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Cottrell, Inc. v. Ellis

United States District Court, Seventh Circuit

December 9, 2013

COTTRELL, INC., Plaintiff,
v.
J. NIGEL ELLIS, DYNAMIC SCIENTIFIC CONTROLS, INC., ELLIS LADDER IMPROVEMENTS, INC., and ELLIS LITIGATION SUPPORT SERVICES, Defendants.

MEMORANDUM OPINION AND ORDER

JOHN Z. LEE, District Judge.

Plaintiff Cottrell, Inc. ("Cottrell") sued J. Nigel Ellis, Dynamic Scientific Controls, Inc., Ellis Ladder Improvements, Inc., and Ellis Litigation Support Services (collectively "Defendants") under breach of contract and tort theories. Plaintiff alleges it entered into a contract with Defendants for Defendants to provide Plaintiff with engineering safety design services, and Defendants breached the contract and other duties owed to Plaintiff by relaying confidential information about Plaintiff to third parties who were adverse to Plaintiff's interests. Defendants moved to dismiss Plaintiff's claims for improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3). In the alternative, Defendants ask this Court to transfer this case to the Southern District of Illinois pursuant to 28 U.S.C. § 1406(a) or dismiss Plaintiff's claims pursuant to Rule 12(b)(6). For the reasons stated herein, the Court grants Defendants' motion to dismiss for improper venue [23].

Procedural History

Cottrell first filed suit against Defendants in Madison County, Illinois Circuit Court on August 28, 2012, stating "[v]enue is proper in Madison County pursuant to 735 ILCS 5/2-101, inasmuch as the actions giving rise to these claims occurred in cases pending in Madison County, Illinois." (Mot. Dismiss, Ex. A, Compl. ¶ 7.) Defendants removed the case to the Southern District of Illinois, and Cottrell filed an Amended Complaint alleging "[v]enue is proper in the Southern District of Illinois, as a judicial district in which a substantial part of the events or omissions giving rise to the claims occurred[.]" (Mot. Dismiss, Ex. B, Am. Compl. ¶ 7.) Cottrell voluntarily dismissed its claims in the Southern District of Illinois on January 28, 2013, and it re-filed the instant case in the Northern District of Illinois on February 12, 2013. Cottrell's complaint filed in this District states "[v]enue is proper in the Northern District of Illinois, as a judicial district in which a substantial part of the events or omissions giving rise to the claims occurred[.]" (Compl. ¶ 7.)

Facts

The following facts are taken from Plaintiff's Complaint and are accepted as true for purposes of resolving this motion to dismiss. See Reger Dev., LLC v. Nat'l City Bank, 592 F.3d 759, 763 (7th Cir. 2010).

Plaintiff Cottrell, a Georgia corporation with its principal place of business in Georgia, manufactures and sells auto transport trailers. (Comp. ¶ 1.) Defendant J. Nigel Ellis ("Ellis"), a safety engineer, is a citizen of Delaware and the sole shareholder and owner of Dynamic Scientific Controls, Inc., Ellis Ladder Improvements, Inc., and Ellis Litigation Support Services. ( Id. ¶ 2.) All of Ellis' companies are Delaware corporations with their principal places of businesses in Delaware. ( Id. ¶¶ 3-5.)

In August 2005, Ellis approached Cottrell to market a fall-protection safety design Ellis had developed. ( Id. ¶ 12.) Prior to engaging in discussions with Ellis, Cottrell asked Ellis whether he was working with any plaintiffs' attorneys adverse to Cottrell. ( Id. ¶ 14.) Ellis assured Cottrell he was not working with any plaintiffs' attorneys against Cottrell. ( Id. ) Cottrell advised Ellis that if he consulted with plaintiffs' attorneys, Cottrell would no longer communicate with him. ( Id. ) The parties then executed a confidentiality agreement based upon Ellis' representations. ( Id. ¶ 16.)

Ellis began to send Cottrell design drawings in or around November 2005, and Ellis continued to send Cottrell letters in an attempt to sell his invention from December 2005 through March 2007. ( Id. ¶ 17.) After Cottrell expressed concerns about Ellis' design, Ellis sent Cottrell a letter on May 21, 2006, stating that he would send additional information to Cottrell. ( Id. ¶ 20.) Ellis never sent the additional information. ( Id. ¶ 21.)

According to the Complaint, from at least July 2006 through July 2007, Ellis engaged in secret communications with Brian Wendler ("Wendler"). ( Id. ¶ 23.) Wendler is an attorney who has filed lawsuits against Cottrell on behalf of various clients for more than a decade. ( Id. ¶ 22.) As early as January 2007, Wendler officially retained Ellis as an expert. ( Id. ¶ 47.) Around the same time Ellis was communicating with Wendler, Ellis was also retained by the Occupational Safety and Health Administration ("OSHA") to support the agency's efforts to enforce administrative citations involving Cottrell's trailers. ( Id. ¶ 27.) The citations alleged that Cottrell's rigs created an unsafe workplace due to fall safety issues. ( Id. ) Although he had been retained by both Wendler and OSHA in matters adverse to Cottrell and its rigs, Ellis continued his correspondence with Cottrell by sending a letter to Cottrell on or about March 1, 2007. ( Id. ¶ 29.) Ellis never informed Cottrell of his communications with Wendler or OSHA. ( Id. ¶¶ 23, 28.)

In July 2007, Wendler disclosed Ellis as an expert witness to testify against Cottrell in Hancox v. Cottrell ( id. ¶ 32.), a case filed in the Western District of Missouri. In August 2010, Ellis testified against Cottrell in a deposition in Smith v. Cottrell, a case filed in the Southern District of Illinois, during which Ellis testified that his first communication with Wendler was in 2007. ( Id. ¶ 34.) But, in April 2011, Ellis produced documents in another case that showed that he had communicated with Wendler as early as July 2006. ( Id. ¶ 41.)

Subsequently, Ellis was deposed in a case filed in the Northern District of Illinois, Assaf v. Cottrell, in May 2011. ( Id. ¶ 46.) In Assaf, plaintiff's counsel provided Cottrell a January 14, 2007, memorandum which stated that Ellis had been hired by Wendler as of that date. ( Id. ¶ 47.) Ellis was subsequently disqualified as an expert in Assaf due to his conflict of interest with Cottrell. ( Id. ¶ 50.) Defendant now moves to dismiss Plaintiff's claims for improper venue pursuant to Rule 12(b)(3).

Legal Standard

Rule 12(b)(3) provides that a party may move to dismiss an action when it is not filed in the proper venue. Fed.R.Civ.P. 12(b)(3). The plaintiff bears the burden of establishing that venue is proper. Grantham v. Challenge-Cook Bros., Inc., 420 F.2d 1182, 1184 (7th Cir. 1970) (internal citation omitted). When ruling upon a Rule 12(b)(3) motion to dismiss for improper venue, the Court takes all allegations in the complaint as true, unless contradicted by an affidavit. Nagel v. ADM Investor Servs., Inc., 995 F.Supp. 837, 843 (N.D. Ill. 1998). The Court is "not obligated to limit its consideration to the pleadings" when deciding a motion to dismiss under Rule 12(b)(3). Cont'l Cas. Co. v. Am. Nat. Ins. Co., 417 F.3d 727, 733 (7th Cir. 2005). If venue is ...


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