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PLUM TREE, INC. v. ROUSE CO.

May 11, 1972

Plum Tree, Inc.
v.
Rouse Co., Inc., Echelon Mall, Inc., The Willowbrook Corp., Perimeter Mall, Inc., Austin Mall, Inc., Almeda Mall, Inc., Greengate Mall, Inc., and Plymouth Meeting Mall, Inc.


Green, J.


The opinion of the court was delivered by: GREEN

GREEN, J.:

 Plaintiff has brought this action against defendants for anti-trust violations under the Sherman, Clayton and Robinson-Patman Acts and for breach of contract and misrepresentation. Five of the eight defendants have moved to transfer this suit to the District of Maryland under 28 U.S.C. § 1406(a). All of the defendants have joined in a motion to transfer to Maryland under 28 U.S.C. § 1404(a). For the reasons discussed below, we deny both motions.

 The background facts are these. Plaintiff, a Pennsylvania corporation with its principal office in Bridgeport, Pennsylvania, is a national franchiser of gift stores, many of which are placed in shopping malls. Defendant Rouse Company, Inc. ("Rouse"), a Maryland corporation which maintains its principal place of business in Columbia, Maryland, is a real estate developer involved, inter alia, in the building of shopping center malls, including the seven owned individually by each of the seven remaining corporate defendants, all of which are subsidiaries of Rouse. Two of the malls are located in Texas, two in New Jersey, one in Georgia and two in Pennsylvania. According to plaintiff's complaint, each of the malls has its principal place of business in Baltimore, Maryland, and each is a Maryland corporation except for the two located in Pennsylvania which are Pennsylvania corporations. Plaintiff maintains one of its gift shops in each of the seven malls. In its complaint, plaintiff alleges that in executing and administering the various leases signed by plaintiff with defendants, defendants are guilty of misrepresentation, breach of contract, and federal anti-trust violations. Pending disposition of these two transfer motions, action has been stayed on plaintiff's general discovery proceedings, on its motion for determination of propriety of class action, and on defendants' various motions to dismiss, including one brought specifically by the five non-Pennsylvania malls. McDonell Douglas Corp. v. Polin, 429 F.2d 30 (3rd Cir. 1970).

 Section 1406(a) provides:

 
"The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought."

 The five non-Pennsylvania mall defendants contend, and aver by way of affidavits, that venue as to them is improperly laid in this District since none of them has "transacted business" in this District within the meaning of the venue provisions of the anti-trust laws, 15 U.S.C. § 22, much less been licensed to do business in Pennsylvania. Because, however, these defendants are Maryland corporations, venue can be properly laid in the District of Maryland, according to defendants.

 We agree with plaintiff that at this stage defendants' argument is premature since their factual allegations are supported only by way of affidavits. Plaintiff should be allowed an opportunity to rebut these contentions through its own discovery. Cf. Hayashi v. Red Wing Peat Corporation, 396 F.2d 13 (9th Cir. 1968); National Auto Brokers Corp. v. General Motors Corp., 396 F.2d 13 (S.D.N.Y. 1971); State of New York v. Morton Salt Co., 266 F. Supp. 570 (E.D. Pa. 1967). Thus, we deny defendants' § 1406(a) transfer motion.

 All of defendants move under § 1404(a) to transfer this action to Maryland. This section reads as follows:

 
"For the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought."

 On a transfer motion under § 1404(a) plaintiff's choice of forum is accorded great weight, Kephart v. United States, 242 F. Supp. 469 (E.D. Pa. 1965), and the defendants are put to a heavy burden of showing that the interests of the statute will be better subserved by an alternate forum. Fitzgerald v. Central Gulf Steamship Corp., 292 F. Supp. 847 (E.D. Pa. 1968). We cannot find that defendants have carried their burden.

 First, it is clear that a Baltimore forum would be no more convenient for the parties than this forum. Indeed, since the major parties, plaintiff and Rouse, have their headquarters respectively in Bridgeport, Pennsylvania, and Columbia, Maryland, transfer from Philadelphia to Baltimore would merely shift the burdens of litigation in a distant forum from one party to another. Moreover, plaintiff alleges, and avers by way of affidavit, that it would suffer much more disruption if forced to proceed in a distant forum than would Rouse since, according to plaintiff, Rouse has a personnel staff thirteen times larger than plaintiff's. Plaintiff states that it employs a total of 57 people of whom eight constitute its entire management team. *fn1" Rouse, according to plaintiff, employs approximately 770 people in its Columbia office. Defendants have not disputed this assertion. Rouse has argued, nevertheless, that it would suffer substantial disruption and inconvenience if plaintiff were allowed to depose in this district some twenty people from the Columbia office who have already been so noticed. This problem raised by discovery in a distant forum has been mooted, however, by plaintiff's agreement, made at oral argument, to conduct such depositions at a location convenient to the proposed deponents.

 Finally, as far as the convenience of the mall defendants is concerned, it seems clear that for those located in Texas and Georgia, the difference in convenience between a forum in Philadelphia or one in Baltimore is insubstantial. For the remaining mall defendants, located in New Jersey and Pennsylvania, the Philadelphia forum undoubtedly would be more convenient than would the Maryland one.


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