2. Convenience of the Parties and Witnesses
Although § 1404(a) specifically points to the convenience of
both parties and witnesses, in the present case, only the
latter factor need by analyzed by the Court. The facts
presented by this motion indicate that the convenience of the
parties in neutral in this case. Both plaintiff and defendant
will be inconvenienced if this action is brought in the other
parties' resident district and the financial strengths of the
parties are equivalent.
In analyzing the convenience of witnesses, the Court must look
to the expenses of transportation and the length of time the
witnesses will be absent from their jobs. In addition, this
Court must consider not only the number of potential witnesses
located in the transferor and transferee 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). At this
stage, three issues are raised by the pleadings. The First
issue is whether the parties to the contract contemplated that
the waste disposed of would be nonhazardous. The second issue
is whether, if the parties contemplated nonhazardous waste, the
waste delivered by Bell was hazardous. The third issue is
whether the parties contemplated that the waste would be
disposed of in Illinois and therefore judged by Illinois
standards, as well as federal standards.
Probably the most significant factual issue in this case is
whether the parties meant for the term "waste" in the agreement
to include hazardous waste. Bell intends to call several of its
employees who were involved in the contract negotiations. All
of these employees are residents of Minnesota. In addition,
Bell intends to call employees of Circuit Laboratories and
Interpoll Laboratories, both of which companies are located in
Minnesota. Finally, the affidavit of Bell's President, Merton
Bell III, points to the importance of the testimony of James A.
Kinsey, an employee of Waste Reduction, Inc. (ESI's authorized
agent in Minnesota), who initiated the contract negotiations in
Minnesota with Bell. Kinsey and the employees of Circuit
Laboratories and Interpoll Laboratories are residents of
Minnesota and would not be within the subpoena power of this
ESI argues that trial in Minnesota would deprive that court of
the testimony of numerous Illinois residents who observed the
attempted performance of ESI's obligations under the contract
in Illinois. ESI intends to call, among many others, Neil F.
Hartigan, the Attorney General of Illinois, and two judges from
the Cook County Circuit Court, all of whom were involved in the
State of Illinois' successful attempt to prevent ESI's disposal
of the waste in Illinois. ESI also intends to call various
employees at various waste testing laboratories in Illinois in
order to show that the waste is hazardous under Illinois
If the issue in this case were whether Bell's waste is
hazardous under Illinois standards, ESI's list of witnesses
would at least equal, if not outweigh, Bell's list of
witnesses. However, that is not the issue in the case. The
issue is one of contract formation in relation to the three
issues discussed above. Since the contract itself is silent as
to the place of performance and the nature of the waste as a
condition of performance, Bell's list of witnesses — who are
Minnesota residents and who either participated in contract
negotiations or in testing the material at the time of the
contract's execution — prevails over ESI's list of Illinois
The second issue of whether the waste delivered by Bell was
hazardous points again to the testimony of witnesses in
Minnesota. Plaintiff argues that this issue has already been
determined in Illinois and therefore its list of Illinois
witnesses should prevail. Plaintiff's argument is not
persuasive since the contract mentions no place of performance
and it seems unlikely that Bell should be held to Illinois
hazardous waste standards unless such an understanding was
reached during the contract negotiations. This finding also
disposes of the third issue in Bell's favor. Further,
since the contract's formation took place in Minnesota, it is
likely that Minnesota law would apply to questions of contract
interpretation, as well as Minnesota hazardous waste standards
at the time of delivery.
On balance, considering the nature and quality of the testimony
of potential witnesses, the Court finds that when all potential
issues raised by the complaint are considered, the convenience
of the witnesses would best be served by the transfer of this
case to the District of Minnesota.
3. Interest of Justice
The Court concludes that the final factor to be considered
under § 1404(a) supports transfer to the District of Minnesota.
Under Illinois conflict of law principles, Minnesota law will
be applied to this action because Minnesota is the place of the
contract's making. P.S. & E., Inc. v. Selastomer Detroit,
Inc., 470 F.2d 125, 127 (7th Cir. 1972), citing Oakes v.
Chicago Fire Brick Co., 388 Ill. 474, 58 N.E.2d 460 (1944).
The question of the place of performance remains open to
question as a matter of contract interpretation since the
contract was silent as to it. Therefore, ESI's attempted
performance in Illinois does not necessarily mean that Illinois
law will apply as the place of performance.
Additionally, the nature of the waste at the time of delivery
may involve a question of Minnesota waste standards. These
facts make transfer of the action appropriate. This is not
because Minnesota law is uncertain, novel or complex, but
merely because issues of local law are best construed by courts
most familiar with them. Hotel Constructors, Inc. v. Seagrave
Corp., 543 F. Supp. at 1052.
For the reasons stated above, the defendant's motion to dismiss
is denied and its motion to transfer is granted.
IT IS SO ORDERED.
© 1992-2003 VersusLaw Inc.