The opinion of the court was delivered by: Marvin Katz, S. J.
Before the court is defendant's motion to transfer this action to
the Middle District of Florida, Jacksonville Division. Because
the court finds that such a transfer will serve the convenience
of the parties and witnesses and that it is in the interests of
justice, the motion will be granted.
According to the complaint, plaintiff Dan Lindley purchased a
boat equipped with a Caterpillar engine. Lindley uses this boat
in his commercial diving and fishing business. After breaking
twice, the original engine was replaced by another Caterpillar
engine. That engine, in turn, broke down four times and was
replaced again. The third engine broke down twice; on the second
occasion, Caterpillar refused to rebuild the engine unless the
plaintiff paid for it. Asserting damages in excess of $500,000,
plaintiff now alleges claims of products liability, negligence,
breach of warranties, breach of contract, fraud,
misrepresentation, breach of the Florida Deceptive and Unfair
Trade Practices Act, and breach of the Illinois Consumer Fraud
and Deceptive Business Practices Act.
Lindley alleges that he is citizen of Florida who resides in
Jacksonville Beach, Florida. See Compl. ¶ 1. According to the
undisputed declaration*fn1 submitted by defendant, the boat is also
located in Jacksonville, Florida. See Decl. of Dennis Bieneman ¶
3 (Mot. to Dismiss Ex. 2 ¶ 3).*fn2 Caterpillar is a corporation
organized and existing under the laws of Delaware with an address
and principal place of business in Peoria, Illinois. It is
authorized to do business in Florida. See Compl. ¶ 2. The repair
work that is at issue was performed by Ring Power Systems, an
authorized Caterpillar dealer located in Jacksonville, Florida.
See Bieneman Decl. ¶ 4.
"For the convenience of the parties and witnesses, in the
interest of justice, a district court may transfer any civil
action to any other district or division where it might have been
brought." 28 U.S.C. § 1404 (a). To justify a transfer under
this section, the moving party must show that venue is proper in
the transferee district and that the transfer will serve the
convenience of the parties and witnesses and will promote the
interest of justice. See American Littoral Soc. v. U.S.E.P.A.,
943 F. Supp. 548, 550 (E.D. Pa. 1996); see also Jumara v. State
Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) (stating that
moving party has burden of showing transfer's appropriateness).
The court should look to such factors as
(1) the plaintiffs choice of forum; (2) the relative ease of
access to sources of proof; (3) the availability of compulsory
process for attendance of unwilling witnesses; (4) the
possibility of viewing premises, if applicable; (5) the cost of
obtaining attendance of willing witnesses; (6) all other
practical problems that make trial of a case easy, expeditious,
and inexpensive; and (7) "public interest" factors, including the
relative congestion of court dockets, choice of law
considerations, and the relationship of the community in which
the courts and jurors are required to serve to the occurrences
that give rise to the litigation.
American Littoral Soc., 943 F. Supp. at 550 (citing Romann v.
Geissenberger Mfg. Corp., 865 F. Supp. 255, 264 (E.D. Pa. 1994),
partially abrogated on other grounds in Eagle Traffic Control v.
James Julian. Inc., 933 F. Supp. 1251, 1255-56 (E.D. Pa. 1996));
see also Jumara, 55 F.3d at 879 (describing factors).
As venue would clearly have been proper in the Middle District of
Florida, see 28 U.S.C. § 1391 (a),*fn3 the court will
address the other statutory factors and public interest
considerations, virtually all of which weigh strongly in favor of
The Middle District of Florida would be a convenient location for
both parties. As noted previously, the plaintiff resides and
works in Jacksonville Beach, and his boat is also located in that
area. The defendant has an office in Florida, and many of the
individuals who performed service work on the boat are also
located nearby. See Bieneman Decl. ¶¶ 3-5.
Obviously, the fact that plaintiff wishes to proceed in this
venue is entitled to some weight. However, when the plaintiff
does not live or work in this jurisdiction, the significance of
this preference is minimized. See Matt v. Baxter Healthcare
Corp., 74 F. Supp.2d 467, 469 (E.D. Pa. 1999); Britamco
Underwriters. Inc. v. Wallace, 56 F. Supp.2d 542, 545 (E.D. Pa.
1999); American Littoral Soc., 943 F. Supp. at 551. The
plaintiffs preference is also minimized because none of the
events at issue in this case took place in Pennsylvania. See
Matt, 74 F. Supp.2d at 469.
While the plaintiffs attorney is located in Philadelphia, this
fact alone is not relevant in ruling on a motion for transfer of
venue. See id.; see also Solomon v. Continental Amer. Life Ins.
Co., 472 F.2d 1043, 1047 (3d Cir. 1973); Jordan v. ...