Shutte, 431 F.2d at 24. Therefore, transfer is appropriate if other relevant considerations weigh in favor of transfer under 1404(a).
In enacting section 1404, Congress intended to lessen the harsh effects of dismissal of an action under the common law doctrine of forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 99 L. Ed. 789, 75 S. Ct. 544 (1955). Because a motion to transfer an action to a more convenient forum does not result in dismissal of the case, the defendant is required to make "a lesser showing of inconvenience" than would be required for a dismissal at common law. Id. Accordingly, federal courts have broader discretion to transfer an action under section 1404(a) than to dismiss under the doctrine of forum non conveniens. Id.; All State Freight v. Modarelli, 196 F.2d 1010, 1011 (3d Cir. 1952); Rutherford v. Sherburne Corp., 616 F. Supp. 1456, 1463 (D.N.J. 1985).
There appears to be no limit to the number of factors a federal court may consider in connection with a motion to transfer venue under section 1404(a). The analysis is flexible and must be made on the unique facts of each case. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249-50, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981); Van Dusen, 376 U.S. at 623. In Gulf Oil v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1946), the Supreme Court enunciated various factors which should be considered in deciding a transfer request.
The Gulf Oil factors fall into two broad categories. One category includes factors relating to the so-called "private interests" of the parties in the context of the litigation: the plaintiff's choice of forum, the ease of access to sources of proof, availability of compulsory process over unwilling witnesses, the cost of attendance of willing witnesses, obstacles to a fair trial and the possibility of a jury view of the premises. Gulf Oil, 330 U.S. at 508. The other category consists of the "public interest" in the administration of courts and adjudication of cases: court congestion and other administrative difficulties, placing the burden of jury duty on those having the closest ties to the action, local interests in having cases adjudicated at home and familiarity of the forum court with the applicable law. Id. at 508-09.
Under the Gulf Oil analysis, a plaintiff's choice of forum is presumptively correct. Piper Aircraft, 454 U.S. at 255. In the Third Circuit, a plaintiff's choice of forum is a "paramount concern" in deciding a motion to transfer venue. Shutte, 431 F.2d at 25. When a plaintiff chooses his home forum, the choice is "entitled to greater deference." Piper Aircraft, 454 U.S. at 255.
As the moving party in this case, the defendants have the burden of persuasion on their motion to transfer. Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756 (3d Cir. 1973). To overcome the presumption in favor of Sandvik's choice of forum, the defendants must show, under the test enunciated in Gulf Oil, the balance of conveniences weighs "strongly in favor" of transfer to a more convenient forum. Gulf Oil, 330 U.S. at 508; Shutte, 431 F.2d at 25; Reading Metal Craft Co. v. Hopf Drive Assoc., 694 F. Supp. 98, 102 (E.D.Pa. 1988); Hardaway, 583 F. Supp at 620. This requires "something more than a mere preponderance of the evidence" in favor of transfer. Kisko v. Penn Cent. Transp. Co., 408 F. Supp. 984, 986 (M.D.Pa. 1976); see Armotek Indus., Inc. v. Employers Ins. of Wausau, No. 88-3110, slip op. at 14 (D.N.J. 7 March 1989) (reported at 1989 U.S. Dist. LEXIS 2421) (Plaintiff's App., Ex. C); Borough of Fort Lee v. Port Auth. of New York and New Jersey, 1988 U.S. Dist. LEXIS 3429, *14 (D.N.J. 1988); Prudential Ins. Co. v. Rodano, 493 F. Supp. 954, 955 (E.D.Pa. 1980).
Having concluded the Eastern District of Pennsylvania is an appropriate forum for transfer and having noted the burden is on the defendants to show a strong reason exists to transfer this case, the private and public interests analysis must be considered.
The primary private interest at issue in this case is the convenience of the two available districts concerning the witnesses and the documentary evidence of both parties. Part of this determination is the issue of whether litigation of Sandvik's claims requires reference to site-specific facts and testimony from witnesses who are located in Pennsylvania.
Sandvik characterizes its claim as merely a matter of contractual interpretation of an insurance policy. It argues the documents and witnesses relevant to the construction of the CGL policies are located at Sandvik's headquarters in Fair Lawn, New Jersey. Hodgen Aff., paras. 8-9. Sandvik also claims it has produced to the defendants most of the key documents concerning Sandvik's liability for and settlement of claims arising out of the site. Plaintiff's Opposition Brief, at 7. In the alternative, Sandvik represents it will make its documents and witnesses available to the defendants in New Jersey. Hodgen Aff., para. 9. Thus, Sandvik argues litigation of its claims will not require extensive inquiry into site-specific facts because they are "irrelevant to the resolution of any of the legal issues." Plaintiff's Opposition Brief, at 13.
The defendants vigorously oppose Sandvik's characterization of this action. According to the defendants, litigation of Sandvik's environmental coverage claim requires inquiry into the Pennsylvania activities and environmental practices of Sandvik Steel which give rise to this action and the alleged duty of the defendants to defend and indemnify Sandvik in connection with the EPA, PSWC and future claims. Specifically, the defendants state each coverage claim raises factual issues which cannot be determined merely by reference to the contract: whether Sandvik can establish its claims "trigger" coverage under the CGL policies and whether the "occurrence" and "pollution exclusion" provisions of the CGL policies apply. Defendants' Brief, at 15-17.
Environmental coverage claims cannot be decided in a vacuum; they require investigation into site-specific facts and cannot be decided merely by reference to the terms of the insurance policy. For example, in Riehl v. Travelers Ins. Co., 772 F.2d 19 (3d Cir. 1985), the Third Circuit reversed the grant of summary judgment in favor of a claimant on a CGL policy, stating:
Before liability can be assessed or denied, the following questions of fact, among others, must be answered: 1) when were the toxic substances brought onto the property; 2) who brought the toxic substances onto the property; 3) what was the extent of [the claimant's] knowledge, if any, of toxic waste dumping; 4) whether within the meaning of the policy terms, [the claimant] 'expected or intended' the pollution damage . . . .