abilities to bear the expense of a trial in a particular forum, and the relative ease of access to
evidence and witnesses in each forum. Moore v. At’ & T Latin Am. Corp., 177 F. Supp. 2d 785,
789 (N.D. Til. 2001).

A plaintiff's choice of forum is entitled to substantial weight, cspecially if it is the
plaintiff's home forum. Institute for Human Potential, Inc. v, Dr, John T. McDonald Found.,
Inc., No. 00 C 6272, 2001 WL 709458, at *2 (N.D. IIL. June 25, 2001), Here, plaintiff chose to
file this action in Illinois, its home forum. In addition, at least some of the events material to this
action occurred in Illinois, including mectings between Jones, Cosmetique, and Brylane, and
payment of the commission to Jones. The residence of the parties favors neither side, since
plaintiff is located in Illinois, and defendants are located in Connecticut. The parties have
offered no evidence of their relative abilities to bear the expense of a trial here or in the District
of Connecticut.2

On the other hand, the relative ease of access to evidence and witnesses in Connecticut
weighs heavily in favor of transfer. Defendants name seven non-party witnesses (mostly Brylane
employees), who are New Yorkers subject to the subpoena power of the District of Connecticut,
but not subject to the subpoena power of this court. One of these seven — Milton Pappas — is
undisputedly a key witness, Plaintiff names only one non-party witness who would be subject to
the subpoena power of this court, but not the subpoena power of the District of Connecticut:
former Cosmetique executive Tony Abate. Plaintiff acknowledges, however, thal Abate is

obligated to cooperate with plaintiff pursuant to a severance agreement, and does not assert that

? Jones states in an affidavit that he and RHJA “would be severely burdened by litigation
in Illinois,” because “RHJA is a much smaller concern than Cosmetique, a multimillion dollar
corporation.” Defendants have supplied no evidence in support of this conclusory statement.

4


ORDERED: Defendants’ motion to transfer venue [5-1] is granted.

ENTER:
George W. ffindberg OU

Senior U.S. District Judge

JUN 3 0 2004

DATED:



alleging breach of contract, promissory estoppel, quantum meruit, unjust enrichment, interfcrence
with prospective advantage, and a violation of the Connecticut Unfair Trade Practices Act. Jones
and RHJA seek a judgment in the amount of at least ten percent of the nct sales revenues under
the Cosmetique-Brylane agreement (less the $28,310.45 already paid to them), and a declaratory
judgment that they are entitled to ten percent of future net sales revenues.

On May 3, 2004, Jones and RHJA removed the case pending in the Circuit Court of Lake
County to this court. They now move to transfer this action to the United States District Court
for the District of Connecticut.

A district court may transfer a civil action to any other district where the case otherwise
might have been brought, “(flor the convenience of parties and witnesses, in the interest of
justice.” 28 U.S.C. § 1404(a). The movant bears the burden of establishing that the transferee

forum is clearly more convenient. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-20 (7"

Cir. 1986).

Here, neither party disputes that venue is proper in the Northern District of [llinois. In
addition, venue is proper in the District of Connecticut, since defendants reside there. See 28
U.S.C. 1391(a), For the same reason, jurisdiction over defendants is proper in the District of
Connecticut.' Accordingly, plaintiff could have brought this case in the District of Connecticut,

The court turns to the question of the convenience of the parties and witnesses, In
evaluating the convenience of the parties and witnesses, the court considers plaintiff's choice of

forum, the location of the material events, the residence of the parties, the parties’ relative

* The parties discuss in their briefs whether there is personal jurisdiction over plaintiff in
the District of Connecticut. However, that discussion is irrelevant to the issue of whether
plaintiff could have brought this action in the District of Connecticut.

3


Abate has indicated that he would refuse to appear in Connecticut voluntarily. Thus, it is
possible that no subpoena would be necessary to secure Abate’s live testimony, even in
Connecticut, Moreover, many relevant documents are in the possession of Brylane in New York,
and thus would be more conveniently accessed from Connecticut than Illinois.

In addition, the interests of justice support transfer. In determining the interests of justice,
the court should consider the feasibility of consolidation with related litigation, the speed at
which the case will proceed to trial, and the court’s familiarity with the applicable state law. See
Coffey, 796 1'.2d at 221.

The central claim in Cosmetique’s action here seeks a declaratory judgment that it is not
liable to pay commissions to Jones and RHJA? it is a mirror image of Jones’s and RHJA’s action
in the District of Connecticut secking damages for breach of contract relating to Cosmetique’s
failure to pay Jones and RHJA commissions. When mirror-image actions are filed, the general
tule favors the forum of the first-filed suit. See Schwarz v. National Van Lines, Inc., No. 03 C
7096, 2004 WL 432483, at *2 (N.D. Ill. Feb. 24, 2004). The Seventh Circuit has never rigidly
applied this “first to file” rule, however, and it disfavors applying the rule where, like here, a

declaratory judgment action is filed in anticipation of litigation by the other party. See NUCOR
Corp. v. Aceros Y Maquilas de Occidente, S.A. de C.V., 28 F.3d 572, 577 (7 Cir. 1994);
Tempco Elec. Heater Corp, v. Omega Eng’g. Inc., 819 F.2d 746, 749-50 (7" Cir. 1987). This

factor supports transfer of (his case to the District of Connecticut for consolidation with the case

pending there.

> Cosmetique’s claim for a monetary judgment against Jones in the amount of the
commission paid to him was added two months after the declaratory judgment action was filed,
and days before the action was removed to this court.

3


ee

‘ *
Minate Order Sorm (06/97)

D8

United States District Court, Northern District of Dlinois

Ni Assi Jui F i r Sitting Judge if Othe
noe Magistrate Judge George W. Lindberg than Asigned ulge
CASE NUMBER 04 C 3139 DATE 6/30/2004
CASE Cosmetique vs, Robert Haydon Jones & Associates
TITLE

—_
{ln the following box (x) indicate the party filing the motion, c.g., plaintiff, defendant, 3rd party plaintif¥, and (b) state briefly the nature
of the motion being presented.]

MOTION:

DOCKET ENTRY:

qd) g Filed motion of { use listing in “Motion” box above.}

(2) QO Brief in support of motion due

3) Qa Answer brief to motiondye___. Reply to answer briefdue___

(4) Oo Ruling/Hearing on set for, at.

(5) oO Status hearing[held/continned to} |set for/re-set for] on set for at.
(6) a Pretrial conference[held/continued to] [set fer/te-set for] on___—=—sset for. at.
{7) o Trialjset for/re-set for)on at

(8) o (Bench/Jury trial] [Heating] held/continued to, at__

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

DUFRCP4(m) (Local Rule 41.1 CFRCP4i(a)(1) [1 FRCP41(a)(2).

(100) + (Other docket entry} Defendants” motion to transfer venue (5-1) is granted, Enter memorandum
opinion and order.

ag) ff [For further detail see order attached to the original minute order. |

No notices required, advised in open court.

No notices required.

rer of ins
Notices mailed by judge’s staff.
Notified counsel by telephone, JUL o A 2004

Docketing to mail notices.

Mail AO 450 form.

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Copy to judye/magistrate judgo,

date wise uptice
courtroom

SLB deputy’s
initials

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Statistics published by the Administrative Office of the United States Courts indicate that
the median time from filing to trial in 2003 was 26 months in the Northern District of Illinois,
and 30 months in the District of Connecticut. The median time from filing to disposition in 2003
was 5.5 months in the Northern District of Illinois, and 10.5 months in the District of
Connecticut. This difference weights against transfer, but the court does not find it to be
significant enough to outweigh the factors in favor of transfer,

The parties disagree as to whether Hlinois or Connecticut state law applies in this case,
but fail to provide a thorough, meaningful analysis of the issue in their briefs. However, the
parties do not argue that this dispute would be resolved differently depending on which state’s
law applies. Nor do the parties argue that Illinois law is so complex or unsettled as to be beyond
the abilily of a federal court in Connecticut to apply, or that Connecticut law is so complex or
unseitled as to bc beyond the ability of this court to apply. Accordingly, this factor neither favors
nor disfavors transfer.

In summary, the court concludes that the convenience of the witnesses, and relative ease
of access to witnesses and evidence, are determinative in this case, and require transfer of this
action to the District of Connecticut. In addition, as discussed above, the interests of justice

support transfer.



”

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

porwered

COSMETIQUE, Inc.,
quot

Plaintiff,
04 C3139
v.
Judge George W. Lindberg
ROBERT HAYDON JONES & ASSOCIATES,
LLC, and ROBERT IIAYDON JONES,

ee ee

Defendants.
MEMORANDUM OPINION AND ORDER

Defendants Robert Haydon Jones & Associates, LLC (“RHJA”), and Robert Haydon
Jones (“Jones”) seek the transfer of this case to the United States District Court for the District of
Connecticut, For the reasons stated below, defendants’ motion to transfer is granted.

Unless otherwise noted, the court takes the following facts from plaintiff's amended
complaint. According to the amended complaint, Cosmetique is an Illinois corporation with its
principal place of business in Vernon Hills, Illinois, Cosmetique sells cosmetics to the general
public. According to defendants, RHJA and Jones are Connecticut citizens.

In February 2003, Milton Pappas, the Vice President of Credit Marketing for a New-
York-based company named Brylane, sought to contact Cosmetique to propose thal Cosmetique
use Brylane to sell Cosmetique’s products. Pappas called defendant Jones, whom Pappas had
been told would know the nume of a contact at Cosmetique. Pappas described his proposed
marketing transaction to Jones, and asked Jones for the name of a person at Cosmetique with
whom he could discuss the proposal. Jones responded that Jones was authorized to speak on

Cosmetique’s behalf, and that Pappas should negotiate the transaction solely through him. Jones,

ah



however, had no such authorization from Cosmetiquce, and he was not Cosmetique’s agent.

Several days later, Jones called Cosmetique’s Chief Marketing Officer, Tony Abate.
Jones told Abate that Brylane was Joncs’s client, and that he had an idea for a possible
transaction between Brylane and Cosmetique, However, Brylane was not Jones’s client, and
Jones was not authorized to speak on Brylane’s behalf.

Based upon these representations by Jones, Cosmetique and Brylane allowed Jones to
conduct negotiations between them. On August 13, 2003, Cosmetique and Brylane entered into
an agreement, under which Brylane would offer certain of Cosmetique’s products for sale
through a telemarketing program, and Cosmetique would fulfill the orders. On December 2,
2003, Cosmetique paid Jones a commission of $28,310.45. As of the date of the filing of the
complaint, Brylane was continuing to scll Cosmetique’s products, and Cosmetique was
continuing to fulfill the orders.

On February 27, 2004, Cosmetique filed a declaratory judgment action in the Circuit
Court of Lake County, Illinois. Cosmetique’s original complaint sought a declaratory judgment
that neither Jones nor RHJA was the procuring cause of the agreement between Cosmetique and
Brylane, that no contract exists between Cosmetique and either Jones or RHJA in relation to the
sale of Cosmetique’s products, and that neither Jones nor RHJA is entitled to be paid
commissions for the past or future sales of Cosmetique’s products through Brylane. Cosmetique
later amended its complaint to also seck a judgment against Jones in the amount of the
commission already paid to him.

According to defendants, on March 12, 2004, Jones and RHJA brought an action in

diversity against Cosmetique in the United States District Court for the District of Connecticut,