United States District Court, Northern District of Illinois, Eastern Division
November 21, 2002
THOMAS P. HINC, PLAINTIFF,
LIME-O-SOL COMPANY, DEFENDANT.
The opinion of the court was delivered by: Elaine E. Bucklo, United States District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Thomas Hinc, a citizen of Illinois, invented a formula that
he believed would improve a product manufactured by Defendant Lime-O-Sol
Company ("LOS"), a citizen of Indiana. Mr. Hinc contacted LOS to notify
them about his invention, and the parties eventually entered into a
contract whereby Mr. Hinc revealed the contents of his formula to LOS and
LOS agreed to market the eventual product. Mr. Hinc later sued LOS,
alleging that it breached its obligations under that contract. LOS now
moves to transfer venue to the Northern District of Indiana, Fort Wayne
division. I deny the motion.
The venue transfer statute, 28 U.S.C. § 1404 (a), provides that
"For the convenience off the parties and witnesses, in the interest of
justice, a district court may transter any civil action to any other
district or division where it might have been brought." The parties
concede that this action might have been brought in the Northern District
of Indiana, where the defendant resides. The remaining question is
whether a transfer will serve the convenience of the parties and the
interest of justice.
I. Convenience of the parties. When evaluating the convenience of the
parties, factors a court should consider include: "(1) the plaintiff's
choice of forum; (2) the situs of material events; (3) the relative ease
of access to sources of proof; (4) the convenience of the witnesses; and
(5) the convenience to the parties" of pursuing the case in either
forum. Hanley v. Omarc, Inc., 6 F. Supp.2d 770, 774 (N.D. Ill. 1998)
(Alesia, J.). The burden of showing that the transferee forum is more
convenient rests with the moving party. Id. at 774. I will address each
of these factors in turn.
Plaintiff's choice of forum. Where the original forum has significant
contacts with the cause of action, the plaintiff's choice of forum is
entitled to substantial deference. divine/Whittman-Hart, Inc. v. King,
No. 02 C 2486, 2002 U.S. Dist. LEXIS 13244, *22 (N.D. Ill. July 19, 2002)
(Mason, Mag.). Here, there are significant contacts between this cause of
action and the Northern District of Illinois. The plaintiff resides in
the district, negotiated with LOS by e-mail and telephone from the
district, and signed his copy of the contract in the district. Thus, the
plaintiff's choice weighs against removal.
Situs of material events. The contract was jointly executed by the
parties in Illinois and Indiana, but Mr. Hinc made two visits to LOS in
Indiana during the course of the negotiations, while LOS never entered
Illinois. Further, the main issue in the case is likely to be LOS'
performance or nonperformance, which took place in Indiana. This factor
weighs in favor of transfer to Indiana.
Relative ease of access to sources of proof. The parties agree
that this factor does not weigh in either party's favor.
Convenience of the witnesses. It is preferable to hold a trial in the
forum that will necessitate less travel for witnesses. Most of the
potential witnesses named by LOS are LOS employees, and the convenience of
employee-witnesses is given very little weight by courts. Hanley, 6 F.
Supp.2d at 775. On the other hand, the witnesses Mr. Hinc intends to call
are not his employees, and as residents of the Northern District of
Illinois, they would be inconvenienced by having to travel to Indiana to
testify. This factor weighs against transfer.
Convenience to the parties. Courts may weigh the parties' differing
ability to bear the expenses of foreign litigation. Id. at 776. Here, one
party is a corporation and the other an individual, and litigating a case
in another state would likely be more difficult and burdensome for Mr.
Hinc than for LOS. This factor weighs against transfer.
II. The interest of justice. Courts deciding whether a transfer is in
the interest of justice should take into account considerations such as
the speed at which the case is likely to be resolved and the court's
familiarity with the law at issue. Id. at 777. The average time from
filing to disposition in the Northern Districts of Illinois and Indiana
differs by only a few months. This is not a significant enough difference
to influence the suitability of transfer, Bryant v. ITT Corp.,
48 F. Supp.2d 829, 835 (N.D. Ill. 1999) (Alesia, J.), so this
consideration does not weigh for or against transfer.
It is too early to tell at this point whether Illinois or Indiana law
will apply in this case. However, even if Indiana law applies, this is
not a sufficient reason to transfer the case to an Indiana court. A
court's level of familiarity with the foreign law which may be applied in
a case is a more persuasive consideration "when the foreign law to be
applied is complex or unsettled." Bodine's, Inc. v. Sunny-O, Inc.
494 F. Supp. 1279, 1286 (N.D. Ill. 1980) (Aspen, J.). The parties have
not suggested that breach of contract law in Indiana is so difficult or
ambiguous that only an Indiana court may apply it properly. Thus, this
factor has neutral weight as well.
In sum, the only Hanley factor that weighs in favor of transfer is that
Indiana was the situs of breach, while all other factors are either
neutral or weigh against transfer. LOS has not met its burden of showing
that the Northern District of Indiana is a more convenient forum for this
Defendant's motion for transfer of venue is DENIED.
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