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CENT. STATES, PENSION FUND v. BROWN

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,
v.
ROY M. BROWN, D/B/A ROY M. BROWN TRUCKING, DEFENDANT.



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

MEMORANDUM ORDER

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.

I. FACTS

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, Illinois.

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.

II. DISCUSSION

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).

A. Venue

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 "[1]where the [employee benefit] plan is administered, [2] where the breach took place, or [3] 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 § ...


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