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NEWCOMB v. DANIELS

April 4, 1994

BRUCE NEWCOMB and ANN NEWCOMB, Plaintiffs,
v.
DANIELS, SALTZ, MONGELUZZI, & BARRETT, LTD., Defendant.



The opinion of the court was delivered by: JOHN F. GERRY

 GERRY, Chief Judge

 This case concerns a dispute over attorney's fees charged by the defendant for legal services rendered to the plaintiffs in connection with a personal injury suit. The defendant seeks a change of venue. The plaintiffs oppose the change of venue and seek summary judgment on their claims.

 I. BACKGROUND

 The defendant is the law firm of Daniels, Saltz, Mongeluzzi & Barrett. The firm represented the plaintiffs, Ann and Bruce Newcomb, in their lawsuit arising from Mr. Newcomb's December 1, 1989 industrial accident in Trenton, New Jersey. (Affidavit of Bruce Newcomb.) Contact between the parties began in December of 1989 when Robert J. Mongeluzzi, a member of the firm and the New Jersey and Pennsylvania bars, called the plaintiffs at their home in New Jersey to discuss possible representation. (Affidavit of Ann Newcomb at 2.) (Affidavit of Robert J. Mongeluzzi at 2.) Shortly thereafter, Mr. Mongeluzzi visited the Newcombs at their home to discuss the matter, but the parties did not reach any agreement regarding representation at that time. Id. For approximately the next 20 months, Mr. Newcomb received New Jersey Workers' Compensation benefits and did not pursue a separate law suit. (Affidavit of Ann Newcomb.)

 On October 24, 1991, Mr. Mongeluzzi visited the plaintiffs at home again, and this time the parties signed a contingent fee agreement and the representation commenced. (Affidavit of Ann Newcomb at 3.) (Affidavit of Robert J. Mongeluzzi at 3.) (Contingent Fee Agreement.) The agreement provides that the firm would receive 40% of any recovery, plus costs. (Contingent Fee Agreement, Defendant's Summary Judgment Exh. A.) The plaintiffs did not visit the defendant's Philadelphia offices at any time prior to signing the fee agreement. (Affidavit of Ann Newcomb at 3.) They allege that no member of the firm ever discussed with them the issue of where their case should be filed or the differences between New Jersey and Pennsylvania law on attorney contingent fees. (Affidavit of Ann Newcomb at 3.) The firm asserts that Mr. Mongeluzzi discussed both issues with the plaintiffs before the agreement was signed. (Affidavit of Robert J. Mongeluzzi at 4.)

 The firm filed suit on the plaintiffs' behalf in October 1991 in District Court for the Eastern District of Pennsylvania. (See Complaint; Def. Exh. C to Brief in Opposition to Summary Judgment.) Three of the five defendants were Pennsylvania residents. Almost all the numerous depositions taken in the action were taken in Pennsylvania. (Affidavit of Robert J. Mongeluzzi at 8.)

 The personal injury case settled in November 1992 for a total of $ 1,000,000. When the firm advised the plaintiffs of the amount of the settlement that was attributable to attorney's fees, the plaintiffs refused to permit the payment of the fees and fired the firm. The plaintiffs secured other representation and filed suit in New Jersey Superior Court, claiming that the fee agreement was invalid under New Jersey law. The defendant secured removal of that action to this court on the basis of diversity. After the plaintiffs' attorney's fee suit was filed, but before it was removed, the defendant filed a petition for attorney's fees with the court presiding over the personal injury action in the Eastern District of Pennsylvania. That court refused to hear the matter. (Affidavit of Eugene P. Chell.)

 Presently before the court are two motions. First, the defendant moves for a change of venue from the District of New Jersey to the Eastern District of Pennsylvania. Second, the plaintiffs move for summary judgment on their claims.

 II. ANALYSIS

 
A. Venue

 Section 1404(a) of Title 28 of the United States Code 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 applying this provision, courts assign the plaintiff's choice of forum significant weight unless the case has little connection with the chosen forum. Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970), cert. denied, 401 U.S. 910, 27 L. Ed. 2d 808, 91 S. Ct. 871 (1971); American Tel. & Tel. Co. v. MCI Communications, 736 F. Supp. 1294, 1306 (D.N.J. 1990). It is thus the defendant's burden to show that transfer would serve the interests enumerated in the statute.

 The defendant in the present case seeks a transfer from the District of New Jersey to the Eastern District of Pennsylvania. The defendant argues that such a transfer would be appropriate under § 1404(a) because the Pennsylvania forum would be more convenient, and because Pennsylvania law would govern the rights under the contract. For the reasons set forth below, we find that defendant has failed to demonstrate that a transfer would be appropriate.

 In general, the convenience of the witnesses weighs in favor of transfer under § 1404(a), when the chosen forum would make some witnesses unavailable to testify. E.g., Bartolacci v. Corporation of the Presiding Bishop, 476 F. Supp. 381, 383 (E.D. Pa. 1979). The interests of the parties weigh in favor of transfer under § 1404(a) usually only when one of the parties can exhibit a lack of ability to attend the proceedings in the chosen forum. E.g., Kimball v. Schwartz, 580 F. Supp. 582, 588 (W.D. Pa. 1984). In this case, these two interests are closely related because the major witnesses in the case will be the parties themselves.

 Here, the defendant has failed to allege that the assignment of this case to the New Jersey venue would disserve either the convenience of the parties or the convenience of the witnesses. Further, the defendant has not shown that the Pennsylvania forum would better serve either of these interests. The plaintiffs live in New Jersey. The defendant is a law firm located in Philadelphia, a very short distance from the Camden venue, and affiliated with another law firm located in New Jersey. Thus, the defendant has not alleged that the assignment of the case to the New Jersey venue would make any of the parties, or even other incidental witnesses in this case, unable to attend trial. In fact, the defendant has not even established that the New Jersey forum would be significantly inconvenient for the parties or the witnesses. Therefore, the first two factors in the venue analysis, convenience of the parties and convenience of the witnesses, do not favor transfer.

 The defendant firm has similarly failed to show that the interests of justice demand a transfer in this case. It does not allege that it will be unable to properly defend itself if the case is litigated in the District of New Jersey. It does not demonstrate any inherent unfairness in the plaintiffs' decision to pursue this matter in New Jersey.

 To support their argument that a transfer is in order here, the defendant seems to simply assert that it would be more natural and more logical for the court that handled the underlying personal injury matter to address this attorney's fee dispute, both because the court there "witnessed" the performance of this contract and because Pennsylvania law applies. We cannot accept this argument. There is no reason why this court would be unable to apply Pennsylvania law competently, assuming that Pennsylvania law were to apply. *fn1" Further, the defendant has cited no case where a court has granted a transfer of venue under such circumstances. Moreover, the court that presided over the underlying personal injury dispute refused to hear the attorney's fee dispute. Therefore, the plaintiffs' choice to file the case in New Jersey was not inappropriate and is in fact entitled to substantial weight.

 In sum, having found no basis for transferring the case from this District to the Eastern District of Pennsylvania, we deny the ...


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