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China Industries, Inc. v. New Holland Tire

August 7, 2006


The opinion of the court was delivered by: James F. Holderman, Chief Judge


On November 29, 2005, plaintiff China Industries (USA), Inc., ("China Industries") invoking this court's diversity jurisdiction pursuant to 28 U.S.C. § 1332, filed a one-count complaint alleging breach of contract against defendant New Holland Tire, Inc. ("New Holland"). (Dkt. No. 1). New Holland filed a pending motion on January 27, 2006 to dismiss the complaint for lack of personal jurisdiction and improper venue pursuant to Rules 12(b)(2) and 12(b)(3) of the Federal Rules of Civil Procedure ("Rules") and 28 U.S.C. § 1406, or in the alternative to transfer this case to the Eastern District of Pennsylvania pursuant to 28 U.S.C. § 1404. (Dkt. No. 8). New Holland also filed a motion on April 4, 2006 to strike affidavits filed by China Industries. (Dkt. No. 19). For the reasons set forth below, this court grants New Holland's pending motion to the extent that it seeks transfer of the case to the Eastern District of Pennsylvania.


According to the complaint, New Holland, through its general manager Stephen Boner, ("Boner") made a contract with China Industries requesting China Industries to locate tires at low prices for the benefit of New Holland. (Dkt. No. 1 at ¶ 5). The parties negotiated the contract terms between their respective offices, China Industries in Illinois and New Holland in Pennsylvania, over a several month period. (Id. at ¶ 7). Jane Wang signed the contract on behalf of China Industries on August 31, 2004 in Illinois and mailed the partially executed copy to New Holland in Pennsylvania. (Id. at ¶ 8). New Holland then signed the contract and faxed an executed copy to China Industries in Illinois. (Id. at ¶ 9). China Industries alleges that it has been fulfilling its promises under the contract by shipping tires and tire related products to New Holland as required under the contract. (Id. at ¶¶ 17, 21). The tires and tire related products and produced in, and shipped to, jurisdictions other than Illinois, Pennsylvania or Utah. China Industries argues that New Holland has accepted these shipments and has paid a portion of the invoices. (Id. at ¶¶ 18, 19, 21, 22). New Holland has allegedly not paid the full balance owed and China Industries argues that it is owed $294,102.00. (Id. at ¶ 24). China Industries seeks the $294,102.00 plus applicable interest, costs and attorney's fees.


A. Personal Jurisdiction

China Industries, as the plaintiff, bears the burden of demonstrating the existence of personal jurisdiction over New Holland. Cent. States S.E. and S.W. Areas Pension Fund v. Phencorp Reinsurance Co., Inc., 440 F.3d. 870, 875 (7th Cir. 2006) (citing Steel Warehouse of Wis., Inc. v. Leach, 154 F.3d 712, 714 (7th Cir. 1998)); see e.g., Jennings v. AC Hydraulic A/S, 383 F.3d 546, 549 (7th Cir. 2004); Claus v. Mize, 317 F.3d 725, 727 (7th Cir. 2003); RAR, Inc. v. Turner Diesel, Ltd., 107 F.3d 1272, 1276 (7th Cir. 1997). China Industries "need only make a prima facie showing that jurisdiction over [New Holland] is proper." Budget Rent a Car Corp. v. Crescent Ace Hardware, No. 03 C 930, 2003 WL 21673932, at *2 (N.D. Ill. July 16, 2003) (citing Michael J. Neuman & Assoc., Ltd. v. Florabelle Flowers, Inc., 15 F.3d 721, 724-25 (7th Cir. 1994)); see e.g., Purdue Research Found. v. Sanofi-Synthelabo, S.A., 338 F.3d 773, 782 (7th Cir. 2003) (quoting Hyatt Int'l Corp. v. Coco, 302 F.3d 707, 713 (7th Cir. 2002) (quoted in Cent. States S.E. and S.W. Areas Pension Fund v. Phencorp Reinsurance Co., Inc., 440 F.3d. 870, 876-77 (7th Cir. 2006) ("When the district court rules on a defendant's motion to dismiss based on the submission of written materials, without the benefit of an evidentiary hearing ... the plaintiff 'need only make out a prima facie case of personal jurisdiction."))). "The court may receive and consider affidavits from both parties" on the question of jurisdiction, Interlease Aviation Investors II v. Vanguard Airlines, Inc., 254 F. Supp. 2d 1028, 1031 (N.D. Ill. 2003) (citing Greenberg v. Miami Children's Hosp. Research Inst., Inc., 208 F. Supp. 2d 918, 922 (N.D. Ill. 2002)); see, e.g., GMAC Real Estate, LLC v. Canyonside Realty, Inc., No. 05 C 572, 2005 WL 1463498, at *2 (N.D. Ill. Jun. 15, 2005), and "must resolve all factual disputes in the plaintiff's favor and accept as true all uncontroverted allegations made by both plaintiffs and defendants." Softee Mfg., LLC v. Mazner, No. 03 C 3367, 2003 WL 23521295, at *2 (N.D. Ill. Dec. 18, 2003) (citing Saylor v. Dyniewski, 836 F.2d 341, 342 (7th Cir. 1988); Turnock v. Cope, 816 F.2d 332, 333 (7th Cir. 1987); Allman v. McGann, No. 02 C 7442, 2003 WL 1811531, at *2 (N.D. Ill. Apr. 4, 2003)).

B. Improper Venue

"When a defendant challenges venue under Rule 12(b)(3) [and 28 U.S.C. § 1406], it is the plaintiff's burden to establish that venue is proper." Faur v. Sirius Intern. Ins. Corp., 391 F. Supp. 2d 650, 657 (N.D. Ill. 2005) (citing First Health Group, Corp. v. Sanderson Farms, Inc., No. 99 C 2926, 2000 WL 139474, at *2 (N.D. Ill. Jan. 28, 2000)). Any factual conflicts are resolved in the plaintiff's favor. Spank! Music and Sound Design, Inc. v. J. Hanke, No. 04 C 6760, 2005 WL 300390, at * 4 (N.D. Ill. Feb. 7, 2005). "In a venue analysis, a court may examine facts outside the complaint in order to determine whether venue is proper." Faur, 391 F. Supp. 2d at 657 (citing First Health Group, Corp., No. 99 C 2926, 2000 WL 139474, at *2).

C. Transfer of Venue

"The task of weighing factors for and against transfer 'involves a large degree of subtlety and latitude' and it is a decision within the discretion of the trial judge." Hyman v. Hill & Assoc., No. C. 6486, 2006 WL 328260, at *2 (N.D. Ill. Feb. 9, 2006) (quoting Pepsico, Inc. v. Marion Pepsi-Cola Bottling Co., No. 99 C 3939, 2000 WL 263973, at *7 (N.D. Ill. Mar. 6, 2000)). "When deciding a motion to transfer venue, the court must accept as true all of plaintiff's well-pleaded facts in the complaint, unless they are contradicted by affidavits or other appropriate evidence from the defendant." Andrade v. Chase Home Fin., LLC, No. 04 C 8229, 2005 WL 3436400, at *2 (N.D. Ill. Dec. 12, 2005) (citing Heil Co. v. Curotto Can Co., No. 02 C 782, 2004 WL 725737, at *1 (N.D. Ill. Mar. 30, 2004); Plotkin v. IP Axess, Inc., 168 F. Supp. 2d 899, 900 (N.D. Ill. 2001)). "Simply because transfer of venue is possible, however, does not mean that it is warranted." True Value. Co. v. Ste. Lucie Rentals, Inc., No. 05 C 3035, 2005 WL 2848342, at *1 (N.D. Ill. Oct. 27, 2005)).


A. New Holland's Motion to Strike Portions of China Industries' Affidavits

China Industries provided affidavits from Steve Boner, Doug Ginder ("Ginder"), Jane Wang, Ryan Wang and Elaine Chen in support of its ...

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