Freight Carriers Corp., 1986 WL 3056 at * 3 (E.D.Pa.). A review
of the complaint and counterclaims indicates that none of the
operative facts in this action occurred in the Middle District of
California; therefore, we will not afford great weight to the
plaintiffs' choice of forum.
2. Convenience of witnesses/where cause of action arose
Convenience of the witnesses is the next issue we shall
examine. Plaintiffs contend it will be very convenient for the
witnesses, especially the defendants, to have the case tried in
California, as the defendants are not located in the Middle
District of Pennsylvania. Without more explanation the plaintiffs
contend that "[t]he majority of non-party witnesses will be
necessary in both this action and the California actions, and
will likely be required to repeat the same testimony in each
case." Pl. br. at 6. Moreover, the plaintiffs claim that six of
the seven pending California actions have been consolidated, and
that they would seek to join in the consolidated case promoting
the convenience of all, especially the defendants who would then
only have to defend cases in one district instead of two.
While the plaintiffs contend that the defendants will enjoy
greater convenience if the case is transferred, the defendants
focus on the convenience of the witnesses as is proper. The law
on the transfer of cases distinguishes between party and
non-party witnesses. The party witnesses are presumed to be
willing to testify in either forum despite any inconvenience. The
convenience of non-party witnesses is the main focus. See e.g.
Jumara, supra, at 879 (The convenience of witnesses is examined
only to the extent that witnesses may actually be unavailable for
trial in one of the fora). Federal Rule of Civil Procedure No.
45(e)(1) provides that witnesses may be compelled to appear
unless they reside more than one hundred miles from the court at
which the trial is held.
A review of the complaint and counterclaim, reveals that the
claims and counterclaims can be broken down into two different
areas, commercial disparagement claims and contract claims. The
witnesses for the disparagement claims all appear to located in
the Middle District of Pennsylvania. Count V of Plaintiffs'
Amended Complaint alleges that Guidant disparaged plaintiffs at
"Wilkes-Barre General Hospital, Mercy Hospital of Wilkes-Barre
and Hazleton General Hospital" Amended Complaint, ¶ 69. In his
deposition, Plaintiff Hillard identified the non-party witnesses
to whom Guidant's agent allegedly disparaged plaintiffs. All are
located within this judicial district. See Hillard Dep. pp.
214-221, Ex. 1 to Declaration of Edward L. Friedman. As to the
counterclaim with regard to disparagement, the witnesses
necessary to establish this claim are also located in the Middle
District of Pennsylvania. McGrath Dep. pp. 58-61, Ex. 2 to
Declaration of Edward L. Friedman.
Accordingly, the convenience of the non-party witnesses with
respect to the disparagement claims weighs heavily in favor of
the case remaining in the Middle District of Pennsylvania as the
witnesses reside beyond one hundred miles from the location of
the California court. Plaintiffs apparently do not contest the
conclusion that the disparagement claims witnesses are all
located in the present judicial district.
The second general claim in this action involves various
contract issues. Plaintiffs allege that Guidant's failure to
provide them with state-of-the-art product was a breach of
contract and would cause the destruction of their customer
goodwill and business. Defendants contend that plaintiffs will
need local non-party witnesses to establish these claims. As
evidence of this, defendants point out that at the preliminary
hearing the plaintiffs called Dr. Louis Blaum, a local physician,
to establish their claim. Defendants will seek at trial to refute
the plaintiffs' claims
with local witnesses. Decl. Edward L. Friedman, ¶¶ 113-17. The
plaintiffs assert that "The majority of non-party witnesses will
be necessary in both this action and the California actions, and
will likely be required to repeat the same testimony in each
case." Pl. br. at 6. Nothing is submitted to support this
contention. Again, in their reply to the defendants' opposition
brief, the plaintiffs allege, "the majority of non-party
witnesses — relevant to the contract claims — will be necessary
in both this action and the California actions, and will likely
be required to repeat the same testimony in each case." Pl.Br. in
Reply to Def. Guidant at 5. The plaintiffs again submit nothing
to explain or support their assertion. Plaintiffs' failure to
substantiate their claims makes it impossible for us to find that
they have met their burden of proof in establishing that transfer
is necessary. The party seeking the transfer must clearly specify
the key witnesses to be called and make a general statement of
what their testimony will cover. Austin v. Johns-Manville
Corp., 524 F. Supp. 1166, 1169 (E.D.Pa. 1981); Charles A. Wright,
Arthur R. Miller & Edward H. Cooper, Federal Practice and
Procedure: Jurisdiction 2d § 3851. A contention that a
particular forum is inconvenient to potential witnesses must be
supported by more than mere allegations. The moving party must
specify inconvenience that is sufficiently prejudicial to justify
dismissal. Mowrey v. Johnson & Johnson, 524 F. Supp. 771, 775
Although it is difficult to tell from the plaintiffs' bald
allegations which witnesses they are referring to, we assume they
must be expert witnesses. We find that the expert witnesses are
closely alined to the parties and will likely travel wherever the
plaintiffs choose. Therefore, the convenience of experts will be
given little weight. See e.g. Forester v. Elk Towing Co.,
242 F. Supp. 549, 550 (W.D.Pa. 1965) (Expert witnesses inconvenience
is insufficient to justify transfer of a case).
3. The district in which the action can be tried more
A fourth factor for us to review is the relative congestion
present in the districts. According to the 1998 Federal Court
Management Statistics, the Middle District of Pennsylvania is
less congested than the Central District of California. As of
1998 the California court had 407 pending cases per judge,
whereas the Middle District of Pennsylvania had 317. Further, the
time from filing to trial was shorter in the Middle District of
Pennsylvania, eighteen months compared to twenty months. See
Decl. of Edward L. Friedman, Ex. 3.
Plaintiffs allege, however, that it will promote judicial
economy to transfer the case to the Central District of
California, because thirty-seven (37) similarly situated
plaintiffs are present there and they raise "nearly identical"
issues. We are not convinced that the California plaintiffs are
so related as to merit transfer of the case. As set forth above,
all the actions in the present case took place in Pennsylvania.
The plaintiffs reside here, the witnesses are from the Middle
District. The similarities between the Pennsylvania plaintiffs
and the California plaintiffs are that they all formerly worked
as independent contractors for the same business, Intermedics,
and presently they all work for St. Jude. When viewed in a light
favorable to the plaintiffs, it appears that the contract claims
may be similar in the California actions and the present one.
Plaintiffs claim that transferring the action to California
will lessen the expense on themselves, the defendants and the
court. They also seek to avoid inconsistent rulings and the
potential res judicata and collateral estoppel issues.
Plaintiffs, however, have failed to provide us with a sufficient
basis on which to find that these issues should weigh in their
Plaintiffs further contend that the fact that related claims
are being tried in California weighs in favor of transfer.
Sufficient facts to establish that this case is related to the
California actions have not
been provided by the plaintiffs. Plaintiffs have provided very
little information on which we could rely to transfer the case to
the California court. We do not know specifically what issues are
being tried in those actions, where the plaintiffs in those
actions are from, or at what stage those proceedings are.
4. Public Interest in Local Adjudication of the Controversy
Defendants contend that the plaintiff has alleged and this
court noted the importance of this case to local citizens. The
outcome of the case will affect the healthcare received by the
citizens of the Middle District of Pennsylvania. We, therefore,
find this factor to balance in favor of the defendants.
In conclusion, we find that the plaintiffs' have not met their
burden of establishing the need for the transfer of this case to
the Central District of California. A review of the case
indicates that the weighing of all the factors, both public and
private, favors a finding that the case should not be
transferred. Accordingly, the motion to transfer will be denied.
An appropriate order follows.
AND NOW, to wit, this 9th day of December, 1999, the
plaintiffs' motion to transfer [92-1] is hereby DENIED.