United States District Court, N.D. Illinois, Eastern Division
July 15, 2004.
STANLEY BAFIA and E.S. WINDOWS, INC., Plaintiffs,
PHILLIP MARION and HARRIS AND STANLEY MANUFACTURING CO., INC., Defendants.
The opinion of the court was delivered by: RONALD GUZMAN, District Judge
MEMORANDUM OPINION AND ORDER
This action based on diversity jurisdiction is before the Court
on Defendants' Motion to Transfer Venue Pursuant to
28 U.S.C. § 1404(a) to the United States District Court for the District of
New Jersey. For the reasons that follow, Defendants' motion is
The complaint alleges the following facts. Plaintiff Stanley
Bafia is the president and owner of Plaintiff E.S. Windows, Inc.
Bafia is an Illinois resident, and E.S. Windows is an Illinois
corporation. Bafia is also a minority (45%) owner of Defendant
Harris and Stanley Manufacturing Co., Inc. ("Harris"). Defendant
Phillip Marion is the president and majority owner (55%) of
Harris. Marion is a New Jersey resident, and Harris is a New
E.S. Windows is a window installation company, and Harris is a
window manufacturer. E.S. Windows is the largest customer of
Harris. In 2001, 2002, and 2003, E.S. Windows deposited money on
a regular basis to Harris's bank account in New Jersey to provide
Harris with needed capital to continue operations. As E.S. Windows ordered windows
from Harris, the costs of the orders were to be deducted from
these regular deposits. Any excess deposited amounts were to be
refunded to E.S. Windows at the end of each year.
The complaint alleges that the excess deposits were not in fact
refunded to E.S. Windows, and Bafia further alleges that
Defendants have failed to pay him his 45% share of Harris's
profits. Plaintiffs seek monetary damages against Harris for
breach of contract and unjust enrichment; equitable and monetary
damages against Marion for breach of fiduciary duties; and an
accounting and inspection of books and records under the New
Jersey Business Corporation Act.
Defendants have moved to transfer this action to the District
of New Jersey pursuant to 28 U.S.C. § 1404(a), which provides:
"For the convenience of parties and witnesses, in the interest of
justice, a district court may transfer any civil action to any
other district or division where it might have been
Because determining whether transfer is appropriate is made on
a case-by-case basis and "involves a large degree of subtlety and
latitude," it is "committed to the sound discretion of the trial
judge." Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th
Cir. 1986). In analyzing whether transfer is convenient under §
1404(a), courts are directed to consider both private and public
interests. Private interests, i.e., the interests of the
parties, include: "(1) the plaintiff's choice of forum, (2) the
situs of the material events, (3) the relative ease of access to
sources of proof, (4) the convenience of the parties, 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 analysis of public interests
"`focuses on the efficient administration of the court system,
rather than the private considerations of the litigants.'" Id.
at 961. Public interests "include such considerations as the
speed at which the case will proceed to trial, the court's
familiarity with the applicable law, the relation of the
community to the occurrence at issue, and the desirability of
resolving controversies in their locale." Id. at 961-62.
The movant has the burden of proving that "the transferee forum
is clearly more convenient." Coffey, 796 F.2d at 219-20; see
Sitrick v. Freehand Sys., Inc., No. 02 C 1568, 2003 WL 1581741,
at *2 (N.D. Ill. Mar. 27, 2003) ("[The movant] `bears a heavy
burden to show that the inconvenience of the parties and
witnesses and the dictates of justice are substantial enough to
overcome the presumption in favor of Illinois courts.") (citation
omitted); Sec. & Exch. Comm'n v. Barzilay, No. 99 C 5023, 2001
WL 127367, at *2 (N.D. Ill. Feb. 14, 2001) (noting that the
movant must "properly and convincingly demonstrate" that transfer
A. Private Factors
1. Plaintiff's Choice of Forum and Situs of Material Events
The plaintiff's choice of forum is generally given substantial
weight, and the presumption in favor of the plaintiff's choice
"`may be overcome only when the private and public interest
factors clearly point toward trial in the alternative forum.'"
Barzilay, 2001 WL 127367, at *2 (quoting Macedo v. Boeing
Co., 693 F.2d 683, 688 (7th Cir. 1982)); see also In re Nat'l
Presto Indus., Inc., 347 F.3d 662, 664 (7th Cir. 2003) (quoting
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947))
("`[U]nless the balance is strongly in favor of the defendant,
the plaintiff's choice of forum should rarely be disturbed. . . .
Rarely, however, is not never.'"). Deference to the plaintiff's
choice of forum is minimized where it is neither the plaintiff's home forum
nor the situs of material events. See Coleman v. Buchheit,
Inc., No. 03 C 7495, 2004 WL 609369, at *1 (N.D. Ill. Mar. 22,
2004); see also Sitrick, 2003 WL 1581741, at *2 (noting that
less deference is given to the plaintiff's choice of forum "when
it lacks any significant contact with the underlying forum").
Defendants argue that Plaintiffs' choice of their home forum
should not be given any weight in this case because the material
events occurred in New Jersey, not Illinois. Specifically,
Defendants argue that the window purchase contracts were accepted
and therefore formed in New Jersey, the funds were deposited into
Harris's bank account and were allegedly withheld in New Jersey,
and the windows were sold in New Jersey. Plaintiffs respond that
the contracts were accepted in Illinois, the pricing was
negotiated in both Illinois and New Jersey, and defendant Marion
visited job sites in Illinois to review the projects.
Because the record is not fully developed on the issue, the
Court declines to conclude definitively whether or not the
contracts were formed in Illinois or New Jersey. In any case, it
appears that the majority of material events likely occurred in
New Jersey, which weighs in favor of transfer. See Hinc v.
Lime-O-Sol Co., 231 F. Supp.2d 795, (N.D. Ill. 2002) (holding
that the relevant situs of material events was the state in which
the contract was or was not performed). However, because
Plaintiffs' choice of forum is their home district and not a
forum to which they have no connection, their choice to litigate
the matter in the Northern District of Illinois is nevertheless
given some weight in the overall convenience analysis.
2. Access to Proof
Defendants admit that the majority of books and financial
records relevant to this case have already been copied and
transferred to Illinois. They argue, however, that the sources of
proof are more readily available in the District of New Jersey because the
original corporate and financial documents are located at
Harris's primary place of business in Paterson, New Jersey, and
at the offices of its accountants in Warwick, New York.
This is not a case in which the parties need access to
non-documentary proof located in another forum. Cf. Amoco Oil
Co., 90 F. Supp.2d at 961 (finding that in an environmental
cleanup action, an analysis of the property may be necessary).
Moreover, Defendants do not dispute that the relevant documents
can be made available in Illinois. See Bryant v. ITT Corp.,
48 F. Supp.2d 829, 833 (N.D. Ill. 1999) (holding that access to
proof is a neutral factor where documents can easily be brought
into either district). Defendants have not demonstrated that the
original documents have any special relevance in this case such
that the trial must occur in the district where the originals are
located. Therefore, this factor is neutral as to the parties'
3. Convenience of the Parties
As Defendants acknowledge, it is always more burdensome for a
party to litigate outside its home forum. But Defendants have
offered no reason why the Court should transfer this burden to
Plaintiffs. See Coleman, 2004 WL 609369, at *3 ("[A] defendant
cannot use a motion to transfer simply to `shift the one party's
inconvenience onto another party."). Defendants argue that
because Plaintiffs invested in Harris, demonstrating the ability
to finance one of their suppliers, "[i]t necessarily follows"
that Plaintiffs have a greater ability to finance out-of-state
litigation than Defendants have. (Mot. Transfer at 7.) The
relative financial abilities of the parties can be relevant to
the issue of the parties' convenience, see Sitrick, 2003 WL
1581741, at *4, but Defendants' conclusory argument alone is
insufficient to demonstrate that transfer would be substantially
more convenient. Therefore, this factor does not weigh in favor
of or against transfer. 4. Convenience of Witnesses
The convenience of witnesses has often been described as the
most important factor in the § 1404(a) analysis. See, e.g.,
Coleman, 2004 WL 609369, at *2. In determining whether transfer
would be more convenient to witnesses, courts consider "`the
availability of compulsory process for the attendance of
unwilling witnesses and the costs of obtaining the attendance of
the witnesses.'" Biomet, Inc. v. Stryker Howmedica Osteonics
Corp., No. 03 C 6491, 2004 WL 769358, at *6 (N.D. Ill. Apr. 9,
2004) (quoting Von Holdt v. Husky Injection Molding Sys., Ltd.
887 F. Supp. 185, 188 (N.D. Ill. 1995)). In addition, the court
must "look to the nature and quality of the witnesses' testimony
with respect to the issues of the case." See Coleman, 2004 WL
609369, at *2.
Defendants argue that transfer is warranted for the convenience
of witnesses because the majority of witnesses listed in the
parties' initial disclosures are located in New Jersey and New
York. The initial disclosures reveal the following potential
witnesses: Bafia; Marion; Mr. Alario, Harris's accountant in New
York; and agents of two banks, the locations of which are not
specified by the parties but are presumably in New Jersey.
The convenience of Bafia and Marion is clearly not relevant to
this analysis, because they are parties. See Biomet, 2004 WL
769358, at *6. The convenience of the other witnesses cannot be
readily discerned, because Defendants have failed to describe the
nature and quality of the proposed witnesses' testimony and/or
whether they would be unwilling to testify in Illinois. See Sage
Prods., Inc. v. Devon Indus., Inc., 148 F.R.D. 213, 216 (N.D.
Ill. 1993) (commenting that transfer may be justified where
witnesses outside the district's subpoena power are likely to be
unwilling to testify voluntarily). As in this case, when an analysis of the parties' and
witnesses' convenience reveals little evidence weighing for or
against transfer, "deference is generally given to the
plaintiff's choice of forum." Clear Lam Packaging, Inc. v.
Rock-Tenn Co., No. 02 C 7491, 2003 WL 22012203, at *4 (N.D. Ill.
Aug. 22, 2003) (citing Hyatt Int'l Corp. v. Coco, 302 F.3d 707,
718 (7th Cir. 2002)).
B. Public Factors
The interest of justice is analyzed separately from private
factors "and may be determinative in a particular case, even if
the convenience of the parties and witnesses might call for a
different result." Coffey, 796 F.2d at 220.
1. Speed to Trial
According to the Federal Judicial Caseload Statistics dated
March 21, 2003, the median time between filing and disposition is
7.3 months in the District of New Jersey and 5.1 months in the
Northern District of Illinois. The median time between filing and
trial is 28.7 months in the District of New Jersey and 23.7
months in the Northern District of Illinois. Defendants argue
that the differences between the two forums are
insignificant.*fn2 However, while the differences in the
speed of litigation in the Northern District of Illinois and the
District of New Jersey may not be substantial, they nevertheless
weigh slightly against transfer. See Sitrick, 2003 WL 1581741,
2. Familiarity with Applicable Law
Defendants maintain that this case should be transferred
because courts in the District of New Jersey are more familiar
with New Jersey corporate law, which is the basis of Plaintiffs'
accounting claim, and New Jersey contract law, which governs Plaintiffs'
breach of contract claims pursuant to Illinois choice of law
As a general rule in diversity cases, it is "advantageous to
have federal judges try a case who are familiar with the
applicable state law." Coffey, 796 F.2d at 221. However, "where
the law in question is neither complex nor unsettled, the
interests of justice remain neutral between competing courts."
Sitrick, 2003 WL 1581741, at *5; see also Amoco Oil Co.,
90 F. Supp.2d at 962 (noting that "contract law is not particularly
complex" and is well within the comprehension of a foreign
The Court need not determine at this stage whether New Jersey
law will in fact apply to the breach of contract claims, because
Defendants have not demonstrated that New Jersey contract law is
so complex that this Court could not apply it in the event it
becomes necessary. Similarly, Defendants have not shown that
applying the New Jersey corporate statute will be outside the
Court's comprehension. Thus, this factor is neutral in the
3. Relationship of Communities to Litigation
Defendants argue that New Jersey has a greater relationship to
the litigation because Harris is located there, and none of the
acts alleged in the complaint took place in Illinois. Defendants'
first argument is wholly unpersuasive, because the same argument
can be made with regard to Illinois, as both Plaintiffs are
Illinois residents. See Tranzact Techs., Inc. v. 1Source
Worldsite, No. 01 C 2002, 2002 WL 122515, at *6 (N.D. Ill. Jan.
30, 2002) ("Illinois has a strong interest in providing its
residents with a convenient forum for redressing injuries
inflicted by out-of-state actors."). The second argument has
already been addressed in relation to the private factors
analysis. In sum, the only factor weighing in favor of transfer is the
situs of material events. However, that factor alone is not
sufficient to find that transfer to the District of New Jersey
would be clearly more convenient. Indeed, in weighing all the
relevant factors, it appears that a transfer would merely shift
Defendants' inconvenience to Plaintiffs and would not be in the
interest of justice: "[W]hen the inconvenience of the alternative
venues is comparable there is no basis for a change of venue; the
tie is awarded to the plaintiff. . . ." In re Nat'l Presto
Indus., Inc., 347 F.3d 662, 665 (7th Cir. 2003) (noting that
transfer may be denied even if the balance of factors tips
somewhat in favor of transfer). Defendants have therefore failed
to meet their burden of demonstrating that transfer is warranted
under § 1404(a).
For the foregoing reasons, Defendants' Motion to Transfer Venue
Pursuant to 28 U.S.C. § 1404(a) to the United States District
Court for the District of New Jersey [doc. no. 8-1] is denied.