motions is "substantially attenuated when the plaintiff's choice of forum is not the plaintiff's residence." New Image, Inc. v. Travelers Indem. Co., 536 F. Supp. 58, 59 (E.D. Pa. 1981). Moreover, the holding in Shutte is based in significant part on the fact that the plaintiff could not have initially brought his case in the transferee district. Finally, plaintiff's choice of forum merits less deference when none of the conduct complained of occurred in plaintiff's selected forum. Bartolacci v. Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, 476 F. Supp. 381 (E.D. Pa. 1979). To insist that plaintiff's choice of forum is controlling would be to render § 1404(a) meaningless. Equally important is the balancing of the other relevant choice-of-forum considerations. In the instant case that balance is strongly weighted in defendant's favor.
With regard to both access to sources of proof and the convenience and availability of willing and unwilling witnesses, defendant will be more burdened by a Pennsylvania trial than the plaintiff will be inconvenienced by a Maryland trial. Plaintiff claims that the bulk of his case consists of expert testimony on the issue of damages, and that most of his witnesses are from the Philadelphia area. The majority of defendant's witnesses, on the other hand, including virtually all potential liability witnesses to this incident and other potentially joinable parties, reside in Maryland, relatively near the accident scene. Many sources of proof, such as medical records, police reports and certain employment documents are located in Maryland. The cost and inconvenience to defendant of transporting witnesses to Allentown, Pennsylvania, where this matter would be tried if I retained jurisdiction, outweighs the inconvenience that will be suffered by the plaintiff if this matter is transferred to the District of Maryland and tried in Baltimore.
From Marlton, New Jersey, where he resides, plaintiff will be required to travel approximately one hundred miles to Baltimore. Were I to retain jurisdiction, plaintiff would be required to travel seventy miles to Allentown.
From the scene of the accident, defendant's witnesses would be required to travel approximately one hundred miles to Allentown, or forty-five miles to Baltimore. Since one of the parties must transport his witnesses one hundred miles, the most convenient forum would be that which is closest to one of the respective parties. Baltimore, at forty-five miles, is closer to defendant's witnesses than Allentown, at seventy miles, is to plaintiff's witnesses. Additionally, "liability witnesses may be considered of higher quality and their convenience given more weight." Kahhan v. City of Fort Lauderdale, 566 F. Supp. 736, 739 (E.D. Pa. 1983). The reasoning behind this rule is that "damage testimony would become relevant only if plaintiffs were to succeed on liability." Bartolacci, 476 F. Supp. at 383. The convenience of defendant's liability witnesses, therefore, is entitled to greater weight than the convenience of plaintiff's damage witnesses.
It is unclear whether liability witnesses residing near the scene of the accident would be subject to compulsory process from Allentown, Pennsylvania. The resolution of this issue would involve fine calculations based on the addresses of potential witnesses, with which this court was not supplied. On this point, plaintiff asserts that all liability witnesses and potentially joinable parties are within one hundred miles of Philadelphia. Pierce v. Globemaster Baltimore, Inc., 49 F.R.D. 63 (D. Md. 1969) (adopting air-mile test to allow service of process in Pottstown, Pennsylvania from Baltimore, Maryland). However, this does not resolve the doubt regarding availability of compulsory process from Allentown, Pennsylvania. The availability of compulsory process is an important consideration in deciding transfer motions since its absence could force a litigant to try his case by deposition. When liability issues are involved, the importance of being able to subpoena unwilling trial witnesses increases. The fact that all potential liability witnesses and joinable parties are subject to process from Baltimore, Maryland, therefore, weighs in favor of defendant's choice of forum.
Plaintiff's arguments to the contrary, that liability is likely to be uncontested except for punitive damages issues, and that his children will be traumatized by being "uprooted" to Maryland are unpersuasive on the facts of this case. The defendant is in fact contesting liability and presumably the award of punitive damages as well. Finally, this court can give little weight to the claim that plaintiff's children, if they testify, would be less traumatized by travelling seventy miles to Allentown rather than one hundred miles to Baltimore. In view of these facts, a Maryland trial would be easier, more expeditious, less expensive and, thus, fairer and more practical than a Pennsylvania trial.
The "public interest" factors involved in this case also favor granting defendant's transfer motion. Maryland is the situs of the accident. It is alleged that violations of Maryland traffic regulations contributed to this accident. Nearly all of the injured parties, including plaintiff and his family, resided in Maryland. Maryland tort law will most likely be applied to this action. It is clear, therefore, that the instant dispute is a matter of local concern to Maryland courts and juries. Maryland certainly has a greater interest in this suit than Pennsylvania. Where feasible, matters of local interest should be decided by local juries, and resolved by local courts most competent to administer local law.
Finally, to the extent that a view of the premises is relevant to this action, if at all, it favors transfer of this matter to Maryland, the forum in which the event occurred.
Therefore, upon reviewing and balancing the appropriate factors, defendant Hammermill's motion to transfer this case under 28 U.S.C. § 1404(a) will be granted.
An appropriate order follows.
ORDER - July 7, 1988, Filed
AND NOW, this 6th day of July, 1988, upon consideration of defendant's Motion to Transfer Venue, plaintiff's response thereto, and the parties' supporting memoranda of law, IT IS ORDERED that the Motion is GRANTED.
The clerk of this court is directed to forward the file in this case to the clerk of court of the United States District Court for the District of Maryland.
EDWARD N. CAHN, JUDGE
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