The opinion of the court was delivered by: MENCER
Erie Press Systems, a division of EFCO, Inc., a Pennsylvania corporation having its principal place of business in Erie, Pennsylvania, has filed a two-count complaint in the Western District of Pennsylvania against Shultz Steel Company, a California corporation, having its principal place of business in South Gate, California, and against Bucyrus-Erie Company, a Delaware corporation, having its principal place of business in South Milwaukee, Wisconsin. Erie Press Systems (Erie Press) is a manufacturer of steam drop hammers. Shultz Steel Company (Shultz) is a producer of metal forgings. Bucyrus-Erie Company (Bucyrus-Erie) manufactures iron castings in a facility located in the Western District of Pennsylvania. In the first count of the complaint, Erie Press alleges that Shultz owes Erie Press $68,000 as final payment for a drop hammer purchased from the plaintiff. The second count is brought under the provisions of the Declaratory Judgment Act, 28 U.S.C. § 2201, whereby Erie Press seeks a declaration of the rights of the parties under various contracts, all of which are related to the manufacturer of the hammer Erie Press sold to Shultz. Subject matter jurisdiction is proper in this Court by virtue of 28 U.S.C. § 1332(a) (1) which grants the district courts original jurisdiction over all civil actions where the amount in controversy exceeds $10,000 and the parties are citizens of different states.
Erie Press filed its complaint on March 16, 1982. In response, Bucyrus-Erie filed an answer and counterclaim on April 30, 1982. Shultz responded on May 3, 1982 by filing a motion to dismiss for lack of personal jurisdiction or, in the alternative, to dismiss or transfer because of improper venue. Both Erie Press and Shultz have submitted briefs and affidavits in support of their positions regarding the defendant's motion.
The determination of whether a transfer motion pursuant to 28 U.S.C. § 1404(a) should be granted is one within the sound discretion of the Court. The district court must consider both the convenience of transfer and the fairness of such transfer before ruling on a motion based on Section 1404(a). In so doing, the court must keep in mind that the purpose of the section, as interpreted by the United States Supreme Court, is to prevent the waste "of time, energy and money" and "to protect litigants, witnesses and the public against unnecessary inconvenience and expense . . . ." Van Dusen v. Barrack, 376 U.S. 612, 617, 643, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964); Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26, 27, 80 S. Ct. 1470, 4 L. Ed. 2d 1540 (1960).
The burden to establish facts supporting a motion to transfer is on the moving party. The moving party must establish that a balancing of proper interests weighs heavily in favor of the transfer. Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970), cert. denied, 401 U.S. 910, 27 L. Ed. 2d 808, 91 S. Ct. 871 (1971). The United States Supreme Court in Gulf Oil Co. v. Gilbert,3 during a discussion of the doctrine of forum non conveniens, which is applicable to a decision under 28 U.S.C. § 1404 (a), delineated factors to be considered in the determination of whether a transfer would best serve the disparate interests of all the interested individuals in a lawsuit. Four main factors appear to have emerged through the interpretation of Gulf by courts in this circuit. The factors are (1) plaintiff's choice of forum; (2) the relative ease of access to sources of proof; (3) the cost of obtaining attendance of willing witnesses; and (4) practical considerations which will make trial of a case easy, expeditious and inexpensive. Zerance v. William Harvey Research Corporation, 401 F. Supp. 804, 806 (E.D.Pa. 1975).
First, as noted above, the filing of this lawsuit in the Western District of Pennsylvania is entirely proper under 28 U.S.C. § 1391(a). This Court gives great weight to the plaintiff's legally sound choice of filing this lawsuit in the Western District. Shutte v. Armco Steel Corp., supra. Second, we note that the defendants have identified only one potentially relevant piece of evidence which is located outside the Western District of Pennsylvania. That evidence is the drop hammer itself. The Court can discern no reason why photographs would not be adequate to present a view of the hammer to the finder of fact if that becomes necessary during the course of the trial.
The third factor the Court must consider when weighing a motion to change venue is the cost to the respective parties of obtaining attendance of willing witnesses. The Court notes that Shultz has failed to address this factor beyond the bald assertion in its brief that "all of Shultz Steel's witnesses are [in California]" In contrast, Erie Press, while alleging generally that all of its witnesses are located in the Western District, indicates by way of affidavit that Satish Kumar, an employee of Erie Press at the time the hammer was manufactured, is a witness whose "testimony would be vital to a clear understanding of this dispute." The affidavit further states that Mr. Kumar resides outside the Western District of Pennsylvania, but within 100 miles of the Federal Courthouse in Erie, Pennsylvania. This same affidavit identifies three former employees of Bucyrus-Erie who are familiar with the manufacture of the allegedly defective portion of the drop hammer. All three of these individuals live in the Western District of Pennsylvania.
Finally, aside from being the situs of the hammer and being located in the state of incorporation and principal place of business of one of the three parties, the Central District of California
has no special nexus with the activities surrounding this lawsuit. Among other things, the hammer was manufactured in the Western District of Pennsylvania through the combined efforts of a Pennsylvania corporation with its principal place of business in the Western District and another corporation with a manufacturing site in the Western District. As a result of the location of manufacture, many pieces of relevant information and many potential witnesses may be presumed to be more easily and inexpensively obtained in the Western District of Pennsylvania.
Therefore, the defendant, Shultz, has not submitted documentation containing facts sufficient to overcome its burden of proof regarding the factors to be weighed when ruling on a Section 1404(a) motion to transfer.
For the foregoing reasons, the defendant's Motion to Transfer is denied.
Having answered the question of whether venue is proper in the Western District of Pennsylvania affirmatively, we must now turn to a discussion of the defendant's contention that valid in personam jurisdiction cannot be obtained over it in this district. The amenability of a foreign corporation to a diversity action in a federal court is determined by applying the law of the state where the court sits. The only limitations on application of the forum state's law are those imposed by constitutional guarantees of due process. Galaxy International, Inc. v. White Stores, Inc., 88 F.R.D. 311, 314 (W.D.Pa. 1980). The applicable law controlling the exercise of in personam jurisdiction over nonresident corporate defendants by federal district courts sitting within Pennsylvania is found at Section 5322 of Title 42 of the Pennsylvania Consolidated Statutes, Galaxy, supra; Donner v. Tams-Witmark Music Library, Inc., 480 F. Supp. 1229, 1231-32 (E.D.Pa. 1979). The Pennsylvania jurisdictional statute, in effect, adopts the United States Supreme Court's expressions of substantive jurisdictional due process as the law to be applied by courts sitting in Pennsylvania. ...