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William C. Altreuter
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Friday, June 05, 2009

Good article in the New York Law Journal by Edward M. Spiro and Judith L. Mogul on motions to transfer pursuant to 28 U.S.C. §1404(a). Forum non conviens motions have been a staple item in our practice for years, and the law has evolved substantially. The criteria to be considered-- the eight-pronged test, are (1) the convenience of witnesses; (2) the convenience of parties; (3) the location of relevant documents and the relative ease of access to sources of proof; (4) the locus of the operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) the comparative familiarity of each district with the governing law; (8) the weight accorded to plaintiff's choice of forum; and (9) judicial economy and the interests of justice. Although the law has been pretty well set for a long time, it's been our observation that the courts, particularly the Southern District, have become less inclined to grant this relief absent a pretty compelling evidentary showing. You really have to come in armed with affidavits from likely witnesses demonstrating that their testimony will be essential, and establishing that travel will work a substantial hardship. Judge Baer's opinion in Capitol Records, LLC v. VideoEgg Inc. drives this home: the court "should... assess the materiality, nature and quality of the testimony that the witnesses are likely to provide."

That means that counsel has to really front-load the necessary investigation and essentially lay bare the plan of proof. Over the years we've been able to do that, and the results have pretty consistently demonstrated that it's been worth it-- venue can make a big difference in the ultimate outcome.

It's interesting that where a party must travel anyway the burden of traveling a longer amount of time is not legally significant because that's the way federal judges think. Regular people would tell you that Buffalo to New York is different from Buffalo to LA, but to a federal judge that's crazy talk.

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