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March 28, 2003


The opinion of the court was delivered by: Robert W. Gettleman, United States District Judge


In his first amended complaint, pro se plaintiff Tony Colida alleges that defendant Kyocera Wireless Corporation ("KWC") infringed his design patents for a "Portable Cellular Handset Telephone." Defendant has moved pursuant to 28 U.S.C. § 1404(a) to transfer the instant action to the Southern District of California. For the reasons stated herein, defendant's motion is granted.


Plaintiff is a citizen of Canada, residing in Montreal, Quebec. Defendant KWC is headquartered in San Diego, California. In his amended complaint, plaintiff alleges that KWC's sales "throughout the United States and worldwide" of its "2255" and "Q phone" products infringe plaintiff's United States Design Patent Nos. 321,184, 321,347, and 321,349 for the "Portable Cellular Handset Telephone."*fn1

In his initial complaint, plaintiff sued KWC's parent company, Kyocera Corporation, which is headquartered in Japan. Shortly thereafter, KWC initiated a declaratory judgment action in the Southern District of California, Kyocera Wireless Corp. v. President Electronics & Tony Colida, Case No. 02 CV 2042-L (the "California action"), against plaintiff, involving the same patents as the instant case. To date, the court presiding over the California action has held two status hearings and scheduled an "Early Neutral Evaluation" meeting for the purpose of exploring settlement between the parties for March 18, 2003.

After the initiation of the California action, plaintiff filed a first amended complaint in the instant dispute against KWC alone. Indeed, the docket reflects that Kyocera Corporation was dismissed as a defendant on December 26, 2002, the date of the filing of the amended complaint.*fn2

With this background in mind, the court turns to the merits of the instant motion.


28 U.S.C. § 1404(a) provides in relevant part: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." Pursuant to Section 1404(a), a court may transfer a civil action to another district when: (1) venue is proper in both the transferor and transferee courts; (2) transfer serves the convenience of the parties and witnesses; and (3) transfer is in the interest of justice. Symons Corp. v. Southern Forming and Supply, Inc., 954 F. Supp. 184, 186 (N.D.Ill. 1997). For the reasons that follow, the court transfers the instant action to the Southern District of California.

With regard to the first factor, defendant concedes that venue is proper in the Northern District of Illinois. Moreover, because KWC resides in the Southern District of California, and is thus subject to personal jurisdiction there, venue is also proper in the Southern District of California See 28 U.S.C. § 1391(c) ("[A] defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced."). Therefore, the court has the power to transfer the case if to do so is in the interest of justice and for the convenience of parties and witnesses.

In evaluating the convenience and fairness of a transfer, the court considers relevant private and public interests. The private interests include: 1) plaintiff's initial choice of forum; 2) the situs of material events; 3) case of access to sources of proof; 4) the availability of compulsory process for the attendance of unwilling witnesses and the cost of obtaining the attendance of the witnesses; and 5) the convenience to the parties, specifically their respective residences and their ability to bear the expense of litigation in a particular forum. Georgouses v. NaTec Resources, Inc., 963 F. Supp. 728, 730 (N.D.Ill. 1997).

"The weight given to plaintiff's choice of forum is lessened if the chosen forum has relatively weak connections with the operative facts giving rise to the claim." Von Holdt v. Husky Injection Molding Systems, Ltd., 887 F. Supp. 185, 188 (N.D.Ill. 1995). When "the conduct and events giving rise to the cause of action did not take place in the plaintiff's selected forum, the plaintiff's preference has minimal value." Dunn v. Soo Line R. Co., 864 F. Supp. 64, 65 (N.D.Ill. 1994). Thus, the court must consider the situs of material events to determine how much weight to assign to plaintiff's choice of forum.

According to the complaint, the instant case arises out of defendant's alleged infringement of plaintiff's patents "within the United States." Although plaintiff does not single out this district as the situs of infringement, the court presumes that "within the United States" encompasses this district. Nonetheless, in the absence of any allegations singling out this district over others, and considering that plaintiff resides in Quebec, Montreal, the court concludes that the first two private interest factors are neutral.

The third factor, ease of access to evidence and sources of proof, favors transfer. Plaintiff does not dispute defendant's contention that "the vast majority" of documentation and technical materials relevant to the instant dispute are in California, and that the cell phones that allegedly infringe plaintiff's patents are designed and produced in Southern ...

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