contract with an Illinois corporation within the state of Illinois. Thus, Illinois' exercise of personal jurisdiction over ATX does not offend the due process clause.
B. Motion To Transfer
Because ATX's motion to dismiss this case is denied, this court must consider ATX's motion to transfer this case to the United States District Court for the Northern District of California pursuant to 28 U.S.C. § 1404(a). Under this statute, there are three prerequisites for a valid transfer: "(1) venue must be proper in the transferor court; (2) venue must be proper in the transferee court; and (3) the transfer must be for the convenience of the parties and witnesses, in the interest of justice." Keppen v. Burlington Northern R. Co., 749 F. Supp. 181, 183 (N.D. Ill. 1990); Ratner v. Hecht, 621 F. Supp. 378, 381 (N.D. Ill. 1985).
The party seeking transfer has the burden to show that these three requirements have been met and that there is a "clear balance of inconvenience in this district over the transferee district." Ratner, 621 F. Supp. at 381.
The first two of the prerequisites have been met in this case. Venue is proper in this forum since Sky Valley is an Illinois corporation. Venue is also proper in the Northern District of California since the property in interest is located in California and the contract at issue is to be performed in California. Thus, we are concerned here with the third prerequisite, whether the transfer is proper for the convenience of the parties and witnesses, in the interest of justice.
Factors to be considered in this inquiry include, the plaintiff's choice of forum, the convenience of the parties and witnesses, availability of compulsory process, access to sources of proof, the condition of the court's calendar, and the interest of justice. Ratner, 621 F. Supp. at 381; Magnavox Co. v. APF Electronics, Inc., 496 F. Supp. 29, 33 (N.D. Ill. 1980).
1. Plaintiff's Choice of Forum
Although the plaintiff's choice of forum is not an overriding factor in determining a motion under § 1404, Environmental Services v. Bell Lumber and Pole Co., 607 F. Supp. 851 (N.D. Ill. 1984), it is to be given considerable weight where it is the plaintiff's home forum. Gallery House, Inc. v. Yi, 587 F. Supp. 1036, 1040 (N.D. Ill. 1984) . In this case, Illinois is not only the plaintiff's home forum but Illinois law governs the contract at issue. Thus, ATX bears a heavy burden to show that the inconvenience to the parties and witnesses and the dictates of justice are substantial enough to overcome the presumption in favor of the Illinois courts. Bodine's Inc. v. Sunny-O, Inc., 494 F. Supp. 1279, 1285 (N.D. Ill. 1980). It is not sufficient if the transfer will merely shift the burden from one party to the other but the transferee forum must be clearly more appropriate than the transferor forum. Continental Illinois National Bank and Trust Co. of Chicago v. Stanley, 585 F. Supp. 610, 612 (N.D. Ill. 1984); Magnavox Co., 496 F. Supp. at 34.
2. Convenience of the Parties and Witnesses
The parties expected to testify on behalf of Sky Valley, Cyrus Tang, Robert Burke, Dan Chambers and Frank Sove, are all residents of Illinois. Cyrus Tang, however, owns a second home in California and spends a considerable amount of time there. Chambers, spends approximately eight out of every ten working days in California. Sove also spends a considerable amount of time in California. There are also four cases currently pending in California where Sky Valley and ATX are codefendants ("the California Suits"). Those suits all involve the same transaction as that involved here. Thus, it would be as convenient for the plaintiff to have to litigate in California as to litigate in Illinois. On the other hand, most of the parties expected to testify on behalf of ATX, although residents of Texas, temporarily reside in California or work there extensively. Thus, it would be more inconvenient for ATX to have to transport these parties to Illinois than to transport them to California.
3. Availability of Compulsory Process
The factor weighing most heavily in favor of transfer is the location of the third party witnesses in California. There is currently pending in California, in addition to "the California Suits," a suit filed by ATX against Sky Valley concerning the same contract as that in dispute here ("the Counterclaims"). Sky Valley contends that this court should not consider transferring this case to California so that it can be consolidated with those Counterclaims since that suit was filed after this one and the action should have been filed here as a compulsory counterclaim.
ATX argues, however, that even if their claims should have been brought as a counterclaim in this suit, California is still the better forum due to the existence of third party witnesses who are necessary to prove their claims and rebut the claims of Sky Valley but whom are beyond the subpoena power of this court. These witnesses include representatives from Sky Valley San Francisco, L.P. and the City of Vallejo, California, and many of Sky Valley's employees and consultants who are residents of California.
The interest of justice is better served by ensuring the presence of live witness testimony. "It is well settled that the trier of fact should not be forced to rely on deposition evidence when the deponent's live testimony can be procured." Ratner, 621 F. Supp. at 382; Coats Co., Inc. v. Vulcan Equipment Co., Ltd., 459 F. Supp. 654, 657 (N.D. Ill. 1978). Nor should a litigant have to rely on deposition evidence where live witness testimony can be procured. Ratner, 621 F. Supp. at 382. Thus, the presence of third party witnesses outside the subpoena power of this court is a factor which weighs heavily in favor of transferring this case to the Northern District of California.
4. Other factors
Plaintiff contends that Illinois is the more convenient forum because Sky Valley's documents are located in Illinois. However, ATX contends that the working documents from the project are all located in California. It will be equally inconvenient for Sky Valley to transport its documents to California or for ATX to transport its documents to Illinois. But the property involved in the transaction between ATX and Sky Valley is located in California and the events which form the basis of ATX's tort claims against Sky Valley also occurred in California. As such, those claims are governed by California law. Thus, the fact that Illinois law is designated as governing the contract causes of action is not dispositive here.
As stated above, ATX bears a heavy burden to show that the inconvenience to the parties and witnesses and the dictates of justice are substantial enough to overcome the presumption in favor of the Illinois courts. After carefully balancing the above factors, it is clear that ATX has met that burden. Justice is better served by transferring this case to the Northern District of California so that the third party witnesses are available to testify and so that this action can be consolidated with ATX's counterclaims which are pending in that court.
For the foregoing reasons, the motion to dismiss for lack of personal jurisdiction is dismissed and the motion to transfer this action to the Northern District of California is granted. IT IS SO ORDERED.