The opinion of the court was delivered by: FOGEL
Defendant William H. McAlpine (McAlpine) has moved this Court to set aside a default judgment and to dismiss, or in the alternative, to transfer this action to the United States District Court for the Eastern District of Michigan. For reasons hereinafter set forth, we have decided that the case should be transferred to the Michigan District Court and, therefore, we will defer ruling upon the motion to set aside the default, so that this aspect of the matter may be considered anew by the federal court in Michigan.
Plaintiff is Aamco Automatic Transmissions, Incorporated, (Aamco), a Pennsylvania corporation, and nationally known franchisor of automatic transmission repair services. Defendant is an individual who holds several franchises from plaintiff for shops in Toledo, Ohio, and Detroit, Michigan. The franchise which is the subject of the controversy before us is located in Toledo. Defendant is allegedly in default because of his failure to submit weekly reports to Aamco and to make payments required by the agreement. Plaintiff also avers that defendant has failed to comply with the procedural provisions of the manual provided to him for the purpose of allowing plaintiff to maintain rigid controls over the modus operandi of its several hundred franchisees.
The chronology of this suit is as follows: The complaint was filed on July 23, 1974. Service, which was by registered mail, was made on defendant on August 6, 1974. Service, venue, and personal jurisdiction in Pennsylvania are provided for under the terms of the franchise agreement. A default was entered on September 11, 1974, because of defendant's alleged failure to appear, plead or otherwise defend the action. An order was entered by the Court on September 17, 1974, setting a trial date on the question of damages, because a sum certain could not be ascertained without such a trial. A second order, entered on October 3, 1974, directed discovery on the damage question to be completed by December 14, 1974, and reset the trial date for February 25, 1975. On October 7, 1974, plaintiff moved for judgment by default. On November 13, 1974, defendant filed his petition to set aside the default and to dismiss the action, or, in the alternative, to transfer it.
Defendant makes the following contentions in support of its motion to reopen the judgment: (1) impropriety of the service upon it; and (2) lack of jurisdiction by the court over McAlpine. The transfer motion was supported by allegations that (a) a parallel action between the same parties had previously been commenced in the Eastern District of Michigan,
(b) that the case before us involved the same parties and issues, and (c) that the instant suit could and should have been brought as a compulsory counterclaim in the Michigan action.
The instant action parallels the situation presented to us in Goodman v. Fleischmann, 364 F. Supp. 1172 (E.D. Pa. 1973). In that case we reviewed the factors which are controlling in ruling upon a request for transfer of a case to another district. Two critical determinations must be made by the court: FIRST: is the potential transferee forum one in which the plaintiff had the right to bring the action at the time of commencement of the case in the court he in fact selected? and SECOND: will a transfer further the interests of justice and convenience of the parties, in light of all of the competing public and private considerations which must be weighed? The latter decision requires us to analyze the following issues in turn: (1) plaintiff's choice of forum; (2) relative ease of access to sources of proof; (3) cost of obtaining attendance of willing witnesses; (4) all of the other practical matters which must be borne in mind in order to expedite the trial of a case with maximum ease and minimum expense; (5) the responsibilities and difficulties of court administration; and (6) the desirability, in federal cases, of a determination of state law by a federal court located in the same state. Goodman, supra, at 1174-75.
1. COULD THE ACTION HAVE BEEN BROUGHT IN MICHIGAN?
Venue in this suit is governed by the provisions of 28 U.S.C. § 1391. Diversity cases may be brought "only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose." 28 U.S.C. § 1391(a). Plaintiff alleges that McAlpine is a resident of the Eastern District of Michigan; defendant admits that allegation. Thus Michigan is a district within which suit could have been brought originally.
Moreover, Rule 13(a) of the Federal Rules of Civil Procedure, provides in pertinent part as follows:
A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction.
Federal R.C.P. 13(b) also provides that:
A pleading may state as a counterclaim any claim against an opposing party not arising out of the transaction or occurrence that is the subject ...