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EXIDE CORP. v. ELECTRO SERVS.

October 31, 1984

EXIDE CORPORATION
v.
ELECTRO SERVICES, INC. v. INCO, LTD. ELECTROENERGY CORPORATION



The opinion of the court was delivered by: SHAPIRO

 NORMA L. SHAPIRO, J.

 Defendant Electro Services, Inc. ("Electro"), a Florida corporation with its principal place of business in Florida, has moved to transfer this case to United States District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). The motion will be granted.

 Exide's batteries were sold with express warranties; Exide granted Electro a 5% warranty allowance to cover servicing warranty claims of Electro's customers purchasing Exide batteries. In 1982, Electro complained that its expenses in servicing warranty claims exceeded 5% of sales and the two companies entered into a settlement agreement regarding automotive batteries. Subsequently, Electro complained that its warranty claims continued to mount and alleged that Exide committed fraud by misrepresenting the quality of particular automotive batteries. On December 2, 1983, Exide filed suit in the Eastern District of Pennsylvania seeking payment for certain batteries sold and delivered as well as a declaratory judgment barring Electro from asserting a claim against Exide for the batteries that were the subject of the 1982 settlement agreement. Four days later, Electro commenced an action in Manatee County, Florida, against Exide, INCO Ltd., and INCO Electro Energy Corporation that alleged, inter alia, breach of contract and fraud. On petition of Exide, that case was removed to the United States District Court for the Middle District of Florida.

 Electro's motion to dismiss the Pennsylvania case for lack of in personam jurisdiction was denied on January 31, 1984. A motion to transfer under § 1404(a) remained pending. This court also enjoined Electro from proceeding in the Florida case, but permitted discovery of matters relevant to both cases to continue in order to avoid delay in resolving the underlying dispute. Pending here is Exide's complaint: Count I demands payment for golf car batteries; Count II requests a declaratory judgment validating the agreement settling warranty claims; and Count III claims amounts owing under certain invoices for batteries sold and delivered. See Order dated May 15, 1984. Electro's amended counterclaim alleges contractual claims in Counts II, III and VI, tort claims in Counts I, VII, and VIII, and fraud and false advertising in Counts IV and V; Count IX was dismissed on motion of the plaintiff.

 Under 28 U.S.C. § 1404(a), "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." Exide has a Florida regional office and extensive Florida contacts so it is clear there is jurisdiction over Exide and venue in Florida.

 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, 75 S. Ct. 544, 99 L. Ed. 789 (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 appropriate;
 
5. all other practical problems that make trial of a case easy, expeditious, and inexpensive; and
 
6. "public interest" factors, including the 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 ...

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