The opinion of the court was delivered by: Aspen, Chief Judge.
MEMORANDUM OPINION AND ORDER
Defendant Avon Products has filed a motion to transfer this products
liability action to the District of Arizona. Plaintiff Andrew Murphy is a
resident of Arizona who bought Avon Lift Protective Cream and applied it
to his face. After some of the cream came into contact with his right
eye, Murphy experienced pain, redness. blurred vision, and eventually
loss of vision in that eye. Murphy received emergency medical treatment
at a Scottsdale hospital and sought follow-up treatment from physicians
in that area. He brought this suit in Illinois, however, because his
brother is a Chicago attorney — which according to Murphy will save
him a considerable amount in attorney's fees — and because he
thinks that Avon may have made the skin cream in Cook County since it has
a large plant here. Under 28 U.S.C. § 1404(a), we may grant Avon's
motion if we find that venue is proper both in this Court and in the
District of Arizona and that a transfer will best serve the convenience
of the parties and witnesses as well as the interests of justice. See,
e.g., CoolSavings.Com, Inc. v. IQ.Commerce Corp., 53 F. Supp.2d 1000,
1004 (N.D.Ill. 1999) (Aspen. C.J.). We will transfer this case only if we
find that the District of Arizona is "clearly more convenient" than this
district. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 220 (7th Cir.
1986).
Venue is proper both here and in Arizona: Avon has a plant here and its
products are sold in Arizona, so it is subject to personal jurisdiction in
both states, and venue is proper where a corporation is subject to
personal jurisdiction. See 28 U.S.C. § 1391(a), (c). We therefore turn
to the convenience of the parties and witnesses and the interests of
justice.
The first private interest we consider is Murphy's choice of forum,
"which we give substantial weight unless the choice of forum lacks any
significant connection to the claim." CoolSavings, at 1005. Murphy says
that his claim is connected to this district because the face cream may
have been manufactured in Cook County, but this argument rests on pure
speculation: nothing in the record indicates where Avon manufactured the
cream he used, and Avon has plants in other states as welt: Murphy even
states in his brief that "the product in question was more than likely
manufactured in Springdale, Ohio, warehoused and shipped out of Morton
Grove Illinois or Pasadena, California to Plaintiff in Arizona." Pl.'s
Br. at ¶ 3. Moreover, Murphy is not a resident of this district, so
his choice is entitled to even less weight. See, e.g., H.B. Sherman
Manuf. Co. v. Rain Bird Nat'l Sales Corp., 979 F. Supp. 627, 630
(N.D.Ill. 1997). The lack of any demonstrable connection between Murphy's
case and this district thus weighs in favor of transfer to the District
of Arizona.
The next factor we consider is the site of the material events. See
CoolSavings, at 1005. In this case, all we know is that Murphy's injury
and medical treatment took place in Arizona. As we observed above, we do
not know where the face cream was manufactured, and no other fact
connects this case to Illinois: Murphy lives in Arizona, Avon's
headquarters are in New York, and Avon manufactures its products in a
number of states. This factor therefore weighs in favor of transfer.
The third factor — the relative ease of access to sources of
proof in each forum — also favors transfer. Since we do not know
where the cream was manufactured, we do not know where the documents
related to the manufacture are located. Any of Avon's documents can be
produced in Arizona just as in Illinois, and documents related to Murphy's
medical treatment will be located in Arizona. Also, while there may be
party witnesses in both states, there are non-party witnesses —
Murphy's doctors — in Arizona, which could present a problem if the
doctors are unwilling to cooperate since a subpoena from this district
cannot reach them but a subpoena from the District of Arizona can. See
FED. R. CIV. P. 45(c)(3). This issue strongly favors the District of
Arizona over this Court, as "the convenience of non-party witnesses is
often viewed as the most important factor in the transfer analysis."
Greene Manuf. Co. v. Marquette Tool & Die Co., No. 97 C 8857, 1998 WL
395155, at *3 (N.D.Ill. July 9, 1998).
The last private interest is the convenience of the parties, including
their respective residences and abilities to bear the expenses of trial
in each forum. See CoolSavings, at 1006. This motion is rather unusual,
in that Avon requests that we transfer this case to Arizona, which Murphy
argues is much farther from Avon's New York headquarters than is
Chicago. However, Avon claims that Chicago and Arizona are equally
convenient places for it to litigate. Indeed, the increased flight time
from New York to Arizona — rather than Chicago — is
insignificant. In any event, the inconvenience and cost of added travel
time would be borne by Avon, not Murphy. Murphy also argues that Chicago
is more convenient for him even though he lives in Arizona, since the
legal assistance he is getting from his brother — who lives and
works in Chicago — enables him to maintain this lawsuit at a
relatively low cost. We are not convinced that litigating in Arizona
would be significantly more burdensome for Murphy than for Avon. Products
liability plaintiffs are traditionally represented by attorneys on a
contingent fee basis. Murphy will not be paying an Arizona attorney
hourly fees, which his brother might otherwise provide pro bono in
Illinois. Even if Murphy's attorneys would be billing him hourly, we
would not be inclined to keep the case here just because Murphy may have
access to less expensive counsel in Chicago. See generally Martz v.
Archer-Daniels-Midland Co., No. 94 C 5057, 1995 WL 348046, at *2 n. 5
(N.D. Ill. June 6, 1995) (Aspen, J.) ("the location of counsel is not
traditionally considered significant in a § 1404 analysis, and we
shall therefore disregard it").
Finally, we look at the public interest factors, including the
desirability of resolving a case in a particular forum and the two
courts' familiarity with the applicable law. See CoolSavings, at 1006.
While Illinois has an interest in the safety of products manufactured
here, Arizona has an interest in resolving disputes that arise out of
injuries to its citizens inside its borders, so that consideration does
not tip the scales in either direction. As for our familiarity with the
law, it is unclear at this point which state's law will apply to the
case, but we do not give this factor much weight since federal courts
today should be capable of ascertaining and applying the laws of any
state. The "interests of justice" therefore neither strongly favor nor
oppose transfer, and we are guided solely by the private considerations
outlined above.
In sum, this case has no connection to Illinois of which we are aware
besides the residence of Murphy's attorney. The site of manufacture of
the product at issue is unknown, but Murphy's injury took place in
Arizona, he was treated there, and Arizona is a more convenient forum for
the non-party witnesses. We therefore conclude that Arizona is the better
place to litigate this case, so we grant Avon's motion and transfer it to
the District of Arizona pursuant to 28 U.S.C. § 1404(a). It is so
ordered.
© 1992-2003 VersusLaw ...