The opinion of the court was delivered by: Bua, District Judge.
This is an action for breach of contract and fraud, brought by
plaintiff, Hotel Constructors, Inc. (HCI), which is an Illinois
corporation with its principal place of business in Chicago.
The Defendants, The Seagrave Corporation ("New Seagrave"), and
Vista Resources, Inc. ("Old Seagrave"), are Delaware
corporations each with a principal place of business in New
York, New York. The Defendant, Western Vista Corp. ("Flour
City") is a California corporation with its principal place of
business in New York. The Defendant, Herbert J. Kirshner, an
individual, resides in the New York area. Jurisdiction is
proper under 28 U.S.C. § 1332, and venue is proper under
28 U.S.C. § 1391.
Plaintiff's claim arises out of a subcontract entered into by
Morse/Diesel, Inc., as HCI's agent, and Flour City, whereby
Flour City would complete the curtain wall of a 22-story hotel
known as the Vista International Hotel, constructed on the
plaza level of the World Trade Center in New York City.
Plaintiff alleges that defendants unduly delayed the completion
of the curtain wall at Flour City's plant in Minneapolis,
Minnesota, and that defendants made fraudulent
misrepresentations to HCI regarding the curtain wall's
completion and thereby exacted substantial payments from HCI.
This cause comes before the Court on defendants' motion to
transfer this action to the Southern District of New York under
28 U.S.C. § 1404(a). That motion is granted.
28 U.S.C. § 1404(a) governs change of venue and provides in
"(a) 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
In order to meet the requirements of § 1404(a), the movant must
establish "(1) that venue is proper in the transferor district;
(2) that the transferor court has the power to transfer the
case (that is, that the transferee court is in a district
`where it might have been brought'); and (3) that the transfer
is for the `convenience of parties and witnesses, in the
interest of justice.'" Hess v. Gray, 85 F.R.D. 15, 24
(N.D.Ill. 1979). Requirements (1) and (2) are met in this case.
Venue is proper in this district because plaintiff resides in
Illinois for venue purposes, and this action could have been
brought in the Southern District of New York, which has proper
venue and jurisdiction because defendants reside there under
28 U.S.C. § 1332 and 1391.
The Court now turns to requirement (3). To support a motion to
transfer, the movant must show a "clear balance of
inconvenience" in this district over the transferee district.
SEC v. First National Finance Corp., 392 F. Supp. 239, 240
(N.D.Ill. 1975) In determining whether the movant has met this
burden, the Court must consider the factors specifically
mentioned in § 1404(a) (convenience of the parties, convenience
of the witnesses and the interests of justice in general) while
also giving weight to plaintiff's choice of forum.
Although under the common law doctrine of forum non conveniens,
plaintiff's choice of forum was an overriding factor entitled
to considerable weight, the significance of that choice has
diminished since the enactment of § 1404(a). Norwood v.
Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789
(1955); SEC v. First National Finance Corp., 392 F. Supp. at
242; Y4 Design Ltd. v. Regensteiner Pub. Enterprises, Inc.,
428 F. Supp. 1067, 1070 (S.D.N.Y. 1977). Additionally,
plaintiff's choice of forum has reduced value where the forum
lacks any significant contact with the underlying cause of
action, Cunningham v. Cunningham, 477 F. Supp. 632, 634
(N.D.Ill. 1979). In such a case, it becomes just one of many
factors to be viewed by the Court when making its determination
of convenience. General Signal Corp. v. Western Electric Co.,
362 F. Supp. 878, 880 (N.D.Ill. 1973).
Convenience of the Parties and Witnesses
Although § 1404(a) specifically points to the convenience of
both parties and witnesses, in the instant case, only the
latter factor need be analyzed by the Court. The facts
presented by this motion indicate that the convenience of the
parties is neutral in this case. Both plaintiff and defendants
will be inconvenienced if this action is brought in the other
parties' resident district and the financial strengths of the
parties are equivalent.
In analyzing the convenience of witnesses, the Court must look
to the expenses of transportation and the length of time the
witnesses will be absent from their jobs. In addition, this
Court must consider not only the number of potential witnesses
located in the transferor and transferee districts, but also
the nature and quality of their testimony and whether they can
be compelled to testify. Delay & Daniels v. Campbell Co., 71
F.R.D. 368, 372 (D.S.C. 1976); Wright, Law of Fed. Courts § 44.
Defendants have demonstrated that there exists a large number
of witnesses who might testify for defendants at trial.
Plaintiffs point out that there is some possibility that the
testimony provided by these witnesses would be cumulative.
Presumably, therefore, when faced with the expense of
transporting these people to Chicago, defendants might choose
to streamline their list of trial witnesses. Although this
possibility exists, it is inappropriate for this Court, at this
stage in the litigation, to speculate as to whether the
testimony will in fact be cumulative or, if so, how defendants
would prepare for ...