727 F. Supp. 417, 419 (N.D. Ill. 1989); Central States S.E. & S.W. Areas Pension Fund v. C & M Trucking, Inc., 1989 U.S. Dist. LEXIS 12756, 1989 WL 135039, *2 (N.D. Ill. 1989). Thus, the fact that Central States has brought this action in the Northern District of Illinois, its home forum, weighs heavily against transfer.
2. Convenience of the Parties
Central States resides in the Northern District of Illinois, Mr. McDougall resides in Michigan, and Salasnek resides in Michigan. The fact that plaintiff, Mr. McDougall, resides in Michigan does not favor transfer. Central States claims that Mr. McDougall is a named plaintiff only because Section 502(a)(3) of ERISA authorizes civil actions brought by a participant, beneficiary, or fiduciary, not by the plan itself. 29 U.S.C. § 1132(a)(3). He has no firsthand knowledge of the lawsuit and is not expected to testify. Under these circumstances, transfer to the Eastern District of Michigan will merely shift the inconvenience from one party to the other, which militates against transfer. See Sage, 148 F.R.D. at 216.
3. Convenience of the Witnesses
The Court must consider not only the number of witnesses located in each forum but also the nature and importance of their testimony when weighing the convenience of the transfer to potential witnesses. Rohde v. Central Railroad of Indiana, 951 F. Supp. 746, 748 (N.D. Ill. 1997). Salasnek has the burden of showing who its witnesses are, the nature of their testimony and how important that testimony will be to the case. Id.
Salasnek states that it intends to call as witnesses Michael J. Pickens and Jordan Salasnek, employees of Salasnek, as well as Charles Isom, and other unidentified representatives of Local Union No. 337. Carlson Aff. at PP 2, 3. All of these witnesses are residents of Michigan for whom the Eastern District of Michigan is a more convenient forum. On the other hand, Central States indicates that it intends to call at least two of its employees who are residents of the Northern District of Illinois.
Presumably, each party can assure the testimony of its employees, so the convenience of those witnesses does not weigh in favor or against transfer. Roadmaster Corp. v. Nordictrack, Inc., 1993 U.S. Dist. LEXIS 13090, 1993 WL 625537, *5 (N.D. Ill. 1993). However, there is a potential problem with Salasnek's witness, Charles Isom, who cannot be compelled to testify in the Northern District of Illinois. Live testimony is preferred over other alternatives whenever feasible.
Salasnek claims that Mr. Isom's testimony is necessary and material to its defense of this case. He will be called to testify regarding collective bargaining negotiations between Salasnek and Local 337, the changes and modifications to the collective bargaining agreements which were operative between December, 1990 and December, 1995, and to further testify that Salasnek fully complied with the contractually required payments to Central States. Carlson Aff. at P 5.
Although the unavailability of compulsory process is a potential problem, there is no indication that Mr. Isom is a hostile or reluctant witness. Furthermore, Salasnek identified two other witnesses who will testify to the same facts as Mr. Isom. Carlson Aff. at PP 2-5. But perhaps more importantly, it is unclear whether Mr. Isom's testimony is even relevant to the issues of this case. Central States does not dispute the existence or the terms of the two collective bargaining agreements entered into between Salasnek and Local 337. Rather, it asserts that as a matter of law, the 1993-1996 Agreement is not binding on it under the terms of the Trust Agreement.
The key issue appears to be the effect of the Trust Agreement.
Thus, the issue of Mr. Isom's potential unavailability does not militate in favor of transfer.
4. Access to Sources of Proof
Salasnek claims that all the documents relating to the 1993-1996 Agreement are in the Eastern District of Michigan. Central States claims that all the documents relating to the audit and the nonpayment are in this district. As noted above, the parties do not agree on what the key issue is, so it is not clear what documents are required. But even if Salasnek does have all the key documents, it has not "demonstrated that [it] cannot bring the critical documents to this district." Arena Football League, Inc. v. Roemer, 947 F. Supp. 337, 341 (N.D. Ill. 1996).
B. The Interests of Justice
The final consideration under Section 1404(a) is whether a change of venue would serve the interests of justice. This factor focuses on the "efficient administration of the court system," rather than the private considerations of the litigants. Coffey, 796 F.2d at 221. The only argument that Salasnek makes that potentially implicates this factor is that the dispute has a greater relation to the community in Michigan, than Illinois. The employees and Local 337 have an interest in the result of this litigation and they are residents of Michigan.
On the other hand, Central States argues that the employees who have an interest in this case would be hurt by the transfer. Congress gave multi-employer funds a choice of forum to shield them from the cost of far flung litigation that would ultimately drain the beneficiaries' pension benefits. See Dugan, 727 F. Supp. at 419. To allow employers to transfer venue "would thwart Congress' desire to protect the financial integrity of employee benefit plans. Any expenses incurred by Central States in this litigation would be passed on to the participants and beneficiaries of the pension fund." Central States, S.E. & S.W. Areas Pension Fund v. Sloan, 1988 U.S. Dist. LEXIS 12865, 1988 WL 124334, *3 (N.D. Ill. 1988). Thus, the interests of justice militate against transfer.
Salasnek's motion to transfer the case to the Eastern District of Michigan is denied. Salasnek has failed to demonstrate that transferring this case would be more convenient to the parties or witnesses, or would be in the interests of justice.
Elaine E. Bucklo
United States District Judge
Dated: September 17, 1997