United States District Court, C.D. Illinois, Peoria Division
OPINION & ORDER
JOE BILLY McDADE, District Judge.
This matter is before the Court on the Defendants' Motion To Dismiss Or, Alternatively, To Change Venue (Doc. 5). The motion is fully briefed and ready for decision. For the reasons stated below, the motion is DENIED.
Plaintiff, Steve Aeschliman, is a resident of Morton, Illinois, which is located in Tazewell County and the Central District of Illinois. Plaintiff was employed by Defendant Dealer Marketing Services, Inc. ("DMS"), of which Defendant John Palmer is the owner and chief executive officer. DMS is an Illinois corporation doing some business in Illinois but having its principal place of business in Iowa. Palmer is a resident of Bettendorf, Scott County, Iowa. Plaintiff sued DMS and Palmer in Illinois state court alleging state law claims of breach of contract and violation of the Illinois Wage Payment and Collection Act, 820 ILCS 115/1 et. seq., and a federal claim of violation of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et. seq. Since an ERISA claim arises under federal law, Defendants removed the entire civil action from the Circuit Court of Tazewell County, Illinois to this Court pursuant to 28 U.S.C. § 1441 on the basis of federal question jurisdiction. Defendants now seek to dismiss the action for lack of venue or alternatively, change venue to the Southern District of Iowa, Davenport Division.
I. The Court Will Not Dismiss This Lawsuit For Lack Of Venue Under Section 1391.
Defendants argue that this suit should be dismissed for lack of venue under 28 U.S.C. § 1391. While that statute governs venue generally, it is not applicable here because this action was removed by the Defendants to this Court by application of 28 U.S.C. § 1441. Courts in this judicial circuit apply the latter statute when analyzing the venue of removed actions. See, e.g., Industrias Kirkwood S.A. de C.V. v. Andrew Corp., No. 06-3242, 2007 WL 925511, at *2 (C.D. Ill. Mar. 23, 2007); Allied Van Lines, Inc. v. Aaron Transfer & Storage, Inc., 200 F.Supp.2d 941, 945 (N.D. Ill. 2002); see also 14D Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure. § 3804 (4th ed. 2014).
Venue is proper for a removed action if it is removed to the district court and its division in which the state action was pending. 28 U.S.C. § 1441(a); Andrew Corp., 2007 WL 925511 at *2 (citing PT United Can Co. v. Crown Cork & Seal Co., 138 F.3d 65, 72 (2d Cir. 1998)). Here, the original state action was brought in the Circuit Court of Tazewell County, which sits in the territorial jurisdiction of the Peoria Division of the Central District of Illinois. The action has been properly removed to the United States District Court of the Central District of Illinois, Peoria Division. Therefore, venue is proper and the action shall not be dismissed.
II. 28 U.S.C. § 1406 Does Not Apply To This Action.
Title 28, Section 1406 of the United States Code allows a district court to dismiss or transfer an action that has been filed in the wrong division or district. As explained above, this action was properly removed to this Court in conjunction with 28 U.S.C. 1441(a), which allows the removal of claims over which a district court could have exercised original jurisdiction to "the district court of the United States for the district and division embracing the place where such state action is pending." This action was properly removed to this Court in the Central District of Illinois, Peoria Division, from the Circuit Court of Illinois in Tazewell County. Venue is proper and § 1406 has no application to this action. The motion to dismiss and/or transfer venue under 28 U.S.C. § 1406 is denied.
III. Defendants Have Not Shown That Transfer Of Venue Under 28 U.S.C. § 1404 Is Appropriate.
The Seventh Circuit has explained that the purpose of "the federal change of venue statute, codified at 28 U.S.C. § 1404, " is "to allow a district court to transfer an action filed in a proper, though not necessarily convenient, venue to a more convenient district." Research Automation, Inc. v. Schrader-Bridgeport Int'l, Inc., 626 F.3d 973, 977 (7th Cir. 2010). Section 1404(a) allows a court to transfer an action either to another district court or division to which the parties consent or to a district court or division in which the plaintiff could have originally brought the action.
In this case, venue is proper in this Court and venue would be proper in the proposed transferee court. Plaintiff could have originally filed this action in the Davenport Division of the Southern District of Iowa. The action contains a federal claim and state law claims that are subject to a federal district court's original jurisdiction. See 28 U.S.C. §§ 1331 and 1367. Both defendants are residents of Scott County, Iowa, which sits in the Davenport Division of the Southern District of Iowa. See 28 U.S.C. § 1391. Thus, while venue is proper in this Court under 28 U.S.C. § 1441 as explained above, venue would have been proper under 28 U.S.C. § 1391 in the Davenport Division of the Southern District of Iowa had Plaintiff filed the original action there. Therefore, the first required element for a transfer of venue under § 1404(a) is present.
However, a transfer of venue must also be done in the interests of justice and to enhance the convenience of the parties and witnesses. 28 U.S.C. § 1404(a). The party seeking the transfer of venue bears the burden of demonstrating that the transferee forum is clearly more convenient. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7th Cir. 1986). When determining whether to allow a transfer in venue, this Court generally considers the following factors: (a) the plaintiff's choice of forum; (b) the situs of events giving rise to the suit; (c) ease of access to evidence; (d) convenience of the parties and (e) convenience of the witnesses. See Plotkin v. IP Axess, Inc., ...