Free Opening Brief in Support - District Court of Delaware - Delaware

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UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA ) ) ) ) ) ) ) ) ) ) ) ) ) )

NOWAK DENTAL SUPPLIES, INC., Plaintiff, v. DENTSPLY INTERNATIONAL INC., Defendant.

No. 1:07-cv-01799

(Judge Conner)

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

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TABLE OF CONTENTS TABLE OF AUTHORITIES .................................................................................... ii PRELIMINARY STATEMENT ...............................................................................1 PROCEDURAL AND FACTUAL BACKGROUND ..............................................2 STATEMENT OF QUESTION PRESENTED.........................................................7 ARGUMENT .............................................................................................................8 I. II. NOWAK COULD HAVE FILED ITS COMPLAINT IN THE DISTRICT OF DELAWARE..........................................................................9 THE INTERESTS OF JUSTICE FAVOR TRANSFER TO THE DISTRICT OF DELAWARE..........................................................................9 A. The District of Delaware Is The Best Forum Because Judge Robinson Has Adjudicated The Sherman Act Section 2 Issues That The Nowak Complaint Presents ...................................................9 The District of Delaware Is Also The Best Forum Because Judge Robinson Has Adjudicated The Issue Of The Preclusive Effect Of Her Findings In The Underlying Government Litigation, And The Third Circuit's Reversal Of Her Opinion ..........13

B.

III.

THE DISTRICT OF DELAWARE IS A MORE CONVENIENT FORUM FOR THE PARTIES AND WITNESSES .....................................16 A. Plaintiff's Choice Of Forum Is Not Entitled To Deference Because Nowak Does Not Reside In Pennsylvania And The Claim Did Not Arise In Pennsylvania.................................................17 Keeping Nowak In Pennsylvania Does Not Facilitate Access To Documentary Evidence .......................................................................18 The Related Pending Actions In Delaware Make Delaware More Convenient For The Parties And Witnesses..............................18

B. C.

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CONCLUSION........................................................................................................20

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TABLE OF AUTHORITIES CASES Auto. Techs. Int'l, Inc. v. Am. Honda Motor Co., No. 06-187 GMS, 2006 U.S. Dist. LEXIS 92249 (D. Del. Dec. 21, 2006) ...................................................................................................................17 Ayling v. Travelers Prop. Cas. Corp., No. 99-3243, 1999 U.S. Dist. LEXIS 16716 (E.D. Pa. Oct. 27, 1999)........10, 19 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) ....................................................................................................... 10-12, 15 CIBC World Markets, Inc. v. Deutsche Bank Secs. Inc., 309 F. Supp. 2d 637 (D.N.J. 2004)............................................................... 18-19 Cont'l Grain Co. v. Barge FBL-585, 364 U.S. 19 (1960)..............................................................................................10 Haize v. Hanover Ins. Co., 536 F.2d 576 (3d Cir. 1976) .............................................................................. 15 Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc. 424 F.3d 363 (3d Cir. 2005) ................................................................................5 Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc. --- F. Supp. 2d ----, Civ. No. 99-255-SLR, 2007 WL 2807292 (D. Del. Sept. 26, 2007) ...............................................................................................6, 13 Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., No. Civ. A. 99-255-SLR, 2001 WL 624807 (D. Del. March 30, 2001) .... 3-4, 12 Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977)..............................................................................................4 In re Amendt, 169 Fed. Appx. 93 (3d Cir. 2006)...................................................................8, 11

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Jersey Dental Labs. v. Dentsply Int'l Inc. 126 S. Ct. 2320 (2006)..........................................................................................5 Jersey Dental Labs. v. Dentsply Int'l, Inc. No. Civ. A. 01-267-SLR, 2002 WL 2007916 (D. Del. Aug. 27, 2002) ..............4 Jersey Dental Labs. v. Dentsply Int'l, Inc. 180 F. Supp. 2d 541 (D. Del. 2001) .....................................................................4 Job Haines Home for the Aged v. Young, 936 F. Supp. 223 (D.N.J. 1996) ...................................................................... 9-10 Jumara v. State Farm Ins. Co., 55 F.3d 873 (3d Cir. 1995) .....................................................................10, 16, 18 KAB Enter. Co. v. Ursich Elec. Prods. Inc., No. 06-4361, 2007 U.S. LEXIS 27524 (E.D. Pa. Apr. 13, 2007) ................ 17-18 LG Elecs. Inc. v. First Int'l Computer of America, Inc., 138 F. Supp. 2d 574 (D.N.J. 2001).....................................................................18 Liggett Group, Inc. v. R. J. Reynolds Tobacco Co., 102 F. Supp. 2d 518 (D.N.J. 2000).....................................................................11 Navigators Mgmt. Co., Inc. v. St. Paul Fire & Marine Ins. Co., No. 06 Civ. 599(LBS), 2006 WL 3317030 (S.D.N.Y. Nov. 9, 2006).......... 13-14 Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48 (D.D.C. 2000)................................................................ 14-15 Dentsply Int'l, Inc. v. United States, 546 U.S. 1089 (2006)........................................................................................ 2-3 United States v. Dentsply Int'l, Inc., 399 F.3d 181 (3d Cir. 2005) .................................................................................2 United States v. Dentsply Int'l, Inc., No. 99-005, 2006 U.S. Dist. LEXIS 94907 (D. Del. Apr. 26, 2006) ...................3

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United States v. Dentsply Int'l, Inc., 277 F. Supp. 2d 387 (D. Del. 2003)......................................................................2 Weinberger v. Tucker, 391 F. Supp. 2d 241 (D.D.C. 2005).............................................................. 14-15 Woodall v. Piper Aircraft Corp., No. 82-1554, 1983 U.S. Dist. LEXIS 17465 (M.D. Pa. Apr. 25, 1983) ............11

STATUTES AND RULES 15 U.S.C. § 2 ..............................................................................................................9 15 U.S.C. § 15............................................................................................................9 15 U.S.C. § 22............................................................................................................9 28 U.S.C. § 1404(a) ..........................................................................................passim 28 U.S.C. § 1292(b) ...................................................................................................6 28 U.S.C. § 1331........................................................................................................9 28 U.S.C. § 1337........................................................................................................9 28 U.S.C. § 1391(b), (c).............................................................................................9 Fed. R. Civ. P. 54(b) ..................................................................................................6

TREATISE 15 Charles A. Wright et al., Federal Practice and Procedure § 3847 (2d ed. 1986) ........................................................................................................................16

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Dentsply International Inc. ("Dentsply") submits this memorandum in support of its motion to transfer this action to the United States District Court for the District of Delaware pursuant to 28 U.S.C. § 1404(a) (2007). PRELIMINARY STATEMENT The District of Delaware is the best venue for this tag-along action for several reasons. First, transferring this case to Delaware will serve the interests of justice because Chief Judge Sue L. Robinson has actually decided the facts and legal issues involved in this lawsuit in related cases. She presided over the

government's initial lawsuit against Dentsply for the same challenged conduct from May 2000 through April 2006, and has presided over (and continues to preside over) multiple tag-along lawsuits against Dentsply for almost eight years. Second, in one of these related cases, Hess v. Dentsply, Judge Robinson recently held that the Third Circuit's opinion in the government litigation did not collaterally estop Dentsply from contesting whether plaintiffs in Hess suffered antitrust injury. Nowak also argues that Dentsply is collaterally estopped from contesting that the Third Circuit's opinion held that Dentsply's policy injured dealers like Nowak. Transferring this action to Delaware thus will ensure that the same judge will preside over all current tag-along purchaser actions against Dentsply and will reduce the possibility of inconsistent rulings in those cases.

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Third, the District of Delaware is, on balance, a more convenient forum for the parties and witnesses. Accordingly, this Court should grant Dentsply's motion. PROCEDURAL AND FACTUAL BACKGROUND The Underlying Government Litigation. On January 5, 1999, the United States Department of Justice, Antitrust Division sued Dentsply in the United States District Court for the District of Delaware. It alleged that Dentsply's now-extinct policy that dental products dealers who sold Dentsply's artificial teeth to dental laboratories could not sell competing tooth lines ("Dealer Criterion 6") violated Sections 1 and 2 of the Sherman Act and Section 3 of the Clayton Act. Discovery in that case lasted over three years, during which the parties collectively deposed more than 100 witnesses. Chief Judge Sue L. Robinson presided over a five-week bench trial in 2002. In August 2003, eleven months after closing arguments, Judge Robinson issued a 165-page decision holding that Dentsply's conduct did not violate Sections 1 or 2 of the Sherman Act or Section 3 of the Clayton Act. United States v. Dentsply Int'l, Inc., 277 F. Supp. 2d 387 (D. Del. 2003). The government appealed Judge Robinson's ruling on the Section 2 claim, and, on February 24, 2005, the Third Circuit reversed, holding that Dentsply's conduct violated Section 2 of the Sherman Act. United States v. Dentsply Int'l, Inc., 399 F.3d 181 (3d Cir. 2005). The Third Circuit remanded the case to Judge Robinson with directions to grant injunctive relief to the government. Id. at 196. The Supreme Court later
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denied Dentsply's request to review the Third Circuit's decision. Dentsply Int'l, Inc. v. United States, 546 U.S. 1089 (2006). On remand, the parties engaged in extensive mediation efforts to reach a compromise on the terms of the injunction. On April 26, 2006, Judge Robinson entered final judgment in the government action and granted the government an injunction for a period of 7.5 years. United States v. Dentsply Int'l, Inc., No. 99005, 2006 U.S. Dist. LEXIS 94907 (D. Del. Apr. 26, 2006) (eliminating Dealer Criterion 6). Under the terms of the Final Judgment, "Dentsply shall not require any dealer to be, or agree with any dealer that it will become, an exclusive Dentsply tooth dealer." Id. at *3. In total, Judge Robinson presided over the government's action for nearly six years.1 Related Dentsply Litigation Pending Before Judge Robinson ("Hess" and "Jersey"). On April 21, 1999, Howard Hess Dental Laboratories Inc. ("Hess") filed a tag-along complaint against Dentsply on behalf of a putative national class of dental laboratories who bought Dentsply's artificial teeth from Dentsply's dealers. Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., No. Civ. A. 99255-SLR, 2001 WL 624807 (D. Del. March 30, 2001). In March 2001, Judge

District Judge Murray M. Schwartz originally presided over the Dentsply actions. In May 2000, Judge Schwartz retired and Judge Robinson took over the then-pending Dentsply actions.
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Robinson granted Dentsply's motion for partial summary judgment on the ground that, as indirect purchasers of artificial teeth from Dentsply, plaintiffs lacked standing to bring their damages claim based on the Supreme Court's ruling in Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977). 2001 WL 624807 at *12. On April 24, 2001, the Hess plaintiffs changed their name to Jersey Dental Laboratories ("Jersey"), and filed a separate complaint against Dentsply and 26 of its dental dealers, including Nowak, based on the same exclusive dealing arrangements. Jersey Dental Labs. v. Dentsply Int'l, Inc., 180 F. Supp. 2d 541 (D. Del. 2001) ("Jersey I"). Judge Robinson again dismissed plaintiffs' damages

claims against Dentsply on the ground that plaintiffs could not circumvent Illinois Brick with their allegation that Dentsply and its dealers were "co-conspirators." Id. at 552. Thereafter, plaintiffs moved to reargue the court's Rule 12(b)(6) decision that dismissed the Jersey I complaint and to amend the Jersey I complaint. Jersey Dental Labs. v. Dentsply Int'l, Inc., No. Civ. A. 01-267-SLR, 2002 WL 2007916 (D. Del. Aug. 27, 2002) ("Jersey II"). Judge Robinson denied plaintiffs' motion to reargue as futile and also denied plaintiffs' request for leave to amend. Id. at *2. Plaintiffs appealed the Hess and Jersey I and II decisions to the Third Circuit on May 24, 2004. The Third Circuit affirmed the dismissal of Hess's damages claims in its entirety and, as to Jersey, affirmed in part and reversed in part and

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remanded for further proceedings. Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., 424 F.3d 363, 384 (3d Cir. 2005). In Jersey, the Third Circuit found that the district court erred in its refusal to allow plaintiffs to amend their complaint in Jersey II because they had standing to seek damages from Dentsply for its alleged price-fixing conspiracy with the dealers. Id. at 378. On May 26, 2006, the Supreme Court denied plaintiffs' request to review the Third Circuit's decision. Jersey Dental Labs. v. Dentsply Int'l Inc., 126 S. Ct. 2320 (2006). On remand, plaintiffs filed an amended complaint ("Jersey III") against Dentsply and most of its tooth dealers, again including Nowak, on October 10, 2006. Plaintiffs alleged a price-fixing conspiracy among Dentsply and the tooth dealers, but also included Section 2 claims for conspiracy to monopolize and group boycott based on Dentsply's exclusive dealing policy. On December 1, 2006, defendants moved to dismiss all of the Section 2 claims. During this time, on October 23, 2006, the Hess plaintiffs moved for summary judgment on their injunctive relief claim on the ground that the Third Circuit's decision in the government litigation collaterally estopped Dentsply from contesting the Hess plaintiffs' Section 2 claim. On September 26, 2007, in a consolidated opinion and order, Judge Robinson denied the Hess plaintiffs' summary judgment motion and granted the

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defendants' motion to dismiss the Section 2 claims in the Jersey III case. Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., --- F. Supp. 2d ----, Civ. No. 99-255SLR, 2007 WL 2807292 (D. Del. Sept. 26, 2007). In Hess, the Court agreed with Dentsply that the Third Circuit's February 24, 2005 opinion in the government litigation did not collaterally estop Dentsply from contesting whether plaintiffs suffered antitrust injury because the issue of whether the Hess plaintiffs suffered antitrust injury was not litigated in the government action. Id. at *7. The Court also held that plaintiffs could not obtain injunctive relief because such relief was duplicative of injunctive relief that the government had already obtained. Id. at *8. On October 26, 2007, plaintiffs in Jersey filed a motion for immediate appellate review of the dismissed exclusive dealing claims under Fed. R. Civ. P. 54(b) or 28 U.S.C. § 1292(b). In Hess, Judge Robinson approved the parties'

stipulation dismissing with prejudice all claims other than the monopoly maintenance claim, which remains pending. That same day, the Hess plaintiffs filed a Motion to Supplement the Record with evidence that the plaintiffs believe shows that Dealer Criterion 6 resulted in higher prices. The Current Action. On October 2, 2007, Nowak filed a complaint against Dentsply on behalf of itself and a putative class of all tooth dealers that have purchased pre-fabricated artificial teeth directly from Dentsply. It is a tag-along

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case to the government's case against Dentsply, as well as to the Hess and Jersey cases. (Dkt. No. 1). Like Hess, Nowak alleges that "Dentsply's conduct has caused Plaintiff and the other Class members to pay more for prefabricated artificial teeth than they otherwise would have absent" Dealer Criterion 6. (Compl. ¶ 39). Nowak bases its claim for injury solely on the decisions rendered by Judge Robinson and the Third Circuit in connection with the government action. (Compl. ¶¶ 7, 21-34, 40). Indeed, the complaint urges this Court to accept Judge Robinson's findings as "binding upon Dentsply in the instant action pursuant to the judicial principle of collateral estoppel." (Id. ¶ 34). On November 26, 2007, Dentsply filed its answer to Nowak's complaint. (Dkt. No. 10). STATEMENT OF QUESTION PRESENTED Whether this Court should transfer this action to the United States District Court for the District of Delaware pursuant to 28 U.S.C. § 1404(a) where the presiding chief judge in Delaware has presided over related litigation for over 7 years and where transfer is more convenient for the parties and witnesses.

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ARGUMENT A district court may transfer any civil action to any other district or division "where it might have been brought" "[f]or the convenience of parties and witnesses" and "in the interest of justice." 28 U.S.C. § 1404(a). The Third Circuit has articulated "an extensive list of factors" in ruling on a motion to transfer: (1) the plaintiff's choice of forum; (2) the defendant's choice of forum; (3) where the claim arose; (4) convenience of the parties as indicated by their relative physical and financial conditions; (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; (7) the enforceability of the judgment; (8) practical considerations that could make the trial easy, expeditious, or inexpensive; (9) the level of court congestion in the two fora; (10) 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 in diversity cases. In re Amendt, 169 Fed. Appx. 93, 96 (3d Cir. 2006) (holding that the district court properly transferred the case pursuant to § 1404(a) because "[a]djudicating almost identical issues in separate fora would waste judicial resources"). The relevant factors dictate that this Court should transfer this case to the District of Delaware.

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I.

NOWAK COULD HAVE FILED ITS COMPLAINT IN THE DISTRICT OF DELAWARE Section 1404 first requires that the transferee district be one in which the

plaintiff might have brought the action. The District of Delaware has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1337 and 15 U.S.C. §§ 2, 15. Furthermore, venue is proper in the District of Delaware under 15 U.S.C. § 22 and 28 U.S.C. § 1391 (b), (c), because Dentsply is a Delaware corporation. Delaware.
II.

Thus, Nowak could have filed its complaint in the District of

THE INTERESTS OF JUSTICE FAVOR TRANSFER TO THE DISTRICT OF DELAWARE A. The District of Delaware Is The Best Forum Because Judge Robinson Has Adjudicated The Sherman Act Section 2 Issues That The Nowak Complaint Presents

The District of Delaware is the ideal forum for this litigation because Judge Robinson has already considered and decided the Sherman Act Section 2 issues that the Nowak complaint presents as a result of her extensive involvement with the Dentsply cases since May 2000. There is a strong policy favoring the transfer of a related case to a judicial officer that has already adjudicated issues relating to the underlying facts and legal questions of the case. Job Haines Home for the Aged v. Young, 936 F. Supp. 223, 224 (D.N.J. 1996) (granting transfer where transferee judge presided over
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numerous earlier cases based on the same conduct because "[i]t would be a gross waste of judicial resources to start litigating this case from scratch in the District of New Jersey"). "Where the parties and issues are the same, or similar, and another court is already familiar with the case, bringing related litigation together in one forum ensures that `pretrial discovery may be conducted more efficiently, witnesses' time may be conserved, public and parties' litigation expenses may be reduced, and inconsistent results can be avoided.'" Id. at 233 (emphasis added) (quoting Cont'l Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960)). In fact, the presence of a judicial officer in the transferee court that has presided over related cases weighs so heavily in favor of transfer that "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." Ayling v. Travelers Prop. Cas. Corp., No. 99-3243, 1999 U.S. Dist. LEXIS 16716, at *1314 (E.D. Pa. Oct. 27, 1999) (granting transfer where the judge in the transferee court had presided over related cases involving different parties and facts and was "already familiar with the factual and legal issues of the putative class' allegations"); see also Jumara v. State Farm Ins. Co., 55 F.3d 873, 880 (3d Cir. 1995) (granting the motion to transfer venue "notwithstanding the proximity of the alternative fora"); Bank of Am. N.A. (USA) v. US Airways, Inc., No. 05-793-JJF, 2005 U.S. Dist. LEXIS 34902, *8-9 (D. Del. Dec. 21, 2005) (ordering transfer to
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the Eastern District of Virginia where the defendants were involved in Chapter 11 proceedings before Judge Stephen S. Mitchell, who was vastly more familiar with the nature of the claims in the case, the correct interpretation of his own orders, and the dispositive facts and thus "well positioned to quickly and efficiently resolve these and other issues"). In addition, the presence of related cases in the transferee court, involving similar claims and issues, strongly supports a transfer to that forum. See, e.g., In re Amendt, 169 Fed. Appx. 93, 96-97 (3d Cir. 2006) (holding that the district court properly transferred the case pursuant to § 1404(a) because "[a]djudicating almost identical issues in separate fora would waste judicial resources"); Woodall v. Piper Aircraft Corp., No. 82-1554, 1983 U.S. Dist. LEXIS 17465, at *16 (M.D. Pa. Apr. 25, 1983) ("The presence of a related action in the transferee forum has been considered an overriding factor in the balancing of interests."). In Liggett Group, Inc. v. R. J. Reynolds Tobacco Company, the court transferred an antitrust action in part because a related case was pending in the transferee forum, even though the two cases did not involve the same litigants and were not candidates for consolidation. 102 F. Supp. 2d 518, 539 (D.N.J. 2000). The court held that transfer was in the interests of justice because the two cases involved "similar issues" concerning alleged anti-competitive practices and thus should have "proceed[ed] before one tribunal." Id.
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Nowak, like several plaintiffs before it, challenges Dentsply's exclusive dealing policy under Section 2 of the Sherman Act. But that is precisely what the government did almost nine years ago in the original Dentsply case, and is the precise legal issue that Judge Robinson decided in Dentsply's favor after a fiveweek bench trial in 2002, supra. She currently presides over two related cases, Hess and Jersey, where the lawfulness of Dentsply's conduct under Section 2 is also at issue, supra. Moreover, Judge Robinson presided over another putative class action by "all individuals and entities who purchased false teeth" under the equivalent antitrust laws of sixteen states and the District of Columbia until the action was closed on March 28, 2003. Kaminer v. Dentsply Int'l, Inc., 1:99-cv00854-SLR (D. Del.).2 Thus, like Judge Mitchell in Bank of America, Judge Robinson is "simply in a far better position than this Court to expeditiously decide the critical questions" in the case. Bank of Am. N.A., No. 05-793-JJF, 2005 U.S. Dist. LEXIS 34902, at *8.3 As a result of Judge Robinson's stewardship of all the

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The United States District Court for the Southern District of New York had transferred that case to the District of Delaware pursuant to 28 U.S.C. § 1404(a). Hess, 2001 WL 624807, at *1 & n.1. Importantly, Nowak, Hess, Jersey and Kaminer are all putative class actions by purchasers of Dentsply's artificial teeth at different levels of the distribution chain ­ direct purchasers in Nowak, indirect purchasers in Hess and Jersey Dental, and purchasers of dentures in Kaminer. In contrast, the Universal and Lactona actions pending before this Court are individual actions by Dentsply's competitors who, unlike the plaintiffs in Nowak, Hess, Jersey and Kaminer, never purchased Dentsply's artificial teeth.
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related Dentsply cases, transferring this case to Judge Robinson would avoid an enormous and needless expenditure of this Court's resources. B. The District of Delaware Is Also The Best Forum Because Judge Robinson Has Adjudicated The Issue Of The Preclusive Effect Of Her Findings In The Underlying Government Litigation, And The Third Circuit's Reversal Of Her Opinion

Nowak alleges that the findings and conclusions of the Third Circuit, and the undisturbed findings of Judge Robinson are "conclusive" in the instant action against Dentsply, and thus Dentsply is estopped from contesting the same here. (Dkt. No. 1 ¶ 34). This is the core of Nowak's case. Judge Robinson has already adjudicated this issue in another context. The Hess plaintiffs recently argued that the Third Circuit had adjudicated the issues of whether the dental labs (Nowak's customers) had suffered injury from Dentsply's exclusive dealing policy. Judge Robinson held that plaintiffs were not entitled to collateral estoppel because antitrust injury was not litigated in the government action. Hess v. Dentsply, 2007 WL 2807292, at *7. Nowak has argued that the Third Circuit's opinion also decided whether the dealers were injured by the policy. Where, as here, the preclusive effect of another court's judgment is in question, the court that rendered the original judgment is best suited to preside over the later case and transfer to that judge is appropriate. See, e.g., Navigators Mgmt.
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Co., Inc. v. St. Paul Fire & Marine Ins. Co., No. 06 Civ. 599(LBS), 2006 WL 3317030, at *4 (S.D.N.Y. Nov. 9, 2006) (granting transfer because "it is appropriate to leave it to the [transferee court] to determine the preclusive effect of its prior judgment"); Reiffin v. Microsoft Corp., 104 F. Supp. 2d 48, 57 (D.D.C. 2000) (granting defendants' motion to transfer in part because the transferee forum "is in the best position to determine which claims or issues in the instant complaint are precluded by its own decision"); Weinberger v. Tucker, 391 F. Supp. 2d 241, 243 (D.D.C. 2005). In Weinberger, the defendants moved to dismiss the plaintiff's complaint on grounds of collateral estoppel. Weinberger, 391 F. Supp. 2d at 242. The basis of the defendant's motion was a prior opinion in a related case by Judge Claude M. Hilton in the Eastern District of Virginia. Id. Because the motion "turn[ed] on the preclusive effect" of Judge Hilton's opinion, the court sua sponte requested briefing on whether it should transfer the case to Judge Hinton. Id. The court noted that collateral estoppel prevents relitigation of "an issue that was (1) actually litigated; (2) determined by a valid, final judgment on the merits; (3) after a full and fair opportunity for litigation by that party; and (4) under

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circumstances where the issue was essential to the judgment. Id. at 243.4 The court found that "Judge Hilton appears to be in the best position to resolve these questions." Id. Thus, the court held that "the interests of justice strongly support a transfer to the court that reviewed and decided the prior litigation . . . , especially because this case turns on the preclusive effect of that court's judgment." Id. at 245. In contrast, the court held that "[l]itigating the matter here would `squander judicial resources' and would `run the risk of inconsistent judgments.'" (quoting Reiffin, 104 F. Supp. 2d at 55).5 For the same reasons, Judge Robinson is the ideal jurist to preside over the Nowak case. The fact that she has already decided a very similar issue in the related Hess case only further dictates that the District of Delaware is the best possible forum for this case. Moreover, Judge Robinson is currently considering Hess's motion to supplement the record with evidence that it believes shows that Dealer Criterion 6 resulted in supracompetitive prices to consumers. Nowak Id.

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The Third Circuit requires the party invoking collateral estoppel to satisfy the same four factors. Haize v. Hanover Ins. Co., 536 F.2d 576, 579 (3d Cir. 1976).

See also Bank of Am. N.A. (USA), 2005 U.S. Dist. LEXIS 34902, at *8-9 (granting the defendants' motion to transfer largely because the judge in the transferee district is "vastly more familiar" with the prior history in the case and is therefore "in a far better position than this Court to expeditiously decide the critical questions" in the case); Reiffin, 104 F. Supp. 2d at 53 (transferring a case involving facts and claims closely related to an action previously decided by the transferee

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alleges the exact same thing ­ i.e., Dentsply's exclusive dealing policy caused Nowak "to pay more for prefabricated artificial teeth than they otherwise would have paid." (Compl. ¶¶ 37, 39.) Transfer to Delaware will thus promote the interests of justice by avoiding duplicative litigation and inconsistent rulings on this issue, as well as by conserving judicial resources.
III.

THE DISTRICT OF DELAWARE IS A MORE CONVENIENT FORUM FOR THE PARTIES AND WITNESSES The Third Circuit's list of factors encompasses a wide variety of "private

interest" and "public interest" factors that courts may consider in deciding motions to transfer pursuant to § 1404(a). The Third Circuit has emphasized, however,

that "there is no definitive formula or list of factors to consider" in determining whether a transfer under § 1404(a) is appropriate. Jumara, 55 F.3d at 879. Rather, the court must consider the "relevant factors to determine whether, on balance the litigation would more conveniently proceed and the interests of justice be better served by transferring to a different forum." Id. (quoting 15 Charles A. Wright et al., Federal Practice and Procedure § 3847 (2d ed. 1986). On balance, the

remaining factors weigh in favor of transferring this action to the District of Delaware as well.

judge because that judge "knows best which points [plaintiff] raised, or was given the opportunity to raise" in the prior case).
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A.

Plaintiff's Choice Of Forum Is Not Entitled To Deference Because Nowak Does Not Reside In Pennsylvania And The Claim Did Not Arise In Pennsylvania

Although a plaintiff's choice of forum is generally accorded deference in § 1404(a) proceedings, a plaintiff's "choice is given less weight" where "a plaintiff chooses a forum other than his state of residence or the situs of the occurrence upon which the suit is based." KAB Enter. Co. v. Ursich Elec. Prods. Inc., No. 064361, 2007 U.S. Dist. LEXIS 27524, at *5 (E.D. Pa. Apr. 13, 2007) (granting defendant's motion to transfer); see also Auto. Techs. Int'l, Inc. v. Am. Honda Motor Co., No. 06-187 GMS, 2006 U.S. Dist. LEXIS 92249, at *4 (D. Del. Dec. 21, 2006) ("As an initial matter, the court notes that it will afford less deference to [plaintiff's] choice of Delaware as a forum because it is not its `home turf,' or principle place of business."). Here, as in KAB Enterprise, the plaintiff has no connection to Pennsylvania and Pennsylvania is not the "situs of the occurrence upon which the suit is based." Nowak is a Louisiana corporation, with a Mississippi business address. (Compl. ¶ 11.) Furthermore, Dentsply's complained-of conduct allegedly affected consumers of artificial teeth nationwide, not just those living in Pennsylvania. KAB Enter. Co., 2007 U.S. LEXIS 27524, at *5 (noting that because plaintiff's products are sold nationwide, there is not one situs of occurrence). Nowak's own complaint alleges that Dentsply has engaged in anti-competitive practices and monopolized

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the market for pre-fabricated artificial teeth throughout the United States. (Compl. ¶¶ 5, 20-22, 36.) Thus, Nowak's choice of forum is not entitled to deference. B. Keeping Nowak In Pennsylvania Does Not Facilitate Access To Documentary Evidence

The location of documentary evidence should only be considered in extreme circumstances. See, e.g., LG Elecs. Inc. v. First Int'l Computer of America, Inc., 138 F. Supp. 2d 574, 591 (D.N.J. 2001) ("The location of documentary proof is to be considered to the extent that the records could not be produced in the alternative forum." (citing Jumara, 55 F.3d at 879)). Furthermore, "[i]n light of current technology" access to documents "should not weigh heavily" in the court's analysis. KAB Enter. Co., 2007 U.S. LEXIS 27524, at *8. To the extent that location of documentary evidence is considered in this case, it is notable that the vast majority of the documents produced during discovery in the government litigation are located at Dentsply's outside counsel's offices in Washington, D.C. They are not located in Pennsylvania. C. The Related Pending Actions In Delaware Make Delaware More Convenient For The Parties And Witnesses

Where the same defendant is defending "at least two . . . factually and legally related cases," it is more convenient for parties and witnesses to "appear in one rather than two courtrooms." CIBC World Markets, Inc. v. Deutsche Bank

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Secs. Inc., 309 F. Supp. 2d 637, 650 (D.N.J. 2004). Here, it would be more convenient for the parties and witnesses to appear in Delaware alone, than to be compelled to testify in both Delaware and Pennsylvania.6 The presence of two competitor cases against Dentsply in this Court, Univac and Lactona, does not compel a different result, particularly given Judge Robinson's long history with Dentsply and her knowledge of the issues involved in this case. Ayling v. Travelers Prop. Cas. Corp., No. 99-3243, 1999 U.S. Dist. LEXIS 16716, *13-14 and n.4 (E.D. Pa. Oct. 27, 1999) (ordering transfer where the presence of a judicial officer in the transferee court who was already familiar with the facts and legal issues of a related case weighed so heavily in favor of transfer that "this consideration [was] 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."). Accordingly, on balance, it would be more convenient for the parties and witnesses to litigate this case in Delaware.

Wilmington is equally, if not slightly more convenient for the parties than Harrisburg. Neither location is particularly accessible for the plaintiff. However, there are multiple daily direct flights between New Orleans and Philadelphia, which is only twenty miles from Wilmington. In contrast, flying from New Orleans to Harrisburg requires a layover. For Dentsply, both locations are convenient, with Harrisburg a thirty-mile drive from York and Wilmington a seventy-mile drive.
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CONCLUSION For the foregoing reasons, Dentsply respectfully requests that the Court transfer this case to the District of Delaware. Dated: December 6, 2007 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 Defendant Dentsply International Inc.'s Brief In Support Of Its Motion To Transfer Venue contains 4,532 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: December 7, 2007

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CERTIFICATE OF SERVICE It is hereby certified that a copy of the foregoing document was served this 7th day of December 2007 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 Auto. Techs. Int'l, Inc. v. Am. Honda Motor Co., No. 06-187 GMS, 2006 U.S. Dist. LEXIS 92249 (D. Del. Dec. 21, 2006) 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) Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc. --- F. Supp. 2d ----, Civ. No. 99-255-SLR, 2007 WL 2807292 (D. Del. Sept. 26, 2007) Howard Hess Dental Labs. Inc. v. Dentsply Int'l, Inc., No. Civ. A. 99-255-SLR, 2001 WL 624807 (D. Del. March 30, 2001) Jersey Dental Labs. v. Dentsply Int'l, Inc. No. Civ. A. 01-267-SLR, 2002 WL 2007916 (D. Del. Aug. 27, 2002) KAB Enter. Co. v. Ursich Elec. Prods. Inc., No. 06-4361, 2007 U.S. LEXIS 27524 (E.D. Pa. Apr. 13, 2007) Navigators Mgmt. Co., Inc. v. St. Paul Fire & Marine Ins. Co., No. 06 Civ. 599(LBS), 2006 WL 3317030 (S.D.N.Y. Nov. 9, 2006) United States v. Dentsply Int'l, Inc., No. 99-005, 2006 U.S. Dist. LEXIS 94907 (D. Del. Apr. 26, 2006) Woodall v. Piper Aircraft Corp., No. 82-1554, 1983 U.S. Dist. LEXIS 17465 (M.D. Pa. Apr. 25, 1983)

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LEXSEE 2006 U.S. DIST. LEXIS 92249 AUTOMOTIVE TECHNOLOGIES INT'L, INC., Plaintiff, v. AMERICAN HONDA MOTOR CO., INC., ET AL, Defendants. Civil Action No. 06-187 GMS UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 2006 U.S. Dist. LEXIS 92249

December 21, 2006, Decided COUNSEL: [*1] For Automotive Technologies International Inc., Plaintiff: Richard K. Herrmann, LEAD ATTORNEY, Morris James LLP, Wilmington, DE. For American Honda Motor Company, a California corporation, Elesys North America Inc., a Georgia corporation, Defendants: Thomas C. Grimm, LEAD ATTORNEY, Morris, Nichols, Arsht & Tunnell, Wilmington, DE. For General Motors Corporation, a Delaware corporation, Defendant: Thomas C. Grimm, LEAD ATTORNEY, Morris, Nichols, Arsht & Tunnell, Wilmington, DE; Timothy Q. Delaney, Pro Hac Vice. For TS Tech USA Corporation, Defendant: Benjamin J. Schladweiler, Morris, Nichols, Arsht & Tunnell, Wilmington, DE. JUDGES: Gregory M. Sleet, United States District Judge. OPINION BY: Gregory M. Sleet OPINION United States Patent Nos. 5,901,978; 6,242,701; 6,325,414; 6,397,136; 6,422,595; 6,869,100; 6,757,602; 6,712,387; 6,942,248; [*2] 6,950,022; and 6,958,451, which are generally related to technology in automobile seats. On May 3, 2006, ATI filed a First Amended Complaint, adding two additional patents, U.S. Patent Nos. 6,484,080 and 6,850,824, and withdrawing one of the previously asserted patents, U.S. Patent No. 6,950,022. On June 16, 2006, ATI filed a separate action, C.A. No. 06-391, against Hyundai Motor America ("Hyundai"), BMW of North America LLC ("BMWNA"), and Kia Motors America Inc. ("Kia"). Ten of the 12 asserted patents in the above-captioned action are asserted in ATI's suit against Defendants Hyundai, BMWNA and Kia. Presently before the court are motions to transfer this action, and the related action, to the Eastern District of Michigan, pursuant to 28 U.S.C. § 1404(a). For the following reasons, the court will deny the motion. II. DISCUSSION Pursuant to Section 1404(a), the court may transfer a civil action "for the convenience of parties and witnesses, in the interest of justice, . . . to any other district . . . where it might have been brought." 28 U.S.C. § 1404(a). It is the movant's burden to establish the need to transfer, and "the [*3] plaintiff's choice of venue [will] not be lightly disturbed." Truth Hardware corp. v. Ashland Prods., Inc., No. C.A. 02-1541 GMS, 2003 WL 118005, at *1 (quoting Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995)). In other words, "unless the balance of convenience strongly favors a transfer in favor of defendant, the plaintiff's choice of forum should

MEMORANDUM I. INTRODUCTION On March 17, 2006, the plaintiff, Automotive Technologies International, Inc. ("ATI") filed the above-captioned action against American Honda Motor Company ("Honda"), Elesys North America Inc. ("Elesys"), and General Motors Corporation ("GM"), (collectively the "Defendants"), alleging infringement of

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prevail." Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970). When considering a motion to transfer, the court must determine "whether on balance the litigation would more conveniently proceed and the interest of justice be better served by transfer to a different forum." Jumara, 55 F3d. at 879. This inquiry requires "a multi-factor balancing test," embracing not only the statutory criteria of convenience of the parties and the witnesses and the interest of justice, but all relevant factors, including certain private and public interests. Id. at 875. These private interests include the plaintiff's choice of forum; the defendant's preference; whether the claim arose elsewhere; the convenience of the parties; the convenience of the expected witnesses; [*4] and the location of books and records, to the extent that they could not be produced in the alternative forum. 1 Id at 879. Among the relevant public interests are: "the enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; the relative administrative difficulty in the two fora resulting from court congestion; the local interest in deciding local controversies at home; [and] the public policies of the fora." Id. at 879-80. 1 The first three of these private interest factors collapse into other portions of the Jumara analysis. Thus, the court will consider them in the context of the entire inquiry only. See Affymetrix, Inc. v. Synteni, Inc., 28 F. Supp. 2d 192 (D. Del. 1998). As an initial matter, the court notes that it will afford less deference to ATI's choice of Delaware as a forum because it is not its "home turf," or principal place of business. See Waste Distillation Tech., Inc. v. Pan Am. Res., Inc., 775 F. Supp. 759, 764 (D. Del. 1991). [*5] Nonetheless, the court should not disregard a plaintiff's choice of forum where it has a rational and legitimate reason for choosing the forum. See Joint Stock Soc'y v. Heublein, Inc., 936 F. Supp. 177, 187 (D. Del. 1996). With these principles in mind, after consideration of the relevant factors, the court finds that the Defendants have not met their burden of demonstrating that transfer is appropriate. In the present case, ATI submits the following rationale for suing the Defendants in Delaware: "ATI, and at least one of the Defendants are incorporated in Delaware, all parties are subject to personal jurisdiction

in this forum, this forum's docket is noticeably faster to resolution of complex cases than the proposed transferee court and many others, and there was no other forum in which witnesses had a markedly more convenient location than this one." (D.I. 22 at 2.) The court finds that ATI's explanation is a rational and legitimate reason for choosing to sue the Defendants in Delaware. See Stratos Lightwave, Inc. v. E2O Communs., Inc., No. C. A. 01-309-JJF, 2002 U.S. Dist. LEXIS 5653, 2002 WL 500920, at * 2 (D. Del. Mar. 26, 2002). Further, having received the benefits [*6] of Delaware incorporation, a Defendant cannot now complain that another corporation has chosen to sue it here. See id. The court also finds that the location of books and records weighs against granting the Defendants' motion to transfer. The Defendants contend that their books and records necessary for litigation are in Michigan. A court should consider the location of books and records in its analysis. It must only do so, however, to the extent that the files could not be produced in the alternative forum. Jumara, 55 F.3d at 879. Here, the Defendants do not suggest that their documents could not be produced in Delaware, especially in this day and age where large-scale "document" productions are reduced to digitized records that parties transfer via electronic media. Accordingly, this factor does not weigh in favor of granting a transfer. The Defendants also contend that non-party witness convenience weighs in favor of a transfer. The briefs set forth in detail the parties' positions with regard to this factor. Essentially, the Defendants contend that travel to Delaware is less convenient than travel to Michigan for its third-party witnesses. (D.I. 18 at 6-7.) [*7] The court is not persuaded by the Defendants' arguments. Further, as this court has previously held, a flight to Delaware is not an onerous task warranting transfer. Truth Hardware Corp. v. Ashland Prods., Inc., No. C.A. 02-1541 GMS, 2003 WL 118005, at * 2 (D. Del. Jan 13, 2003). The court concludes that the convenience of the witnesses does not favor transfer in this case. Additionally, the court finds that the public interest factors do not weigh strongly in favor of transfer to Michigan. First, the court is not persuaded that any disparity in court congestion will be so great as to weigh strongly in favor of a transfer. 2 Second, it is well settled that patent rights are not considered state or local matters and do not implicate local interests. Jones Pharma, Inc. v.

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KV Pharm. Co., No. Civ. A. 03-786 JJF, 2004 U.S. Dist. LEXIS 2333, 2004 WL 323109, at * 3 (D. Del. Feb. 17, 2004). The court, therefore, finds no strong local interest in litigating in the transferee forum. Third, ATI's pending litigation in Michigan involves different patents. Thus, the court believes that this is not a relevant consideration in favor of transfer. See Mentor Graphics Corp. v. Quickturn Design Sys., Inc., 77 F. Supp. 2d 505, 513 (D. Del. 1999) [*8] (refusing to give "any weight whatsoever" to a mirror image action filed by the defendant). 2 Even accepting Defendants' position on the percentage of cases over three years old pending in the Eastern District of Michigan, this district's percentage appears to be lower. Compare (D.I. 22 at 24) with (D.I. 23 at 3, fn. 2). Finally, the court notes that the circumstances driving the court's decision to transfer in Alloc, Inc. v. Unilin Decor N.V. 3 are distinguishable from those in the present case. As ATI remarked in its letter of December 12, 2006 (D.I. 52), the patents before this court in Alloc involved the same patents at issue in the transferee forum. Here, the court is not aware of a single patent in this lawsuit that is asserted in any action in the Eastern District of Michigan. The court agrees with ATI that nothing in the Detroit lawsuits yields any potential savings in judicial economy, given the attenuated

connection between those patents and the patents here in suit. Accordingly, the [*9] court concludes that public interest factors do not favor transfer in the instant case. 3 Alloc, Inc. v. Unilin Decor N. V., C.A. Nos. 03-253-GMS, 05-587-GMS, 2006 U.S. Dist. LEXIS 78019, 2006 WL 3050815 (D. Del. Oct. 26, 2006). Dated: December 21, 2006 /s/ Gregory M. Sleet UNITED STATES DISTRICT JUDGE ORDER For the reasons stated in the court's Memorandum of this same date, IT IS HEREBY ORDERED that: The defendants' Motion to Transfer the above-captioned matter to the United States District Court for the Eastern District of Michigan (D.I. 17) is DENIED. Dated: December 21, 2006 /s/ Gregory M. Sleet UNITED STATES DISTRICT JUDGE

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LEXSEE 1999 U.S. DIST. LEXIS 16716 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. OPINION BY: RONALD L. BUCKWALTER OPINION MEMORANDUM & ORDER 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. 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

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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 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. 398-CV-1093, June 10, 1998, were dismissed by Judge Eginton on March 30, 1999. [*5] II. Legal Standard 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 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. 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, 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. 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

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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 Connecticut? action have been brought in

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? 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 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, unless the balance of convenience of the parties is strongly in favor of defendant, the plaintiff's choice of forum should prevail. See, 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. 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

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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 w