The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
This Court's September 10, 1984 memorandum opinion and order
(the "Opinion," 594 F. Supp. 341) (1) denied as untimely the
motion of defendants Jack Zukerman ("Zukerman"), William
Feldstein, Jr. and Murray Scheer to transfer venue under
Fed.R.Civ.P. ("Rule") 12(b)(3) and (2) granted in part and
denied in part defendants' Rule 12(b)(2) motion to dismiss the
various counts of the Complaint.*fn1 Now defendants move
under 28 U.S.C. § 1404(a) ("Section 1404(a)") for transfer to
the Central District of California. For the reasons stated
briefly in this memorandum opinion and order, the motion is
Defendants are officers and directors of Delaware Genesis, Inc.
("Genesis"), a Los Angeles-based company "in the business of
warehousing, marketing, and selling weight control products,
diets, food packages, behavior modification programs, and other
health related plans and items" (Complaint ¶ 6). On May 27,
1983 Genesis, acting through defendants, entered into an
agreement (the "Contract") with Club Assistance Program, Inc.
("CAP") for marketing-consultant services to help promote sales
of Genesis' products in Illinois. Since that time Genesis has
not paid CAP all money due, or delivered any of the Genesis
stock to which CAP is entitled, under the Contract. On February
29, 1984 Genesis filed a petition for Chapter 11 bankruptcy
reorganization in the Central District of California.
CAP claims defendants are responsible for Genesis' incomplete
performance of the Contract because they looted, and generally
took unreasonable profits from, Genesis. CAP asserts defendants
acted against it specifically in an effort to hide their
wrongdoing by deliberately misinterpreting the Contract, then
by lulling CAP into a false sense of security by
misrepresenting to CAP that Genesis would be able to pay its
After the Opinion, CAP remains with three surviving claims.
They charge defendants with having:
1. violated the Racketeer Influenced and Corrupt
Organizations Act ("RICO"), 18 U.S.C. § 1961-1968 (Count I);
2. tortiously interfered with the Contract by inducing
Genesis to breach it (Count II); and
3. committed fraud by (a) looting Genesis and (b)
misrepresenting its financial condition to CAP (Count III).
Section 1404(a) permits transfer "[f]or the convenience of
parties and witnesses, in the interest of justice," to any
district where an action "might have been brought." Because
defendants are California domiciliaries, this action could
unquestionably have been brought in the Central District of
California (28 U.S.C. § 1391(a)). There is similarly no doubt
the action should be transferred there.
Section 1404(a) calls for a balancing exercise, with the burden
on defendants to show a significant tipping in their favor.
Among the relevant factors are those described in Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91
L.Ed. 1055 (1947) for deciding forum non conveniens cases. But
(despite CAP's erroneous assertion to the contrary*fn3) this
Court may grant transfers more freely under Section 1404(a)
than under the older forum non conveniens doctrine. Piper
Aircraft Co. v. Reyno, 454 U.S. 235, 253, 102 S.Ct. 252, 264,
70 L.Ed.2d 419 (1981); Norwood v. Kirkpatrick, 349 U.S. 29,
30-32, 95 S.Ct. 544, 545-46, 99 L.Ed. 789 (1955).
Only one factor weighs in CAP's favor here: its choice of an
Illinois forum. As this Court reconfirmed in Associated Mills,
Inc. v. Rush Hampton Industries, Inc., 588 F. Supp. 1164,
1165-66 (N.D.Ill. 1984), that choice is simply one factor among
many to be considered. Associated Mills, however, went on to
echo the teaching of Norwood, 349 U.S. at 32, 75 S.Ct. at 546
that plaintiff's forum selection is significantly less weighty
under Section 1404(a) than under forum non conveniens.
Here CAP's choice of forum is heavily outweighed by
considerations of the convenience of witnesses*fn4 and (less
importantly) the location of relevant documents. CAP's case is
based entirely on actions that took place in California in the
context of Genesis' business operations. Genesis' sole office
is in California and all of its employees and outside
accountants reside there (Zukerman Aff. ¶¶ 2-8). If defendants
in fact looted Genesis, they did so in California before
California witnesses. They took California assets and concealed
their looting from California accountants by means of
California documents. Their asserted misrepresentations of
Genesis' financial condition took place during two
long-distance calls (with Zukerman on one end of the telephone
line — in ...