The opinion of the court was delivered by: Bua, District Judge.
Before the Court is the defendants' Motion For a Change of
Venue under 28 U.S.C. § 1404 or, in the alternative, for a Stay
of Proceedings. Also pending is the defendants' Motion to
Dismiss for lack of personal jurisdiction pursuant to
Fed.R.Civ.P. 12(b)(2). For the reasons stated herein, the
Motion to Dismiss is denied and the Motion For a Change of
Venue is granted. The Motion for a Stay of Proceedings is
declared to be moot.
Plaintiff filed the instant lawsuit on March 30, 1983 in the
Circuit Court of Cook County, Illinois, alleging that it is
owed certain sums of money by the defendants in connection
with a commodities trading agreement (the agreement) between
the parties. Simultaneously, the defendants filed a lawsuit in
the Weld County, Colorado, State District Court alleging
breach of fiduciary duty, negligence, fraud, and violation of
the Commodity Exchange Act. Both the Illinois case and the
Colorado case have been removed to the federal court in their
respective jurisdictions pursuant to 28 U.S.C. § 1441.
The agreement contains two provisions relevant to the
matters now pending before the Court. It provides:
10. Notwithstanding the fact that I may not be a
resident of the State of Illinois, I hereby agree
that all transactions between us shall be deemed
to have been executed and to have taken place
within the City of Chicago and State of Illinois.
15. The provisions of this Agreement shall in all
respects be construed according to, and the
rights and liabilities of the parties hereto
shall in all respects be governed by, the laws of
the State of Illinois. I specifically consent to
and submit to the jurisdiction of the courts of
the State of Illinois for the purpose of
adjudicating any and all disputes which may arise
with you hereunder.
These provisions, which appear to be both consent to
jurisdiction and forum selection clauses, are relevant to both
the personal jurisdiction question and the transfer of venue
issue. The Court will consider each issue separately.
The Motion to Dismiss for Lack of Personal Jurisdiction
Notwithstanding the consent to jurisdiction clause contained
in the agreement, the defendants seek dismissal of the instant
action for lack of personal jurisdiction.
Consent to jurisdiction clauses such as the one involved in
the case at bar have long been recognized as valid except
where due process requires otherwise. See, e.g., National
Equipment Rental v. Szukhent, 375 U.S. 311, 84 S.Ct. 411, 11
L.Ed.2d 354 (1964); O'Hare International Bank v. Hampton,
437 F.2d 1173 (7th Cir. 1971). In the instant case, the defendants
do not specifically argue that upholding the consent to
jurisdiction clause would violate due process. Instead, they
contend that because of various factors, considered more in
depth in connection with the Motion to Transfer, the clause is
unenforceable.*fn1 Among the
factors which the defendants cite are the defendants'
residence in Colorado, their inexperience as commodity
traders, the Colorado situs of the execution of the agreement,
and the boilerplate nature of the agreement.
The factors noted by the defendants may clearly be
considered in connection with a Motion to Transfer and indeed
weigh heavily in favor of transfer. Leasewell Ltd. v. Jake
Shelton Ford, Inc., 423 F. Supp. 1011 (S.D.W.V. 1976).
Nevertheless, this Court does not believe, and the defendants
do not argue, that upholding the consent to jurisdiction clause
would violate due process. The Motion to Dismiss for lack of
personal jurisdiction therefore must be denied.
The Motion to Transfer Venue
The defendants argue that the instant lawsuit should be
transferred to Colorado based on a number of factors.
Plaintiff, however, contends that the defendants have
consented to venue in Illinois and therefore that venue is
proper in this District and should not be transferred.
It is apparently plaintiff's contention that the consent to
jurisdiction clause and the clause placing the situs of the
transaction in Illinois amount to a forum selection clause
which places venue exclusively in ...