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FPC CORP. v. UNIPLAST

February 12, 1998

FPC CORPORATION, an Illinois corporation, Plaintiff,
v.
UNIPLAST, INC., a Texas corporation, Defendant.



The opinion of the court was delivered by: BUCKLO

 Plaintiff, FPC Corporation ("FPC"), initially filed suit in this district against defendant, Uniplast, Inc. ("Uniplast"). FPC now moves to transfer the case to the Northern District of Texas pursuant to 28 U.S.C. § 1404(a). For the reasons set forth below, FPC's motion is denied.

 Background

 On November 27, 1996, FPC filed a declaratory judgment action seeking a declaration that it did not engage in false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a). On December 5, 1996, Uniplast filed a mirror-image suit in the Northern District of Texas charging FPC with false advertising. Uniplast then moved to dismiss FPC's declaratory judgment action. In response, FPC amended its complaint to add two counts alleging patent false marking in violation of the patent laws, 35 U.S.C. § 292(a), and false advertising in violation of the Lanham Act. These same two counts were filed by FPC as counterclaims in the Texas suit. The declaratory judgment count was dismissed as an attempt to wrest the choice of forum from Uniplast, FPC Corp. v. Uniplast, Inc., 964 F. Supp. 1212, 1214 (N.D. Ill. 1997), but FPC's two remaining counts are still pending before this court.

 Motion to Change Venue

 Under Section 1404(a), a court may transfer a case if the moving party shows that: (1) venue was proper in the transferor district, (2) venue and jurisdiction would be proper in the transferee district, and (3) the transfer will serve the convenience of the parties and the witnesses as well as the interests of justice. Rohde v. Central R.R. of Indiana, 951 F. Supp. 746, 747 (N.D. Ill. 1997). Neither party has argued that the first two elements have not been satisfied. Hence, I will focus my analysis on which forum best serves the convenience of the parties and the witnesses and is in the interests of justice.

 A. Considerations of Convenience

 FPC, as the moving party, bears the burden of demonstrating that the "transferee forum is clearly more convenient" than the transferor forum. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989) (citing Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-220 (7th Cir. 1986)). Considerations include the plaintiff's choice of forum, the convenience of the parties and witnesses, the situs of material events, and the location of documents and sources of proof. H.B. Sherman Mfg. Co. v. Rain Bird Nat'l Sales Corp., 979 F. Supp. 627, 629 (N.D. Ill. 1997); Chemical Waste Management, Inc. v. Sims, 870 F. Supp. 870, 876 (N.D. Ill. 1994). Because each case requires an individualized balancing of the factors involved, the decision to transfer is committed to the discretion of the court. Coffey, 796 F.2d at 219.

 1. Plaintiff's Choice of Forum

 The plaintiff's choice of forum is ordinarily entitled to substantial weight under Section 1404(a), especially if it is the plaintiff's home forum. Chemical Waste, 870 F. Supp. at 876. Since the Northern District of Texas is not FPC's initial choice of forum nor its home forum, I do not give its second choice much weight. See 15 Charles A. Wright et al., Federal Practice and Procedure § 3848 (2d ed. 1986) ("It is one thing to give weight to plaintiff's initial choice of forum, but it seems odd that a plaintiff who has chosen an improper forum should have great weight given to [its] second choice.").

 2. Convenience of the Parties

 Uniplast wants to litigate in this district. FPC admits that it is inconvenienced by having to litigate in the Northern District of Texas. Thus, this factor does not compel transfer.

 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, 951 F. Supp. at 748. FPC 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. FPC does not identify any particular witness that it will call let alone the nature of the testimony or how important that testimony will be. FPC only identifies Uniplast's potential witnesses: Uniplast's employees in Dallas, Texas. Presumably, Uniplast can assure the testimony of its employees, so that their convenience does not weigh in favor or against transfer. See ...


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