American Standard, Inc. v. Bendix Corp., Civ. A. No. 73CV670-W-B.
| Decision Date | 29 January 1980 |
| Docket Number | Civ. A. No. 73CV670-W-B. |
| Citation | 487 F. Supp. 254 |
| Parties | AMERICAN STANDARD, INC., Plaintiff, v. THE BENDIX CORPORATION, Defendant. |
| Court | U.S. District Court — Western District of Missouri |
COPYRIGHT MATERIAL OMITTED
Warwick R. Furr, II (argued), Henry M. Moore and Randall C. Allen of Lewis, Mitchell & Moore, Washington, D. C., John C. Noonan and Randall E. Hendricks, of Stinson, Mag & Fizzell, Kansas City, Mo., Austin B. McGregor, New York City, for plaintiff American Standard, Inc.
Jerome T. Wolf (argued) of Spencer, Fane, Britt & Browne, Kansas City, Mo., Erwin N. Griswold of Jones, Day, Reavis & Pogue, Eldon H. Crowell, W. Stanfield Johnson and Richard McMillan, Jr., of Crowell & Moring, Washington, D. C., and Noel C. Crowley, Southfield, Mich., for defendant The Bendix Corp.
ORDER DENYING PLAINTIFF'S "MOTION FOR TRANSFER FOR PURPOSES OF TRIAL"
This order denies a motion under § 1404(a), Title 28, United States Code, of American Standard Inc. (plaintiff) for transfer of this complex civil action for purpose of trial from the United States District Court for the Western District of Missouri, Western Division, to the United States District Court for the Eastern District of Virginia, at Alexandria, or, in the alternative, to the United States District Court for the District of Maryland.
This is a complex civil action pending on the complaint of the plaintiff and counterclaim of The Bendix Corporation (defendant).
The complaint contains four counts as follows: Count I is a claim for relief for damages for alleged violations of the antitrust laws of the United States; Count II is a claim for relief for rescission of a "Leader/Follower" Contract dated November 10, 1967, described hereinafter, and for restitution, based on alleged fraud; Count III is a claim for relief for damages resulting from alleged fraud; and Count IV is a claim for relief for damages caused by alleged breaches of the "Leader/Follower" Contract dated November 10, 1967.
The defendant has filed a counterclaim in four counts as follows: Count I of the counterclaim is a claim for relief for damages caused by alleged fraud; Count II of the counterclaim is a claim for relief for damages resulting from alleged breaches of the "Leader/Follower" Contract dated November 10, 1967; and Counts III and IV of the counterclaim are claims for relief, including damages, based on alleged violations of the False Claims Act of the United States.
This action arose as a result of a series of alleged events occurring after the making of a "Leader/Follower" Contract dated November 10, 1967, between the defendant and Wilcox Electric Company, Inc.1 (Wilcox) for the manufacture of APX-72 military IFF ("identification friend or foe") radio-transponders (APX-72) for the United States Department of Navy.
On May 1, 1974, before either party had conducted any substantial discovery, the defendant moved for an order under § 1404(a), Title 28, United States Code (§ 1404(a)) transferring this action for all purposes from the United States District Court for the Western District of Missouri, Western Division, at Kansas City, Missouri, to the United States District Court for the District of Maryland, at Baltimore . The plaintiff then opposed this motion for transfer ("Memorandum of Plaintiff American Standard Inc. in Opposition to Defendant's Motion for Transfer," filed May 22, 1974).
On July 31, 1974, a ruling on the defendant's motion for transfer was stayed until the completion of the first wave of discovery.2
Five years later, the positions of the parties concerning transfer from this district were reversed. In a letter treated as a motion for transfer, filed April 12, 1979, the plaintiff advised this Court as follows:
. . ., we have concluded that transfer of this case to a more convenient forum for purposes of trial has considerable merit. . . . We would suggest that the transfer be for purpose of trial so that this Court could rule on those pending summary judgment and related discovery motions which have been briefed before this Court.
In response to the plaintiff's letter motion for transfer filed April 12, 1979, the defendant stated that there was no longer any motion of the defendant for transfer pending in this action, and that the defendant's motion for transfer of May 1, 1974, was withdrawn by the defendant (Transcript, 153; "Defendant's Suggestions Concerning Plaintiff's Memorandum on the Issue of Transferring the Case to Another Forum," filed April 25, 1979 (hereinafter "Defendant's Suggestions"), 1-2).
On October 11, 1979, on notice and hearing, an evidentiary hearing and oral argument were held concerning the plaintiff's letter motion for transfer filed April 12, 1979.
On October 23, 1979, with leave, the plaintiff filed a formal written "Motion for Transfer for Purposes of Trial," in which it moved for transfer of this action for purpose of trial to the United States District Court for the Eastern District of Virginia, at Alexandria, or, in the alternative, to the United States District Court for the District of Maryland.
The plaintiff bases its motion for transfer under § 1404(a) on five grounds. These five grounds are summarized as follows.
First, the plaintiff contends that the convenience of witnesses is its primary ground for transfer of this action (Transcript, 159). The plaintiff alleges that most of its key antitrust witnesses, key witnesses from the Department of Defense, and key contract performance witnesses reside in the nearby Washington, D. C. and Baltimore, Maryland metropolitan areas (Transcript, 158, 160, 187; "Plaintiff's Supplemental Suggestions Relating to Transfer of This Case Pursuant to 28 U.S.C. § 1404(a)," filed October 1, 1979 (hereinafter "Plaintiff's Supplemental Suggestions"), 3, 6; "Reply by Plaintiff American Standard Inc. to Defendant Bendix Corporation's Memorandum on the Issue of Transfer," filed May 8, 1979 (hereinafter "Reply by Plaintiff"), 2; Supplemental Memorandum of Plaintiff, 2-4).
Second, the plaintiff contends that the "live testimony" of most of its key witnesses, described above, in this action can be had only in the Washington, D.C. and Baltimore, Maryland metropolitan areas because most of these key witnesses, who reside in the Washington, D.C. and Baltimore, Maryland metropolitan areas, can be compelled to appear personally and testify pursuant to F.R.Civ.P. 45(e)(1) by either the United States District Court for the Eastern District of Virginia or by the United States District Court for the District of Maryland3 (Transcript, 158, 160, 187; Plaintiff's Supplemental Suggestions, 3-4, 6; Reply by Plaintiff, 2; Supplemental Memorandum of Plaintiff, 2-4).
Third, the plaintiff contends that this action "might have been brought," within the meaning of § 1404(a), Title 28, United States Code, in the United States District Court for the Eastern District of Virginia, at Alexandria, under Section 12 of the Clayton Anti-Trust Act, § 22, Title 15, United States Code, because the defendant corporation is found and transacts business in the Eastern District of Virginia (Supplemental Memorandum of Plaintiff, 5 note 5).
Fourth, the plaintiff alleges that trial of this action in the United States District Court for the Eastern District of Virginia, at Alexandria, or the United States District Court for the District of Maryland, at Baltimore, would result in substantially less inconvenience to trial counsel, and in significant money savings to both parties because lead trial counsel for both parties are located "in Washington, D.C. and its suburbs" (Supplemental Memorandum of Plaintiff, 2, 4).
Fifth, the plaintiff contends that this action should be transferred to the United States District Court for the Eastern District of Virginia because most of the material documents in this action are found either in northern Virginia or in the Baltimore, Maryland metropolitan area (Transcript, 160).
The defendant opposes the plaintiff's motion for transfer under § 1404(a) on four grounds. These four grounds are summarized as follows.
First, the defendant contends that the important "qualitative preponderance of evidence" to be given at trial in this action will be given in testimony by witnesses4 either residing in the Kansas City metropolitan area or by witnesses located more conveniently to the Kansas City metropolitan area than to the Washington, D.C. and Baltimore, Maryland metropolitan areas (Transcript, 162-169, 175-179; "Defendant's Supplemental Suggestions Opposing Transfer of This Case Pursuant to 28 U.S.C. § 1404(a)," filed October 9, 1979 (hereinafter "Defendant's Supplemental Suggestions"), 2-3).
Second, the defendant contends that the plaintiff's motion for transfer is untimely because in its Order of July 31, 1974, this Court made clear that transfer was to be reconsidered in 1975 at the completion of first wave discovery, but no request for reconsideration was made then (Defendant's Supplemental Suggestions, 5 and note **; Defendant's Suggestions, 2).
Third, the defendant contends that it would be unduly prejudiced if this action were transferred to another forum, because local counsel for defendant are expected to...
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