The opinion of the court was delivered by: PARKER
In this civil antitrust action the plaintiff, Consolidated Metal Products, Inc. (Consolidated), has charged the American Petroleum Institute (API), LTV Corporation (LTV), Continental Emsco, Co., Inc. (Emsco) and the Dover Corporation (Dover), with engaging in a conspiracy to discourage and prevent the sale of Consolidated's oil production equipment. Specifically, Consolidated alleges that API and the other defendants wrongfully engaged in a group boycott and wrongfully denied Consolidated the right to the API monogram or seal of approval on its products causing plaintiff to lose potential customers. Plaintiff asserts a cause of action under Sections 4 and 16 of the Clayton Act, as amended, 15 U.S.C. §§ 15 and 26.
At the August 17, 1983 hearing on these matters only the transfer motion was considered. Counsel for the parties presented exhaustive legal memoranda and able argument on the factual and legal issues presented by that motion. For the reasons set out in this Memorandum Opinion and Order the Court finds that there is considerable merit in the defendants' request and determines that this proceeding should be transferred.
It is well recognized that "[Exercise] of the power to transfer authorized by § 1404(a) is committed to the sound discretion of the district court." American Standard, Inc. v. The Bendix Corp., 487 F. Supp. 254, 260 (W. D. Mo. 1980). However, the court does not have unlimited power; rather, transfer is limited to any other district or division where the action might have been brought. The Northern District of Texas is undisputably one where this proceeding might have been brought by the plaintiff. That proposed transferee court would have subject matter jurisdiction over this proceeding; venue over the defendants would be appropriate in that district under 28 U.S.C. § 1391(a) and section 12 of the Clayton Act, 15 U.S.C. § 22, and the defendants would be subject to service of process issuing out of the district court in Dallas, Texas, for violations of the Clayton Act.
In a request of this nature the movants have the responsibility and the burden of proof in supporting their request for a change of forum. They are required to make a convincing showing of the right to transfer and they must demonstrate that the balance of convenience of the parties and witnesses and the interest of justice are in their favor. SEC v. Savoy Industries, 190 U.S. App. D.C. 252, 587 F.2d 1149, 1154 (D.C. Cir. 1978); Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2d Cir. 1978), cert. den. 440 U.S. 908, 99 S. Ct. 1215, 59 L. Ed. 2d 455 (1979). Section 1404(a) allows for transfer "to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient." Van Dusen v. Barrack, 376 U.S. 612, 645-46, 11 L. Ed. 2d 945, 84 S. Ct. 805 (1964).
At the outset it is noted that plaintiff Consolidated is incorporated in the State of Ohio and its operating base is in Cincinnati, Ohio. There is no claim that it ever conducted any business in the District of Columbia. While the plaintiff claims that documents generated through discovery requests served on API show that antitrust violations occurred in the District of Columbia, a review of those documents leaves troubling questions and doubts as to whether they are indeed as relevant and telling as the plaintiff suggests.
On the other hand it is clear at this point that if the alleged violations occurred at all, the principal operative events and the important decisions relative to those violations were made in Texas and not in this forum. There is little in the record suggesting any connection with this forum. Consolidated's counsel has offices in Alexandria, Virginia and in the District of Columbia, but as Judge Gesell noted "any inconvenience experienced by plaintiff's counsel in having to travel [to Texas] or retain local counsel there, is of minor, if any, importance under § 1404(a)." Islamic Republic of Iran v. The Boeing Company, 477 F. Supp. 142, 143 (D.D.C. 1979).
While API is incorporated in the District of Columbia, API's Corporate Department, which had the responsibility for the alleged antitrust activities, is located in Dallas. Eleven of the twelve principal decision-making and immediately involved divisions and offices of that Department are located in Dallas or elsewhere in Texas, or the adjoining State of Oklahoma. Only two potential witnesses are located in this forum -- API's president and vice president, but at best, their participation and involvement is limited. Other potential and important API witnesses are located west of the Mississippi River, primarily in Texas and Oklahoma.
Both LTV and Emsco are Delaware corporations and Dallas, Texas is the principal base of business for each. LTV does maintain a corporate office in this forum and it is the parent corporation of Emsco. The two corporations are "doing business" in the Dallas Division of the Northern District of Texas, within the meaning of 28 U.S.C. § 1391(c). Each "transacts business" in Dallas for the purpose of establishing venue under Section 12 of the Clayton Act and each is "found" there and is amenable to service of process under the Act.
Dover, a Delaware corporation, seeks transfer under § 1406(a) "to any district or division in which it could have been brought." That appropriate division is in Dallas, Texas. Dover's headquarters and principal office is in New York City. It has no office in this jurisdiction nor is it licensed to do business here. Dover has several subdivisions and subsidiaries but none are incorporated or located here. The division which is the target of plaintiff's claim -- the Norris Division -- is located in Tulsa, Oklahoma. Norris Division has never made sales in and has never had a presence in the District of Columbia.
The plaintiff's argument that its choice of forum should be given great consideration overlooks a well-established and reasonable doctrine that such consideration is greatly diminished when the activities at issue have little, if any, connection with the chosen forum. In this connection, the API in response to Consolidated's discovery request, submitted a Chronology of Events.
That Chronology is very compelling and persuasive and demonstrates that the major and substantial activities about which the plaintiff complains did not occur in this forum but principally in the State of Texas.
After a fair evaluation of the records as a whole on the issue of transfer, it is clear that the interests of justice would be served by granting the defendants' request. The transferee court will have more immediate access to sources of proof, given the proximity of the important witnesses, the relevant documents, and the required discovery on the issue of liability. Beyond that, the sharply contested and unresolved issues presented by the motions to dismiss filed by all defendants save the API will not delay this proceeding.
For the reasons stated above, the defendants' motion for transfer is granted. This proceeding is hereby transferred to the United States District Court for the ...