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KAHHAN v. CITY OF FORT LAUDERDALE

June 24, 1983

FREDERICK KAHHAN
v.
CITY OF FORT LAUDERDALE



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 Defendant City of Fort Lauderdale, Florida, a municipal corporation, has moved to dismiss for lack of in personam jurisdiction, or in the alternative to transfer the action to the Southern District of Florida where it is located. There having been full discovery on these issues, the motion to transfer pursuant to 28 U.S.C. § 1404(a) will be granted.

 Plaintiff Frederick Kahhan is now a citizen and resident of the Commonwealth of Pennsylvania. In April, 1980, in Philadelphia, Kahhan listened to several radio advertisements seeking to recruit applicants for the Fort Lauderdale police department. Kahhan responded to these advertisements, and on or about April 25, 1980, met with Fort Lauderdale recruiters at the Holiday Inn at 18th and Market Streets in Philadelphia. Kahhan was given an oral and written examination here and told that, if he passed a polygraph examination in Florida, he would be offered a permanent position with the Fort Lauderdale police. Plaintiff was already on a waiting list of the Philadelphia Police Department; moving to Florida would disqualify him from the Philadelphia appointment. Kahhan informed the representatives of Fort Lauderdale of this fact.

 In June, 1980, Kahhan travelled to Fort Lauderdale, took and passed the tests including a polygraph test. In August, 1980, he began working for the Fort Lauderdale Police Department.

 Motion to Transfer

 "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." 28 U.S.C. § 1404(a). Defendant seeks transfer of this action to the Southern District of Florida. This action might have been brought there under either 28 U.S.C. § 1391(b) or 28 U.S.C. § 1391(c). In a case such as this where jurisdiction is claimed both by reason of diversity (28 U.S.C. § 1332) and the existence of a federal question (28 U.S.C. § 1331), Complaint para. 3, 28 U.S.C. § 1391(b) provides that an action "may be brought only in the judicial district where all defendants reside, or in which the claim arose . . ." The sole defendant City of Fort Lauderdale is in the Southern District of Florida, so that venue exists there under § 1391(b). Section 1391(c) provides that "A corporation may be sued in any judicial district in which it is incorporated or licensed to do business or is doing business . . ." The City of Fort Lauderdale, a municipal corporation doing business as Fort Lauderdale in Southern Florida, may be sued in the Southern District of Florida under this provision as well.

 The motion to transfer will be considered and granted without resolution of the jurisdictional issue. Even were it decided that this court did not have jurisdiction, it would still have power to transfer the case to another district under § 1404(a). United States v. Berkowitz, 328 F.2d 358 (3rd Cir.), cert. denied, 379 U.S. 821, 85 S. Ct. 42, 13 L. Ed. 2d 32 (1964); Donnelly v. Klosters Rederi A/S, 515 F. Supp. 5 (E.D. Pa. 1981); see Schwilm v. Holbrook, 661 F.2d 12, 15 (3rd Cir. 1981); cf. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S. Ct. 913, 8 L. Ed. 2d 39 (1962) (transferor court need not have had jurisdiction over the defendant to effect a transfer under 28 U.S.C. § 1406(a)).

 Motions to transfer are determined by consideration of the same factors relevant to a determination of a forum non conveniens motion. Norwood v. Kirkpatrick, 349 U.S. 29, 99 L. Ed. 789, 75 S. Ct. 544 (1955). They are:

 1) Relative ease of access to sources of proof;

 2) Availability of compulsory process for attendance of unwilling witnesses;

 3) Cost of attendance at trial by willing witnesses;

 4) The possibility of view of the premises, if ...


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