MEMORANDUM AND ORDER
NEAHER, District Judge.
Plaintiff, a professional basketball player, commenced this action to rescind his contract with the defendant basketball club (hereinafter "Squires") and to recover claimed damages of $308,800 by reason of alleged concealment and false representations which induced him to enter the contract. Jurisdiction is grounded on diversity of citizenship, 28 U.S.C. § 1332(a), plaintiff alleging New York citizenship and residence and Squires conceding it is a limited partnership having its principal office in Norfolk, Virginia where the sole general partner, a District of Columbia corporation, also resides and is licensed to do business.
Squires has moved before answer to dismiss the complaint for lack of jurisdiction over the subject matter and over its person and for insufficient service of process. Rule 12(b)(1), (2) and (5), F.R.Civ.P. Alternatively, it seeks to have the action transferred under 28 U. S.C. § 1404(a) to the United States District Court for the Eastern District of Virginia, Norfolk Division.
Squires' motion under Rule 12(b)(1) and (5) must fail. Its contention that the court lacks jurisdiction over the subject matter rests solely upon plaintiff's omission to allege in the complaint, as filed, the diverse citizenship of the Squires partnership as distinguished from its principal place of business in Virginia. For purposes of diversity jurisdiction the citizenship of the general partners is controlling. See Woodward v. D. H. Overmyer Co., 428 F.2d 880, 883 (2 Cir.), cert. den. 400 U.S. 993, 91 S.Ct. 460, 27 L.Ed.2d 441 (1971). The fact of such diverse citizenship having been documented by plaintiff and conceded by defendant, n. 1 supra, an amendment of the complaint was allowed so as to reflect it. Rule 15(a), F.R.Civ. P.
The claim of insufficiency of service of process also lacks merit. Concededly a copy of the summons and complaint was forwarded by the United States Marshal for this district to the Marshal for the Eastern District of Virginia. The latter's deputy delivered it to Al Bianchi, general manager of The Virginia Squires Basketball Club, Inc., the District of Columbia corporation which is the sole general partner of Squires. That service was effected at the general partner's office in Norfolk, Virginia, where the Squires business office is also located, n. 1 supra, and it is not denied that Mr. Bianchi was authorized to accept it.
The procedural sufficiency of service of process upon Squires having been upheld, the remaining—and critical —jurisdictional question is whether Squires is "subject to the jurisdiction of the courts of the state under section 301 or 302", N.Y. CPLR § 313, as plaintiff contends. On that question "it is the plaintiff who shoulders the burden of proof, by a preponderance of the evidence." Leasco Data Processing Equipment Corp. v. Maxwell, 319 F.Supp. 1256, 1260 (S.D.N.Y.1970). And "[a]s this is a diversity case the question must be resolved under New York law [citation omitted]." Beja v. Jahangiri, 453 F.2d 959, 960 (2 Cir. 1972).
Under N.Y. CPLR § 301,
The following undisputed facts appear from the pleadings, affidavits and concessions of the parties concerning the unique business activities of defendant. Squires is engaged in the business of conducting and participating in professional basketball games for profit. Although Squires' domicile, base of operations and "home" games are localized in Norfolk, Virginia, its business is multistate and interstate in nature, as part of the operations of a national league of such clubs.
Squires is one of the member clubs of the American Basketball Association (ABA), which was formed "[t]o operate a league of professional basketball clubs and to promote the interests of professional basketball and the interests of each member club" and "[t]o do everything and anything . . . necessary . . . for the purposes above stated or any of them."
ABA, under its by-laws, does not itself operate for profit, supra n. 5, but it is clearly the framework—akin to a joint venture—through which Squires
A review of ABA's comprehensive by-laws permits of no doubt that the playing of basketball games in New York is not only in furtherance of Squires' own business purposes but is essential to the fulfillment of the business purposes and objects of the ABA joint enterprise of which Squires is an integral part. Squires plays a number of games here with the New York Nets club of the ABA because it is contractually bound to do so. The playing dates and number of games are fixed months in advance by the ABA Commissioner who prepares the schedule of games each member club is obliged to play.
That the Squires play only 6 to 8 games in New York out of a season schedule of 84 games cannot obscure the vital importance of the New York portion of the schedule to the Squires' continuance in business. The entire basketball season lasts only six months—October through March—except for play-off games; and the average number of playing days is about three a week. Thus during a season the Squires play in New York on the average of at least once a month, not casually or fortuitously, but on a regular and continuing basis pursuant to a well-organized business plan.
The Squires argue, however, that they derive no revenue from their games here since "all gate receipts go . . . to the New York Nets."
Regardless of the manner in which the Squires receive business income from their playing activities in New York, it is not denied that management and other personnel travel regularly to New York in connection with the performance of those activities. In addition to players, these include the Squires' executive vice-president, Mr. John Kerr, its head coach, Mr. Bianchi,
This is not the first time a court has had to take into account the unique nature of the business of professional basketball clubs in deciding whether or not their game-playing activities away from "home" render them subject to suit in those jurisdictions in which they play. In Hawkins v. National Basketball Association, 288 F.Supp. 614 (W.D.Pa.1968), a basketball player's civil antitrust action, the defendant association (NBA) and member clubs sought to dismiss the case for lack of proper venue. All the NBA member clubs except the Philadelphia 76ers were non-residents having no place of business in Pennsylvania or in Pittsburgh where the suit was brought. The applicable venue statute, 15 U.S.C. § 22, permitted suit "in any district wherein [a defendant] may be found or transacts business" (emphasis supplied).
In denying dismissal upon the ground that the defendant member clubs had at various times played league games in Pittsburgh, the court observed, 288 F. Supp. at 619:
With specific reference to the unusual nature of the defendants' business, the court's further comment is particularly apposite here, id.:
In this court's opinion Squires' business activities in New York as summarized above amply satisfy the plaintiff's burden of establishing that defendant is "doing business" here within the meaning of N.Y. CPLR § 301 so as to subject it to personal service of process under § 313. Applying the "simple pragmatic" test as instructed by Bryant v. Finnish National Airline, supra at pp. 629, 441, the facts sum up to show (1) regular and continuous, albeit periodic, visits to New York for the business purpose of playing professional games for
The conclusion with respect to § 301 jurisdiction over Squires makes it unnecessary to consider the applicability of § 302. Squires' request for alternative relief, if jurisdiction is found, requires a determination as to whether or not a transfer of this action to the Eastern District of Virginia under 28 U.S.C. § 1404(a) is warranted.
A motion to transfer under § 1404(a) is addressed to the sound discretion of the court. United States v. General Motors Corp., 183 F.Supp. 858, 860 (S.D.N.Y.1960). In exercising its discretion, the court will ordinarily give great weight to plaintiff's choice of forum, and will look to the defendant to provide cogent reasons why transfer would be appropriate. "Section 1404(a) provides for transfer to a more convenient forum, not to a forum likely to prove equally convenient or inconvenient." Van Dusen v. Barrack, 376 U.S. 612, 645, 84 S.Ct. 805, 824, 11 L.Ed.2d 945 (1963). In sum, Squires, the moving party, has "the burden of showing that the transfer is warranted, and unless the balance of conveniences clearly favors the [defendant], [plaintiff's] choice of forum will not be disturbed. [citations omitted]." Maheu v. Reynolds & Co., 282 F.Supp. 423, 426-427 (S.D.N.Y.1967).
Squires urges that transfer should be ordered primarily on three grounds—the convenience of the parties, that of the witnesses, and the greater familiarity of Virginia courts with Virginia contract law. The facts disclosed in the papers before the court reveal no clear-cut imbalance of the equities for these or any other reasons.
(a) The convenience of the parties. Plaintiff's affidavits show that he is a resident and domiciliary of New York, that he owns a home here in which his family resides and which he claims as his own permanent residence. A copy of the contract between plaintiff and Squires, the subject of the controversy, describes plaintiff as being of "New York."
It does not appear that sources of proof other than the testimony of the parties and witnesses will be significant in this case. It is unlikely that a trial will involve the examination or delivery of vast numbers of documents or records. Consequently the relative ease of access to sources of proof is not critical. Even if it were, an imbalance in ease of access has not been shown.
(c) The applicable law. The contract was negotiated and executed in Philadelphia, Pennsylvania, but by its terms is to be governed by the laws of Virginia. Virginia law does not necessarily apply, however, since plaintiff's action is not a suit on the contract, but rather seeks to void it. It is equally likely, if not more likely, that Pennsylvania law is the applicable law, in which case this forum would be as qualified as one in Virginia to decide this case.
None of the factors discussed above, nor any other practical considerations, warrant transferring this matter. The Eastern District of Virginia is not distinctly more convenient than the Eastern District of New York.
Accordingly, Squires' motion is denied in all respects and it is so ordered.
Personal service upon persons conducting a business as a partnership may be made by personally serving the summons within the state upon any one of them.
§ 311. . . .
Personal service upon a corporation . . . shall be made by delivering the summons as follows:
1. upon any domestic or foreign corporation, to an officer, director, managing or general agent, . . .
§ 313. . . .
A person domiciled in the state or subject to the jurisdiction of the courts of the state under section 301 or 302, or his executor or administrator, may be served with the summons without the state, in the same manner as service is made within the state, by any person authorized to make service . . . by the laws of the state, territory, possession or country in which service is made . . . .
A court may exercise such jurisdiction over persons, property, or status as might have been exercised heretofore. L.1962, c. 308, eff. Sept. 1, 1963.