agency action in no way suggests that this District Court is better qualified to review the record than is the Eastern District of Michigan.
Thus the crucial factor to weigh against the considerations of judicial efficiency is the convenience to the parties and witnesses of litigating this case in this forum. The convenience to witnesses is of course either irrelevant here or nearly so, since the District Court's function in this case is to review the administrative record.
Consumers and the FEA would find the Michigan forum considerably more convenient than this forum, since they are already involved in litigating the same agency order in that forum. Also, the agency record will be transported to Michigan for the other suits, and agency attorneys will have to travel to Michigan whether or not this suit is transferred.
The Court remains unconvinced, moreover, that the transfer of this case to the Michigan forum would pose any inconvenience to the PEG companies. The seventeen plaintiff companies do business throughout the country, and maintain offices in the District of Columbia primarily for purposes of interacting with the federal government. PEG admitted during oral argument and in its motion papers that PEG is simply an "ad hoc" group of companies, none of which maintains corporate headquarters here. Under these circumstances PEG's claim that the District of Columbia is its "home forum" means only that the District of Columbia is the home forum of the attorneys that represent the seventeen companies in their ad hoc functions as the Petrochemical Energy Group. Thus the inconvenience to PEG must be measured by the inconvenience to its attorneys.
Since, as the record in this case indicates, PEG's attorneys have been attending the proceedings before Judge Joiner to date anyway, and will no doubt continue to do so even if this case is not transferred, the Court fails to perceive how PEG will be inconvenienced by transfer of this case to Michigan. Only if the Michigan cases were transferred here would PEG benefit by this Court's retention of this case. The FEA has not sought such a transfer, however, and no statute or rule requires transfer of those five cases to this District. Moreover, five plaintiffs, having chosen the Michigan forum, the inconvenience to all the parties to this agency review proceeding as a whole would presumably be five times as great if the Michigan cases were transferred here rather than this case being transferred to Michigan.
For the reasons stated, it appears to this Court that transfer to the Eastern District of Michigan will advance the interests of justice, and will not inconvenience the plaintiffs. Accordingly, transfer under § 1404(a) is proper in this case.
IV. This Court's Lack of Personal Jurisdiction Over Consumers Power Company as an Additional Reason to Transfer This Case.
One consideration in addition to those set forth above influences this Court's decision to transfer this case. Both the FEA and Consumers have moved to dismiss the complaint as against Consumers because of lack of personal jurisdiction, and to dismiss the complaint entirely for lack of an indispensable party, namely, Consumers. If this Court were to rule that it lacks personal jurisdiction over Consumers but that Consumers is not an indispensable party, any further proceedings in this case in this forum might ultimately be reversed by the Court of Appeals solely on a question of parties. Since, for reasons set forth below, this Court finds that it does lack jurisdiction over Consumers, the indispensability issue will in fact cast a cloud over these proceedings unless the case is transferred. The indispensability issue will of course disappear upon transfer to Consumers' home forum.
Consumers is a Michigan public utility and does no business in the District of Columbia. Consumers' only contacts with the District have been in its capacity as a participant in the FEA proceeding that engendered this lawsuit. PEG concedes, as it must,
that Consumers' agency contacts do not amount to "doing business" within the meaning of the District of Columbia long-arm statute. In fact, PEG specifically disclaims any intent to rely on D.C.'s long-arm statute or on any other statute to validate the extraterritorial service of process that PEG effectuated on Consumers in Michigan. Instead, PEG contends that in a suit on a federal right, extraterritorial service in the manner prescribed by Federal Rule 4(d) is effective, even without any authorizing statute, if the person served has established "minimum contacts" with the forum within the meaning of the due process clause. PEG cites no authority that supports this unusual proposition,
and no attempt is made to reconcile the proposition with the territorial limits on effective service of process set forth in Federal Rule of Civil Procedure 4(f). Accordingly, the conclusion is inescapable that this Court lacks personal jurisdiction over Consumers, and the complaint must therefore be dismissed as to it.
Lacking personal jurisdiction over Consumers, the Court is faced with the argument that the entire case must be dismissed because, as beneficiary of the 18 million barrels per year allocation under attack here, Consumers is an indispensable party to this proceeding within the meaning of Federal Rule 19(b). The Court has considered the briefs submitted by the parties on this point and finds the proper resolution of the indispensability question to be very ambiguous because of the nature of this case as a review of agency action.
Fortunately the transfer of this case provides an appropriate alternative to deciding this complex issue, since even if Consumers were held indispensable, transfer would be appropriate under § 1404(a)
and § 1406(a) as well. Several circuit courts have interpreted § 1406(a) as providing an alternative to dismissal when, although venue is "correct" according to 28 U.S.C. § 1391, the venue is nonetheless laid in the "wrong district" because personal jurisdiction over the necessary parties cannot be obtained there.
Accordingly, without deciding whether Consumers is indispensable, the Court hereby recognizes that § 1406(a) provides an additional basis for the transfer of this action if Consumers is an indispensable party to the proceedings before this Court.
Oliver Gasch / Judge
Date: February 10th 1976