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G.H. MILLER & CO. v. HANES

June 28, 1983

G.H. MILLER & COMPANY, AN ILLINOIS CORPORATION, PLAINTIFF,
v.
JOYCE M. HANES AND ROBERT M. HANES, DEFENDANTS.



The opinion of the court was delivered by: Bua, District Judge.

MEMORANDUM ORDER

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 ...


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