(caption unavailable)

*Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 92-4178
IN RE: IRWIN DAVLIN, ET AL., Petitioners.
No. 92-4439
FIDELCOR BUSINESS CREDIT CORP., Plaintiff-Appellee,
versus
IRWIN H. DAVLIN, Defendant-Appellant.
****************************
STANDARD FITTINGS CO., ET AL., Plaintiffs-Appellants,
versus
FIDELCOR BUSINESS CREDIT CORP., ET AL., Defendants,
FIDELCOR BUSINESS CREDIT CORP., Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(CA-88-1003 c/w 89-0966)
February 8, 1993
Before REYNALDO G. GARZA, HIGGINBOTHAM, and DeMOSS, Circuit Judges.
PER CURIAM:*

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cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the Court has determined
that this opinion should not be published.
2
Irwin Davlin, and various companies in which he is the primary
stockholder, appeal the transfer under 28 U.S.C. § 1404(a) of this
case to the United States District Court for the Southern District
of New York. The parties contend over the effects of a contractual
provision selecting a forum as well as an authorization to sue
clause contained in the papers evidencing their financial
arrangements. Fidelcor Business Credit Corporation sued Davlin in
Louisiana upon his guaranty of the obligations of Standard Fittings
Company. Davlin and his companies counterclaimed and the
litigation grew substantially. Fidelcor, convinced that the
dispute had now triggered the provision of the security agreement
selecting New York as the sole forum for litigation directly or
indirectly related to the security agreement, moved to transfer the
case to New York. Judge Hunter, before whom the case was then
pending, initially denied the motion. Later at a pretrial
conference, Davlin's counsel suggested the application of New York
law as to various prior rulings that had applied Louisiana law.
Judge Hunter then suggested that Fidelcor reurge its motion to
transfer. Judge Hunter then transferred the case to Judge Haik who
granted the motion. After entering findings in support of his
decision in response to the direction of this court, Judge Haik
reaffirmed his transfer order. This appeal followed.

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3
This is a close case. While as a trial judge we may not have
ordered the transfer, we are persuaded that the decision to do so
was in the final analysis, a judgment call. We have hesitated
because we are not told whether the case is to be tried to the
bench or to a jury although in practical terms this will impact the
relative convenience of the parties. Nor are we told about the
relative time to trial of possible trial sites. The district court
could have viewed the trial site as inevitably visiting added
inconvenience and expense to the visiting party, whether in New
York or Louisiana. In this context the forum selection clause
tilts the case for New York, at least enough that we are not
prepared to upset it on appeal. Implicit in this view is our
rejection of the contention that Fidelcor waived its rights under
the forum clause of the Security Agreement either by its suit in
Louisiana or by not timely urging transfer. First, this case
changed, as we observed, after it was filed in Louisiana. Second,
the forum clause of the Security Agreement was not initially
implicated. In short, having heard oral argument and weighed the
concerns, we are persuaded that we ought not overturn the decision
of the trial court.
AFFIRMED.

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