defendant, as movant, to make an evidentiary showing regarding these
factors. See Jumara, 55 F.3d at 879; Simon, 80 F. Supp.2d at 470.
a. Private Factors
Plaintiff's choice of forum is significant consideration that should
not be disturbed lightly. See First Union Nat'l Bank v. United States,
55 F. Supp.2d 331, 332 (E.D.Pa. 1999); Weber v. Basic Comfort, Inc., 2001
WL 389340, at *2 (E.D.Pa. April 17, 2001). Where plaintiff chooses a
forum other than her state of residence or the situs of the occurrence
upon which the suit is based, her choice is given less weight. See Remick
v. Manfredy, 138 F. Supp.2d 652, 655 (E.D.Pa. 2001). Unless the balance
of convenience of the parties is strongly in favor of the defendant, the
plaintiff's choice of forum should prevail. See Affymetrix, Inc. v.
Synteni, Inc., 28 F. Supp.2d 192, 197 (D.Del. 1998) (quoting Shutte v.
Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970)).
Plaintiff chose to file this lawsuit in the Eastern District of
Pennsylvania. Although Pennsylvania is not Plaintiff's state of
residence, it is linked to the claims in its lawsuit, as explained
above. Furthermore, Plaintiff chose to bring this action in
Pennsylvania, presumably in part for its geographical convenience, only
after its claims against Defendant were dismissed for lack of personal
jurisdiction in New Jersey. Therefore, this Court will afford Plaintiff's
choice of venue substantial weight, and this factor weighs heavily
As for Defendant's convenience, it asserts that it would greatly
disrupt its business operations to litigate this case in Pennsylvania,
where it has no facilities and to which its employees do not regularly
travel. However, other than a conclusory affidavit by Mr. Rahardja
(Defendant's key witness in the case) there is no further documentation
or explanation of this contention in the record. Furthermore, such an
assertion is belied by the record supplied by the Plaintiff, including
correspondence that suggests that Mr. Rahardja frequently travels away
from Texas frequently, often much farther than Philadelphia. Doubtless it
is inconvenient for Defendant to litigate this case in Pennsylvania.
However, there is no reason in the record for this Court to believe that
it would not be substantially equally as burdensome for the Plaintiff to
prosecute it in Texas. Therefore, Defendant has not met its burden and the
convenience of the parties does not weigh in favor of transfer.
As for the convenience of witnesses and the locations of relevant books
and records, Texas is again no doubt more convenient for the Defendant's
witnesses and is the location of its books and records. However, the
Defendant has offered no evidence of specific witnesses (other than Mr.
Rahardja) or other documentary evidence that would be impossible or
burdensome for it to produce in this district. In any case, Texas is
similarly inconvenient for the Plaintiff to produce its witnesses, books
and records. Additionally, Pennsylvania is a more convenient state than
Texas for Plaintiff's key non-party witness, Mr. Ballantine, and the
books and records
of Shank's and York are in Pennsylvania. Although Plaintiff has not
contended that either Mr. Ballantine or these records would be
unavailable for trial in Texas, they are nonetheless outside the subpoena
power of a court in the Northern District of Texas. This Court finds that
again Defendant has not met its burden and that this factor weighs
b. Public Factors
Defendant does not point to any differences in the enforceability of
judgments, court congestion, or familiarity of judges with applicable law
that would weigh in favor of transfer. Defendant does argue that as a
matter of public policy, Pennsylvania courts do not have an interest in
deciding a contract dispute between New Jersey and Texas companies with
no underlying connection to Pennsylvania. Although the contract at issue
is connected to Pennsylvania in a variety of ways, this Court concedes
that Pennsylvania would have a greater public interest in this lawsuit if
one of the parties were located in Pennsylvania. This Court finds that
Texas's interest is slightly greater than Pennsylvania's, and this factor
does weigh slightly in favor of transfer. However, when considering all
the relevant public and private factors, it is outweighed by the series
of more significant considerations that counsel against transfer.
The Court finds that venue is proper in the Eastern District of
Pennsylvania under 28 U.S.C. § 1391(a) since a substantial part of
the acts or omissions giving rise to the claim occurred here. The Court
further finds that, after weighing the relevant public and private
factors, transfer of venue to the Northern District of Texas pursuant to
28 U.S.C. § 1404(a) is inappropriate in this case. Defendant has not
made the required showing that on balance the litigation would more
conveniently proceed and the interests of justice be better served by
transfer to the Northern District of Texas, thereby overriding
Plaintiff's choice of venue. For these reasons, Defendant's motion for
dismissal or, in the alternative, transfer is denied.
An appropriate order follows.
AND NOW, this 20th day of September, 2001, upon consideration of
Defendant's Motion to Dismiss for Improper Venue, or, in the
Alternative, Transfer pursuant to 28 U.S.C. § 1404(a) (Docket No.
10), Plaintiff's response thereto (Docket No. 12), Defendant's Reply
(Docket No. 14) and Plaintiff's Sur-reply (Docket No. 16), it is hereby
ORDERED that Defendant's motion is DENIED.