United States District Court, N.D. Illinois, Eastern Division
CENTRAL STATES, SOUTHEAST AND SOUTHWEST AREAS PENSION FUND, and ARTHUR H. BUNTE, JR., Plaintiffs,
ROBERT V. BERGQUIST, Defendant.
MEMORANDUM OPINION AND ORDER
D. Leinenweber, Judge United States District Court.
the Court is Defendant Bergquist's Motion for Change of
Venue due to Forum Non Conveniens Pursuant to
Section 1404 [ECF No. 13]. For the reasons stated herein, the
Court denies Bergquist's Motion.
States, Southeast and Southwest Areas Pension Fund and one of
its trustees, Arthur H. Bunte, Jr. (collectively, the
“Fund”), brought suit against Robert V. Bergquist
(“Bergquist”), alleging certain transfers from
his former company were made to evade or avoid withdrawal
liability in violation of Section 1392(c) of Employee
Retirement Income Security Act of 1974, as amended by the
Multiemployer Pensions Plan Amendments Act of 1980
(hereinafter, “ERISA”), 29 U.S.C. § 1001
et seq., and in violation of Michigan's Uniform
Fraudulent Transfer Act, Mich. Comp. Laws § 566.31
Bergquist was the officer and director of Genesee-Bay
Constructors Inc. (“Genesee-Bay”), a Michigan
corporation. (Compl. ¶ 23.) Genesee-Bay was bound by a
collective bargaining agreement to make contributions to the
Fund. (Id. ¶ 10.) In January 2005, Bergquist
sold all his interest in Genesee-Bay back to the company and
resigned as officer and director by entering into a Stock
Redemption Agreement where Genesee-Bay agreed to pay
Bergquist $750, 000 pursuant to a promissory note for his
ownership interest. (Id. ¶¶ 24-26.) In
June 2011, Genesee-Bay effected a “complete
withdrawal” from the pension fund, resulting in a
withdrawal liability to the Fund under ERISA, none of which
was paid and remains outstanding to date. (Id.
¶¶ 11-14.) On August 15, 2014, Genesee-Bay assigned
all its assets to Bergquist, allegedly to pay on the
promissory note executed in 2005. (Id. ¶ 50.) A
few weeks later, the Fund obtained a judgment of $232, 720.51
against Genesee-Bay for withdrawal liability under ERISA.
(Id. ¶¶ 16, 51.) The Fund brings this
action, alleging that Genesee-Bay assigned its assets to
Bergquist to avoid paying its withdrawal liability in
violation of ERISA and Michigan's Uniform Fraudulent
Transfer Act. (Id. ¶¶ 54-62.)
crux of this Motion is not about the merits of the lawsuit,
but about where the lawsuit should take place. Bergquist
resides in Arenac County, Michigan, which lies within the
jurisdiction of the District Court of the Eastern District of
Michigan. (Answer ¶ 5.) The Fund is administered in
Rosemont, Illinois, which lies within the jurisdiction of the
Eastern Division of the Northern District of Illinois.
(Compl. ¶ 3.) Bergquist moves to transfer this case to
the Eastern District of Michigan due to forum non
conveniens pursuant to 28 U.S.C. § 1404.
Transfer under Section 1404
1404(a) provides that “[f]or the convenience of parties
and witnesses, in the interest of justice, a district court
may transfer any civil action to any other district or
division where it might have been brought.” 28 U.S.C.
§ 1404(a). Transfer under § 1404(a) is appropriate
if (1) venue is proper in both the transferor and transferee
court; (2) transfer is for the convenience of the parties and
witnesses; and (3) transfer is in the interest of justice.
parties agree that venue is proper in both the Northern
District of Illinois, where the Fund is administered, and the
Eastern District of Michigan, where Bergquist resides.
See, 29 U.S.C. § 1132(e)(2). Thus, resolution
of Bergquist's Motion therefore turns on the last two
factors-convenience and the interest of justice.
convenience analysis considers five factors: “(1) the
plaintiff's choice of forum; (2) the situs of the
material events; (3) the relative ease of access to sources
of proof; (4) the convenience of the witnesses; and (5) the
convenience of the parties.” Cent. States, Se.
& Sw. Areas Pension Fund (“Cent. States”) v.
Ehlers Dist. Inc., No. 11 C 2691, 2012 WL 581246, at *2
(N.D. Ill. Feb. 22, 2012) (citation omitted). Because Section
1404(a) does not specify the weight to be accorded each
factor, whether to grant a motion to transfer is left to the
discretion of the court. Heller Fin., Inc. v. Midwhey
Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989).
However, it is inappropriate to transfer a case if doing so
would have no effect other than to shift the inconvenience
from one party to the other. Fink v. Declassis, 738
F.Supp. 1195, 1198 (N.D. Ill. 1990). The Court considers each
factor in turn.