United States District Court, N.D. Illinois, Eastern Division
ARCHIE BEATON, individually and on behalf of all others similarly situated, Plaintiff,
SPEEDYPC SOFTWARE, a British Columbia company, Defendant.
MEMORANDUM OPINION AND ORDER
ANDREA R. WOOD, District Judge.
Plaintiff Archie Beaton sued Defendant SpeedyPC Software ("SpeedyPC"),  a British Columbia company, alleging that it engaged in fraudulent and deceptive marketing of SpeedyPC Pro ("Speedy PC Pro" or the "Software"), a computer software product that purports to be able to diagnose and repair various PC errors. SpeedyPC has filed a motion to dismiss the complaint under the doctrine of forum non conveniens, arguing that British Columbia, Canada is a more appropriate forum for this action. (Dkt. No. 16.) Because the factors the Court must consider in determining this motion do not clearly outweigh the presumption in favor of keeping this matter in Beaton's chosen forum, SpeedyPC's motion is denied.
Beaton, a resident of Algonquin, Illinois, filed this putative class action against SpeedyPC alleging that he purchased the Software as a result of false and misleading statements regarding its capabilities. Beaton alleges that, in or around August 2012, he viewed an ad for the Software on the Internet and subsequently purchased it. (Compl. ¶¶ 22-47, Dkt. No. 1.) Beaton further claims that the Software overstates the amount and severity of errors that it purportedly fixes to convince consumers that the product functions as advertised. (Id. ¶¶ 16-18, 20-21, 24, 30-38, 43-49, 62-64.) The Complaint contains four counts: claims for violation of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), fraudulent inducement, breach of contract, and unjust enrichment.
Before installing the Software, Beaton first had to click "I Agree" when the End User License Agreement ("EULA") appeared on his computer screen. ( See Theobald Decl. ¶¶ 5-9, Mot. Ex. B, Dkt. No. 44-2.) Section 3.9 of the EULA states:
Governing Law - This Agreement shall be governed exclusively by the laws of the Province of British Columbia and the laws of Canada applicable therein except any principles regarding conflicts of law rules and the United Nations Convention on Contracts for the International Sale of Goods. You hereby irrevocably attorn and submit to the non-exclusive jurisdiction of the courts of Victoria, British Columbia, and any competent Courts of Appeal therefrom. If any provision shall be considered unlawful, void or otherwise unenforceable, then that provision shall be deemed severable from this License and not affect the validity and enforceability of any other provisions.
(Id. at Ex. 1.)
SpeedyPC is a Canadian corporation with its principal place of business in British Columbia. (Dodd Decl. ¶¶ 2-3, Mot. Ex. A, Dkt. No.44-1.) The persons responsible for the design, development, marketing, and maintenance (including testing and ongoing upgrades) of the Software and its day-to-day management are current or former employees of Speedy PC and reside in British Columbia. (Id. ¶¶ 5-6, 12-14.) Both SpeedyPC's CEO and Vice President of Business Operations also reside in British Columbia, Canada. (Id. ¶¶ 5-6.) Speedy markets and sells the Software in a number of countries, including Canada and the United States. (Id. ¶ 4.)
The doctrine of forum non conveniens permits a court, in its discretion, to dismiss an action over which it has jurisdiction when there is an adequate alternative forum in which the case can be more conveniently heard. Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 802 (7th Cir. 1997) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947)). Deciding a forum non conveniens motion involves two steps. First, an adequate alternative forum must be available to hear the case. Id. at 802. If that threshold criterion is satisfied, the court must then balance the private interests of the litigants and the public interests of the forum to determine the superior venue. Id. at 803. The burden is on SpeedyPC to demonstrate that the balance of the factors weighs in favor of dismissal. See Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 423 (2007).
In determining SpeedyPC's motion, the Court must give deference to Beaton's chosen forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255 (1981). Where the plaintiff is not a citizen of its chosen forum, the district court "is entitled to be far less deferential toward his choice." Interpane Coatings, Inc. v. Australia and New Zealand Banking Grp., Ltd., 732 F.Supp. 909, 915 (N.D. Ill. 1990). SpeedyPC argues that Beaton is not entitled to deference in his choice of forum because he resides in McHenry County, Illinois, which is part of this District's Western Division. ( See Mot. Ex. E, Dkt. No. 69-1.) However, in cases involving potential dismissal to a foreign country, "the relevant inquiry is not whether the plaintiff is a citizen of the chosen forum; rather, it is whether the plaintiff is [a United States] citizen." Interpane Coatings, 732 F.Supp. at 915. There is no indication that Beaton is not a United States citizen; therefore, his choice of forum is entitled to presumptive weight. At the same time, United States citizens do not have the absolute right to sue in an United States court, see id., and a defendant may overcome this deference by demonstrating that the "private and public interest factors clearly point towards trial in the alternative forum." Macedo v. Boeing Co., 693 F.2d 683, 688 (7th Cir. 1982).
I. Alternative Forums
SpeedyPC seeks to have this matter litigated in British Columbia, Canada. To determine whether British Columbia is available as a forum, the Court must ascertain whether all parties are amenable to process and within the forum's jurisdiction. Kamel, 108 F.3d at 802-03. Here, the Court finds that the British Columbia courts have jurisdiction over both parties: SpeedyPC is located in Victoria, British Columbia and, under the EULA, Beaton has submitted to the non-exclusive jurisdiction of the courts of Victoria, British Columbia. Furthermore, SpeedyPC has agreed that it will not contest service of process. (Sec. Dodd. Decl. ¶ 2, Dkt. No. 69-3.) Accordingly, British Columbia is an available alternative forum.
The Court also finds that British Columbia is an adequate forum. A forum is "adequate" if "the parties will not be deprived of all remedies or treated unfairly." In re Bridgestone/Firestone, Inc., 420 F.3d 702, 704 (7th Cir. 2005); see also Piper Aircraft Co., 454 U.S. at 254 ("if the remedy provided by the alternative forum is so clearly inadequate or unsatisfactory that it is no remedy at all, [an] unfavorable change in law may be given substantial weight."). Judges in this District generally have found that Canadian courts are adequate alternative fora in the context of deciding forum non conveniens motions. See, e.g., ISI Int'l, Inc. v. Borden Ladner Gervais, LLP, ...