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Industrias Kirkwood S.A. de C.V. v. Andrew Corp.

March 23, 2007

INDUSTRIAS KIRKWOOD S.A. DE C.V., PLAINTIFF,
v.
ANDREW CORPORATION, A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Jeanne E. Scott, U.S. District Judge

OPINION

This matter comes before the Court on Defendant Andrew Corporation's (Andrew Corp.) Motion to Transfer Venue Pursuant to § 28 U.S.C. § 1404 Or in the Alternative to Provide Relief Pursuant to 28 U.S.C. § 1406 (d/e 9) (Defendant's Motion). For the reasons set forth below, the Motion is ALLOWED.

On September 21, 2006, Plaintiff Industrias Kirkwood S.A. de C.V. (Industrias) brought this action against the Defendant in the Circuit Court of Sangamon County, Illinois. Pursuant to 28 U.S.C. §§ 1331 and 1441, the Defendant removed this action to this Court on October 19, 2006. See Text Order entered November 2, 2006; Amended Notice of Removal (d/e 7).

BACKGROUND

Plaintiff brings a four-count Complaint (d/e 7) against the Defendant. In Count I, Plaintiff alleges a breach of contract claim. Plaintiff alleges in Count II that the Defendant violated the Illinois Uniform Deceptive Trade Practices Act (UDTPA). In Count III, Plaintiff alleges a claim for fraud in the inducement. Plaintiff alleges in Count IV a promissory estoppel claim. According to the Complaint, Plaintiff is a Mexican corporation with its principal place of business in Mexico. Defendant states that it is a Delaware corporation with its principal place of business in Westchester, Illinois, which is within the Northern District of Illinois, Eastern Division. The Complaint states that Defendant's registered agent is located in Springfield, Illinois.

This action springs from Agreements entered into between the parties in 2004 and in 2005. The Complaint alleges that in March 2004, the parties entered into an Agreement in which Plaintiff Industrias agreed to manufacture and sell certain products, and Andrew Corp. agreed to purchase such products. To satisfy its obligations under the 2004 Agreement, Plaintiff Industrias incurred approximately $700,000.00 on labor, equipment, inventory, training and other related expenses.

The Complaint states that in January 2005, the parties entered into another Agreement in which Andrew Corp. agreed to sell certain assets and license related technology to Industrias, and Industrias in turn agreed to pay Andrew Corp. $100,000.00 for such purchases. Industrias claims it agreed to enter into the 2005 Agreement based on assurances from Andrew Corp. that it "would introduce its customers directly to [Industrias], and that the previously forecasted sales figures would be fulfilled by direct sales to those customers." Complaint, ¶ 15.

According to the Complaint, Industrias incurred significant expenses to comply with the terms of the 2004 and 2005 Agreements. The Complaint alleges that Defendant Andrew Corp., however, engaged in various acts that impeded Industrias from satisfying its obligations under the Agreements.

ANALYSIS

The Defendant has filed the instant Motion seeking to transfer venue, pursuant to 28 U.S.C. § 1404. In the alternative, the Defendant seeks to transfer venue pursuant to 28 U.S.C. § 1406. For the reasons set forth below, the Court grants Defendant's Motion.

As an initial matter, the Court notes that "[v]enue in an action removed from state court to federal court is governed by the removal statue, 28 U.S.C. § 1441, not by the general venue statute, 28 U.S.C. § 1391." Allied Van Lines, Inc. v. Aaron Transfer and Storage, Inc., 200 F.Supp.2d 941, 945 (N.D.Ill. 2002). Therefore, "pursuant to § 1441, venue of a removed action is proper in 'the district court of the United States for the district and division embracing the place where such action is pending.' 28 U.S.C. 1441(a). Thus, a party may not challenge venue 'as if the case had originally been brought [in the removal court].'" Id. (quoting PT United Can Co. Ltd. v. Crown Cork & Seal Co., Inc., 138 F.3d 65 (2nd Cir. 1998)).

Under 28 U.S.C. § 1404, a district court may transfer a civil action "[f]or the convenience of parties and witnesses, in the interest of justice,...to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Transfer is appropriate where the moving party clearly demonstrates that: "(1) venue is proper in the transferor district; (2) venue and jurisdiction are proper in the transferee district; and (3) the transfer will serve the convenience of the parties and witnesses and will promote the interest of justice." Plotkin v. IP Axess, Inc., 168 F.Supp.2d 899, 902 (N.D.Ill. 2001). "In assessing a motion to transfer, the court must consider the statutory factors in light of all of the circumstances of the case. The weight accorded to each factor is committed to the sound discretion of the court." Avco Corp. v. Progressive Steel Treating, Inc., 2005 WL 2483379, at *1 (N.D. Ill. 2005). In other words, it is within this Court's sound discretion to transfer an action. Fondrie v. Casino Resource Corp., 903 F.Supp. 21, 23 (E.D. Wis. 1995) (citing Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219 (7th Cir. 1986)).

As established above, venue is proper in the Central District of Illinois pursuant to § 1441(a). See Allied Van Lines, Inc., 200 F.Supp.2d at 946. The Court further finds that venue is also proper in the Northern District of Illinois, Eastern Division. Industrias is a Mexican corporation with no corporate offices in Illinois or anywhere in the United States. Andrew Corp. is a Delaware corporation with its principal place of business in Westchester, Illinois. It has substantial connections to the Northern District of Illinois. None of its offices in Illinois are located in the Central District of Illinois. Indeed, Andrew Corp. asserts that it neither has any corporate offices and employees, nor any witnesses related to this action in the Central District of Illinois. Defendant's Reply In Support of Motion to Transfer Venue (d/e 20) (Defendant's Reply) at 2; Defendant's Memorandum of Law (d/e 10), Exh. 3, Affidavit of James Bowen (Bowen Aff.). It appears that Andrew Corp.'s only connection to the Central District of Illinois is that it uses a commercial service to receive process in Springfield, Illinois. For these reasons, the Court finds that venue is proper in the Northern District of Illinois, Eastern Division.

The Court must now evaluate whether the transfer is for the convenience of parties and witnesses, and is in the interests of justice. Factors considered in determining the venue's convenience to parties and witnesses include: "(a) the plaintiff['s] choice of forum, (b) the situs of the material events, (c) the relative ease of access to sources of proof, (d) the ...


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