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AMERICAN TEMPERING, INC. v. BRADY & SUN

August 28, 1985

AMERICAN TEMPERING, INC., Laminating and East Coast Tempering Division, Plaintiff
v.
BRADY & SUN, Defendant



The opinion of the court was delivered by: SHAPIRO

 SHAPIRO, J.

 Pending before this Court is defendant's motion for change of venue pursuant to 28 U.S.C. § 1404. Plaintiff, American Tempering, is a California corporation with its principal place of business in Bensalem, Pennsylvania. Defendant, Brady & Sun (Brady), is a Massachusetts corporation with its principal place of business in Worcester, Massachusetts. American Tempering has filed this action against Brady for breach of contract. It claims that Brady failed to pay for glass manufactured for Brady in Bensalem, Pennsylvania, and shipped to Brady in Worcester, Massachusetts, for use in Brady's greenhouse business. American Tempering seeks $59,825.95 in damages.

 Brady admits that it contracted with American Tempering to purchase specially manufactured glass, but claims that deliveries were late, and much of the glass did not conform to contract specifications. Brady also asserts that it relied on American Tempering's promise of timely delivery to its detriment and counterclaims for damages of $260,000.

 Brady has moved for a change of venue to the United States District Court for the District of Massachusetts pursuant to 28 U.S.C. § 1404(a) which reads: "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."

 Brady has not challenged the venue of the Eastern District of Pennsylvania as being improper under 28 U.S.C. § 1391, nor does it seek to cure or waive venue defects under 28 U.S.C. § 1406(a). It is Brady's position that the Eastern District of Pennsylvania is such an inconvenient forum that a change of venue to the District of Massachusetts is warranted.

 The United States Supreme Court dealt with the issue of transfer for convenience of the parties and witnesses in Gulf Oil Corp v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). It was held that great deference is to be given to the plaintiff's choice of forum; "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." 330 U.S. at 508. See also Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970). In addition, if the balance of inconvenience borne by the parties is equal or only slightly heavier for the defendants, then the plaintiff's choice of forum should prevail. B.J. McAdams, Inc. v. Boggs, 426 F. Supp. 1091 (E.D. Pa. 1977).

 The decision to transfer a case to another forum on venue grounds is vested in the broad discretion of the District Court. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981) and Plum Tree, Inc. v. Stockment, 488 F.2d 754 (3d Cir. 1973). The district court judge must balance the factors for and against a transfer and decide which forum would best serve the private interest of the parties and public interest of justice with judicial economy.

 Brady contends that a number of factors support a request for transfer to the District of Massachusetts:

 1) Brady is a relatively small firm while American Tempering is a large firm with a nationwide market and could easily litigate in any forum;

 2) the non-conforming glass was delivered in Massachusetts and the complaints about the glass are by Massachusetts customers;

 3) Brady seeks to call twenty-two witnesses, all of whom reside in Massachusetts. Great expense would be incurred if these witnesses came to this Court to testify. Also, six of the witnesses are not within reach of this court's subpoena power;

 4) Brady's dealings were primarily with three employees of American Tempering: Nick Burke, Stuart Merke and George Hodge. These men frequently travel to Massachusetts in their work. It would be no burden on them to testify in Massachusetts;

 5) Brady's counterclaim, based on Massachusetts law, is for a greater amount than American Tempering's original claim. Brady asserts that Massachusetts law applies to American Tempering's claim and that the Massachusetts ...


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