UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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ARNOLD JACKSON, 

 Plaintiff,

 -againstWATERMAN STEAMSHIP CORP., 

 

Defendant.

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07 CV 3320 (SHS)

MEMORANDUM OF LAW IN SUPPORT OF 

DEFENDANT’S MOTION TO TRANSFER VENUE TO THE 

EASTERN DISTRICT OF LOUISIANA

JUNGE & MELE, LLP

Attorneys for Defendant

29 Broadway – 9th Floor

New York, NY 10006

(212) 269-0061

Of Counsel,

Peter A. Junge (PJ-0745)

Glenn G. Goodier (La. Bar #6130)

Lance M. Sannino (La. Bar #29409)

JONES, WALKER, WAECHTER,

POITEVENT CARRIÈRE & DENÈGRE, LLP

201 St. Charles Avenue – 48th Floor

New Orleans, LA 70170-5100

Case 1:07-cv-03320-SHS Document 9 Filed 07/27/2007 Page 1 of 24
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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES.................................................... ii

SUMMARY OF THE ARGUMENT. .............................................. 1

SUMMARY OF THE CASE. ................................................... 2

LAW AND ARGUMENT. .................................................... 8

I. WATERMAN STEAMSHIP’S MOTION TO TRANSFER VENUE PURSUANT TO

28 U.S.C. §1404(A) SHOULD BE GRANTED. ............................... 8

A. Legal Standard Under 28 U.S.C. §1404(A) .......................... 8

B. Application of the Relevant Factors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

1. Availability and Convenience of the Witnesses and Parties. . . . . . 10

2. Location of Relevant Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . 13

3. Locus of Operative Facts. ................................ 14

4. Availability of Process to Compel Attendance of Unwilling

Witnesses. ............................................ 14

5. The Relevant Means of the Parties. . . . . . . . . . . . . . . . . . . . . . . . . . 16

6. The Forum’s Familiarity with the Governing Law.. . . . . . . . . . . . . 17

7. Weight Accorded Plaintiff’s Choice of Forum. . . . . . . . . . . . . . . . 17

8. Trial Efficiency......................................... 18

CONCLUSION............................................................ 19

Case 1:07-cv-03320-SHS Document 9 Filed 07/27/2007 Page 2 of 24
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TABLE OF AUTHORITIES

Federal Cases Page(s)

Ayers v. Arabian American Oil Company, 571 F.Supp. 707. .................... 1,18

Barnett v. Kirby Inland Marine, Inc., 202 F.Supp.2d 664.......................... 8

Blake v. Delta SS Lines, 1986 AMC 558. ................................. passim

Brown v. Parker Drilling Offshore Corp., 410 F.3d 166........................... 5

Continental Grain Co. v. Barge FBL-585, 364 U.S. 19. ......................... 9

Cutrer v. Lykes Bros. Steamship Co., Inc., 1987 U.S. Dist. LEXIS 18. . . . . . . . . . . . . 7,11

DeMateos v. Texaco, Inc., 562 F.2d 895. ...................................... 6

Faucette v. Lykes Bros. S.S. Co., Inc., 110 F.Supp. 287. ..................... 7,12,13

Fontana v. E.A.R., a Div. of Cabot Corp., Inc., 849 F.Supp. 212. ............... 15,16

Foster v. United States Lines Co., 227 F.Supp. 946. .......................... 7,12

Fuji Photo Film Co. Ltd. v. Lexar Media, Inc., 415 F.Supp.2d 370. . . . . . . . . . . . . . . 1,18

Gomino v. Mississippi Shipping Co., 217 F.Supp. 895......................... 7,12

Handigran v. Travis & Natalie, Inc., 379 F.Supp.2d 83, 84. ....................... 7

Hernandez v. Graebel Van Lines, 761 F.Supp. 983.............................. 16

Hoppe v. G.C. Searle & Company, 638 F.Supp. 1271......................... 14,15

Hubbell Inc. v. Pass & Seymour, Inc., 883 F.Supp. 955. ....................... 9,17

Jacobs v. First Shipmore, 1984 AMC 1566. ............................ 2,7,11,12

Jacobsen v. Vivian Tank Ships, 1983 AMC 2438. ............................... 2

Case 1:07-cv-03320-SHS Document 9 Filed 07/27/2007 Page 3 of 24
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Jauch v. Nautical Services, Inc., 470 F.3d 207. ................................. 5

McCorpen v. Central Gulf S.S. Co., 396 F.2d 547. .............................. 5

Moore v. Telfon Communications Corp., 589 F.2d 959. .......................... 9

Norwood v. Kirkpatrick, 349 U.S. 29. ........................................ 9

Piper Aircraft Co. v. Raynaud, 454 U.S. 235. ................................ 8,9

Pure Oil Co. v. Suarez, 384 U.S. 202. ........................................ 6

Resources Investment Corporation v. Hughes Tool Company, 561 F.Supp. 1236. . . . . . . 9

Saleeby v. Amoco Shipping Company, 1977 U.S. Dist. LEXIS 13119. . . . . . . . . . . 7,11,12

Southeast Equipment Company v. Union Can Corporation, 498 F.Supp. 164. . . . . . 15,16

The Orb Factory Ltd. v. Design Science Toys, Ltd., 6 F.Supp. 2d 203. . . . . . . . . 8,9,16,17

Wilshire Credit Corp. v. Barrett Capital Management Corp., 976 F.Supp. 174.. . . . 8,9,10

Zepherin v. Greyhound Lines, Inc., 415 F.Supp.2d 409. ....................... 1,18

ZPC 2000 Inc. v. SCA Group, Inc., 86 F. Supp. 2d 274. ...................... 17,18

Federal Statutes

28 U.S.C. §98(a). ........................................................ 8

28 U.S.C. §1391(c). ...................................................... 6

28 U.S.C. § 1404(a). ................................................. passim

Case 1:07-cv-03320-SHS Document 9 Filed 07/27/2007 Page 4 of 24
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Defendant, Waterman Steamship Corporation (hereinafter referred to as 

“Waterman Steamship”), respectfully submits this Memorandum in Support of its 

Motion to Transfer the above-entitled action to the United States District Court for 

the Eastern District of Louisiana pursuant to 28 U.S.C. §1404(a) on the grounds 

that transfer herein is appropriate for the convenience of all parties and witnesses 

concerned, and transfer would only serve the ends of justice. 

SUMMARY OF THE ARGUMENT

As shown more fully below, the only connection this action has with the 

Southern District of New York is that plaintiff’s counsel, Larry Arcell, has 

recently re-located to this area, and upon information and belief, is awaiting 

admission to practice. This Court has, however, on numerous occasions held that 

the presence of plaintiff’s counsel alone is not controlling, and could not possibly 

counter the overwhelming bases supporting transfer herein. See, e.g., Zepherin v. 

Greyhound Lines, Inc., 415 F.Supp.2d 409 (S.D.N.Y. 2006); Fuji Photo Film Co. 

Ltd. v. Lexar Media, Inc., 415 F.Supp.2d 370 (S.D.N.Y. 2006); Ayers v. Arabian 

American Oil Company, 571 F.Supp. 707, 709, n. 1 (S.D.N.Y. 1983). 

Rather, this case bears no relation to the State of New York in any respect. 

All of the parties concerned and all of the material witnesses identified to date, 

including plaintiff and his treating physicians, reside in the Eastern District of 

Louisiana – well beyond this Honorable Court’s subpoena power. Also, all of the 

pertinent documents, including all medical records and employment records of Mr. 

Jackson, are located in New Orleans as well. These undisputed facts, and in 

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particular the fact that plaintiff’s current treating physicians and prior treating 

physicians reside in New Orleans, only serve to reinforce the practicality of the 

transfer requested herein. See, e.g., Jacobs v. First Shipmore, 1984 AMC 1566 

(S.D.N.Y. 1983) and Jacobsen v. Vivian Tank Ships, 1983 AMC 2438 (S.D.N.Y. 

1983). 

What's more, plaintiff is in no way prejudiced by the requested transfer 

since suit was filed three months ago and the parties have undertaken no discovery 

to date. In short, the convenience of the parties, potential witnesses, as well as the 

interest of efficient discovery and adjudication of plaintiff’s claim, all warrant 

transfer of venue from this Honorable Court to the United States District Court for 

the Eastern District of Louisiana. 

SUMMARY OF THE CASE

Plaintiff herein, Mr. Arnold Jackson, a resident of Marrero, Louisiana, in 

greater New Orleans, and a former employee of Waterman Steamship, claims to 

have sustained personal injuries on or about November 24, 2006, when he was a 

member of the crew of the M/V ATLANTIC FOREST, a U.S. flag LASH vessel 

owned and/or operated by Waterman Steamship. Specifically, Mr. Jackson claims 

to have sustained injuries to his left shoulder, left arm and/or neck, 

heaving/moving a mooring line on the deck of the M/V ATLANTIC FOREST, 

while the vessel was at sea between the Ports of Bahrain and Shuaiba, Kuwait. 

Although plaintiff claims that he immediately reported his accident, a 

contemporaneously prepared accident report shows that he did not do so until 

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November 27, 2006. See Declaration of Lisa G. Johnston, submitted in support of 

this motion, at ¶11, & Exhibit A therein [hereafter “Johnston Declaration at __”]. 

Following his first report of injury, Mr. Jackson was evaluated by Dr. 

Lubka Simeonovar at the British Medical Center located in Shuaiba, Kuwait. 

Johnston Declaration at ¶12. Dr. Simeonovar diagnosed a left cervical spondylosis 

and declared Mr. Jackson unfit for duty for three days. Several days later, Mr. 

Jackson was once again evaluated by Dr. Simeonovar as a result of continued 

complaints of pain in the left arm and neck. During this second evaluation, Dr. 

Simeonovar recommended conservative treatment, but the decision was 

nonetheless made to repatriate Mr. Jackson to the United States, in particular to 

New Orleans, where Waterman Steamship would and did in fact arrange for his 

further medical treatment with local healthcare providers, including Dr. Gordon 

Nutik and Dr. Lucien Miranne. Johnston Declaration at ¶¶12-13. 

Satisfying its obligations under the general maritime law and contrary to 

Mr. Jackson’s allegations otherwise, Waterman Steamship instituted seaman’s 

benefits following the alleged incident, making both maintenance and cure 

benefits available to Mr. Jackson in New Orleans. Johnston Declaration at ¶¶4, 9. 

However, shortly after making these benefits available, an independent 

investigation performed by Waterman Steamship revealed not one, but a series, of 

prior work-related injuries to the left arm, shoulder, and/or neck sustained by Mr. 

Jackson but not previously disclosed to Waterman Steamship. Johnston 

Declaration at ¶17.

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Specifically, Mr. Jackson was diagnosed with and treated for left arm, 

elbow, and neck injuries on multiple occasions prior to his employment with 

Waterman Steamship. Johnston Declaration at ¶¶18-19. These work-related 

injuries were the basis for two previous lawsuits, not unlike the present one, filed 

by Mr. Jackson. The first of these suits, on December 8, 1994, was an action 

against Liberty Maritime Corporation in the Eastern District of Louisiana for 

injuries suffered to Mr. Jackson’s lower back, neck, left elbow, and left leg as a 

result of a fall from a ladder aboard the M/V LIBERTY SEA. Johnston 

Declaration at ¶18. The second, on November 9, 1999, was filed against 

Transbulk Carriers, Inc., Overseas Shipping Group, Inc., and OSG Ship 

Management, Inc. in the Southern District of Texas, Galveston Division, for 

injuries suffered to Mr. Jackson’s neck and back as a result of a slip and fall 

aboard the M/V OVERSEAS MARILYN. Johnston Declaration at ¶19. Plaintiff 

nonetheless denied having ever sustained any such injuries when specifically 

questioned on the personal medical history section of his pre-employment physical 

for Waterman Steamship. Johnston Declaration at ¶21. Had Waterman Steamship 

known of plaintiff’s prior injuries before his employment, it assuredly would not 

have hired plaintiff as a seaman aboard one of its vessels for fear of the exact 

scenario that he now alleges. 

As a result of the alleged incident aboard the M/V ATLANTIC FOREST, 

plaintiff makes claims for injuries to the same region of his neck, arm, and 

shoulder, which he had previously injured, and for which he had previously 

Case 1:07-cv-03320-SHS Document 9 Filed 07/27/2007 Page 8 of 24
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undergone extensive medical treatment in New Orleans. Johnston Declaration at 

¶20. Accordingly, pursuant to well established precedent set forth by the 

U.S. Fifth Circuit in McCorpen v. Central Gulf S.S. Co., 396 F.2d 547 (5th Cir. 

1968), and later in Brown v. Parker Drilling Offshore Corp., 410 F.3d 166 (5th 

Cir. 2005) and Jauch v. Nautical Services, Inc., 470 F.3d 207 (5th Cir. 2006), 

Waterman Steamship, on February 16, 2007, filed a declaratory judgment action in 

the Eastern District of Louisiana, seeking a declaration that Waterman Steamship 

was relieved of any further obligation to pay maintenance and cure to Mr. Jackson 

as a direct result of his willful and intentional concealment of pre-existing arm, 

neck and shoulder injuries prior to his employment with Waterman Steamship. 

Waterman Steamship filed this action in the Eastern District of Louisiana 

for no other reason than it sought a speedy and cost effective declaration of the 

parties’ respective rights and liabilities for further maintenance and cure payments, 

months after benefits were made available. It did not file the declaratory judgment 

action in lieu of a through investigation as alleged by Mr. Jackson, nor did it race 

to the courthouse in order to prejudice Mr. Jackson through a premature 

adjudication of certain issues. Instead, that federal district court is undeniably a 

court of proper jurisdiction and venue. That is, Mr. Jackson resides and continues 

to reside in greater New Orleans, and it was at this location that he was personally 

served with Waterman Steamship’s Complaint for Declaratory Judgment. 

Additionally, at the time of Mr. Jackson’s alleged accident, Waterman 

Steamship’s principal place of business was in New Orleans, and all of Mr. 

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Jackson’s treating physicians, for both this and his previous personal injury 

lawsuits, are located in New Orleans. Johnston Declaration at ¶¶5, 15, 20. There 

is no question that the Eastern District of Louisiana is the court of proper venue 

for the claims alleged herein. It is by far the most convenient court for all 

involved, and Waterman Steamship certainly had a valid basis for seeking redress 

in that, and only that federal district court. 

Nonetheless, rather than file responsive pleadings in the Eastern District of 

Louisiana and avoid any potential prejudice to his Jones Act and general maritime 

law claims, some two and a half months later, and only in response to that Court’s 

setting of its Call Docket, did Mr. Jackson file his claims in the Southern District 

of New York, urging as the basis for jurisdiction and venue that Waterman 

Steamship was and is a New York corporation, doing business within the 

jurisdiction of this Court. Admittedly, while it is true that Waterman Steamship is 

an entity incorporated under the laws of New York, its principal place of business 

at the time of Mr. Jackson’s alleged accident was New Orleans, making venue 

proper there.1

 1 Venue in a Jones Act case is proper in any district in which the defendant 

is subject to personal jurisdiction. 28 U.S.C. §1391(c). 28 U.S.C. §1391(c) 

permits a corporation to be sued in “any judicial district in which it is incorporated 

or licensed to do business or is doing business, and such judicial district shall be 

regarded as the residence of such corporation for venue purposes.” Pure Oil Co. 

v. Suarez, 384 U.S. 202, 204, 86 S.Ct. 1394, 1395, 16 L.Ed.2d 474 (1966); see 

also, DeMateos v. Texaco, Inc., 562 F.2d 895 (2nd Cir. 1977); see also Johnston 

Declaration at ¶5. 

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Even in a seaman’s Jones Act case, a plaintiff’s choice of venue is subject 

to impeachment. See Handigran v. Travis & Natalie, Inc., 379 F.Supp.2d 83, 84 

(D. Mass. 2005) (noting that “no such rule exists and Jones Act cases are routinely 

transferred under §1404(a).”). In fact, based upon the considerations of 

convenience and efficiency, this Court has seen fit on numerous occasions to 

transfer a seaman’s personal injury claims to a more convenient forum on facts 

nearly identical to those alleged herein. See, e.g., Cutrer v. Lykes Bros. Steamship 

Co., Inc., 1987 U.S. Dist. LEXIS 18 (S.D.N.Y. 1987); Blake v. Delta SS Lines, 

1986 AMC 558 (S.D.N.Y. 1985); Jacobs v. First Shipmore, 1984 AMC 1566 

(S.D.N.Y. 1983); Saleeby v. Amoco Shipping Company, 1977 U.S. Dist. LEXIS 

13119 (S.D.N.Y. 1977); Gomino v. Mississippi Shipping Co., 217 F.Supp. 895 

(S.D.N.Y. 1963); Foster v. United States Lines Co., 227 F.Supp. 946 (S.D.N.Y. 

1961); Faucette v. Lykes Bros. S.S. Co., 110 F.Supp. 287 (S.D.N.Y. 1953). 

In this case, as in the aforementioned cases, each of the several factors that 

guide this Court’s analysis decidedly favors transferring this action to the Eastern 

District of Louisiana. To be sure, the balance of relevant factors in this case is so 

strongly in favor of transfer as to absolutely outweigh any deference paid to 

plaintiff’s choice of forum. For these reasons, the motion to transfer pursuant to 

28 U.S.C. 1404(a) by defendant, Waterman Steamship, should be granted. 

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LAW AND ARGUMENT

I. WATERMAN STEAMSHIP’S MOTION TO TRANSFER VENUE 

PURSUANT TO 28 U.S.C. §1404(a) SHOULD BE GRANTED. 

A. Legal Standard Under 28 U.S.C. §1404(a) 

Section 1404(a) provides that: 

For the convenience of the parties and witnesses, and 

the interest of justice, a district court may transfer any 

civil action to any district court or division where it 

might have been brought. 

28 U.S.C. §1404(a).2

 This section is a statutory recognition of the common law 

doctrine of forum non conveniens as a facet of venue in the federal courts. The 

Orb Factory Ltd. v. Design Science Toys, Ltd., 6 F.Supp. 2d 203, 207 (S.D.N.Y. 

1998) (citing Wilshire Credit Corp. v. Barrett Capital Management Corp., 976 

F.Supp. 174, 180 (W.D.N.Y. 1997)). However, while Section 1404 was drafted in 

accordance with the doctrine of forum non conveniens, the standard for transfer 

pursuant to Section 1404 is less stringent and the discretion given to the court is 

broader than a dismissal for forum non conveniens. Piper Aircraft Co. v. 

 2 Under this provision, a Court may grant a motion to transfer when at the 

time suit was filed “venue could have been properly laid in the proposed transferee 

court.” Barnett v. Kirby Inland Marine, Inc., 202 F.Supp.2d 664, 667 (S.D. Tex. 

2002); see also The Orb Factory Ltd. v. Design Science Toys, Ltd., 6 F.Supp. 2d 

203, 208 (S.D.N.Y. 1998) (“The court must first determine whether the action 

sought to be transferred is one that ‘might have been brought’ in the transferee 

court.”). Here, venue for Mr. Jackson’s claims is proper in any district in which 

the defendant is subject to personal jurisdiction. There is little doubt that this 

requirement is satisfied herein as Waterman Steamship’s principal place of 

business at the time of Mr. Jackson’s alleged incident was New Orleans. 

Moreover, as all of the potential witnesses, all of the potential documents, and all 

potential parties are within the jurisdiction of the Eastern District of Louisiana, as 

defined by 28 U.S.C. §98(a), this requirement is satisfied. 

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Raynaud, 454 U.S. 235, 254, 102 S.Ct. 252, 260, 7 L.Ed.2d 419, 435 (1981), 

rehearing denied, 455 U.S. 928 (1982). This is because Section 1404 transfer is a 

less severe procedural measure than a dismissal under the doctrine of forum non 

conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 

789 (1955). Section 1404(a) strives to prevent waste “of time, energy and money” 

and “to protect the litigants, witnesses and the public against unnecessary 

inconvenience and expense.” The Orb Factory Ltd., 6 F.Supp.2d at 207 (citing

Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 27, 80 S.Ct. 1470, 4 

L.Ed.2d 1540 (1960), quoted in Wilshire, 976 F.Supp. at 180). 

The burden of demonstrating desirability of transfer lies with the moving 

party, and in considering the motion to transfer, a court should not disturb a 

plaintiff’s choice of forum “unless the defendants make a clear and convincing 

showing that the balance of convenience favors defendants’ choice.” Id. at 208 

(citing Hubbell Inc. v. Pass & Seymour, Inc., 883 F.Supp. 955, 962 (S.D.N.Y. 

1995)). However, although plaintiff’s choice of forum is entitled to respect, it is 

not controlling, especially when the litigation has no substantial connection with 

the forum. Resources Investment Corporation v. Hughes Tool Company, 561 

F.Supp. 1236, 1238 (D.Col. 1983) (citing Moore v. Telfon Communications Corp., 

589 F.2d 959 (9th Cir. 1978)); Blake v. Delta SS Lines, 1986 AMC 558, 559 

(S.D.N.Y. 1985). 

In determining whether transfer is warranted, “for the convenience of the 

parties and witnesses [and] in an interest of justice” under Section 1404(a), courts 

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generally consider several factors. The factors to be considered in the instant case 

include “(1) the convenience of witnesses, (2) the location of relevant documents 

and the relative ease of access to sources of proof, (3) the convenience of the 

parties, (4) the locus of operative facts, (5) the availability of process to compel 

the attendance of unwilling witnesses, (6) the relevant means of the parties, (7) the 

forums familiarity with the governing law, (8) the weight accorded to plaintiff’s 

choice of forum, and (9) trial efficiency and the interest of justice, based on the 

totality of the circumstances.” Id. at 208 (citing Wilshire Credit Corp., 976 

F.Supp. at 181). 

Application of these factors herein reveals that transfer of this action to the 

Eastern District of Louisiana is appropriate, if not compelling. 

B. Application of the Relevant Factors 

1. Availability and Convenience of Witnesses and Parties 

The sole parties to this action are Mr. Jackson and Waterman Steamship. 

Mr. Jackson’s domicile while employed by Waterman Steamship was in greater 

New Orleans and he remains domiciled there where he received his maintenance 

and cure payments. Johnston Declaration at ¶9. Further, at the time of Mr. 

Jackson’s alleged accident, Waterman Steamship’s principal place of business was 

New Orleans. Johnston Declaration at ¶5. As such, the parties, including Mr. 

Jackson who himself is not a resident of New York, will not be inconvenienced in 

any way by the transfer sought herein. 

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In fact, it is far more convenient for all parties to have the case transferred 

to New Orleans because all responsive documents, including all treating 

physician’s records and the majority of corporate documents, such as vessel logs, 

payroll records and personnel records are in New Orleans. Johnston Declaration

at ¶¶7, 15, 16. It will simply be more efficient, less time consuming and much less 

expensive for this case to be tried in New Orleans and for the witnesses to testify 

in New Orleans. Johnston Declaration at ¶8. 

Moreover, Mr. Jackson’s medical condition was evaluated by physicians in 

New Orleans following the alleged incident and the majority, if not all, of his 

medical treatment for this and his previous injuries has been rendered in 

Louisiana. Johnston Declaration at ¶¶14, 15, 20. All of the pertinent witnesses are 

located in or around New Orleans. Specifically, the purported eye witness to 

plaintiff’s alleged accident, Mr. Alfred Lee Polk, currently resides at 6562 

Coveview Drive in New Orleans, Louisiana 70126. Johnston Declaration at ¶21, 

Exhibit E. 

This Court has had the occasion to consider motions to transfer similar to 

this case, and based upon the factors of convenience and efficiency, it has 

transferred seaman’s personal injury claims to a more convenient forum in 

numerous cases. See, e.g., Cutrer v. Lykes Bros. Steamship Co., Inc., 1987 U.S. 

Dist. LEXIS 18 (S.D.N.Y. 1987); Blake v. Delta SS Lines, 1986 AMC 558 

(S.D.N.Y. 1985); Jacobs v. First Shipmore, 1984 AMC 1566 (S.D.N.Y. 1983); 

Saleeby v. Amoco Shipping Company, 1977 U.S. Dist. LEXIS 13119 (S.D.N.Y. 

Case 1:07-cv-03320-SHS Document 9 Filed 07/27/2007 Page 15 of 24
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1977); Gomino v. Mississippi Shipping Co., 217 F.Supp. 895 (S.D.N.Y. 1963); 

Foster v. United States Lines Co., 227 F.Supp. 946 (S.D.N.Y. 1961); Faucette v. 

Lykes Bros. S.S. Co., 110 F.Supp. 287 (S.D.N.Y. 1953). 

In Blake v. Delta SS Lines, 1986 AMC 558 (S.D.N.Y. 1985), a seaman 

sustained severe injuries in Ecuador where he was treated for almost one month. 

He was then taken to Florida where he was treated for a day, then to Baltimore 

where he remained for one month. Plaintiff was a resident of Baltimore, but filed 

suit in New York. The court granted defendant’s motion to transfer the 

proceeding to Baltimore, finding that “[w]hile Blake signed onto the S.S. Santa 

Elena through a union hall in New York, the material events surrounding his claim 

are completely unrelated to this district.” Id. at 559. The court also noted that it 

would be more convenient for the plaintiff who was reportedly confined to bed to 

travel to Baltimore federal court rather than the New York federal court. Id. at 

560. 

Likewise in Jacobs v. First Shipmore, 1984 AMC 1566 (S.D.N.Y. 1983), a 

seaman was injured aboard the defendant’s vessel while in route to Panama. 

Plaintiff was a resident of Florida and was treated in Panama and Florida. The 

district court granted the defendant’s motion to transfer noting that most of the 

witnesses resided near or in the Middle District of Florida. Id. The plaintiff’s 

treating physician was in Florida as were two eyewitnesses who were no longer 

employed by the defendant; all of these individuals were within the subpoena 

power of the Florida court. Id. 

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Finally, in Faucette v. Lykes Bros. S.S. Co., Inc., 110 F.Supp. 287 

(S.D.N.Y. 1953), the plaintiff/seaman was taken ill at Singapore, and upon his 

return to the United States, was hospitalized at the Unites States Marine Hospital 

in New Orleans, where he was treated by a local physician. Id. at 288. Not only 

was the plaintiff/seaman in Faucette a resident of New Orleans, but the 

defendant/vessel owner maintained its principal place of business at New Orleans. 

Id. Also, as in the present case, the great majority of witnesses to be called by 

both the plaintiff/seaman and the defendant/vessel owner resided in New Orleans 

or in some adjacent vicinity, and none of the witnesses to be called resided in or 

near New York. Id. Based on the confluence of these facts, the Court could find 

“no basis for the commencement of the action in this district,” and granted the 

defendant/vessel owner’s motion to transfer. Id. 

The above-cited cases are near mirror images of the present case both 

factually and procedurally, and predictably, the ultimate holdings of these cases 

mandate the transfer of the instant action to the Eastern District of Louisiana. 

2. Location of Relevant Documents 

All documentation relevant to this matter is located in the vicinity of New 

Orleans and all potential witnesses for Waterman Steamship at the time of Mr. 

Jackson’s alleged injury worked out of its New Orleans office. Johnston 

Declaration at ¶¶5, 7. These factors absolutely favor the transfer of this cause, 

inasmuch as Mr. Jackson’s medical records, payroll records and employment 

Case 1:07-cv-03320-SHS Document 9 Filed 07/27/2007 Page 17 of 24
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records, as well as the pertinent work records of Waterman Steamship, are all 

located within the vicinity of Eastern District of Louisiana. Id.

3. Locus of Operative Facts 

Here, every act in question, save the actual alleged injury, occurred in 

Louisiana, including the departure of the vessel, and Mr. Jackson’s follow-up 

medical treatment and receipt of maintenance and cure benefits. Johnston 

Declaration at ¶¶9, 10, 14. Mr. Jackson’s medical condition was evaluated by 

physicians in New Orleans, following the alleged incident and the majority, if not 

all, of his medical treatment for his claimed injuries and injuries made subject of 

previous litigation has been rendered in Louisiana. Johnston Declaration at ¶¶14, 

15, 20. Therefore, this all important factor favors transferring this litigation to the 

Eastern District of Louisiana. 

4. Availability of Process to Compel Attendance of Unwilling 

Witnesses 

As stated above, all of the parties concerned and all of the material 

witnesses identified to date, including plaintiff and his treating physicians, reside 

in New Orleans, Louisiana – well beyond this Honorable Court’s subpoena power. 

Johnston Declaration at ¶¶5, 9, 14, 21. As for the ease of adjudication, 

compelling the attendance of out-of state witnesses could pose significant 

problems to just and efficient judicial procedures given the geographic distance 

between New York and Louisiana. 

Focusing on this factor, federal courts throughout the country routinely 

order transfer to more convenient forums. See, e.g., Hoppe v. G.C. Searle & 

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Company, 638 F.Supp. 1271 (D. Minn. 1988); Southeast Equipment Company v. 

Union Can Corporation, 498 F.Supp. 164 (S.D. Ga. 1980); Fontana v. E.A.R., a 

Div. of Cabot Corp., Inc., 849 F.Supp. 212 (S.D.N.Y. 1994). 

For example, in Hoppe v. G.C. Searle & Company, 638 F.Supp. 1271 (D. 

Minn. 1988), a New York resident commenced suit in Minnesota against a 

Delaware corporation which had its principal place of business in Illinois. The 

plaintiff alleged that personal injuries were sustained in New York as a result of an 

intrauterin device manufactured by defendant which had been tested in Minnesota. 

All treating physicians were in New York, as well as other lay and expert 

witnesses. Although there was personal jurisdiction over the defendant in 

Minnesota, the court ordered a transfer to New York under Section 1404(a). The 

court emphasized that: 

The unavailability of compulsory attendance of these 

key witnesses is the compelling reason to transfer the 

case (citation omitted). Forcing the defendant to 

conduct its case by deposition, even videotaped 

deposition is simply unjustified. 

Id. at 1267. The court also noted that plaintiff’s choice of forum is not entitled to 

great weight when all relevant facts point to another forum. Id. Finally, the 

inconvenience of plaintiff’s current counsel, with experience in the type of 

litigation at hand, was “not a factor to be considered in deciding the propriety of 

the transfer.” Id. 

Similarly, in Southeast Equipment Company v. Union Can Corporation, 

498 F.Supp. 164 (S.D.Ga. 1980), a Georgia corporation sued a Virginia 

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16

corporation in Georgia. The property damage in question had been sustained in 

Florida. All material witnesses for the defendant resided in Florida; however, the 

material witnesses for the plaintiff resided in the Georgia area. The court 

nonetheless granted the transfer, noting that many of the material witnesses were 

beyond the subpoena power of the court. The court stated that: 

Underpinning the decisions which were granted 

transfer on the basis that another forum would better 

serve the convenience of the witnesses is the principal 

that trial by live testimony is superior to trial by 

depositions in resolving factual questions. 

Id. at 166 (citations omitted); see also, Fontana v. E.A.R., a Div. of Cabot Corp., 

Inc., 849 F.Supp. 212 (S.D.N.Y. 1994). 

In this case, all of the parties concerned and all of the material witnesses 

identified to date, including plaintiff’s own eye witness, Mr. Alfred Lee Polk, are 

beyond the subpoena powers of this Honorable Court, but not beyond those of the 

Louisiana court. Johnston Declaration at ¶¶21-22. Accordingly, this factor 

weighs heavily in favor of transfer. 

5. The Relevant Means of the Parties 

“Where disparity exists between the parties, such as an individual plaintiff 

suing a large corporation, the relative means of the parties may be considered.” 

The Orb Factory Ltd., 6 F.Supp.2d at 210 (citing Hernandez v. Graebel Van Lines, 

761 F.Supp. 983, 989 (E.D.N.Y. 1991)). However, where proof of such disparity 

is not adequately provided, or does not exist, this is not a significant factor to be 

considered. Id. (citations omitted). 

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Here, plaintiff has made no representations that a transfer of venue would 

increase any financial hardship that has or might befall him. In fact, should a 

transfer to the Eastern District of Louisiana be granted, the relative means of the 

parties becomes a non-factor as Mr. Jackson will be able to have his case handled 

closer to home at far less the cost. Certainly, this factor militates in favor of 

transfer, rather than maintaining the action in the Southern District of New York. 

6. The Forum’s Familiarity with the Governing Law 

There is no doubt that any federal court, including this one or the Eastern 

District of Louisiana, is familiar with the laws governing Mr. Jackson’s claims. In 

fact, both the Southern District of New York and the Eastern District of Louisiana 

are considered traditionally “maritime” jurisdictions; therefore, either court would 

be equally competent to effectively resolve this case. This factor, therefore, does 

not weigh in favor of either the Southern District of New York or the Eastern 

District of Louisiana. 

7. Weight Accorded Plaintiff’s Choice of Forum 

As stated previously, the court should not disturb a plaintiff’s choice of 

forum “unless the defendants make a clear and convincing showing that the 

balance of convenience favors defendants’ choice.” The Orb Factory Ltd., 6 

F.Supp.2d at 208 (citing Hubbell Inc. v. Pass & Seymour, Inc., 883 F.Supp. 955, 

962 (S.D.N.Y. 1995)). Although a plaintiff’s choice of forum is entitled to 

respect, it is not controlling, especially when the litigation has no substantial 

connection with the forum and is merely fortuitous. See ZPC 2000 Inc. v. SCA 

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Group, Inc., 86 F.Supp.2d 274, 280 (S.D.N.Y. 2000); Blake v. Delta SS Lines, 

1986 AMC 558, 559 (S.D.N.Y. 1985). 

This is precisely such an action. Plaintiff does not reside in the Southern 

District of New York. The accident did not occur in the Southern District of New 

York. Johnston Declaration at ¶11. Plaintiff’s medical treatment was not 

obtained in the Southern District of New York. No known fact witnesses reside in 

the Southern District of New York. Johnston Declaration at ¶22. The sole 

connection which this matter has with the Southern District of New York is that 

plaintiff’s attorney, Larry Arcell, has recently re-located here from Louisiana. 

However, that factor is of no relevance, inasmuch as this Court has ruled that it 

will no longer address the location of counsel in its transfer analysis. See 

Zepherin v. Greyhound Lines, Inc., 415 F.Supp.2d 409 (S.D.N.Y. 2006); Fuji 

Photo Film Co. Ltd. v. Lexar Media, Inc., 415 F.Supp.2d 370 (S.D.N.Y. 2006); 

Ayers v. Arabian American Oil Company, 571 F.Supp. 707, 709, n. 1 (S.D.N.Y. 

1983). 

In sum, plaintiff’s choice of forum should not weigh against the transfer 

sought herein. 

8. Trial Efficiency 

Waterman Steamship was served with Mr. Jackson’s Complaint in May 

2007. There is no trial setting. No discovery has been conducted. The instant case 

thus does not present a scenario wherein there has been an undue delay in seeking 

transfer or where the plaintiff will be delayed in the prosecution of his case. The only 

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results flowing from a transfer to the Eastern District of Louisiana will be that 

Mr. Jackson will be able to have his case handled closer to home. 

Also, there is substantial duplication of claims in the two pending cases 

herein, and the Eastern District of Louisiana action, filed first in time, substantially 

overlaps the issues appearing in the present case. Two trials on identical issues 

arising from a nucleus of facts bearing no relation to the Southern District of New 

York would result in a waste of judicial resources, making transfer of this case all 

the more appropriate. Moreover, because this dispute is between Louisiana 

residents, courts in that state have a far greater interest in adjudicating the instant 

dispute than does this Court. This factor, as does the seven others before it, 

weighs decisively in favor of transfer. 

CONCLUSION

For the foregoing reasons, Waterman Steamship respectfully urges the 

Court, in the sound exercise of its discretion, to order that this action be transferred 

to the Eastern District of Louisiana – a venue convenient to both parties. 

Dated: July 27, 2007 Respectfully submitted, 

 JUNGE & MELE, LLP 

 Attorneys for Defendant

 /s/ Peter A. Junge 

 By: ________________________ 

 Peter A. Junge (PJ-0745) 

 29 Broadway – 9th Floor 

 New York, NY 10006 

 (212) 269-0061 

Case 1:07-cv-03320-SHS Document 9 Filed 07/27/2007 Page 23 of 24
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 Of Counsel, 

 Glenn G. Goodier (La. Bar #6130) 

 Lance M. Sannino (La. Bar #29409) 

JONES, WALKER, WAECHTER, 

 POITEVENT CARRIÈRE & DENÈGRE, LLP 

 201 St. Charles Avenue – 48th Floor 

 New Orleans, LA 70170-5100 

 (504) 582-8000 

TO: Paul T. Hofmann, Esq. 

 HOFMANN & ASSOCIATES 

 Attorneys for Plaintiff

 360 West 31st Street 

 New York, NY 10001 

 (212) 465-8840 

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