Free Reply Brief - District Court of Delaware - Delaware

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA NOWAK DENTAL SUPPLIES, INC., : : Plaintiff, : : vs. : : DENTSPLY INTERNATIONAL, INC., : : Defendant. :

No. 1:07-cv-01799

(Judge Conner)

REPLY BRIEF IN SUPPORT OF DENTSPLY INTERNATIONAL INC.'S MOTION TO TRANSFER VENUE

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TABLE OF CONTENTS
TABLE OF AUTHORITIES ......................................................................................................... iii PRELIMINARY STATEMENT .....................................................................................................1 ARGUMENT...................................................................................................................................2 I. NOWAK'S CHOICE OF FORUM IS INSUFFICIENT TO KEEP THIS ACTION IN THE MIDDLE DISTRICT OF PENNSYLVANIA .......................................................2 A. B. II. III. IV. Nowak Overstates The Deference That This Court Should Give To Its Choice Of Forum .....................................................................................................2 Nowak's Choice Of Forum Is Entitled To Even Less Deference Because Its Case Is A Class Action .......................................................................................4

JUDGE ROBINSON'S FAMILIARITY WITH THE DENTSPLY LITIGATION TILTS THE BALANCE IN FAVOR OF TRANSFER TO DELAWARE.........................4 THE PENDENCY OF THE UNIVAC AND LACTONA CASES IN THIS COURT DOES NOT WEIGH AGAINST TRANSFER OF VENUE TO DELAWARE .................8 NOWAK DOES NOT DISPUTE THAT IT COULD HAVE FILED ITS COMPLAINT AGAINST DENTSPLY IN THE DISTRICT OF DELAWARE..............11

CONCLUSION..............................................................................................................................12

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TABLE OF AUTHORITIES CASES Ayling v. Travelers Prop. Cas. Corp., No. 99-3243, 1999 U.S. Dist. LEXIS 16716 (E.D. Pa. Oct. 27, 1999)............5, 7 Bank of Am. N.A. (USA) v. US Airways, Inc., No. 05-793-JJF, 2005 U.S. Dist. LEXIS 34902 (D. Del. Dec. 21, 2005) ............7 Biovail Corp. Int'l v. Hoechst Aktiengesellschaft, 49 F. Supp. 2d 750 (D.N.J. 1999)..................................................................... 8-9 Hess v. Dentsply Int'l Inc., No. 99-255, 2008 U.S. Dist. LEXIS 1487 (D. Del. Jan. 8, 2008) ........................5 Hess v. Dentsply Int'l Inc., 516 F. Supp. 2d 324 (D. Del. 2007)................................................................6, 11 Hoffman v. Blaski, 363 U.S. 335 (1960)............................................................................................11 Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977)............................................................................................10 KAB Enter. Co. v. Ursich Elec. Prods. Inc., No. 06-4361, 2007 U.S. Dist. LEXIS 27524 (E.D. Pa. Apr. 13, 2007) ........... 2-3 Kedia v. Jamal, Civ. No. 06-6054 (GEB), 2007 U.S. Dist. LEXIS 48474 (D.N.J. July 5, 2007).............................................................................................7 Lawrence v. Xerox Corp., 56 F. Supp. 2d 442 (D.N.J. 1999).........................................................................4 Panache Broad. of Pa., Inc. v. Richardson Elecs., Inc., No. 90-1358, 1990 WL 145419 (E.D. Pa. Sept. 28, 1990)...................................4 Pennwalt Corp. v. Purex Indus., Inc., 659 F. Supp. 287 (D. Del. 1986)...........................................................................3
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Samsung Electronics Co., Ltd. v. Rambus, Inc., 386 F. Supp. 2d 708 (E.D. Va. 2005) ............................................................... 7-8 Shan Sparshott v. Feld Entm't, 89 F. Supp. 2d 1 (D.D.C. 2000)............................................................................3 Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970) ...................................................................................3 Simmens v. Coca Cola Co., No. 07-668, 2007 WL 2007977 (E.D. Pa. July 5, 2007) ......................................4 Tischio v. Bontex, Inc., 16 F. Supp. 2d 511 (D.N.J. 1998).........................................................................3 STATUTE 28 U.S.C. § 1404(a) (2007)...............................................................................passim

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PRELIMINARY STATEMENT Nowak attempts to rebut the obvious benefits of transfer of venue to Delaware on three grounds. Not one of these bases, however, is sufficient to refute Dentsply's showing that the District of Delaware is, on balance, the best forum to litigate the Nowak case. First, Nowak contends transfer is inappropriate because it affirmatively chose to file suit in Dentsply's home district. But Nowak's choice of forum is entitled to considerably less weight here because it has no connection to Pennsylvania, Dentsply's complained-of-conduct allegedly affected consumers of artificial teeth nationwide, and it is pursuing a putative class action on behalf of these consumers. Second, Nowak wrongly portrays Judge Robinson's long history with the Dentsply litigation as meaningless under Section 1404(a). It concedes, however, that Judge Robinson has presided over related Dentsply cases for almost eight years. During that time she has adjudicated the very claims that Nowak makes in its Complaint and that it discusses in its opposition brief. Thus, even if Dentsply must make a "compelling showing" to overcome Nowak's choice of forum, it has done so here.

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Lastly, Nowak argues that litigation efficiencies favor keeping its case in this Court because it shares "common issues" with the Lactona and Univac cases. Those cases, however, are distinctly different from Nowak because they are competitor cases. Thus, Univac and Lactona must demonstrate in the first instance that Dentsply's Dealer Criterion 6 excluded them from the relevant market to prevail on their damages claims. By contrast, Nowak must demonstrate that it paid supracompetitive prices for artificial teeth as a result of Dealer Criterion 6. Hess makes this precise claim in its case against Dentsply. The retail price-fixing claim that remains in Jersey also focuses on the prices of Dentsply's artificial teeth. Given the obvious similarities between Nowak and the Hess and Jersey purchaser cases, the Nowak case belongs in Delaware before Judge Robinson. Accordingly, this Court should transfer venue of this action to the District of Delaware. ARGUMENT
I.

NOWAK'S CHOICE OF FORUM IS INSUFFICIENT TO KEEP THIS ACTION IN THE MIDDLE DISTRICT OF PENNSYLVANIA
A.

Nowak Overstates The Deference That This Court Should Give To Its Choice Of Forum

Nowak ignores well-settled law that a plaintiff's choice of forum is entitled to less weight where, as here, "a plaintiff chooses a forum other than his state of residence or the situs of the occurrence upon which the suit is based." (Br. at 17
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(quoting KAB Enter. Co. v. Ursich Elec. Prods. Inc., No. 06-4361, 2007 U.S. Dist. LEXIS 27524, at *5 (E.D. Pa. Apr. 13, 2007))). For this reason alone, this Court should give little deference to Nowak's choice of forum. Tischio v. Bontex, Inc., 16 F. Supp. 2d 511, 521 (D.N.J. 1998) (holding that a plaintiff's choice of forum "is simply a preference; it is not a right" and that deference to that choice "is curbed [] where the plaintiff has not chosen his or her home forum"); Pennwalt Corp. v. Purex Indus., Inc., 659 F. Supp. 287, 289 (D. Del. 1986) ("A defendant's burden with respect to plaintiff's choice of forum is easier to meet where the plaintiff has not brought suit in its `home turf.'"). Nowak relies principally on Shutte v. Armco Steel Corp., 431 F.2d 22 (3d Cir. 1970), for the proposition that a plaintiff's choice of forum should prevail unless the moving party can show that litigating the case in the plaintiff's choice of forum is inconvenient. (Opp. at 12). But in Shutte, the plaintiff and her decedent were residents of Western Pennsylvania, the transferor court. Shutte, 431 F.2d at 25. The Third Circuit issued a writ of mandamus in light of this "plain fact" that directed the district court judge to set aside his transfer order. Id. Nowak also relies on the five-sentence opinion in Shan Sparshott v. Feld Entertainment. (Opp. at 11 (citing Shan Sparshott v. Feld Entm't, 89 F. Supp. 2d 1, 4 (D.D.C. 2000))). In that case, however, Judge Robertson denied transfer to the Eastern District of Virginia because the factors bearing on the convenience of the witnesses and the
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interests of justice were "in equipoise." Here, both factors tip decidedly in favor of transfer to Delaware.
B.

Nowak's Choice Of Forum Is Entitled To Even Less Deference Because Its Case Is A Class Action

This Court should give even less deference to Nowak's choice of forum because it brought its case as a putative class action. Simmens v. Coca Cola Co., No. 07-668, 2007 WL 2007977, at *3 (E.D. Pa. July 5, 2007) (giving no deference to plaintiff's choice of forum where plaintiff purported to represent a nationwide class); Lawrence v. Xerox Corp., 56 F. Supp. 2d 442, 453 n.7 (D.N.J. 1999) (giving less deference to plaintiffs' choice of forum even though plaintiffs filed in their "home district" where plaintiffs sought to represent a class of plaintiffs located throughout the United States); Panache Broad. of Pa., Inc. v. Richardson Elecs., Inc., No. 90-1358, 1990 WL 145419, at *2 (E.D. Pa. Sept. 28, 1990). For these reasons, Nowak's choice of forum does not weigh against transfer to Delaware.
II.

JUDGE ROBINSON'S FAMILIARITY WITH THE DENTSPLY LITIGATION TILTS THE BALANCE IN FAVOR OF TRANSFER TO DELAWARE Even if, as Nowak suggests, Dentsply must make a "compelling showing" to

overcome Nowak's choice of venue, it has done so here because Judge Robinson has presided over litigation against Dentsply since May 2000 and has adjudicated
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issues that are relevant to this case. Ayling v. Travelers Prop. Cas. Corp., No. 993243, 1999 U.S. Dist. LEXIS 16716, at *14 n.4 (E.D. Pa. Oct. 27, 1999). Nowak makes a number of futile attempts to diminish the obvious relevance and utility of Judge Robinson's experience. Not one of these arguments, however, is sufficient to rebut Dentsply's showing that Judge Robinson's vast experience with the Dentsply litigation tilts the balance in favor of transfer. First, Nowak erroneously contends that Judge Robinson currently presides over one action, the Hess action, and that this case is "near its conclusion." (Opp. at 2-3). But this depiction of the cases before Judge Robinson is simply not true. Judge Robinson presides over the Hess and Jersey actions. (Opp. at 3-6). On January 8, 2008, Judge Robinson denied the Hess plaintiffs' motion to supplement the record with evidence that the plaintiffs believe shows that Dealer Criterion 6 resulted in higher prices. Hess v. Dentsply Int'l Inc., No. 99-255, 2008 U.S. Dist. LEXIS 1487, at *16 (D. Del. Jan. 8, 2008). In the same Order, she granted the Jersey plaintiffs' motion for Rule 54(b) certification of the dismissal of their Section 2 claims. Id. The Hess and Jersey plaintiffs intend to appeal both rulings to the Third Circuit, which may very well send the cases back down to Judge Robinson.

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Second, Nowak argues that "Dentsply's entire argument is based on the proposition that the existence of Hess so substantially outweighs all other relevant considerations that transfer is appropriate." (Opp. at 11). This characterization is also untrue. Judge Robinson has actually decided the facts and legal issues

involved in this lawsuit in the government's litigation against Dentsply, in Hess v. Dentsply, and in Jersey v. Dentsply. (Br. at 13-14). Her seven years of experience on all of these cases make the District of Delaware the ideal forum for this case. Third, Nowak argues that Judge Robinson's opinion regarding the potential preclusive effects of the Third Circuit's findings is not "particularly relevant" to its claims because, unlike the laboratory plaintiffs in the Hess action, Nowak is a direct-purchasing dealer. (Opp. at 2-3, 19-20). Judge Robinson held, however, that "[t]he relevant market for Dentsply's teeth, as defined by the Third Circuit, consists of two consumers combined: the dental dealers and the dental laboratories." Hess v. Dentsply Int'l Inc., 516 F. Supp. 2d 324, 334 (D. Del. 2007) (emphasis added). She declined to infer that both sets of "consumers . . . have been hurt" based on a finding of anticompetitive effects. Id. (emphasis added and internal quotations omitted). Her opinion thus clearly demonstrates that it is

applicable to dealers and laboratories alike.

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Predictably, Nowak mischaracterizes Ayling and several other cases that hold unequivocally that the presence of a judicial officer in the transferee court who has presided over related cases "is powerful enough to tilt the balance in favor of transfer even when the convenience of the parties and witnesses would point to a denial." Id. at *13-14. In Ayling, the court transferred the case because the transferee judge, like Judge Robinson, was "already familiar with the factual and legal issues" of plaintiffs' allegations. Id. at *14. Similarly, in Bank of America, the court transferred the action because the transferee judge was familiar with the nature of the claims and the correct interpretation of his own orders, and thus was "well positioned to quickly and efficiently resolve these and other issues." Bank of Am. N.A. (USA) v. US Airways, Inc., No. 05-793-JJF, 2005 U.S. Dist. LEXIS 34902, at *8-9 (D. Del. Dec. 21, 2005). The same is true here. The Samsung case that Nowak cites demonstrates this precise point.1 In Samsung Electronics Co., Ltd. v. Rambus, Inc., 386 F. Supp. 2d 708 (E.D. Va. 2005), the court denied defendant's motion to transfer the case to Northern California, where the defendant was engaged in related litigation. Id. at 722. But unlike the transferee court, the Samsung court had already presided over two trials
1

Nowak's reliance on Kedia v. Jamal, Civ. No. 06-6054 (GEB), 2007 U.S. Dist. LEXIS 48474 (D.N.J. July 5, 2007), is entirely misplaced. In Kedia, defendants moved for reconsideration of the court's order on a motion to dismiss and a motion to transfer venue "pursuant to the first-filed rule." Id. at *1. Defendants had not requested transfer pursuant to Section 1404(a). Id. at *11.
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involving the same four patents at issue. Id. The reason why the court did not transfer the case to California was because it had expended more resources and become more familiar with the issues than the transferee court. That situation does not exist here. The Samsung court rightly held that "judicial economy and the interest of justice favor a venue which has already committed judicial resources to the contested issues and is familiar with the facts of the case." Id. at 722 (internal citations omitted). For this very reason, the District of Delaware is the best forum to litigate the Nowak case.
III.

THE PENDENCY OF THE UNIVAC AND LACTONA CASES IN THIS COURT DOES NOT WEIGH AGAINST TRANSFER OF VENUE TO DELAWARE Nowak goes to great lengths to tie itself to the Univac and Lactona

competitor cases that are pending in this Court in an effort to avoid transfer. But the reality is that Nowak's case is factually and legally distinct from those cases, and similar to the Hess and Jersey purchaser cases. Delaware in front of Judge Robinson. Nowak argues that the Univac, Lactona and Nowak actions will "requir[e] this Court to consider precisely the same factual and legal issues in each case." (Opp. at 2). Again, this is not true. To prevail on their Section 2 claims, plaintiffs Univac and Lactona must show that Dentsply's conduct excluded them from the marketplace and caused them to lose sales.
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Nowak thus belongs in

Biovail Corp. Int'l v. Hoechst

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Aktiengesellschaft, 49 F. Supp. 2d 750, 772 (D.N.J. 1999) (finding that a plaintiff pharmaceutical company properly stated a claim for relief under Section 2 by alleging that defendant manufacturers foreclosed plaintiff from the market for sustained release diltazem products and the submarket for generic versions). Univac and Lactona have already informed this Court that the issue of foreclosure is at the heart of their cases against Dentsply. Univac asserts in its statement of the case that Dentsply's conduct "caused damage to plaintiff by reducing the sales of plaintiff's artificial teeth to dental dealers, causing plaintiff increased costs to try to counter the actions of defendant and causing diminution of the value of the business sold by plaintiff in 2001." (Univac, Dkt. No. 17 at 2). Lactona's statement of the case contains nearly identical language. (Lactona, Dkt. No. 15 at 2). Thus, if Dentsply does not prevail on its pending motion to dismiss these cases on statute of limitations grounds, the parties will explore in discovery whether Univac and Lactona were able to sell artificial teeth to consumers during the relevant time period. By contrast, Nowak, as a purchaser, has made clear that it intends to demonstrate injury under Section 2 by showing that it paid supracompetitive prices for Dentsply's artificial teeth. (Nowak's statement of the case, Dkt No. 21 at 2) (stating that "[a]s a result of Dentsply's unlawful conduct, Plaintiff and other

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dental supply dealers have paid overcharges on their purchases of artificial teeth"). Thus, the central issue in this case is what effect, if any, Dealer Criterion 6 had on the prices that the plaintiff dealers paid for Dentsply's artificial teeth. This

significant difference between the two sets of cases belies Nowak's contention that it would be inefficient to transfer only Nowak to Delaware. Try as it might to show otherwise, Nowak's case shares common issues with the Hess and Jersey purchaser cases and thus should proceed in Delaware. Both Nowak and Hess make the same primary claim: that Dealer Criterion 6 caused them to pay higher prices for artificial teeth than they otherwise would have paid in the absence of the policy. 2 In Jersey, plaintiffs allege that Dentsply and its dealers engaged in a retail price-fixing conspiracy. Clearly, the central focus of discovery in that case will be Dentsply's pricing of its artificial teeth and, therefore, will involve much of the same evidence that will be at issue in this case and in Hess. In addition, all three cases are putative class actions. Finally, a majority of the absent class members in this case are still engaged in the Jersey litigation. All of

Curiously, Nowak looks to Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), for support that its case is "factually and legally distinct" from Hess. (Opp. at 2, 16). It is certainly true that, unlike the indirect purchaser plaintiffs in Hess and Jersey, Nowak is entitled to seek money damages against Dentsply under Section 4 of the Clayton Act. But the nature of the different remedy that Nowak seeks does not change the fact that it is making the same legal claim as Hess.

2

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these similarities demonstrate that it would be more efficient and more convenient to litigate this case in Delaware.
IV.

NOWAK DOES NOT DISPUTE THAT IT COULD HAVE FILED ITS COMPLAINT AGAINST DENTSPLY IN THE DISTRICT OF DELAWARE Notably, Nowak does not dispute that it could have filed its action against

Dentsply in Delaware. Rather, it touts the fact that Judge Robinson dismissed Nowak from the Jersey case for lack of personal jurisdiction and improper venue. (Opp. at 9-10). But in that case, Nowak was one of several defendants whose national contacts did not suffice to render venue appropriate in the District of Delaware pursuant to Section 12 of the Clayton Act. Hess, 516 F. Supp. 2d at 33839. Nowak's dismissal in Jersey as a defendant is entirely irrelevant under § 1404, which permits transfer to any court where the plaintiff could have brought the action. The sole consideration under § 1404(a) is whether jurisdiction and venue are proper over the defendant, not the plaintiff. Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960).

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CONCLUSION For the foregoing reasons, Dentsply respectfully requests that the Court transfer this case to the District of Delaware. Dated: January 28, 2008 Respectfully submitted, /s/ Harvey Freedenberg Harvey Freedenberg McNEES WALLACE & NURICK LLC 100 Pine Street Harrisburg, PA 17101 (717) 237-5267 Margaret M. Zwisler Eric J. McCarthy Charles R. Price LATHAM & WATKINS LLP 555 Eleventh Street, NW Suite 1000 Washington, DC 20004 Telephone: (202) 637-2200 Facsimile: (202) 637-2201 Attorneys for Defendant, DENTSPLY INTERNATIONAL INC.

Of Counsel: Brian M. Addison DENTSPLY INTERNATIONAL INC. Susquehanna Commerce Center 221 W. Philadelphia Street York, PA 17405-0872 (717) 849-4363

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CERTIFICATE OF COMPLIANCE PURSUANT TO LOCAL RULE 7.8(b)(2) Pursuant to Local Rule 7.8(b)(2), it is hereby certified that the forgoing Reply Brief In Support Of Dentsply International Inc.'s Motion To Transfer Venue contains 2,521 words (exclusive of the title page, table of contents, table of authorities, this certificate, certificate of non-compliance, and certificate of service), according to the Microsoft® Word 2003 word processing system used to prepare it, and that the memorandum therefore complies with the type-volume limitations of Local Rule 7.8(b)(2).

/s/ Harvey Freedenberg Harvey Freedenberg

Dated: January 28, 2008

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CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing document was served this 28th day of January 2008 via electronic means upon counsel via the ECF filing system.

/s/ Harvey Freedenberg Harvey Freedenberg

Of Counsel for Defendant

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ATTACHMENT ­ UNREPORTED DECISIONS Ayling v. Travelers Prop. Cas. Corp., No. 99-3243, 1999 U.S. Dist. LEXIS 16716 (E.D. Pa. Oct. 27, 1999) Bank of Am. N.A. (USA) v. US Airways, Inc., No. 05-793-JJF, 2005 U.S. Dist. LEXIS 34902 (D. Del. Dec. 21, 2005) Hess v. Dentsply Int'l Inc., No. 99-255, 2008 U.S. Dist. LEXIS 1487 (D. Del. Jan. 8, 2008) KAB Enter. Co. v. Ursich Elec. Prods. Inc., No. 06-4361, 2007 U.S. Dist. LEXIS 27524 (E.D. Pa. Apr. 13, 2007) Kedia v. Jamal, Civ. No. 06-6054 (GEB), 2007 U.S. Dist. LEXIS 48474 (D.N.J. July 5, 2007) Panache Broad. of Pa., Inc. v. Richardson Elecs., Inc., No. 90-1358, 1990 WL 145419 (E.D. Pa. Sept. 28, 1990) Simmens v. Coca Cola Co., No. 07-668, 2007 WL 2007977 (E.D. Pa. July 5, 2007)

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LEXSEE 1999 U.S. DIST. LEXIS 16716

Caution As of: Jan 28, 2008 THERESA AYLING, on behalf of herself, and all others similarly situated, Plaintiff, v. TRAVELERS PROPERTY CASUALTY CORP.; TRAVELERS GROUP INC.; TRAVELERS LIFE AND ANNUITY COMPANY, TOWER SQUARE SECURITIES, INC.; SALOMON SMITH BARNEY HOLDINGS, INC.; RINGLER ASSOCIATES, INC.; WELLS AND ASSOCIATES, INC.; UNIDENTIFIED BROKERS 1 THROUGH 99, Defendants. CIVIL ACTION NO. 99-3243 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA 1999 U.S. Dist. LEXIS 16716

October 27, 1999, Decided DISPOSITION: [*1] Defendants' Motion to Transfer Venue to the District of Connecticut GRANTED and case Transferred to the District of Connecticut. CASE SUMMARY: fendants demonstrated that Connecticut was a more appropriate forum, because similar litigation was already filed there before a judge familiar with many of the issues, and the convenience of witnesses, location of documents, and similarity of statutes favored transfer. OUTCOME: Defendant insurance company's motion to transfer venue was granted; the only factor against transfer was that named plaintiff was a paraplegic Pennsylvania resident; Transferee state Connecticut was defendant's principal place of business, was where most transactions were completed, and similar litigation was pending there; transferee court would decide other motions. LexisNexis(R) Headnotes OVERVIEW: Principal defendant, property and casualty insurance company, moved to transfer venue pursuant to 28 U.S.C.S. § 1404(a) to the District of Connecticut and to enlarge time to respond to a proposed class action suit brought by consumer plaintiff in her home state of Pennsylvania. She alleged defendant committed fraud and negligent misrepresentation, and violated the Pennsylvania Unfair Insurance Practices Act, Unfair Trade Practices Act, and Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C.S. § 1961 et seq., by receiving rebates on commissions from brokers in the course of issuing structured settlement annuities for putative plaintiffs. The court found that, although plaintiff was a paraplegic for whom travel was difficult, the de-

PROCEDURAL POSTURE: Principal defendant, property and casualty insurance company, moved to transfer venue pursuant to 28 U.S.C.S. § 1404(a) to the District of Connecticut and to enlarge time to respond to a proposed class action suit brought by consumer plaintiff who alleged fraud and RICO violations in defendant's structured settlement annuities.

Civil Procedure > Venue > Federal Venue Transfers > Convenience Transfers [HN1] A district court may transfer the venue of any civil action for the convenience of parties and witnesses or in the interests of justice, to any other district where it might have been brought. 28 U.S.C.S. § 1404(a).

Civil Procedure > Venue > Federal Venue Transfers > General Overview

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[HN2] Although 28 U.S.C.S. § 1404(a) gives a district court the discretion to decide a motion based on an individualized case by case basis, consideration of convenience and fairness, such motions are not to be liberally granted.

Civil Procedure > Venue > Federal Venue Transfers > Convenience Transfers [HN3] In ruling on a motion to transfer under 28 U.S.C.S. § 1404(a), the Court should consider all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum.

ing whether to transfer venue include (1) the convenience and preference of the parties, including the plaintiff's choice of forum, (2) the convenience of witnesses, (3) access to sources of proof such as books and records, (4) practical considerations that make litigation easy, expeditious or inexpensive, (5) the relative calendar congestion of the two competing districts, (6) where the events at issue took place and the interest of the respective courts in deciding local controversies (7) the enforceability of any judgment and (8) the familiarity of the trial judge with the applicable law.

Civil Procedure > Venue > Federal Venue Transfers > General Overview [HN8] A plaintiff's choice of forum is a paramount consideration that should not lightly be disturbed.

Civil Procedure > Venue > Federal Venue Transfers > Convenience Transfers Civil Procedure > Venue > Motions to Transfer > Interests of Justice [HN4] The first step in a court's analysis of a transfer motion under 28 U.S.C.S. § 1404(a) is to determine whether venue would be proper in the transferee district. If the first prong of the inquiry is satisfied, the court then should determine whether a transfer would be in the interests of justice.

Civil Procedure > Venue > Federal Venue Transfers > General Overview [HN9] Unless the balance of convenience of the parties is strongly in favor of defendant, the plaintiff's choice of forum should prevail.

Civil Procedure > Venue > Federal Venue Transfers > General Overview [HN5] The party moving to transfer a case on grounds of inconvenience has the burden of showing that the existing forum is inconvenient.

Civil Procedure > Venue > Federal Venue Transfers > General Overview [HN10] When considering a motion to transfer, a court may consider the convenience of the parties as indicated by their relative physical and financial condition.

Civil Procedure > Jurisdiction > Subject Matter Jurisdiction > Jurisdiction Over Actions > General Overview Civil Procedure > Venue > Individual Defendants [HN6] Any civil action wherein jurisdiction is not founded solely on the diversity of citizenship may be brought in a district in which a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C.S. § 1391(b)(2).

Civil Procedure > Venue > Federal Venue Transfers > General Overview [HN11] The courts have found that the presence of related cases in the transferee forum is a reason to grant a transfer. This consideration is powerful enough to tilt the balance in favor of a transfer even when the convenience of the parties and witnesses would point to a denial.

Civil Procedure > Venue > Federal Venue Transfers > General Overview Civil Procedure > Venue > Motions to Transfer > Choice of Forum [HN7] After determining that a transferee forum is one where the action could originally have been brought, the second part of the transfer analysis requires a balancing of the interests of justice and the convenience of witnesses and parties. Factors to be considered in determin-

Civil Procedure > Venue > Federal Venue Transfers > General Overview [HN12] Although courts may consider calendar congestion in ruling upon a 28 U.S.C.S § 1404(a) motion, the relative congestion of the respective courts dockets is not a factor of great importance in this type of motion.

Civil Procedure > Venue > Federal Venue Transfers > General Overview Governments > Local Governments > Claims By & Against

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[HN13] Where plaintiff's cause of action arises from strategic policy decisions of a defendant corporation, the defendant's headquarters can be considered the place where events giving rise to the claim occurred. COUNSEL: For THERESA AYLING, PLAINTIFF: JOHN JOSEPH GALLAGHER, PHILADELPHIA, PA USA. LAURENCE S. BERMAN, LEVIN, FISHBEIN, SEDRAN & BERMAN, PHILADELPHIA, PA USA. For TRAVELERS PROPERTY CASUALTY CORP., TRAVELERS GROUP INC., TRAVELERS LIFE AND ANNUITY COMPANY, DEFENDANTS: JOHN CHESNEY, MARY E. KOHART, DRINKER BIDDLE & REATH LLP, PHILADELPHIA, PA USA. For TOWER SQUARE SECURITIES, INC., SALOMON SMITH BARNEY HOLDINGS, INC., DEFENDANTS: MARY E. KOHART, DRINKER BIDDLE & REATH LLP, PHILADELPHIA, PA USA. For RINGLER ASSOCIATES, INC., MICHAEL J. DUNN, MURPHY & O'CONNOR, PHILADELPHIA, PA USA. For WELLS AND ASSOCIATES, DEFENDANT: JOSEPH M. HANKINS, BRITT, HANKINS, SCHAIBLE & MOUGHAN, PHILA, PA USA. C. SCOTT CRABTREE, DENVER, CO USA. JUDGES: RONALD L. BUCKWALTER, J. OPINION BY: RONALD L. BUCKWALTER OPINION MEMORANDUM & ORDER BUCKWALTER, J. October 27, 1999 Presently before the Court is the Travelers Defendants 1 Motion to Transfer Venue pursuant to 28 U.S.C. § 1404(a) and to Enlarge Defendants' Time to Respond. For the reasons [*2] stated below, the Motion is Granted as to the Transfer. The Motion to Enlarge the Time to Respond will be decided by the Transferee Court. 1 The Travelers Defendants who made this motion include Travelers Property Casualty Corp. ("TPC"), Travelers Group, Inc. ("Travelers"), Travelers Life and Annuity Company ("TLAC"), Tower Square Securities, Inc. ("Tower"), and Salomon Smith Barney Holdings, Inc. ("Smith Barney"). Ringler Associates, Inc. ("Ringler") has

requested that it be joined in the Motion of the Travelers' Defendants. I. Factual Background This action has been brought on behalf of a class of persons who entered into structured settlement agreements with TPC and allegedly were subsequently defrauded as a result of Defendants' elaborate rebating scheme. Structured settlements involve a defendant's promise to make a specified number of future periodic payments in lieu of a single lump sum payment. They are often used as a means of resolving personal injury lawsuits. A single premium settlement [*3] annuity is then purchased by the insurer naming the settling plaintiff as beneficiary. Plaintiff asserts that the Travelers Defendants have undertaken to defraud persons entering into structured settlements with TPC by misrepresenting the cost of annuities, and in so doing, have taken advantage of class members. The basic scheme of the alleged fraud is that TPC would first enter into exclusive contracts for the purchase of the structured settlement annuities with the various securities companies. In exchange for these exclusive contracts, TPC would then agree to rebate a percentage of the commissions (50-75%) they were to receive from the purchase of the annuities. TPC would then show the settling plaintiff the amount that the annuity had cost, while including the full commission price. 2 The settling plaintiff would never know the true cost of the annuity. The Plaintiffs allege that this business practice was fraudulent, in violation of both federal and state law. 2 For example, TPC would report to the settling plaintiff that the annuity would be funded with a hypothetical $ 104,000. That would include the $ 100,000 principal and $ 4,000 commission. Then the broker would return $ 2,000 of the commission, so that the annuity really cost TPC only $ 102,000. Plaintiff alleges that this practice led to the settling plaintiffs receiving less than the amount to which they were entitled. [*4] Plaintiff brings this action pursuant to the "RICO" statute, 18 U.S.C. § 1961 et seq.. Plaintiff also asserts claims under Pennsylvania common law, sounding in fraud and negligent misrepresentation, as well as violations of the Pennsylvania Unfair Insurance Practices Act and Unfair Trade Practices Act. The Travelers Defendants ask the Court to transfer this case to the District of Connecticut pursuant to 28 U.S.C. § 1404(a). They raise three major reasons as to why such a transfer would be in the interests of justice. First, a case alleging the same violations by the same

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defendants on behalf of the same class is currently before a judge in the District of Connecticut. 3 Secondly, the majority of witnesses and documents needed for this case are located in the vicinity of Hartford in that state, which serves as the headquarters of TPC. Finally, Defendants assert that Connecticut is where the alleged violations arose. 3 Abdullah v. Traveler Property Cas. Corp., No. 399-CV-0155, filed on January 27, 1999 (currently pending before Judge Warren Eginton of the District of Connecticut.). Two other cases involving very similar claims, defendants and class members, Macomber v. Travelers Property Cas. Co., No. 398-CV-1060, filed June 5, 1998, and Huaman v. Travelers Property Cas. Co., No. 398CV-1093, June 10, 1998, were dismissed by Judge Eginton on March 30, 1999. [*5] II. Legal Standard [HN1] A district court may transfer the venue of any civil action for the convenience of parties and witnesses or in the interests of justice, to any other district where it might have been brought. 28 U.S.C. § 1404(a). The purpose of this section is "to prevent the waste of 'time, energy and money' and 'to protect litigants, witnesses and the public against unnecessary inconvenience and expense'" Van Dusen v. Barrack, 376 U.S. 612, 616, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964) (quoting [HN2] Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26-27, 80 S. Ct. 1470, 4 L. Ed. 2d 1540 (1960)). Although § 1404(a) gives a district court the discretion to decide a motion based on a individualized case by case basis consideration of convenience and fairness, such motions are not to be liberally granted. [HN3] Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29, 101 L. Ed. 2d 22, 108 S. Ct. 2239 (1987). In ruling on a motion to transfer, the Court should consider "all relevant factors to determine whether on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a [*6] different forum. See, [HN4] Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). The first step in a court's analysis of a transfer motion is to determine whether venue would be proper in the transferee district. If the first prong of the inquiry is satisfied, the court then should determine whether a transfer would be in the interests of justice. [HN5] Id. at 879. It is important to note that the party moving to transfer a case on grounds of inconvenience has the burden of showing that the existing forum is inconvenient. Britamco Underwriters v. Raymond E. Wallace Productions, Inc., 56 F. Supp. 2d 542, 545 (E.D. Pa. 1999) (Joyner, J.).

III. Discussion A. Could the action have been brought in Connecticut? [HN6] Any civil action wherein jurisdiction is not found solely on the diversity of citizenship may be brought in a district in which a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C. § 1391(b)(2). Likewise, as Plaintiffs assert a RICO violation, venue would be proper in any district in which such person resides. See, 18 U.S.C. 1965 [*7] (a). Since TPC (the primary defendant) resides in Connecticut, and the alleged 'kickbacks' were paid to TPC in Hartford, the action could have been brought in the District of Connecticut. B. Would a transfer to Connecticut be in the interests of justice and for the convenience of witnesses and parties? [HN7] The second part of the transfer analysis requires a balancing of the interests of justice and the convenience of witnesses and parties. Factors to be considered in determining whether to transfer venue include (1) the convenience and preference of the parties, including the plaintiff's choice of forum, (2) the convenience of witnesses, (3) access to sources of proof such as books and records, (4) practical considerations that make litigation easy, expeditious or inexpensive, (5) the relative calendar congestion of the two competing districts, (6) where the events at issue took place and the interest of the respective courts in deciding local controversies (7) the enforceability of any judgment and (8) the familiarity of the trial judge with the applicable law. See, Jumara, 55 F.3d at 879-880. These factors will be discussed in turn. 1. Convenience [*8] of Parties and Plaintiff's Choice of Forum: The [HN8] plaintiff's choice of forum is a paramount consideration that should not lightly be disturbed. See, First Union National Bank v. United States, 55 F. Supp. 2d 331, 332 (E.D. Pa. 1999) (quoting Sovereign Bank, F.S.B. v. Rochester Community Savings Bank, 907 F. Supp. 123, 126 (E.D. Pa. 1995) (denying motion to transfer even though plaintiff filed in a district which was not his home nor the situs of events in contention). Moreover, [HN9] unless the balance of convenience of the parties is strongly in favor of defendant, the plaintiff's choice of forum should prevail. See, [HN10] Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970). When considering a motion to transfer, a court may consider the "convenience of the parties as indicated by their relative physical and financial condition." Jumara, 55 F.3d at 879.

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In this case, the named Plaintiff's physical and financial condition are much more limiting than are those of the Travelers Defendants. The named Plaintiff in this putative class action is a 20 year old paraplegic. The Defendants are a group of corporations [*9] worth billions of dollars. The mere fact that the Travelers Defendants have more resources than Plaintiff should not be the sole reason for refusing a transfer, but an assessment of relative inconvenience weighs in her favor. See, National Mortgage Network, Inc. v. Home Equity Centers, Inc., 683 F. Supp. 116, 119 (E.D. Pa. 1988). Three of the five Travelers Defendants, including TPC and TLAC, are headquartered in Connecticut. The remaining Defendants are not headquartered in either of the potential forum states. While Connecticut would be more convenient for the Travelers' Defendants, traveling to Philadelphia is probably not as significant a hardship for the Defendants from Connecticut as it would be for Ms. Ayling to travel to Connecticut. On the other hand, Ms. Ayling is not the only party on the plaintiff's side. Since she is bringing the suit on behalf of a nationwide class, it is not clear how convenient Pennsylvania would be to other members of the putative class. The Defendant also argues that a plaintiff's choice of forum deserves less deference in a class action than in ordinary litigation. See, Bolton v. Tesoro Petroleum Corp., 549 F. Supp. 1312, 1314-15 (E.D. Pa. 1982) [*10] (finding that plaintiff's forum choice is of less weight in actions in which the nominal plaintiff's role is likely to be quite minimal). As Plaintiff has proposed a nationwide class, this suit probably could have been brought in almost any state in which TPC does business. Since the named plaintiff in a class action is often not very relevant to the litigation, the Defendants' point is well taken. However, Plaintiff asserts that her role in this litigation could be extensive and that she has a significant financial stake in the outcome of the litigation. At this point in the proceedings we accept these statements as true. Since this is not a derivative security suit, Ms. Ayling's role may be more than nominal. It is difficult to make a showing that will overcome the strong presumption towards keeping the plaintiff's chosen forum. Therefore, the 'convenience of parties' factor favors denying the transfer. 2. Convenience of the Witnesses: The Plaintiff, in her brief, spends significant time arguing against the Travelers' Defendants' claim that the 'convenience of witnesses' factor favors Connecticut. The focus of Plaintiff's position is that the Defendants have not specifically [*11] identified which witnesses will testify. See, Pl. Mem. in Opp. pp. 8-11. In assessing the propriety of a district court's decision to transfer an action, the Court of Appeals for the Third Circuit has required that defendants submit affidavits, depositions or

other evidence to support their motion for transfer. See, Plum Tree v. Stockment, 488 F.2d 754, 756 (3d. Cir. 1973). The Defendants haves included such documentation in their Reply Brief. See, Affidavit of Peter F. Sexton, Associate General Counsel of TPC, dated September 28, 1999 ("Sexton Aff."). Sexton lists four witnesses who are likely to testify in this case by name and position. Sexton Aff. P 6. There is some credibility to Sexton's declaration because the Defendants have gone through three similar suits and should now know who is likely to testify in a suit raising similar claims. All four of these witnesses work and reside in Connecticut. The only potential witness identified by the Plaintiff is Ms. Ayling herself (although they do assert that several key witnesses live in the Eastern District of Pennsylvania without any further elaboration. See, Pl. Mem in Opp. p. 14). It would not be [*12] an overwhelming inconvenience for the Travelers' Defendants to transport four witnesses to Philadelphia. However, since the Plaintiff has only speculatively identified one witness who resides in Pennsylvania, the Court finds that the Defendants have demonstrated that the 'convenience of witnesses' factor favors transfer to Connecticut. 3. Access to Documents: Defendants state that the vast majority of the documents are located at TPC's headquarters in Hartford. Sexton Aff. P 7. However, it is not clear how great a burden it would be to move the necessary documents to Philadelphia. The Plaintiffs do not argue that any of the relevant documents are located in this district. The Court finds on balance that while this factor favors transfer, it should not be accorded great weight. 4. Practical Considerations Making Litigation Easy, Expeditious and Inexpensive. The Supreme Court has stated that to permit a situation in which two cases involving precisely the same issues are simultaneously pending in two different District Courts leads to the wastefulness of time, energy and money that § 1404(a) was designed to prevent. See, Continental Grain, 364 U.S. at 26. [*13] Therefore, [HN11] courts have found that the presence of related cases in the transferee forum is a reason to grant a transfer. See, e.g., Prudential Insurance Company of America v. Rodano, 493 F. Supp. 954, 955 (E.D. Pa. 1980); Jontri Transp. Co. v. North Bank Dev. Co., 1990 U.S. Dist. LEXIS 10857, 1990 WL 121511 at *2 (E.D. Pa. 1990). In fact this consideration is powerful enough to tilt the balance in favor of a transfer even when the convenience of the parties and witnesses would point to a denial. See, Blanning v. Tisch, 378 F. Supp. 1058, 1061 (E.D.Pa.1974). The Plaintiff distinguishes Continental because in that case the action transferred arose out of the same incident as the related case. She asserts that this

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case involves different parties and different facts. However, in reviewing the Abdullah, Macomber and Huaman complaints, this Court finds them to be almost identical to Ms. Ayling's complaint. The Defendants are virtually the same. So too are the factual allegations of RICO violations, common law fraud, negligent misrepresentation and violations of state insurance and trade acts. Each of the actions was on the behalf of the same [*14] class of persons who entered into structured settlements with TPC from 1982 to the present. Therefore, the only real difference is who the class has decided to name as lead plaintiff. Of course the particular factual allegations pertaining to the structured settlement entered into by Ms. Ayling will be different than those made by the named plaintiffs in Abdullah, Macomber and Huaman. But the point of these putative class actions is that the Travelers' Defendants engaged in a pattern of behavior that harmed any plaintiff who entered into a structured settlement with TPC. The result of these actions will be a determination of whether the Travelers' Defendants have defrauded plaintiffs with whom they entered structured settlements by engaging in the allegedly illegal rebating scheme. Allowing two separate actions on behalf of the same class might lead to inconsistent results, even if the witnesses and documentary evidence were identical. Furthermore, as Judge Eginton is already familiar with the factual and legal issues of the putative class' allegations, having him decide the present matter would serve the interests of judicial efficiency. 4 This factor favors transfer [*15] of the case to the District of Connecticut. 4 Due to Judge Eginton's knowledge of the factual allegations, and the very similar nature of Ms. Ayling's Complaint to those he has previously ruled upon, this Court feels that a transfer would be justified even if the Abdullah complaint is dismissed prior to transfer. 5. Calendar Congestion: [HN12] Although courts may consider calendar congestion in ruling upon a 1404(a) motion, the relative congestion of the respective courts dockets is not a factor of great importance in this type of motion. See, Kisko v. Penn. Cent. Transp. Co., 408 F. Supp. 984 (M.D. Pa. 1976). It appears, given the more complete analysis provided by the Plaintiffs, that Connecticut has a more congested forum. However, the real issue would be the congestion of Judge Eginton's docket, because if the case were transferred to Connecticut, it would most likely be assigned to him. The Court does not currently have information concerning Judge Eginton's docket. Therefore, [*16] although this factor leans slightly towards denying the transfer, it will be assigned little weight. 6. Where the events at issue took place.

In Continental Grain Co., a court transferred a suit from New Orleans to Memphis because a related case arising from the same boat crash in Memphis was already under consideration in that city. 364 U.S. at 19. The cases involving the Travelers' Defendants are likewise similar in so far as they all arise from the same corporate policy decisions by TPC to allegedly defraud their customers. [HN13] Where plaintiff's cause of action arises from strategic policy decisions of a defendant corporation, the defendant's headquarters can be considered the place where events giving rise to the claim occurred. See, Paul v. Lands' End, 742 F. Supp. 512, 514 (N.D. Ill. 1990) (granting transfer to district of corporation's headquarters after finding that plaintiffs' cause of action essentially stemmed from corporate policy and decisions made at the corporation's headquarters). If Plaintiff is to prove her case, she will have to show that TPC made certain decisions that affected the whole organization. The type of decision [*17] that could have this kind of effect would likely have been made at the highest levels of TPC management in Hartford. Such decisions included (1) entering exclusive agreements with the various brokerages through whom the annuities were purchased, (2) arranging rebates of the commissions paid to the brokers for selling the annuities, and (3) not sharing the true cost of the annuity with the plaintiffs. So while it is true that Ms. Ayling did not enter into the settlement in Connecticut, the decisions that led to her alleged injury all were made in Connecticut. The Defendant also asserts that the majority of structured settlements entered into by TPC were created and approved at TPC's Hartford headquarters. Sexton Aff., P 7. Since Connecticut is the place where the events giving rise to this claim occurred, this factor favors a transfer of venue. 7. Enforceability of Judgment. As both sides agree, a judgment obtained in either the Eastern District of Pennsylvania or the District of Connecticut will be equally enforceable. 8. Familiarity of the Trial Judge with Applicable State Law. As to the federal claims, both Judge Eginton and this court are equally familiar [*18] with the applicable federal claims. Of course, Judge Eginton is more familiar with the particular factual allegations. The two complaints that Judge Eginton has dismissed, Macomber and Huaman, both stated violations of Connecticut's Unfair Trade and Insurance Practice Acts. Judge Eginton obviously found that the allegations did not support a claim under either of these acts. The Ayling complaint attempts to state a claim under the equivalent Pennsylvania statutes and similar statutes in other states (one of which is presumably Connecticut). Therefore, the trial judge will have to be familiar not just with Pennsylvania state law,

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but with similar statutes of many states. Judge Eginton's familiarity of the law of other states is likely comparable to this Court's. This factor is neutral with regard to transfer. Judge Eginton's factual knowledge weighs in favor of transfer while this Court's better familiarity with Pennsylvania state law weighs against the transfer. IV. Conclusion. The Court finds a transfer of venue to the District of Connecticut is justified in this case. Connecticut is a forum more related to this action as the events giving rise to the claim occurred [*19] in that state. Also, the Defendants, identified witnesses and documents reside in that state. The interests of judicial efficiency require the transfer as the trial judge currently has a virtually identical case before him and is very familiar with the factual allegations at the center of this Complaint. The only significant factor weighing against the transfer is the putative class' choice of Ms. Ayling, a paraplegic resident of

Pennsylvania, as its lead plaintiff. The plaintiff's choice of forum has been given significant weight, but the Court finds that the other interests overcome the strong presumption towards the choice of Pennsylvania as a forum. Therefore, Defendant's motion is granted in its entirety. An appropriate Order follows. ORDER AND NOW, this 27th day of October, 1999, upon consideration of Defendants' Motion to Transfer Venue to the District of Connecticut (Docket No. 11), Plaintiff's Response thereto (Docket No. 15), and Defendants' Reply (Docket No. 16); it is hereby ORDERED that Defendants' Motion is GRANTED and this case is Transferred to the District of Connecticut. BY THE COURT: RONALD L. BUCKWALTER, J.

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LEXSEE 2005 U.S. DIST. LEXIS 34902

Caution As of: Jan 28, 2008 BANK OF AMERICA, N.A. (USA), Plaintiff, v. US AIRWAYS, INC., US AIRWAYS GROUP, INC. and AMERICA WEST AIRLINES, INC., Defendants, and JUNIPER BANK, Intervenor. Civil Action No. 05-793-JJF UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 2005 U.S. Dist. LEXIS 34902

December 21, 2005, Decided SUBSEQUENT HISTORY: Later proceeding at, Transferred to Bank of Am., N.A. (USA) v. US Airways, Inc., 2006 U.S. Dist. LEXIS 49026 (E.D. Va., July 19, 2006) COUNSEL: [*1] Richard L. Horwitz, Esquire, Kevin R. Shannon, Esquire and Brian C. Ralston, Esquire of POTTER, ANDERSON & CORROON LLP, Wilmington, Delaware. Of Counsel: Evan R. Chesler, Esquire and David R. Marriott, Esquire of CRAVATH, SWAINE & MOORE LLP, New York, New York, for Plaintiff Bank of America, N.A. (USA). David C. McBride, Esquire, Martin S. Lessner, Esquire and Christian Douglas Wright, Esquire of YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware. Of Counsel: Mark H. Epstein, Esquire and Kristin Linsley Myles, Esquire of MUNGER, TOLLES & OLSON LLP, Los Angeles, California, for Defendants US Airways, Inc., US Airways Group, Inc. and America West Airlines, Inc. Kenneth J. Nachbar, Esquire of MORRIS, NICHOLS, ARSHT & TUNNELL, Wilmington, Delaware, for Intervenor Juniper Bank. JUDGES: Farnan, District Judge. OPINION BY: Joseph J. Farnan Jr. OPINION MEMORANDUM OPINION December 21, 2005 Wilmington, Delaware Joseph J. Farnan Jr. Farnan, District Judge. Pending before the Court are Defendants' Motion To Transfer To The Eastern District Of Virginia (D.I. 5) and Plaintiff's Motion For Expedited Remand To Vice Chancellor Strine Of The Delaware Chancery Court [*2] (D.I. 11). For the reasons discussed, the Court will grant Defendants' Motion to Transfer and decline to rule on Plaintiff's Motion To Remand. BACKGROUND Plaintiff Bank of America, N.A. (USA) ("Bank of America") is a Delaware corporation with its principal executive offices in Arizona. Defendants US Airways, Inc. and US Airways Group, Inc. are Delaware corporations with their principal executive offices in Virginia. US Airways, Inc. is the principal operating subsidiary of US Airways Group, Inc. Defendant America West Airlines Inc., which is wholly owned by America West Holdings Corp., is a Delaware corporation with its principal executive offices in Arizona. In May, 2003, Bank of America and US Airways, Inc. entered into a co-branded credit card agreement under which Bank of America was to be the sole issuer of the US Airways credit card to United States residents until December 3, 2008. On September 27, 2005, as a part of US Airways Group's reorganization plan under

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Chapter 11 of the United States Bankruptcy Code, US Airways Group merged with America West Holdings, with the merged entity operating under the US Airways name. In August, 2005, America West, US Airways Group, [*3] and Juniper Bank ("Juniper") entered into an agreement under which Juniper will issue a cobranded credit card for US Airways. That agreement took effect with the merger on September 27, 2005. By its Complaint, Bank of America alleges breach of contract and tortious interference with contract and prospective economic relations. Specifically, Bank of America alleges that, as a result of contracting with Juniper to issue a US Airways credit card, Defendants breached provisions on exclusivity and marketing obligations in the co-branded card agreement between them and Bank of America. Bank of America further alleges that America West tortiously interfered with its contract with US Airways and that both America West and US Airways Group tortiously interfered with its prospective economic advantage. Bank of America seeks unspecified monetary damages, specific performance of the cobranded card agreement, and injunctive relief barring Juniper from issuing a US Airways credit card. Bank of America originally filed this action in the Court of Chancery for the State of Delaware in and for New Castle County as Del. Ch. C.A. No. 1713-N. On November 15, 2005, Defendants and Juniper removed the [*4] action to this Court (D.I. 1) and on November 16, 2005, Defendants filed their Motion To Transfer (D.I. 5). On November 23, 2005, Bank of America filed its Motion For Expedited Remand (D.I. 11). DISCUSSION I. Whether The Court Has Subject Matter Jurisdiction Bank of America contends that the Court must deny Defendant's Motion To Transfer and grant its Motion To Remand because the Court lacks subject matter jurisdiction. (D.I. 12 at 10; D.I. 18 at 3.) Defendants contend that the Court has subject matter jurisdiction under 28 U.S.C. § 1334(b) because this case is a core proceeding within the meaning of 28 U.S.C. § 157(b) and is related to a case under title 11. The Court concludes that it does have subject matter jurisdiction. Section 1334(b) provides in relevant part that "the district courts shall have original but not exclusive jurisdiction of all civil proceedings arising under title 11, or arising in or related to cases under title 11." 28 U.S.C. § 1334(b). The Court of Appeals for the Third Circuit has given a broad interpretation to "related to," even in cases like this one that arise after [*5] confirmation of the debtor's reorganization plan. See Binder v. Price Water-

house & Co., LLP (In re Resorts Int'l, Inc.), 372 F.3d 154, 164 (3d Cir. 2004). Under § 1334(b)'s "related to" standard, a district court has jurisdiction of a proceeding if "the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy." Id. (quoting Pacor, Inc., v. Higgins, 743 F.2d 984, 994 (3d Cir. 1984)). A proceeding is related to a case under title 11 "if the outcome could alter the debtor's rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankrupt estate." Id. According to Defendant's brief in support of their Motion To Transfer, a significant percentage of the cash needed to implement US Airways' Chapter 11 reorganization plan was to come from the contract with Juniper, which Bank of America seeks to enjoin. (D.I. 6 at 11.) Taking this into account, and applying the Third Circuit's broad standard, the Court concludes that this action is related to Defendants' case under title 11. Therefore, the Court has subject matter jurisdiction [*6] under 28 U.S.C. § 1334(b). II. Whether The Court Should Transfer Venue To The Eastern District Of Virginia Defendants contend that the Court should transfer venue to the United States District Court for the Eastern District of Virginia where proceedings concerning US Airways' Chapter 11 case are pending before the Honorable Stephen S. Mitchell. (D.I. 6 at 1.) In support of this contention, Defendants argue that, because Judge Mitchell has presided over this large and complex bankruptcy, he is in a better position than this Court to weigh the issues raised by Bank of America's Motion to Remand as well as its Complaint. In response, Bank of America contends that its choice of forum should be given substantial deference and that Defendants have not met their burden, under 28 U.S.C. § 1412, of showing that transfer of venue would serve the interest of justice or the convenience of the parties. (D.I. 18 at 6.) Secton 1412 provides that "[a] district court may transfer a case or proceeding under title 11 to a district court for another district, in the interest of justice or for the convenience of the parties." 28 U.S.C. § 1412. [*7] A determination of whether to transfer a proceeding under § 1412 should be based on the same factors used to decide a motion to transfer under § 1404(a), which permits a court to transfer any civil action for the convenience of the parties or in the interest of justice. Son v. Coal Equity, Inc. (In re Centennial Coal, Inc.), 282 B.R. 140, 144 (Bankr. D. Del. 2002). The Third Circuit set forth a list of those factors in Jumara v. State Farm Ins. Co., 55 F.3d 873, 879-80 (3d Cir. 1995). That list includes: (1) the plaintiff's choice of forum; (2) the defendant's preferred forum; (3) whether the claim arose else-

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where; (4) the convenience of the parties as indicated by their relative physical and financial condition; (5) the convenience of the witnesses, but only to the extent that the witnesses may actually be unavailable for trial in one of the fora; (6) the location of books and records, similarly limited to the extent that the files could not be produced in one of the fora; (7) the enforceability of the judgment; (8) practical considerations that could make the trial easy, expeditious, or inexpensive; (9) the relative administrative difficulty in the two fora resulting from [*8] court congestion; (10) the local interest in deciding local controversies at home; (11) the public policies of the fora; and (12) the familiarity of the trial judge with the applicable state law. Id. The burden is on the movant to establish that the balance of the interests weighs strongly in favor of transfer. Datex-Ohmeda, Inc. v. HillRom Services, Inc., 185 F.Supp.2d 407, 412 (D. Del. 2002). Having considered all of the relevant factors, the Court concludes that the balance of interests here weighs strongly in favor of transferring this action to the Eastern District of Virginia, where related bankruptcy matters are pending. That conclusion is based largely on the eighth factor, practical considerations. Judge Mitchell is simply in a far better position than this Court to expeditiously decide critical questions pertaining to Bank of America's Motion To Remand and the merits of the case. For example, Bank of America contends that the Court must abstain from hearing this case pursuant to 28 U.S.C. § 1334(c)(2), because it is not a core proceeding. (D.I. 12 at 21.) Defendants, on the other hand, contend that the claims in the Complaint [*9] are "functionally identical" to administrative claims filed by Bank of America in US Airways' Chapter 11 proceedings, (D.I. 6 at 1), and that those administrative claims, therefore, transform this action into a core proceeding, Id. at 9-10. Also at issue with respect to the Motion For Remand, is the effect on the Court's jurisdiction of a paragraph in Judge Mitchell's order confirming the reorganization plan, which reserves

certain of Bank of America's rights with respect to the co-branded credit card agreement. (D.I. 13, Ex. 13 at 49.) Another crucial issue in contention is the importance to the reorganization plan of the cash received by US Airways from its contract with Juniper. (D.I. 6 at 10-11.) Judge Mitchell, being vastly more familiar with the nature of the administrative claims filed by Bank of America, the correct interpretation of his own orders, and the details of US Airways' reorganization plan, is well positioned to quickly and efficiently resolve these and other issues, whereas this Court would have to expend considerably more time and resources to arrive at a just resolution. Therefore, the Court concludes that, for practical considerations alone, it is in the interest [*10] of justice to transfer this case to the Eastern District of Virginia. CONCLUSION For the reasons discussed, the Court will grant Defendants' Motion To Transfer To The Eastern District Of Virginia (D.I. 5). The Court declines to rule on Plaintiff's Motion For Expedited Remand To Vice Chancel