Opinion
CIVIL ACTION NO. 02-CV-7191.
May 21, 2003
MEMORANDUM AND ORDER
Plaintiff Barbara K. Martin brings this action against Defendant PNC Financial Services Group, Inc. ("PNC") alleging, inter alia, violations of anti-fraud provisions of the federal securities laws in connection with PNC's financial reporting obligations. Now before the Court is PNC's Motion to Transfer Venue. For the following reasons, the Court will deny the Motion.
I. Background
Plaintiff is an individual who resides in West Grove, Pennsylvania. PNC is a corporation with headquarters in Pittsburgh, Pennsylvania, and offices in Chester County, Pennsylvania.
Plaintiff originally brought this action in the Court of Common Pleas of Chester County. The complaint raised a cause of action sounding in tort based upon the common law actions of fraud and misrepresentation. However, because the complaint also alleged violations of federal law, the case was removed to federal court.
PNC states that beginning in February 2002, it was sued in twelve purported class actions brought under federal securities law. (PNC Mem. ¶ 2.) These actions have been consolidated in the Western District of Pennsylvania before the Honorable Robert J. Cindrich under the caption In re PNC Financial Services Group, Inc. Securities Litigation, Civil Action No. 02-CV-271 ("the lead case" or "the consolidated action"). (Id.) PNC states that the present action is also related to the lead case because it arises from the same facts and circumstances, includes substantially identical claims, and involves largely the same discovery as the consolidated action pending in the Western District of Pennsylvania. (Id.) For these reasons, PNC has moved for a transfer of venue under 28 U.S.C. § 1404(a).
In support of its Motion, PNC attached copies of eleven consolidation orders signed by Judge Cindrich. (PNC Motion, Exhibit A.) These one-page orders each find that the case captioned in that particular order is related to the lead case. The orders also consolidate the case captioned in that order with the lead case. PNC also attached an order in which Judge Cindrich appoints lead Plaintiff and approves of co-lead and liason counsel in the lead case. (PNC Motion, Exhibit B.).
In her opposition to PNC's Motion, Plaintiff denies that the present action is related to the consolidated action pending in the Western District of Pennsylvania. Plaintiff further states that she has no knowledge of other lawsuits against PNC and that she has received no notice that she is potentially a member of any class of litigants. (Pl. Answer to Motion to Transfer Venue at ¶ 2.)
II. Analysis
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). When deciding a forum non conveniens motion, a court must "consider all relevant factors to 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 v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995) (citation and internal quotation marks omitted). Courts "have considered a number of private and public interest factors." Remick v. Manfredy, 138 F. Supp.2d 652, 655 (E.D. Pa. 2001).
Because the parties do not contest that venue would be proper in this District, PNC's Motion is properly analyzed as a forum non conveniens motion.
The private factors include: (1) the plaintiff s forum preference as manifested in the original choice; (2) the defendant's preference; (3) whether the claim arose elsewhere; (4) the convenience of the parties as indicated by their 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; and (6) the location of books and records, but only to the extent that the files could not be produced in the alternative forum. The public interests include: (1) the enforceability of the judgment; (2) practical considerations that could make the trial easy, expeditious or inexpensive; (3) the relative administrative difficulty in the two fora resulting from Court congestion; (4) the local interest in deciding local controversies at home; and (5) the familiarity of the trial judge with the applicable state law in diversity cases."Id. at 655 (citing Jumara, 55 F.3d at 879). Additionally, the presence of related cases in the transferee forum is a reason to grant a transfer.See Continental Grain Co. v. Barge FBL-585, 364 U.S. 19, 26 (1960) (permitting two cases involving precisely the same issues to proceed simultaneously in two different district courts exhibits the wastefulness of time, energy and money that § 1404(a) was designed to prevent);Webber v. Basic Comfort Inc., 155 F. Supp.2d 283,286 (E.D. Pa. 2001);Prudential Ins. Co. of America v. Rodano, 493 F. Supp. 954, 955 (E.D. Pa. 1980).
PNC, as the moving party, has the burden of establishing the need for transfer of venue. AT T Corp. v. PAB, Inc., 935 F. Supp. 584, 592 (E.D. Pa. 1996). Furthermore, because Plaintiff's choice of forum is to be given considerable weight, this burden is greater than a mere preponderance of the evidence. Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756 (3d Cir. 1973); see also Jumara, 55 F.3d at 879 ("[I]n ruling on defendants' motion the plaintiff s choice of venue should not be lightly disturbed.") (citations and internal quotation marks omitted); Am. Argo v. United States Fid. Guar. Co., 590 F. Supp. 1002, 1004 (E.D. Pa. 1984) ("Plaintiff's choice of forum is given paramount consideration.").
The Court concludes that PNC has not met its burden. The only argument offered by PNC in support of transfer is that this action is related to the consolidated action in the Western District of Pennsylvania. Although PNC asserts that the present action arises from the same facts and circumstances, includes substantially identical claims, and will necessarily involve largely the same discovery as the action pending in the Western District of Pennsylvania, PNC has failed to present evidence to support these assertions. In Plum Tree. Inc. v. Stockment, 488 F.2d 754 (3d Cir. 1973), the Third Circuit held that because the defendants did not support their motion to transfer with any affidavits, depositions, stipulations, or other documents containing facts that would tend to establish the necessary elements for transfer under 28 U.S.C. § 1404(a), there was insufficient evidence before the district court upon which it could base an order for transfer. Plum Tree, 422 F.2d at 756. The orders PNC attached to its Motion provide no information about whether the present case is related to the lead case. Rather, these orders only show that there are several cases pending in the Western District of Pennsylvania in which PNC has been named a defendant and that eleven of those cases were deemed sufficiently related to warrant consolidation with the lead case. Accordingly, because PNC has failed to provide any evidence that the present case is related to a case pending in the proposed transferee forum and because this is the only argument advanced by PNC in support of transfer, the Court finds no basis upon which to justify the proposed transfer.
III. Conclusion
For the foregoing reasons, the Court will deny PNC's Motion for Transfer of Venue. An appropriate Order follows.
ORDER
_____ AND NOW, this _____ day of May, 2003, upon consideration of Defendant's Motion to Transfer Venue (docket no. 2), Plaintiff's Response (docket no. 4), and Defendant's Reply (docket no. 5), IT IS ORDERED that the Motion is DENIED for the reasons stated in the accompanying Memorandum.