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ADVANCED FRESH CONCEPTS FRANCHISE v. LWIN FAMILY COMPANY

United States District Court, N.D. Illinois


January 20, 2004.

ADVANCED FRESH CONCEPTS FRANCHISE CORPORATION, a California corporation, and ADVANCED FRESH CONCEPTS CORPORATION, a California corporation, Plaintiffs,
v.
LWIN FAMILY COMPANY, d/b/a HISSHO), SUSHI, a North Carolina corporation, Defendant

The opinion of the court was delivered by: JOHN GRADY, Senior District Judge

MEMORANDUM OPINION

Before the court is the motion of defendant Lwin Family Company ("Lwin") to dismiss "for filing in the improper venue or, in the alternate, to transfer on the basis of forum non-conveniens." The motion is purportedly brought under both 28 U.S.C. § 1404(a) and 1406(a), but the defendant's briefs reflect a misunderstanding of theses statues by conflating the two distinct concept of improper venue and proper, but relatively inconvenient venue.

"A prerequisite to invoking § 1406(a) is that the venue must be improper. The statue speaks of `a case laying venue in the wrong division or district.' If the original forum was aproper venue, § 1406(a) cannot apply and 28 U.S.C.A. § 1404(a) is the Page 2 relevant statute." 15 Charles Alan Wright et al., Federal Practice and Procedure § 3827 (2d ed. 1986).

  Although defendant frequently uses the term "improper venue" in its argument, it concedes a fact indicating that venue is proper here. When jurisdiction is based on diversity, as it is in this case, a suit may brought in "(1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought." 28 U.S.C. § 1391 (a). A corporate defendant is deemed to "reside" wherever it is subject to personal jurisdiction at the time the suit is brought. 28 U.S.C. § 1391(c). There is only one defendant, Lwin, and it concedes that it is subject, to personal jurisdiction here because it does business in Illinois (and in the Northern District of Illinois). (Defendant's Memorandum in Support of its Motion at 7.) Therefore, venue is proper under § 1391(a)(1).

  The real thrust of Lwin's motion is a § 1404(a) argument that Illinois is not the most convenient forum because Lwin's principal place of business is in North Carolina and that of plaintiff is in California. It is not clear at this point, however, what factual Page 3 issues will have to be tried, and it is not possible to identify the witnesses whose appearance at trial will be necessary. Accordingly, defendant's motion to transfer is denied as premature. When the case is ready for trial, the transfer motion can be renewed if it appears that there will be a more convenient forum than this district.

  CONCLUSION

  For the foregoing reasons, defendant's motion to dismiss or transfer is denied. The case is set for a status conference on January 28, 2004, at 11:00 a.m.

20040120

© 1992-2004 VersusLaw Inc.



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