                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-2-1995

Jumara v State Farm
Precedential or Non-Precedential:

Docket 94-1447




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Recommended Citation
"Jumara v State Farm" (1995). 1995 Decisions. Paper 149.
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          UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT



                     NO. 94-1447


    GEORGE JUMARA and EVANGELINA JUMARA, H/W

                                                Appellants

                          v.

           STATE FARM INSURANCE COMPANY

                                                Appellee



On Appeal From the United States Court of Appeals
    For the Eastern District of Pennsylvania
           (D.C. Civ. No. 94-cv-00366)




           Argued:     September 22, 1994

Before:   BECKER, COWEN and GARTH, Circuit Judges.

              (Filed    June 2, l995)


                 LEE BELFER, ESQUIRE (ARGUED)
                 RONALD A. BLUMFIELD, P.C.
                 RONALD A. BLUMFIELD, ESQUIRE
                 1636 Pine Street
                 Philadelphia, PA   19103

                 Attorneys for Appellants


                 DANIEL A. PERRY, ESQUIRE (ARGUED)
                 THOMAS P. COMERFORD, ESQUIRE
                 FOLEY, COGNETTI & COMERFORD
                 507 Linden Street
                 700 Scranton Electric Bldg.
                 Scranton, PA   18503
                           Attorneys for Appellee




                         OPINION OF THE COURT




Becker, Circuit Judge.
          This is an underinsured motorist (UM) case governed by

Pennsylvania law.   The appeal arises out of an action filed in

the United States District Court for the Eastern District of

Pennsylvania by plaintiffs George and Evangelina Jumara seeking

to appoint arbitrators and to compel arbitration by their own

carrier, defendant State Farm Insurance Company.    Ultimately, it

presents the question whether the Jumaras' (two) insurance

contracts with State Farm, which incorporate the Pennsylvania

Uniform Arbitration Act (UAA), contemplate arbitration-related

proceedings in the Court of Common Pleas of Luzerne County (PA)

or in the United States District Court for the Middle District of

Pennsylvania, or in either court.    The district court denied the

Jumaras' motion to compel arbitration (and thereby effectively

dismissed the action), reasoning that the insurance contracts, in

light of the Pennsylvania law that they incorporate, contained a

forum selection clause that relegates the plaintiffs to suit in

the Court of Common Pleas of Luzerne County.    We disagree, and

will vacate the order denying plaintiff's motion.

          Although the district court in effect disposed of the

case under 28 U.S.C. § 1406 (for improper venue), we conclude

that, because venue was actually proper in the Eastern District
of Pennsylvania, the case could not be dismissed pursuant to that

provision.   The district court should instead have invoked 28

U.S.C. § 1404(a), which involves a multi-factor balancing test in

which a contractual forum selection clause carries substantial

although not dispositive weight.   However, because the other

factors cannot even in combination overcome the forum selection

clause, we will not remand the case, but rather will direct the

district court to transfer the case to the United States District

Court for the Middle District of Pennsylvania, a "court of

record" in Luzerne County.1



                 I.   FACTS AND PROCEDURAL HISTORY

          Plaintiffs are residents of Luzerne County.   While

operating his motorcycle on May 22, 1992, George Jumara sustained

serious injuries as a result of a collision with an automobile

driven by Mary Reynolds.   Jumara underwent emergency surgery for

numerous lacerations and fractures.   On June 9, 1992, the Jumaras

filed a tort action against Reynolds, which they eventually

settled on October 20, 1994 for the limits of Reynolds'

automobile liability insurance policy, with the permission of
1
 . Prior to argument, we requested supplementary briefs on the
question of whether this case was justiciable, i.e., whether
there was a case or controversy within the meaning of Article III
of the Constitution, and whether the dispute was ripe for
decision. This question arose because the Jumaras sought to
compel the appointment of an arbitrator before the amounts of the
underlying claims for underinsured motorists benefits were
determined. (The Jumaras had not yet settled their claim against
Reynolds when they filed this action.) After argument, any such
question was resolved by the Jumaras' settlement with Reynolds
for the limits of her liability policy.
State Farm.    At the time of the accident, the Jumaras' two cars

were covered by automobile insurance policies issued by State

Farm.   Each policy included underinsured motorist coverage of

$100,000/$300,000, and each provided for arbitration in the event

of disputes.    Reynolds was covered by a $100,000 liability

policy.

            On January 21, 1994, the Jumaras claimed underinsured

motorist benefits in the amount of $200,000 under their policies

by filing a complaint in the district court for the Eastern

District of Pennsylvania (¶ 9 of Petition).    The complaint

designated Steven C. Forman as the Jumaras' arbitrator, and

sought the appointment of neutral and defense arbitrators and an

order compelling underinsured motorist arbitration.2   The Jumaras

served this complaint on State Farm on February 8, 1994.

            In response, State Farm designated Joseph Van Jura as

its arbitrator, but, based on the arbitration provisions

contained in the insurance contracts, challenged venue in the

Eastern District. On April 4, 1994, the district court held that

proper venue lay with the Court of Common Pleas in Luzerne County

and therefore denied the Jumaras' motion.   The Jumaras have

appealed.   As of the time of oral argument before us, the two

parties' arbitrators had been unable to agree on a neutral third

arbitrator.




2
 . The dissent inadvertently represents that the Jumaras sought
only the appointment of arbitrators in their petition.
          By directing the Jumaras to the Pennsylvania state

court, the district court's order in effect terminated the

federal litigation of the Jumaras underinsured motorist claim.

The order denying the Jumaras' motion was premised on the

district court's view that Pennsylvania insurance law limited the

Jumaras to proceeding in the Courts of Common Pleas.     The court

suggested no circumstances under which it would reconsider

granting the Jumaras' motion, and hence the district court's

order is final and appealable.   28 U.S.C.A. § 1291 (1994).

                II.   SUBJECT MATTER JURISDICTION

          Jurisdiction in the district court was premised upon

diversity of citizenship, 28 U.S.C.A. § 1332 (1994).    The Jumaras

are citizens of Pennsylvania, and State Farm is a citizen of

Illinois, which is the state of its incorporation and the

location of its principal place of business.   Thus the Jumaras

established the complete diversity required by § 1332(a).

          The diversity statute further requires, of course, that

the amount in controversy be in excess of $50,000.     28 U.S.C.A.

§ 1332(a) (1994).   While the Jumaras allege that State Farm is

obligated to pay compensation in excess of that amount (up to

$200,000 or the sum of the underinsured motorist benefits of each

of the Jumara's policies), they did not demand any money damages

in the district court; rather they sought only arbitration.

Because of the nature of the policy, the amount of the Jumaras'

claim against State Farm depends on the insurance shortfall left

by Reynolds' policy, itself a function of the extent of both Mr.

Jumara's injuries and the recovery available under Reynolds'
policy.    Because the Jumaras did not allege the amount of the

insurance shortfall, the question arises as to whether the

Jumaras have satisfied the diversity statute's amount in

controversy requirement.    Indeed, State Farm argued in the

district court that the lack of amount in controversy deprived

that court of subject matter jurisdiction, an argument rejected

by the court.

            The question, however, is far from novel.   We faced a

similar situation in Manze v. State Farm Ins. Co., 817 F.2d 1062,

1068 (3d Cir. 1987).    In Manze, the plaintiff sought to compel

arbitration with her insurance company and appointment of a

neutral arbitrator, and the carrier removed the action to federal

court.    Although the demand made by the insured on her insurer

exceeded the jurisdictional minimum, and the policy provided

coverage in excess of the minimum, the plaintiff objected to

diversity jurisdiction, contending that the amount in controversy

requirement was unmet because she had asked the state court only

to compel arbitration, not to award the amount she demanded.

            We rejected her argument, holding that the requirement

was satisfied despite the fact that the action did not itself

seek monetary relief, id. at 1068.    We expressly followed

Davenport v. Procter & Gamble Mfg. Co., 241 F.2d 511 (2d Cir.

1957), which denied a motion to remand to state court a (removed)

action to compel arbitration according to the terms of a

collective bargaining agreement, quoting Davenport's discussion

of the amount in controversy requirement:
           In considering the jurisdictional amount
           requirement the court should look through to
           the possible award resulting from the desired
           arbitration, since the petition to compel
           arbitration is only the initial step in a
           litigation which seeks as its goal a judgment
           affirming the award.


Manze, 817 F.2d at 1068 (quoting Davenport, 241 F.2d at 514).

Thus the amount in controversy in a petition to compel

arbitration or appoint an arbitrator is determined by the

underlying cause of action that would be arbitrated.

           This is in accord with general precedent concerning the

amount in controversy requirement.    The allegations on the face

of the complaint control the amount in controversy unless it

appears "`to a legal certainty the claim is really for less than

the jurisdictional amount . . . .'"   Horton v. Liberty Mut. Ins.
Co., 367 U.S. 348, 353, 81 S. Ct. 1570, 1573 (1961) (quoting St.

Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 289, 58

S. Ct. 586, 590 (1938)).   Indeterminacy of the amount to be

recovered is therefore not sufficient to defeat diversity

jurisdiction, and so it is immaterial that the Jumaras might

eventually recover less than $50,000 from State Farm.    Given that

the Jumaras allege quite serious injuries and an entitlement to

as much as $200,000 in underinsured motorist benefits, we cannot

say with legal certainty that the Jumaras will recover less than

$50,000.   Thus, the amount in controversy requirement is

satisfied, the district court had subject matter jurisdiction.

We therefore turn to the merits of this appeal.
                             III.       VENUE

          As we have explained, the district court dismissed the

Jumaras' complaint by denying their motion to appoint arbitrators

and to compel arbitration on the grounds of faulty venue.3               We

conclude that the district court should instead have considered

whether to transfer the case to the United States District Court

for the Middle District of Pennsylvania.          We further conclude

that the court should have ordered the transfer to the Middle

District.
       A. SHOULD THE DISTRICT COURT HAVE ACTED PURSUANT TO
               28 U.S.C. § 1404 OR 28 U.S.C. § 1406?

          The salient factor here is the presence of the forum

selection clause.      In federal court, the effect to be given a

contractual    forum   selection     clause      in   diversity     cases     is

determined by federal not state law.             Because "[q]uestions of

venue   and   the   enforcement    of    forum    selection    clauses      are

essentially   procedural,   rather      than    substantive,   in    nature,"

Jones v. Weibrecht, 901 F.2d 17, 19 (2d Cir. 1991), federal law

3
 . The dissent argues that neither the parties nor the court
ever invoked 28 U.S.C. § 1391 (the general venue provision), 28
U.S.C. § 1404(a) or § 1406 in terms. However, the district
courts' order denying all of the relief sought in the action --
effectively dismissing the Jumara's suit -- relied on the premise
that this action could only be brought in a court of Luzerne
County. Thus, notwithstanding its failure to frame its order in
venue terms or to cite the relevant venue statutes, the district
court effectively dismissed the case for faulty venue, an action
addressed by § 1406. We hold, however, that the court's initial
premise, that venue was actually improper in the Eastern District
of Pennsylvania, was erroneous, and that, if the district court
thought the action should instead proceed in the Middle District,
it would have to consider transferring the case pursuant to §
1404.
applies in diversity cases irrespective of Erie Railroad Co. v.

Tompkins, 304 U.S. 64, 58 S. Ct. 817 (1938).

            In Stewart Organization, Inc. v. Ricoh Corp., 487 U.S.

22, 108 S. Ct. 2239 (1988), the Supreme Court held that federal

law governed the district court's decision whether to grant a

motion to transfer a diversity case to the venue provided in the

contractual forum selection clause.         The Court noted that venue

was proper in the district court under federal law (ignoring the

forum selection clause).      Id. at 28 n.8, 108 S. Ct. at 2243 n.8.

The majority rejected the dissent's contention that the effect --

if any -- of a forum selection clause should be a matter purely

of contractual interpretation governed by state law.                  Instead,

the Court required the district court to apply a case-specific

balancing   pursuant   to    the   standards   laid      out    in   28   U.S.C.

§ 1404(a)   to   determine   whether   to   give   the    clause     effect   by

transferring the case to another district court embracing the

contractually specified forum.

            In federal court, venue questions are governed either

by 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406.                    Section 1404(a)

provides for the transfer of a case where both the original and

the requested venue are proper.        Section 1406, on the other hand,

applies where the original venue is improper and provides for

either transfer or dismissal of the case.                Thus, while either

statute could theoretically provide a basis for the transfer of a

case, only § 1406 can support a dismissal.            Because the district

court's order effectively terminated the litigation in federal
court and did not attempt to effect a transfer of the case, we

will construe the order as a dismissal pursuant to § 1406.

          This       determination      of   whether       §    1404(a)    or   §   1406

applies affects our standard of review.               If we determine that the

court correctly applied §1406, i.e., if the action could not be

maintained     in    the   Eastern    District,      our       threshold   review    is

limited   to        determining      whether   the     court        considered      the

possibility of transferring the case, and if it did, whether it

properly exercised its discretion in ordering a dismissal instead

of a transfer.         See 1A PT.2 JAMES W. MOORE & BRETT A. RINGLE, FEDERAL

PRACTICE ¶0.347, at 4446 (2d ed. 1995) [hereinafter MOORE'S].                        If

the court did consider transferring the case, then our review of

the exercise of discretion would be deferential.                    In contrast, if

we decide that the district court failed to consider the transfer

and applied § 1406 instead of § 1404(a), the order dismissing the

case would reflect an error of law, subject to plenary review.

Cf. Kean v. Stone, 966 F.2d 119, 121 (3d Cir. 1992) (holding that

the question whether a district court applied the correct legal

standard in deciding a fee award should receive plenary review

notwithstanding the fact that fee awards are ordinarily reviewed

only for an abuse of discretion).

             In order to decide which statute should have governed

the district court's transfer order in this case, therefore, we

must first decide whether venue was proper in either or both the

Middle District or the Eastern District.

             The federal venue statute provides:
                 (a) A civil action wherein jurisdiction is founded
            only on diversity of citizenship may, except as
            otherwise provided by law, be brought only in (1) a
            judicial district where any defendant resides, if all
            defendants reside in the same State, (2) a judicial
            district in which a substantial part of the events or
            omissions giving rise to the claim occurred, or a
            substantial part of property that is the subject of the
            action is situated, or (3) a judicial district in which
            the defendants are subject to personal jurisdiction at
            the time the action is commenced, if there is no
            district in which the action may otherwise be brought.

            *      *       *

                 (c) For purposes of venue under this chapter, a
            defendant that is a corporation shall be deemed to
            reside in any judicial district in which it is subject
            to personal jurisdiction at the time the action is
            commenced. In a State which has more than one judicial
            district and in which a defendant that is a corporation
            is subject to personal jurisdiction at the time an
            action is commenced, such corporation shall be deemed
            to reside in any district in that State within which
            its contacts would be sufficient to subject it to
            personal jurisdiction if that district were a separate
            State, and, if there is no such district, the
            corporation shall be deemed to reside in the district
            within which it has the most significant contacts.


28 U.S.C. § 1391.

            Clearly, venue would be proper in the Middle District

of   Pennsylvania      where         the    plaintiff     resides,      the   defendant

transacts       business,       the        contract    was    signed,     and    events

triggering the dispute occurred.                 Venue is also proper, however,

in the Eastern District of Pennsylvania, where the defendant

transacts       business       and     is     therefore       subject    to     personal

jurisdiction.      See 28 U.S.C. § 1391(c) (venue proper in judicial

district    in    which     corporation         is    doing    business);     see   also

Stewart Organization, Inc., 487 U.S. at 29 n.8, 108 S.Ct. at 2243
n.8 ("The parties do not dispute that the District Court properly

denied the motion to          dismiss the case for improper venue under

28 U.S.C. § 1406(a) because respondent apparently does business

[there].")     Since venue is proper in the Eastern District where

the action commenced, the district court's effective dismissal of

the action constituted an error of law.                      The District Court

should instead have applied the appropriate balancing test under

28 U.S.C. §1404(a) to determine whether the case should proceed

in   the   Eastern        District    or    be     transferred     to     the   Middle

District.4



                     B.    APPLICATION OF SECTION 1404(a)

             Section      1404(a)    provides:        "For   the   convenience      of

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."       The    burden   of

establishing the need for transfer still rests with the movant,

1A PT.2 MOORE'S ¶ 0.345[5]; Shutte v. Armco Steel Corp., 431 F.2d

22 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S. Ct. 871

(1971).    And, "in ruling on defendants' motion the plaintiff's

choice of venue should not be lightly disturbed."                    1A PT.2 MOORE'S

¶ 0.345[5] at 4360; 15 CHARLES A. WRIGHT               ET AL.    FEDERAL PRACTICE   AND

4
 . The dissent argues that, in holding that the district court
should have considered transfer under § 1404(a), we "evolve
analyses and theories that neither the district court nor counsel
considered . . . ." We disagree. In holding that the action
could only proceed in a court of Luzerne County, an argument
raised by State Farm, the district court clearly did consider the
sort of venue analysis upon which we base our holding.
PROCEDURE: JURISDICTION   AND   RELATED MATTERS § 3848, at 385 (2d ed. 1986)

[hereinafter WRIGHT     ET AL.];     Schexnider v. McDermott Int'l, Inc.,

817 F.2d 1159 (5th Cir. 1987); Miracle Stretch Underwear Corp. v.

Alba Hosiery Mills, Inc., 136 F. Supp. 508 (D. Del. 1955).

              In ruling on § 1404(a) motions, courts have not limited

their consideration to the three enumerated factors in §1404(a)

(convenience of parties, convenience of witnesses, or interests

of justice), and, indeed, commentators have called on the courts

to "consider all relevant factors to determine whether on balance

the litigation would more conveniently proceed and the interests

of justice be better served by transfer to a different forum."

15 WRIGHT   ET AL.   § 3847.     While there is no definitive formula or

list of the factors to consider, see 1A PT.2 MOORE'S ¶ 0.345[5],

at 4363, courts have considered many variants of the private and

public interests protected by the language of § 1404(a).

              The private interests have included:          plaintiff's forum

preference as manifested in the original choice, 1A PT.2 MOORE'S

¶ 0.345[5], at 4363; the defendant's preference, 15 WRIGHT             ET AL.   §

3848, at 385; whether the claim arose elsewhere, 15 WRIGHT             ET AL.   §

3848;   the    convenience      of   the   parties   as   indicated   by   their

relative physical and financial condition, id. § 3849, at 408;
the convenience of the witnesses -- but only to the extent that

the witnesses may actually be unavailable for trial in one of the

fora, id. § 3851, at 420-22; and the location of books and

records (similarly limited to the extent that the files could not

be produced in the alternative forum), id. § 3853.
                The public interests have included:                     the enforceability

of the judgment, 1A PT.2 MOORE'S ¶ 0.345[5], at 4367; practical

considerations that could make the trial easy, expeditious, or

inexpensive, id.; the relative administrative difficulty in the

two fora resulting from court congestion, id., at 4373; 15 WRIGHT

ET AL.   § 3854; the local interest in deciding local controversies

at home, 1A PT.2 MOORE'S ¶ 0.345[5] at 4374; the public policies

of the fora, see 15 WRIGHT           ET AL.    § 3854; and the familiarity of the

trial judge with the applicable state law in diversity cases. 15

WRIGHT   ET AL.   § 3854.

                Within    this     framework,        a   forum    selection          clause   is

treated as a manifestation of the parties' preferences as to a

convenient        forum.        Hence,     within        the    framework       of    §   1404,

Congress "encompasse[d]                consideration of the parties' private

expression of their venue preferences."                        Stewart, 487 U.S. at 29-

30, 108 S. Ct. at 2244.                Although the parties' agreement as to

the most proper forum should not receive dispositive weight, id.

at 31, 108 S.Ct. at 2245; Red Bull Assocs. v. Best Western Int'l,

Inc.,     862     F.2d   963,    967     (2d    Cir.     1988),       it   is   entitled      to

substantial        consideration.              See   Weiss       v.     Columbia      Pictures

Television,        Inc.,    801     F.     Supp.     1276,       1278      (S.D.N.Y.      1992)

(quoting Stewart, 487 U.S. at 29, 108 S. Ct. at 2243).                                    Thus,

while courts normally defer to a plaintiff's choice of forum,

such deference is inappropriate where the plaintiff has already

freely contractually chosen an appropriate venue.                                See In re
Ricoh     Corp.,    870     F.2d    570,      573    (11th     Cir.     1989)    (remand      of

Stewart); Weiss, 801 F. Supp. at 1278.                     Where the forum selection
clause is valid, which requires that there have been no "fraud,

influence, or overweening bargaining power," see The Bremen v.

Zapata Offshore Co., 407 U.S. 1, 12-13, 92 S. Ct. 1907, 1914-15

(1972), the plaintiffs bear the burden of demonstrating why they

should not be bound by their contractual choice of forum.

               Such an extensive enumeration of factors to be balanced

makes "a written opinion setting forth the reasons for transfer

. . . highly desirable, [although] not essential if the record

shows that the proper factors were considered." 1A PT.2 MOORE'S, ¶

0.345[5], at 4381; Westinghouse Elec. Corp. v. Weigel, 426 F.2d

1356 (9th Cir 1970).            In light of this principle, the district

court's rather opaque order is problematic.                 Even had the court

believed that it was applying § 1404(a), there is no indication

that it properly considered these factors, and the written order

denying the motion to appoint the arbitrators does not satisfy

the mandate that the proper factors be considered.                   Ordinarily,

we would remand for further consideration; here, however, the

factors unequivocally support a transfer to the venue specified

in the contractual forum selection clause, so that a remand is

unnecessary.

               We note in this regard that some courts have refused to

apply    this     multi-factored        balancing   test   where    the   transfer

requested involves a forum which is a relatively short distance

from    the    original   forum.         Instead,   such   courts    have   simply

refused to consider transfer, arguing that the statute was not

intended for these types of transfers, and some commentators have

agreed.       See 15 WRIGHT   ET AL.   § 3854, at 470 (citing cases).
            But refusing to entertain the transfer would leave this

case in the Eastern District of Pennsylvania, an odd result given

the location of the parties, the situs of the original contract,

and   the   ultimate    location      of    the    arbitration    proceedings

themselves pursuant to the contractual forum selection clause, as

we explain in the balance of this opinion.            Although we recognize

the validity of these other courts' concerns, we believe the

factors weigh so heavily in favor of transferring this action to

the Middle District that we will apply § 1404(a) notwithstanding

the proximity of the alternative fora.



                C.    THE CONTRACTUAL VENUE PROVISIONS

            In concluding that this action to compel arbitration

could only be brought in the Court of Common Pleas of Luzerne

County, the district court relied on its interpretation of the

insurance contract.      As we have explained, however, the decision

whether venue was appropriate in the original forum or whether

the action should be transferred involves a multi-factored test

incorporating the forum selection clause as one facet of the

convenience-of-the-parties       consideration.          Hence,    while   the

district    court    should    have   interpreted      and   considered    the

contractual choice of forum, it erred to the extent that it

accorded the clause dispositive effect.

            Beyond relegating the forum selection clause to being a

non-dispositive      factor,   albeit      one    entitled   to   "substantial

consideration," we also review the district court's construction

of the provision.      A district court's construction of a contract
is subject to plenary review, as it concerns the legal effect of

an   agreement   and   is    therefore    a    question     of   law.   Vanguard

Telecommunications, Inc. v. Southern New England Tel. Co., 900

F.2d 645, 650 (3d Cir. 1990).                We conclude that, although the

parties did contemplate that this action transpire within Luzerne

County, they did not limit the fora to the state courts but

rather intended to permit the action in any court, including the

federal court, of the county.

           The insurance contracts between the Jumaras and State

Farm provide that the matters of whether the Jumaras are entitled

to   collect   damages      from   the   owner   of    an   underinsured   motor

vehicle and if so, in what amount, are questions to be decided by

agreement of the parties. The contracts further provide:
          If there is no agreement, these questions
          shall be decided by arbitration at the
          request   of  the   insured  or   us.    The
          Pennsylvania Uniform Arbitration Act, as
          amended from time to time, shall apply.

           Each party shall select a competent and
           impartial arbitrator. These two shall select
           a third one. If unable to agree on a third
           one within 30 days either party may request a
           judge of a court of record in the county in
           which the arbitration is pending to select a
           third one.   The written decision of any two
           arbitrators shall be binding on each party.

*                                        *         *

           The arbitration shall take place in the
           county in which the insured resides unless
           the parties agree to another place.     State
           court rules governing procedure and admission
           of evidence shall be used.


App. at 144a.
            Plaintiffs    correctly      note   that   the   requirement   that

arbitration occur in the county of their residence controls only

the location of the arbitration proceeding.              By its terms, this

provision    says     nothing   about     where    a   petition   to   appoint

arbitrators or to compel arbitration may be brought.                   Accord

Shapiro v. Keystone Ins. Co., 558 A.2d 891, 894 (Pa. Super.

1989).   But this conclusion does not end our inquiry.5

            By its terms, the agreement directs that where, as

here, the two parties' arbitrators are unable to agree on a

neutral third arbitrator, "either party may request a judge of a

court of record in the county in which the arbitration is pending

to select a third one."           Although the district court concluded

that this could only occur in the Court of Common Pleas of

Luzerne County, we hold that the phrase "a court of record in the

county" includes the United States District Court for the Middle

District    of    Pennsylvania,    the   federal   judicial    district    that

encompasses Luzerne County.          Our construction follows from the

fact that the federal courts are "courts" within the meaning of

the Pennsylvania UAA, which is incorporated in the insurance

contracts.       As we noted in Allstate Ins. Co. v. Gammon, 838 F.2d

73 (3d Cir. 1988), the UAA was amended to change the definition

of "courts" from merely "the common pleas courts of the county

5
 . Although neither party was able at oral argument to explain
how arbitration could actually be "pending" when arbitrators have
not been selected, we agree with the parties that the only
sensible construction of the contract language ("the county in
which the arbitration is pending") is to refer to the county
where the arbitration proceeding will be pending or held, i.e.,
Luzerne County, Pennsylvania.
having jurisdiction of the parties or the subject matter" to "any

court of competent jurisdiction of [the] Commonwealth."                            Id. at

76-77 (quoting former § 178 of the Pa. UAA and 42 PA. CON. STAT.

ANN.   § 7318     (1952)).          This      venue     provision     thus     permits

applications for appointment of arbitrators to be made to the

United    States       District     Court     for      the   Middle    District         of

Pennsylvania.

            This conclusion does not by itself determine whether,

pursuant to this contractual provision, venue might not be proper

in the Eastern District of Pennsylvania, for the quoted provision

is permissive ("either party may request"), see supra at 17, and

thus leaves unresolved the question of the parties' intent, i.e.,

whether they intended to make an exclusive choice of courts of

Luzerne   County       as   the   only    fora    for    these     actions.        It   is

nevertheless unnecessary to remand this case to the district

court for the purpose of determining the parties' intent with

respect   to     the   forum      selection      provision,      inasmuch     as    other

provisions of the contract resolve any ambiguity.

           The insurance contracts specifically direct that "the

Pennsylvania Uniform Arbitration Act . . . shall apply."                       Section

7304 of the UAA provides that "[o]n application to a court to

compel arbitration . . ., the court shall order the parties to

proceed with arbitration."               42 PA. CON. STAT. ANN. § 7304 (1982).

We     believe     that      section        § 7319,       which      governs        venue

considerations,        is   dispositive.          It    commands    that    ("[e]xcept

where otherwise prescribed by general rules"),
             [a]n initial application to a court under
             this subchapter shall be made to the court of
             the county in which the agreement prescribes
             that the arbitration hearing shall be held
             or, if the hearing has been held, in the
             county in which the hearing was held.


42 PA. CON. STAT. ANN. § 7319(1) (1982) (emphasis added).

             Thus, by incorporating the UAA, the insurance contracts

between the Jumaras and State Farm dictate that actions to compel

arbitration be made to "a court of record" of Luzerne County, see

supra   at    17.       As    we   explained      above,   this    includes    the

appropriate United States District Court.               While it thus includes

the District Court for the Middle District of Pennsylvania, which

embraces Luzerne County, it does not include the United States

District Court for the Eastern District, which is not a court "of

[Luzerne] county."           The district court was therefore correct in

concluding that, by their express terms, the insurance contracts

under which the Jumaras were proceeding did not contemplate venue

in the Eastern District.

                       D.    OTHER § 1404 CONSIDERATIONS
             As   we   have    already   explained,      courts    balancing   the

convenience of the parties, the convenience of the witnesses, and

the interests of justice should place considerable weight on the

parties' original choice of forum, as expressed in a contractual

forum selection clause.            The insurance contract at issue here

contained    a    forum     selection    clause    in   effect    specifying   the

Middle District of Pennsylvania as the site for any arbitration

under the contract.          There is no claim of unequal bargaining that

might invalidate the clause.            The plaintiffs in this case clearly
cannot make the showing of convenience necessary to overcome the

presumption       established      by      the    forum   selection     clause,       and

neither    the     witness    convenience          nor    the    interest-of-justice

factors counsel in favor of maintaining the action in the Eastern

District     of    Pennsylvania.              Indeed,     some     of   these        other

considerations actually militate in favor of the Middle District

of Pennsylvania.

            Everything related to this action occurred in Luzerne

county, which lies in the Middle District:                        plaintiff resides

there, the contract was signed there, the underlying accident

occurred there, and the requested arbitration will eventually

occur there.       Unlike Red Bull Associates, 862 F.2d at 963, where

the federal forum had a strong policy interest in enforcing the

civil rights laws thus justifying setting aside a forum selection

clause, the Eastern District has no corresponding public policy

interest in appointing the arbitrator in this case.                          Given the

close proximity of the two fora, the § 1404(a) factors other than

the forum selection clause factors -- the relative physical and

financial     condition       of     the      parties,     the    location      of     the

witnesses,    the     situs     of      the      documentary     evidence,    and     the

relative expense or expeditiousness of the trial -- do not render

one forum significantly more convenient than the other, and they

certainly do not support overriding the parties' original venue

preference as expressed in the forum selection clause.6

6
 . The financial condition of the Jumaras might make the Middle
District more convenient to them, but since their present counsel
is from Philadelphia that consideration would appear muted.
            The fact that the two fora are adjacent districts of

the same state also obscures the interest-of-justice analysis,

which gives little reason to override the forum selection clause.

None of the following factors exist:                           (1) a likelihood of an

enforcement problem; (2) a distinct public interest in resolving

the     claims    in     a       Luzerne      County      court      as     opposed    to     in

Philadelphia;         (3)    a    different          policy    preference      in     the    two

locales; (4) a disparity in the qualifications of the federal

judges    sitting       in       the    two       districts    to    pass     on    the     same

Pennsylvania law; or (5) an appreciable difference in docket

congestion       between      the      two        districts.        After    reviewing       the

various facets of the convenience of the parties and witnesses as

well as the interests of justice, we do not believe that these

factors, most of which cannot distinguish the fora on convenience

grounds, could overcome the "substantial consideration" due the

forum selection clause.

                                       IV.     CONCLUSION

            The Supreme Court explained in Stewart that section

1404(a)     was       intended         to     vest      district     courts     with      broad

discretion       to    determine,            on    an   individualized,        case-by-case

basis, whether convenience and fairness considerations weigh in

favor of transfer.               Stewart, 487 U.S. at 30-31, 108 S. Ct. at
2244.     Because it appears that the district court erroneously

believed that this action could only be brought in state court,

it did not construe State Farm's objection to the appointment as

a § 1404(a) motion.                As a result, the court did not make the

determinations required by that provision.                          However, because the
balance in this case so clearly mandates a transfer to the Middle

District of Pennsylvania, a remand to the district court for the

§ 1404 balancing is unnecessary.   We will therefore vacate the

district court's order denying the motion to appoint arbitrators
and compel arbitration, and direct the district court to order

the transfer.
                          ______________________

George Jumara; et al. v. State Farm Insurance Company,
No. 94-1447

GARTH, Circuit Judge, dissenting:


           After the Jumaras filed their petition and their motion

to    appoint    arbitrators,        State     Farm      filed       its       answer     in

opposition.      The   panel       majority    has      now    concluded        that     the

district   court    erred      by    failing       to    transfer       the      Jumaras'

proceeding to the Middle District of Pennsylvania.                      It does so by

using some judicial alchemy to transform State Farm's answer to

the   Jumaras'   motion     to appoint        arbitrators        into      a   motion     to

transfer   venue    under     the    federal       venue      statutes,        28    U.S.C.

§§ 1391, 1404 and 1406.

           It so holds even while it agrees that the district

court judge was eminently correct when he denied the Jumaras'

petition to appoint arbitrators.                Despite this admission, the

majority   directs     that        the   district        court's      order         denying

appointment of arbitrators must be vacated.                       It also requires

that the district court transfer the Jumaras' petition to the

Middle District of Pennsylvania -- a transfer sought by neither

of the parties and certainly not desired by the Jumaras.

           Because I believe that we should not vacate a district

court's order when the substantive order that it entered was

unquestionably     correct    in     light    of   the     issues     raised        by   the

parties,   and    because     no    party     in    this      case   ever       sought     a

§ 1404(a) transfer of venue, either on appeal before us, or even
more importantly, before the district court, I am compelled to

dissent.7



                                    I.

            It should be remembered that the Jumaras' counsel only

petitioned the district court for the appointment of arbitrators

and to compel arbitration.        He did so by invoking those portions

of   the   Jumaras'   insurance   contract   and   the   sections   of   the

Pennsylvania Uniform Arbitration Act referred to by the majority.


7
 .        A question arose early on in this case whether the
district court was ever presented with a justiciable case or
controversy within the meaning of Article III. Under the
ripeness doctrine, federal courts "will not decide a case where
the claim involves contingent future events that may not occur as
anticipated, or indeed may not occur at all." Thomas v. Union
Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985).
          The Jumaras seek ultimately to recover underinsurance
benefits from State Farm. By definition, and by the terms of the
insurance contract between the parties, underinsurance coverage
becomes available only after (1) it is determined that the
individual responsible for the harm complained of is liable and
unable to fully compensate the insured, or (2) the limits of the
tortfeasor's coverage has been offered.
          Unless and until these conditions have been satisfied,
any judicial pronouncement on the matter is necessarily
speculative and vain. If for instance it is later found that the
alleged tortfeasor's liability is within the limits of her own
liability coverage (or indeed that she is not liable at all),
then the exertions of counsel and arbitrators, with their
associated costs to the parties, as well as the efforts of the
courts, will have been for nought.
          We have been informed by counsel for the Jumaras that
on October 20, 1994, the Jumaras' action against Reynolds, the
alleged tortfeasor, was settled for the limits of Reynolds'
vehicle policy and that State Farm had waived its subrogation
rights. This, of course, triggered the Jumaras' rights under the
provisions of the Jumaras' own policy.
It was this motion that the district court denied, and properly

so, on the basis of the factual and legal contentions before it.

            There can be no question that the majority is correct

in pointing out that under 28 U.S.C. § 1404(a), the district

court when faced with a motion challenging venue, is limited to
either      retaining     jurisdiction         over       the    proceeding,      or

transferring jurisdiction to the district where it should have

been brought.      In this case, the most appropriate venue lay in

any court of competent jurisdiction of Luzerne County, which

would include the United States District Court for the Middle

District of Pennsylvania.        See Allstate Ins. Co. v. Gammon, 838
F.2d 73, 77 (3d Cir. 1988) (holding that district courts are

included     within     the   meaning    of     "any       court    of   competent

jurisdiction of [the] Commonwealth").

            I have no problem with the majority's analysis of 28

U.S.C. § 1404(a) and § 1406.            Nor do I have a problem with the

majority's ultimate determination that the factors relevant to

retaining     jurisdiction     under     §     1404(a)      or     transferring    a
proceeding    to   another    locality       under    §   1404(a)    favor   giving

predominant weight to the forum selection clause in the parties'

contract.     Thus, I do not dispute the majority's view that the

Middle District was one venue open to the parties, as was the

Court of Common Pleas of Luzerne County.

            Nor do I quarrel with the majority's analysis of the

federal venue provisions.         In this case, of course, the forum
selection   clause    unquestionably   required   any   application   for

arbitrators to be made in Luzerne County and not in the Eastern

District of Pennsylvania.     The majority so holds, and if it were

not for the fact that §§ 1404 and 1406 were never raised nor
presented as an issue in the Jumaras' proceedings, I would have

joined the majority opinion.       However, at no time, and in no

court, did either the Jumaras or State Farm seek a venue change

under § 1404(a) or even mention § 1404(a) in their respective

arguments or briefs.

            I emphasize first and foremost that neither party --

neither the Jumaras nor State Farm -- ever invoked, referred to,

cited or argued that 28 U.S.C. § 1391 (venue generally), or

§ 1404 (change of venue), or § 1406 (cure or waiver of defects

[in venue]) should be considered by any court.8         The motion made

by the Jumaras was purely and simply a substantive motion to

"Appoint    Neutral    and   Defense   Arbitrators      and   to   Compel

Underinsured Motorist Arbitration."         It was that motion, and


8
 . I note that venue is a privilege provided to the defendant,
that this privilege may be waived, and that it is waived if it is
not expressly asserted. See generally, A. WRIGHT ET AL. FEDERAL
PRACTICE AND PROCEDURE: JURISDICTION AND RELATED MATTERS § 3829,
AT 309 - 318 (2D ED. 1986). Moreover, Fed.R.Civ.P. 12(b)(3)
requires that a defense of improper venue be raised in the
responsive pleadings or by motion, or it will be deemed waived.
          In light of the record before us, which is totally
devoid of any mention of § 1406, § 1404, or § 1391 (the general
federal venue statute) in any pleading or motion, it is
surprising to me that the majority has ignored all waiver
jurisprudence and has gratuitously embarked on a venue analysis
which the parties and the district court have evidently abjured.
only that motion, that the district court considered and denied.

It did so properly and correctly, and the majority of the court

does not argue otherwise.

            The   record     does    not       reveal    that     either    party    ever

raised the issue of § 1404 venue before the district court.                            At

no time did the district court ever advert to the subject of

§ 1404 venue.     The district court's opinion makes no reference to

§ 1404 venue.      The briefs before us did not raise any issue of

§ 1404 venue.     The argument before us never touched on any of the
federal venue statutes.           Indeed, the first time that § 1404 or

§ 1406    surfaced     was   when     the       majority,       relying     upon    those

statutes, took the occasion to vacate the district court's order

and to direct the district court to order a transfer of the

Jumaras'    proceedings      to     the    Middle       District    of     Pennsylvania

pursuant to § 1404(a).

            Had the issue of venue under § 1404(a) been raised, I

could not fault the majority for holding that § 1404 required a

transfer.    However, where the issue of § 1404(a) venue was never
raised and where the district court judge was presented only with

the substantive issue of appointing an arbitrator, I cannot find

fault, and I suggest the majority should not find fault, with the

district    judge's    disposition         of   the     matter.      In    my    opinion,

counsel    have   an   obligation         to    specifically       inform    the    judge

exactly what it is that they desire and they must then support

that request for relief with appropriate authority.                             Here, the
district court was asked only to appoint arbitrators. It was

never asked to consider a venue change under § 1404 or § 1406,

and indeed, despite the majority's claim that the district court

considered venue, it did not consider or analyze the federal

venue provisions.       It was the issue of appointing arbitrators,

and that issue only, that the district court decided.

          It is true that the district court in its footnote to

its order referred to Luzerne County as the proper place to seek

relief.   But,    the   district    court   did    not   order   transfer   to

Luzerne County because it was obviously never asked to do so.

The Jumaras never asked for a transfer of venue.                 Quite to the

contrary, the Jumaras' counsel has persistently argued that the

Jumaras do not desire venue in Luzerne County.            Why not?     Because

arbitrators selected from Luzerne County might not be as liberal

with an insurance company's dollars as the arbitrators appointed

in the Eastern District of Pennsylvania.

          For    this   reason,    as   candidly   expressed     by   counsel,

application was made by the Jumaras to the United States District
Court for the Eastern District of Pennsylvania.            We were informed

that an arbitrator appointed from within the geographical scope

of the Eastern District was likely to award a higher amount of

damages than an arbitrator appointed from Luzerne County.9

9
 . At oral argument counsel for the Jumaras explained the rather
parochial practice of Philadelphia arbitrators in underinsurance
cases. They apparently determine what a case is "worth" and then
make an underinsurance award of the amount by which the
claimant's "damages" exceed the policy limits of the putative
tortfeasor's insurance. They do so seemingly in disregard of the
               The record just does not reveal that State Farm asked

the    district     court   to    exercise      its   § 1404(a)   discretion    to

transfer the matter to Luzerne County.                     State Farm took the

position that the Jumaras' petition should be denied outright --

as it was.      How then can we direct the district court to order a

transfer in conformity with relief that it was never asked to

grant and which neither of the parties sought?

            One would think that we would affirm a district court's

order where the district court did not err in its substantive

disposition and where the district court was asked to do nothing

more    than   to    decide      the   motion    brought    before   it   by   the

plaintiff.10    Here, the Jumaras sought the appointment of
(..continued)
contractual conditions precedent referred to in note 1, supra.
Counsel also represented that it is the practice of Scranton
arbitrators, as contrasted with arbitrators appointed in the
Eastern District, to refrain from making an award until the
underlying claim has been resolved.
          Together with both counsel, I share an inability to
explain how an arbitral award of underinsurance coverage may
properly be made prior to determining the extent (or even the
existence) of the alleged tortfeasor's liability.
10
 . It is obvious to me, if not to the majority, that the
district court contemplated that the Jumaras would bring a new
action in Luzerne County after they were denied the appointment
of arbitrators in the Eastern District. The majority states
that, to implement this, "...it [the district court] would have
to consider transferring the case pursuant to § 1404." Maj. Op.
p. 8, n. 3. The difficulty with the district court considering
such a transfer was that neither the district court nor the
parties ever considered § 1404. The district court considered
such a transfer, if at all, only under the Commonwealth's
statutes, which could not in any event have been employed in a
federal court's venue analysis, as the majority makes clear in
its analysis of Stewart Organization, Inc. v. Ricoh Corp., 487
U.S. 22 (1988).
arbitrators.        The district court properly denied that motion.

The    district      court    was    never      asked   about,     or        even     became

acquainted with, the venue considerations that the majority has

today, by hindsight, now developed and analyzed.                            However, the

majority, without discussing the sua sponte responsibilities of a
district court to supply that which counsel has not supplied,

asked for, or even referred to, nevertheless has now vacated the

district    court's      order      and   has    directed    it    to       transfer     the

proceeding to Luzerne County.

             I cannot condone reversing a district court judge when

he    has   done    no     more   than    rule    correctly       on    the     issue     as

formulated by the parties.                I do not think that an appellate

court can or should convene months later and evolve analyses and

theories     that    neither      the     district      court     nor       counsel      ever

considered and then, for the first time, impose them upon the

district court.

             The majority in its footnotes 3 and 4 seeks to excuse

its gratuitous discussion of federal venue under §§ 1404 and 1406

by noting that the district court in the footnote to its April 4,

1994    order,      states    that      the   Jumaras'      proceeding         should      be

conducted in Luzerne County.              There is no question but that the

district court was aware of a venue defect.                     But there is also no

question    that     the     venue   issue,      if   addressed        at    all    by   the

parties, was addressed under the terms of the State Farm contract

and the Pennsylvania venue statutes, and not under the federal
venue statutes.   Thus, the majority is plainly disingenuous when

it states, at page 12, footnote 4, that "...the district court

clearly did consider the sort of venue analysis upon which we

base our holding."    The district court at no time considered a

venue analysis which drew on the federal venue statutes, §§ 1404,

1406 and 1391, the very statutes on which the majority bases its

holding.



                                II.

           Our decision in this case was crystal clear.   We should

have affirmed the very correct decision made by the district

court judge.   We did not.   I therefore respectfully dissent.
