Free Order on Motion to Transfer Case - District Court of Delaware - Delaware

Case 1 :04-cv-00955-GI\/IS Document 73 Filed 09/20/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
OFFICIAL COMMITTEE OF )
UNSECURED CREDITORS OF )
DVI, INC., )
)
Plaintiff, )
) C.A. No. O4-955 (GMS)
v. )
)
MICHAEL A. O’HANLON, et al., )
)
Defendants. )
ORDER
1. The above-captioned action is a suit for breach of fiduciary duty and deepening insolvency.
Presently before the court is the defendants’ motion to transfer venue, pursuant to
28 U.S.C. § l404(a) (1993), to the Eastern District of Pennsylvania. (D.I. 19.)
2. The decision of whether transfer is appropriate is governed by § 1404(a) itself, as well as the
factors outlined in Jumara v. State Farm Ins. C0., 55 F.3d 873 (3d Cir. 1995).
a. Section 1404(a) directs courts to consider the convenience of parties, the convenience
of witnesses, and the interests of j ustice. Since the proposed transferee district is less
than thirty miles away, the convenience of the parties and witnesses does not favor
transfer. Furthermore, there is no danger that there will be a miscarriage of justice
if this case remains in Delaware. Therefore, all three statutory factors weigh against `
\
transfer. M __
b. The so-called "private" Jumara factors are: (1) "plaintiff‘s forum preference as
manifested in the original choice;" (2) "the defendant's preference;" (3) "whether the
claim arose elsewhere;" (4) "the convenience of the parties as indicated by their

Case 1:04-cv-00955-G|\/IS Document 73 Filed 09/20/2005 Page 2 of 3
relative physical and financial condition;" (5) "the convenience ofthe witnesses — but
only to the extent that the witnesses may actually be unavailable for trial in one ofthe
fora;" and (6) "the location of books and records (similarly limited to the extent that ·
the files could not be produced in the alternative forum)." 55 F.3d at 879.
Obviously, the plaintiffs choice of Delaware weighs against transfer, and the
defendants’ choice of E.D. Pa. weighs in favor of transfer. However, because ofthe
extremely close proximity of the two districts, the third, fourth, and fifth factors
weigh against transfer. The defendants’ argue that problems may arise because the
District of Delaware’s 100-mile subpoena power is different than that of E.D. Pa.
(D.I. 20.) Their argument is not persuasive because there is a substantial overlap of
the two districts’ respective subpoena powers. (D.I. 45 at 5A.) Moreover, the
defendants have not made any allegations as to specific witnesses, books, or records
that might cause such problems. Therefore, the "private" Jumara factors weight
against transfer as well.
c. The "public" Jumara factors are: (1) "the enforceability of the judgment;"
(2) "practical considerations that could make the trial easy, expeditious, or
inexpensive;" (3) "the relative administrative difficulty in the two fora resulting from
court congestion;" (4) "the local interest in deciding local controversies at home;" (5)
"the public policies of the fora;" and (5) "the familiarity of the trial judge with the
applicable state law in diversity cases.” 55 F.3d at 879-80. As to the first factor, the
defendants do not allege that the judgment would be unenforceable if rendered by
this district. As to the second factor, there is no indication that E.D. Pa. would
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Case 1 :04-cv-00955-GI\/IS Document 73 Filed 09/20/2005 Page 3 of 3
consolidate this case with the three other related cases already pending in that district g
— the related cases have not been consolidated, so there is no reason to believe this
one would be either upon transfer. As to the third factor, the court foresees more
court congestion if this case is transferred to an even bigger district. Once again, the
proximity of E.D. Pa. to this district mitigates the weight of the fourth factor.
Finally, the plaintiffs claims are rooted in Delaware law. (D.I. 45 at 15.) Hence, it
· makes the most sense to keep the case here.
3. For the aforementioned reasons, IT IS HEREBY ORDERED THAT:
The defendants’ motion to transfer (D.I. 19) be DENIED.
Dated: September [O , 2005 ? é fg. L Ql 2
ST S DISTRI JUDGE
F I L E D
SEP 2 0 2005
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