United States District Court, N.D. Illinois
March 11, 2004.
DR. RANDY WIDEN, Plaintiff
ADVANCE GROUP, INC., and FREESTYLE, INC., Defendants ADVANCE GROUP, INC., Counterplaintiff v. DR. RANDY WIDEN, Counterdefendant ADVANCE GROUP, INC., Third-Party Plaintiff v. NATIONAL ELECTRONICS & WATCH CO., LTD., a Hong Kong corporation, Third-Party Defendant
The opinion of the court was delivered by: WILLIAM HART, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Randy Widen has filed suit against defendants Advance
Group, Inc. and Freestyle, Inc. Freestyle is a subsidiary of Advance
Group. Plaintiff alleges that defendants
import and sell a watch known as the Freestyle Shark Tide and that this
watch infringes plaintiff's United States Patent No. 5,293,355 entitled
"Tidal Watch." Advance Group has filed a third-party indemnity claim
against National Electronics and Watch Co. Ltd., a Hong Kong corporation
that is alleged to supply Advance Group with the Shark Tide and which is
also alleged to be the designer and manufacturer of the Shark Tide. The
docket shows that a summons was issued for National Electronics, but
there is no indication on the docket that it has actually been served.
Presently pending is Advance Group's and Freestyle's motion to transfer
venue to the Southern District of New York.
There is no dispute that venue would be proper in both this district
and the Southern District of New York. Therefore, it must be considered
whether the conveniences of the parties and the witnesses and the
interests of justice justify transferring this case to New York. See
28 U.S.C. § 1404(a); Heston v. Equifax Credit Information Services, 2003
WL 22243986 *1 (N.D. Ill. Sept. 26, 2003). "A plaintiff's choice of forum
is entitled to substantial weight under Section 1404(a), particularly
where it is also the plaintiff's home forum. Indeed, a plaintiff's choice
of forum should rarely be disturbed unless the balance weighs strongly in
the defendant's favor." Clear Channel Outdoor, Inc. v. Rubloff Oakridge
Algonquin L.L.C., 2003 WL 22382999 *3 (N.D. Ill. Oct. 16, 2003) (quoting
Christoph, 877 F. Supp. 1160, 1167 (N.D. Ill. 1995)). Accord In re
National Presto Industries, Inc., 347 F.3d 662, 664 (7th Cir. 2003).
Where the plaintiff does not reside in the chosen forum, the plaintiff's
choice of forum is still accorded some weight, but not as much as
otherwise. See Heston, 2003 WL 22243986 at * 1; Confederation Des
Brasseries De Belgique v. Coors Brewing Co., 2000 WL 88847 *3 (N.D. Ill.
Jan. 20, 2000); Anchor Wall Systems, Inc. v. R & D Concrete Products,
Inc., 55 F. Supp.2d 871, 874 (N.D. Ill. 1999); Bryant v. ITT Corp.,
48 F. Supp.2d 829, 832 (N.D. Ill. May 12, 1999); Houck v. Trans World
Airlines, Inc., 947 F. Supp. 373, 375 (N.D. Ill. 1996). Additionally,
where the operative facts have little connection to the forum, the
plaintiff's choice of forum is also given less weight. See Heston, 2003 WL
22243986 at *1; Alberding Estate Administration Trust ex rel. Moore v.
Vinoy Park Hotel Co., 2003 WL 22176072 *2 (N.D. Ill. Sept. 15, 2003);
Confederation, 2000 WL 88847 at *3; Anchor Wall, 55 F. Supp.2d at 874.
"The movant bears the burden of proving, by reference to particular facts
and circumstances, that the transferee forum is `clearly more
convenient.'" Clear-Channel, 2003 WL 22382999 at *3 (quoting Heller
Financial, Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir.
1989)); Tong v. Direct Trading Corp., 2003 WL 22282466 *3 (N.D. Ill. Oct.
1, 2003). Both private and public interests must be considered. Private
interests that are considered
include: (1) the plaintiff's choice of forum; (2) the situs of material
events; (3) ease of access to sources of proof; (4) conveniences for the
parties; and (5) conveniences for the witnesses. Tatar v. Trans Union
L.L.C., 2003 WL 22478941 *1 (N.D. Ill. Oct. 31, 2003); Clear Channel, 2003
WL 22382999 at *3; Heston, 2003 WL 22243986 at *1; United Air Lines, Inc.
v. Mesa Airlines, Inc., 8 F. Supp.2d 796, 798 (N.D. Ill. 1998). Public
interests take into account the interests of justice and include: (1) the
speed of the proceeding; (2) the court's familiarity with applicable law;
and (3) the relation of the community to the occurrence and the
desirability of resolving the controversy in its locale. Tatar, 2003 WL
22478941 at *1; Clear Channel, 2003 WL 22382999 at *3; Amoco. Oil Corp. v.
Mobile Oil Corp., 90 F. Supp.2d 958, 963 (N.D. Ill. 2000).
Plaintiff resides in Maryland. However, he was born and raised in
Chicago and family members still reside here. In the last year, plaintiff
has been in Chicago at least 10 times and expects to continue making
frequent visits. Plaintiff states that he has no business or personal
connections to New York and generally does not travel there. Most of his
records concerning the patent are also stored in Chicago.
Advance Group's corporate offices are located in New York. Freestyle is
a subsidiary of Advance Group. Advance Group's CFO states that Freestyle
has "a principal place of
business" in New York and "a small office" in Ventura, California.
Plaintiff points to a Freestyle list of contacts, apparently from an
Internet site for Freestyle. That page states "Freestyle is located in
Ventura, California" and the only postal address that is listed is in
Ventura. Plaintiff does not dispute that Advance Group has offices,
employees, and witnesses in New York, including records pertinent to this
case. Advance Group also has another subsidiary with offices in
California, Michigan, and New York.
Third-party defendant National Electronics, which apparently has not
yet been served, is located in Hong Kong.
The Shark Tide may be purchased at a number of retailers located in
Chicago, which is a basis for venue in this district. The Shark Tide is
also sold at retailers in New York and throughout the country. The Shark
Tide may also be purchased through Freestyle's Internet site, making it
available anywhere in the country.
Defendants point to three potential witnesses identified by plaintiff.
One is plaintiff himself, who resides in Maryland, but frequently travels
to Chicago. The other two are not parties. They are a co-inventor of
plaintiff's Tide Watch, who resides in Virginia, and the patent attorney
who prosecuted plaintiff's patent application, who resides in Maryland.
Defendants have identified three employees who may have
discoverable information. They all reside in New York. Plaintiff
points out that defendants do not provide enough information about these
three to establish that they would necessarily be deposed or called as
witnesses at trial. Plaintiff points to other possible witnesses, though
it is also not established whether they necessarily would be deposed or
called as witnesses. Freestyle's president and vice president of sales
and marketing reside in California. Defendants' websites on which the
Shark Tide is available are administered by Advance Group employees
located near Detroit, Michigan and there may be records there as well.
The agent that processes and ships Internet purchases of the Shark Tide
is located in Minnesota. Experts identified by defendants are located in
Maryland and Michigan. The Shark Tide is manufactured overseas.
Defendants do not show that a New York venue would be significantly
more convenient for non-party witnesses. Defendants point out that the
distance from New York to Virginia and Maryland is less than the distance
from Chicago to those two states. Those states, however, are still far
enough away from New York than a witness is likely to fly or take a
train. And even if the witness chose to drive, it would be a lengthy
drive. New York is not a significantly more convenient location for those
witnesses. And to the extent such distances should be
considered, Chicago is arguably more convenient than New York for
possible witnesses residing in Minnesota and Michigan.
There is also no showing that the public interests favor New York.
Defendants do not cite any statistics showing that the Southern District
of New York tends to complete cases any speedier than the Northern
District of Illinois. Both courts are located in large metropolitan areas
and presumably are equally familiar with patent cases. Neither court has
any greater interest in the subject matter of the lawsuit.
About all that has been shown is that defendants apparently have some
more records and party witnesses located in New York than plaintiff has
in Chicago. Defendants, however, have not made a favorable enough showing
to disturb plaintiff's choice of forum. Plaintiff has shown some
connection to Chicago in that Shark Tides are sold here and plaintiff's
records are stored here. Although, plaintiff does not reside in Chicago,
the fact that he makes frequent trips to Chicago provides a connection to
Chicago as well. Cf. Alberding, 2003 WL 22176072 at *2. Plaintiff's
choice of forum is entitled to some deference and defendants have not
shown a sufficiently greater convenience for a New York forum to overcome
plaintiff's choice. Defendants' motion will be denied.
IT IS THEREFORE ORDERED that defendants' motion for change of venue
 is denied.
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