United States District Court, N.D. Illinois, Eastern Division
August 30, 2005.
C. INTERNATIONAL, INC., Plaintiff,
TURNER CONSTRUCTION COMPANY, Defendant.
The opinion of the court was delivered by: WILLIAM HART, Senior District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff C. International, Inc. contracted with defendant
Turner Construction Company for the construction of a warehouse
facility located in Dixon, California (the "Warehouse").
Plaintiff alleges that the construction was defective, including
problems with the roof, exterior walls, and floor. This case is
before the court based on diversity jurisdiction. Plaintiff is
incorporated in Ohio and its principal place of business is in
Ohio. Defendant is incorporated in New York with its principal
place of business also in New York. The amount in controversy
Defendant moved to dismiss for lack of personal jurisdiction
and improper venue, or alternatively for a transfer of the case to the Eastern District of California. At the time
the motion was presented the first aspect of the motion was
denied. Although its principal place of business is in New York,
defendant also has offices in Illinois and California. Since
defendant does business in Illinois, it is subject to personal
jurisdiction in this court regardless of whether the subject
matter of the lawsuit involves Illinois. See
735 ILCS 5/2-209(b)(4); Rutz v. Barnes-Jewish Hospital, 2005 WL 1389053
*3 (S.D. Ill. June 3, 2005). Since subject to personal
jurisdiction in Illinois, defendant is considered a resident of
Illinois for purposes of venue. See 28 U.S.C. § 1391(c). Since
Turner is the only defendant and resides in Illinois for venue
purposes, venue is proper in this district. See
28 U.S.C. § 1391(a)(1). The remaining issue is whether, for the convenience
of the parties and witnesses and in the interest of justice, the
case should be transferred to California. See
28 U.S.C. § 1404(a).
"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 Vandeveld v. Christoph, 877 F. Supp. 1160,
1167 (N.D. Ill. 1995)). See also 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 Kelly v. McDonald, 2004 WL 526741 *2 (N.D.
Ill. March 10, 2004); Heston v. Equifax Credit Information
Services, 2003 WL 22243986 *1 (N.D. Ill. Sept. 26, 2003);
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
Barela v. Experian Information Solutions, Inc., 2005 WL 770629
*3 (N.D. Ill. April 4, 2005); Kelly, 2004 WL 526741 at *2;
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 and the availability of compulsory
process. Cypress Medical Products, L.P. v. Worthington, 2005 WL
936903 *2 (N.D. Ill. April 18, 2005); Barela, 2005 WL 770629 at
*3; 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. IFC Credit Corp. v. Eastcom, Inc., 2005 WL 43159 *2
(N.D. Ill. Jan. 7, 2005); R.E. Davis Chemical Corp. v.
International Crystal Laboratories, Inc., 2004 WL 2191328 *5
(N.D. Ill. Sept. 27, 2004) (quoting Amoco Oil Co. v. Mobil Oil
Corp., 90 F. Supp. 2d 958, 961-62 (N.D. Ill. 2000)); Tatar,
2003 WL 22478941 at *1; Clear Channel, 2003 WL 22382999 at *3. The construction project that is at the center of this case is
located in California. Although defendant has an office in
Illinois, its California office was the one involved in the
construction project. Plaintiff contends that, although its
principal place of business is in Ohio, it has a substantial
number of employees in Illinois and the people who acted on
plaintiff's behalf in planning the project and negotiating the
contract are actually located in Illinois. Although plaintiff has
a connection to Illinois, Illinois cannot be characterized as
plaintiff's home forum. According to the affidavit of its
president Stephen Inacker, Cardinal Health 200, Inc. is
headquartered in Illinois with about 5000 employees located in
McGaw Park, Illinois. According to Inacker, plaintiff was "set
up" by Cardinal for the purpose of building the Warehouse.
Inacker does not specify whether plaintiff is a subsidiary of
Cardinal nor how exactly it may remain affiliated with Cardinal.
In any event, plaintiff clearly is a distinct entity with a
principal place of business separate from Cardinal. It is also
stated that Cardinal and its parent are "spin-offs" of Baxter
Healthcare Corporation which is headquartered in Illinois.
Persons at Cardinal's offices in Illinois were responsible for
negotiating with defendant and Baxter's Facilities Engineering
Services Division in Illinois was retained to manage the
construction of the Warehouse. The fact that plaintiff used corporations and persons in Illinois to manage the construction
project does not make Illinois its home forum. The use of those
persons goes to whether Illinois is convenient for witnesses and
whether this case has any connection with Illinois, not whether
greater weight is accorded plaintiff's choice of forum because it
chose its home forum.
As previously indicated, although this case is centered in
California where the Warehouse is located, this is not a
situation where there is no connection to Illinois. Baxter
employees in Illinois acted as plaintiff's "owner representative"
under the construction contract. Additional coordination was
provided by Cardinal employees in Illinois. The project architect
retained to design the Warehouse was also located in Illinois and
did most of its work from its Illinois office. Therefore, some of
the operative facts in this case are related to Illinois. Thus,
plaintiff's choice of forum should be given significant weight,
but not as much as when the plaintiff is located in the forum as
Although the construction occurred in California, plaintiff
used Illinois-based companies to manage and design the project.
As previously mentioned, Illinois employees of Cardinal and
Baxter were responsible for the project. They retained
architects, engineers, and designers based in Illinois. Each of
those companies has pertinent documents stored in Illinois. Plaintiff provides a lengthy list of potential witnesses from
these companies. The list appears to be substantially
exaggerated, apparently including many people who have only a
remote chance of being witnesses at trial or even deposed. For
example, 16 current or former employees of Cardinal are listed.
Plaintiff does not list a single potential witness located in
California. Defendant points out that plaintiff retained a
California architect who was on-site during construction of the
Warehouse. Also, persons employed at the Warehouse after
construction may have testimony pertinent to the condition of the
Exaggeration as to witnesses is not limited to one side.
Defendant listed 46 subcontractors who worked on the project and
initially contended there were one or more potential witnesses
from each subcontractor. After plaintiff pointed out that not all
aspects of the project were at issue, only the roof, exterior
walls, and floor, defendant reduced its list to 17 subcontractors
who worked on those features. One of the subcontractors who
worked on the roof purportedly has 10 employees who might be
witnesses, so defendant speculates this could mean 170 potential
witnesses amongst the subcontractors. Potential witnesses also
include defendant's own employees located in California.
Given the limited amount of information provided as to the
possible witnesses, it is impossible to determine exactly how many likely witnesses are located in California and Illinois. It
is clear, though, that a substantial number of witnesses are
located in both California and Illinois. It is also clear that a
substantial quantity of discoverable documents are stored in both
California and Illinois. It does appear, though, that more
pertinent witnesses are located in California than Illinois.
The location of discoverable documents apparently favors
neither location. The convenience of witnesses and their
amenability to process favors California. The degree to which
this favors California cannot be identified with precision. The
difference appears to be significant, but not overwhelming.
As to the public factors, there does not appear to be a
significant difference between the two district courts regarding
the speed in which the case will proceed. The parties agree that
California law will apply to their contract dispute. That favors
transferring the case to California. Also, the fact that the
Warehouse is located in California favors transferring the case
Since California is a more convenient location for witnesses,
California law will control, and the site of the dispute is in
California, a sufficient basis exists to overcome the weight
accorded plaintiff's choice of Illinois as a forum. Defendant's
motion to transfer will be granted. IT IS THEREFORE ORDERED that defendant's motion to dismiss 
is denied and defendant's motion to transfer  is granted. The
Clerk of the Court is directed to transfer this case to the
United States District Court for the Eastern District of
California at Sacramento.
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