Commercial Litigation and Arbitration

Judicial Notice of Internet Evidence — Use of Google Maps to Calculate Distances and Ascertain Geographic Locations

Ward v. Stewart, 2015 U.S. Dist. LEXIS 130686 (N.D.N.Y. Sept. 29, 2015):

Plaintiffs Kevin A. Ward, Sr. and Pamela Ward (collectively "plaintiffs") initially filed this action in Supreme Court, Lewis County, against defendant Anthony Wayne Stewart ("Stewart" or "defendant"), asserting four causes of action arising from his involvement in the untimely death of their son, Kevin A. Ward, Jr. ("decedent"). Thereafter, defendant removed the action to federal court, answered plaintiffs' complaint, and asserted a counterclaim for indemnity arising out of a liability release that allegedly covers the events giving rise to plaintiffs' claims.

Stewart has now moved pursuant to 28 U.S.C. § 1404(a) to transfer venue in this action to the United States District Court for the Western District of New York, Rochester Division. Plaintiffs have not filed a formal opposition; rather, they have submitted [*2]  a proposed stipulated order consenting to transfer. The motion will be considered on the basis of these submissions without oral argument.


2. Convenience of Witnesses

"In deciding whether to disturb a plaintiff's choice of forum, the convenience of the witnesses is generally the most important factor in the transfer analysis." Rindfleisch, 752 F. Supp. 2d at 252. "Parties seeking consideration of this factor must specify the identity of key witnesses and the nature of their likely testimony, and support these statements with affidavits." Wilson, 821 F. Supp. 2d at 517.


Notably, several of these witnesses reside in the Northern District of New York or in one of several out-of-state locations.

Nevertheless, Stewart argues that transfer is warranted because travel to the Western District of New York, Rochester Division courthouse will be significantly more convenient for the witnesses located in Ontario County. Defendant further argues that, because the City of Rochester has an international airport while the City of Utica does not, travel to the Western District of New York, Rochester Division for the out-of-state witnesses will be significantly more convenient. These facts, defendant argues, tip the balance of this factor heavily in favor of transfer.

However, the mere physical distance between the courthouses of the Northern District of New York, Utica Division and the Western District of New York, Rochester Division does not automatically require a finding that this factor favors transfer. To be sure, the courthouses themselves sit roughly 135 miles apart.10 But closer scrutiny reveals that travel to either location by all of the various non-party witnesses identified by Stewart [*15]  would require some degree of travel and, therefore, some degree of inconvenience.

10   Distances and geographic locations noted in this opinion were calculated using Google Maps, see , and judicially noticed pursuant to Federal Rule of Evidence 201, an accepted practice among courts analyzing these motions. See, e.g., Rindfleisch, 752 F. Supp. 2d at 259 n. 13 (noting that courts "commonly use internet mapping tools to take judicial notice of distance and geography" and collecting cases).

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