of one or the other, or both, of said corporations, and their appearance in this district would practically result in the close-down of operations of each of said companies; that the expense and burden of defense would work a great hardship and injustice to the defendant; a high cost of obtaining attendance of willing or unwilling witnesses; possibility of view of premises, if view would be appropriate to the action, and all other practical problems that would make trial of the case easy, expeditious and inexpensive.
In connection with a view of the premises, I do not believe that a view would be of any practical value or assistance. The Court's observation as to whether or not a mine, or mines, contains valuable ore would not be the best evidence. The question as to whether or not a mine, or mines, contains a marketable product should be based on the opinion of the engineers who inspect the mine, or mines, and the chemists who make an analysis of the ore.
The Court will weigh relevant advantages and obstacles to fair trial. It is often said that the plaintiff may not, by choice of an inconvenient forum, 'vex', 'harass', or 'oppress' the defendant by inflicting upon him the expense or trouble not necessary to his own right to pursue the remedy. But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed. Dainow, The Inappropriate Forum, 29 Ill.L.Rev. 867, 889; Blair, The Doctrine of Forum Non Conveniens in Anglo-American Law; 29 Col.L.Rev. 1; Gulf Oil Corporation v. Gilbert, supra.
Even if the problem which exists is approached without consideration as to the right of the plaintiff in this case under the Special Venue Statute to file the proceeding in a district court of its own selection, it appears to me that the balance of the equities stand as strong in favor of the plaintiff as in favor of the defendant.
The doctrine of forum non conveniens is an instrument of justice. Courts should be slow to apply it when justice will be delayed, even though not thwarted altogether. Extension of corporate activities, distribution of corporate personnel, stockholders and directors to the many states, and the diffusion of corporate ownership, separated from corporate management, make the integrity of the conduct of business corporations increasingly a matter of national rather than local concern to which the federal court should be quick to respond when their jurisdiction is rightly invoked.
A corporation would in every instance be subject to some inconvenience to defend itself where an action is filed in a state other than the state of incorporation, the location of its main operation, or the state where its records are kept and maintained. It would be a poorly represented defendant who could not produce substantial evidence and good reasons to establish that the forum of the action against it is most inconvenient.
To apply the broad and indefinite discretion which would arise in deciding whether the doctrine of forum non conveniens should have application to the Securities Act, would inevitably produce a complex of close and indistinguishable decisions from which accurate prediction of a proper forum would become difficult, if not impossible.
When the doctrine of forum non conveniens is invoked, each case must turn on its own facts. The fact that the claim involves complicated affairs of a foreign corporation is not alone a sufficient reason for a federal court to decline to decide the question. Williams et al. v. Green Bay & Western R. Co., 326 U.S. 549, 66 S. Ct. 284, 90 L. Ed. 311.
The facts in this case plainly indicate to me that it would not be vexatious or oppressive to entertain this suit or claim for injunctive relief in the Western District of Pennsylvania.
A corporation is engaged in transacting business in a district, in the sense of the venue provision of an Act of Congress, if in fact, in the ordinary and usual sense, it 'transacts business' therein of any substantial character. A corporation is none the less engaged in transacting business in a district, within the meaning of the venue provision, because of the fact that such business may be entirely interstate in character and be transacted by agents who do not reside within the district. Congress may, in the exercise of its legislative discretion, fix the venue of civil action in a federal court in one district, and authorize the process to be issued to another district in which the defendant resides or is found. Eastman Kodak Co. of N.Y. v. Southern Photo Materials Co., 273 U.S. 359, 47 S. Ct. 400, 71 L. Ed. 684; Winkler Koach Engineering Co. v. Universal Oil Products Co., S.D.N.Y., 70 F.Supp. 77.
A person who mails a stock certificate to a buyer 'sells a security by use of the mails' even if the mails were only used for the delivery of stock certificates after the contract of sale was concluded orally and the stock paid for. Schillner et al., v. H. Vaughan Clarke & Co., supra (134 F.2d 877).
It is the province of the judiciary to interpret the laws passed by Congress, and not to seek to correct legislative enactments or to change laws because they have given rise to consequences not contemplated by Congress, no matter how dire the consequences. The separation of power is the basic principle in our democracy and should not be violated by the encroachment of one branch of the government upon t e domain of another. If this statute is unjust, the remedy is legislative.
Weighing all the factors which should guide the Court's discretion, it seems clear that the showing made herein does not fall within the view that this is one of the 'rare cases' in which the doctrine of forum non conveniens should be applied even if the Court had the right to apply said doctrine under the Special Venue Statute of the Securities Act.
I, therefore, believe that the privilege of venue conferred by Sections 20 and 22 of the Securities Act is absolute and the plaintiff's right to bring said action in any district court, or in a district court where the defendant transacts business, or in the district court where the sale took place when the defendant participated therein, is not subject to discretionary denial by the Court when the doctrine of forum non conveniens is invoked.
If the statute which confers jurisdiction vests the court with discretion to decline to exercise that jurisdiction, unquestionably the Court may do so. The Securities and Exchange Act of 1934, 15 U.S.C.A. § 78a et seq., is primarily for the protection of investors, and imposes both civil liability and criminal penalties upon any person who fails or neglects to comply with the terms and provisions thereof, or the regulations promulgated by the Securities and Exchange Commission. The purpose is, therefore, to require complete and truthful statements of all matters in relation to the financial condition of the person who falls within the terms and provisions thereof.
I, therefore, have no doubt that the Commission, in the exercise of its powers to enforce the Act, may file a proceeding for injunctive relief in any jurisdiction where business has been transacted, where the individual concerned was involved in the sale of securities where there has been a failure or neglect to comply with the provisions of said Act.
Even if the doctrine of forum non conveniens is not applied for the reasons given in the preceeding paragraph, I do not believe that the balance of equities indicate that the defendant is entitled to invoke said doctrine in the instant case.
The motion to dismiss the complaint, to set aside the service of summons, and to dissolve the preliminary injunction is refused for the following reasons:
(1) The Federal District Court has no authority under the special venue provisions of the Securities Act to apply the doctrine of forum non conveniens.
(2) Even if the doctrine of forum non conveniens could be applied under the Securities Act, the Court believe that after consideration of all the factors in this case the doctrine should not prevail.
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