district court in Wheeling is insufficient to overturn the normal presumption in favor of plaintiffs' choice of forum.
The availability of compulsory service is a factor which the court must consider. Luca Oil, 593 F. Supp. at 1200. Although this court cannot obtain service upon Dr. Henry, the district court in the Northern District of West Virginia would be able to serve him because he did practice medicine in West Virginia. Availability of service on Dr. Henry is not an issue in this litigation, however, because plaintiffs have stated that they prefer to dismiss their claims against Dr. Henry and remain in this court.
The court must consider public interest factors, such as judicial efficiency and local interest. Gulf Oil, 330 U.S. at 508-509. There is no evidence that judicial efficiency would be better served by a transfer. It is likely that both courts have similar caseloads. In fact, transfer to another court might unnecessarily delay these proceedings and therefore have a negative effect on judicial efficiency and the public interest. Due to the proximity of Wheeling and Pittsburgh, there is no strong indication that local interests would be better served by a transfer. Although jurors in the Northern District of West Virginia might be somewhat more interested in the occurrences that gave rise to this case than jurors in this district, this factor is not persuasive enough to dictate transfer. Overall, we are not convinced that the public interest would be better served if the trial were held in Wheeling as opposed to Pittsburgh.
Defendants also argue that this case should be transferred because West Virginia law applies, and the district court in Wheeling is more familiar with West Virginia law. We do not find this argument persuasive. Defendants have requested transfer to another federal district court, not to state court. We acknowledge that, as a practical matter, federal courts in West Virginia may hear more cases based on West Virginia law than the courts in this district. However, none of the federal courts is an arbiter of state law, and the law applicable to a personal injury case is not likely to be very complicated nor peculiar to the particular state where it occurred. Insofar as the case may involve an interpretation of a "peculiar area of West Virginia Workmans' Compensation Law" (see Weirton's Memorandum of Law, page 6) we believe that the learned counsel involved in this case will be well-able to advise the court as to the proper course to follow.
The federal courts are to take state law as they find it, and merely apply it to the facts of the instant case. Erie Railroad v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Wright, Miller & Cooper, 19 Federal Practice & Procedure §§ 4503, 4507 (1982 & Supp. 1986). We acknowledge that some district court opinions have cited familiarity with state law as a factor in a decision to transfer a case. See, e.g., Mutual of Omaha Ins. Co. v. Dolby, 531 F. Supp. 511, 516 (E.D. Pa. 1982). However, in those cases other, more convincing, factors justified transfer. We cannot accept the proposition that familiarity with state law is sufficient justification for shuffling cases from one federal court to another, when no other factors weigh persuasively in favor of the moving party.
Finally, defendant cites the case of Schwilm v. Holbrook, 661 F.2d 12 (3d Cir. 1981), which directed that a case be transferred from the Western District of Pennsylvania to a district court in West Virginia on grounds of convenience. There are significant factual distinctions between that case and this one. The conveniences weighed more heavily in favor of transfer in Schwilm, since that case was transferred to a court which is a greater distance from this court than Wheeling is. More importantly, in Schwilm it was the plaintiff who sought transfer, thus the usual presumption in favor of plaintiff's choice of forum did not militate against transfer. The motion we consider here was brought by defendants, and defendants have not overcome the presumption.
Although defendants have given us a tempting opportunity to reduce our caseload by transferring this matter to another district, we are not persuaded that such a transfer would serve the convenience of parties and witnesses, or the interest of justice. The balance of conveniences is not such that it will be unnecessarily burdensome for defendant or the court to proceed in this forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 256 n.23, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). Defendants have not overcome the presumption in favor in plaintiffs' choice of forum. Therefore, this matter will remain in this court.
PERSONAL JURISDICTION OVER DR. HENRY
We have determined that this case should be retained in this court. Plaintiffs have already conceded that this court does not have personal jurisdiction over Dr. Henry. The claims against Dr. Henry will accordingly be dismissed for lack of personal jurisdiction.
An appropriate order will be entered.
AND NOW, to-wit, this 9th day of December, 1986, it is hereby ORDERED, ADJUDGED and DECREED that:
(1) Defendants' motions to dismiss be and hereby are DENIED;
(2) Defendants' motions to transfer venue to the United States District Court for the Northern District of West Virginia be and hereby are DENIED;
(3) The motion of defendant Phillip D. Henry, M.D. to dismiss the claims against him for lack of personal jurisdiction be and hereby is GRANTED.
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