in travel distance for them. See Gwitt Affirmation ¶ 24. Accordingly, this
factor weighs against transfer.
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5. Locus of Operative Facts
"The locus of operative facts is an important factor to be considered in deciding where
a case should be tried." Wilson, 821 F. Supp. 2d at 518. The facts alleged in this case
occurred in the Western District of New York. Accordingly, this factor favors transfer.14
6. Availability of Process
Generally speaking, "Rules 45(b)(2) and 45(c)(3)(A)(ii) of the Federal Rules of Civil
Procedure prohibit a subpoena from directing a witness to travel more than 100
miles." EasyWeb Innovations, LLC, 888 F. Supp. 2d at 354 (citing FED. R. CIV. P. 45); see
also Horanzy, 2015 WL 728379, at *7 ("A district court may not issue a subpoena directing a
witness to travel more than 100 miles.").
With respect to this factor, Stewart argues that "more non-party witnesses are
unavailable for subpoena in the Northern District than in the W estern District of New
York." Def.'s Mem. at 13. First, however, "[d]iscovery is not an important consideration
under this factor because the parties can choose a place of compliance to accord the terms
of [ ] Federal Rule of Civil Procedure 45, which governs subpoenas." Osgood v. Discount
Auto Parts, LLC, 981 F. Supp. 2d 1259, 1265 (S.D. Fla. 2013).
And with respect to a trial that may be necessary at some point in the future, Rule 45
permits a district court to compel a person located beyond its 100-mile radius to attend trial
provided the court sits "within the state where the person resides, is employed, or regularly
transacts business in person." FED. R. CIV. P. 45(c)(1)(B)(ii); see also Mohamed, 90 F. Supp.

14

It is noted that the Canandaigua Motorsports Park sits approximately 31 miles to the east of the
Rochester Division's courthouse and approximately 116 miles west of the Utica Division's courthouse, a total
difference of only 85 miles and a driving time of approximately 1.5 hours.
- 16 -

2d at 778 (warning litigants not to make the mistake of arguing that a witness outside the
100-mile radius cannot be compelled to attend trial within the state). 15
Those foibles aside, however, Stewart has given no indication that any of the named
individuals, or any other non-party witnesses for that matter, would refuse to appear or that
deposition or videotaped testimony would be an inadequate substitute in the event such a
refusal occurred. See, e.g., Pecorino v. Vutec Corp., 934 F. Supp. 2d 422, 442 (E.D.N.Y.
2012) ("[N]either party has offered anything more than speculation that their non-party
witnesses . . . would be unwilling to travel for trial."); Citigroup, Inc. v. City Holding Co., 97 F.
Supp. 2d 549, 562 (S.D.N.Y. 2000) ("[T]he unavailability of process over third-party
witnesses does not compel transfer when the practical alternative of offering videotaped or
deposition testimony of a given witness exists."). Accordingly, this factor does not favor
transfer.
7. Relative Means of Parties
"Courts may consider the relative financial hardship to litigants in prosecuting or
defending an action in a particular forum." Wilson, 821 F. Supp. 2d at 518. Here, Stewart,
an internationally known racing star, would presumably be better able to bear the expense of
litigating in an inconvenient forum. However, as noted above, plaintiffs (and defendant, for
that matter) would be required to travel some distance regardless of whether this action was
heard in this district or the proposed transferee district. Accordingly, this factor does not
favor transfer.

15

Ordinarily, this provision of Rule 45 is not implicated because the party moving for transfer is
seeking transfer to an out-of-state forum.
- 17 -

8. Familiarity with Governing Law
Plaintiffs assert causes of action under New York law and therefore both this forum
and the proposed transferee forum are equally capable of adjudicating the
claims. Accordingly, this factor does not favor transfer.
9. Trial Efficiency & Interests of Justice
"Although certainly not decisive, docket conditions or calendar congestion of both the
transferee and transferor districts is a proper factor and is accorded some weight." Pecorino,
934 F. Supp. 2d at 444.
As relevant here, the median time from filing to trial in the Western District of New
York is 47.6% longer than in the Northern District of New York—66.3 months versus 40.8
months, respectively. See U.S. District Courts-Combined Civil and Criminal Federal Court
Management Statistics (March 31, 2015), available at
http://www.uscourts.gov/file/18187/download (last visited Sept. 18, 2015); see also Cruz v.
Borgenicht, 2014 WL 3696207, at *5 (E.D.N.Y. July 24, 2014) (considering same statistical
data); Excellent Home Care Servs., LLC v. FGA, Inc., 2014 WL 652357, at *5 (E.D.N.Y. Feb.
19, 2014) (same). Considering the relatively large difference in time from filing to trial, this
factor weighs in favor of maintaining this case in the Northern District of New York.16
IV. CONCLUSION
Section 1404(a) was "designed and reserved for those instances where the transfer
was sought to a District Court substantially distant from the district where the action had been

16
It is also judicially noticed that a related case, AXIS Ins. Co. v. Stewart, 7:15-CV-1131(DNH/TWD),
has recently been filed in this District. Maintaining both actions in the same District will obviously "conserve
judicial resources and promote consistency and uniformity." Mastr Asset Backed Sec. Trust 2007-WMC1, ex
rel. U.S. Bank Nat. Ass'n v. WMC Mortg. LLC, 880 F. Supp. 2d 418, 424 (S.D.N.Y. 2012).

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instituted." Jenkins v. Wilson Freight Forwarding Co., Inc., 104 F. Supp. 422, 425 (S.D.N.Y.
1952).
That is decidedly not the case here. After careful consideration of the relevant factors,
most of which either do not favor transfer or actually weigh against transfer, Stewart has
failed to "make a clear-cut showing that transfer is in the best interests of the
litigation." Indian Harbor Ins. Co. v. Factory Mut. Inso. Co., 419 F. Supp. 2d 395, 401
(S.D.N.Y. 2005) (citation omitted); see also Li v. Hock, 371 F. App'x 171, 175 (2d Cir. 2010)
(summary order) ("Absent a clear and convincing showing that the balance of convenience
strongly favors the alternate forum . . . discretionary transfers are not favored.").
"This case is not being consigned to the wastelands of Siberia or some remote, distant
area of the Continental United States." Mohamed, 90 F. Supp. 2d 757 (E.D. Tex. 2000).
Rather, maintaining this action in the Northern District of New York will merely require a few
individuals to travel an additional distance to reach the Utica Division courthouse in the event
a trial is held at some point in the future.
Therefore, it is
ORDERED that
1. The parties' proposed stipulated order is REJECTED; and
2. Stewart's motion to transfer venue is DENIED.
IT IS SO ORDERED.

Dated: September 29, 2015.
Utica, New York.
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