Opinion
No. 03 C 5537
March 9, 2004
MEMORANDUM OPINION
This matter is before the court on Defendants Thomas McKenna's ("McKenna"), Catholic Charities of the Diocese of Rockford's ("Catholic Charities"), Mary Ann Suprenant's ("Suprenant"), Michelle Garnhart's ("Garnhart"), Sherry Nestman's ("Nestman"), Jerrod Barenbaum's ("Barenbaum"), and Renee Schroeder's ("Schroeder") motion for a transfer of venue to the Western Division of Northern Illinois in Rockford, Illinois ("Western Division"). For the reasons stated below we grant the motion to transfer.
BACKGROUND
Plaintiff Gloria Kelly ("Kelly") filed a complaint against Defendants alleging claims based upon 42 U.S.C. § 1983. Kelly claims that the Defendants unlawfully removed her foster child from her care. Several Defendants in this case have filed motions to dismiss and the above mentioned Defendants have filed the instant motion for the transfer of venue,
DISCUSSION
The instant motion for transfer of venue is brought pursuant to 28 U.S.C. § 1404. A district court may transfer an action to another district or division where the action might have been brought pursuant to 28 U.S.C. § 1404(a) "[f]or the convenience of parties and witnesses, [if it is] in the interest of justice. . . ." 28 U.S.C. § 1404(a). In deciding whether to transfer to another venue the transferor court should consider: 1) the choice of forum by plaintiff, Federal Deposit Ins. Corp. v. Citizens Bank and Trust Co. of Park Ridge, III., 592 F.2d 364, 368 (7th Cir. 1979), 2) the convenience of the parties, Coffey v. Van Darn Iron Works, 796 F.2d 217, 220 n. 3 (7th Cir. 1986), 3) the convenience of the witnesses, Id. and 4) the interest of justice. Id. The movant bears the burden of establishing that the transferee district is "clearly more convenient." Id. at 219-20.
In considering whether to transfer an action the court should "give some weight to the plaintiff's choice of forum." Federal Deposit Ins. Corp., 592 F.2d at 368; see also Heller Financial, Inc. v, Midwhey Powder Co., Inc., 883 F.2d 1286, 1294 (7th Cir. 1989) (stating that "some weight must be given to [a plaintiff's] choice of forum"). A transfer pursuant to 28 U.S.C. § 1404(a) should not merely "shift the convenience from one party to another," and the choice of a forum by a plaintiff should not be "lightly. . . disturbed." Warshawsky Co. v. Arcata Nat'l Corp., 552 F.2d 1257, 1259 (7th Cir. 1977); see also Heller Financial Inc., 883 F.2d at 1294(expressing concern that a transfer would merely shift the inconvenience to the plaintiff). However, whenever the plaintiff and defendant are in different states, there will inevitably be an inconvenience to one side. In re National Presto Indus., Inc., 347 F.3d 662, 665 (7th Cir. 2003), When the potential inconvenience to the plaintiff and defendant are comparable "the tie is awarded to the plaintiff. . . ." Id.
In addressing the interest of justice factor a court may consider: 1) whether a transfer promotes the "efficient administration of justice," 2) whether the action could be consolidated with other actions in the transferee district, 3) whether the judges in the transferee district are more familiar with the pertinent state law, 4) whether jurors in a particular district have a "financial interest in [the] case," and 5) which district would have jurors that could "best apply community standards." Coffey, 796 F.2d at 220-21, 221 n. 4. The court should also consider whether the transferee district has a lighter docket than the transferor district. In re National Presto Indus., Inc., 347 F.3d at 664. In addressing the interest of justice factor the transferor court should focus on whether the proposed transfer would promote the "efficient functioning of the courts," Coffey, 796 F.2d at 221. The interest of justice factor does not involve a consideration of the merits of plaintiff's claim. Id.
In this case the convenience of the parties is clearly served by a transfer to the Western Division of Illinois. Defendants McKenna, Suprenant, and Garnhart reside in and are employed in Rockford, Illinois. Defendants Barenbaum and Schroder have attorneys that are located in Rockford, Illinois. Defendant Nestman is employed in Rockford, Illinois and resides in nearby Kane County. Plaintiff Kelly is a resident of Machesney Park, Illinois, which is located in the Western Division. The alleged misconduct by Defendants occurred in the Western Division and virtually all the witnesses that are expected to be called in this action reside in the Western Division. Plaintiff Kelly on the other hand does not indicate that it would be an inconvenience for her to proceed in the Western Division, In fact, in open court at the last status hearing she stated the following:
I object to [the transfer of venue] because of what's happened in this case and the situation in Rockford, Illinois, I do not think — you know, the reason I came all the way to Chicago, which is, you know, great inconvenience to me is because I thought that perhaps it would be fair finally. And in Rockford. I don't believe that could happen.
Thus, Kelly admits that it is in fact inconvenient for her to continue to proceed in the Eastern Division of the Northern District of Illinois. She also admits that she filed her case in the Eastern Division, not because of any nexus between her claims and the Eastern Division, but rather because she believes that she cannot get a fair adjudication of her claims in Rockford. In her answer to the instant motion Kelly fails to offer any reason why it would be inconvenient for her to proceed in the Western Division.
Although, a plaintiff's choice of forum is generally given deference, it is not always dispositive, particularly when there is no nexus between the claims and the venue chosen by the plaintiff and when the plaintiff does not reside in the chosen venue. See Heston v. Equifax Credit Info. Servs. LLC, 2003 WL 22243986, at * 1 (N.D. III. 2003) (stating that plaintiff's choice of forum is given less weight if the case has no "significant connection to the chosen forum . . ."); So-Comm, Inc. v. Reynnolds, 607 F. Supp. 663, 666 (N.D. III. 1996) (stating that "the plaintiff's choice of forum is entitled to less consideration when he is not a resident of the forum district."). In this case the alleged wrongful conduct occurred in the Western Division and Kelly has failed to show any nexus between the claims and the Eastern Division of the Northern District of Illinois or her personally and the Eastern Division.
We find that a transfer to the Western Division would also be in the interest of justice.
The pertinent witnesses and records are located in the Western Division of Illinois, Were the case to be transferred to the Western Division, it would promote a more efficient functioning of the judicial system.
Kelly argues that the motion to transfer is untimely. However, the Defendants bringing the instant motion were required pursuant to Federal Rule of Civil Procedure 12(a)(1)(A) to file a responsive brief "within 20 days after being served with the summons and complaint. . . ." The amended complaint was served on the Defendants bringing the instant motion on or about January 22, 2004, and the summons only issued on January 20, 2004. The instant motion was filed on February 3, 2004 and thus is clearly timely. Therefore, for the convenience of the parties and witnesses, and in the interest of justice we grant the motion to transfer.
CONCLUSION
Based on the foregoing analysis, we grant the motion for the transfer of venue to the Western Division of the Northern District of Illinois,