Koos filed this action. Moreover, by its own admission, Koos can seek identical relief in the Pennsylvania action.
Nevertheless, Koos contends that transferring this case to Pennsylvania will not promote the interest of justice. According to Koos, PII's conduct in filing its declaratory judgment action in Pennsylvania before Koos could file its action here amounted to nothing more than a preemptive strike and PII should not be rewarded for winning the race to the courthouse. In support of this argument, Koos has cited this Court's decision in Associated Mills, Inc. v. Regina Co., Inc., 675 F. Supp. 446 (N.D. Ill. 1987).
In Associated Mills, the plaintiff filed a declaratory judgment action in this district in anticipation of an infringement action by the defendant. Twelve days later, the defendant filed its infringement action against the plaintiff in the United States District Court for the District of New Jersey. The issue before the Court was whether the infringement action, filed twelve days after the plaintiff filed its declaratory judgment action here, should proceed. This Court held that the subsequently filed infringement action should proceed and that the plaintiff's earlier filed declaratory judgment action should be dismissed. In so holding, this Court relied on the general principle, articulated in the Seventh Circuit's opinion in Tempco Elec. Heater Corp. v. Omega Engineering, Inc., 819 F.2d 746 (7th Cir. 1987), that a federal court has the discretion to decline to hear a declaratory judgment, even though it within the court's jurisdiction to do so. Exercising that discretion, this Court offered two reasons for declining to hear plaintiff's declaratory judgment action in Associated Mills. First, we observed that the pending infringement action had caused the controversy between the parties to "ripen" to the point where a declaratory judgment would serve no useful purpose. Second, we explained that the plaintiff's conduct in filing its declaratory judgment action first amounted to nothing more than a preemptive strike and that we would not reward plaintiff for winning the race to the courthouse.
Koos' reliance on Associated Mills in this case, however, is inapposite because Associated Mills is distinguishable from this case in two respects. First, the procedural posture of this case is the opposite of that in Associated Mills. In Associated Mills, this Court had before it the declaratory judgment action and, therefore, could exercise its discretion to decline to hear that action. In contrast, in this case, the district court in Pennsylvania, rather than this Court, has the declaratory judgment action on its docket. Thus, the overriding principle of Associated Mills and Tempco -- that a federal court may decline to hear a declaratory judgment action even though it is within the court's jurisdiction to do so -- does not apply here, even though the rationale underlying the opinion may be favorable to Koos.
Second, and even more fundamentally, unlike Koos, the corporate plaintiff in Associated Mills was an Illinois corporation and, therefore, this Court had no occasion to raise the venue issues it has raised here under Section 1404(a). Given this distinction, Koos' argument that transfer of this case would only reward PII for winning the race to the courthouse loses its surface appeal; that one party or another wins or loses the race to the courthouse is irrelevant when the wrong courthouse is involved. Indeed, even if PII had not filed a declaratory judgment action at all or had not filed its declaratory judgment action first, this Court still believes that for all of the other reasons already set forth, transfer is warranted under Section 1404(a) because Pennsylvania is clearly the more convenient forum.
For the reasons outlined, the Court transfers this action to the United States District Court for the Eastern District of Pennsylvania.
IT IS SO ORDERED.