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HELLER FIN. v. RIVERDALE AUTO PARTS

March 31, 1989

HELLER FINANCIAL, INC., a Delaware corporation, Plaintiff,
v.
RIVERDALE AUTO PARTS, INC., a Georgia corporation, and LEROY WILLIAMS, JR. and KEVIN WILLIAMS, Georgia residents, Defendants



The opinion of the court was delivered by: NORGLE

CHARLES R. NORGLE, UNITED STATES DISTRICT JUDGE:

 Before the court is the motion of defendants, Riverdale Auto Parts, Inc., ("Riverdale"), Leroy Williams Jr. and Kevin Williams, to transfer this action to the Northern District of Georgia, pursuant to 28 U.S.C. § 1404(a). For the following reasons, the motion is granted.

 FACTS

 Plaintiff, Heller Financial, Inc. ("Heller"), as lessor, and Riverdale, as lessee, entered into a lease ("Lease") of certain computer equipment to be supplied by National Business Computers, Inc., ("National"), a Georgia corporation located in Doraville, Georgia. Leroy Williams, Jr. and Kevin Williams guaranteed Riverdale's obligations under the Lease ("Guarantee"). Defendants assert that it was National which suggested that the equipment be leased through Heller, rather than purchased outright. All negotiations between Riverdale, Heller and National concerning the Lease and the Guarantee took place in and around Atlanta, Georgia. The Lease was executed by Riverdale in Georgia and Heller in Illinois. The Guarantee was executed in Georgia.

 The Lease and Guarantee both contain provisions whereby the defendants consented to jurisdiction ("consent to jurisdiction provisions"). The Lease para. 2 entitled "Choice of Law; Service of Process" states:

 
Lessee does hereby submit to the jurisdiction of any courts (federal, state or local) having a situs within the State of Illinois with respect to any dispute, claim or suit arising out of or relating to this Lease or Lessee's obligations hereunder . . . .

 and the Guarantee provides:

 
The undersigned do hereby submit to the jurisdiction of any court (federal, state or local) having situs within the State of Illinois . . . .

 Both the Lease and Guarantee provide that they are to be interpreted under Illinois law. The defendants, in lieu of an answer, have filed this motion to transfer in which they assert that all of the equipment under the Lease was never delivered to Riverdale by National and that transfer to the Northern District of Georgia is appropriate because National and its agents are both "truly culpable" parties outside the court's personal jurisdiction and unwilling witnesses beyond the court's power of process. Heller has objected to transfer on the grounds that the consent to jurisdiction provisions in the Lease and Guarantee amount to a waiver by the defendants of any objection to venue and that "§ 1404(a) nonetheless would mandate the denial of defendant's motion to transfer."

 DISCUSSION

 Transfer is appropriate under 28 U.S.C. § 1404(a) where the moving party demonstrates 1) venue is proper in the transferor district, 2) venue and jurisdiction are proper in the transferee district, and 3) the transfer is for the convenience of parties and witnesses and in the interest of justice. See Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 n. 3 (7th Cir. 1986); Central States, Southeast and Southwest Areas Pension Fund v. Brown, 587 F. Supp. 1067, 1069 (N.D. Ill. 1984). Though § 1404(a) is derived from the common law doctrine of forum non conveniens, the moving party under § 1404(a) has a lesser burden of showing inconvenience than is required under the common law doctrine. See Northern Indiana Public Service Co. v. Envirotech Corp., 566 F. Supp. 362, 364 (N.D. Ill. 1983). Moreover, because § 1404(a) does not specify the weight to be accorded each factor, it is left to the descretion of the court. See Coffey, 796 F.2d at 219; see generally 15 C. Wright & A. Miller, Federal Practice § 3844-47 (1986).

 A. The Consent to Jurisdiction Provisions Do Not Preclude a § 1404(a) Transfer

 Heller asserts that the consent to jurisdiction provisions amount to a waiver of objection to venue and thus preclude transfer. Defendants acknowledge they they have consented to jurisdiction, but contend that the consent to jurisdiction provisions do not establish this court as the exclusive venue. The court agrees with both the defendants' interpretation of the consent to jurisdiction provisions and their reading of the cases relied upon by Heller.

 While the consent to jurisdiction provisions operate as a consent to both jurisdiction and venue, thereby precluding a motion to transfer for improper venue under 28 U.S.C. § 1406(a), they do not preclude a § 1404(a) motion to transfer to a more convenient venue. In the Lease and Guarantee the defendants "submit to the jurisdiction" of the Illinois' courts. Nowhere in either the Lease or Guarantee, both of which were drafted by Heller, did the defendants ...


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