where witnesses are in control of a party, it is likely that
those witnesses will appear voluntarily. See Peach Tree Bancard
Corp. v. Peachtree Bancard Network, Inc., 706 F. Supp. 639, 641
(N.D.Ill. 1989). Thus, Marriott's employee-witness is likely to
appear voluntarily. However, Marriott's former employee is likely
not to appear voluntarily, as the former employee has no
incentive to appear.
Based on the above, each party has one material non-party
witness over whom the court would lack the power to compel
appearance. Thus, this factor does not weigh more in favor of
transfer over retention. Without more, a shift in inconveniences
does not justify a transfer.
4. Interest of justice
The final factor this court is to consider under § 1404(a)
"focuses on the efficient administration of the court system,
rather than the private considerations of the litigants." Espino
v. Top Draw Freight Sys., Inc., 713 F. Supp. 1243, 1245 (N.D.Ill.
1989); see Coffey, 796 F.2d at 221. With respect to this case,
three important considerations weigh in favor of transfer to the
Northern District of California.
First, because jurisdiction is founded on diversity of
citizenship, state substantive law applies. See Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
It is well recognized that a diversity case should be decided by
the court most familiar with the applicable state law. Espino,
713 F. Supp. at 1245. In this case, under Illinois conflict of law
principles, California law applies. See Edwardsville Nat'l Bank
& Trust Co. v. Marion Labs. Inc., 808 F.2d 648, 651 (7th Cir.
1987) (interpreting Illinois' conflict of law principles);
Ferguson v. Kasbohm, 131 Ill. App.3d 424, 86 Ill.Dec. 605,
475 N.E.2d 984, 986-88 (1985) (finding that plaintiff's status as an
Illinois resident did not defeat the presumption that the state
in which the injury occurred had the most significant
relationship to any resulting cause of action). Naturally, the
Northern District of California is more familiar with substantive
California law than this court is.
Second, the swimming pool is located in California and the
Northern District of California will have greater access to this
important source of proof. Courts have recognized the importance
of the location of the situs of the accident and have ordered a
transfer to that encompassing district. See Karrels v. Adolph
Coors Co., 699 F. Supp. 172, 177 (N.D.Ill. 1988); Midwest
Precision Servs., Inc. v. PTM Indus. Corp., 574 F. Supp. 657, 661
Finally, in this case, the unavailability of YBG, a potential
defendant, in this forum contrasted to the availability of YBG as
a defendant in the Northern District of California weighs in
favor of transfer. See Karrels, 699 F. Supp. at 177; Lemke v.
St. Margaret Hosp., 594 F. Supp. 25, 28 (N.D.Ill. 1983). The
negligence claims against Marriott derive from an alleged duty of
care owed by Marriott to Bousis. As a co-owner, YBG, who is no
longer a party in this action, arguably owed the same duty of
care to Bousis. Consequently, Marriott may wish to shift part of
the liability for Bousis' injuries to YBG. At the very least,
Marriott should have the opportunity to join a non-party who may
share liability. Marriott can not join YBG in this court, as the
court does not have personal jurisdiction over YBG, see Part
II.A.; however, YBG is amenable to suit in the Northern District
In sum, the court finds that transfer to the Northern District
of California is proper. Although Bousis chose this court as the
forum, her choice is but one of the many factors which the court
considers. The convenience of the parties and the non-party
witnesses does not weigh in favor of either retention or
transfer. However, the most compelling factor is the interest of
justice which weighs heavily in favor of transfer.
For the reasons set forth in this opinion, the court denies
Marriott's motion to dismiss
this case for lack of venue pursuant to Federal Rule of Civil
Procedure 12(b)(3) but grants Marriott's motion to transfer this
case pursuant to 28 U.S.C. § 1404(a) to the United States
District Court for the Northern District of California.