with the contractual relationship between Midwest and the
Probably the most significant factual issue in this case is the
condition of the grinder at the time it was delivered to PTM's
Massachusetts plant. PTM intends to call several PTM employees
who inspected the grinder upon its delivery at the PTM plant.
All of these employees are residents of Massachusetts. In
addition, PTM intends to call Ron Jansen, an employee of
Promatool, Inc. (Midwest's agent in Massachusetts), because of
his familiarity with the condition of the grinder at delivery.
Finally, PTM intends to call employees of Encon, Inc. of
Chicopee, Massachusetts. Encon personnel were employed to
unload the grinder upon delivery and observed the condition of
the grinder at the time of delivery. Jansen and the Encon
employees are residents of Massachusetts and would not be
within the subpoena power of this Court.
Midwest, on the other hand, argues that trial in Massachusetts
would deprive that court of the testimony of two Illinois
residents who also observed the grinder at the time of
delivery. Midwest intends to call at trial Ueli Maegerle, an
employee of the manufacturer of the grinder, who accompanied
the grinder to Massachusetts to supervise its installation.
Midwest also intends to call Thomas Haldane, the driver who
delivered the grinder to PTM's plant, for the purpose of
testifying as to the grinder's condition at the time of
delivery. Maegerle and Haldane, residents of Illinois, would
not be within the subpoena power of the Massachusetts District
Court should this case be tried in Massachusetts.
From the above discussion, it becomes apparent that if the
physical condition of the grinder were the only issue raised by
Midwest's complaint, trial in Massachusetts would merely shift
the inconveniences from PTM's witnesses to Midwest's witnesses.
Generally, a case should not be transferred under § 1404(a) to
an equally inconvenient forum. Van Dusen v. Barrack,
376 U.S. 612, 645-46, 84 S.Ct. 805, 823-24, 11 L.Ed.2d 945 (1963). In
this case, however, Midwest's complaint raises issues other
than the physical condition of the grinder at the time of
delivery. The liability of PTM under Count I is predicated upon
PTM being the "real party in interest" under a purchase and
sale agreement between Midwest and the Shawmut Bank. Therefore,
the legal relationship between the Shawmut Bank, PTM and
Midwest will be a significant issue in this litigation.
Regarding that relationship, PTM intends to call at trial three
officers and employees of the Shawmut Bank of Boston,
Massachusetts. These officers and employees were involved in
preliminary negotiations regarding specifications of the
grinder as well as the leasing arrangement between PTM and the
Shawmut Bank.*fn2 All of the Shawmut Bank personnel are
residents of Massachusetts and would not be within the subpoena
power of this Court. Also relevant to the "real party in
interest" issue will be the testimony of Midwest's
Massachusetts agent, Ron Jansen, who was involved in
preliminary negotiations between Midwest and PTM. Jansen,
although apparently willing to travel to Illinois to
testify,*fn3 would be less inconvenienced if the trial took
place in Massachusetts rather than Illinois. In sum, the
witnesses whose testimony may resolve the "real party in
interest" issue are PTM employees, Shawmut Bank employees and
Ron Jansen, all of whom are residents of Massachusetts and not
within the subpoena power of this Court.
Furthermore, Count II of Midwest's complaint charges PTM with
tortiously interfering in the contractual relationship between
the Shawmut Bank and Midwest.
Since the alleged tortious conduct took place in
Massachusetts,*fn4 the testimony of Shawmut Bank employees
and PTM employees will be highly important in resolving the
issues raised in Count II of the complaint.
On balance, considering the nature and quality of the testimony
of potential witnesses, the Court finds that when all potential
issues raised by the complaint are considered, the convenience
of the witnesses would best be served by the transfer of this
case to the District Court of Massachusetts.*fn5
C. Interest of Justice
With respect to this case, there are two important factors
which weigh in favor of transferring this case to the District
Court of Massachusetts. First, because the grinder is presently
located in Massachusetts, the Massachusetts court will have
greater access to that obviously important source of
proof.*fn6 Second, the fact that Massachusetts law will be
applied in this case weighs in favor of having a Massachusetts
court interpret and apply that law. These two factors,
therefore, weigh in favor of transferring this case to the
District Court of Massachusetts.
Although Midwest's choice of this forum is entitled to
substantial weight in considering whether to grant PTM's motion
to transfer, PTM has overcome Midwest's initial choice of forum
by showing that the conveniences of witnesses and the interests
of justice would be best served by transferring this case to
the District Court of Massachusetts. Defendant's motion to
transfer this case to the District Court of Massachusetts is
therefore granted. Accordingly, the Court does not decide
defendant's motion to dismiss and instead will leave that
matter for the transferee court's consideration.
IT IS SO ORDERED.