Newcomb v. Daniels, Saltz, Mongeluzzi & Barrett, Ltd., 847 F. Supp. 1244, 1246 (D.N.J. 1994). In certain situations, however, less deference is given to plaintiff's choice, for example, when "the case has little connection with the chosen forum." Id. See also, AT&T v. MCI, 736 F. Supp. 1294, 1306 (D.N.J. 1990)("Where the operative facts of a lawsuit occur outside the forum selected by the plaintiff, that choice is entitled to less deference."); Hardaway Constructors, Inc. v. Conesco Ind., Ltd., 583 F. Supp. 617, 620 (D.N.J. 1983)(plaintiff's choice of forum has less significance where "there is an absence of any significant contact by the forum state with the . . . transactions or conduct underlying the cause of action").
Another situation where "the plaintiff's choice of a forum becomes substantially less important [is] when he sues representatively on behalf of a class." Firmani v. Clarke, 325 F. Supp. 689, 691 (D. Del. 1971). In a class action, the named plaintiff's testimony and other input is likely to be minimal. Id. Furthermore, plaintiff classes are often comprised of residents of many states. Thus, a multitude of states could have interests in seeing their citizens' complaints justly addressed. The residence of the class representative becomes a mere happenstance. The choice to sue in that named plaintiff's home state, a mere fortuity.
Therefore, the weight of authority holds that in class actions and derivative law suits the class representative's choice of forum is entitled to lessened deference. Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S. Ct. 828, 832 91 L. Ed. 1067 (1947)(determining in this derivative action that "where there are hundreds of potential plaintiffs . . . all of whom could with equal show of right go into their many home courts, the claim of any one plaintiff that a forum is appropriate merely because it is his home forum is considerably weakened"); Baldwin v. Nat'l Safety Assoc., Inc., 1994 U.S. Dist. LEXIS 4468, 1994 WL 139267, * 2 (N.D. Cal. April 6, 1994); Werbowsky v. Am. Waste Serv. Inc., 1992 U.S. Dist. LEXIS 8267, 1992 WL 147924, *2 (S.D.N.Y. 1992); Supco Automotive Parts v. Triangle Auto Spring Co., 538 F. Supp. 1187, 1192 (E.D. Pa. 1982)(noting that in class actions "plaintiff's choice of forum deserves less weight); Blake Constr. Co. v. Int'l Harvester Co., 521 F. Supp. 1268, 1271-72 (N.D. Ill. 1981)(finding little weight to be given class representative's choice of forum); Blender v. Sibley, 396 F. Supp. 300, 302 (E.D. Pa. 1975)(indicating that far less weight is accorded plaintiff's choice in class actions and derivative suites); Harris v. Am. Inv. Co., 333 F. Supp. 325, 326 (E.D. Pa. 1971); Fogel v. Wolfgang, 48 F.R.D. 286, 290 (S.D.N.Y. 1969)(applying Koster's logic to class actions). But see, Carty v. Health-Chem Corp., 567 F. Supp. 1 (E.D. Pa. 1982).
"The preference for honoring a plaintiff's choice of forum is simply that, a preference[,] . . . not a right," AT&T v. MCI, 736 F. Supp. 1294, 1306 (D.N.J. 1990). Nevertheless, the 1404(a) factors are still balanced by the court in making a transfer determination, and the balance must tip strongly in favor of transfer before disturbing the plaintiff's choice. Hardaway Constructors, 617 F. Supp. at 620.
In reviewing the factors which weigh for or against transfer, this Court must look to facts which are a matter of record, not merely to assertions in the attorneys' briefs. Ricoh Co., 817 F. Supp. at 480. One of the factors to consider is "whether the moving party submitted adequate data of record to facilitate an appropriate analyses." Hudson United Bank v. Chase Manhattan Bank, 832 F. Supp. 881, (D.N.J. 1993)(citing Plum Tree, Inc. v. Stockment, 488 F.2d 754, 756-57, (3d Cir. 1973)).
The Special Venue Provision of the 1934 Act
Plaintiff asserts that Section 27 of the Securities Exchange Act of 1934 ("the Act"), 15 U.S.C. § 78aa, provides plaintiffs in securities suites, such as this one, with a special venue provision such that Plaintiff's choice of venue under this statute should not be disturbed. Plaintiff contends that this section gives plaintiffs "the right to select the venue for the plaintiff's legal action in any United States Federal Court." (Pl. Joint Resp. and Opp. to D. Mot. to Change Venue [hereinafter "Pl. Resp."] at 8 (emphasis in the original).) Plaintiff is misreading the statute.
This section provides that
Any criminal proceeding [under the Act] may be brought in the district wherein any act or transaction constituting the violation occurred. Any suit or action to enforce any liability or duty created by this chapter or rules and regulations thereunder, or to enjoin any violation of such chapter or rules and regulations, may be brought in any such district or in the district wherein the defendant is found or is an inhabitant or transacts business.