ii. Convenience of the Witnesses
In assessing the private interests of the parties, the
convenience of potential witnesses also must be balanced. See
Lony I, 886 F.2d at 636-37; Lacey I, 862 F.2d at 56-47;
Xerox, 56 F. Supp.2d at 452; Mentor Graphics Corp. v. Quickturn
Design Systems, Inc., 77 F. Supp.2d 505, 510 (D.Del. 1999)
(stating that "the convenience of witnesses is often an important
factor in a transfer inquiry."); Tischio, 16 F. Supp.2d at 522;
Honeywell, 817 F. Supp. at 484.
When considering a motion to transfer, the Circuit
distinguishes between party and non-party witnesses.*fn19 See
Jumara, 55 F.3d at 879 (convenience of witnesses is only
considered "to the extent that the witnesses may actually be
unavailable for trial in one of the fora."); Geneva
Pharmaceuticals, Inc., 2000 WL 217642 at *2 (citing Jumara, 55
F.3d at 879); Quickturn Design Sys., 77 F. Supp.2d at 510
(same); Guidant, 76 F. Supp.2d at 570 (same); In re
Consolidated Parlodel Litig., 22 F. Supp.2d 320, 323 (D.N.J.
1998) (observing that convenience of non-party witnesses is
accorded greater weight in the Section 1404(a) analysis than
party witnesses); National Property Investors VIII v. Shell Oil
Co., 917 F. Supp. 324, 329 (D.N.J. 1995).
In the instant action, RJR identified seventeen material party
witnesses who have "specific knowledge" about either the
formation and purpose of the EDLP plan or the implementation of
the EDLP Contracts.*fn20 See Blynn Declaration at ¶ 10; Toulon
Declaration at ¶ 3. Upon review of the declarations submitted in
support of the Motion to Transfer, it does not appear RJR
identified any non-party witnesses.
Liggett asserts that it is likely to offer twenty-three party
witnesses. See Gallo Declaration at ¶ 5; Petch Declaration at
¶¶ 4-8. As mentioned, Liggett asserted that because of its
structure, "roughly equal numbers of Liggett's relevant witnesses
. . . will be drawn from New Jersey, North Carolina, and Texas."
Gallo Declaration at ¶ 6.
In addition, Liggett argued that as a result of a "thorough
pre-filing investigation" it has identified "at least
twenty-three potential non-party, retailer witnesses located
within the compulsory power of the [c]ourt." See id. at ¶ 2
(emphasis added). Liggett further argued that these "witnesses
may have relevant information and testimony regarding RJR's
EDLP program. These twenty-three retailers participate in the RJR
EDLP program and they may possess information related to the
program's effects on discount cigarette prices." Id. at ¶ 3
(emphasis added). Liggett, moreover, argued that "based on [its]
investigation of the facts underlying this case . . . an
additional seventy-one potential non-party, retailer witnesses
in the northeastern states  may have relevant information and
testimony regarding RJR's EDLP program." Id. at ¶ 4 (emphasis
RJR did not indicate, by affidavit or otherwise, whether
material non-party witnesses will be inconvenienced if a trial is
held in New Jersey. RJR, however, generally argued that "except
for limited relevant EDLP documentation which may be in [RJR's]
regional sales and field offices — of which New Jersey is only a
minor slice — [RJR's] documents relevant to the challenged
program are located at corporate headquarters . . ., which is
where [RJR's] witnesses most knowledgeable about the program
work." See Moving Brief at 13.
Liggett merely argued that it has "identified at least
twenty-three potential non-party, retailer witnesses who
participate in the RJR program, and who are located within 100
miles of this [c]ourt." See Opposition Brief at 6 (citing Gallo
Declaration at ¶ 2). Liggett, moreover, vaguely asserted that the
"employees of these retailers might be witnesses in this case.
New Jersey is the best forum for securing testimony from these
potential witnesses employed by twenty-three retailers." See
id. (emphasis added). Liggett further argued that non-party
witnesses "include, among others, the approximately 57,000
cigarette retailers nationwide that participate in RJR's EDLP
program."*fn22 Id. at 10.
Despite its argument that Liggett has identified "at least"
twenty-three potential non-party retailer witnesses, Opp. Brief
at 6, 10; Gallo Declaration at ¶¶ 2, 4, Liggett did not include
the name of a single non-party witness in either its brief or the
two declarations submitted in opposition to the Motion to
Transfer. In addition, far from explaining how the proposed
testimony of the unidentified non-party witnesses is material to
the instant action, Liggett merely asserted that "[t]hese
witnesses may have relevant information and testimony regarding
RJR's EDLP plan." See Gallo Declaration at ¶ 2 (emphasis
added). See also Petch Declaration at ¶¶ 7-8, 15, 19.
While Liggett does not have the burden in a motion to transfer,
simply arguing that non-party witnesses may include twenty-three
unidentified northeastern retailers (or the approximately 57,000
retailers who participate in the EDLP plan nationally) who may
have relevant information is not sufficient opposition. See Lony
I, 886 F.2d at 636-37; Lacey I, 862 F.2d at 56-47; Xerox, 56
F. Supp.2d at 452; Quickturn Design Sys., 77 F. Supp.2d at 510;
Tischio, 16 F. Supp.2d at 522; Honeywell, 817 F. Supp. at 484.
iii. Location of the Relevant Documents
As mentioned, the "relative ease of access to sources of proof"
is another private interest District Courts may consider when
evaluating a motion to transfer. See Van Cauwenberghe, 486 U.S.
at 528, 108 S.Ct. 1945 (quoting Gulf Oil, 330 U.S. at 508, 67
S.Ct. 839); Xerox, 56 F. Supp.2d at 449-452.
In the instant action it does not appear access to documents
favors either fora. On 12 April 2000, a scheduling conference
(the "12 April 2000 Conference") was conducted.
Counsel indicated that this litigation might involve "hundreds of
thousands of pages [of documents]." See 12 April 2000
Conference Tr. at 10:12-13. In response, it was suggested that
the parties transfer and store all relevant documents on computer
to better facilitate discovery and a trial.
Because the court and counsel have already explicitly addressed
the "ease of discovery" concerning the instant action, the
location of the documents should not impact on the analysis of
whether to transfer this litigation to North Carolina. See Opp.
Brief at 13; Reply Brief at 8. Cf. Honeywell, 817 F. Supp. at
2. Public Interests
The public interest factors relevant to a determination the
propriety of transfer include
the administrative difficulties flowing from court
congestion; the local interest in having localized
controversies decided at home; the interest in having
a trial of a diversity case in a forum that is at
home with the law that must govern the action; the
avoidance of unnecessary problems and conflicts of
laws or the application of foreign law; and the
unfairness of burdening citizens in an unrelated
forum with jury duty.
Lony I, 886 F.2d at 640 (quoting Piper, 454 U.S. at 241 n. 6,
102 S.Ct. 252). Evaluation of the public interest factors include
consideration of "the locus of the alleged culpable conduct . . .
and the connection of the conduct to plaintiff's chosen forum."
Lacey I, 862 F.2d at 48 (quoting Van Cauwenberghe, 486 U.S.
at 529, 108 S.Ct. 1945). See also Lony II 935 F.2d at 612. As
discussed below, it appears North Carolina has a greater interest
in this litigation than New Jersey.
a. Local Interests
As mentioned, both parties maintain their principal place of
business in North Carolina. See Complaint at ¶¶ 9-10; Blynn
Declaration at ¶ 2; Toulon Declaration at ¶ 2. North Carolina,
therefore, has a compelling interest in regulating the conduct of
businesses in its state.*fn23 See Honeywell, 817 F. Supp. at
486. As mentioned, it appears the EDLP plan was developed, has
been, and is currently administered by RJR executives in North
Carolina. See Blynn Declaration at ¶¶ 8-10; Toulon Declaration
at ¶¶ 2-4. Because a substantial amount of the alleged culpable
conduct occurred in North Carolina, not New Jersey, North
Carolina has a stronger public interest in adjudicating this
dispute. See Lacey I, 862 F.2d at 48; Tischio, 16 F. Supp.2d
at 526; Honeywell, 817 F. Supp. at 486; Mediterranean Golf,
783 F. Supp. at 849-50.
b. Burden of Jury Duty
The burden of jury duty "ought not to be imposed upon the
people of a community which have no relation to the litigation."
Tischio, 16 F. Supp.2d at 526 (quoting Honeywell, 817 F. Supp.
at 486 (quotations omitted). See Ferens v. John Deere Co.,
494 U.S. 516, 529-30, 110 S.Ct. 1274, 108 L.Ed.2d 443 (1990) (citing
Gulf Oil, 330 U.S. at 508-09, 67 S.Ct. 839)). In the
instant action, "New Jersey jurors should not be burdened with
adjudicating a matter concerning decisions and[,] or[,] conduct
which occurred predominately outside the State of New Jersey."
Tischio, 16 F. Supp.2d at 526; Pain, 637 F.2d at 792.
Accordingly, this factor also weighs in favor of transfer to the
Middle District of North Carolina.
c. Applicable Law
"An important public interest factor is the desire to have the
case tried before judges familiar with the applicable law."
Tischio, 16 F. Supp.2d at 526. See Lony I, 886 F.2d at 642;
Lacey I, 862 F.2d at 48 (citing Piper, 454 U.S. at 251, 102
S.Ct. 252); Rappoport, 16 F. Supp.2d at 501; Hudson United
Bank, 832 F. Supp. at 888. As mentioned, the instant action is
predicated on alleged violations of Federal antitrust law. See
Complaint at ¶¶ 1, 11, 14, 20, 27, 31-39, 44-48, pp. 13a-e. While
Liggett did not address the "applicable law" factor in either its
opposition brief or declarations, it appears this public interest
is not implicated because all District Courts are presumed
"familiar with the applicable" Federal antitrust laws. See
Ricoh, 817 F. Supp. at 486.
Liggett also alleged a violation of the New Jersey Antitrust
Act. See Complaint at ¶ 41. Upon review of the Complaint, it
appears this State law claim is derivative of the Federal
antitrust law claims. As mentioned, Liggett simply alleges
These detrimental effects on competition show that
the EDLP [C]ontracts constitute a per se
violation of the New Jersey Antitrust Act. . . . In
the alternative, RJR's conduct and EDLP program
constitutes a rule of reason violation of the New
Jersey Antitrust Act. . . .
Id. (citations omitted).
The State antitrust claim, however, does not weigh in favor of
denying the Motion to Transfer because the application of the New
Jersey Antitrust Act mirrors Federal antitrust law. The New
Jersey Antitrust Act specifically provides:
This act shall be construed in harmony with ruling
judicial interpretations of comparable Federal
antitrust statutes and to effectuate, insofar as
practicable, a uniformity in the laws of those
[S]tates which enact it.
N.J.S.A. 56:9-18. See also Ideal Dairy Farms, Inc. v. Labatt,