under Pennsylvania law, a plaintiff must plead facts showing (1) a prospective business or contractual relation; (2) defendant's purpose or intent to harm the plaintiff by preventing the relation from occurring; (3) the absence of privilege or justification on the part of the defendant; and (4) actual damage resulting from defendant's conduct. See Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (Pa. 1979).
The first element of this tort requires Sunshine to show that it is "reasonably probable" that a business relationship between it and third parties, Vanguard customers, would have occurred. See Glenn v. Point Park College, 441 Pa. 474, 272 A.2d 895, 898-99 (Pa. 1971); General Sound Tel. Co. v. AT&T Communications, Inc., 654 F. Supp. 1562 (E.D.Pa. 1987). Vanguard contends that Sunshine's allegations amount to no more than "mere hope" of such a relationship with Vanguard's customers. However, it is reasonable to infer from the complaint that if a two-way roaming agreement is entered into, Sunshine is likely to increase substantially its provision of roaming service to Vanguard customers.
As an additional attack on Sunshine's satisfaction of the first element, Vanguard claims since roaming agreements are executed between carriers, not between carrier and customers, it is "logically impossible" for Sunshine to enter into a "roaming agreement" with Vanguard customers. However, failure to enter a roaming agreement is the manner in which Vanguard is interfering with Sunshine's prospective business relations with Vanguard consumers. It is not a "roaming agreement" but provision of roaming services that is the prospective business relationship Sunshine desires to enter into with Vanguard customers and with which Sunshine alleges Vanguard interfered. See Rutherfoord v. Presbyterian-University Hospital, 612 A.2d 500, (Pa. Super.).
Vanguard attacks Sunshine's satisfactory pleading of the fourth element of this tort by contending that since Sunshine currently provides roaming service to some Vanguard customers, Vanguard cannot have excluded Sunshine from directly dealing with Vanguard customers. However, the possibility that some Vanguard customers may have overcome problems created by Vanguard's refusal to enter into a two-way roaming agreement does not detract from the possibility that Vanguard's conduct has interfered with Sunshine's ability to enter into business relations with the majority of Vanguard customers who have been denied automatic access to Sunshine's system. See Adler, Barish, Daniels, Levin and Creskoff v. Epstein, 482 Pa. 416, 431, 393 A.2d 1175 (1978).
Sunshine's Complaint contains all elements for asserting tortious interference with business relations. Sunshine alleges that Vanguard has, without business justification, purposely caused third parties, Vanguard customers in the Pennsylvania Supersystem who roam into Sunshine's territory, not to enter into business relations with Sunshine, i.e. not to place calls through Sunshine's cellular system, thus denying Sunshine substantial roaming revenues. Complaint P 60.
For the foregoing reasons, Vanguard's motion to dismiss Sunshine's tortious interference with business relations claim pursuant to Rule 12(b)(6), F.R.Civ.P., is denied.
III. Motion to Strike
Rule 12(f), F.R.Civ.P., allows the court to strike any "redundant, immaterial, impertinent or scandalous matter" from any pleading. 28 U.S.C.A. Rule 12(f) (1992). Vanguard requests that Sunshine's allegations relating to its assertion that Vanguard has engaged in "baseless and sham" litigation against Sunshine be struck because Sunshine does not claim that the litigation amounted to a tort under Pennsylvania law, nor does Sunshine request any relief relating to the litigation.
Motions to strike are not favored, and will be denied unless the allegations have no possible relation to the controversy. See Laverpool v. New York City Transit Authority, 760 F. Supp. 1046, 1061 (E.D.N.Y. 1991). If there is any doubt whether the challenged matter may raise an issue of fact or law, the motion to strike should be denied, and the sufficiency of the allegations left for the adjudication on the merits. Wright & Miller, Federal Practice and Procedure: Civil 2d § 1382 at 697-700. Although Sunshine does not assert a claim for malicious prosecution or wrongful use of civil process arising out of the litigation against it, Sunshine maintains that it is seeking to recover the legal fees it was forced to incur in that litigation as an element of its damages for violation of Pennsylvania's antitrust law. Plaintiff's Brief at 62. Sunshine claims the allegations have evidentiary value as to Vanguard's specific intent and anticompetitive behavior. See, e.g., Grip-Pak, Inc. v. Illinois Tool Works, Inc., 694 F.2d 466 (7th Cir. 1982), cert. den., 461 U.S. 958, 77 L. Ed. 2d 1317, 103 S. Ct. 2430 (1983) (sham litigation may form a predicate for Sherman Act § 1 violation even if not tortious).
For the foregoing reasons, Vanguard's motion to strike is denied.
IV. Motion to Transfer Venue
Vanguard moves to transfer venue pursuant to 28 U.S.C. § 1404(a) from the Southern District of New York to either North Carolina or Pennsylvania. Section 1404(a) provides that "for the convenience of parties and witnesses, in the interests of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a).
The relevant criteria in deciding a motion to transfer include: (1) the convenience of the parties; (2) the convenience of the witnesses; (3) the relative ease of access to sources of proof; (4) the availability of process to compel the attendance of unwilling witnesses; (5) the interests of justice; (6) other practical problems making trial of a case expeditious and inexpensive. Seagoing Uniform Corp. v. Texaco, Inc., 705 F. Supp. 918, 935 (S.D.N.Y. 1989) (Motley, J.); Schieffelin & Co. v. Jack Co. of Boca, Inc., 725 F. Supp. 1314, 1321 (S.D.N.Y. 1989) (Leisure, J.).
Since Sunshine and its partners are not located in this district, Vanguard claims Sunshine is equally inconvenienced litigating in any of the districts. Therefore, Vanguard argues for transfer of venue to North Carolina where Vanguard's corporate headquarters is located, or to Pennsylvania, the locus of Vanguard's business. However, even when the plaintiff is not a resident of the chosen forum, his choice is still entitled to significant weight. Motown Record Corp. v. Mary Jane Girls, Inc., 660 F. Supp. 174, 175 (S.D.N.Y. 1987) (Sweet, J.). Furthermore, Vanguard has not shown that North Carolina would be more convenient for Sunshine which is not located in North Carolina and conducts none of its business there. Since Vanguard does business in this district, it cannot contend that it would be substantially inconvenienced by litigating here. See, e.g., Reid Dominion Packaging, Ltd. v. Old Tyme Softdrinks, Inc., 661 F. Supp. 555, 556 (W.D.N.Y. 1987).
Vanguard claims this district is inconvenient for all of its witnesses because they are all located in North Carolina or Pennsylvania. However, Sunshine is prepared to take depositions in North Carolina of any employees located there who do not travel regularly to New York. Plaintiff's Venue Brief at 16. There is no doubt that a trial in either of defendant's two suggested districts would be less of a business interruption for Vanguard, but the inconvenience of testifying in New York will not be insufferable since Vanguard's witnesses need only be present while testifying. See Star Lines, 442 F. Supp. at 1207.
Access to documents and other proof is not a persuasive factor in favor of transfer without proof that documents are particularly bulky or difficult to transport, or proof that it is somehow a greater imposition for defendant to bring its evidence to New York than for plaintiff to bring its evidence to North Carolina or Pennsylvania. See Stinnes Interoil, Inc. v. Apex Oil Co., 604 F. Supp. 978, 983 (S.D.N.Y. 1985) (Leisure, J.). Vanguard has not proffered evidence suggesting either contingency. Sunshine is willing to pay the cost of transporting them to New York, and is willing to accept copies. Plaintiff's Venue Brief at 16.
Vanguard contends there is a "much greater likelihood" that witnesses will be within the subpoena power of a Pennsylvania court as compared to this district where "only the extreme eastern edge of the alleged Pennsylvania supersystem" is within the subpoena power of this court. However, significant portions of the Supersystem do lie in this District or within the subpoena power of this court. Estess Aff. PP 8-10.
According to Vanguard, the interests of justice require transfer because this case is likely to be disposed of more quickly in either North Carolina or Pennsylvania. However, if need be, the case can be handled here on an expedited basis. See Dow Jones & Co. v. Board of Trade, 539 F. Supp. 190, 192-93 (S.D.N.Y. 1982) (Carter, J.) ("docket congestion is not considered a dispositive factor in this court.").
Finally, Vanguard asserts it would be more practical to adjudicate this case in Pennsylvania given Sunshine's Pennsylvania state law claims. However, resolution of Sunshine's Pennsylvania law claims does not require the expertise of a Pennsylvania court. See Stinnes, 604 F. Supp. at 983 (fact Missouri law controls not relevant because Missouri abides by Uniform Commercial Code which is also prevailing law in New York). Vanguard admits that Pennsylvania antitrust laws are identical to federal antitrust laws, and Pennsylvania law on tortious interference of business relations is based on the Restatement (Second) of torts. Rutherfoord, 612 A.2d 500, (Pennsylvania adopted Restatement Second definition for tortious interference with business relations).
A § 1404(a) motion should not be granted if all transfer would accomplish is to shift the inconveniences from one side to the other. Stinnes, 604 F. Supp. at 984. Transfer of venue in this case to either North Carolina or Pennsylvania would merely shift the inconveniences from Vanguard to Sunshine.
For the foregoing reasons, Vanguard's motion to transfer venue is denied.
IT IS SO ORDERED.
Dated: New York, New York
October 28, 1992
Robert L. Carter