=4-

Riverdale Auto Parts, Inc., 713 F. Supp. 1125, 1128 (N.D. Til.

1989).
The Chisolm defendants’ motion to dismiss or transfer pursuant

to Section 1406(a) is denied.

II. Transfer Under 28 U.S.C. § 1404 (a)

The defendants also argue that we should transfer this case to
the Southern District of Florida for the convenience of the parties
and witnesses. Section 1404(a) states that “(fJor the convenience
of the 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).
The plaintiff does not argue that jurisdiction is lacking or venue
is improper in the Southern District of Florida.

It may be appropriate to transfer a case under section 1404 (a)
despite the fact that the defendants consented to jurisdiction in

this court. See Riverdale Auto Parts, Inc., 713 F. Supp. 1125, 1128

(N.D. Tll. 1989). This is so because while a party may waive its

right to assert his own inconvenience as a reason to
transfer a case, {the] district courts still must
consider whether the ‘interest[s] of justice’ or the
‘convenience of ... witnesses’ require transferring a
case.

Heller Fin. Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293

(7° Cir. 1989) (citing cases). The moving party bears the burden

of establishing that transfer is justified. A.P.T., Inc. v. Quad



~9-
evaluated Town & Country’s request for inventory in Chicago; and
that the defendants were required under the Guarantee to remit
payment to Florsheim in Chicago. Neither party introduces evidence
as to where the Guarantee was negotiated or executed.

Illinois’ contacts with the subject matter of the dispute are
not overwhelming, but are significant. Moreover, Illinois has as
strong an interest as Florida in resolving a dispute involving its

residents. See Truserve Corp. v. Neff, 6 F. Supp.2d 790, 794 (N.D.

Ill. 1998) (noting that Pennsylvania court had a strong interest in
hearing a claim involving its residents).

We conclude that transfer is inappropriate here. The parties
consented to the jurisdiction of this court, and Florsheim’s choice
of forum is certainly entitled to some weight. See Midwhey Powder

Co., 883 F.2d at 1294. The defendants’ argument that it is

inconvenient or unfair to try the case in this district fails
because transfer would only shift any inconvenience and unfairness
to the plaintiff. We will, however, condition our ruling on the
requirement that Florsheim make available for trial in Illinois its
Florida employees that defendants can demonstrate they genuinely

need as live witnesses.


~6-
witnesses.2/ See Midwhey Powder, Co., 883 F.2d at 1293 (stating that
the district court was not required to transfer a case where the
inconvenience to defendant’s witnesses would simply be transferred
to plaintiff’s witnesses). The defendants have not established that
it would be significantly more convenient for the defendants to
litigate in Illinois than it would be for Florsheim to litigate in
Florida. See Central States, 1998 WL 684216 at *3 (refusing to
transfer where the defendant had six witnesses compared to
plaintiff’s four).

We find that neither the convenience of the parties nor the
witnesses justifies transferring the case to the Southern District

of Florida. Id.

B. Interests of Justice

“The ‘interests of justice’ include such concerns as ensuring
speedy trials, trying related litigation together, and having a
judge who is familiar with the applicable law try the case.”
Midwhey Powder Co., 883 F.2d at 1293. The parties do not argue that
there are any other cases related to this dispute either in

Illinois or Florida.

2/The Chisolms point out that the plaintiff failed to specify what testimony its
three witnesses were expected to give. It is true that the plaintiff only
describes the witnesses’ position in the company and states that these witnesses
have knowledge of the facts at issue in this case. Nevertheless, it is
appropriate to assume the plaintiff will call some witnesses, and the three it
has identified reside in Illinois. We do not believe, and the Chisolms do not
argue, that we should ignore the plaintiff’s witnesses because of the
deficiencies in the plaintiff's presentation.


“5+

Envtl. Tech. Corp., Inc. , 698 F. Supp. 718, 722 (N.D. Ill. 1998).

A. Convenience

The Chisolms argue that the plaintiff can better afford to
litigate in Florida than they can in Illinois. However, by signing
the Guarantee, the Chisolms waived the right to assert their own
inconvenience as a reason to transfer the case. See Midwhey Powder

Co., 883 F.2d at 1293. In any event, they failed to present any

evidence to support this argument.

The Chisolms also argue that the Southern District of Florida
is more convenient for their nine non-party witnesses, all of whom
reside in Florida. However, the expected testimony of the Chisolms’
witnesses appears likely to be cumulative. For example, at least
three witnesses will testify about “payments made”; six will
testify about “merchandise that was returned”; three will testify
as to “credit that was and was not received for damaged
merchandise.” See Affidavit of Alfred Chisolm. Based on our review
of the witnesses’ expected testimony, it appears that only three or
maybe four of the Chisolms’ nine identified witnesses would offer

non-cumulative testimony. See Central States v. Kurtz Gravel Co.,

No. 98 C 2174, 1998 WL 684216 at *2 (N.D. Ill. Sept. 18, 1998)
(cutting defendant’s witness list in half because the testimony
would be cumulative). The convenience gained for the Chisolms’

witnesses would be gained at the expense of Florsheim’s three


~8-
and would not be amenable to process in Florida. The interests of
justice would not be advanced simply by shifting the defendants’
problem onto the plaintiff.

As to the present employees of Florsheim, we may order
Florsheim to make its Florida employees available to testify at
trial here in Chicago. See A.P.T., Inc., 698 F. Supp. at 724 (N.D.
Ill. 1998) (conditioning transfer on defendant making its Illinois
employees available for trial in California where plaintiff needed
those employees as witnesses). This accommodates the defendants’
concerns while preserving the plaintiff’s choice of forum.

Next, the Chisolms argue Florida has an interest in resolving
this dispute because the contacts and communications between the
parties occurred principally in Florida. Alfred Chisolm states in
an affidavit that “[t]o the limited extent I individually had
dealings with Plaintiff, all of the dealings took place in Miami-
Dade County, Florida.” Maria Chisolm’s affidavit is identical and
further states that “[w]lhen there were sales meetings with
Plaintiff or other contacts regarding the stores, the meetings and
contacts occurred in Miami.” Although it is clear that some of the
contacts occurred in Florida, the Chisolms’ affidavits are vague as
to how extensive those contacts were. The plaintiff produces the
affidavit of Larry Solomon, who states that Town & Country sent
payments to Florsheim in Chicago; that Florsheim maintained and

managed Town & Country’s credit records in Chicago; that Florsheim


Minute Order For (06/97)

United States District Court, Northern District of [linois

Name of Assigned Judge Sitting Judge if Other
or Magistrate Judge John F. Grady than Assigned Judge
CASE NUMBER 01 C 3334 DATE October 18, 2001
CASE Florsheim Group, Inc. v. Vila, et al.
TITLE
{In the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the

MOTION nature of the motion being presented.)

N :

DOCKET ENTRY:

(1) 0 Filed motion of [ use listing in “Motion” box above.]

(2) a Brief in support of motion due

(3) a Answer brief to motion due. . Reply to answer brief due.

(4) a Ruling/Hearing on set for at

(5) a Status hearing[held/continued to] [set for/re-set for] on set for at

(6) ia) Pretrial conference{held/continued to] [set for/re-set for] on set for at

(7) o Trial[set for/re-set for] on at

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

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

C FRCP4(m) = General Rule 21 OO -PRCP4i(a)(1) OO FRCP41(a)(2).

(10) it [Other docketentry] Defendants’ motion to dismiss [7-1] is denied. The
motion to change venue and transfer the case [7-2] is also denied, on
the condition notede ~ ENTER MEMORANDUM OPINION.

(11) x [For further detail see order (on reverse side of/attached to) the original minute order.}

No notices required, advised in open court. Document
No notices required Number
number of notices

X_ | Notices mailed by judge's staff. 74

OCT i 9 ano
Notified counset by telephone. date docketet
Docketing to mail notices. meng
Mail AO 430 form we LES Bis docks deputy ial
Copy to 1071801
dae mailed notice
courtroom
KAM deputy’s KAM
initals Date/time received in
central Clerk's Office mailing deputy invits



-10-

CONCLUSION
The motion to dismiss is denied. The motion to change venue

and transfer the case is also denied, on the condition noted above.

Date: October 18, 2001

ENTER:

John Ff Grady, United States “OT Judge


-7-

The Chisolms argue that the interests of justice will be
served by transferring this case because their witnesses are beyond
the reach of process of this court. In other words, they will not
be able to present their case or receive a fair trial in Illinois.#
The Chisolms identify two groups of witnesses: seven former
employees of Town & Country4/ and two current employees of the
plaintiff. As to the former employees of Town & Country, only two
or three would offer non-cumulative testimony. See infra II.A. The
Chisolms have neither argued nor offered any reason to believe that
these witnesses would refuse to appear voluntarily. See Central

States, 1998 WL 684216 at *2 (noting that the defendant did not

allege out-of-state witnesses would be unwilling to testify); cf.
Riverdale Auto Parts, Inc., 713 F. Supp. at 1130 (observing that
the employees of a third party might be unwilling to testify
voluntarily in the matter due to the potential liability of their
employer). Moreover, the plaintiff has also identified as witnesses

two former officers of Florsheim, both of whom reside in Illinois

3/the defendants also argue that transfer is appropriate because access to proof
will be easier in Florida than in Illinois. The Chisolms do not identify any
documentary evidence in Florida; instead, they focus exclusively: on their
witnesses in Florida. The plaintiff, by contrast, produces evidence that all
payments, and records of payment and credit extended to Town & Country are
located in Illinois. At least as far as documentary evidence is concerned, access
to proof is easier in Illinois. We concede, however, that in this era of easy
duplication of documents, the location of original documents would rarely be a
major factor in determination of relative convenience.

“it is not altogether clear whether Town & Country continues to operate. The

affidavits clearly describe some witnesses as former employees (i.e. “was
President”), but others are described simply by their title (i.e “General
Manager”). For purposes of deciding this motion, we will assume these individuals

are former employees.


-3-
defendants move for a change of venue and to transfer this case to
the United States District Court for the Southern District of

Florida.

ANALYSIS

I. Dismissal or Transfer Under 28 U.S.C. § 1406(a)

The Chisolms argue that venue is improper, and dismissal or
transfer should be granted under 28 U.S.C. § 1406(a). We disagree.
Section 1406(a) provides:

The district court of a district in which is filed a case

laying venue in the wrong division or district shall

dismiss, or if it be in the interest of justice, transfer

such case to any district or division in which it could

have been brought.

The Chisolms signed a consent “to jurisdiction in the courts of the
State of Illinois.”/ The federal district court located in Chicago,

Illinois and sitting in diversity is an Illinois court. See Lind-

Waldock & Co. v. Klaila, No. 87 C 5680, 1998 WL 23798 at *1-2 (N.D.

Ill. March 4, 1988) (refusing to dismiss for improper venue where
the defendants consented to personal jurisdiction “in the courts of
the State of Illinois”). A consent to jurisdiction operates as a
consent to venue, as well, and precludes a motion to transfer for

improper venue under 28 U.S.C. § 1406(a). Heller Fin., Inc. v.

v Subject matter jurisdiction is a restriction on federal power that cannot be
waived. By contrast, personal jurisdiction is "a legal right protecting the
individual," which the defendant can waive. Insurance Corp, of Ireland, Ltd. v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 703-04 (1982) (noting that
“parties to a contract can agree in advance to submit to the jurisdiction of a

given court”).



~2-
and related items from Florsheim on credit and on an ongoing basis.
To induce Florsheim to agree to this arrangement, the defendants
executed an “Unlimited Guarantee,” agreeing to pay any amounts due
and owing from Town & Country, and agreeing to pay expenses
incurred by Forsheim in collecting Town & Country’s debt. The
Guarantee also provides that it “shall be interpreted under the
laws of the State of Illinois, and the undersigned Guarantors
consent to the jurisdiction of the courts of the State of Illinois
in any action brought to enforce this Guarantee.” The defendants
executed the Guarantee in February of 1992.

For eight years, Florsheim provided merchandise to Town &
Country on credit. However, in July of 2000, Town & Country filed
a Chapter 11 bankruptcy petition. At that time, Town & Country
owed Florsheim $157,760.01 for merchandise Town & Country accepted
between February 27, 1998 and August 9, 2000. In April of 2001,
Florsheim sent demand letters to each defendant, requesting payment
in the amount of $157,760.01 pursuant to the Guarantee. When the
defendants did not make payment, plaintiff filed this lawsuit
alleging breach of guarantee against all four defendants.

Defendants Maria Andreu Vila and Jose Vila failed to answer
the complaint, and on July 7, 2001 this court entered a default
judgment against them in the amount of $157,760.01. Defendants
Alfred and Maria Chisolm filed this motion to dismiss the complaint

on the ground that venue is improper. In the alternative, the


01-3334.011-MEV October 18, 2001

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

FLORSHEIM GROUP, INC. f/k/a
FLORSHEIM SHOE COMPANY,

Plaintiff,
v. No. 01 C 3334
ROSA ANDREU VILA, JOSE R. VILA,

ALFRED CHISOLM, and MARIA
CHISOLM,

Defendants.

MEMORANDUM OPINION

Before the court is the motion of defendants Alfred and Maria
Chisolm to dismiss or alternatively, for change of venue and
transfer of action. For the reasons state below, the motion is
denied.

BACKGROUND

The following facts were drawn from the plaintiff’s complaint,
and are taken as true for purposes of deciding this motion. The
plaintiff, Florsheim Group, Inc. (“Florsheim”), is a Delaware
corporation with its principal place of business in Illinois. The
defendants, Rosa Vila, Jose Vila, Alfred Chisolm, and Maria
Chisolm, were officers and shareholders of Andreu Chisolm & Sons,
Inc., a Florida corporation doing business in Florida as “Town &

Country Shoes.” In 1992, Town & Country sought to purchase shoes

1"