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Kelco Metals, Inc. v. Morgan

April 5, 2010


The opinion of the court was delivered by: Marvin E. Aspen, District Judge


Plaintiff Kelco Metals, Inc. ("Kelco") filed in this court a ten-count complaint against Defendants Michael G. Morgan and Wesmar Steel Corporation ("Wesmar"), alleging breach of contract, various business torts, and violations of Illinois and federal statutes. Defendants filed a three-count counterclaim. Presently before us is Defendants' motion to transfer the case to the Western District of Tennessee pursuant to 28 U.S.C. § 1404(a). For the reasons discussed below, we grant the motion.


Plaintiff Kelco, headquartered in Illinois, processes and sells steel. (Ans. ¶ 3.) In 1995, Kelco contracted with Defendant Morgan for Morgan to sell Kelco's steel products. (Id. ¶¶ 5, 12, 14.) The contract included a non-compete agreement. (Id. ¶ 14.) Kelco alleges that, in contravention of the non-compete agreement, Morgan used Kelco's employees and assets to divert sales from Kelco to Morgan's own steel company, Defendant Wesmar, breaching their contract and violating several laws.

Morgan is a resident of Tennessee, and Wesmar is incorporated in Tennessee. (Id. ¶¶ 4--5.) At the time of the alleged unlawful conduct, Morgan worked out of Kelco's Southeast regional office, located in Tennessee. (See Keller Aff. ¶ 9.) Most of Morgan's customers (for Kelco and Wesmar) are located in the Southeast region of the United States. (Morgan Aff. ¶ 5.) Morgan and Wesmar have brought counterclaims against Kelco, alleging breach of contract, promissory estoppel, and tortious interference with prospective economic advantage. In the present motion, Morgan argues that this case should be heard in Tennessee.


Pursuant to 28 U.S.C. § 1404(a), a court may, for the convenience of the parties and witnesses and in the interest of justice, transfer any civil matter to another district where venue is proper. A court may transfer a case if the moving party shows that: (1) venue is proper in the district where the action was originally filed; (2) venue 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. See Morton Grove Pharms., Inc. v. Nat'l Pediculosis Ass'n, 525 F. Supp. 2d 1039, 1044 (N.D. Ill. 2007). The parties appear to concede that venue would be proper in either the Northern District of Illinois or the Western District of Tennessee, and we agree. Therefore we focus on whether a transfer will serve the convenience of the parties and witnesses and the interests of justice. In doing so, we must weigh both private and public factors, and "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." 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, 67 S.Ct. 839, 843 (1947)). The weight afforded to each factor is within the discretion of the district court. Coffey, 796 F.2d at 219 ("The weighing of factors for and against the transfer necessarily involves a large degree of subtlety and latitude, and, therefore, is committed to the sound discretion of the trial judge."). "When deciding a motion to transfer venue, the court must accept as true all of the plaintiff's well-pleaded facts in the complaint, unless they are contradicted by affidavits or other appropriate evidence from the defendant." Bankers Life & Cas. Co. v. Case, et al., No. 05 C 6532, 2005 WL 3542523, at *1 (N.D. Ill. Dec. 24, 2005) (quoting Andrade v. Chase Home Fin., LLC, No. 04 C 8229, 2005 WL 3436400, at *2 (N.D. Ill. Dec. 12, 2005)).

A. Private Factors

Relevant private factors for a motion to transfer venue include: "(1) the plaintiff's choice of forum; (2) the situs of material events; (3) the relative ease of access to sources of proof; (4) the convenience of the parties; and (5) the convenience of witnesses." Morton Grove Pharms., 525 F. Supp. 2d at 1044 (citing Schwartz v. Nat'l Van Lines, Inc., 317 F. Supp. 2d 829, 835 (N.D. Ill. 2004)). We discuss each in turn.

1. Plaintiff's Forum Choice

The plaintiff's forum choice is generally given great deference, particularly when the plaintiff resides in the chosen district. Vandeveld v. Christoph, 877 F. Supp. 1160, 1167 (N.D. Ill. 1995); Dunn v. Soo Line R.R. Co., 864 F. Supp. 64, 65 (N.D. Ill. 1994); FUL Inc. v. Unified Sch. Dist. No. 204, 839 F. Supp. 1307, 1311 (N.D. Ill. 1993). Because Kelco resides in the Northern District of Illinois, its chosen forum, this factor weighs heavily against a transfer.

2. Situs of Material Events

Defendants argue that the vast majority of the material events allegedly giving rise to Kelco's claims occurred in Tennessee or in nearby Southern states. These claims revolve around Morgan's steel sales (through Kelco and Wesmar) conducted out of Kelco's Tennessee office, to customers primarily in Tennessee and other Southern states. Therefore, according to Morgan, any alleged contract breach or otherwise unlawful conduct by Morgan occurred in Tennessee or nearby, and not in Illinois.

Kelco responds that Morgan's allegedly unlawful activities were conducted using Kelco's email system, which routes messages through an email server in Illinois, and that any damage to Kelco was felt at its headquarters in Illinois. Therefore, according to Kelco, material events also occurred in Illinois.

While we agree with Kelco that this lawsuit is connected to Illinois, we also agree with Defendants that the primary material events occurred in Tennessee or nearby. ...

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