Atlantic Richfield Co. v. Stearns-Roger, Inc.

• Decision Date: 15 August 1974
• Docket Number: Civ. A. No. 73-1933.
• Citation: 379 F. Supp. 869
• Parties: ATLANTIC RICHFIELD COMPANY v. STEARNS-ROGER, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

379 F. Supp. 869

ATLANTIC RICHFIELD COMPANY v.STEARNS-ROGER, INC.

Civ. A. No. 73-1933.

United States District Court, E. D. Pennsylvania.

August 15, 1974.

Kenneth Syken, Richter, Syken, Ross & Levant, P.A., Philadelphia, Pa., for plaintiff.

Donald J. P. Sweeney, McWilliams & Sweeney, Philadelphia, Pa., for defendant.

MEMORANDUM AND ORDER

HIGGINBOTHAM, District Judge.

This matter comes before the Court on defendant's motion under 28 U.S.C. § 1404(a) to transfer this suit to the Eastern Division of the Southern District of Iowa.For reasons hereinafter set forth, defendant's motion is Denied.

Plaintiff, Atlantic Richfield Company("Atlantic"), brought this suit to recover damages sustained by it when it owned a fertilizer plant located at Fort Madison, Iowa.Plaintiff is a Pennsylvania corporation, having its principal place of business in Los Angeles, California.The defendant, Stearns-Roger, Inc.("Stearns"), is a Colorado corporation which also maintains its principal place of business in Colorado but does business in the Eastern District of Pennsylvania.

Prior to June 1, 1968 the fertilizer plant in question was owned and operated by Sinclair Petrochemicals, Inc., then a subsidiary of Sinclair Oil Corporation("Sinclair").On said date Sinclair and Stearns' parent corporation, Stearns-Roger Corporation, executed a "Maintenance Agreement," whereby the latter agreed to perform all the necessary maintenance work at the fertilizer plant.On March 4, 1969, Atlantic merged with Sinclair, with the former succeeding to and assuming all the rights and obligations of the latter.The "Maintenance Agreement," as originally entered into on June 1, 1968, was amended on March 29, 1972 so that, among other things, the "Maintenance Agreement" could be assigned from Stearns' parent corporation to Stearns.

Although Atlantic owned the fertilizer plant after its merger with Sinclair, the Iowa plant was operated by employees of ARCO Chemical Company, a division of Atlantic.The headquarters for ARCO Chemical Company and for its general eastern marketing operation are located in the Eastern District of Pennsylvania.On August 31, 1973 Atlantic transferred all its interests in the fertilizer plant to First Mississippi Corporation.All business records which had been stored and maintained at Fort Madison were thereafter removed to the Eastern District of Pennsylvania.

The events prompting this litigation occurred on July 24, 1972, when employees of Stearns allegedly negligently transported a steam generator.Using a crane which had been leased by Atlantic from a third party, Stearns' employees dropped a steam generator on a heat exchanger, costing damages approximating $100,000.Moreover, the Complaint contends, the extensive damage to this equipment resulted in an interruption of normal plant operations, culminating in additional damages of several hundred thousand dollars.

28 U.S.C. § 1404(a) provides:

"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."

In view of the fact that the incident in issue occurred in the Southern District of Iowa, it is irrefragable that this suit therefore could have been brought there.But a final determination on a motion to transfer does not rest entirely on the situs of the tort.When all the relevant criteria are weighed, the record must preponderate strongly in favor of the moving party before the plaintiff's choice of forum will be disturbed.See, e.g., General State Authority v. Aetna Casualty & Surety Co., 314 F.Supp. 422, 423(S.D. N.Y., 1970);St. Joe Paper Co. v. Mullins Manufacturing Corp., 311 F.Supp. 165, 168(S.D.Ohio1970);General Electric Co. v. Westinghouse Electric Corp., 297 F.Supp. 84, 86(D.Mass.1969);andPopkin v. Eastern Air Lines, Inc., 253 F.Supp. 244, 246(E.D. Pa.1966).

The moving party under § 1404(a) bears the burden of demonstrating that the current forum, on balance, is inconvenient.Wm. A. Smith Contracting Co., Inc. v. Travelers Indemnity Co., 467 F.2d 662, 664(10th Cir.1972);Shutte v. Armco Steel Corp., 431 F.2d 22, 25(3rd Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808(1971), andTexas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147(10th Cir.1967).Defendant's burden has not been satisfied here, since granting defendant's motion would only shift the inconvenience from the defendant to the plaintiff.Aquarium Pharmaceuticals, Inc. v. Industrial Press. & Pack., Inc., 358 F.Supp. 441, 446(E.D.Pa.1973);Toti v. Plymouth Bus Co., 281 F.Supp. 897, 898(S.D.N.Y.1968), andSchmidt v. American Flyers Airline Corp., 260 F.Supp. 813, 815(S.D.N.Y.1966).

In its moving papers defendant has not filed any affidavits specifically identifying its witnesses and their residences, or outlining generally the content and relevance of their testimony.Nor has it noted the particular inconveniences of those witnesses.Jones Knitting Corp. v. A. M. Pullen &Co., 50 F. R.D. 311, 316-317 (S.D.N.Y.1970);Breindel v. Levitt & Sons, Inc., 294 F. Supp. 42, 43(E.D.N.Y.1968);Oil & Gas Ventures - First 1958 Fund, Ltd. v. Kung, 250 F.Supp. 744, 756-757(S.D. N.Y.1966);Securities & Exchange Commission v. Harwyn Publishing Corp., 232 F.Supp. 274, 277(S.D.N.Y.1964), andJohnson v. Chicago, Rock Island & Pacific R.R. Co., 228 F.Supp. 160, 161(D.Minn.1964).The Court of Appeals for the Tenth Circuit, in Chicago, Rock Island & Pacific Railroad Co. v. Hugh Breeding, Inc., 232 F.2d 584, 588(10th Cir.1956), made the following observations:

"It is not sufficient to merely state that the railroad has twenty witnesses it must transport to Oklahoma.To discharge the burden resting upon it, it was necessary to set out in the affidavit the

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