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March 22, 2004.


The opinion of the court was delivered by: MARVIN ASPEN, Chief Judge, District


Plaintiff CRL Industries, Inc. ("CRL") brought a breach of contract action against Defendants David E. Jones and ROPRO Company ("ROPRO") alleging that the defendants failed to make payments on three separate Joan agreements. On December 5, 2003, the defendants filed the present "Motion to Dismiss for Forum Non Conveniens." In the motion, defendants argue that the United States District Court for the Western District of Texas would be a more appropriate forum for the disposition of CRL's complaint.*fn1 Their reliance on the doctrine of forum non conveniens is misplaced. The common law Page 2 doctrine of forum non conveniens was largely superseded in 1948 when Congress enacted 28 U.S.C. § 1404, which governs the transfer of cases from one federal jurisdiction to another. As a result, a party may only bring a motion to transfer based on forum non conveniens where he seeks transfer from a federal court to a foreign or state court. Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 722 (1996). The Western District of Texas is neither a foreign jurisdiction nor a state court, so it is § 1404 rather than the doctrine of forum non conveniens which governs our analysis in this case. Applying that statute, we decline to transfer venue and deny the defendants' motion.


  CRL is a Delaware corporation with its principal place of business and domicile in Bannockburn, Illinois. Defendant David E. Jones is a citizen of Texas. Defendant ROPRO is an unincorporated Texas association with its principal place of business in Round Rock, Texas.

  In 1993 and 1994, CRL and the defendants executed three promissory notes, whereby CRL agreed to loan defendants a total of $87,562.49. All three of the promissory notes were negotiated in Illinois and delivered to CRL in Illinois. CRL now alleges that, despite its demands for payment, neither of the defendants have paid any portion of or interest on their debts. On October 28, 2003, CRL brought the present breach of contract action, seeking $128,792.21, which it alleges is now the total amount (including interest) that the defendants owe.

  The defendants admit to the existence of the promissory notes and concede that they have never made any payments to CRL, but deny that they owe CRL any money. Rather, defendants claim that the promissory notes were executed as part of a larger transaction in which CRL promised to pay some of ROPRO's debts and subsequently purchase ROPRO from Jones. The amounts advanced via the promissory notes, defendants argue, were ultimately intended to offset part of the total purchase price of ROPRO. According to the defendants, the funds were never meant to be repaid. Furthermore, Page 3 Defendants argue that they were justified in keeping the loan money as a self-assessed damage award when CRL breached the purchase agreement by failing to follow through with the acquisition of ROPRO. (Def.'s Answer ¶ 16.)


  Pursuant to 28 U.S.C. § 1404(a), a court may, for the convenience of parties and witnesses or in the interest of justice, transfer any civil matter to another district where venue is proper. Courts employ a three part test in determining whether to transfer a case under § 1404(a). Specifically, a court may transfer such a case if the moving party shows that: 1) venue is proper in the district where the action was originally filed; 2) venue and jurisdiction would be proper in the transferee district; and 3) the transfer will serve the convenience of the parties and witnesses as well as the interests of justice. Sanders v. Franklin, 25 F. Supp.2d 855, 857 (N.D. Ill. 1998) (citations omitted). We address each of these factors in turn.

  First, venue is proper in the Northern District of Illinois under 28 U.S.C. § 1391(a)(2) because a "substantial part of the events or omissions giving rise to the claim occurred" in this district. Specifically, the promissory notes that form the central controversy in this case were executed and delivered in Illinois. Second, venue is also proper in the Western District of Texas because both defendants reside in that district. See 28 U.S.C. § 1391(a)(1) (providing that venue is proper in "a judicial district where any defendant resides, if all defendants reside in the same State.").

  Third, we must consider the factors enumerated in 28 U.S.C. § 1404(a), including: 1) the convenience of the parties; 2) the convenience of the witnesses; and 3) the interests of justice. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir. 1986). "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." Id. (citations omitted). Courts should also give considerable weight Page 4 to the plaintiff's choice of forum where it is also the plaintiff's home forum. FUL, Inc. v. Unified Sch. Dist. No. 204, 839 F. Supp. 1307, 1310 (N.D. Ill. 1993). Finally, the movant has the burden of establishing that the transferee forum is clearly more convenient. Coffey, 796 F.2d at 219-20. With these considerations in mind, we address each of the statutory factors in turn.

  I. Convenience of the Parties

  Neither the Western District of Texas nor the Northern District of Illinois appears to be a particularly convenient forum for the parties involved in this case. On the one hand, it would be burdensome for CRL to attend trial in the Western District of Texas because its principal offices are in Illinois. On the other hand, it would be equally inconvenient for the defendants to attend trial in Illinois because they are both Texas residents. Neither party has provided evidence as to whether there is a disparity in resources between the parties, which would make travel to a distant forum particularly burdensome for one side. See, e.g., Tensor Group, Inc. v. All Press Parts & Equip., Inc., 966 F. Supp. 727, 729 (N.D. Ill. 1997) (considering a disparity in resources in assessing the relative burden of litigating in a distant venue). We thus find that neither party will be disproportionately burdened by having to litigate in a distant forum.

  II. Convenience of Witnesses & Availability of Evidence

  Both sides argue that there will be better access to evidence and witnesses in their chosen forum. Once again, we find this factor to be inconclusive. On the one hand, the defendants allege that "access to sources of proof will be easier," "compulsory process for the attendance of unwilling witnesses is available," and "the cost of obtaining the presence of unwilling witnesses will be lower" in the Western District of Texas. (Defs.' Mtn. to Dismiss ¶ 6.) Aside from these vague allegations, however, the defendants are only able to pinpoint three Texas-based witnesses who will be called to testify at trial, specifically, Defendant Jones; Alan Bunch, ROPRO's CPA; and Linda Jones, Defendant Jones' wife. Page 5 The defendants have not alleged that these witnesses would be unwilling to testify at trial. Thus, there ...

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