eliminate any need for lengthy discovery and hearing on the venue of the five non-Pennsylvania mall defendants and will avoid piecemeal litigation should those defendants prevail on their pending motion to dismiss. Essentially, defendants are arguing for the proposition that whenever there is doubt as to proper venue with respect to some defendants, the whole action should be transferred to a forum where venue is conceded. Although this position has an appealing aura to it in terms of expediting matters and encouraging cooperation, we ultimately find it unsound in reasoning as well as unsupported by the authorities cited by defendants.
Were we to adopt defendants' position, we would be denying plaintiff the deference properly due its choice of forum; moreover, we would further be denying plaintiff the opportunity to justify the legal propriety of its choice of forum by way of discovery on the venue issue. Hence, by merely making certain concessions, defendants would be nullifying prerogatives due any plaintiff at the outset of a case. Certainly, if plaintiff wishes to do battle with the five defendants over venue at the risk of losing jurisdiction over them and incurring the burden of a second suit in a distant forum (if plaintiff wanted to continue against them), plaintiff should be so allowed. Control over who the defendants are to be in the first instance should be with the plaintiff, not the court or the would-be defendants. Thus, plaintiff may ultimately decide it would rather sue only three defendants in Philadelphia than all eight in Baltimore, or even five in Baltimore in a subsequent trial. In fact, at oral argument, plaintiff's counsel stated that jurisdiction over all eight defendants was not essential to plaintiff's case and that he might, sometime in the future, drop the action as to the non-Pennsylvania malls. When plaintiff has otherwise withstood a § 1404(a) transfer motion, we believe it is entitled to the foregoing options.
Cases cited by defendants do not convince us to the contrary. In defendant's principal case, Silverman v. Wellington Management Company, 298 F. Supp. 877 (S.D.N.Y. 1969), the court summarized its reasons for transferring the case from the Southern District of New York to the Eastern District of Pennsylvania, one of which was the avoidance of protracted hearings on venue since venue in New York was in doubt as to some defendants, but not in Pennsylvania. A close reading of this case discloses that this cited reason was nothing more than a makeweight argument, when compared with the other reasons cited in favor of transfer: the thrust of the opinion was that Philadelphia was overwhelmingly more convenient and conducive to an expeditious action since 15 of the 16 individual defendants had their offices in or near Philadelphia; the corporate defendants were located in or near Philadelphia; and the alleged illegal conduct of defendants occurred primarily in the offices of these two corporate defendants.
Defendants' second principal case, Horwitz v. Shainberg, 171 F. Supp. 75 (E.D.N.Y. 1959), does not support the proposition that where venue is in doubt as to some defendants, the case should be transferred to a forum where defendants concede venue as to all. There, the court transferred the case to Tennessee, in part, because no doubt existed that two of the three individual defendants could not be sued in New York; they could, however, be sued in Tennessee along with the other defendants. Moreover, as in Silverman, supra, the Horwitz court appears to have been motivated in the transfer decision primarily by the fact that the convenience of the parties and witnesses was to be found in the transferee forum because all the defendants were in Tennessee and all their witnesses in Tennessee or in Pittsburgh, Pennsylvania.
Finally, in defendants' four "see also" cases -- Dubin v. United States, 380 F.2d 813 (5th Cir. 1967); United States v. Berkowitz, 328 F.2d 358 (3rd Cir. 1964); Founds v. Shedaker, 278 F. Supp. 32 (E.D. Pa. 1968); and Tudesco v. Publishers Company, 232 F. Supp. 638 (E.D. Pa. 1964) -- it was the plaintiff who sought transfer, not the defendant. Such transfer was requested, and allowed by the court, where venue and jurisdiction questions were raised as to the defendant because in each case there was only one defendant involved, and plaintiff would have suffered dismissal if the suit were not transferred. In other words, the transfers were granted to accommodate the plaintiffs. The latitude permitted plaintiffs in the early stages of the foregoing cases is certainly consistent with, and supports, the leeway we have given plaintiff here -- by denying transfer -- to muster facts to support its venue allegations and to drop certain defendants, if it so chooses, as a cost of exercising its right to select a forum.