after nearly four decades) that the case dealt with
diversity jurisprudence and hence with Erie v. Tompkins
principles. But even though this Court is always happy to
be educated, in this instance Advanced's counsel are dead
wrong in discounting the applicability of Van Dusen on that
ground. Here is what the very case cited by Advanced,
Eckstein v. Balcor Film Investors, 8 F.3d 1121, 1127 (7
Cir. 1993), said on the issue:
When the law of the United States is
geographically non-uniform, a transferee court
should use the rule of the transferee forum in
order to implement the central conclusion of Van
Dusen and Ferens: that a transfer under § 1404 (a)
accomplishes “but a change of courtrooms.” Van
Dusen, 376 U.S. at 639, 84 S.Ct. at 821
Under that approach, a Texas District Court would have to
explore Seventh Circuit jurisprudence to see whether it differed
from that in the Fifth Circuit and, if so, would then have to
follow the Seventh Circuit's decision law (just as Van Dusen and
Eckstein teach). This Court will confront no such extra hurdle
if the case is retained here.
In summary, the comparative analysis required for Section

1404(a) purposes calls for the retention rather than transfer of

this action. Advanced's motion is denied in its entirety.

Milton I. Shadur
Senior United States District Judge

December 27, 2002


Finally, it is conventional wisdom that the “interest of

justice” criterion -- the third element specified in Section
1404(a) -- embodies the congeries of factors that Gulf Oil Corp.

v. Gilbert, 330 U.S.501, 508-09 (1947) looked to in the forum
non-conveniens context. It is not necessary to tick off all of
those factors’, but two of them are worthy of comment:

1. Each side emphasizes the documents that are
located at its home base, a consideration that is sometimes
viewed as a component of what Gulf Oil terms as the
“relative ease of access to sources of proof.” But in these
more modern days of photocopying, faxing and other
electronic means of retrieval, that factor is a nonstarter
(except perhaps in an especially document-rich case, where
cost of reproduction may bulk large).

2. Advanced's Supp. Br. 5 quarrels with this Court's
citation of Van Dusen v. Barrack, 376 U.S. 612 (1964) for
the proposition that the law of this transferor court would
remain applicable in the event of a Section 1404 (a)
transfer. This Court was of course well aware when it cited
Van Dusen (one of the few opinions written by its former

partner Justice Arthur Goldberg that remains alive and well

2 Neither litigant has attempted to do so, and this Court
is disinclined to do their work for them. More importantly, even
a brief review of those criteria indicates that most of them do
not (either individually or collectively) come down especially
hard on one or the other of the balance scales.

-3-


co Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge 7] e Sitting Judge if Other

aor Magistrate Judge Milton 1. Shadur than Assigned Judge

CASE NUMBER 02 C 8065 DATE 12/27/2002
CASE Undertow Software vs. Advanced Tracking
TITLE

[Un the following box (a) indicate the parly filing the motion, e.g., plaintiff, defendant, 3rd party plaintitY, and (b) state briefly the nature

of the motion being presented.|

MOTION:

DOCKET ENTRY:

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

Q@ oa Brief in support of motion due

(3) Oo Answer brief to motion due__. Reply to answer brief due_

(4) Oo Ruling/Hearingon_ set for at

(5) a Status hearing held and continued to 3/5/03 at 8:45 A.M..

(6) oOo Pretrial conference[held/continued to] (set for/re-set for]on set for att

(7) QO Trial[set for/re-set for]on____at

() a [Bench/Jury trial] [Hearing] held/continued to____ at.

(9) oO This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

COPRCP4(m) CLocal Rule 41.1 CG FRCP41(a\(1) O FRCPA1(a)(2)

ao) lf [Other docket entry] | Enter Memorandum Opinion and Order. In summary, the comparative
analysis required for Section 1404(a) purposes calls for the retention rather that transfer of this action.
Advanced’s motion is denied in its entirety. (3-1, 3-2)

(1) @ [For further detail see order attached to the original minute order.]

No notices required, advised in open court

No notices required. ,
under of nvices

Document
Number

VY | Notices mailed by judge’s staff

Notified counsel by telephone.

Docketing to mail notices. ad

Mail AO 450 form.

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IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

UNDERTOW SOFTWARE, INC.
Case No. 02 C 8065
Plaintiff,

)
}
v. } Judge Shadur DOCKETER
)
)
)
)

ADVANCED TRACKING TECHNOLOGIES, D
INC. and PAUL M. GLASS EC 3 6 2002

Defendants

MEMORANDUM OPINION AND ORDER

Advanced Tracking Technologies, Inc. (“Advanced”) has moved
alternatively for the dismissal of this action under Fed. R. Civ.
P. (“Rule”) 12(b) (1) and 12(b) (3) or for a 28 U.S.C. §

1404 (a) (“Section 1404(a)”) transfer to a District Court in
Texas.' Both Advanced and Undertow Software, Inc. (“Undertow”)
have submitted further filings in response to this Court's
December 12, 2002 memorandum order, so that the issues are ripe
for decision.

To begin with, Advanced's Supp. Br. 3-4 essentially concedes
the dismissal issue in light of the company's maintenance of
interactive websites accessible in Illinois and its sales of
relevant products to Illinois customers. This Court (like

Advanced) will therefore focus on the Section 1404(a) motion.

2 Although co-defendant Paul Glass joined in Advanced's

motion, this memorandum opinion and order will ignore his
participation in light of the automatic stay ascribable to Glass'
bankruptcy filing.


In that respect, the first listed statutory criterion
(“convenience of parties”) points strongly in Undertow's
direction. In addition to the normal preference that is given to
a plaintiff's choice of forum (although not as weighty a factor
as in forum non-conveniens cases), Undertow has identified a
dramatic difference in the size of the employment complement of
the two corporations: It essentially has a single active
employee (its President Steven Peskaitis (“Peskaitis”)), whose
required absence from Illinois during any litigation proceedings
carried on in Texas would essentially paralyze its operation,
while no such disability will attend Advanced's defense of this
action in this District Court.

As for “convenience ... of witnesses,” which is often the
most important single factor in the Section 1404(a) balancing
process, it too favors Undertow by a wide margin. In that
respect the caselaw looks primarily at witnesses whom the
litigants do not control directly, as they do their own corporate
officers and employees. Alhough Advanced has identified four
Texas-based witnesses, not one of them is in the independent
witness category -- Advanced can readily deliver all of them for
deposition or for trial. By contrast, all five material
witnesses identified by Undertow (apart from Peskaitis himself)
are Illinois residents who are former Undertow employees and are

therefore not currently controlled by it.