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KINNEY v. ANCHORLOCK CORP.

March 21, 1990

LAWRENCE KINNEY, Plaintiff,
v.
ANCHORLOCK CORPORATION, a foreign corporation, Defendant


Ilana Diamond Rovner, United States District Judge.


The opinion of the court was delivered by: ROVNER

ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE

 I. INTRODUCTION

 This is a diversity action in which the plaintiff, Lawrence Kinney ("Kinney"), alleges that he was injured as the result of the defective manufacture of a semi tractor-trailer driver's seat by the defendant, Anchorlock Corporation ("Anchorlock"). The plaintiff filed this suit in the Circuit Court of Cook County, Illinois, and Anchorlock subsequently removed the suit to this Court. Pending before the Court is Anchorlock's motion for change of venue pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, the Court grants Anchorlock's motion and transfers the case to the Southern District of Iowa.

 II. FACTS

 For purposes of the pending motion to transfer, the Court has assumed the allegations contained in Kinney's complaint to be true.

 Kinney is a resident of Burlington, Iowa. In July of 1987, Kinney was employed as a truck driver by Fruehauf Corporation ("Fruehauf"). On July 27, 1987, he was driving a semi tractor-trailer on Interstate 280 near Rock Island, Illinois when he became involved in a traffic accident.

 The truck which Kinney was driving at the time of the accident was equipped with a driver's seat known as a "smart seat," manufactured by the defendant, Anchorlock. Anchorlock is a Delaware corporation which maintains its principal place of business in California. Kinney alleges that when the accident occurred, the seat malfunctioned, causing him to sustain certain unspecified injuries.

 In Count One of the Complaint, Kinney alleges that the seat was "unreasonably dangerous and defective"; in Count Two, he alleges that Anchorlock "carelessly and negligently designed and manufactured" the seat. Kinney seeks damages in excess of $ 15,000. *fn1"

 III. ANALYSIS

 A. Statutory Authority to Transfer

 Anchorlock has moved to transfer this suit to the Southern District of Iowa, where the plaintiffs resides, or, in the alternative, to the Central District of Illinois, where the accident in question took place and where Kinney's cause of action consequently arose. Anchorlock brings its motion under 28 U.S.C. § 1404(a), which provides as follows:

 
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) presumes that venue properly lies in the judicial district in which the suit was filed. Thus, the first question posed by a motion to transfer under § 1404(a) is whether venue is in fact appropriate both in this district and the proposed transferee district. Only if the Court answers this question in the affirmative does it proceed to consider the convenience of the parties and their witnesses and the interest of justice. See Waller v. Burlington Northern R. Co., 650 F. Supp. 988, 989-90 (N.D.Ill. 1987) (Bua, J.); Centaur Ins. Co. v. Mission Ins. Group, Inc., 620 F. Supp. 1492, 1494 (N.D.Ill. 1985) (Bua, J.).

 In this case, it is apparent at the outset that venue is not proper in this judicial district. 28 U.S.C. § 1391(a) identifies the districts in which a diversity suit may be maintained:

 
A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside, or in which the claim arose.

 Neither Kinney nor Anchorlock is a resident of the Northern District of Illinois. Further, although the accident giving rise to Kinney's injuries occurred within the boundaries of Illinois, that accident did not occur within this district, but within the Central District of Illinois, where Rock Island is located. Because venue does not properly lie in this district, the Court cannot proceed further under § 1404(a).

 Nonetheless, 28 U.S.C. § 1406(a) supplies the Court with the authority to address the defect in venue:

 
The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.

 In this case, it would be inappropriate to consider dismissing the case when Kinney filed suit not in this Court but in the Circuit Court of Cook County, and it was the defendant who removed the action to federal court. Moreover, although it is evident that Cook County has no tie to either the parties or the cause of action in this case, Illinois law expressly permits the plaintiff to file suit in any county in the State when, as in this case, the defendant is a nonresident. See Ill. Ann. Stat. ch. 110, para. 2-101 (Smith-Hurd Supp. 1989). Thus, the plaintiff took no plainly improper action which would merit dismissal. *fn2" Compare Cote v. Wadel, 796 F.2d 981, 985 (7th Cir. 1986) (dismissal an appropriate penalty for obvious mistakes). Accord Saylor v. Dyniewski, 836 F.2d 341, 345 (7th Cir. 1988). Accordingly, the Court will proceed to determine where this case should be transferred.

 B. The Proper Transferee Forum

 Although the Court has concluded that § 1404(a) does not govern Anchorlock's motion to transfer, given the fact that Anchorlock has proposed two alternative transferee forums, the analysis which courts customarily apply to § 1404(a) motions is helpful in determining which of these forums is the more appropriate destination for this case. The parties disagree on this question: Anchorlock argues that the Southern District of Iowa is the preferable forum; Kinney prefers the Central District of Illinois. Applying § 1404(a) principles to this issue, the Court must first determine whether venue and personal jurisdiction properly lie in each of the proposed transferee districts, and then evaluate the extent to which each district serves the convenience of the parties and the witnesses and the interest of justice. *fn3"

 1. Venue and Personal Jurisdiction in the Proposed Transferee Districts

 As set forth above, venue in a diversity case properly lies in a district in which all plaintiffs or all defendants reside or in which the cause of action arose. 28 U.S.C. § 1391(a). Because the plaintiff resides in the Southern District of Iowa, venue properly lies in that judicial district. Because Kinney's cause of action arose in the Central District of Illinois, venue properly lies in that district as well.

 The Court must also consider whether both the district courts in both the Southern District of Iowa and the Central District of Illinois would be able to properly assert personal jurisdiction over Anchorlock. *fn4" Both parties contend that Anchorlock would be subject to service of process and personal jurisdiction in ...


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