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WEINBERGER v. RETAIL CREDIT CO.

June 13, 1972

David WEINBERGER, on his own behalf and on behalf of all others similarly situated
v.
RETAIL CREDIT COMPANY and International Business Machines Corporation


Broderick, District Judge.


The opinion of the court was delivered by: BRODERICK

BRODERICK, District Judge.

 This matter is before the Court on the motions of defendant, Retail Credit Company, for summary judgment, for a protective order, and to transfer the above-captioned case to the United States District Court for the District of South Carolina, and on the motion of plaintiff for leave to amend his complaint. *fn1" This action arises out of an allegedly false, defamatory and misleading credit report issued by defendant, Retail Credit Company (hereinafter referred to as RCC) to defendant International Business Machines, Inc. (hereinafter referred to as IBM) pursuant to IBM's investigation of plaintiff's application for employment. Said credit report is alleged to have been the cause of IBM's refusal to extend employment to plaintiff. As a result of this alleged misconduct, plaintiff has instituted this two-count complaint. Count I of the complaint charges that RCC and IBM unlawfully conspired inter alia to invade plaintiff's privacy and interfere with his potential business and employment relationships. Count II purports to institute a class action for approximately 30,000,000 people who have been investigated by RCC and charges RCC "with violating Section 2 of the Sherman Act, 15 U.S.C. § 2, by monopolizing and attempting to monopolize the national investigative reporting market."

 For the reasons hereinafter stated, we feel compelled to transfer this case to the District Court of South Carolina. The motion to transfer is governed by 28 U.S.C. § 1404(a), which provides in pertinent part:

 
(a) For the convenience of 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.

 It is not seriously disputed that this action could have been brought in the District of South Carolina. Count I of the instant complaint is a diversity action sounding in tort, and Count II is an antitrust action. Venue for the diversity action is controlled by 28 U.S.C. § 1391, which provides in pertinent part:

 
(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose . . .
 
(c) A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business, and such judicial district shall be regarded as a residence of such corporation for venue purposes.

 The affidavits filed in this case indicate that both IBM and RCC are doing business in the District of South Carolina and, more importantly, the factors giving rise to the cause of action set forth in Count I of the complaint arose in the District of South Carolina. *fn2" Accordingly, it is abundantly clear that Count I of this action could have been brought in the District of South Carolina.

 Venue as to the antitrust count of this action (Count II) is governed by 15 U.S.C. § 22, which states in pertinent part:

 
Any suit . . . under the antitrust laws against a corporation may be brought not only in the judicial district whereof it is an inhabitant, but also in any district wherein it may be found or transacts business; . . .

 The affidavits filed in this case establish that the sole defendant in the second count, RCC, is found and transacts business in the District of South Carolina.

 In deciding whether to transfer the instant case, we are not unmindful that the decision of the plaintiff in choosing his forum should be given substantial weight. City of Philadelphia v. Emhart Corp., 317 F. Supp. 1320 (E.D. Pa. 1970); Clendenin v. United Fruit Co., ...


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