The opinion of the court was delivered by: COHILL
Presently before the Court is Defendant's Motion to Transfer this action, pursuant to 28 U.S.C. § 1404(a), to the Western District of Texas, Midland Division.
The dispute between the parties arises out of alleged oral promises made by the Defendant in connection with a drilling contract. The Plaintiff, Luca Oil Drilling Co., Inc. ("Luca"), is a Texas corporation with its principal place of business in Odessa, Texas. Defendant, Gulf Oil Corporation ("Gulf"), is a Pennsylvania corporation with its principal place of business in Pittsburgh, Pennsylvania. Gulf also maintains offices and does business throughout the United States.
The Complaint alleges that, in or about May, 1981, Luca was established for the exclusive purpose of drilling oil wells for Gulf, in Texas. Luca and Gulf entered into a "Master Rotary Contract" (the "contract") whereby Luca agreed to drill, complete, work over, or deepen wells, according to Gulf's instructions. Complaint, para. 5. Luca purchased a "rig" and drilled exclusively for Gulf during the first year of the contract.
The Complaint alleges that, in September, 1982, Gulf, through its regional supervisor, requested that Luca purchase another rig, assuring Luca that there would be enough work to justify the purchase. Luca alleges that it later purchased a third rig based on similar assurances from Gulf's regional supervisor.
The gravamen of the Complaint is that, beginning in January 1984, Gulf allegedly stopped providing Luca with work, notwithstanding its past assurances and inducements. Id. P 16. Luca demands damages for breach of contract, an injunction prohibiting Gulf from cancelling or further interfering with the contract or assurances, and an order directing Gulf to perform the contract.
Gulf has filed an answer denying that it made any assurances and counterclaiming that Luca breached the contract in failing to pay for labor and supplies, and, as a result of this failure, allowing liens and other charges to be filed against Gulf leases, wells, and other property in Texas.
Section 1404(a) provides: "For the convenience of the parties and the 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). Caselaw imposes a balancing test weighing competing private interests and public interests. Mowrey v. Johnson & Johnson, 524 F. Supp. 771, 775 (W.D. Pa. 1981). The factors to be considered are: ease of access to sources of proof; convenience of the parties; convenience of the witnesses; availability of compulsory process; "public interest" factors (including relative congestion of court dockets, choice of law considerations, and the relation of the community in which the courts and jurors are required to serve to the occurrences that give rise to the litigation); and interests of justice. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S. Ct. 839, 91 L. Ed. 1055 (1947); Flintkote Co. v. Allis-Chalmers Corp., 73 F.R.D. 463 (S.D.N.Y. 1977). Convenience of counsel is not a factor to be considered. Bolton v. Tesoro Petroleum Corp., 549 F. Supp. 1312, 1315 (E.D. Pa. 1982) (citing Solomon v. Continental Am. Life Ins. Co., 472 F.2d 1043, 1047 (3d Cir. 1973)); Weinberger v. Retail Credit Co., 345 F. Supp. 165, 168 (E.D. Pa. 1972). In applying the factors cited above, each case must be decided according to its own particular circumstances. Bartolacci v. Corporation of the Presiding Bishop, 476 F. Supp. 381, 383 (E.D. Pa. 1979).
While Plaintiff's initial choice of forum is usually entitled to paramount consideration, Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S. Ct. 871, 27 L. Ed. 2d 808 (1971); Micheel v. Haralson, 586 F. Supp. 169, 172 (E.D. Pa. 1983) exceptions to this general rule are recognized where necessary to preserve the purpose of § 1404(a). Bartolacci, supra, at 383. Exceptions arise where none of the conduct complained of occurred in plaintiff's selected forum, id., or where the chosen forum is not plaintiff's place of residence. Haeberle v. Texas Int'l Airlines, 497 F. Supp. 1294, 1304 (E.D. Pa. 1980) (citing Newfield v. Nicholson File Co., 210 F. Supp. 796 (E.D. Pa. 1962)).
Initially, this Court must make a determination as to whether this case could have been brought in the Western District of Texas. We have little difficulty in making such a finding; jurisdiction exists pursuant to 28 U.S.C. § 1332 by reason of the fact that the parties are citizens of different states and the fact that the amount in controversy exceeds $10,000. Venue is proper pursuant to 28 U.S.C. § 1391(c) since Gulf does business in the Western District of Texas. See Webb Research Corp. v. Rockland Indus., Inc., 580 F. Supp. 990, 993 (E.D. Pa. 1983).
The Court must next weigh the relevant factors, determining, in its discretion, if the convenience of the parties and witnesses, together with the interests of justice, require transfer. Solomon v. Continental Am. Life Ins. Co., 472 F.2d 1043, 1045-46 (3d Cir. 1973); Omni Exploration, Inc. v. Graham Engineering Corp., 562 F. Supp. 449, 455 (E.D. Pa. 1983). The moving party bears the burden of showing that a balancing of the interests weighs in favor of transfer. Unless the balancing weighs strongly in favor of the defendant, as before stated, the plaintiff's choice should not be disturbed. Shutte, supra, at 25. Courts will decline to transfer where doing so merely shifts the burden of trial in a distant forum from defendant to plaintiff. Kawecki v. Berylco Indus., Inc. v. Fansteel, Inc., 512 F. Supp. 984, 986 (E.D. Pa. 1981), aff'd, 676 F.2d 686 (3d Cir. 1982).
Gulf argues that transfer of this action is justified for several reasons: 1) Plaintiff is a West Texas drilling contractor with its principal place of business in Odessa, Texas, and, therefore, will not be inconvenienced by the transfer; 2) the facts of the case relate to Texas and the Western District of Texas in that the actions complained of are those of Gulf's Southwest Area office, also headquartered in Odessa, Texas; 3) the contract was negotiated, executed, and performed in the Western District of Texas; 4) all witnesses are located in Texas; and 5) Texas law will be applied under either state's choice of law rules.
In contrast, Plaintiff argues that 1) its choice of forum should be given deference; 2) that Frank Luca, the President of Luca Oil, has many contacts with Pennsylvania: he is officer of ten Pennsylvania corporations, he maintains a corporate headquarters in Wilkes-Barre, Pa., from which several telephone conversations took place with Mr. Blakely in Texas; 3) the only defense witnesses will be two Gulf representatives from Texas and all Plaintiff's witnesses will be available for trial in Pennsylvania; 4) copies of any relevant documents should be available at Gulf's corporate headquarters in Pittsburgh; 5) Pennsylvania law may apply since several telephone conversations allegedly took place between Texas and Pennsylvania; 6) because of Mr. Luca's ...