United States District Court, Northern District of Illinois, E.D
July 27, 1984
CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, A PENSION TRUST, AND HOWARD MCDOUGALL, TRUSTEE AND FIDUCIARY OF SUCH PENSION TRUST, PLAINTIFFS,
ROY M. BROWN, D/B/A ROY M. BROWN TRUCKING, DEFENDANT.
The opinion of the court was delivered by: Bua, District Judge.
Before the Court is defendant's motion to transfer this case to
the District Court for the Southern District of Illinois pursuant
to 28 U.S.C. § 1404(a). For the reasons stated herein,
defendant's motion to transfer is granted.
The following facts are set forth in the First Amended
Complaint filed by plaintiff on July 19, 1984, and an affidavit
filed by defendant on July 9, 1984.
Plaintiff Central States, Southeast and Southwest Areas Pension
Fund ("the Fund") is a common law pension trust operating as an
employee benefit plan with its principal place of business at
Chicago, Illinois. Plaintiff Howard McDougall serves as a trustee
of the Fund. Defendant Roy M. Brown, a resident of Galatia,
Illinois, is the sole proprietor of Roy M. Brown Trucking,
an unincorporated business which is engaged in the business of
transporting coal, rock and sand in the area of Galatia,
The Fund brings this three-count complaint against Brown,
invoking the jurisdiction of this Court under Section 502(e)(1)
of the Employee Retirement Income Security Act of 1974 ("ERISA"),
29 U.S.C. § 1132(e)(1), and Section 301(a) of the Labor
Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 185(a).
The Fund alleges that Brown has breached the terms of various
agreements which require Brown to make monthly pension
contributions to the Fund on behalf of Brown's employees. Brown
is allegedly delinquent in the amount of $80,148.26 to the Fund.
In support of the breach of contract claim for the period of
May 1, 1980, through April 30, 1983, the Fund attaches a copy of
a collective bargaining agreement ("the 1980-83 agreement")
executed by Teamsters Local No. 347 and Egyptian Truck Owners
Association, Inc. ("the Association"). Apparently in an attempt
to establish that the 1980-83 agreement obligates Brown to make
payments to the Fund, the Fund alleges that Brown granted the
Association a power of attorney and authorized the Association to
negotiate and sign the 1980-83 agreement on behalf of Brown.
Brown, however, denies that he ever granted the Association a
power of attorney and further denies that he was ever a member of
the Association. The Association's Secretary, B.R. Waldren,
possesses the books and records of the Association, and resides
in Herrin, Illinois.
Section 1404(a), 28 U.S.C. provides:
For the convenience of parties and witnesses, in the
interest of justice, a district court may transfer
any civil action to any other district or division
where it might have been brought.
Id. In order to show that transfer of venue is proper, the moving
party must establish that (1) venue is proper in the transferor
court; (2) venue is proper in the transferee court, and (3) the
transfer is for the "convenience of parties and witnesses, in the
interest of justice." Midwest Precision Services v. PTM
Industries, 574 F. Supp. 657, 659 (N.D.Ill. 1983) (quoting
Chicago, R.I. & P.R. Co. v. Igoe, 212 F.2d 378, 379 n. 1 (7th
Cir. 1954)). Although the party seeking transfer bears the burden
of establishing that a transfer of venue is proper, the burden
under § 1404(a) is substantially less than a transfer under the
doctrine of forum non conveniens. Norwood v. Kirkpatrick,
349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955).
Jurisdiction for the Fund's complaint is grounded upon
29 U.S.C. § 185(a) and 1132(e)(1). Claims brought solely against an
employer under § 185(a) are subject to the general venue statute,
28 U.S.C. § 1391. Stith v. Manor Baking Co., 418 F. Supp. 150, 155
(W.D.Mo. 1976); 1 Moore's Federal Practice, ¶ 0.144 [14.-16] (2d
ed. 1984), at 1568. Venue is proper under § 1391 in the judicial
district where all defendants reside or in which the claim arose.
28 U.S.C. § 1391. Claims brought under § 1132(e)(1) are subject
to the specific ERISA venue statute contained in
29 U.S.C. § 1132(e)(2), which provides that venue is proper in the judicial
district "where the [employee benefit] plan is administered,
 where the breach took place, or  where a defendant resides
or may be found. . . ." 29 U.S.C. § 1132(e)(2).
In this case, the Fund is administered in the Northern District
of Illinois; the claim arose in the Southern District of
Illinois; the "breach took place" in the Southern District, and
the defendant resides in the Southern District. Thus, venue,
under ERISA, is proper in both the transferor and transferee
districts. Furthermore, since Brown has failed to object to
improper venue in the Northern District of Illinois on the §
185(a) claim, venue is also proper under § 185(a) in the
transferor and transferee courts. (See St. Hilaire v.
Shapiro, 407 F. Supp. 1029, 1031 (E.D.N.Y. 1976)).
B. Plaintiff's Choice of Forum
The Fund's choice of forum is entitled to substantial weight
unless that forum lacks any significant contact with the
underlying cause of action. Hotel Constructors, Inc. v. Seagrave
Corp., 543 F. Supp. 1048, 1050 (N.D.Ill. 1982); Cunningham v.
Cunningham, 477 F. Supp. 632, 634 (N.D.Ill. 1979). In this case,
the only relationship to the Northern District of Illinois is
that the Fund is administered here. Whether Brown, however, is
liable to the Fund and, if so, the amount of that liability are
issues which have no relationship to this district. All of the
labor contracts at issue were negotiated and signed in the
Southern District of Illinois. Brown's alleged breach of contract
occurred in the Southern District; the alleged power of attorney
was issued in the Southern District; the Association which
allegedly entered into the contract on behalf of Brown is located
in the Southern District; and Brown's employment records, which
would be utilized to ascertain the amount of damages if liability
is established, are located in the Southern District. Since the
Fund's choice of forum lacks any significant contact with the
underlying cause of action, the Fund's choice of forum will not
be given substantial weight, but rather will be given "equal
consideration along with other factors which must be considered
under § 1404." Hotel Constructors, Inc. v. Seagrave Corp.,
543 F. Supp. 1048, 1051 (N.D.Ill. 1982).
C. Convenience of the Parties
The Fund is administered from its sole office located within
the Northern District of Illinois. Brown resides in the Southern
District of Illinois and his business, Roy M. Brown Trucking,
operates exclusively within the Southern District. A transfer of
this case to the Southern District would therefore merely shift
the inconvenience of litigating this case from Brown to the Fund.
A mere shift in inconvenience is not, by itself, sufficient to
warrant a transfer of venue under § 1404(a). NTN Bearing Corp. v.
Charles E. Scott, Inc., 557 F. Supp. 1273, 1279 (N.D.Ill. 1983);
Bodines, Inc. v. Sunny-O, Inc., 494 F. Supp. 1279, 1286 (N.D.Ill.
1980). Accordingly, transfer of this case is not warranted solely
for the convenience of the parties.
D. Convenience of the Witnesses
In considering the convenience of potential witnesses, the
Court must consider not only the number of witnesses located in
the respective districts, but also the nature and quality of
their testimony in relationship to the issues of the case.
Midwest Precision Services v. PTM Industries, 574 F. Supp. 657,
659 (N.D.Ill. 1983); Vaughn v. American Basketball Assoc.,
419 F. Supp. 1274, 1276-77 (S.D.N.Y. 1976).
All of the potential witnesses identified by the parties reside
in the Southern District of Illinois. B.R. Waldren, Secretary of
the Association, is a resident of the Southern District and
presently possesses the books and records of the Association.
Brown intends to call Waldren to testify that Brown was never a
member of the Association, never granted the Association a power
of attorney, and never authorized the Association to negotiate
labor matters on Brown's behalf. Furthermore, Brown intends to
call D.C. Simpson, G. Rigsby, and F. Denny, residents of the
Southern District, to testify regarding membership in the
Association. Whether the Association was authorized to negotiate
and contract on Brown's behalf is an important issue raised by
the Fund in Count II of the Amended Complaint. Since all of the
known potential witnesses reside in the Southern District, the
convenience of the witnesses would be best served by transferring
the case to the Southern District of Illinois.
E. Interest of Justice
Factors listed by the Supreme Court to be considered in
evaluating whether transfer is in the interest of justice
. . relative ease of access to sources of proof;
availability of compulsory process
for attendance of unwilling, and the cost of
obtaining attendance of willing, witnesses; . . . and
all other practical problems that make a trial easy,
expeditious, and inexpensive.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843,
91 L.Ed. 1055 (1947). In this case, it appears that most of the
sources of proof are located in the Southern District of
Illinois. Moreover, all of the potential witnesses reside in the
Southern District and would not be subject to the compulsory
process of this Court.
Another factor favoring transfer to the Southern District is
the relative bargaining power and financial positions of the
parties. See Butterick Co. v. Will, 316 F.2d 111 (7th Cir. 1963);
AAMCO Automatic Transmissions, Inc. v. Bosemer, 374 F. Supp. 754,
757 (E.D.Pa. 1974). As Judge Will stated in a similar case
brought under ERISA by an employee benefit fund against an
. . it is obviously unfair and not in the interests
of justice to require an apparently small, local
employer in Florida to come to Illinois to assert
whatever defenses it may have to the national fund's
National Electric Contractors Assoc. v. Brannen, No. 83 C 6161,
slip op. at 9 (N.D.Ill. Nov. 30, 1983). Similarly, it would not
be in the best interest of justice in this case to require Brown,
the sole proprietor of an apparently small trucking company
located in Galatia, Illinois operating solely within the Southern
District, to defend a suit 300 miles from his home brought by a
large pension fund with jurisdiction over several regions of the
Finally, the type of relief sought by the Fund indicates that,
in the interest of justice, this case should be transferred to
the Southern District of Illinois. In addition to seeking
damages, the Fund seeks a mandatory injunction which would
require Brown to make contributions to the Fund in the future.
Assuming that the Fund successfully prosecutes its claim and is
entitled to injunctive relief, this Court would be required to
monitor the defendant's activities from a distance of 300 miles.
The parties and the Court would be greatly inconvenienced if such
an injunction was issued. Clearly, the District Court for the
Southern District of Illinois is better equipped than this Court
to enforce an injunction against a resident of its own district.
Defendant has sustained his burden of showing that the
convenience of witnesses and the interest of justice require this
case to be transferred to the District Court for the Southern
District of Illinois. Defendant's motion to transfer the case
pursuant to 28 U.S.C. § 1404(a) to the Southern District of
Illinois is therefore granted.
IT IS SO ORDERED.
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