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SANDERS v. FRANKLIN

October 26, 1998

WILLIAM SANDERS, an individual and Illinois citizen, and JOY OVER ONE PUBLISHING CO., INC., an Illinois corporation, as assignee, Plaintiffs,
v.
ARETHA FRANKLIN, a Michigan citizen, and SPRINGTIME MUSIC, INC., a Michigan corporation. Defendants.



The opinion of the court was delivered by: MANNING

MEMORANDUM OPINION AND ORDER

 Defendants Aretha Franklin and Springtime Music Publishing, Inc. (SMP) move to dismiss this action for improper venue pursuant to 28 U.S.C. § 1406 or, alternatively, to transfer venue pursuant to 28 U.S.C. § 1404. For the reasons set forth below, the court grants their motion to transfer pursuant to § 1404.

 I. BACKGROUND

 Plaintiffs William Sanders and Joy Over One Publishing Company (Joy Over One), both citizens of Illinois, brought this action against entertainer Aretha Franklin and SMP, invoking federal jurisdiction pursuant to 28 U.S.C. § 1332. The plaintiffs allege that venue is proper in this forum, pursuant to 28 U.S.C. § 1391, because the acts or omissions giving rise to this action arose in the Northern District of Illinois. For purposes of this motion, the court assumes that the factual allegations of the plaintiffs' complaint are true.

 In 1973, Sanders composed a song entitled "Angel," and thereafter formed an oral contract with musician Aretha Franklin, giving her permission to perform Angel in exchange for receiving 50% gross revenues from the sale, use, or reproduction of the song. The contract was binding against Franklin, SMP, and any third party, authorized by Franklin or SMP, to record "Angle." Sanders and Franklin allegedly negotiated the oral royalty contract in Michigan while both were citizens of Michigan. Sanders subsequently moved to Illinois.

 On or about June 12, 1973, Franklin recorded Angel which later became one of Franklin's greatest hits and was included on an album "The Very Best of Aretha Franklin, The 70's." Sanders claims that between 1973 and 1983, he received only a $ 500 cash retainer and approximately two or three royalty checks totaling "a few thousand dollars." On or about November 29, 1997, January 14, 1998, and March 25, 1998, Sanders received three checks for the grand sum of $ 40,026.52 for money due under the royalty agreement, covering the use of Angel occurring between January 1, 1994 and thereafter. According to the complaint, Ulysses Whitaker Boykin, an attorney and agent for Franklin and SMP, sent a November 29, 1997 letter to Sanders, explaining that SMP and Franklin had been wrongfully withholding royalty payments for time extending between 1983 and 1994.

 Later, in a February 26, 1998 letter, Boykin allegedly acknowledged that under the terms of Sanders' oral royalty agreement, the defendants owed him a duty to account and administer his royalties, less a 5% fee, and implicitly admitted they had violated those terms by failing to provide Sanders with an accounting. Sanders claims that, to date, Angel has generated approximately $ 1,000,000 in gross profits, but that he has received only $ 45,000 in royalties. In short, he is claiming that he is getting no "RESPECT!" As a result, he brought this suit alleging breach of contract, fraud, breach of fiduciary duty, and to impose a constructive trust against the defendants in the amount of $ 500,000.

 Franklin and SMP moved to dismiss for improper venue pursuant to 28 U.S.C. § 1406 (a). Alternatively, they seek to transfer this action pursuant to 28 U.S.C. § 1404 (a), claiming that the Eastern District of Michigan is a more convenient forum and that transfer will promote the interests of justice. In response, Sanders claims that jurisdiction and venue is proper in the Northern District of Illinois and that the defendants' motion to transfer should be denied since it distorts the facts of the case. The court shall address their arguments in turn.

 II. ANALYSIS

 A. Applicable Law

 District courts have greater discretion to transfer under § 1404(a) than they do to dismiss under forum non conveniens. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253-54, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). "A district court may transfer a civil action for the convenience of the parties and witnesses [and] in the interests of justice . . . to any other district or division where it might have been brought." 28 U.S.C. § 1404 (a). Under § 1404 (a), a court has the discretion to transfer a case if the moving party demonstrates: (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. Pava v. Drom Int'l, Inc., 8 F. Supp. 2d 1062, 1064 (N.D. Ill. 1998).

 The moving party bears the burden of demonstrating that the transferee forum is clearly more convenient than the current forum. Truserv Corp. v. Neff, 6 F. Supp. 2d 790, 793 (N.D. Ill. 1998), quoting Heller Fin., Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir. 1989). In deciding a motion to transfer, the court must weight the public interest and the private interests of the parties to the litigation. Truserv Corp., 6 F. Supp. 2d at 793.

 The private interest factors include: (1) the plaintiff's choice of forum; (2) convenience to the parties; (3) the situs of material events; and (4) availability of evidence in each forum. Coffey v. Van Dorn Iron Works, 796 F.2d 217 (7th Cir. 1986); College Craft Co. Ltd. v. Perry, 889 F. Supp. 1052, 1054 (N.D. Ill. 1995). The public interest factors focus on whether a change of venue will promote the interests of justice, and include: (1) the relation of the community to the issue of the litigation and the desirability of resolving controversies in their locale; (2) the court's familiarity with applicable law; and (3) ...


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