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O'NEILL v. STANWOOD CORP.

January 25, 1984

JAMES O'NEILL, Plaintiff,
v.
STANWOOD CORPORATION and CHECKOUT CORPORATION, Defendants


John F. Keenan, United States District Judge.


The opinion of the court was delivered by: KEENAN

MEMORANDUM OPINION AND ORDER

JOHN F. KEENAN, United States District Judge:

 Defendants move, pursuant to Title 28, section 1404(a) of the United States Code, for an order transferring this action to the United States District Court for the Western District of North Carolina, where a second suit between the parties is pending. Alternatively, defendants move for an order requiring plaintiff to file a more definite statement pursuant to rule 12(e) of the Federal Rules of Civil Procedure. For the reasons stated hereafter, the motion for a transfer is granted. Because this case is being transferred to the Western District of North Carolina, there is no need to consider defendants' motion for a more definite statement.

 This dispute arises out of the following set of facts.

 On March 28, 1980, plaintiff and Roy Sciacca ("Sciacca"), both residents of California at the time, entered into a commission sales agreement with defendant Stanwood Corporation ("Stanwood"), a North Carolina corporation with its principal place of business in North Carolina. By subsequent amendment and assignment, defendants Checkout Corporation ("Checkout"), a wholly owned subsidiary of Stanwood, and Supam, Inc. ("Supam"), a corporation owned and controlled by O'Neill and Sciacca, became parties to the commission sales agreement.

 On August 25, 1983 the parties to the commission sales agreement entered into a written agreement for its termination. The termination agreement provides that O'Neill, Sciacca and Supam should be paid commissions in an amount to be determined by the accounting firm of Ernst & Whinney by an audit of Checkout's financial condition. The termination agreement further provides, as did the commission sales agreement, that it shall be governed by and construed in accordance with the substantive law of North Carolina.

 On or about November 7, 1983, Ernst & Whinney mailed a preliminary draft of the audit results to the parties. That report indicated that O'Neill, Sciacca and Supam owed money to defendants.

 On November 14, 1983, Sciacca and Supam, by written assignments, assigned their rights under the two aforementioned agreements to O'Neill.

 On November 15, 1983, plaintiff, now a New York resident, filed this suit seeking damages in an amount in excess of $500,000 for defendants' failure to pay commissions allegedly owed to plaintiff and his assignors pursuant to the March, 1980 and August, 1983 agreements.

 On November 22, 1983, one day after service of the complaint in the instant suit was effected, defendants filed an action in North Carolina Superior Court against plaintiff herein and his assignors. The North Carolina suit asserts claims arising out of the same two agreements that form the basis of the instant suit. That action has been removed to federal court in the Western District of North Carolina by reason of diversity.

 Defendants contend that the allegations of the complaint in the instant suit concern North Carolina defendants, concern numerous documents located in North Carolina, are governed by North Carolina law and require the testimony of nonparty witnesses who reside in North Carolina. It is defendants' position that the transfer of this case will further the interests of the parties, witnesses and the public in avoiding undue expense and inconvenience.

 Discussion

 Title 28, section 1404(a) of the United States Code provides that:

 
For the convenience of the parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or ...

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