that he should expect to defend a suit brought in Illinois.
The court next must address defendants' joint motion to transfer pursuant to 28 U.S.C. § 1404(a). The court notes, however, that since defendant Chamlin is not subject to the jurisdiction of this court, venue here is improper as to Chamlin. 28 U.S.C. § 1391(a)(3). Therefore, with respect to defendant Chamlin, § 1406, and not § 1404, applies. Under § 1406(a), this court has discretion to transfer the case to a district in which venue is proper, if transfer is "in the interest of justice." 28 U.S.C. § 1406(a). A district court's determination under 28 U.S.C. § 1406(a) will only be reversed upon a showing of a clear abuse of discretion. Saylor v. Dyniewski, 836 F.2d 341, 345 (7th Cir. 1988).
Defendant Cybergenics' motion to transfer remains pursuant to 28 U.S.C. § 1404(a). Under § 1404(a), Cybergenics, as the movant, has the burden of establishing that the transfer is appropriate. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986). In order to do so, Cybergenics must establish the following: (1) that venue is proper in the transferor forum, (2) that venue is proper in the transferee forum, and (3) that the transfer is for the convenience of the parties, the witnesses, and in the interests of justice. Id.; 28 U.S.C. § 1404(a). The weighing of these factors for and against transfer requires "individualized, case-by-case consideration of convenience and fairness. Coffey, 796 F.2d at 219 (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S. Ct. 805, 812, 11 L. Ed. 2d 945 (1964)).
Neither party disputes that venue is proper in both this district and in New Jersey under 28 U.S.C. § 1391(a); therefore, the court's only inquiry is whether Cybergenics has met its burden with respect to the third element.
1. Plaintiff's Choice of Forum
A plaintiff's choice of forum is an important consideration in determining whether or not a motion to transfer should be granted. Heller Financial, Inc. v. Riverdale Auto Parts, Inc., 713 F. Supp. 1125, 1129 (N.D. Ill. 1989). It, however, is not absolute and will not defeat a well-founded motion to transfer. General Accident Ins. Co. v. Travelers Corp., 666 F. Supp. 1203, 1206 (N.D. Ill. 1987). Accordingly, the court takes this into consideration along with all of the other factors in deciding the motion.
2. Convenience of the Parties and Witnesses
Both parties argue that they will be inconvenienced if the case proceeds in Illinois or New Jersey. Plaintiff points out that a number of his family and friends are potential witnesses to testify about the plaintiff's reliance and damages. He also notes that he intends to call three other witnesses to testify about the plaintiff's quality of work, monetary damages, and emotional damages. Defendant, meanwhile, intends to rely on several witnesses from New Jersey and New York. Given that the inconvenience falls on both parties with respect to this issue, the court finds that this factor does not weigh strongly in favor of either party.
3. Interests of Justice
Consequently, this court must examine the interests of justice factor to decide this motion. After doing so, the court holds that transfer of this case to New Jersey will advance the interest of justice. With respect to this case, three important considerations weigh in favor of transfer.
First, the contract action will be governed by New Jersey law. In the Employment Agreement, Cybergenics and Sutherland expressly provided that "this Agreement shall be governed and enforced in accordance with the laws of the State of New Jersey applicable to contracts made and to be performed entirely within that state." Illinois courts have long enforced agreements regarding choice of law. See Sarnoff v. American Home Products Corp., 798 F.2d 1075, 1081 (7th Cir. 1986). Since the district court in New Jersey will be more readily familiar with the applicable law than this court, this factor certainly favors transfer.
Second, the court believes that the parties will receive a speedier resolution of their dispute in the District of New Jersey. Courts in this district recognize that the Northern District of Illinois consistently ranks among the most congested of district courts nationally. Chapman Associates General Business, Inc. v. Justak, 734 F. Supp. 828, 831 (N.D. Ill. 1990); Letter-Rite, Inc. v. Computer Talk, Inc., 605 F. Supp. 717, 722 (N.D. Ill. 1985). Thus, this factor also weighs in favor of transfer.
Finally, this court finds that transfer of the case would likely result in a conservation of judicial resources. This court has already dismissed the individual defendant Chamlin as a party defendant for lack of personal jurisdiction. Defendants in the reply memorandum, meanwhile, already concede that, as for both defendants, venue and jurisdiction are proper in the District of New Jersey. Defendants' Reply Memorandum of Law in Support of Motion to Dismiss or for Transfer, at p. 4. Consequently, if this court keeps the case pending against Cybergenics and plaintiff refiles another lawsuit against Chamlin in New Jersey, where there is jurisdiction, there will be two courts making independent rulings as to one fraud claim. Therefore, in the interests of justice, this court finds that the District of New Jersey, which has jurisdiction over both defendants, is the appropriate forum to try this case. Accordingly, defendants Cybergenics and Chamlin's motion to transfer, pursuant to §§ 1404(a) and 1406(a), respectively, is granted.
For the reasons set forth below, defendants Cybergenics Corporation and Matt Chamlin's motion to dismiss for lack of personal jurisdiction is denied. Defendants' motion to transfer is granted. This case is transferred to the District of New Jersey, Newark Division, for further proceedings.
Date: DEC 08 1995
James H. Alesia
United States District Judge