District of New York, the court must turn to the factors
informing such a decision. The statute itself requires
consideration of the convenience of the parties, the
convenience of the witnesses, and the interests of justice. The
court should also look to a variety of other public and private
factors before transferring a cause of action. See Jumara v.
State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). Private
interests include the parties' preferences, the convenience of
the parties with respect to their physical and financial
presence, the unavailability of witnesses, and the location of
books and records. See id.; see also American Littoral Soc. v.
U.S.E.P.A., 943 F. Supp. 548, 550 (E.D.Pa. 1996) (summarizing
relevant factors). Applicable public interests include the
enforceability of judgment and administrative difficulty
pertaining to court congestion. See Jumara, 55 F.3d at 879.
It is the burden of the party requesting transfer to establish
the need to do so. See id.
While the plaintiff raises a variety of arguments against
transfer, none counsel against transferring the case.
Initially, plaintiff relies on its own forum choice preference,
but, as the court rules that it does not have personal
jurisdiction, this factor is of little relevance. Plaintiff
next argues that many of its own witnesses and potential
deponents are located a close drive from Philadelphia in either
Eddystone or in Washington, D.C. Plaintiff also argues,
however, that it is simple for defendant to travel to
Philadelphia because of the contemporary ease of
transportation; these same considerations certainly apply to
plaintiff's witnesses. Moreover, plaintiff does not suggest
that these witnesses would be unavailable in New York. Finally,
plaintiff argues that the congestion of the Western District of
New York and the costs to plaintiff to pursuing its action in
New York militate against a transfer being in the interest in
justice. Even accepting plaintiff's representations regarding
the time to trial in New York, the relatively minimal delay
plaintiff describes is an insufficient reason to block a
transfer. This leaves only the cost to plaintiff, but this cost
is never quantified and, without more, is also insufficient to
block the transfer.
In contrast, defendant explains that Dumex has a warehouse in
Buffalo, New York with many of the relevant materials. Dumex
also points out that many witnesses in Canada will need to be
deposed for this case, and their presence is much more easily
obtained in Buffalo than in Philadelphia. Finally, the court is
inclined to grant the motion to transfer because defendant
explicitly stated that it would accept personal jurisdiction
and venue in that forum. Particularly since plaintiff did not
indicate that it would rather have the case dismissed than
transferred, the court will grant the motion to transfer under
section 28 U.S.C. § 1404(a).
For the court to hold that general personal jurisdiction could
be established solely by the existence of websites such as
those at issue here would deal a serious blow to the concept of
personal jurisdiction. Virtually every corporation, domestic
and foreign, would be subject to the general personal
jurisdiction of every state. While personal jurisdiction and
other legal doctrines must obviously evolve in light of new
technologies, the court does not believe the time has yet come
to abandon personal jurisdiction altogether. Consequently, the
court will grant defendant's motion to transfer because this
court lacks personal jurisdiction over it.
An appropriate Order follows.
AND NOW, this 7th day of September, 1999, upon consideration
of Defendant's Motion to Dismiss for Lack of Personal
Jurisdiction, Improper Venue, and/or Failure to State a Claim
upon which Relief can be Granted, or, in the Alternative to
Transfer Venue, and the response thereto, it is ORDERED as
(1) Defendant's Motion to Dismiss for lack of personal
jurisdiction and/or lack of venue is DENIED. Defendant's
Motions for Transfer pursuant to 28 U.S.C. § 1406(a) and
28 U.S.C. § 1631 are DENIED.
(2) Defendant's Alternative Motion to Transfer pursuant to
28 U.S.C. § 1404(a) is GRANTED. The Clerk shall transfer
the record in this case to the Western District of New
(3) Defendant's Motion to Dismiss for failure to state a
claim upon which relief may be granted is DENIED as
(4) Plaintiff's Request for Jurisdictional Discovery is