G&G International Corp. et al v. Duran

Filing 36

ORDER denying 32 Motion to Change Venue. Signed by Judge Jose A. Fuste on 11/16/2015. (mrj)

UNITED STATES DISTRICT COURT
DISTRICT OF PUERTO RICO

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G&G INTERNATIONAL CORP.,
Plaintiff,

Civil No. 3:15-CV-1772 (JAF)

v.
WALTER H. DURAN,
Defendant.
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ORDER
This matter is before the court on Defendant Walter H. Duran’s (“Duran”) Motion for

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Change of Venue pursuant to 28 U.S.C. §1404(a). (ECF No. 32).

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International Corp. (“G&G”) timely opposed the motion (ECF No. 35) and the matter is ripe

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Plaintiff G&G

for review. For the following reasons, Defendant Duran’s motion is DENIED.

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Pursuant to 28 U.S.C. § 1404(a) a district court may transfer any civil action to any

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other district or division where it might have been brought or to any district or division to

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which all parties have consented, “for the convenience of the parties and witnesses, in the

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interest of justice.” “Section 1404(a) is intended to place discretion in the district court to

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adjudicate motions for transfer according to an individualized, case-by-case consideration of

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convenience and fairness.” Astro–Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 12 (1st

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Cir. 2009).

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The First Circuit has stated the factors to be considered by the District Court in

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making its determination under § 1404(a), which include: 1) the convenience of the parties

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and witnesses, 2) the availability of documents, 3) the order in which jurisdiction was

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obtained by the district court, and 4) the possibilities of consolidation. Coady v. Ashcraft &

Civil No. 3:15-CV-1772 (JAF)

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Gerel, 223 F.3d 1, 11 (1st Cir. 2000) (citation omitted). “[T]here is a strong presumption in

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favor of the plaintiff’s choice of forum.” Id. The party seeking to transfer, here Defendant

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Duran, has the burden of proof to disrupt that presumption. Id.

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Defendant Duran has failed to demonstrate that a transfer of this matter to the

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Southern District of Florida is necessary “for the convenience of the parties and witnesses, in

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the interest of justice.” First, Duran failed to specify the key witnesses who are located

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outside the District of Puerto Rico and what their testimony would likely cover. Duran

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mentions his wife, son, and Rubén García-Sarraff, all of whom live in Florida. However, we

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do not know why or how these individuals are key witnesses to the underlying breach of

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contract claim.

Additionally, with respect to Rubén García-Sarraff, given his apparent

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essential testimony on behalf of Plaintiff G&G, it appears that he will be available

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throughout the discovery period and for the trial of this matter. In fact, Mr. García-Sarraff

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has explicitly stated that he will be available to travel to Puerto Rico as needed for this

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litigation. (ECF No. 35-2 at 4).

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On the contrary, G&G identified fourteen witnesses having discoverable information

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relating to the underlying case, all of whom live in Puerto Rico. It appears to the court that

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the only real reason to transfer this matter to Florida is for the convenience of Defendant

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Duran.

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inconvenience from one party to the other.” Kleinerman v. Luxtron Corp., 107 F.Supp.2d

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122, 125 (D.Mass 2000) (citations omitted); Canatelo, LLC v. Bosch Sec. Systems, Inc. 959

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F.Supp.2d 220, 223 (D.P.R. 2013).

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maintaining venue in Puerto Rico.

However, “transfer is not appropriate where its effect is merely to shift the

Accordingly, the first factor weighs in favor of

Civil No. 3:15-CV-1772 (JAF)

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The second factor, the availability of documents, also does not warrant a transfer from

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Plaintiff G&G’s chosen forum to the Southern District of Florida. Defendant Duran argues

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that the majority of the documents are in the possession of witness García-Sarraff, who is

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located in Florida. Plaintiff G&G attached a declaration from Mr. García-Sarraff in which

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Mr. García-Sarraff asserts that he is “available and willing to travel to Puerto Rico for any

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and all dealings in connection with the instant litigation…” (ECF No. 35-2 at 4).

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Additionally, if Mr. García-Sarraff, the documents, and Defendant Duran are indeed located

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in Florida, delivery of said documents would not be made any easier by the transfer of the

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action to Florida.

Given today’s technology, we see no reason that these purported

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documents cannot be transferred by email or other electronic means. Thus, the second factor

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weighs against a transfer to the Southern District of Florida.

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Finally, the third and fourth factors, the possibility of consolidation and the order in

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which jurisdiction was obtained, do not favor venue in the Southern District of Florida over

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Puerto Rico. There does not appear to be an identical or similar suit related to this matter

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that has been filed or is currently ongoing in the Southern District of Florida.

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Therefore, Defendant Duran has not met his burden under the First Circuit’s

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established four factors for analyzing whether a court should, in its discretion, transfer venue

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pursuant to § 1404(a). The “strong presumption” in favor of Plaintiff’s choice of forum

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remains undisturbed. Defendant Duran’s motion is DENIED.

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IT IS SO ORDERED.

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San Juan, Puerto Rico, this 16th day of November, 2015.

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S/José Antonio Fusté
JOSE ANTONIO FUSTE
U. S. DISTRICT JUDGE