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AZRIEL v. FRIGITEMP CORP.

July 29, 1975

ARMON AZRIEL
v.
FRIGITEMP CORPORATION


Fogel, D. J.


The opinion of the court was delivered by: FOGEL

FOGEL, D. J.

 Before us is a motion to transfer this matter to the United States District Court for the Southern District of New York, pursuant to our discretionary power to do so under 28 U.S.C. § 1404(a). We will grant the motion for the convenience of the parties and the witnesses, and in the interest of the efficient and economical administration of justice.

 Plaintiff Armon Azriel is a citizen and resident of the State of Israel; his only other business contacts in the United States are admittedly minimal ones with a corporation located in the Eastern District of Pennsylvania. *fn1" Defendant Frigitemp Corporation is a corporation incorporated under the laws of the State of New York, with its headquarters and executive offices at 121 East 18th Street, New York City. Defendant alleges that it intends to add Zim Lines, an Israeli steamship company with offices in New York City, as a third-party defendant in this case.

 The action is one for breach of contract, allegedly based upon Frigitemp's failure to permit Mr. Azriel and Mobat, Ltd., (an Israeli company controlled by Mr. Azriel), to complete a contract for design work on control panels for one-hundred "Cooltainers" to be built for Zim Lines. Zim cancelled the contract for the Cooltainers prior to completion of construction and delivery to them; Frigitemp then terminated its contract with Mr. Azriel and Mobat, Ltd. Frigitemp has instituted an action in the Southern District of New York against Zim Lines as a result of the cancellation of the contract between those two parties; Cool-Chain, Inc. v. Zim Israel Navigation Co., 73 Civ. 495 (S.D. N.Y., filed Jan. 31, 1973).

 Defendant relies on the following factors in support of its motion for transfer: all employees and officers of Frigitemp who dealt with Mr. Azriel work in the Southern District of New York; the contract between the parties was made either in Israel or in New York; those employees of Frigitemp who dealt with Zim Lines in connection with the contract between them work in New York; all Zim Lines witnesses and documents could be made available with greater ease in New York than in Philadelphia, because Zim maintains an office there; any employees of Zim who do not work in New York, but whose depositions or testimony might be relevant, travel between Israel and New York; hence, those persons would be more readily available in the Southern District of New York than they would be in the Eastern District of Pennsylvania.

 Section 1404(a) of Title 28 of the United States Code provides as follows:

 
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.

 We have construed this section on two recent occasions. Aamco Automatic Transmissions, Inc. v. McAlpine, 391 F. Supp. 302 (E.D. Pa. 1975); Goodman v. Fleischmann, 364 F. Supp. 1172 (E.D. Pa. 1973). In those cases, we identified the two critical determinations which a district court must make before ruling upon a motion to transfer: FIRST: Is the potential transferee forum one in which the plaintiff had the right to bring the action at the time that suit was commenced in the court which he in fact selected? and SECOND : Will a transfer further the interest of justice and the convenience of the parties, in light of all of the competing public and private considerations which must be weighed? The latter decision, in turn, requires us to analyze the following issues: (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.

 It is eminently clear that this action could have been brought in the Southern District of New York. Plaintiff qualifies as one who may invoke diversity jurisdiction pursuant to the provisions of 28 U.S.C. § 1332(a)(2). He is a citizen of a foreign state, and is not a resident of the State of New York; he does not maintain a principal place of business anywhere in the United States; thus, his diversity of citizenship would permit him to bring the suit in the federal court for the Southern District of New York. Defendant not only does business in the Southern District of New York, but, indeed, maintains its executive offices there and is incorporated in that state. Clearly, based on these facts, the Southern District of New York is a proper forum in which the action could have been brought originally by plaintiff.

 In view of the allegations of both parties, in the complaint and the affidavits accompanying the motion and reply, we find that transfer to the Southern District of New York would also further the interest of justice and the convenience of the parties. Mr. Azriel maintains no office in the United States. His alleged minimal ties to a Pennsylvania firm, as previously noted, are entirely unconnected with this contract dispute. Indeed, his selection of the Eastern District as a forum has been motivated principally by the fact that his attorney is situated here, a justifiably flattering commentary upon the outstanding abilities of the lawyers in this district, but hardly one that, eo ipso, can justify his choice of this forum. It is certainly true that plaintiff's choice of forum should be given great deference. However, that choice is not dispositive, when other factors heavily outweigh it. Goodman, supra, at 1175.

 The factors arrayed in favor of a transfer in this case are considerable. Frigitemp maintains its executive offices in New York, its corporation records are there. All of the employees who dealt with Mr. Azriel are there. All of the business dealings which are the subject of the complaint took place either in New York or in Israel. There were no dealings between the parties in the Eastern District of Pennsylvania. Zim Lines, which may become a third-party defendant, and in any event, will in all probability have certain of its employees called as witnesses, has an office in New York; it maintains no office in the Eastern District of Pennsylvania.

 Mr. Azriel states that New York is within one-hundred office in the Eastern District of Pennsylvania.

 Mr. Azriel states that New York is within one-hundred miles of Philadelphia, and argues that accordingly these witnesses are subject to the subpoena power of this Court pursuant to Rule 45(e)(1) of The Federal Rules of Civil Procedure; the existence of the power is not the answer to the problem posed when dealing with non-party witnesses; it is far better, when possible, to have them appear in a district in which they work. All of the potential witnesses from Zim Lines either work in New York, or invariably come to New York when they do travel to the United ...


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