in Pennsylvania had in personam jurisdiction over a Michigan resident).
We hold that Plaintiff has met his burden here.
The claim in this case arises, at least in part, from forum-related activities. The Complaint and Plaintiff's affidavit allege that Defendant breached his oral employment contract with Plaintiff and interfered with Plaintiff's existing and prospective contractual relationships during the course of his employment with Plaintiff, by acting as an agent for other companies, and otherwise contacting other companies, including some of Plaintiff's competitors. The other companies include Green International, Inc. of Pittsburgh; the Office of Tasso Katselas of Pittsburgh; Greenwood Enterprises, Inc. of Uniontown, Pennsylvania; and Monaloh Basin Engineers, also of Uniontown. All of these companies are located in this District. Thus, the harm suffered by Plaintiff allegedly resulted from contacts and dealings with other companies located in this District, supporting a finding that the claim arises, at least in part, from forum-related activities.
Plaintiff's affidavit alleges that Defendant made telephone calls from West Virginia to Pittsburgh and elsewhere in Pennsylvania to some of Plaintiff's existing or potential clients as well as some of Plaintiff's competitors, using Plaintiff's business telephone located at Defendant's home.
Exhibit A to Plaintiff's affidavit lists 68 telephone calls made by Defendant to places within this District during the period January 1, 1983 through March 31, 1983. All calls were allegedly made outside the scope of Defendant's duties.
Exhibit B to Plaintiff's affidavit lists 28 phone messages left for Defendant with the answering service paid by Plaintiff, concerning matters allegedly outside the scope of Defendant's duties. Many of the calls originated in this District.
Due process can be satisfied even if Defendant does not physically appear in the forum state. Specifically, telephone or mail contacts can support in personam jurisdiction. Sterling Indus. Corp. v. Telephone, Inc., 484 F. Supp. at 1299.
We believe that the telephone calls alone constitute sufficient contacts with the forum to support in personam jurisdiction, particularly since the claim arises, at least in part, from these forum-related contacts.
Plaintiff also alleges in his affidavit that Defendant visited Pennsylvania for company meetings in Ebensburg or Pittsburgh or for meetings with clients of a general promotional nature throughout Pennsylvania. Exhibit C to Plaintiff's affidavit lists 24 instances when Defendant visited this District during the period January 1, 1983 through June 30, 1983.
Plaintiff does not contend that his claim arises from these forum-related activities. Nevertheless, these contacts evince "continuous and substantial" forum affiliations so as to support in personam jurisdiction under the second test or analysis.
Hence, under either test, Plaintiff has come forward with sufficient facts to support this Court's exercise of in personam jurisdiction over Mr. Schwartz.
IV. TRANSFER UNDER 28 U.S.C. § 1404(a)
Defendant argues in the alternative that the Court should transfer this action to the U.S. District Court for the Southern District of West Virginia pursuant to 28 U.S.C. § 1404(a) since that is the District where the Defendant resides and, it is argued, where the claim arose.
Plaintiff responds that this District is the more convenient forum since most of the witnesses, except for the Defendant, reside in this District.
Section 1404(a) permits transfer to another district where the action might have been brought "for the convenience of parties and witnesses, in the interest of justice." 28 U.S.C. § 1404(a). The purpose of this provision 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, 616, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964), quoting 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 is clearly on the defendant, when it is the moving party, to justify a transfer pursuant to § 1404(a). 15 Wright, Miller and Cooper, FEDERAL PRACTICE AND PROCEDURE § 3848, at 244 (1976). Defendant's preference for another forum, without more, is insufficient. In this regard, a transfer is not warranted if the result is simply to shift the inconvenience from one party to the other. Id. at 246. Further, a transfer is not justified by a mere showing that the claim arose elsewhere. Id.
Defendant has not met his burden of demonstrating that a transfer to the Southern District of West Virginia would be convenient for the parties and witnesses and would promote the interest of justice. He has not offered the names of any witnesses, other than himself, who are located in the Southern District of West Virginia. Indeed, it appears from the pleadings and affidavits that many or most of the witnesses in this case are located in this District since many or most of the companies allegedly contacted by Defendant are located in this District. We note that Plaintiff specifically states in his brief that most of the witnesses actually reside in the Greater Pittsburgh area.
Therefore, we cannot find that a transfer to the Southern District of West Virginia would promote the interest of justice or would serve the convenience of any person except the Defendant.
Accordingly, we must deny Defendant's request that the case be dismissed or transferred.
An appropriate Order follows.
And now, this 13th day of February, 1984, Defendant's Motion to Dismiss or Transfer is hereby DENIED.
Defendant shall file an Answer to the Complaint on or before March 5, 1984.