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March 28, 2003


The opinion of the court was delivered by: David H. Coar, United States District Court


Plaintiff, Linda Muzzarelli, filed a four count complaint in this court for personal injuries suffered while a patron at the Crab House against defendant, Landry's Restaurants, Inc. Before this Court is defendant's motion to transfer venue to the Middle District of Florida pursuant to 28 U.S.C. § 1404 (a). For the reasons set forth below, defendant's motion is denied.

I. Factual and Procedural Background

The following factual allegations are taken from plaintiff's complaint. On January 9, 2001, Plaintiff Muzzarelli was a business invitee of the Defendant Laundry's, while in Orlando Florida vacationing at Disney Land. Plaintiff alleges that, at the Defendant's restaurant "The Crab House," she purchased and consumed certain contaminated food products. Plaintiff further alleges that her consumption of defendant's contaminated food products caused her to contract Hepatitis A. Specifically, Plaintiff alleges that Defendant was negligent in preparing her meal and sets forth the following claims against Defendant: (1) negligence; (2) res ipsa loquitur; (3) breach of warranty; and (4) strict products liability.

II. Legal Standard

Pursuant to 28 U.S.C. § 1404 (a): "for the convenience of the parties, 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." A transfer under 28 U.S.C. § 1404 (a) is appropriate if: (1) venue is proper in both the transferor and the transferee court; (2) transfer is for the convenience of the parties and witnesses; and (3) transfer is in the interest of justice. Barnes v. Rollins Dedicated Carriage Services, Inc., 976 F. Supp. 767, 768 (N.D.Ill. 1997). The party requesting the transfer has the burden of demonstrating that the transferee forum is "clearly more convenient." Coffey v. Van Dom Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986). Thus, transfer is inappropriate if it merely serves to shift the inconvenience from one party to another. Medi USA v. Jobst Institute, Inc., 791 F. Supp. 208, 211 (N.D.Ill. 1992). "The weighing of factors for and against transfer necessarily involves a large degree of subtlety and latitude, and therefore, is committed to the sound discretion of the trial judge." Coffey, 796 F.2d at 219; Amoco Oil Co. v. Mobil Oil Corp., 90 F. Supp.2d 958, 959 (N.D. Ill 2000).

III. Discussion

The parties agree, as does this Court, that venue is proper in the Northern District of Illinois (the transferor court) and the Middle District of Florida (the transferee court). Therefore, the only issue in dispute is whether transfer of this case to Florida would be for the convenience of the parties and witnesses and in the interest of justice.

A. Convenience of Parties and Witnesses

The convenience of the witnesses and the parties is the most important § 1404(a) factor. Dunn v. Soo Line R.R Co., 864 F. Supp. 64, 65 (N.D.Ill. 1994). In evaluating the convenience of the parties and witnesses, the court considers (1) the plaintiff's choice of forum; (2) the site of material events; (3) the convenience to the parties of litigating in respective forums; (4) the availability of evidence in each forum; and (5) the convenience of the witnesses. Amoco Oil Co. v. Mobil Oil Corp., 90 F. Supp.2d 958, 960 (N.D.Ill. 2000). The court will consider each of these factors in turn.

The Plaintiff is a resident of Illinois and chose the Northern District of Illinois to litigate this matter. The court gives considerable weight to a plaintiff's choice of forum where it is also the plaintiff's home forum. FUL Inc. v. Unified School Dist. No. 204, 839 F. Supp. 1307, 1311 (N.D.Ill. 1993). While plaintiff alleges she became ill and sought treatment in Illinois, she also alleges that her injury was caused in Florida. Thus, the site of material events is the Middle District of Florida. Less deference should be granted to the plaintiff's choice of forum, where the chosen forum has little connection to the litigation. Barnes, 976 F. Supp. at 767. Therefore, the fact that Plaintiff's alleged injury occurred in Florida mitigates the weight given to the Plaintiff's choice of her resident forum.

With respect to the convenience of the parties, Defendant argues that if the case is litigated in Illinois, Defendant will incur the expenses of traveling to Chicago, producing documents and evidence in Chicago, and attending trial in Chicago. However, if the case is litigated in Florida, the Plaintiff will incur the same expenses. Transfer is inappropriate if it will serve to simply shift the inconvenience of one party to the other. Sage Products, Inc. v. Devon Industries, Inc., 148 FRD 213, 216 (N.D.Ill. 1993); Medi USA v. Jobst Institute, Inc., 791 F. Supp. 208 (N.D.Ill. 1992). The Plaintiff has no connection to the state of Florida outside of her vacation to Orlando last year. By contrast, the Defendant has connections both to Florida and to Illinois.*fn1 The Defendant operates restaurants in Illinois and thus avails itself of the protection of Illinois' legal system. Defendant is certainly correct in noting that the Plaintiff's financial ability, standing alone, is not entitled great weight. However, courts have interpreted the convenience of parties factor to include a consideration of the parties' ability to bear the expense of trial in a particular forum. See, e.g., College Craft Cos. Ltd. v. Perry, 889 F. Supp. 1052, 1056 (N.D.Ill. 1995). It is clear that Defendant, as a national corporation doing business in this jurisdiction, is in a better position to bear the expense of trial in Illinois than the Plaintiff could bear the expense of trial in Florida.

It is undisputed that non-testimonial evidence will be available in either forum. Thus, the question is whether the witnesses will be inconvenienced by the litigation proceeding in Illinois. When weighing the convenience of the transfer to potential witnesses, the court must consider the number of witnesses located in each forum as well as the nature and importance of their testimony. Rohde v. Central Railroad of Indiana, 951 F. Supp. 746, 748 (N.D.Ill. 1997). Defendant has the burden of showing who its witnesses are, the nature of their testimony and how important that testimony will be to the case. Id. The defendant has vaguely identified its potential witnesses as dozens of servers and managerial employees who have personal knowledge of the facts in dispute in this case. The defendant's identified witnesses will be needed to contest a finding of liability. However, convenience of the witnesses refers to the convenience of third party witnesses, not witnesses necessarily employed by the parties. DEV Industries, Inc. v. NPC, Inc., 763 F. Supp. 313, 315 (1991). Presumably, defendant can assure the testimony of its own employees, so the convenience of these witnesses does not weigh in favor or against transfer. Central States v. Salasnek Fisheries, 977 F. Supp. 888, 891 (N.D.Ill. 1997). Therefore, since employees of the parties likely will appear voluntarily, the court should consider, in particular, the convenience of non-party witnesses. H.B. Sherman Manufacturing Co. v. Rain Bird National Sales Corp., 979 F. Supp. 627, 630 (N.D.Ill. 1997). Outside of its own employees, defendant identified the investigator from the Orange County Health Department who investigated allegations of food poisoning from customers at the Orlando Crab House location. Plaintiff suggests that this is a witness that may also be used to establish her case. The inspector's testimony would most likely be used in determining liability. Although the unavailability of compulsory process is a potential problem, there is no indication by the defendant that the inspector is a hostile or reluctant witness. Non-party witnesses identified by Plaintiff are those persons who have personal knowledge of the alleged incident on defendant's premises which gave rise to plaintiff's claim and those, ...

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