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June 15, 1984


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


Associated Mills, Inc. ("Associated Mills") has filed a multi-count Complaint against Rush-Hampton Industries, Inc. ("Rush-Hampton"):

    1. Count I is brought under the Lanham Act,
  charging infringement of Associated Mills'
  federally-registered "Pollenex" trademarks.
    2. Count II asserts the federal version of
  commonlaw unfair competition under Lanham Act §
  43(a), 15 U.S.C. § 1125(a).
    3. Count III (asserting both diversity of
  citizenship and pendent jurisdiction) charges unfair
  competition and deceptive trade practices.

Rush-Hampton has both answered and gone on the attack via affirmative defenses and a counterclaim against Associated Mills' registrations, but its principal interest just now is in transfer to the United States District Court for the Middle District of Florida, Orlando Division under 28 U.S.C. § 1404(a) ("Section 1404(a)"). For the reasons stated in this memorandum opinion and order, that motion is granted.

Analysis Under Section 1404(a)

In the days before enactment of Section 1404(a), the judicially-created doctrine of forum non conveniens was the courts' only vehicle to moderate the sometimes-unfair effects of the expansion of in personam jurisdiction wrought by International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945) and its progeny. Those cases taught it was constitutional to hale a defendant into court in a far-away forum once that forum was shown to have enough contacts with the defendant to support the assertion of jurisdiction (either in "general jurisdiction" or "specific jurisdiction" terms*fn1). But constitutionality was not necessarily controlling where the burdens of defense away from home materially outweighed the countervailing considerations favoring the forum — hence "forum non conveniens."

At the same time, the remedy of outright dismissal on forum non conveniens grounds involved substantial costs to the plaintiff. Rejection of the forum as "inconvenient" forced a plaintiff to begin all over again in a new forum: hiring new counsel, adapting the complaint to the new jurisdiction's pleading requirements, having to serve the defendant afresh, dealing with new choice-of-law rules and perhaps new substantive law — and the list can go on.

Understandably then the forum non conveniens doctrine gave a good deal of weight to the plaintiff's forum selection. Gulf Oil Co. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947) put it simply:

  But unless the balance is strongly in favor of the
  defendant, the plaintiff's choice of forum should
  rarely be disturbed.

Only when general jurisdiction was involved and "none of the conduct complained of occurred in the forum selected by the plaintiff" was the plaintiff's preference viewed as having "minimal value." Chicago, Rock Island & Pacific R.R. Co. v. Igoe, 220 F.2d 299, 304 (7th Cir. 1955).

Now Section 1404(a) transfers eliminate most of the adverse effects of forum non conveniens dismissal recited earlier.*fn2 It is therefore equally understandable that the plaintiff's choice of forum is not given the same heavy emphasis in Section 1404(a) determinations as under forum non conveniens. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955); and see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253, 102 S.Ct. 252, 264, 70 L.Ed.2d 419 (1981). Instead choice of forum is one relevant factor in the balancing among the trichotomy identified in Section 1404(a): convenience of parties, convenience of witnesses and the interest of justice. Assuredly the forum choice is a component of plaintiff's "convenience," and it may also enter into the "interest of justice" analysis, but it no longer has overpowering force.

Here the facts do not literally fit the Chicago, Rock Island mold, but they are not far from it. Rush-Hampton has no ongoing Illinois presence as all: It maintains no executive, administrative or sales offices in Illinois, nor does it have any facilities or employees here. It has no Illinois bank accounts or telephone listings, and it is not registered to do business here. It insists it has never made a sale of the alleged infringing products within this state, but Associated Mills retorts the accused items were ...

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