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WALLEN v. LOVING

May 1, 1985

WILLIAM L. WALLEN, PLAINTIFF,
v.
GRAHAM LOVING, JR., DEFENDANT.



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

ORDER

Before the Court is defendant's motion to transfer the case to the United States District Court for the District of Colorado pursuant to Title 28 U.S.C. § 1404(a). For the reasons stated herein, the defendant's motion is granted.

I. FACTS

This is an action for the failure to fulfill obligations in connection with a promissory note. The action was brought by William L. Wallen, who is domiciled in Illinois but has a residence in and owns or has an interest in a business which is located in Aspen, Colorado. The defendant, Graham Loving, Jr., is a resident of and domiciled within the State of Colorado. Venue is proper under 28 U.S.C. § 1391, and jurisdiction is proper under 28 U.S.C. § 1332.

Plaintiff's claim arises out of transactions which occurred almost ten years ago which gave rise to a promissory note in which Dan Weigner and C.M. Clark, both Colorado residents, and the plaintiff entered into negotiations for the purchase of, among other things, stock in Number One Main Corporation, a Colorado corporation, which owns premises commonly known as the Pomegranate Inn, located at or near Aspen, Colorado. The principal obligor of the promissory note is The Pomegranate Corporation, a Colorado corporation, and one of the co-signors and guarantors of the promissory note is the defendant, a resident of Colorado. The promissory note was also co-signed and guaranteed by Ludwig J. Czerhat, who was a resident of Colorado at the time of the transactions.

In consideration for the execution of the promissory note, the plaintiff was to deliver to The Pomegranate Corporation 25 shares of Class B common stock of Number One Main Corporation, the owner of the Pomegranate Inn. As part of this transaction, the plaintiff was to purchase 500 shares of the common stock of The Pomegranate Corporation for $5,000. Additionally, at the plaintiff's request, some of the funds due on the promissory note were transferred by The Pomegranate Corporation to Number Two Main Corporation, a Colorado corporation, the owner of the Plum Tree, which is located near Aspen, Colorado, so that the plaintiff could acquire stock therein.

II. DISCUSSION

A change of venue is governed by 28 U.S.C. § 1404(a) which 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.

Section 1404(a) requires that 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. Since the plaintiff resides in Illinois, venue is proper in this district. In addition, this action could have been brought in the District of Colorado, 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). A "clear balance of inconvenience" in this district over the transferee district must be shown by the movant to support a motion to transfer. Id.; see also S.E.C. 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) while also giving weight to plaintiff's choice of forum. These factors include convenience of the parties, convenience of the witnesses and the interests of justice.

1. Plaintiff's Choice of Forum

Under the common law doctrine of forum non conveniens the plaintiff's choice of forum was entitled to considerable weight. However, since the enactment of § 1404(a), the significance of plaintiff's choice of forum has diminished. 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. Moreover, where the forum lacks any significant contact with the underlying cause of action, the value of the plaintiff's choice of forum is reduced further. Cunningham v. Cunningham, 477 F. Supp. 632, 634 (N.D.Ill. 1979). In such a case, the plaintiff's choice of forum becomes just one of the many factors utilized by the Court in making its determination of convenience. General Signal Corp. v. Western Electric Co., 362 F. Supp. 878, 880 (N.D.Ill. 1973).

In the instant case, the question of where the promissory note was executed is in dispute. Plaintiff contends that the note was received, signed, executed and delivered in the law offices of Sidley & Austin in Chicago, Illinois. Defendant contends that the note was executed in the State of Colorado. Furthermore, the defendant argues that all of ...


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