Plaintiff's choice of forum is entitled to substantial weight, particularly when it is also her
home forum. Vandeveld v. Christoph, 877 F. Supp. 1160, 1167 ('N.D. IIL. 1995). Plaintiff's
choice is not, however, conclusive. When “the conduct and events giving rise to the cause of
action did not take place in the plaintiff's selected forum, the plaintiff's preference has minimal
value” even if it is the plaintiff's home forum. Dunn v. Soo Line R. Co., 864 F. Supp. 64, 65
(N.D. Ill. 1994). “The weight given to plaintiff's choice of form is lessened if the chosen forum
has relatively weak connections with the operative facts giving rise to the claim.” Von Holdt v.

Husky Injection Molding Systems, Limited, 887 F. Supp. 185, 188 (N.D. Ill. 1995). Thus, the

court must consider the situs of material events to determine how much weight to assign to
plaintiffs choice of forum.

The instant case arises out of defendant’s alleged mistreatment of plaintiff during her
flight from Nigeria to San Francisco, as well as during the processes of embarking and
disembarking. Although the ticket for travel was purchased in Illinois, none of the acts that form
the gravamen of plaintiff's complaint occurred in Illinois. The first two private interest factors
thus favor transfer.

The third factor, ease of access to evidence and sources of proof, also slightly favor
transfer. The core allegations of the complaint are not substantially connected to Illinois, but
rather involve defendant’s acts during its San Francisco-bound flight from Nigeria. Hence, the
court concludes that the ease of access to proof favors transfer :o California.

The court finds that the fourth and fifth factors, convenience of witnesses and parties, also
favor transfer. Plaintiff resides in California, and the only potential witness residing in [linois is

Gregory Chukwu, who purchased plaintiff's ticket (a fact that is not contested). Further,

13



The FSIA, by its very terms, is “[s]ubject to existing interrational agreements to which
the United States is a party...” 28 U.S.C. §1604. Under the FSIA, “the district courts shall have
original jurisdiction...of any nonjury civil action against a foreign state as defined in section
1603(a) of this title as to any claim for relief in personam with respect to which the foreign state
is not entitled to immunity either under sections 1605-1607 of -his title or under any applicable
international agreement.” 28 U.S.C. § 1330 (a). Hence, a foreign state is presumptively immune
from the jurisdiction of the courts of this country, unless an existing international agreement
provides otherwise, or one of the exceptions to immunity enumerated in 28 U.S.C. §§ 1605-1607
is applicable. Saudi Arabia v, Nelson, 507 U.S. 349, 155, 113 S.Ct. 1471, 1476 (1993);

Verlinden B.V. v. Central Bank of Nigeria, 461 U.S. at 493, 103 5.Ct. 1962, 1971; Harris v.

Polskie Line Lotnicze, 641 F.Supp. 94, 96 (N.D.Cal. 1986).
Existing International Agreement: Warsaw Convention

Plaintiff has characterized her lawsuit as asserting stanciard common law negligence
claims, consisting of the following elements: duty, breach, causation, and damages. This court is
persuaded, however, that plaintiffs claims are governed not by state tort or contract law as

alleged by plaintiff,’ but rather fall within the purview of the Warsaw Convention (“the

*It should be noted that, even if plaintiff's claims were yoverned by the common law of
negligence rather than the Warsaw Convention, this court woutd still have subject matter
jurisdiction. The commercial activity exception to immunity under the FSIA, 28 U.S.C. §
1605(a)(2), provides that a foreign state shall not be immune from suit in any case “in which the
action is based upon a commercial activity carried on in the United States by the foreign state...”
For an action to be “based upon” commercial activity, there must be an identifiable nexus
between the claim and the comrnercial activity at issue. Santos v, Compagnie Nationale Air
France, 934 F.2d 890, 893 (7" Cir. 1991). In other words, a claim is “based upon” commercial
activity in the United States if that activity establishes a legal e.eraent of the claim. Id. See also
Saudi Arabia v. Nelson, 507 U.S. 349, 357, 113 S.Ct. 1371, 1477 (1993). Ina negligence

(continued...)



her allegations to withstand a motion for summary judgment, the court finds that her cursory
allegation of physical injury at this stage in the proceedings is adequate, especially considering
the alleged deprivation of food and beverages and access to a wheelchair to accommodate an

apparent physical disability. Defendant’s motion to dismiss for failure to state a claim is

therefore denied.
Forum Non Conveniens

Defendant has moved this court to “dismiss [the instant case] in equity and good
conscience due to the lack of significant contacts with the United States and the inability of
defendant to reasonably present a defense.” In support of its motion, defendant maintains that
none of the culpable acts occurred in this district or in the United States, and that defendant is not
incorporated anywhere in the United States. Moreover, defendant emphasizes that there are only
two potential witnesses located in the United States: the purchaser of plaintiffs ticket, who
resides in this district, and the plaintiff herself, who resides in California. Defendant contends
that, should this court dismiss the instant case, plaintiff has an adequate remedy in Nigeria.

In a motion to dismiss for forum non conveniens, the defendant must show that (1) there
is an adequate, available forum elsewhere, and (2) the balance of private and public interests
favors dismissal. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 12 S.Ct. 252 (1981). An
alternative forum is available if all parties are amenable to process and are within the forum's

jurisdiction. Kamel, 108 F .3d 799, 803 (7" Cir. 1997). Further, an adequate forum mandates

6(...continued)
rests. Leatherman v. Tarrant County Narcotics and Intelligence Coordination Unit, 113 S.Ct.
1160, 1163 (1993).



Article 17 of the Convention, which governs the instant dispute, provides that a carrier
shall be liable “for damage sustained in the event of the death cr wounding of a passenger or any
other bodily injury suffered by the passenger, if the accident which caused the damage so

sustained took place on board the aircraft or in the course of any cf the operations of embarking

or disembarking.”*

According to Article 28 of the Convention, suits for damages under Article
17 may be brought before a court in the territory of any of the following: (1) the domicile of the
carrier, (2) the carrier’s principal place of business, (3) the carrier's place of business through
which the contract for travel was made, or (4) the place of destination.

The parties do not dispute that plaintiff was engaged in international travel, as defined by
the Convention. See Article 1 (defining “international transportation”). The parties further
agree that the contract for travel was made in Chicago, Illinois, ard that plaintiff's flight was
bound for San Francisco, California. Therefore, this court finds that the instant case is governed
by the Warsaw Convention and that this court has subject matter /urisdiction pursuant to the
FSIA, 28 U.S.C. §§ 1330, 1604.

Exceptions to Immunity under FSIA

Even if the Warsaw Convention did not, by its own force, confer subject matter

jurisdiction over the instant dispute, the court finds that the FS!A"s commercial activity

SArticle 25, which defines the circumstances under which an air carrier may not avail
itself of the exclusion from liability outlined in Article 20 or the $75,000 liability cap provided in
Article 22, does not create an independent cause of action under local state law when willful
conduct is alleged. See Ratnaswamy v. Air Afrique, 1998 WL 111652, at *4 (N.D.IIl. March 3,
1998); Harpalani v. Air India, Inc., 634 F.Supp. 797, 799 (N.D Ill. 1986) (a finding of wilful
misconduct produces "an exception to the Convention's limitations on the recovery of
compensatory damages, not an authority for a form of damages not permitted elsewhere in the
Convention.")



Convention”), 49 U.S.C.A. § 40105, which creates the exclusi

cause of action for injuries

sustained during international air transportation.* See El Al Istae| Airlines v. Tseng, 525 U.S.

155, 176, 119 S.Ct. 662, 675 (1999). Although the United States was not one of the original
contracting parties to the Convention, it announced its intention to adhere to the Convention’s

provisions in late 1934. Harris v. Polskie Line Lotnicze, at 96. France is a party to the

Convention, as well.

As the Supreme Court has observed, the “cardinal purpose:” of the Convention was to
achieve uniformity of rules governing claims arising from international air transportation. Id. at
169, 119 S.Ct. at 671-672. Moreover, the Convention seeks to balance the interests of air
carriers and passengers. To that end, it denies carriers the ability to contractually limit or exclude
their liability, and limits both the types of claims and amount of damages that may be sought by
passengers. See Article 20 (precluding liability if “carrier proves that he and his agent have taken
all necessary measures to avoid the damage or that is was impessible for him or them to take
such measures”); Article 22 (limiting carrier liability to $75,000); and Article 25 (providing that
“the carrier shall not be entitled to avail himself of the provisiens of this convention which

exclude or limit his liability, if the damage is caused by his willful misconduct....”).

3(...continued)
action, the selling of an airplane ticket in the United States creates a duty, and is therefore an
element of the cause of action that confers jurisdiction under the |°SLA’s “commercial activity”
exception to sovereign immunity. See Santos, 934 F.3d at 893

“The Warsaw Convention is the popular name for the Convention for the Unification of
Certain Rules Relating to International Transportation by Air, Oct. 12, 1929, 49 Stat. 3000, T.S.
No. 376. Deere & Co. v. Deutsche Lufthansa Aktiengesellschalt, 855 F.2d 385, 387 n. 2 (7th
Cir. 1988).



Having determined that plaintiff's claims of “injury to her mind and body” under the
Convention implicate the commercial activity engaged in by defendant in Chicago and San
Francisco, the court finds that the requirements of section 1605(a\(2) have been met, and
defendant is therefore subject to the subject matter jurisdiction of the federal courts under the
FSIA. Accordingly, defendant’s motion to dismiss for lack of subject matter jurisdiction is
denied.

Failure to State a Claim under the Warsaw Convention

Defendant concedes that if subject matter jurisdiction exists over the instant dispute, then
it must be governed by the Warsaw Convention. To prevail on a claim under Article 17 of the
Convention, a plaintiff must prove that: (1) there has been an “accident,” from which (2) the
plaintiff suffered an “injury,” and that (3) the accident “took place on board the aircraft or in the

course of any of the operations of embarking or disembarking.’ See Eastern Airlines, Inc. v.

Floyd, 499 U.S. 530, 535-536, 111 S.Ct. 1489, 1494 (1991).

Defendant does not dispute that plaintiff has sufficiently alleged an accident, or that the
acts complained of occurred during embarking and disembarking, or during her flights. Rather,
the thrust of defendant’s argument is that plaintiff has failed to allege a physical injury that is
compensable under the Convention.

The court finds that plaintiffs third amended complaint, which asserts “injuries of
pecuniary nature in both her mind and body,” minimally satisfizs the requirement that plaintiff

allege a physical injury. Notwithstanding plaintiff's ultimate ubility to offer sufficient proof of

‘Under notice pleading, all that is required is a short and plain statement of the claim that
will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it
(continued...)



HH der Form (06/97)

Yg f United States District Court, Northern District of Illinois
J
YN _
Nameafamened wie | Robert W. Gettleman _| Stine Jue mh
CASE NUMBER 02 C 2190 DATE Sept. 11, 2002
CASE Monica O. Chukwu v Air France, et al
TITLE

[ln the following box (a) indicate the party filing the motion, e.g,, plaintiff, cefendant, 3rd party plaintiff, and (b) state briefly the nature
of the motion being prevented.]

MOTION:
DOCKET ENTRY:
qd) a Filed motion of [ use listing in “Motion” box above.]
(2) Oo Brief in support of motion due
3) ao Answer brief to motion due___. Reply to answer brief due__
(4) Oo Ruling/Hearingon___—setfor__—at__.
6) O Status hearing
(6) o Pretrial conference[held/coatinued to) [set for/re-set for]on ss setfor_— at.
(7) o Trial(set for/re-set for]on at
~) O [Bench/Jury trial] [Hearing] held/continued to at
0 Oo This case is dismissed [with/without] prejudice and without costs[by/agreemenv/pursuant to]
OFRCP4(m) (General Rule21 OOFRCP41(a)(1) 0 FR.CP41(a)(2).
}(10) (Other docket entry] Memorandum opinion and order entered. Accordingly,

defendant’s motion to dismiss for lack of subject matter jurisdiction and failure to state a
claim pursuant to FRCP 12(b)(1) and 12(b)(6) is denied, and defendants’ motion top dismiss
for forum non conveniens is denied. This Court sua sponte orders this case transferred
to the USDC for the Northern District of California pursuant to 28 USC §1404(a).

Status hearing date of 9/25/02 is stricken.

aly a [For further detail see order attached to the original minute order]

No notices required, advised in open court.

No notices required.

number of notices

Notices mailed by judge’s staff. SEP 1 3 2002
Notified counsel by telephone

date docketed
‘A | Docketing to mail notices. bb \
Mail AQ 450 form. docketing deputy | ls
\ pot eg
Copy to judge/magistrate judge. \
date mailed notice
courtroom
Gps deputy's
initials —4
Date/time received in
central Clerk's Office _ railing deputy ils



and jurisdiction, should plaintiff want to hold defendant liable [or the acts of independent entities
that allegedly handle airport security and passport control in Lagos, Nigeria. Considering that the
gravamen of plaintiff's complaint involves acts that occurred while embarking and disembarking
and during her flight, the court does not find defendant’s argumerit persuasive.

Moreover, while the attendant costs of transporting witnesses and documents are indeed
significant, in the absence of evidence to the contrary, the court concludes that defendant airline
is better equipped to confront that challenge than plaintiff. Further, this court affords significant
weight to plaintiff's choice of the United States as a forum, corsidering that she resides in
California, rather than Nigeria.

Because defendant has {ailed to demonstrate both that Nigeria is available and adequate
as an alternative forum, and that the private and public factors favor Nigeria, defendant’s motion
to dismiss on grounds of forum non conveniens is denied.

1404(a) Transfer of Venue to the Northern District of California

28 U.S.C. § 1404(a) provides in relevant part: "for the convenience of parties and
witnesses, in the interest of justice, a district court may transfer ary civil action to any other
district or division where it might have been brought." Pursuarit to Section 1404(a), a court may
transfer a civil action to another district when: (1) venue is proper in both the transferor and
transferee courts; (2) transfer is for the convenience of the parties and witnesses; and (3) transfer

is in the interest of justice. Symons Corp. v. Southern Forming and Supply, Inc., 954 F.Supp.

184, 186 (N.D.II1.1997). For the reasons that follow, the court transfers the instant action to the

Northern District of California.

11



that the parties will not be deprived of all remedies or treated unfairly. Id. ISLIntem., Inc. y.

Borden Ladner Gervais, LLP, 2001 WL 1382572, *3 (N.D.IIL.,2001).

In the instant case, defendant has merely asserted that “Nigeria is a republic and the most
populous country on the African continent. Nigeria has an elected government based on English
common law including executive, legislative and judicial branches.” These allegations, standing
alone, are insufficient to convince this court that Nigeria is either available or adequate as an
alternative forum.

Moreover, defendant has not met its burden of demonstrating that the balance of private
and public interests favors dismissal, either. Private interest factcrs considered in ruling ona
foruin non conveniens motion include: (1) ease of access to sources of proof; (2) the availability
of compulsory process for hostile witnesses and the cost of obtaining the attendance of willing
witnesses; (3) the possibility of viewing the premises, if appropriate; and (4) all other practical
problems that make trial of the case easy, efficient, and econoniical. Kamel, 108 F.3d at 803.
The pertinent public interest factors are: (1) the court's own docket congestion; (2) the preference
for having a forum apply law with which it is familiar; (3) the local interest in resolving the
controversy; and (4) the unfaimess of burdening citizens in an unvelated forum with jury duty.

Piper, 454 U.S. at 241 n. 6, 102 S.Ct. at 258 n. 6; Kamel, 108 F'.3:d at 803. A district court has

“substantial flexibility" in considering the relative importance of these factors. Wilson v.
Humphreys (Cayman) Ltd,, 916 F.2d 1239, 1245 (7th Cir. 1990).

Again, defendant has provided scant evidence to demonstrate that the public and private
factors outlined above merit a dismissal on grounds of forum non conveniens. At most,

defendant has asserted that it will be unable to initiate a third-parly action and to obtain process

10



exception, supra note 3, would suffice. The court notes at the outset that plaintiff alleges, as a
part of her injury, that defendant denied her a wheelchair to disembark the plane upon her arrival
in San Francisco. This most certainly qualifies as commercial uctivity within the United States
under the FSIA, regardless of plaintiff's theory of recovery.

To prevail on a claim under the Convention, a plaintiff must prove that: (1) there has been
an “accident,” from which (2) the plaintiff suffered an “injury,” and that (3) the accident “took
place on board the aircraft or in the course of any of the operations of embarking or
disembarking.” See Eastern Airlines, Inc. v. Floyd, 499 U.S. 530, 535-536, 111 S.Ct. 1489, 1494
(1991). An “accident,” as used in the Convention, refers to any “unexpected or unusual event or
happening that is external to the passenger.” Air France v. Saks, 470 U.S. 392, 405, 105 S.Ct.
1338, 1345 (1985). This definition is to be flexibly applied after an assessment of all of the
circumstances surrounding the plaintiff's injury. Id.

To determine the extent to which the treatment plaintifi received onboard her flight was
unusual or unexpected, and hence constitutes an “accident” under the Convention, this court
would look to the contract between the parties and the duties arising therefrom. See, e.g., Husain
y. Olympic Airways, 116 F.Supp.2d 1121, 1132 (N.D.Cal. 2000) (explaining that the court heard
“extensive testimony on the standard of care for flight attendants”' in order to determine whether
flight attendant’s refusal to move passenger away from the smoking section constituted an
“accident”). Consequently, the court finds that there is an “identifiable nexus” between
defendant’s sale of plaintiff's plane ticket in Chicago and plaintiffs claims of mistreatment, such
that plaintiff's claim under the Warsaw Convention is based upon defendant’s commercial

activity in the United States.



Francisco; (b) failure to provide food and beverages to plaintif’ throughout the duration of her
flight; (c) failure to allow plaintiff to travel with her companion, ius Nwoye, on January 7,
2002, the original date on her plane ticket; and (d) failure to provide an interpreter for plaintiff.
DISCUSSION
Subject Matter Jurisdiction
The parties do not dispute that defendant is properly characterized as a “foreign state”
under 28 U.S.C. § 1603(b)(2) because the Republic of France las a majority ownership interest

in defendant. See also Santos v. Compagnie Nationale Air France, 934 F.2d 890, 891 (7"" Cir.

1991). Consequently, to determine whether subject matter jurisdiction exists over the instant
dispute, the court must look to the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1330,
1602 et. seq., which provides “the sole basis for obtaining jurisdiction over a foreign state in

United States courts.” Argentine Republic vy. Amerada Hess Shipping Corp., 488 U.S. 428, 443,

109 S.Ct. 683, 693 (1989); 28 U.S.C. §§ 1330, 1604.

Despite defendant’s argument to the contrary, plaintiff's citizenship is immaterial to this
court’s analysis of subject matter jurisdiction under the FSIA. If an action satisfies the
substantive standards of the Act, it may be brought in federal cou:t regardless of the citizenship

of the plaintiff. Verlinden B.V. v. Central Bank of Nigeria, 46! U.S. 480, 490-491, 103 S.Ct.

1962, 1971 (1993).

?Plaintiff’s initial complaint also stated a claim for falsc: imprisonment related to
defendant’s refusal to allow her to board her flight from Lagos, Nigeria, to San Francisco,
California, on January 7, 2002. It appears from subsequent pleadings and the third amended
complaint, however, that plaintiff has abandoned this claim.

3



defendant’s financial burden of securing its witnesses’ attendance in California rather than
Illinois is indeed minimal.

In addition to the private interest factors, the court must zlso consider certain public
interest factors that may warrant transfer: 1) the relationship of the community to the issue of the
litigation and the desirability of resolving controversies in their locale; 2) the court’s familiarity
with applicable law; and 3) the congestion of the respective cour, dockets and the prospects for
an earlier trial. See Hughes v. Cargill, Inc., 1994 WL 142994 at *2 (N.D. Ill. April 14, 1994).

The first factor favors transfer. Although many of the alleged acts by defendant occurred
on board the flight from Nigeria to San Francisco, California, plaintiff has alleged the denial of a
wheelchair when disembarking in California. Plaintiff has not alleged that any of her injuries
arose in Illinois, however.

The second factor, the court’s familiarity with applicable law, is neutral. Assuming that
the Warsaw Convention governs the instant dispute, its provisions will preempt state common
law. This court and the Northem District of California are equally familiar with its requirements.

The final factor, the speed at which the trial will progress, is neutral. The median time
interval between the filing of a civil case and trial in the Northern District of Illinois is 25.5
months, compared with 25 months in the Northern District of California. This .5 month
difference is negligible and neither favors nor disfavors transfer.

Consideration of the foregoing public and private interests convinces this court that, in
the interest of justice and for the convenience of parties and wi:nesses, a transfer of venue to the

Northern District of California pursuant to 28 U.S.C. §1404(a) is proper.

14



BACKGROUND!

Plaintiff is a seventy-two year old native of Ni geria and a permanent resident of the
United States, currently residing in California. Air France is a foreign corporation with its
principal place of business in Paris, France, with a majority of its ownership interest owned by
the Republic of France.

On December 16, 2002, Gregory Chukwu purchased a one-way ticket on plaintiff's
behalf from defendant’s agent in Chicago, Illinois, for air travel ketween Lagos, Nigeria, and San
Francisco, California. In purchasing plaintiff's ticket, Gregory Chukwu explained to defendant’s
ticket agent that plaintiff could not speak English or French, ad that she needed to depart
Nigeria on January 7, 2002, so that she could be accompanied by Pius Nwoye.

Plaintiff's ticket was issued for January 7, 2002; however, she was denied a boarding pass
for failure to provide proper travel documentation. She returnzd to Lagos Airport on January 8,
2002, with proper documentation, accompanied by a family member, who explained to
defendant’s employees that plaintiff could not speak English or French and needed assistance.
Plaintiff's family member also informed defendant’s employees that plaintiff was ill and needed
a wheelchair. Plaintiff ultimately was permitted to board her flight on January 8, 2002.

In her third amended complaint, plaintiff seeks damages for “injuries to her mind and
body” caused by the following alleged acts of defendant: (a) fa lure to provide a wheelchair to

plaintiff and forcing her to walk “to and/or from” the boarding gates in Lagos, Paris and San

‘For the purposes of distilling the factual background of the instant dispute, as well as the
relief sought by plaintiff, this court will consider plaintiff's third amended complaint, as well as
allegations made in subsequent pleadings. To the extent that p eadings prior to the third
amended complaint included causes of action different from those: alleged in the most recent
complaint, this court assumes that those claims have been abandoned by plaintiff.

2



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

EASTERN DIVISION i
MONICA O. CHUKWU, )
)
Plaintiff, )

) Ne. 02 C2190
Vv. )

) Judge Robert W. Gettleman

AIR FRANCE, a foreign corporation and )
UNKNOWN EMPLOYEES OF AIR FRANCE, __ )
)
Defendants. )

MEMORANDUM OPINION AND ORDER

Plaintiff Monica Chukwu filed this suit for monetary relief against defendant Societe Air
France (“Air France”), alleging mistreatment by Air France employees during a recent flight
between Lagos, Nigeria, and San Francisco, California. Defendant has filed a motion pursuant to
Fed. R. Civ. P. 12(b)(1) and 12(b)(6) to dismiss plaintiff's third amended complaint for lack of
subject matter jurisdiction and failure to state a claim, or in the alternative, to dismiss the instant
action under the doctrine of forum non conveniens. For the reasons discussed below, the court
denies defendant’s motions to dismiss and exercises its authority under 28 U.S.C. §1404(a) to
transfer this case to the Northern District of California for the convenience of witnesses and in

the interests of justice.



With regard to the first factor, the court notes that venue is proper in the Northern District
of Iinois. 28 U.S.C. § 1391 (f) provides that a civil action agi.inst a foreign state, as defined

under 28 U.S.C. § 1603 (a), may be brought:

(1) in any judicial district in which a substantial part of the events or omissions giving
rise to the claim occurred, or a substantial part of prope ty that is the subject of the action
is situated; (2) in any judicial district in which the vesse| or cargo of a foreign state is
situated, if the claim is asserted under § 1605 (b) of this tile; (3) in any judicial district in
which the agency or instrumentality is licensed to do business or is doing business, if the
action is brought against an agency or instrumentality of a foreign state as defined in
section 1603(b) of this title; or (4) in the United States istrict Court for the District of
Columbia if the action is brought against a foreign state or political subdivision thereof.
Defendant does not dispute that venue is proper in this district under 28 U.S.C. § 1391 (£)(3)
because it is doing business in Chicago. Further, because plaintifi’s flight was destined for San
Francisco, and at least part of plaintiff's claims derive from defendant’s activity in San Francisco,
this court finds that venue is proper under § 1391 (f)(3) in the Northem District of California, as
well. Therefore, the court has the power to transfer the case if to do so is in the interest of justice
and for the convenience of parties and witnesses.

In evaluating the convenience and fairness of a transfer, the court considers relevant
private and public interests. The private interests include: 1) plaintiff’s initial choice of forum; 2)
the situs of material events; 3) ease of access to sources of proc f; 4) the availability of
compulsory process for the attendance of unwilling witnesses and the cost of obtaining the
attendance of the witnesses; and 5) the convenience to the parties. specifically their respective

residences and their ability to bear the expense of litigation in a particular forum. Georgouses v.

NaTec Resources, Inc., 963 F. Supp. 728, 730 (N.D. Ill. 1997).

12



CONCLUSION
For the foregoing reasons, defendant’s motion to dismiss for lack of subject matter
jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and
12(b)(6) is denied, and defendant’s motion to dismiss for forum non conveniens is also denied.
The court exercises its authorily, sua sponte, to transfer venue to the Northern District of

California pursuant to 28 U.S.C. §1404(a).

ENTER: September 11, 2002

1a Go

Robert W. Gettleman
United States District Judge

15