Opinion
Civil Action No. 2:18-cv-00384
09-27-2018
JDTECH INDUSTRIES, INC., Plaintiff, v. MORTECH MANUFACTURING COMPANY, INC., Defendant.
Judge David S. Cercone
REPORT AND RECOMMENDATION
I. RECOMMENDATION
This action is filed by Plaintiff JDTech Industries ("JDTech"), a Pennsylvania corporation, against Defendant Mortech Manufacturing Company ("Mortech"), a California corporation. It concerns Defendant's termination of the parties' business dealings with regard to the sale and distribution of medical biopsy bags to customers in Pennsylvania and other states. The Court concludes that it has specific personal jurisdiction over the Defendant and is a proper venue for this diversity-based action. It further concludes that Defendant is not entitled to dismissal under the doctrine of forum non conveniens or transfer to the Central District of California pursuant to 28 U.S.C. § 1404(a). It is therefore respectfully recommended that the Defendant's Motion to Dismiss and Alternative Motion to Transfer, ECF No. 18, be denied.
II. REPORT
A. Factual and Procedural History
JD Tech is a "reseller of equipment used in anatomic pathology laboratories" in the Eastern United States and "an international reseller of biopsy bags." Plaintiff's Brief in Opposition to Motion to Dismiss, ECF No. 21, Ex. 1 (Affidavit). Plaintiff has no office or employees outside of Pennsylvania; all business emanates from, and all corporate records are maintained at, its office in Grove City, Pennsylvania. ECF No. 21. JDTech has an extensive customer base in Pennsylvania. Id. Mortech is a California manufacturer of anatomic pathology laboratory equipment with international sales. Id. In March 2005, JDTech and Mortech entered into a written, commission-based Regional Sales Agreement pursuant to which JD Tech acted as regional sales representative for Mortech and its medical products- developing, soliciting orders from, and servicing Pennsylvania and other "Northeast region" customers. Id. Also in approximately March 2005, JD Tech and Mortech entered into an agreement, pursuant to which JDTech also solicited orders from customers for a non-Mortech product of potential customer interest - i.e., biopsy bags manufactured by a third party. Mortech did not sell biopsy bags at that time. Id. The parties exchanged communications, i.e., by email and telephone, regarding this additional business arrangement, which JDTech—having prior knowledge of both (1) existing and potential customers and (2) a reputable supplier—proposed as a "joint venture" opportunity. Id. In an email of March 2005, Mortech noted it "seem[ed] like an easy product introduction" and indicated its intent that the "arrangement . . . last for the duration of the product life." Id. JDTech assertedly "identified approximately 250 customers . . . including many" in Pennsylvania. Id. Under the parties' business agreement and practice, from 2005 through 2017, JDTech "identified and developed" customers, obtained customer biopsy bag orders and provided them to Mortech. Mortech maintained a supply of this product at its up-front expense and directly processed, invoiced and collected payment on customer orders, distributing this medical product, as well as its own, to Pennsylvania customers. Id. Mortech retained the first 10% of biopsy bag sales profit in consideration of its expenses and the remaining profit was split equally between Mortech and JDTech. Id. From March 2005 to December 2017, Mortech mailed photocopies of invoices for biopsy bag purchases and a profit-sharing check to JDTech in Pennsylvania on a monthly basis. Id. JDTech asserts that Mortech's total biopsy bag sales invoices to JDTech-solicited Pennsylvania customers for the years 2014-2017 were "in excess of $1.5M". Id. Customers included, e.g., Children's Hospital of Pittsburgh and Thermo Fisher Scientific. ECF No. 21, Ex. 1.
In late December 2017, JDTech permissibly terminated the parties' Regional Sales Agreement with proper notice but expressly did not terminate the separate biopsy bag venture. Id. at 4. Shortly thereafter, Mortech discontinued monthly profit-sharing payment to JDTech and in early 2018 Mortech's counsel advised JDTech's counsel in writing that it was discontinuing the parties' biopsy bag business relationship. Mortech continues to sell biopsy bags, including to customers identified and developed by Plaintiff.
JDTech's Complaint was filed on March 23, 2018 and includes counts for breach of contract, breach of implied contract, unjust enrichment, and breach of fiduciary duty. ECF No. 1. Mortech first filed a Motion to Dismiss (ECF No. 7) on May 9, 2018. Plaintiff objected to this Motion as improper for failure to comply with this Court's previous Order requiring conference and certification; and on May 23, 2018 the Motion was denied without prejudice. ECF No. 11. Mortech's Motion to Dismiss or in the Alternative to Transfer was refiled on June 6, 2018 and is pending. ECF No. 18. Its Brief in Support, in its original form and as subsequently refiled, essentially asserts that the cause of action turns on the termination of a California contract for "sales commissions", and the substance of the contract and Mortech's conduct as to Pennsylvania "orders" is irrelevant to this Court's personal jurisdiction over Mortech in this action. See ECF No. 8, ECF No. 18.
The assertion of Plaintiff's Complaint, and its position in opposition to Defendant's Motion, is that this case "arises out of the failure of Moretech to pay JDTech its share of profits, pursuant to the parties' joint venture, for the shipment and sale of biopsy bags to companies located in Pennsylvania and other states." Plaintiff's Brief in Opposition to Motion to Dismiss, ECF No. 21, at 2. Plaintiff therefore maintains that this Court is a proper venue for the instant action—in which the Court's subject-matter jurisdiction is based on diversity under 28 U.S.C. § 1332—because both (a) a substantial part of the events giving rise to the claim occurred here, and (b) Defendant is subject to personal jurisdiction here. Plaintiff also asserts that, in considering transfer, this Court must give proper weight/deference to Plaintiff's choice of forum under the case law pertaining to discretionary transfers and that the relevant factors weigh in favor of retention of jurisdiction in this District.
Defendant asserts that the case is "based upon Defendant's alleged breach of obligation to pay sales commissions" and "not issues with orders sent to Pennsylvania". Defendant's Reply to Plaintiff's Response, ECF No. 22 at 1. Defendant maintains that (1) this action should be dismissed under 12(b)(2) for lack of personal jurisdiction over Defendant, a California corporation, or under 12(b)(3) for improper venue, "for many of the same reasons that there is no personal jurisdiction" add as no substantial part of the relevant events/omissions occurred in the Western District of Pennsylvania; and in the alternative (2) for reasons of fairness, convenience, justness, efficiency, and other reasons of private and public interest, California is a more appropriate forum for this action and it ought therefore be either (a) dismissed under the doctrine of forum non conveniens or (b) transferred under 28 U.S .C. § 1404(a). See ECF No. 19; ECF No. 22.
B. Applicable Standards Regarding Motions to Dismiss or Transfer
The Court considering a motion to dismiss "must accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn therefrom." Nami v. Fauver, 82 F.3d 63, 65 (3d Cir.1996). Once a defendant has filed a motion to dismiss for lack of jurisdiction, the plaintiff has the burden of proving, by a preponderance of the evidence, that jurisdiction exists in the forum state. See, e.g., IMO Industries, Inc. v. Kiekert AG, 155 F.3d 254, 257 (3d Cir.1998); Carteret Sav. Bank, F.A. v. Shushan, 941 F.2d 141, 146 (3d Cir.1992). The Court accepts the plaintiff's allegations as true and resolves all doubts in its favor. The plaintiff must present evidence that demonstrates a prima facie case for the exercise of personal jurisdiction, i.e., in a case of specific jurisdiction, sufficient minimum contacts. See Mellon Bank (East) PSFS, Nat. Ass'n v. Farino, 960 F.2d 1217, 1223 (3d Cir.1992). See also ECF No. 21 at 8-9. If the plaintiff succeeds, the burden then rests with the defendant to demonstrate that an exercise of personal jurisdiction by the forum state would nonetheless be violative of due process. In considering a motion to dismiss for improper venue, the Court must generally accept the allegations as true, and is required to view the facts in the light most favorable to the Plaintiff; the burden of proof is on the defendant. See ECF No. 21 at 9 (providing case citations).
In reviewing a motion to dismiss on grounds of forum non conveniens or, in the alternative, transfer from a proper venue pursuant to 28 U.S.C. § 1404(a), the factors examined by the Court include convenience to the parties and witnesses, and the interests of justice. See Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). The party seeking to transfer the case has the burden of establishing the need for transfer. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.1995); id. at 875 (holding that, once court has determined that venue is proper, it must apply a balancing test to determine whether case should be transferred under § 1404(a)).
The language of 28 U.S.C. § 1404(a), which governs cases in which the forum court has proper venue, provides simply that "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." Section 1404(a) is an appropriate authority for discretionary transfer where venue is proper. See United States v. Berkowitz, 328 F.2d 358 (3d Cir.1964). However, a plaintiff's choice of forum is generally a significant consideration. See ECF No. 21 at 9 (noting with citation that courts ordinarily "defer to the plaintiff's choice of forum, especially where [it] is his home forum").
C. Analysis
1. Constitutional Exercise of Specific Personal Jurisdiction and Venue
a. Precondition of a Determination of Personal Jurisdiction; Overlap of Minimum Contacts and Venue Analysis
The necessity of resolving questions of jurisdiction prior to consideration of a Motion for Dismissal or Transfer of a case on grounds of forum non conveniens or under 28 U.S.C. § 1404(a) has been addressed by several Circuit Courts with varying results. The Court of Appeals for the Third Circuit has held that a court must have concluded that it possesses personal jurisdiction over a defendant before considering the appropriateness of dismissal under the common law doctrine of forum non conveniens. Malaysia Internat'l Shipping Corp. v. Sinochem Internat'l Co., Ltd., 436 F.3d 349 (3d Cir.2006). In contrast, the Third Circuit previously held that a court need not reach such conclusion prior to effecting a § 1404(a) transfer of an action to another District Court. See Berkowitz, 328 F.2d at 361 (concluding that district court has power to transfer under either 1404 or 1406 "whether the court in which [the case] was filed ha[s] personal jurisdiction or not") (quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962)). A reading of the language of the statutory provisions regarding transfer suggests that they were intended to turn on proper venue. And the question of venue may rely on the establishment of personal jurisdiction through minimum contacts or a "substantial events" analysis addressed largely by consideration of the same allegations. See 28 U.S.C. § 1391. In light of the framing of Defendant's motion and the overlapping analysis between an exercise of specific personal jurisdiction and the existence of proper venue, this Report will first address whether Plaintiff has made a prima facie showing that Defendant is properly subject to personal jurisdiction under the law of the state where this Court sits, i.e ., Pennsylvania. See F/V Anna Maried, N.J. v. F/V Anna Marie, 2006 WL 995411, *1 n. 1 (D.N.J. April 11, 2006) (where defendants asserted lack of personal jurisdiction, that issue would be discussed at the outset) (citing Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir.1995).
b. Considerations to an Exercise of Personal Jurisdiction by the Forum State
Personal jurisdiction may be either general or specific. General jurisdiction is established when a defendant has engaged in "systematic and continuous" contacts with the forum state. Specific jurisdiction is present when the claim is related to and arises out of a defendant's "minimum contacts" with the forum such that he should reasonably anticipate being hailed into court there. IMO Industries, 155 F.3d at 259; see also Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir.2001).
As the Supreme Court and the Third Circuit have discussed, minimum contacts is a "fair warning" requirement that must "take into account the relationship among the forum, the defendant and the litigation". Burger King Corp. v. Rudzewicz, 471 U.S. 462, 477, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985); Mellon Bank (east) PSFS, Nat'l Ass'n v. Farino, 960 F.2d 1217, 1221 (3d Cir.1992). It may be "satisfied if the defendant has purposefully directed [his] activities at residents of the forum." Burger King, 471 U.S. at 462 (quotations omitted). Personal jurisdiction may be further understood to require a showing of "'some act by which the defendant purposefully avails [itself] of the privilege of conducting activities within the forum state, thus invoking the benefits and protections of its laws.'" Toys 'R' Us, Inc. v. Step Two, S.A., 318 F.3d 446, 451 (3d Cir.2003) (quoting Asahi Metal Indus. Co. v. Superior Ct., 480 U.S. 102, 109, 107 S.Ct. 1026, 94 L.Ed.2d 92 (1987)); see also Fed.R.Civ.P. 12(b)(2); World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980) (holding that the contacts must demonstrate that defendant "has [purposefully] availed [him]self of the benefits and protections of that state"). In contrast, specific jurisdiction cannot be the "result of random, fortuitous or attenuated contacts." Id. at 475. Nor may it be based upon the "unilateral activity" of another. Id. The District Courts have been directed to "approach ... each case individually and take ... a realistic approach to analyzing a defendant's contacts with a forum." Miller Yacht Sales, Inc. v. Smith, 384 F.3d 93, 99-100 (3d Cir.2004).
c. Minimum Contacts Analysis
The Court notes the persuasiveness of Plaintiff's analysis concerning the Defendant's contacts, i.e., its purposeful availment of the privilege of conducting activities with Pennsylvania. See ECF No. 21 at 10-11 (noting that Mortech has both shipped merchandise directly into, and contracted to supply things in, the Commonwealth); Asahi, supra. The Court further notes the record indications that Mortech has transacted commercial business in Pennsylvania directly or by an agent for over a decade. This Report directs its analysis to whether Defendant consented to Pennsylvania's exercise of specific personal jurisdiction over it by deliberate contact with regard to the substance of the cause of action—contact from which Defendant could reasonably anticipate being haled into court in Pennsylvania. See ECF No. 21 at 14 (correctly framing analysis as whether defendant purposefully directed activity toward Pennsylvania, litigation arises out of or relates to such activity, and defendant's contacts are such that jurisdiction comports with fair play and substantial justice); ECF No. 22 (citing same analysis); O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 317 (3d Cir. 2007). See also ECF No. 22 at 2 ("When determining jurisdiction over a breach of contract claim, the Court must look at the totality of the circumstances, including "the location and character of the contract negotiations, the terms of the contract, and the parties' actual course of dealing.") (quoting Remick v. Manfredy, 238 F.3d 248, 256 (3d Cir. 2001)).
The Complaint alleges that Defendant was in purposeful related contact with the forum State. The Court notes that Defendant negotiated and engaged in business dealings with a Pennsylvania company with its principal place of business in Pennsylvania for the purpose of profiting from sales and distributions of medical product, including to Pennsylvania customers, and that it knowingly engaged in electronic mail and phone communications with, as well as mailings to, JDTech in Pennsylvania for these purposes. See ECF No. 21 at 14-15; O'Connor, 496 F.3d at 317 (first prong of specific jurisdiction is that defendant "must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum"). Compare ECF No. 22 at 2 (Mortech "did not command JDTech to make sales in Pennsylvania" and was not interested in "people in Pennsylvania specifically"; "Mortech's contacts with Pennsylvania are unrelated and irrelevant to the instant dispute."); id. at 4 (asserting that Defendant did not "purposefully direct its activities at Pennsylvania" where Plaintiff initiated business dealings, and Defendant did not direct or control manner of sale). A characterization of the action-related conduct as "unilaterally" Plaintiff's, if intended, would be meritless. Cf. ECF No. 22 at 5.
The Court further observes that this case involves questions of resolution of the parties' rights under an agreement not formalized as a written contract but arranged through emails and telephone calls, with evidence of mutual performance for a period of approximately twelve (12) years. Potential factual disputes as to the parties' actions and related events regarding both (1) business dealings and understandings with - and alleged harm to - a Pennsylvania corporation, and (2) Defendant's engagement with the Pennsylvania corporation Plaintiff for the Pennsylvania and other regional solicitation, sale and distribution of medical biopsy bags, will be fundamental to the action. Compare Rotondo Weinreich Enterprises, Inc. v. Rock City Mechanical, Inc., 2005 WL 119571, *6 (E.D. Pa. Jan 19, 2005) (concluding court lacked personal jurisdiction over Tennessee defendant negotiating subcontract construction work to be performed in its entirety in Kentucky for Pennsylvania plaintiff, despite exchange of correspondence and contract documents, conversations by telephone, and e-mails, where contract did not create long-term or substantial ties with forum state); id. at *5 ("[T]he contract at hand did not anticipate that any part of its performance would take place in Pennsylvania."); Novacare, Inc. v. Strategic Theracare Alliance, 1999 WL 259848 (E.D.Pa. April 30, 1999) (court looks to "contractual negotiations and contemplated consequences" rather than simply the existence of an agreement); id. at *8 (finding defendant did not purposefully create a "substantial connection" with Pennsylvania where all contract services were to be performed in California); id. (phone calls and letters counted toward the minimum contacts necessary for jurisdiction, but insufficient alone); id. at *7 (declining to find jurisdiction where underlying agreements gave defendants no "reason to contemplate any consequences" within Pennsylvania). Here, quite to the contrary, the parties' course of dealings indicate Defendant's intent to avail itself of the benefits and protections of Pennsylvania law, and they directly related to both parties' undertakings of roles in joint commerce in Pennsylvania. See ECF No. 21 at 14 (noting that JDTech accepted Mortech's email terms in Pennsylvania, Pennsylvania sales were a purpose of the business arrangement, Mortech "billed and collected money from Pennsylvania customers, shipped biopsy bags directly to customers in Pennsylvania, deducted a shipping and handling fee for the biopsy bags, and remitted checks for JDTech's share of the profits to JDTech in Pennsylvania"). Cf. ECF No. 22 at 3 (Mortech's citation to Rotondo, supra as a case which "the present case matches"); id. at 6 (asserting that fact that products were "sold pursuant to the parties' arrangement to third parties located in Pennsylvania . . . ha[d] nothing to do whatsoever with Plaintiff's claims against Defendant, which are principally premised" on a contention of improper termination).
Defendant's asserted basis for lack of personal jurisdiction in analogy to Rotondo include that the purported contract "did not create long-term ties with Pennsylvania", Plaintiffs "activities were to be performed outside Pennsylvania", "the parties made no mention of Pennsylvania" and Plaintiff did not "market itself as only doing business in Pennsylvania". See ECF No. 22. Unlike Pennsylvania's long-arm statute, Defendant's reach exceeds its grasp.
See also H. Lewis Packaging, LLC v. Spectrum Plastics, Inc., 296 F.Supp.2d 234, 240 (D. Conn. 2003) (finding that "continuing course of conduct, including telephone calls, commission payments, and affiliation with the forum through business cards [was] sufficient to provide defendant with fair warming that acts or omissions may require it to defend a lawsuit" there).
Accordingly, this Report concludes that Defendant's alleged telephone and correspondence contact with Pennsylvania corporation JDTech, business relationships with JDTech for the purpose of the sales and distribution of medical products to Pennsylvania and other regional customers, and conduct in long-term performance of the parties' agreement and joint Pennsylvania commerce are sufficient to support an exercise of specific personal jurisdiction as to this action for damages turning on the parties' business dealings with regard to the initiation, development, performance and termination of their joint commercial enterprise. Plaintiff has met its burden of establishing sufficient minimum contacts in the face of a personal jurisdiction challenge.
d. Constitutional Exercise in the Presence of Sufficient Minimum Contacts
The Court concludes that it may constitutionally proceed to exercise jurisdiction over Defendant. Once minimum contacts with the forum state are established, jurisdiction may be exercised so long as to do so comports with "traditional notions of fair play and substantial justice." Vetrotex Certainteed Corp. v. Consolidated Fiber Glass Prods., Co., 75 F.3d 147, 150-51 (3d Cir.1996) (quoting International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945)). See also ECF No. 21 at 11-12; ECF No. 19 at 7. More particularly, the burden of proof is then on the defendant to demonstrate the presence of other considerations that render the exercise of jurisdiction unreasonable. See Inamed Corp. v. Kuzmak, 249 F.3d 1356, 1360 (Fed.Cir., 2001). Factors to be considered in this component of the jurisdictional test are: (a) the burden on the Defendant; (b) the forum state's interests in adjudicating the dispute; (c) the Plaintiff's interest in obtaining efficient resolution of the controversies; and (d) the shared interests of the judiciary and States in promoting efficiency and furthering fundamental social policy. See, e.g., Miller Yacht Sales, 384 F.3d at 97 (quoting Burger King, 471 U.S. at 477).
Applying the factors to the record, it clearly appears that (a) Defendant, an international distributor, would not be unduly burdened by defending this action in Pennsylvania, a state in which it has been engaged in commerce with Plaintiff; (b) JDTech is a Pennsylvania corporation with its principal place of business in Pennsylvania, and the action concerns putative harm to it arising from business dealings by which Defendant profited through sales and distribution of products to Pennsylvania and other regional customers - Pennsylvania has an interest in providing a forum to Plaintiff and protecting it from conduct alleged; (c) for the same reasons, Plaintiff's interest in obtaining efficient resolution weighs in favor of maintenance of this action in this forum; and (d) for the same reasons, interests of efficiency and general social policy also favor resolution of the parties' underlying disputes in this District. See ECF No. 21 at 13; id. at 16 ("This case arose when Mortech breached its longstanding business relationship with a Pennsylvania company which included shipping product to Pennsylvania, mailing invoices and profit-sharing checks to JDTech in Pennsylvania, and recurrent business communications with JDTech in Pennsylvania"). See also discussion of private and public factors weighing under Section 1404(a), infra.
2. Dismissal under the Common Law Doctrine of Forum Non Conveniens or Transfer under Statutory Provisions
a. General Background
In federal courts, the common law doctrine of forum non conveniens now serves a limited purpose, and is generally employed by a District Court to dismiss a case when the more convenient forum is in a foreign country. See, e.g., Toll Bros., Inc. v. Nationwide Property & Casualty Ins. Co., 2005 WL 2600207, at *2 n. 1 (E.D.Pa. Oct.13, 2005) (noting that "the federal doctrine of forum non conveniens has continuing application only in cases where the alternative forum is abroad"). Other similar considerations are now often governed by the statutory provisions of 28 U.S.C. § 1404(a), which authorizes a District Court with proper venue to transfer a case to another District Court "for the convenience of the parties and witnesses" and "in the interest of justice."
The Court notes that Eurofins Pharma Holdings v. Bioalliance Pharma SA, 623 F.3d 147 (3d Cir. 2010) and Auxer v. Alcoa, Inc., 2010 WL 1337725 (W.D. Pa. Mar. 29, 2010), cited in Defendant's Brief in Support, are international cases. See ECF No. 19 at 8. --------
b. Venue and Transfer Analysis
As discussed supra, in an action such as this, where federal subject-matter jurisdiction is based solely upon diversity, venue is governed by 28 U.S.C. § 1391. As Pennsylvania is not Defendant's state of residence, venue may lie in this judicial district if (a) "a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated" here, or (b) defendant is subject to personal jurisdiction and "there is no district in which the action may otherwise be brought." See § 1391. Clearly, and as set forth above, a substantial part of the events or omissions giving rise to the claim occurred, with Defendant's knowledge and intent, in Pennsylvania. The action arises from Defendant's termination of long-term business dealings with a Pennsylvania corporation that were implemented in, and had intended effects occurring in, Pennsylvania, which termination was to Plaintiff's alleged harm by way of, e.g., Defendant's cessation of monthly mailing of Plaintiff's net profit share of invoices. Venue is proper under 28 U.S.C. 1391(b). Cf. ECF No. 21 at 17.
In considering a discretionary transfer under § 1404(a), in accordance with the express terms of the statute, the Court must evaluate the convenience of the parties, the convenience of the witnesses, and the interests of justice. See 1404(a). A "plaintiff's choice of venue should not be lightly disturbed" and its choice of its home forum is given significant weight. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir.1995). The private interests considered include the parties' preferences, "the convenience of the parties as indicated by their relative physical and financial condition", the unavailability of witnesses for trial, and the situs of books and records. Id. (citing 15 Wright, Miller & Cooper § 3848-3853). Applicable public factors include the enforceability of the judgment; factors that could make the trial easier, more expeditious, or less expensive; relative administrative difficulties pertaining to court congestion; the local interest in deciding local controversies; the public policies of the fora; and the familiarity of the trial judge with applicable state law in diversity cases. Jumara, 55 F.3d at 879 (citing Wright, Miller & Cooper § 3854). The underpinnings of this action require that the Court look to the agreements, course of business dealings, and events regarding performance and termination of joint commerce effected in Pennsylvania.
For these reasons, the Court further concludes that Defendant has not met its burden of showing that "the convenience of the parties and witnesses, and the interest of justice weigh in favor of [a] transfer" to the California District Court. Rather, considering the balance of public and private interests entailed, this Court is the more proper and convenient forum. See ECF No. 21 at 19-21 (appropriately noting Defendant's burden and facts relevant to the factors above, including home forum, location of payments/failure to pay, potential third-party witness customer location, and this Court's lesser pending case load and ADR program); id. (parsing Defendant's that the Regional Sales Agreement's forum selection clause governs the parties' biopsy bag business dealings, or argument for transfer on grounds of case-citation-implied "related dispute" in California). See also ECF No. 19 at 13 (citation to cases in which locus of alleged misrepresentations/fraud influenced transfer analysis as analogous by virtue of Plaintiff's "suit for representations or promises made to it by another party", i.e., its breach of contract action).
III. CONCLUSION
It is therefore respectfully recommended that the Defendant's Motion to Dismiss and Alternative Motion to Transfer, ECF No. 18, be denied.
In accordance with the Magistrate Judge's Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Local Rule of Court 72.D.2, the parties are allowed fourteen (14) days from the date of service to file objections to this report and recommendation. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights. Dated: September 27, 2018
BY THE COURT:
/s/ Lisa Pupo Lenihan
Lisa Pupo Lenihan
United States Magistrate Judge cc: Counsel of record