Thus, because the purpose of allowing § 1404(a) transfers is
to "prevent the waste of time, energy and money and to protect
litigants, witnesses and the public against unnecessary
inconvenience and expense," the key considerations for the
court to review when deciding a motion to transfer are (1) the
convenience of the parties; (2) the convenience of the
witnesses; and (3) the interests of justice. Market Transition
Facility of New Jersey v. Twena, 941 F. Supp. 462, 467 (D.N.J.
1996), quoting Van Dusen v. Barrack, 376 U.S. 612, 616, 84
S.Ct. 805, 809, 11 L.Ed.2d 945 (1964). In Gulf Oil Corp. v.
Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), the
Supreme Court listed specific factors for the courts to
consider when deciding transfer motions. Id. These factors fall
into two categories: (1) the private interests of the litigants
and (2) the public interest in the fair and efficient
administration of justice. Gulf Oil, 330 U.S. at 508-09, 67
S.Ct. 839, 91 L.Ed. 1055.
The private interest factors include: (1) plaintiff's choice
of forum, (2) the relative ease of access to sources of proof,
(3) the availability and cost of compulsory process for
unwilling witnesses, (4) obstacles to a fair trial, (5) the
possibility of viewing the premises, if viewing the premises
would be appropriate, and (6) all other factors relating to the
expeditious and efficient adjudication of the dispute. See Id.
The public interest factors include: (1) the relative backlog
and other administrative difficulties in the two jurisdictions,
(2) the fairness of placing the burdens of jury duty on the
citizens of the state with the greater interest in the dispute,
(3) the local interest in adjudicating localized disputes and
(4) the propriety of having the jurisdiction whose law will
govern adjudicate the dispute to avoid difficult problems in
conflicts of laws. See Id.; see also, DiMark Marketing, Inc. v.
L.A. Health Service & Indemnity Co., 913 F. Supp. 402, 409
(E.D.Pa. 1996). A court should not grant a transfer simply
because the transferee court is more convenient for the
defendants and therefore if the transfer would merely switch
the inconvenience from defendant to plaintiff, the transfer
should not be allowed. Market Transition Facility of New Jersey
v. Twena, 941 F. Supp. at 467; Kimball v. Schwartz, 580 F. Supp. 582,
588 (W.D.Pa. 1984).
Here Britamco's choice of forum is entitled to great weight
in the balancing process since the central facts of this suit
happened in this district. As previously discussed, Wallace's
work on the MOSHULU, the property losses on the MOSHULU and the
ensuing suit filed by HMS Ventures, Inc. against Wallace
occurred in this district. Thus, a substantial portion of the
central facts of this case occurred within this district. That
being so, Britamco's choice of this district as a forum
deserves great weight.
In support of a transfer, Wallace argues that the likely
witnesses and all relevant documents are in California, a trial
in Pennsylvania would cause Wallace economic hardship and
Wallace's 81 year old principal would be inconvenienced by
having to travel to this district. In regards to the likelihood
of witnesses from California, it is true that their amenability
to compulsory process is a factor the court must weigh in the
Section 1404(a) analysis even though the defendant may have
failed to show that the witnesses are necessary, important or
would not be willing to appear at an eventual trial in
Pennsylvania. See Solomon v. Continental Am. Life Ins. Co.,
472 F.2d 1043, 1047 (3d Cir. 1973); NCR Credit Corp. v. Ye Seekers
Horizon, Inc., 17 F. Supp.2d 317, 321 (D.N.J. 1998). However,
Wallace's other private grounds for transfer do not support a
Wallace offers conclusory, unsubstantiated assertions of
financial hardship and inconvenience. Although counsel may be
inconvenienced moving documents from California to Pennsylvania
in the event of a trial, convenience of counsel is not a factor
to be considered in determining whether to
transfer venue pursuant to Section 1404(a). See Solomon, 472
F.2d at 1046; NCR Credit Corp., 17 F. Supp.2d at 323. Wallace
fails to show that shipping the records or other documents from
California to Pennsylvania would create undue burden. There is
no showing that Wallace's 81 year old principal necessarily
would be required to travel to this district for trial. Wallace
also does not indicate how its 81 year old principal would be
inconvenienced in travelling to Philadelphia — the situs of
Wallace's work on the MOSHULU.
Therefore, the only private factors supporting a transfer are
that some events appeared to have occurred in California and
some witnesses who are unamenable to compulsory process reside
in California. These factors simply fail to outweigh the
deference due to Britamco's choice of forum.
It is clear that the Gulf Oil public factors also fail to
support a transfer. Although California may have an interest in
this case because the insurance policy was completed in
California, Pennsylvania also has an interest — determining
the coverage issues for property losses within this district.
Moreover, California's interest is not definitive since it is
far from clear whether California law would even govern this
marine liability insurance policy.*fn4 As such, Britamco's
choice of forum holds the greatest weight.
An appropriate Order follows.
AND NOW, this 22nd day of June, 1999, upon consideration of
Defendant's Motion to Dismiss for Improper Venue pursuant to
Federal Rule 12(b)(3) of Civil Procedure, or alternatively
Motion to Transfer for Improper Venue pursuant to 28 U.S.C. § 1406(a)
and/or Motion to Transfer pursuant to 28 U.S.C. § 1404(a)
and Plaintiff's Response thereto, it is hereby ORDERED
that the Motions are DENIED.