venue is § 1391(a) which allows plaintiffs to file in the
district wherein all plaintiffs reside. In the instant case, it
is admitted that plaintiff WHS-Ill. is an Illinois corporation.
It is thus deemed to reside in Illinois for venue purposes as a
party plaintiff. As it filed suit in the U.S. District Court
for the Northern District of Illinois, venue is proper in this
district under § 1391(a). The defendants' motion to dismiss for
improper venue must therefore be denied.
IV. 28 U.S.C. § 1404
In addition to the above motions to dismiss, the defendants
have filed a Motion to Transfer Venue to the District of
Massachusetts pursuant to 28 U.S.C. § 1404. Under the statute,
a District Court in which venue is proper may nevertheless
transfer any civil action to any other district where it might
have originally been brought if such a transfer is in the
interest of justice. In determining whether transfer is
warranted, the District Court is given broad discretion. Brown
v. Grimm, 624 F.2d 58 (7th Cir. 1980). A key factor to be
considered in the consideration of a transfer is the
convenience of the parties and witnesses.
Before a transfer can be made under 28 U.S.C. § 1404(a),
venue in the transferor court must be proper. Chicago R.I. &
P.R. Co. v. Igoe, 212 F.2d 378 (7th Cir. 1954). In addition,
subject matter jurisdiction must be established. These
requirements have been met in the matter here under
consideration. The Court must therefore turn to a consideration
of the equitable factors here involved relating to the
convenience of the parties and witnesses, access to other
sources of proof, availability of compulsory process, costs,
the situs of any relevant events, and the interests of justice
in general to determine the desirability of a venue transfer.
Having weighed these factors, the Court concludes that the
defendants have met their burden of clearly demonstrating the
superiority of the Massachusetts forum.
Any contact with an Illinois forum in the instant case is
purely incidental. All defendants are Massachusetts'
residents. In addition, the plaintiff has admitted to doing
business in Massachusetts. The agreement which underlies
plaintiff's claim was executed in Massachusetts and, by its
terms, is to be construed under the laws of that state. All of
the activities which form the basis for plaintiff's claim are
alleged to have occurred in Massachusetts, including the
competitive activities of Mr. Green, who does not appear to be
subject to compulsory process in Illinois. Additionally, none
of the individuals or other entities connected with such
activities are Illinois residents or are subject to process in
this state. Finally, it is interesting to note that the
competitive activities of Mr. Green are the subject of a
counterclaim filed by the defendants herein in a case pending
in the District of Massachusetts.
None of the facts relating to the issues presented in the
instant cause appear to have any relation whatsoever to an
Illinois forum. The only link to this forum is the fact of
plaintiff's incorporation here. In light of these
circumstances, in the interest of justice, the Court is
compelled to hold that the instant matter should be
transferred to the District Court for the District of
The existence of the consent to jurisdiction clause in the
agreement here at issue does not bar the Court from a transfer
of the cause before the Court. Such a clause is in no way
tantamount to an agreement placing venue exclusively in this
forum. Coface v. Optique DuMonde, Ltd., 521 F. Supp. 500
(S.D.N.Y. 1980). Venue and jurisdiction are not coextensive
concepts but are instead to be kept separate and distinct.
Hence, the Court is not precluded from transferring this matter
to a forum outside of Illinois.
Having determined that a transfer of the instant matter to
the District of Massachusetts is proper and necessary, the
Court will decline the opportunity to consider the defendants'
motion to dismiss for failure to state a claim brought
pursuant to Fed.R.Civ.P. 12(b)6 and will leave that matter to
the transferee court for consideration.*fn2 MacNeil Bros. Co.
v. Cohen, 158 F. Supp. 126 (D.Md. 1958).
The facts of the instant case make clear that transfer
pursuant to 28 U.S.C. § 1404 is warranted and that, although
the Northern District of Illinois is a technically proper
forum, the District of Massachusetts provides an appropriate
and more desirable forum when the interests of justice are
considered. In this regard, defendants can clearly be said to
have prevailed on their motion. Such a victory, however, does
not excuse the baseless motions filed under subsections 1, 2,
3, and 5 of Rule 12(b). As is evident from this opinion, such
motions are without genuine legal basis.
The Court concedes that many, if not most, arguments made by
counsel are less than certain to carry the day. Such is the
nature of the practice of law and of advocacy in general.
Nevertheless, it is hoped that in the contemplation and
preparation of arguments and strategem, attorneys will be
tempered by some degree of good faith. As such an element
appears to be lacking in the motions submitted by the defense
under the various subsections of Rule 12(b), pursuant to the
inherent equity power of the Court, Roadway Express, Inc. v.
Piper, 447 U.S. 752, 765, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488
(1980); Alyeska Pipe-line Services Co. v. Wilderness Society,
421 U.S. 240, 258-259, 95 S.Ct. 1612, 1622, 44 L.Ed.2d 141
(1975), the costs and attorneys' fees incurred by plaintiff in
responding to defendants' Motions to Dismiss are hereby awarded
to plaintiff and are to be paid by counsel for defendants.
28 U.S.C. § 1927.*fn3
The defendants' Motion to Transfer Venue to the District of
Massachusetts is hereby granted. The plaintiff's Motion for
Costs and Fees is hereby granted. The plaintiff's Motion to
Reconsider the Transfer Order is hereby denied.
IT IS SO ORDERED.