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,
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
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
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
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.
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
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