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TRUSERV CORP. v. NEFF

June 2, 1998

TRUSERV CORPORATION f/k/a COTTER & COMPANY, Plaintiff,
v.
HERMEN R. NEFF, JAY A. MILLER, RICHARD J. NESBIT AND (THE ESTATE OF) NELSON L. MILLER, JR., Defendants.



The opinion of the court was delivered by: ALESIA

MEMORANDUM OPINION AND ORDER

 Before the court is a motion filed by defendants Hermen R. Neff ("Neff") and Jay A. Miller ("Miller"). This motion is defendants' motion to dismiss for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3) and, in the alternative, a motion to transfer this action to the United States District Court for the Western District of Pennsylvania pursuant to 28 U.S.C. § 1404(a). For the reasons that follow, the court denies defendants' motion to dismiss the case for improper venue and grants defendants' motion to transfer.

 I. BACKGROUND

 Plaintiff, TruServ, is a Delaware corporation with its principal place of business in Illinois. TruServ is the wholesaler for True Value stores ("Members"). Each True Value store signs a Member Agreement with TruServ in order to use the True Value trademark and to take advantage of other benefits that TruServ offers its members. Defendants Hermen Neff ("Neff'), Jay Miller ("Miller"), Richard Nesbitt and the estate of Nelson Miller owned, operated and guaranteed the debts of two True Value stores in Pittsburgh, Pennsylvania.

 On November 5, 1982, Sutersville Lumber Company ("Sutersville") signed Member Agreements with TruServ and became and remained a member until November 5, 1997. On November 5, 1982, the defendants signed Personal Guaranties which guaranteed the payment of all amounts due to TruServ by Sutersville for merchandise and services. These Guaranties were negotiated and executed in Pennsylvania. The Personal Guaranties also provide that Illinois law governs and that TruServ is authorized to file suit against the Guarantors in Illinois ("consent to jurisdiction provision").

 On November 18, 1997, TruServ notified the defendants as Guarantors that Sutersville's account was past due and that TruServ was demanding payment of the entire amount owed to them by Sutersville. TruServ asserts that as of March 1, 1998, Sutersville owed TruServ the sum of $ 184,094.26 for merchandise and services, plus costs, interest and attorneys fees. TruServ further asserts that the Guarantors have refused to pay TruServ for Sutersville's outstanding debt.

 TruServ filed suit in the Circuit Court in Illinois. The defendants have removed the case to the Northern District of Illinois. The court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332, as the amount in controversy exceeds $ 75,000 and there is complete diversity between the plaintiff and all defendants.

 II. DISCUSSION

 A. Motion to dismiss under 12(b)(3) for improper venue

 Defendants first move to dismiss this case for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). For the reasons outlined below, defendants motion to dismiss is denied.

 Venue is proper in this case under 28 U.S.C. § 1391(a). Section 1391(a)(2) provides that venue is proper in a district where a substantial part of the events or omissions giving rise to the claim occurred. 28 U.S.C. § 1391(a).

 Defendants contend that the claim against them is centered on alleged acts and omissions that took place in Pennsylvania, not Illinois. Defendants argue that since the majority of the activities occurred in Pennsylvania, jurisdiction in Illinois is improper. Their argument ignores the fact that a "substantial part" of the events can occur in more than one place, and thus, venue can be proper in more than one district. The test is not whether a majority of the activities pertaining to the case were performed in a particular district, but whether a substantial portion of the activities giving rise to the claim occurred in the particular district. Pfeiffer v. Insty Prints, 1993 U.S. Dist. LEXIS 15319, No. 93 C 2937, 1993 WL 443403, at *2 (N.D. Ill. Oct. 29, 1993).

 Although the Guaranties were negotiated and executed in Pennsylvania, they required that payment be made in Illinois. It is the failure to pay TruServ in Illinois that forms the basis for TruServ's breach of contract claim against defendants. Because the alleged failure to perform a contractual duty in Illinois gives rise to the breach of contract claim, venue is proper even though the defendants activities in another forum might be more significant. See H&V Silver Mine, Inc. v. Cohen, 1997 U.S. Dist. LEXIS 16041, No. 96 C 3550, ...


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