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 Illinois. In this contention
the Court does not concur.
Before a court may consider transferring a case under
28 U.S.C. § 1404(a), it must first be a forum in which venue is
proper. Chicago R.I. & P. Co. v. Igoe, 212 F.2d 378 (7th Cir.
1954). Because plaintiff is an Illinois corporation which
therefore is deemed to be an Illinois resident and because the
agreement places the situs of the transaction in Illinois,
venue is proper in this Court. 28 U.S.C. § 1391(a).
Additionally, the district to which the movants seek to have
the matter transferred must be a forum in which the case could
have originally been brought. 28 U.S.C. § 1404(a). Because the
defendants reside in Colorado, this prerequisite has also been
met. The Court therefore turns to a consideration of the
equitable factors here involved including, inter alia, the
convenience of the parties and witnesses, the situs of material
events, availability of compulsory process, and the interests
of justice in general, to determine the desirability of a venue
transfer. Wilmot H. Simonson v. Green, 554 F. Supp. 1229
(N.D.Ill. 1983); Leasewell Ltd. v. Jake Shelton Ford, Inc.,
423 F. Supp. 1011 (S.D.W.V. 1976). Based on these factors, this
Court believes that a transfer of venue is warranted in the
A plaintiff's choice of forum is to be accorded great weight
in considering a motion to transfer venue. Nevertheless,
where, as here, the chosen forum lacks any significant
connection with the underlying claim, it is of reduced
significance and becomes but one of many factors which the
Court may consider. Hotel Constructors, Inc., v. Seagrave
Corp., 543 F. Supp. 1048 (N.D.Ill. 1982). See, also, Norwood v.
Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955).
In the instant case, the defendants are two married
individuals who work and reside in Colorado. Additionally, all
of the material events underlying the instant case, including
the signing of the agreement, transpired in Colorado. All
dealings on behalf of Miller were done through its agent in
Colorado. Presumably, such individuals would be subject to
compulsory process in Colorado and could be brought to testify
with little inconvenience. These factors weigh heavily in
favor of transfer.
The existence of a consent to jurisdiction clause in the
case at bar does not preclude this Court from considering a
transfer of this case to the District of Colorado as such a
clause is in no way tantamount to an agreement placing venue
exclusively in this forum. Wilmot H. Simonson v. Green,
554 F. Supp. 1229 (N.D.Ill. 1983); Coface v. Optique DuMonde Ltd.,
521 F. Supp. 500 (S.D.N.Y. 1980). Additionally, even if the
Court reads the clauses as a forum selection clause, such a
clause is but one of many factors to be considered by the
Court, Full-Sight Contact Lens Corp. v. Soft Lenses Inc.,
466 F. Supp. 71 (S.D.N.Y. 1978),
and may be disregarded if it appears to be unreasonable.
Randolph Engineering Co. v. Fredenhagen Kommandit-Gesellschaft,
476 F. Supp. 1355 (W.D.Pa. 1979). If a forum selection clause is
a part of a "boilerplate" agreement, its significance is
greatly reduced as such a classification indicates an
inequality in the parties' bargaining power. Taylor v. Titan
Midwest Construction Corp., 474 F. Supp. 145 (N.D.Tex. 1979).
In the instant case, the clauses which purport to be forum
selection provisions are of greatly reduced significance. In
connection with the Colorado proceeding, defendants note that
the plaintiff admitted that the clauses were
"boilerplate."*fn2 Indeed, it does not appear that any effort
was made to ascertain whether the transaction had any
connection whatsoever with Illinois. Instead, the agreement
signed by the defendants was apparently the standard form
contract used by Miller regardless of whether the transaction
actually did have a connection with Illinois. At best, under
these circumstances, the clauses herein noted are but one of
a number of factors which the Court may consider and are not
dispositive of the venue issue. Given the weight of the other
factors herein mentioned, these provisions are of little
Currently pending in the District Court of Colorado is a
case filed by the defendants herein, Hanes v. Miller, 83-JM-702
(D.Colo.). In that suit, defendants allege breach of fiduciary
duty, negligence, fraud, and violation of the Commodities
Exchange Act. In denying a Motion to Transfer Venue which had
been filed by Miller, Judge Moore found that convenience of the
parties and witnesses, unequal bargaining power, the situs of
the material events, and the boilerplate nature of the choice
of forum clause all militated against the transfer. Hanes v.
Miller, 83-JM-702 (D.Colo. June 17, 1983). In the instant case,
the very same factors justify transfer. At a minimum, such
transfer would work to eliminate the possibility of duplicative
litigation, thus furthering the interests of justice.
Wooldridge v. Beech Aircraft Corp., 479 F. Supp. 1041 (W.D.Mo.
Based on the foregoing, it is apparent that the equitable
factors of this case weigh in favor of transferring this case
to Colorado.*fn3 The motion to transfer is therefore granted.
The Motion For a Stay
Defendants have filed a Motion to Stay the instant
proceedings until the Colorado Court has ruled on the motion
to transfer pending in that suit. Because that motion has been
ruled on, the Motion to Stay is moot.
For the reasons set out herein, the Motion to Dismiss is
denied, the Motion to Stay is declared to be moot, and the
Motion to Transfer to the U.S. District Court for the District
of Colorado is granted.
IT IS SO ORDERED.