The opinion of the court was delivered by: HERLANDS
HERLANDS, District Judge:
Motions by each of the three defendants to transfer this case to the United States District Court for the Eastern District of Virginia in the "interest of justice" and for the "convenience of the parties and witnesses" (28 U.S.C. § 1404(a) (1964)) raise the following question: Should this Court initially determine whether there is a genuine issue of material fact (and thus possibly dispose of the entire case summarily) before deciding the transfer motions or should this Court decide the transfer motions and, in the event a transfer is ordered, leave the matter of a possible summary judgment to the transferee court should such relief be sought in that court?
This opinion sets forth the reasons why the Court has granted the transfer motions and has deferred to the transferee court the possible question of summary judgment.
Having made demand on the defendant corporation to initiate suit and sixty days having elapsed with the corporation's failing so to act, plaintiff brings this proceeding on behalf of the corporation, charging a violation of § 16(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78p(b) (1964). Plaintiff seeks to recover "short swing" profits allegedly made by defendants Scurlock and Sloan.
Scurlock and Sloan founded the Atlantic Research Corporation in 1949, and were the chief executives, two of its directors, and its principal stockholders. Atlantic Research Corporation merged into The Susquehanna Corporation on December 4, 1967, at which time the shareholders of Atlantic Research Corporation, including Scurlock and Sloan, exchanged their common stock for an equal number of Susquehanna Class A Cumulative Convertible (immediately) Preferred Stock ("Susquehanna Preferred"). Scurlock and Sloan each owned more than 10% of this preferred stock after the exchange; and they were also directors of The Susquehanna Corporation.
Scurlock admits having sold, from December 20, 1967 through January 17, 1968, 36,000 shares of the Susquehanna Preferred at prices ranging from $54.00 to $71.625 per share.
Sloan admits having sold 1,000 shares of Susquehanna Preferred on December 27, 1967 at a price of $74.75 per share. Defendants admit that the common stock of Atlantic Research Corporation, which was exchanged for the Susquehanna Preferred on a one-for-one basis, was traded on the American Stock Exchange on December 4, 1967, at a high of 42 3/4, a low of 41 5/8, and closed at 41 3/4.
Defendants' motions to transfer are predicated on the factors of witness convenience, party convenience, speedier trial, readier access to proof, and the availability of compulsory process in the transferee district. In opposing the motions, plaintiff does not dispute the fact that the transferee district would be a more attractive forum for trial of the lawsuit. Plaintiff, however, argues that this case is ripe for summary adjudication and that, therefore, the granting of the transfer motions would not facilitate convenience nor serve the interests of justice.
Countering this argument, defendants claim that there are disputed genuine issues of material fact requiring a trial, in connection with which convenience would be served by the proposed transfer to the Eastern District of Virginia. These asserted issues of fact are:
(1) Whether Sloan and Scurlock "controlled" Atlantic Research Corporation in the sense that they had significant influence over corporate decisions. Defendants submit that this issue is material because it has been held that, in determining whether a particular transaction was a sale, "it is relevant to first consider whether the transaction in any way makes possible the unfair insider trading that Section 16(b) was designed to prevent." See Blau v. Lamb, 363 F.2d 507, 518 (2d Cir. 1966), cert. denied, 385 U.S. 1002, 17 L. Ed. 2d 542, 87 S. Ct. 707 (1967).
(2) Whether the facts surrounding the merger were sufficiently disclosed so that Scurlock and Sloan did not have an unfair advantage. The materiality of this factual issue has not been made entirely clear.
(3) Whether defendant Scurlock owned 600 shares sold on December 27, 1967, in light of Scurlock's denial of ownership and his allegation that they were held in a custodian account and owned by Scurlock's children.
Plaintiff has emphasized the essentially legal nature of § 16(b) litigation and has cited several cases where the court, recognizing this characteristic, denied the motion to transfer. In Franklin v. Blaylock, 218 F. Supp. 261 (S.D.N.Y.), petition for mandamus denied, Blaylock v. McLean, 319 F.2d 533 (2d Cir. 1963), the court refused to order a transfer because the issues involved therein (which were strikingly similar to those in the instant case) were primarily issues of law. Chief Judge Lumbard, dissenting, in the denial of the petition for mandamus, did not advert to this factor but felt that, where the convenience of the parties and witnesses so clearly would be served in the transferee district, it was a "clear abuse of discretion" to deny the motion. 319 F.2d at 534.
In Blau v. Lamb, 20 F.R.D. 411 (S.D.N.Y. 1957), the court denied the motion to transfer because the disposition of the case probably depended entirely on documentary evidence. Plaintiff was a New York resident; and the court decided that his choice of forum should be controlling. In Blau v. Lamb a trial was ultimately conducted in the Southern District of New York, though, from the opinion denying ...