c. The interest of justice
The interest of justice encapsulates a number of factors, which include the relative ease of access to sources of proof, the amenability of unwilling witnesses to service of process, the forum community's tie to the issues at stake in the litigation, the prospects for a speedy trial, and, in a diversity case, the relative familiarity with the state law which governs the plaintiff's claims. See Heller Financial, Inc. v. Midwhey Powder Co., supra, 883 F.2d at 1293; Letter-Rite, Inc. v. Computer Talk, Inc., 605 F. Supp. 717, 721 (N.D.Ill.1985) (Shadur, J.). On balance, these factors also weigh in favor of transfer.
The Court has already noted that the majority of likely witnesses reside in Texas. Documentary evidence will also be important to Vanguard's case, and much of that evidence, including the lease applications, leases, documentation of Vanguard's credit investigations, and other relevant documents in Vanguard's files pertaining to the defendant churches, is located in Illinois. But such evidence is neither voluminous nor difficult to photocopy, and thus its location is of little significance. See Associated Mills, Inc. v. Rush-Hampton Industries, Inc., 588 F. Supp. 1164, 1166-67 (N.D.Ill.1984) (Shadur, J.) Accordingly, the Court finds it more important in terms of the accessibility of sources of proof that the majority of the likely witnesses reside in the Northern District of Texas.
The Texas court will also enjoy the advantage of having subpoena power over any Texas resident who might be an unwilling witness. For the most part, it would appear that Vanguard's witnesses are its own employees; thus, there is no evident need for the use of subpoenas to compel the attendance of its witnesses, and the Texas District Court would not be disadvantaged in this respect. Cf. Sterling Novelty, Inc. v. Smith, 700 F. Supp. 408, 410 (N.D.Ill.1988) (Bua, J.). The Court cannot make the same assumption about the defendants' witnesses living in Texas, however; and to the extent any of these witness are reluctant to testify, the authority to subpoena their testimony, which this Court lacks, cannot be discounted. Cf. First Financial Leasing Corp. v. Hartge, supra, 671 F. Supp. at 543 (observing that because some of the defendants had failed to appear and might thus be unavailable as witnesses in Illinois, it was desirable to transfer the case to forum where all but one defendant lived).
In a practical sense, the Court also finds that Texas has a greater tie to the events underlying this litigation. Each of the many defendants resides in that state, the alleged conspiracy germinated and came to fruition there, the office equipment which is the subject of the leases at issue in this case was used there, and the defendants' profit from the scheme was distributed and invested there. In contrast, Illinois' only real connection to the litigation lies in the fact that Vanguard is an Illinois corporation. Of course, Vanguard contends that the leases should be deemed to have been made in Illinois, and in a technical sense, Vanguard may well be correct, if for no other reason than the provisions contained in the forum selection clause of each lease. In fact, however, the leases were signed in Texas, the alleged misrepresentations upon which Vanguard relied in agreeing to enter the leases originated in Texas, and the office equipment governed by the leases was delivered to Texas for use in that state. Thus, with respect to not only the fraud and RICO claims, but the breach of contract claims as well, the Court finds a greater tie to Texas than to Illinois.
As to the familiarity with the governing body of law, the Court finds that a court in neither forum enjoys an advantage. The Court assumes that Illinois law will govern interpretation and enforcement of the leases, in view of the forum selection and choice of law provisions recited earlier. As Vanguard points out, the RICO claim is governed by federal law and that body of law is equally familiar to any district court. As to the fraud claims, given that the underlying scheme to defraud was born and implemented in Texas, the Court finds it likely that Texas law will govern.
Accordingly, this factor is a wash with respect to the merits of transfer.
The Court finds the likelihood of a speedy trial similarly inconclusive. The most telling statistic with respect to docket congestion is the average number of weighted filings in each district. Letter-Rite, Inc. v. Computer Talk, Inc., supra, 605 F. Supp. at 722. Here the two districts are roughly equal, for the figure for the twelve-month period ended June 30, 1989 was 626 for the Northern District of Texas, and 603 for the Northern District of Illinois. Thus, the Court finds that neither district holds a significant advantage with respect to this factor.
On balance, however, the Court finds that most of the considerations encompassed by the interest of justice point toward the Northern District of Texas as the preferable forum for this action. Because the convenience of the parties and the witnesses also favor that district, the Court concludes that transfer would be in order under § 1404(a) as well as § 1406(a).
C. Vanguard's Motion for Default Judgment
In light of the Court's decision to transfer this case, the Court finds it prudent for a number of reasons to withhold ruling upon Vanguard's motion for entry of judgment against the defendants in default and permit the District Court for the Northern District of Texas to address that motion. This Court enjoys no particular insight as to the merits of the motion, given that the proceedings conducted in this case to date have been minimal. At the same time, holding the motion in abeyance pending transfer will permit the motion to be entertained in a forum which is much more accessible to each of the defendants, thus affording them a more meaningful opportunity to raise any defenses to the entry of default or to Vanguard's request for an award of damages and finding of joint and several liability for that amount. Finally, because the Texas District Court will be presiding over further proceedings concerning those defendants not in default, permitting that court to handle Vanguard's request for a default judgment against the other defendants will serve the public interest in judicial consistency and economy.
For the reasons set forth above, the Court concludes this Court does possess subject matter jurisdiction over this action. Accordingly, defendant Johnson's motion to dismiss the case is denied. However, the Court further concludes that venue is improper in this forum pursuant to 28 U.S.C. § 1391(b) as to plaintiff's fraud and racketeering claims against the individual defendants and, in addition, that the convenience of the parties and the witnesses, together with the interest of justice, weigh in favor of a transfer to the Northern District of Texas. Accordingly, defendant Brown's motion to transfer the case to that forum is granted. Plaintiff's motion for entry of judgment against all defendants in default is held in abeyance pending transfer of the case.
Dated: April 3, 1990