(W.D. Pa. 1958); Ferguson v. Ford Motor Co., supra 89 F. Supp. at p. 53.
For the same reason, the inconvenience of the ten witnesses named by the plaintiff cannot be considered since the substance and necessity of their testimony is not clearly revealed.
It is alleged in the affidavit of Mr. Gallantz, on behalf of the defendants, that, upon information and belief, Joseph Hacken and Jacob Molinas, two potential witnesses for defendants are presently incarcerated in a New York State prison; that defendants "cannot at this time definitely state that they will subpoena these two men as witnesses." Hacken and Molinas, by their affidavits, alleged that they are residing in New York, and that they have not been contacted by any representatives of the Association. The affidavit of S. David Litman, an attorney for the plaintiff, reveals that he interviewed these men in New York and that they are not presently incarcerated.
Hacken and Molinas state that if called to testify by any party they would have no objection to doing so in this district or in the Southern District of New York. Thus, defendants have not shown that they rely on any relevant testimony of either Hacken or Molinas. Since the substance of their testimony does not appear, their inconvenience or unavailability as witnesses for the defendants is to be disregarded.
The alleged testimony of Detective Laurendi, a proposed defense witness, cannot be accorded much weight in support of a transfer because the uncontradicted affidavit of Mr. Litman indicates that Mr. Laurendi's testimony with respect to plaintiff's illegal conduct would be hearsay and inadmissible.
On the other hand, defendants identify Detective Wheaton who allegedly took incriminating statements from the plaintiff, which testimony would be relevant and competent. Wheaton would be inconvenienced in traveling to Pittsburgh to testify. He is beyond the subpoena power of this court, and would require the permission of his superiors to travel and testify. However, there is no conclusive showing that such permission would be withheld, difficult to procure, or that Wheaton would refuse to testify in Pittsburgh.
Wheaton's inconvenience as a defense witness is balanced by that of Mr. Litman, a resident of this district, who expects to be a witness for the plaintiff to recount his efforts to have plaintiff "admitted by the N.B.A. and their arbitrariness in refusing to consider him." This proposed testimony seems to be relevant and competent.
Thus, defendants have not shown that their probable witnesses will be more inconvenienced in a trial in this district than would plaintiff's witnesses if a transfer were granted. Assuming that other sources of proof for both sides are to be found in New York, pretrial investigation has not revealed their importance for the purpose of establishing the Southern District of New York as the most convenient forum. Only minimal weight may be given to conjecture and speculation. Cf. Ferguson v. Ford Motor Co., supra, 89 F. Supp. at p. 53.
It appears that the congested civil docket in this district is not as congested as that in the Southern District of New York.
This is a factor militating against a transfer. It is likely that plaintiff will receive an earlier trial here than in New York, which probability is clearly in the interest of justice. Cf. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at p. 508; All States Freight, Inc. v. Modarelli, supra.
In the case at bar, plaintiff has properly exercised his venue privilege by initiating his action in the forum of his residence. No unfair advantage appears to have been taken of any defendant in so doing, and no forum shopping, vexation, harassment, oppression or undue hardship upon defendants has been established. The pendent count in the original complaint involving the law of New York has been deleted in the amended complaint. The convenience of the parties and witnesses seems practically in balance. In these circumstances, and in the interest of justice, I think that the plaintiff's choice of forum should not be disturbed.
An appropriate order will be entered.