JOHN T. ELFVIN, S.U.S.D.J.
Plaintiff Dunkirk Boilers ("Dunkirk") commenced this action June 18, 2001 in New York State Supreme Court, Chautauqua County, against defendant Crown Boiler Co., Inc. ("Crown") raising a single cause of action for breach of contract (the "New York case"). Crown removed the New York case to this Court July 19, 2001 alleging that this Court has subject matter jurisdiction based upon diversity of citizenship. Dunkirk is a New York corporation with its principal place of business therein, Crown is a Pennsylvania corporation with its principal place of business therein and the amount in controversy exceeds $75,000; accordingly this Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). Defendant filed a motion to transfer venue to the United States District Court for the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404 November 20, 2001; oral argument on such motion was held February 22, 2002 and such is presently before this Court for disposition.
Consideration of this motion has been expedited due to the representation by the parties during oral argument that a decision on this motion would aid negotiations between the parties during a settlement conference to be held before a magistrate judge in the Eastern District of Pennsylvania March 8, 2002. See infra. Plaintiff's cross-motion to strike, which was filed January 4, 2002 and argued February 22, 2002, will be decided in due course.
Dunkirk is a manufacturer of boilers and boiler components. Passafaro Aff. ¶ 2; Gdaniec Aff. ¶ 2; Reed Aff. ¶ 2. Crown is a wholesaler of boilers which it assembles using boiler components purchased from third parties and sells under the Crown trade name through a network of independent distributors. Steingard Dec. 7, 2001 Aff. ¶¶ 3, 6-7. From the late 1960's until early 2001, Crown had purchased approximately sixty percent of its boiler components from Dunkirk, which it then assembled and sold as the Crown/Dunkirk boiler. Steingard Dec. 7, 2001 Aff. ¶¶ 7, 9; Passafaro Aff. ¶ 3; Gdaniec Aff. ¶ 3. Although Crown purchased several million dollars worth of boiler components from Dunkirk annually, it did not have a written agreement with Dunkirk relating to such. Steingard Dec. 7, 2001 Aff. ¶ 8; Reed Aff. ¶ 4.
In late 1999 Crown began purchasing boiler components from Burnham Boilers ("Burnham") for use in assembling a different boiler to be sold as the Crown/Burnham boiler, which Crown alleges was of a different quality and design than the Crown/Dunkirk boiler and intended to fill a market segment not met by the Crown/Dunkirk boiler. Steingard Dec. 7, 2001 Aff. ¶¶ 11-12. Dunkirk, however, believed that the Crown/Burnham boiler would compete with the Crown/Dunkirk boiler and result in Crown purchasing a significantly reduced amount of boiler components from it. Passafaro Aff. ¶ 4; Gdaniec Aff. ¶ 4; Reed Aff. ¶ 7. As a result, Dunkirk decided to stop selling boiler components to Crown and instead to sell its own finished boilers directly to Crown customers under the Dunkirk trade name. Passafaro Aff. ¶ 4; Gdaniec Aff. ¶ 4; Reed Aff. ¶ 7. To implement such, Dunkirk developed a presentation to be made to existing Crown customers discussing the termination of Dunkirk's relationship with Crown and the benefits of the Dunkirk boiler vis-è-vis the Crown/Dunkirk boiler ("the presentation"). Passafaro Aff. ¶¶ 4, 6; Gdaniec Aff. ¶¶ 4, 6; Reed Aff. ¶¶ 7, 9. Dunkirk made this presentation directly to certain of Crown's customers, and also provided it to Dunkirk's independent sales representatives for their use. Passafaro Aff. ¶¶ 4-5; Gdaniec Aff. ¶¶ 4-5; Reed Aff. ¶¶ 7-8.
From January 25, 2001 through March 27, 2001 Crown ordered boiler components from Dunkirk, which Dunkirk delivered and Crown accepted. Reed Aff. ¶ 5. On March 8, 2001 Dunkirk informed Crown that, beginning May 1, 2001, it would no longer sell boiler components to it. Reed Aff. ¶ 6; Steingard Dec. 7, 2001 Aff. ¶ 13. Crown continued to order and Dunkirk continued to deliver boiler components to Crown, which Crown accepted until May 4, 2001 when deliveries ceased. Reed Aff. ¶ 6; Steingard Dec. 7, 2001 Aff. ¶ 13. However, Crown never paid Dunkirk for any of the boiler components received between January 25, 2001 and May 4, 2001, amounting to a total of $313,307.57. Reed Aff. ¶ 6.
Dunkirk commenced the New York case June 18, 2001 alleging that Crown had breached a contract to pay for the $313,307.57 worth of boiler components. Crown received a copy of the Complaint in the New York case June 20, 2001 and that same day commenced an action in the Eastern District of Pennsylvania, naming ECR International, Utica Boilers and Dunkirk as co-defendants and raising eight causes of action — viz., (1) violation of the Sherman Antitrust Act, (2) violation of Pennsylvania unfair trade practices, (3) breach of contract, (4) breach of duty of good faith and fair dealing, (5) conspiracy, (6) trade disparagement, (7) extortion and (8) injunctive relief (the "Pennsylvania case"). E.D.Pa. Compl. at ¶¶ 58-127; Steingard Dec. 7, 2001 Aff. ¶¶ 21-22. Crown alleges that Dunkirk refused to continue selling boiler components to it in violation of oral agreements and a course of dealing between them in retaliation for its development of the Crown/Burnham boiler and because it had rejected an offer Dunkirk made to purchase Crown in 1996. Steingard Dec. 7, 2001 Aff. ¶¶ 10, 14-15. Crown further alleges that Dunkirk sought to injure its reputation by disseminating false information about it to its customers. Id. at ¶¶ 16-19.
"Crown received by regular mail a copy of the New York Complaint on June 18 [sic], 2001, the same day as the filing of the Pennsylvania Injunction Action." George Aff. ¶ 5.
Dunkirk and Utica Boilers are divisions of ECR International; they are not separate entities. Reed Aff. ¶ 2 n. 1.
Defendant seeks to transfer this case to the Eastern District of Pennsylvania on the basis, inter alia, of the pending Pennsylvania case which, Crown argues, has progressed further than has this case — even though it was filed two days later — because a temporary restraining order had been entered in such case June 28, 2001 and because the discovery deadline had been set as March 22, 2002 during a conference held October 24, 2001 pursuant to Rule 16(b) of the Federal Rules of Civil Procedure ("FRCvP"). Steingard Dec. 7, 2001 Aff. ¶¶ 26-27. Plaintiff, however, notes that it had consented to the entry of the temporary restraining order because it was not engaging in the activity to be enjoined and that no discovery had actually taken place in the Pennsylvania case due to disputes among the parties. Bloomberg Aff. ¶¶ 5, 10.
Defendant actually states that the discovery deadline in the Pennsylvania case was March 22, 2001 — Steingard Aff. ¶ 27 — i.e., before that case was even instituted, however, this Court will assume that such date is correct with the exception that the correct year is 2002.
This Court had conducted a Rule 16(b) conference November 6, 2001; however no discovery deadline was set due to defendant's statement that it would be filing the present motion to transfer venue.
"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). In considering a motion to transfer venue, the court must first determine whether the case could have originally been brought in the district to which transfer is sought and, if so, whether transfer to such district would serve the convenience of the parties and witnesses and be in the interest of justice. Praxair, Inc. v. Morrison Knudsen Corp., No. 00-CV-0892E(Sc), 2001 WL 118585, at *2 (W.D.N.Y. Feb. 6, 2001). The parties do not dispute and this Court finds that this case could have originally been brought in the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1391(a) because of defendant's residence therein.
The moving party must also demonstrate to the court that transfer of venue is warranted for the convenience of the parties and in the interest of justice based upon the following factors — viz., (1) the convenience of the non-party witnesses, (2) the convenience of the parties, (3) the locus of the operative facts, (4) the location of relevant documents and the relative ease of access to sources of proof, (5) the availability of process to compel the attendance of unwilling witnesses, (6) the relative means of the parties, (7) the forum's familiarity with the governing law, (8) the weight accorded to the plaintiff's choice of forum and (9) trial efficiency and the interest of justice, based on the totality of the circumstances. Praxair, at *2; Lencco Racing Co., Inc. v. Arctco Inc., 953 F. Supp. 69, 71 (W.D.N.Y. 1997). The moving party must demonstrate by clear and convincing evidence that the above factors strongly weigh in favor of transfer and the court determines such motion, pursuant to its discretion, by equitably balancing the above factors, none of which is determinative. Praxair, at *2.
The parties have not identified any relevant nonparty witnesses. Plaintiff's witnesses are in the Western District of New York and defendant's are in the Eastern District of Pennsylvania. The locus of the operative facts — transfer of boiler components from Dunkirk, N.Y. to Philadelphia, Pa. — is evenly split between the Western District of New York and the Eastern District of Pennsylvania as is the location of relevant documents and the relative ease of access to sources of proof. The availability of process to compel the attendance of unwilling witnesses is inapplicable as neither party has identified nonparty witnesses with knowledge relevant to the breach of contract claim at issue in the New York case. The parties are of relatively equal means, Crown has annual revenue of $25 million — Steingard Aff. ¶ 32 — and Dunkirk has annual revenue of $30 million — Reed Aff. ¶ 2 — and, because this action is governed by Article 2 of the Uniform Commercial Code, neither this Court nor the United States District Court for the Eastern District of Pennsylvania has greater familiarity with the governing law. The plaintiff has designated the Western District of New York as the forum and because this district has a connection with the operative facts equal to that of the Eastern District of Pennsylvania, such factor militates against transfer. The final factor of trial efficiency and the interest of justice, based on the totality of the circumstances weighs in favor of transfer because there is another action between the parties pending in the Eastern District of Pennsylvania — albeit later commenced — and because that district had 250 less pending cases per judgeship in 2000 resulting in civil cases going to trial an average of 32 months quicker than those in this district. Mot. to Transfer Venue Ex. C (Judicial Caseload Profiles). However the median time from filing to final disposition of civil cases was only three months faster in the Eastern District of Pennsylvania than in this district and the vast majority of cases here are resolved before trial. Ibid.
Defendant has identified as nonparty witnesses in the Pennsylvania case the corporate representatives of ten of its customers, eight of which are located in the Eastern District of Pennsylvania. However it has failed to identify what their relevant testimony would be beyond stating that it anticipates that they would testify that they were contacted by plaintiff and given the presentation. Defendant has not come forward with any nonparty witnesses with information relevant to the New York case, which is a simple breach of contract action. Steingard Dec. 7, 2001 Aff. ¶¶ 28-31; Steingard Feb. 6, 2002 Aff. ¶¶ 17-18.
Citing to Praxair, supra, defendant alleges that this factor is inapplicable and should not weigh against transfer because, in a "race to the courthouse," plaintiff filed the New York case only two days before defendant commenced the Pennsylvania case. However, in Praxair the undersigned had considered the inapplicability of the first-filed rule in cases involving a "race to the courthouse" under the trial efficiency and interest of justice factor, not under the plaintiff's choice of forum factor, and had noted that the defendant in that case had actually been the first to commence legal action by filing a lien. Praxair, at *5. In addition there is no proof that plaintiff actually engaged in a "race to the courthouse;" the only allegations of such are in defendant's memoranda. Plaintiff states that, when it filed the New York case, it was not aware that defendant was planning to file the Pennsylvania case — Bloomberg Aff. ¶ 2 — and, although defendant states that it informed plaintiff of its intention to commence litigation prior to filing the Pennsylvania case, it does not state that it had informed plaintiff of such intention before plaintiff filed the New York case. Steingard Aff. ¶ 23.
Having considered the above factors, this Court, pursuant to its discretion, finds that Crown has failed to demonstrate by clear and convincing evidence that the convenience of the parties and witnesses and the interest of justice strongly favors transferring this case to the Eastern District of Pennsylvania.
Accordingly, it is hereby ORDERED that defendant's motion to transfer venue is denied.