The opinion of the court was delivered by: KAUFMAN
The defendants herein have moved to transfer this action to the District Court for the District of Massachusetts, pursuant to Section 1404(a) of Title 28 of the United States Code Annotated, which provides that 'For the convenience of the 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.'
This is an anti-trust suit and the complaint alleges that the corporate defendant, Scott & Williams, and its president, Ralph E. Thompson, have combined and conspired beginning in or about 1917 to restrain and monopolize interstate trade and commerce in seamless hosiery machinery and to restrain foreign commerce in said hosiery machinery in violation of Sections 1 and 2 of the Sherman Act, 15 U.S.C.A. §§ 1, 2; the complaint prays for such equitable relief as may be necessary to terminate said monopoly and dissipate its effects. It has been held that Section 1404(a) is applicable to civil suits by the Government against corporations under the anti-trust laws. United States v. National City Lines, 1949, 337 U.S. 78, 69 S. Ct. 955. The question before the Court is whether the defendants have made such a special showing of justification for transfer of this action to Massachusetts as to satisfy the requirements of Section 1404(a).
Section 1404(a) is a comparatively recent enactment. Its interpretation has not been uniform. The courts have differed in determining whether Section 1404(a) is but a codification of the doctrine of forum non conveniens, which does not change the criteria set forth by the Supreme Court in Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055, to be applied in determining the appropriateness of a given forum, (Maloney v. N.Y., N.H. & H.R. Co., D.C.S.D.N.Y., 88 F.Supp. 568; Auburn Capital Theatre v. Schine Chain Theatres, D.C.S.D.N.Y. 1949, 83 F.Supp. 872), or whether such section has introduced 'a new principle into Federal judicial procedure.' United States v. Dupont, D.C.D.C. 1949, 83 F.Supp. 233.
The Revisor's Notes with reference to Section 1404 state that 'Subsection (a) was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper.' These Notes carry great weight in the construction of the Section. See United States v. National City Lines, 1949, 337 U.S. 78, 81, 69 S. Ct. 955; Ex parte Collett, 1949, 337 U.S. 55, 57-58, 69 S. Ct. 944, 959, and on the basis of those Notes it would seem that Section 1404(a) is but a codification of the doctrine of forum non conveniens. However, the Court is in agreement with Judge Ryan, who, in the recent case of Ferguson v. Ford Motor Company, D.C.S.D.N.Y. 1950, 89 F.Supp. 45, 50, construing Section 1404(a) stated that ' * * * the remedy available under Section 1404(a)- i.e. transfer- differs from and is less harsh than the remedy available under forum non conveniens- i.e. dismissal * * * .' and that ' * * * the court in the course of balancing the various factors which must be examined to determine the availability of a remedy, as set forth in the Gulf Oil case, supra, will give different emphasis to those factors * * * and require less of a showing of 'abuse of process' while being more willing to grant relief on a showing of inconvenience.'
However, though the showing of inconvenience required may be less under Section 1404(a), the criteria which the Court must consider and appraise in determining a motion pursuant to that Section are derived principally from forum non conveniens cases particularly Gulf Oil v. Gilbert, supra. See Ferguson v. Ford Motor Co., supra, 89 F.Supp.at p. 45.
The criteria that are relevant in this case are:
(1) the relative case of access to sources of proof;
(2) the convenience and cost of obtaining willing witnesses;
(3) the effect of a prolonged trial in New York on defendants' business and
(4) the various public interests involved.
It is difficult to catalogue the circumstances which will justify or require either granting or denying the remedy of transfer, and therefore much is left to the discretion of the Court. See Gulf Oil Corp. v. Gilbert, supra, 330 U.S.at page 508, 67 S. Ct. 839, 91 L. Ed. 1055. Furthermore a movant for relief under 1404(a) must show preponderant balance in his favor, for it is only the exceptional case which merits relief under this section. Ferguson v. Ford, supra, 89 F.Supp.at page 45, cf. Gulf Oil Co. v. Gilbert, supra, 330 U.S.at pages 508-509, 67 S. Ct. 839, 91 L. Ed. 1055. As Judge Ryan said in Ferguson v. Ford, supra, 89 F.Supp.at page 51:
'A strong balance in favor of the movant must still be shown, although as above indicated, that balance is less than that required under forum non conveniens.'
Getting to the merits of the motion in this case, the hearing and moving papers ...