The opinion of the court was delivered by: MARSH
The defendants have filed a motion pursuant to § 1404(a), 28 U.S.C., to transfer this private anti-trust action to the Southern District of New York.
The action might have been brought in that district since all defendants were transacting business therein. In my judgment the motion should be denied.
In anti-trust actions the defendants must show a preponderant balance of inconvenience in order to overcome plaintiff's privilege to choose the forum. Ford Motor Co. v. Ryan, 182 F.2d 329, 330 (2d Cir. 1950); Polychrome Corp. v. Minnesota Mining & Manufacturing Co., 259 F. Supp. 330, 335 (S.D.N.Y. 1966) (anti-trust cases). Cf. A. Olinick & Sons v. Dempster Brothers, Inc., 365 F.2d 439 (2d Cir. 1966); Golconda Mining Corporation v. Herlands, 365 F.2d 856 (2d Cir. 1966). And see cases cited in Vol. 1, Later Case Service, covering Vols. 1-12 A.L.R.2d pp. 1015, 1017, § 2.4 Strong balance in defendant's favor, and § 2.5.
Unlike a personal injury action, this anti-trust suit is not local in nature as defendants contend, but partakes of a multi-state interest. The ten teams who were members of the National Basketball Association (Association) at the time this action was filed are located in nine states; their teams have played basketball in many cities throughout the country, ranging from California to Massachusetts, including Pittsburgh. An officer of each member of the joint venture is represented on the Board of Governors which controls the policies of the Association.
Cf. Ferguson v. Ford Motor Co., 89 F. Supp. 45, 54 (S.D.N.Y. 1950), aff'd sub nom., Ford Motor Co. v. Ryan, supra; United States v. Scott & Williams, 88 F. Supp. 531, 535 (S.D.N.Y. 1950). If the defendants were not justified in excluding plaintiff as a playing member of the Association, that decision had a multi-state effect since it was binding on the ten far-flung members in the Association
and resulted in the allegedly illegal boycott of plaintiff as a professional player who sustained the injurious financial impact therefrom in this district where he resided.
The statutory factors to be considered are "the convenience of parties and witnesses, in the interest of justice", § 1404(a), 28 U.S.C., with the object of making the "judicial process cheaper and more convenient and, if possible, more prompt." All States Freight, Inc. v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952), approved by the Supreme Court in Norwood v. Kirkpatrick, 349 U.S. 29, 99 L. Ed. 789, 75 S. Ct. 544 (1955). Cf. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 91 L. Ed. 1055, 67 S. Ct. 839 (1947).
It appears that three of the defendants (the Association, Madison Square Garden Corporation, and J. Walter Kennedy) have their only business offices in New York City, and that two of the corporate defendants (Riko Enterprises, Inc., Philadelphia, and The Baltimore Bullets Basketball Club, Inc., Baltimore) are located closer to the Southern District of New York than to this district. The four other corporate defendants (Zollner Corporation, Indiana; Cincinnati Basketball Club Co., Ohio; California Sports, Incorporated, California; and St. Louis Hawks Basketball Club, Inc.,
Missouri) are located closer to this district than to the Southern District of New York. Two members of the joint venture who are not defendants (The Chicago Professional Basketball Corporation and the San Francisco Warriors) are located closer to this district, while the remaining member (Boston Celtics Basketball Club) is closer to the Southern District of New York.
The defendants expect that the defendant Kennedy, six members of the Board of Governors, and Ben Kerner, a former member of the Board of Governors, will testify at the trial. Of these parties, four live closer to the Southern District of New York and four live closer to this district. See: Answer of the Association (filed November 4, 1968) to Interrogatory No. 35.
Although it is shown that the defendants hold some meetings in New York, and play some basketball games there, and no defendant has an office in Pittsburgh and no basketball games are to be played there, these facts bear no significance on the issue of whether this district is an inconvenient forum.
The defendants have failed to show that it will be more convenient for the parties if the action is transferred to the Southern District of New York. Indeed the Western District of Pennsylvania is closer for a majority of the parties, and if the officers of all the defendants choose to attend the trial, their aggregate costs of transportation to Pittsburgh will be less than their costs of transportation to New York. For all the parties -- plaintiff and defendants -- the balance of convenience is opposed to a transfer.
It is asserted that it is more convenient for the Association, Madison Square Garden Corporation, Riko Enterprises, Inc., and The Baltimore Bullets Basketball Club, Inc. to produce their records and files in New York, but it has not been demonstrated in what respect any of these records or files are relevant or necessary for trial purposes. Even if they are, it does not appear that the records and files are so voluminous that they cannot be conveniently transported to Pittsburgh from New York, Philadelphia and Baltimore.
The defendants assert that their witnesses are unwilling to testify in Pittsburgh and will be inconvenienced in having to travel to that city. The plaintiff makes a similar assertion with respect to his witnesses.
I am persuaded to consider only the convenience or inconvenience of those witnesses who have been identified as probable witnesses and the substance of whose testimony appears to be competent and material to the trial. Struthers Scientific & Int. Corp. v. General Foods Corp., 290 F. Supp. 122, 127 (S.D. Texas 1968). It is necessary to set out by way of affidavit the substance of the evidence of witnesses in order that its materality can be considered. Consequently, the affidavit of George G. Gallantz, attorney for the defendant Association, suggesting that "it is most probable that discovery in this action will lead to other witnesses who have knowledge of the circumstances surrounding plaintiff's alleged overt acts", and who are likely residents of the Southern District of New York, cannot be considered as lending any weight. Cf. Chicago, Rock ...