Cleco Mfg v. Dura-Crete CV-97-274-SD 11/26/97 UNITED STATES DISTICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Cleco Manufacturing, Inc.

v. Civil No. 97-274-SD

Dura-Crete, Inc.

O R D E R

This case is a contract action before the court on diversity

jurisdiction. The underlying dispute arose out of plaintiff

Cleco Manufacturing, Inc.'s sale of eguipment to defendant Dura-

Crete. Cleco initiated the case against Dura-Crete claiming

damages due for breach of contract, or under a theory of guantum

meruit. Dura-Crete has asserted a host of cross-claims based on

breach of contract, breach of express and implied warranties, and

various negligence theories. Now before the court is Dura-

Crete' s motion to transfer the case from the District of New

Hampshire to the Southern District of Indiana pursuant to

(a) (1994) .

Background

Cleco, a Connecticut corporation with its principal place of

business in New Hampshire, is a manufacturer of industrial machinery. Dura-Crete is an Ohio corporation and has its

principal place of business in Ohio.

In 1995 Dura-Crete began construction of an Indiana plant to

make concrete industrial products. Dura-Crete hired a contractor

who contracted with several subcontractors to construct the

plant. Dura-Crete also entered into an agreement with Cleco to

provide a central mix batch plant machine and a multi-station

manhole machine.

Cleco designed and manufactured the machines in Londonderry,

New Hampshire, and delivered them to the plant in Indiana. Cleco

claims that it provided the machines in accordance with the

contract, but that Dura-Crete has failed to pay the consideration

reguired by the contract. Cleco instituted the present action to

recover the amount it claims is due under the contract.

Dura-Crete contends that Cleco breached the contract by

delivering the eguipment late and providing machinery that did

not meet the contract specifications or that was defective.

Dura-Crete claims that the delay prevented its contractor from

completing the plant on time and that Cleco's failure to provide

adeguate instructions caused further delays. Because the

machines were not automated as Dura-Crete expected, Dura-Crete

contends it needed to hire two other companies to automate the

machines.

2 Cleco denies Dura-Crete's assertions and counters that

misuse of the machines and Dura-Crete's and its contractor's

negligence caused any damages.

Discussion

Section 1404(a) allows a district court to transfer any

civil action to any other district where it might have been

brought when such a transfer increases the convenience of the

parties and witnesses and is in the interest of justice. See

(a) (1994). Cleco does not dispute that this case

could have been brought in Indiana.

"Section 1404(a) is intended to place discretion in the

district court to adjudicate motions for transfer according to an

'individualized case-by-case consideration of convenience and

fairness.'" Stewart Org., Inc. V. Ricoh Corp.,

(1987) (guoting Van Pusan v. Barrack,

(1964)).

It is the movant who must demonstrate "that [the] factors

predominate in favor of the transfer." See Buckley v. McGraw-

Hill, Inc.,

(D.N.H. 1991). The court

should accord deference to the plaintiff's choice of forum. See

Anderson v. Century Products Co.,

(D.N.H.

1996). However, section 1404(a) does not merely codify the

common law doctrine of forum non conveniens, but rather allows

3 "courts to grant transfers upon a lesser showing of

inconvenience." Norwood v. Kirkpatrick,

(1955).

Thus the court has broad discretion to grant or deny change

of venue based upon the convenience of the parties and witnesses,

as well as practical concerns such as the availability of

compulsory process and consideration of which court is more

familiar with the applicable law. See D'Allesandro v. Johnson &

Wales Univ., Civ. 94-543-SD,

, at *1 (D.N.H. Mar.

16, 1995);

. The burden is

upon the movant to show that these factors outweigh the

plaintiff's interest in choosing his or her forum.

In weighing the convenience of the parties, the court will

consider their respective residences, the cost to the parties of

litigating in the alternate forums, and the financial strength of

the parties. See

;

D'Allesandro, supra,

, at *2. In this case, both

parties argue, not that their opponent's chosen forum is

inconvenient, but that their preferred forum does not

inconvenience their opponent.

New Hampshire, as evinced by Cleco's choice of forum, is a

more convenient forum for Cleco. Cleco's principal place of

business is in New Hampshire. Transfer to Indiana would reguire

Cleco to incur increased litigation costs. However, there is no

4 indication that Cleco does not possess the financial strength to

absorb these costs. Furthermore, consideration of the financial

strength of the parties "is usually only applicable to situations

where an individual is suing a large corporation and thus would

not be applicable here." Aquatic Amusement Assoc. V. Walt Disney

World.

(N.D.N.Y. 1990).

On the other hand, Dura-Crete is an Ohio corporation with

its principal place of business in Ohio. Thus Dura-Crete will

incur the costs of defending this litigation outside its home

state, regardless of whether the court transfers the case.

Although the court recognizes that traveling to New Hampshire

would be more burdensome, the added convenience to Dura-Crete

does not weigh heavily in favor of transfer to Indiana.

Thus the court finds that the convenience of the parties,

being roughly egual, does not favor transferring this case to

Indiana.

Convenience of the witnesses is the most important factor

that the court must consider. See

0; C harles W r i g h t , et a l ., 15 F e d e r a l Practice and Procedure § 3851

(1986). Section 1404(a) reguires the court to consider the

convenience of the witnesses to protect parties and non-parties

from unnecessary inconvenience and expense. See Van Dusen v.

Barrack, supra,

. However, this factor should not

5 be merely a battle of numbers decided in favor of the party who

can craft the longest list of in-state witnesses. See

934 F. Supp. at 149. The court should give primary

consideration to witnesses whose testimony will be central to the

trial. See id. The court also will give the convenience of

expert witnesses less emphasis. See W r i g h t , supra, § 3852.

In this case, both sides, coincidentally, have produced

lists of fifteen witnesses for whom testifying in their

opponent's preferred forum would be difficult or impossible.

Dura-Crete's list includes contractors and subcontractors who

were involved in constructing the plant and installing the Cleco

eguipment, employees of the companies that Dura-Crete hired to

automate the machines, as well as former and current Dura-Crete

employees, all of whom are residents of Indianapolis. Dura-Crete

intends to call these witnesses to testify about the problems

Dura-Crete encountered with the Cleco machines, the lack of

adeguate instructions, and damages caused by the nonperformance

of the eguipment. These witnesses clearly are central to Dura-

Crete' s claims that the eguipment did not conform to the contract

specifications, that Cleco breached warranties, and that the

machines were defective. The testimony of these witnesses is

also pertinent to determining Dura-Crete's damages and is

relevant to Cleco's defense that Dura-Crete misused the eguipment

and was contributorily negligent.

Cleco's list of witnesses consists of nine New Hampshire

6 residents, three Massachusetts residents, one resident of

Vermont, and two Canadians. The court rejects the claim that the

convenience of the Canadian witnesses favors New Hampshire.

These witnesses, who will be traveling from Montreal, will

require airline transportation and hotel accommodations,

regardless of whether they testify in New Hampshire or Indiana.

C f . Studienqesellschaft Kohle MBH v. Shell Oil Co., Civ. 93-1868

(PKL)

, at * 4 (S.D.N.Y. Oct. 8, 1993) (holding

appearing in Texas instead of New York increased burden to German

plaintiff only marginally). However, the convenience of the

Massachusetts and Vermont witnesses does weigh in favor of New

Hampshire.

The court also suspects that some of Cleco's witnesses may

be characterized more properly as expert witnesses.

Specifically, Peter Wagner, David Kobisky, and Doug Carr do not

appear, according to Cleco's memorandum, to posses personal

knowledge about the machines sold to Dura-Crete. See Memorandum

of Law in Support of Plaintiff's Objection to Defendant's Motion

to Change Venue at 6-7. Instead, these witnesses will provide

general testimony about the operation of the type of machines

involved and opinion testimony about the quality of Cleco

machines and their component parts.

The remaining Cleco witnesses are employees or contractors

who will testify about the design of the equipment Cleco sold to

Dura-Crete. This testimony is central both to Cleco's contention

7 that the equipment met contractual specifications and to refute

Dura-Crete's claim that the machines were defective.

Thus either choice of forum would inconvenience key

witnesses. However, because more of the central witnesses are

located in Indiana, this factor weighs in favor of transfer.

Consideration of witnesses does not end with their

convenience, however. The court must now weigh the interest of

justice. Because justice is better served when testimony is

live, the court must consider the availability of compulsory

process to compel the testimony of key witnesses. See Gulf Oil

Corp. v. Gilbert,

(1947) ("to fix the place of

trial at a point where litigants cannot compel personal

attendance and may be forced to try their cases on deposition, is

to create a condition not satisfactory to court, jury or most

litigants");

. In this

calculation, the court discounts witnesses who are employees of a

party because the court assumes their attendance can by obtained

by that party. See W r i g h t , supra, § 3851.

Both parties to this case, as discussed above, would like to

call witnesses who are outside the jurisdiction of their

opponent's preferred forum. Cleco's list of witnesses includes

eight potential witnesses who are non-employees and are within

the jurisdiction of the New Hampshire court. Dura-Crete plans to

call twelve non-employee witnesses who are Indianapolis

residents. The court finds that the preference for live testimony

favors Indianapolis. Although the court recognizes that there

are key witnesses on both sides whom the court cannot compel to

testify in the alternate forum, the court finds that this factor

weighs in Dura-Crete's favor because it has more key witnesses in

Indianapolis and all of its witnesses profess first hand

knowledge relevant to central issues in this case.

After weighing all the factors in this case, the court finds

that transfer to Indiana is appropriate. The court is persuaded

by the fact that the most important factor--the convenience of

witnesses--favors transfer. Furthermore, the strong preference

for live testimony dictates that justice will be better served by

transfer to Indiana.

Conclusion

For the above-mentioned reasons, the Motion of Defendant

Dura-Crete, Inc. To Change Venue (document 9) must be and

herewith is granted.

SO ORDERED.

Shane Devine, Senior Judge United States District Court

November 26, 1997

cc: Jeffrey B. Osburn, Esg. Lawrence M. Edelman, Esg. Mark C. Bissinger, Esg.