The opinion of the court was delivered by: SHAPIRO
In October, 1982, plaintiff and defendants Brownstein and Ike Frischer
entered into an arrangement to list for sale an apartment complex known as Marten Square Apartments. The controversy between plaintiff, a licensed real estate broker in Pennsylvania, and defendants, licensed real estate brokers in New York, centers on an oral agreement of October, 1982 concerning plaintiff's compensation for his involvement in the sale. The complex, consisting of 344 units, is located in Cornwell Heights, Bucks County, Pennsylvania. Plaintiff contends that the parties agreed that plaintiff would get a one-half share of any commissions earned on the sale. Defendant alleges the agreement was that Brownstein and Frischer would pay plaintiff a flat fee of $10,000 upon sale of the complex. Defendant Brownstein claims that he and Mr. Frischer specifically refused to enter into an agreement with plaintiff for an equal split of commissions because in a previous transaction with plaintiff, defendant and Mr. Frischer, t/a Advance Realty Associates, did not receive commissions to which they were entitled from plaintiff.
The property was sold in late 1982 for $6,700,000. Plaintiff alleges Brownstein and Frischer earned at least a $150,000 commission on the sale and that he was entitled to one-half of that amount. Defendant Brownstein alleges that plaintiff was paid $10,000 which was all he was owed. Plaintiff instituted this action to recover the difference between what he was paid and what he alleges he is owed. He contends this amounts to $65,000 or some higher figure if proved upon further discovery in the course of litigation. Defendant moved to dismiss plaintiff's complaint for lack of jurisdiction. The court denied the motion for lack of sworn affidavits or other supporting documents properly authenticated. The denial was without prejudice to defendant filing a motion for transfer pursuant to 28 U.S.C. § 1404(a); such a motion was filed on May 27, 1986.
Under § 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." 28 U.S.C.A. § 1404(a) (West 1976). There is no question that this action could have been brought in the Southern District of New York since that is a district "where . . . all defendants reside." 28 U.S.C.A. § 1391(a) (West 1976). The issue is whether the convenience of the parties and witnesses and the interest of justice justify transfer.
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). Those factors 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. 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. the "public interest," 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 to ...