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KYLE v. DAYS INN OF AMERICA

September 23, 1982

MARGARET J. KYLE and JOHN P. KYLE, her husband, Plaintiffs
v.
DAYS INN OF AMERICA, INC., a corporation, as well as DAYS INN OF AMERICA FRANCHISING, INC., a corporation, Defendants



The opinion of the court was delivered by: RAMBO

 The defendants, Days Inn of America, Inc., (Days Inn), and Days Inn of America Franchising, Inc. (Franchising), have moved to dismiss the Kyle's complaint under Federal Rule of Civil Procedure 12(b). The defendants allege that the plaintiffs lack personal jurisdiction over the defendant, Days Inn, because Days Inn did not at the time of the alleged tort "do business in the Commonwealth of Pennsylvania." The defendant, Days Inn, was at the time of the alleged injury registered in the Commonwealth of Pennsylvania as a foreign corporation and therefore had subjected itself to jurisdiction and named an agent for service of process. See DiCiano v. Western Contracting Corp., 224 F. Supp. 803, 804 (E.D. Pa. 1963). *fn1"

 The defendants' motion to dismiss also questions whether venue in the Middle District of Pennsylvania is proper. Venue in the present case is determined by 28 U.S.C. § 1391(c) and § 1392(a). Section 1391(c) makes venue proper in any district in which a corporation is "licensed to do business." 28 U.S.C. § 1391(c). Days Inn is licensed to do business in Pennsylvania. The defendants' attorney admits in his Affidavit in Support of Motion to Dismiss that Franchising owns the Pennsylvania motel located at New Cumberland. Thus Franchising is doing business in the Middle District and venue is proper under 28 U.S.C. § 1391(c). If venue is proper in relation to Franchising, then 28 U.S.C. § 1392(a) allows defendants residing in different districts in the same state to be brought into the district for venue purposes. It then becomes irrelevant whether Days Inn is found in the Middle District for venue, since it is surely in one of the judicial districts in Pennsylvania and § 1392(a) allows Days Inn to be brought into the Middle District wherever in Pennsylvania it is found. The Middle District of Pennsylvania, therefore, is a proper venue for the present case.

 The defendants also pray for a transfer of the case "to an appropriate District Court within the State of Georgia." Since the showing of inconvenience required to justify a transfer under 28 U.S.C. § 1404(a) is less than that required under the common law forum non conveniens doctrine, Neff Athletic Lettering Co. v. Walters, 524 F. Supp. 268, 272 (S.D. Ohio 1981); See Norwood v. Kirkpatrick, 349 U.S. 29, 32, 99 L. Ed. 789, 75 S. Ct. 544 (1955), this court will begin with the analysis under § 1404(a). Section 1404(a) gives a district court discretion to transfer any civil action to another district in which the action might have been brought. *fn2" The court is to weigh the convenience of the parties and witnesses and the interest of justice. 28 U.S.C. § 1404(a).

 The factors to be weighed in a decision under § 1404(a) are those outlined by the United States Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). 524 F. Supp. at 272. The Supreme Court circumscribed the weighing process by indicating that "unless the balance is strongly in favor of the defendant, the Plaintiff's choice of forum should rarely be disturbed." 330 U.S. at 508-09. The Supreme Court grouped the factors into (1) those of private interest to the litigants:

 Id. at 508;

 (2) those which advantage or obstruct a fair trial:

 
It is often said that the plaintiff may not, by choice of an inconvenient forum, "vex," "harass," or "oppress" the defendant by inflicting upon him expense or trouble not necessary to his own right to pursue his remedy.

 Id.;

 and (3) those effecting public policy:

 
Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home ...

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