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ENVRNMENTAL SRVCS v. BELL LMBR AND POLE CO.

November 26, 1984

ENVIRONMENTAL SERVICES, INC., AN ILLINOIS CORPORATION, PLAINTIFF,
v.
BELL LUMBER AND POLE COMPANY, A MINNESOTA CORPORATION, DEFENDANT.



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

ORDER

Before the Court is defendant's motion to dismiss for lack of personal jurisdiction or, in the alternative, to transfer the case to the United States District Court for the District of Minnesota. For the reasons stated herein, defendant's motion to transfer is granted and its motion to dismiss is denied.

I. FACTS

This is an action for fraud and misrepresentation in the execution of an agreement for certain waste disposal. The action was brought by Environmental Services, Inc. (ESI), which is an Illinois corporation with its principal place of business in Chicago. The defendant Bell Lumber and Pole Company (Bell) is a Minnesota corporation with its principal place of business in New Brighton, Minnesota. Venue is proper under 28 U.S.C. § 1391, and jurisdiction is proper under 28 U.S.C. § 1332.

II. DISCUSSION

28 U.S.C. § 1404(a) governs change of venue and provides in pertinent part:

  (a) 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.

In order to meet the requirements of § 1404(a), the movant must establish "(1) that venue is proper in the transferor district; (2) that the transferor court has the power to transfer the case (that is, that the transferee court is in a district `where it might have been brought'); and (3) that the transfer is for the `convenience of the parties and witnesses in the interest of justice.'" Hotel Constructors, Inc. v. Seagrave Corp., 543 F. Supp. 1048, 1050 (N.D.Ill. 1982). Requirements (1) and (2) are met in this case. Venue is proper in this district because plaintiff resides in Illinois for venue purposes and this action could have been brought in the District of Minnesota, which has proper venue and jurisdiction because defendant resides there under 28 U.S.C. § 1332 and 1391.

The Court now turns to requirement (3). To support a motion to transfer, the movant must show a "clear balance of inconvenience" in this district over the transferee district. Id.; see also SEC v. First National Finance Corp., 392 F. Supp. 239, 240 (N.D.Ill. 1975). In determining whether the movant has met this burden, the Court must consider the factors specifically mentioned in § 1404(a) (convenience of the parties, convenience of the witnesses and the interests of justice in general) while also giving weight to plaintiff's choice of forum.

1. Convenience of the Parties

Although under the common law doctrine of forum non conveniens, plaintiff's choice of forum was an overriding factor entitled to considerable weight, the significance of that choice has diminished since the enactment of § 1404(a). Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955); Hotel Constructors, Inc. v. Seagrave Corp., 543 F. Supp. at 1050. Additionally, plaintiff's choice of forum has reduced value where the forum lacks any significant contact with the underlying cause of action. Cunningham v. Cunningham, 477 F. Supp. 632, 634 (N.D.Ill. 1979). In such a case, it becomes just one of many factors to be viewed by the Court when making its determination of convenience. General Signal Corp. v. Western Electric Co., 362 F. Supp. 878, 880 (N.D.Ill. 1973).

In the present case, the question of where the conduct underlying this action occurred is disputed. Plaintiff contends that the defendant's misrepresentations caused the breach of contract and consequent damage in Illinois since that is where plaintiff's attempted performance failed due to the alleged misrepresentations. Defendant argues that any alleged misrepresentation made for the purpose of inducing ESI to enter into the contract must have been made during the contract negotiations, all of which took place in Minnesota. The Court agrees with the defendant that the plaintiff's claims of breach of contract and fraud rest on a question of contract formation and execution, which occurred for the most part during negotiations in Minnesota. For these reasons, Illinois is ...


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