OPINION AND ORDER
Plaintiffs, The Trustees of the University of Pennsylvania (“Penn”) and Indian Harbor Insurance Company (“Indian Harbor”), bring this action for declaratory judgment, pursuant to 28 U.S.C. § 2201, against defendant Factory Mutual Insurance Company d/b/a FM Global (“FM”). Plaintiffs jointly seek a declaration that an insurance policy issued by FM to Penn provides coverage for damages Penn sustained at its veterinary hospital. Indian Harbor further seeks a judgment declaring that its own policy with Penn covers only those damages in excess of those covered by the FM policy or, in the alternative, that Indian Harbor’s obligation should be apportioned based on the respective policy limits of the Indian Harbor and FM policies.
Defendant FM filed the instant motion to transfer venue to the Eastern District of Pennsylvania, pursuant to 28 U.S.C. § 1404(a), on April 25, 2005. It argues that transfer would advance the convenience of parties and witnesses as well as the interests of justice. Plaintiffs Indian Harbor and Penn oppose the motion and wish to remain in the Southern District of New York. For the reasons that follow, the Court finds that FM has borne its burden, and defendant’s motion to transfer is granted.
BACKGROUND
Plaintiff, Penn, is a Pennsylvania not-for-profit corporation, which owns the New Bolton Center Veterinary Hospital (“NBC”) located in Chester County, Pennsylvania. (Complaint (“Compl.”) ¶¶ 1,6.) Penn is insured by plaintiff Indian Harbor and defendant FM under two separate insurance policies. (Id. ¶ 1.) Indian Harbor is incorporated in North Dakota, but conducts insurance business throughout the United States, including New York. (Id. ¶ 5.) FM is incorporated and has its primary place of business in Rhode Island, and conducts insurance business in New York. (Id. ¶ 7.)
FM’s policy insures Penn against all risk of property loss and damages up to $1 billion, from July 1, 2003 to July 1, 2004.
(Id.
¶ 8.) The FM policy was negotiated, underwritten, issued and serviced by Thomas Tarczali, a Connecticut-based Senior Account Manager at FM. (Affidavit of Thomas E. Tarczali (“Tarczali Aff.”) ¶ 2.) Tarczali negotiated the policy with Ian Anderson, a Vice President at Marsh USA, Penn’s insurance broker. This occurred primarily in Connecticut, but Tarczali also met with Anderson and Kenneth Hoffman, Penn’s Director of Risk Management and Insurance, in Pennsylvania.
(Id.
¶ 3.) Tarczali sent the binder that led to the issuance of the FM policy to Hoffman in Pennsylvania on July 1, 2003, and issued
Indian Harbor issued a Pollution and Remediation Legal Liability Policy that provided coverage for Penn from July 1, 2003 to July 1, 2006. The Indian Harbor policy coverage was limited to $2 million for each loss, remediation or legal defense expenses, and to $6 million in the aggregate, with a self-insured retention (akin to a deductible) of $50,000, and was to cover loss in excess of that covered by any other valid and collectible insurance policy. (Id. ¶ 9.) The Indian Harbor policy contains a forum selection clause under which Penn and Indian Harbor agree to resolve any dispute arising from the policy in New York State, and submit to New York State law. (Affidavit of Nolan C. Burkhouse, Esq. (“Burkhouse Aff.”) at 11.)
In March 2004, a number of animals at the NBC fell victim to an outbreak of Salmonella Newport which impacted several of NBC’s barns and its neo-natal care unit. (Compl. ¶¶ 10-11, 14.) NBC’s efforts to control the outbreak were unsuccessful, and Penn was forced to close the center completely from May 2004 through August 2004. (Id. ¶ 12.) In order to decontaminate the clinic, NBC sandblasted its walls, repainted, removed semi-porous materials, including mats and flooring, and undertook additional cleaning measures. (Id. ¶ 13.) Penn reported its claim to both insurers, asserting a loss to property of $3 million, less any deductible or self-insured retention, and seeking to recover cleanup costs and business interruption expense. (Id. ¶¶ 15-16.) FM assigned Steven Gioia, a Pennsylvania-based General Adjuster for the company, to assess the Penn claim. (Affidavit of Steven A. Gioia (“Gioia Aff.”) ¶ 2.) Gioia traveled to the site and physically inspected the claimed damage.
By letter to Penn on December 1, 2004, Indian Harbor stated it was prepared to cover Penn’s loss in excess of that covered by the FM policy. (Compl. ¶ 17, Ex. C.) However, on February 16, 2005, FM denied Penn’s claim on the grounds that Penn failed to show physical loss to property, and that the claimed loss fell under the pollution exclusion in the FM policy. (Id. ¶ 18.) FM also claimed that the Indian Harbor policy should apply before the FM policy. (Id. ¶ 18, Ex. D.)
On March 4, 2005, Indian Harbor and Penn filed the instant suit against FM seeking declaratory judgment that the FM policy (1) provides valid and collectible insurance for Penn’s loss up to $1 billion, subject to Penn’s applicable deductible; (2) is sufficient to cover Penn’s loss; and, (3) must be exhausted before the Indian Harbor policy applies. (Id. ¶ 19.) In the alternative, Indian Harbor maintains that coverage should be apportioned in accordance with the respective coverage limits of the FM and Indian Harbor policies. (Id. ¶ 19.) FM now petitions the Court for a transfer of venue to the Eastern District of Pennsylvania under 28 U.S.C. § 1404(a), for the convenience of parties and witnesses, and in the interest of justice.
DISCUSSION
I. Transferring Venue
Title 28 United States Code Section 1404(a) provides that, “for 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). The statute is purposed to prevent waste “ ‘of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense.’”
Generale Bank, New York Branch v. Wassel,
Defendant-movant bears the burden of establishing that plaintiffs’ choice of forum is inappropriate.
Factors Etc., Inc. v. Pro Arts, Inc.,
The Court assesses the balance of convenience and the interest of justice by weighing: (1) the convenience of witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof;
2
(3) the convenience of
A. Convenience of Witnesses
To determine whether transfer is appropriate, the Court looks to the “center of gravity of the litigation,” as judged primarily by the convenience of witnesses.
Cuzzupoli v. Metro-North Commuter R.R.,
No. 02 Civ. 7947,
Plaintiffs argue that the convenience of witnesses carries little weight in this case because resolution of the dispute between plaintiffs and defendant turns on a legal determination of the extent to which, if at all, FM’s policy covers Penn’s loss. (Pis.’ Opp’n at 5.) Plaintiffs claim that, because most insurance coverage disputes are decided as a matter of law on motions for summary judgment, witness convenience is not an important factor.
(Id.
citing
Cont’l Ins. Cos. v. Wickes Cos., Inc.,
No. 90 Civ. 8215,
At the time of FM’s investigation, Penn supplied Gioia with the names of veterinary doctors, researchers and administrators with knowledge of the cause of the Salmonella outbreak. FM now claims that these people are material witnesses in the instant dispute: (1) Dr. Helen Aceto, NBC’s Interim Biosecurity Officer; (2) Dr. David M. Nunamaker, Y.M.D., NBC’s Chair of Clinical Studies; (3) Dr. Barbara Dallap, NBC’s Assistant Professor of Emergency Medicine and Critical Care; (4) Bruce Rappoport, NBC’s Director; (5) Dr. Shelley Rankin, Ph.D., NBC’s Assistant Professor and Clinical Epidemiologist; (6) Barry Stupine, NBC’s Associate Dean; (7) Erika Gross, an employee in Penn’s Risk Management Office in Pennsylvania; (8) Kenneth Hoffman, same; (9) Joanna Zappala, a Pennsylvania-based employee of Penn’s insurance broker, Marsh USA; (10) and, Joseph Latrechiano, same. (Gi-oia Aff. ¶¶ 3-4.)
1. Propriety of Considering Plaintiffs’ Witnesses
FM has sufficiently identified and described the possible testimony of ten Pennsylvania-based witnesses: Steven Gioia, FM’s General Adjustor, five NBC staffers, and two employees of Penn’s Office of Risk Management. 4 (Id. ¶¶ 1-3.) Seven of these material witnesses are Penn employees, (Id. ¶ 3). Consistent with their argument that this claim is to be decided as a matter of law, plaintiffs do not directly designate these individuals as their witnesses. (Hoffman Aff. ¶ 5). However, plaintiffs advised the Court that the individuals named will be made available and “may be called to testify in this case at trial.” (Id.) The Court therefore considers them plaintiffs’ witnesses for the purposes of its balancing test.
Several courts have held that a defendant cannot cite to the inconvenience of plaintiffs witnesses in support of its motion to transfer venue.
See Williams v. Nat’l Hous. Exch. Inc.,
2. Materiality of Gioia’s Proposed Testimony
While “[c]ourts routinely transfer cases when the principal events occurred, and the principal witnesses are located, in another district,”
Cuzzupoli,
FM argues that Gioia is material because he is “familiar with the claim and coverage issues related to the claim.” (Def.’s Mem. at 15). Plaintiffs argue that Gioia is immaterial because the matter should be decided on the law, maintaining that “this is an insurance coverage matter about which there is little dispute regarding the facts.” (Pls.’ Opp’n at 5.) Plaintiffs further assert that claims adjusters are generally considered by the Courts in this District to be immaterial witnesses. (Pls.’ Opp’n at 6 (citing
Mitsui Marine & Fire Ins. Co. v. Nankai Travel Int'l Co.,
First, the Court notes that these cases are inapposite to evaluating Gioia’s testimony because they stand for the proposition that, where the claims adjuster and witnesses are geographically distinct, eye witness testimony trumps that of the claims adjuster’s evaluation of the cold record. Here, both the claims adjuster and the eye witnesses reside in Pennsylvania. Further, Gioia actually visited the NBC site, unlike the claims adjusters in TM Claims Serv. and Royal & Sunalliance.
Second, it is clear to the Court that factual issues require resolution in this litigation. Plaintiffs’ assertion that the FM policy provides “valid and collectible insurance for Penn’s loss” (Compl. ¶ 19) is directly at odds with FM’s defense that Penn failed to show physical loss to property outside of that excluded from coverage under the FM policy’s pollution exclusion. (Defendant FM’s Answer at 6.) FM disputes not only the legal breadth of its policy coverage, but also the sufficiency of Penn’s claimed loss. This controversy turns, in part, on a categorization of the loss at issue; an inherently factual determination requiring the testimony of Penn and NBC staff juxtaposed against Gioia’s onsite analysis.
Thus, Gioia is a material witness and his convenience weighs in favor of transfer. 5
“Where there is no material connection between the district and’the operative facts, ... the interests of justice require the transfer of [the] action.”
Manao Invests.,
Here, while it is unclear whether Pennsylvania is the locus of operative facts, it is clear that New York is not, because: (1) the FM policy was underwritten, negotiated, issued and serviced in Connecticut, (Tarczali Aff. ¶¶ 1-2), and (2) the policy was made either in Connecticut between Marsh and FM insurance personnel (id. ¶ 3) or in Philadelphia, between FM and Penn staff to whom FM issued the policy (id. ¶ 4). That FM also sent the policy to Marsh’s New York office as a courtesy (id.) is insufficient to show the contract was created in New York. Moreover, the policy clearly states that it was issued to the Trustees of the University of Pennsylvania. (Compl. Ex. A.) FM has demonstrated that its policy was not made in the Southern District of New York, and that the policy was formed, at least in part, in Pennsylvania. The locus of operative facts analysis therefore favors transfer to Pennsylvania.
C. Plaintiffs’ Forum Selection Power
Plaintiffs’ choice of forum “is entitled to significant consideration and will not be disturbed unless other factors weigh strongly in favor of transfer.”
Royal & Sunalliance,
However, plaintiffs’ chosen forum carries less weight when no party resides in the forum nor is it the locus of operative facts.
See Chet Baker Enters., L.L.C. v. Fantasy, Inc.,
This precept is applicable to the instant action, where neither Indian Harbor, Penn, nor FM reside in New York, and, while the locus of operative facts is undefined, it is definitely not New York. Plaintiffs argue that their choice of forum is entitled to significant weight regardless of their residence. (Pls.’ Opp’n at 15 (citing
GPA Inc.,
In sum, New York is neither Indian Harbor nor Penn’s home forum, nor is it the locus of operative facts, as discussed supra Discussion Part I.B. Therefore, this Court will not give great weight to plaintiffs’ choice of forum.
D. Forum’s Familiarity with Governing Law
If tried in the Southern District, the instant action will be governed by New York State choice of law principles.
Klaxon Co. v. Stentor Elec. Mfg. Co.,
E. Trial Efficiency and the Interest of Justice
The Court’s consideration of whether transfer is in the interest of justice is “based on the totality of the circumstances,”
Mitsui Marine,
In support of its argument for transfer, FM points to the relative congestion of the Eastern District of Pennsylvania and Southern District of New York dockets. (Def.’s Mem. at 19; Wolf Aff. ¶ 2.) “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.”
Miller,
FM also asks that the Court consider the “local interest in having localized controversies decided at home.”
Sheet Metal Workers’ Nat. Pension Fund v. Gallagher,
Moreover, plaintiffs do not offer witnesses, documents or any other factors to counter the totality of factors demonstrating that New York is the appropriate venue for this action. Thus, the Court is not concerned that transfer will “switch the balance of inconveniences from one side to the other,”
Stinnes Interoil, Inc. v. Apex Oil Co.,
For these reasons, the Court finds that, under the totality of circumstances, trans-fenbest serves the interest of justice.
Because the locus of operative facts in the instant action lies outside of the Southern District of New York and neither plaintiff resides there, plaintiffs do not merit the Court’s presumption in favor of their choice of New York as the forum for this litigation. The fact that the locus of operative facts likely lies in Pennsylvania weighs strongly in favor of transfer. Also in favor of transfer is the Eastern District of Pennsylvania’s familiarity with the anticipated governing law, and the relative lightness of its docket as compared to the Southern District of New York. Moreover, plaintiffs fail to explain why, outside of a forum selection clause irrelevant to the present litigation, the instant Court is the appropriate venue or what inconvenience would be incurred by transfer to the Eastern District of Pennsylvania. Based on the above, the Court finds that FM has made a “clear-cut showing that transfer is in the best interests of the litigation.”
Miller,
CONCLUSION
For the foregoing reasons, defendant FM’s motion to transfer venue to the Eastern District of Pennsylvania, pursuant to 28 U.S.C. § 1404, is hereby GRANTED.
SO ORDERED.
Notes
. Section 1404(a) provides that an action could properly have been brought in another forum "if, at the time the action was originally filed, the transferee court would have had subject matter jurisdiction and personal jurisdiction over the defendants, and if venue would have been proper in the transferee court.”
Posven, C.A. v. Liberty Mut. Ins. Co.,
. The Court does not consider defendant’s claim that many documents may be found in Pennsylvania, as the location of documents is entitled to little weight unless defendant makes a "detailed showing of the burden it would incur absent transfer.”
Royal Ins.,
. The Court does not consider defendant's claimed inconvenience as the inconvenience of defending a suit in the Southern District of New York "cannot be overwhelming” when defendant previously appeared in actions in that district.
Bristol-Myers Squibb Co. v. Andtx Pharm., LLC,
No. 03 Civ. 2503,
. FM has not alleged with sufficient specificity the content of the Philadelphia-based Marsh USA brokers’ testimony. FM merely states that the brokers are “personnel familiar with the claim and coverage issues related to the claim” (Def.’s Mem. at 15), and provides no further information regarding their anticipated testimony. As a result, the Court does not consider them in its convenience analysis. Further, because these are the only two non-party witnesses proffered, the Court does not address defendant’s argument that transfer is necessary to ensure witnesses are subject to the trial court's subpoena power.
See TM Claims Serv. v. KLM Royal Dutch Airlines,
. The Court acknowledges that the measure of Gioia's inconvenience is relative to the