live there; 3) the pertinent documents, such as the API stock, the records of API's stock transfer agent and other records of the corporate defendant are located in the Central District of California and 4) the conduct challenged by this suit took place in Los Angeles.
Plaintiffs, of course, dispute that such a transfer would serve either the convenience of the parties or the interests of justice. In support of their view, they allege: 1) all of the eight plaintiffs live in Philadelphia at least part of the year; 2) important potential witnesses, including the attorneys who represented plaintiffs in the negotiations with defendants and the Fidelity bank official in charge of the escrow account established by the security agreement, live in the Eastern District of Pennsylvania; and 3) the documents relevant to plaintiffs' case are found here. Also, plaintiffs urge that since API stock is traded over the counter nationally, a Philadelphia stockbroker would be as competent as one from California to testify about the value of the API stock.
In determining the merits of a § 1404(a) motion to transfer, the plaintiff's choice of a proper forum is entitled to "paramount consideration". Shutte v. Armco Steel Corporation, 431 F.2d 22, 25 (3d Cir. 1970). Moreover, the moving party bears the burden of showing that a balancing of the interests weighs in favor of the transfer. Unless that balance weighs strongly in favor of the defendant, the plaintiffs' choice of forum should not be disturbed. Ibid. After considering the facts of this case, I find that the defendants have not met their burden.
The instant case does not present "interest of justice" questions as they have been defined by the courts. See Bartolacci v. Corp. of Presiding Bishop, etc., 476 F. Supp. 381, 382 (E.D.Pa.1979). Consequently, the decision of whether to transfer the matter to the federal district court in Los Angeles depends on the weighing of conveniences to the parties which would result from such a move. In this case, the balancing process is not complicated. It is clear that should the case proceed here, the defendants and their witnesses would be inconvenienced while plaintiffs and their witnesses would be equally disadvantaged if the case were to be transferred to California. Regardless of whether the case stays in Philadelphia or is moved to Los Angeles, one side must bear the cost and burden of litigating a case several thousand miles from home.
The facts of this case present what has been described as an "equitable standoff"; both parties are likely to suffer roughly equal inconvenience. Under such circumstances, the transfer to another forum would merely shift the inconvenience from the defendants to the plaintiffs. Consequently, the plaintiffs' choice of forum should not be disturbed. Aquarium Pharmaceuticals, Inc. v. Industrial Pressing & Packaging, Inc., 358 F. Supp. 441, 446 (E.D.Pa.1973). Another factor weighs in favor of allowing the case to proceed in Philadelphia. By their contract, the parties have agreed that Pennsylvania law should govern in this action. Under the principles set forth in Leroy v. Great Western United Corp., supra, this Court is better able to interpret Pennsylvania law than is a federal court sitting in California. 99 S. Ct. at 2718. See also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S. Ct. 839, 843, 91 L. Ed. 1055 (1947).
Briefly in their reply memorandum and again at oral argument,
defendants raised another point which they believe necessitates a transfer of this case to the Central District of California. They contend that since members of Duane, Morris and Heckscher, the law firm now representing plaintiffs, must testify as witnesses for their clients at trial in this case, the Code of Professional Responsibility requires that the law firm be disqualified.
It is true that Disciplinary Rule 5-102 of the Code states that, except in certain limited circumstances, a lawyer should disqualify herself and her firm from any case which requires that she or a member of her firm testify as a witness for the party she represents. According to defendants, the appropriate resolution to the problem of disqualification in the present case is a transfer because if the case were moved to California, plaintiffs would have to hire new lawyers anyway.
After considering the affidavits and the arguments submitted by the parties, I find that the issue of the disqualification of the Duane, Morris firm is not relevant to the defendants' motion to transfer. The illogic of defendants' argument on this question is self-evident. Even if it were to be determined that the facts of this case required the disqualification of the Duane, Morris firm, the most expeditious way of dealing with the necessity that plaintiffs find new counsel is not to transfer the case to a new district. It is as easy for plaintiffs to hire new lawyers in Philadelphia as it would be to hire lawyers in California. Furthermore, if the case were transferred to the Central District of California, defendants also might be required to appoint new attorneys to represent them because their present California counsel, Messrs. Jeffers and Hill, are potential defense witnesses. Therefore, as to the disqualification question, the balance of conveniences weighs in favor of allowing the case to proceed in Philadelphia.
At this time, both because the defendants have not filed a motion to disqualify and at this stage of the proceedings such a motion would be premature, I will not decide the question of whether the law firm of Duane, Morris and Heckscher should be disqualified as counsel for the plaintiffs. I note, however, that in their memorandum in opposition to the motion to dismiss, plaintiffs do state that three members of the Duane, Morris firm are potential witnesses on behalf of the plaintiffs.
Under the terms of the Code of Professional Responsibility, DR 5-102, an attorney may not testify on behalf of his client except under certain circumstances, none of which exist in this case. Thus, if during the course of discovery in this case it becomes clear that any member of the Duane, Morris firm will testify on behalf of their clients, the law firm will have to decide to act either as an advocate or as a witness. Universal Athletic Sales Co. v. American Gym, Recreational & Athletic Equipment Corporation, Inc., 546 F.2d 530, 538 (3d Cir. 1976); J. D. Pflaumer, Inc. v. U. S. Dept. of Justice, 465 F. Supp. 746, 748 (E.D.Pa.1979).
For all of the foregoing reasons, I enter the following order denying both defendants' motion to dismiss and their alternative motion to transfer the case to the Central District of California.