in California while 17 were taken outside of that state. Only one of those depositions, however,
took place in Illinois. Given these facts, this factor weighs in favor of transfer.

The location of sources of proof does not weigh in favor of transfer. M2 argues that all
the documents relevant to this action are in California. M2 does not state that it cannot transport
these documents to Illinois, but merely that it would be less expensive to keep them in California.
The Court is satisfied that these documents can be shipped to Illinois without undue burden.

To show that the convenience of the witnesses supports a transfer, M2 must identify the
key witnesses and provide information regarding their testimony. Heller Financial, Inc. v.
Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir. 1989). M2 plans to call Escamilla
(who lives in California), as he negotiated and signed the agreement between the parties. But the
other witnesses identified by M2 are necessary only to its planned counterclaims. D’ Ancona, on
the other hand, would need to call the lawyers involved in the Viacom and Manmade actions, all
of whom live in Illinois. A transfer would be inconvenient for them.

The convenience of the parties does not strongly favor either side. M2 says that litigating
in Illinois would put it at a disadvantage, as it would be more expensive than litigating in
California, But transfer is not appropriate if the effect is merely to shift an inconvenience from
one party to the other . Chemical Waste Management, Inc. v. Sims, 870 F. Supp. 870, 876 (N.D.
Ill. 1994).

In assessing the interests of justice, the court considers such concerns as “ensuring speedy
trials, trying related litigation together and having a judge familiar with the applicable law try the
case.” Heller, 883 F.2d at 1293. According to the most recent available statistics, the average
time from filing to trial is 27 months in this District and 18 months in the Central District of

California. See 2000 Federal Court Management Statistics, Administrative Office of the United

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D’ Ancona at its offices in Illinois. A substantial part of the events giving rise to the claim
occurred in this District. M2’s motion to dismiss for improper venue is denied.
Motion to Transfer

A court may transfer a suit from a district where venue is proper “[f]or the convenience of
parties and witnesses, in the interest of justice...to any other district or division where it might
have been brought.” 28 U.S.C. § 1404(a). To prevail, the movant must prove “that the
transferee forum is clearly more convenient.” Coffey v. Van Dorn Iron Works, 796 F.2d, 217,
219-20 (7th Cir. 1986). Factors affecting convenience include “the plaintiff's choice of forum,
the situs of the material events, the relative ease of access to sources of proof, the convenience of
the parties and the convenience of witnesses.” Netzky v. Fiedler, No. 00 C 4652, 2001 WL
521396, at *3 (N.D. Ill. May 15, 2001).

Though the plaintiff's choice of forum is ordinarily granted deference, there are situations
where it is not granted great weight, such as when the forum “lacks significant relationship with
the underlying dispute.” Russellville Steel Co., Inc. v. Sears, Roebuck & Co., No. 99 C 485, 2000
WL 91680, at *3 (N.D. IIL. Jan. 19, 2000). When such a weak relationship exists, the plaintiff's
choice of forum becomes “only one of many factors the court considers.” Federated Department
Stores, Inc. v. U.S. Bank National Association, No. 00 C 6169, 2001 WL 503039, at *2 (N.D. Ill.
May 11, 2001) (citation omitted). California has a far greater connection to the present dispute
than does Illinois, as D’Ancona’s representation of M2 was entirely centered in California.
D’Ancona’s choice of forum therefore is not entitled to significant weight.

California is the situs of most of the material events. It was there that D’ Ancona litigated
the Viacom and Manmade trademark infringement cases. D’ Ancona argues that a good deal of

the work on these cases was done outside of California; for example, 12 depositions were taken

3.


States Court (covering the 12-month period ending September 30, 2000). However, the time
from filing to trial on this Court’s own calendar is much closer to 18 months than 27.

It is conceivable that D’Ancona’s claim may be governed by Illinois law. A court in
California, however, would have no trouble applying Illinois law to decide a breach of contract
case. See TruServ, 6 F. Supp. 2d at 794 (courts are often asked to decide questions based on
another state’s laws). Thus the interests of justice do not tilt significantly in either direction.

M2 says that it plans to file a counterclaim alleging that D’ Ancona charged excessive fees
and poorly supervised junior attorneys working on the cases. If we were to consider the effect of
the proposed counterclaim, it might well tip the balance in terms of transfer. But M2 has not yet
filed its counterclaim, saying that to do so would have meant a waiver of its venue objection.
The Court is unwilling to base a transfer on a claim that has not yet been filed and that might not
be filed (M2 could have filed its counterclaim as a separate action in California but has not done
so). See Boder Products, Inc. v. Novachem, 663 F. Supp. 226, 228 (N.D. Ill. 1987).

In summary, M2 has failed to demonstrate that the proposed transferee forum is clearly
more convenient. Because, however, the balance may well tip if and when M2 files its proposed
counterclaim, the Court will deny the motion to transfer without prejudice.

Conclusion

Defendant’s motion to dismiss for improper venue or alternatively to transfer [Docket

Items 4-1, 4-2] is denied. Defendant is directed to answer within 10 days of this order. The case

is set for a status hearing on August 29, 2001 at 9:30 a.m.

August 2, 2001

MATTHEW F. KENNELLY)
United States District Judg

5.


Minute Order Form (06/92)

United States District Court, Northern District of Illinois

, one “ati fo
ser Magiate Jude Matthew F. Kennelly “than Aaiged Suge
CASE NUMBER 00 C 7150 DATE 8/2/2001
CASE D’Ancona & Plaum LLC vs. M2 Software, Inc.
TITLE

{in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

(1) oO Filed motion of [ use listing in “Motion” box above.]

(2) o Brief in support of motion due

(3) Oo Answer brief to motion due___. Reply to answer briefdue___.

(4) im] Ruling/Hearingon__set for___—_at

(5) oO Status hearingfheld/continued to] [set for/re-set for] on setfor at

(6) Oo Pretrial conference[held/continued to] [set for/re-set for]on__setfor__—at_—

(7) o Trialfset for/re-set for]on____at

(8) o [Bench/Jury trial] [Hearing] held/continued to at

(9) im This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) General Rule 21 C)FROP41(a)(1) CM FRCP41(a)(2).

ao [Other docket entry] | Enter Memorandum Opinion and Order. For the reasons set forth on the

attached order, defendant’s motion to dismiss for improper venue or alternatively to transfer (4-1,2) is
denied. Defendant is directed to answer within 10 days of this order. The case is set for a status hearing
on 8/29/01 at 9:30 a.m.

(i) ff {For further detail see order attached to the original minute order.]

No notices required, advised in open court. Document

Number

Z

No notices required.

number of notices

Notices mailed by judge’s staff.

Notified counset by telephone.

v | Docketing to mail notices.
Mail AO 450 form, CX)
Copy to judge/magistrate judge.

vn

g-3 pr aot

US

courtroom date mailed notice

OR deputy’s i
initials

Date/time received in 7
central Clerk's Office ‘mailing deputy initials



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
D’ANCONA & PFLAUM LLC, )
Plaintiff, }
vs. ) Case No. 00 C 7150
M2 SOFTWARE, INC., }
Defendant. ) DOCKET 7

AUG 0 6 2001
MEMORANDUM OPINION AND ORDER

MATTHEW F. KENNELLY, District Judge:

Plaintiff D’ Ancona & Pflaum LLC has brought this breach of contract action against
defendant M2 Software, Inc. to recover for unpaid legal bills. M2 has moved to dismiss the
complaint for improper venue in accordance with Fed. R. Civ. P. 12(b)(3) or alternatively to
transfer the case to the Central District of California pursuant to 28 U.S.C. § 1404(a).

Facts

D’ Ancona is a law firm located in Chicago. M2, which has its principal place of business
in California, develops, markets and sells music industry technology applications. In 1998, M2’s
president David Escamilla contacted Steven Baron, a member of D’Ancona, to discuss retaining
the law firm in a trademark infringement action pending in California against Viacom
International, Inc. In February 1999, Escamilla met Baron and other D’ Ancona attorneys in
Chicago to discuss the litigation. As part of their representation of M2 on the Viacom case,

D’ Ancona attorneys conducted discovery, prepared and filed briefs, and made arguments on

M2’s behalf in California. In June 1999, Escamilla asked D’ Ancona to represent M2 in an action

OD

against Manmade Multimedia, Inc., a California-based company. D’Ancona filed a complaint in


the Central District of California, conducted discovery and filed a motion for summary judgment.

M2 made partial payment of D’Ancona’s invoices on both trademark infringement cases.
In February 2000, however, Escamilla contacted Baron and told him that M2 was unable to pay
its outstanding balance of $337,794. After D’ Ancona failed to collect on the outstanding
invoices, it filed this action against M2.

M2 has moved to dismiss the complaint on the basis of improper venue, arguing that the
material events, including formation of the contract, the two trademark infringement trials and
the alleged breach of contract occurred in California. M2 alternatively seeks the transfer of the
action to the Central District of California, arguing that it would suffer great inconvenience if it
were forced to litigate in Illinois.

Motion to Dismiss

Venue is proper in a district where “‘a substantial part of the events or omissions giving
rise to the claim occurred.” 28 U.S.C. §1391(a)(2). This standard does not require that the
majority of the events pertaining to the case took place in the forum district. TruServ Corp. v.
Neff, 6 F. Supp. 2d 790, 792 (N.D. Ill. 1998). In addition, venue under §1391(a)(2) can be proper
in more than one district, as substantial portions of the relevant events may have occurred in
more than one district. Id.

The parties dispute where the contract was formed and allegedly breached. M2 does not
dispute, however, that D’ Ancona normally received payment in Illinois. Failure to make
payment in a district pursuant to a contract is enough under the statute to establish venue in that
district. TruServ, 6 F. Supp. 2d at 792. Other activities which make Illinois an appropriate venue
include Escamilla’s solicitation of D’ Ancona, his correspondence with the law firm, his meeting
in Illinois with the firm’s attorneys to discuss the litigation, and M2’s sending of payments to

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