Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LETTER-RITE, INC. v. COMPUTER TALK

February 15, 1985

LETTER-RITE, INC., AN ILLINOIS CORPORATION, PLAINTIFF,
v.
COMPUTER TALK, INC., ET AL., DEFENDANTS.



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

  MEMORANDUM OPINION AND ORDER

Letter-Rite, Inc. ("Letter-Rite") brings this diversity action against Computer Talk, Inc. ("Computer Talk") for breach of contract. Computer Talk has moved under 28 U.S.C. § 1404(a) ("Section 1404(a)") to transfer this action to the United States District Court for the District of Colorado. For the reasons stated in this memorandum opinion and order, Computer Talk's motion is granted.*fn1

FACTS

Letter-Rite — a small, closely-held Illinois corporation — specializes in the production of business stationery. Early in 1980 Letter-Rite approached Computer Talk — a small, closely-held Colorado corporation-about the possible purchase of a computer-operated stenciling machine. Six months of negotiations followed, culminating in a June 30, 1980 Agreement (the "Agreement") under which Computer Talk was to develop, construct and install such a stenciling machine for Letter-Rite.

Under the Agreement Letter-Rite, at its own expense, was to send a representative to the Computer Talk factory in Colorado to observe the performance of the stenciling machine (when completed) over a two-week period of around-the-clock operation. Assuming the machine performed satisfactorily, Letter-Rite was to accept it and to take delivery F.O.B. the Computer Talk factory. Letter-Rite was then to arrange shipment of the machine to its destination in Illinois, at which point Computer Talk would arrange for proper installation. Final acceptance by Letter-Rite would follow upon satisfactory installation. Half the purchase price was due on or before acceptance at the Computer Talk factory, and the other half was to be paid in ten monthly installments beginning the month after acceptance by Letter-Rite in Colorado.*fn2

Initially the Agreement called for delivery within six to eight months after the June 30, 1980 execution date. On April 25, 1981 the parties signed a modification agreement providing (among other things) (1) that failure to adhere to the original timetable would constitute no breach of the Agreement and (2) for a procedure for setting a new production schedule. It is not clear from the parties' submissions whether such a schedule was set — or what it might have been. In any case Computer Talk has yet to offer a finished product for acceptance and delivery, though it claims work on the product is substantially complete.

Section 1404(a) Principles

Section 1404(a) provides:

  For the convenience of the 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.

Section 1404(a) principles are related (but not identical) to those governing forum non conveniens motions, as set out in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947).*fn3 But at least one important difference between the two doctrines is relevant here. As characterized in Gulf Oil, forum non conveniens gives great weight to the plaintiff's choice of forum (id.):

  [U]nless the balance is strongly in favor of the
  defendant, the plaintiff's choice of forum should
  rarely be disturbed.

Under Section 1404(a), though, the plaintiff's right to choose his forum does not weigh so heavily in the balance. Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789 (1955) taught Section 1404(a) was not meant simply to codify the old doctrine:

  [W]e believe that Congress, by the term "for the
  convenience of parties and witnesses, in the
  interest of justice," intended to permit courts
  to grant transfers upon a lesser showing of
  inconvenience. This is not to say that the
  plaintiff's choice of forum is not to be
  considered, but only that the discretion to be
  exercised is broader.*fn4

Under Section 1404(a) plaintiff's choice of forum is not an overriding consideration, but rather one of many factors to be considered. See Rockwell International Corp. v. Eltra ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.