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MICRO-ASSIST, INC. v. CHERRY COMMUNS.

April 16, 1997

MICRO-ASSIST, INC., Plaintiff, against CHERRY COMMUNICATIONS, INC., ET AL., Defendant.


The opinion of the court was delivered by: GLASSER

 GLASSER, United States District Judge:

 On December 31, 1996, plaintiff Micro-Assist, Inc. ("MAI"), a New Jersey corporation, brought this action against defendants Cherry Communications, Inc. ("Cherry"), Mercury Communications Service, Inc. ("Mercury") and Tele-Pro, Inc. ("TPI"), incorporated in Illinois, Texas and New York, respectively. Complaint PP 4-7. The complaint appears to allege, among other things, that defendant Mercury breached a contract to install a new telephone system by failing properly to coordinate the installation with the other defendants. Mercury now moves for dismissal or transfer to the Northern District of Texas pursuant to 28 U.S.C. § 1404(a) or § 1406(a). For the reasons that follow, this motion will be denied.

 FACTS

 Defendant Mercury, a Texas corporation with its principal place of business in Dallas County Texas, sells and installs telecommunications equipment. Osler Dec. P 4; Complaint P 6; Osler Dec. P 3. In November 1995, Mercury contracted to sell telecommunication equipment to MAI and to install the equipment for MAI at an address in Manhattan. Complaint P 9; Atlas Aff. PP 4, 6; Osler Dec. P 6, Ex. A. The contract between MAI and Mercury included a forum selection clause which provided that any action relating to the contract would be "proper if filed in any court in Dallas County, Texas." Osler Dec. Ex. A. Mercury subcontracted with TPI, a New York corporation with its principal place of business in the Eastern District of New York, to install Mercury's equipment for MAI in Manhattan. Complaint PP 7 & 10; Iorio Dec. PP 3, 4. MAI also hired defendant Cherry to act as a communications reseller. Complaint P 11. In its complaint, MAI alleges that it was injured when the three defendants failed properly to "coordinate and effectuate the installation." Complaint P 12.

 DISCUSSION

 I. Venue

 Defendant Mercury moves to dismiss or transfer this case for improper venue pursuant to 28 U.S.C. § 1406 or to transfer this case for convenience pursuant to 28 U.S.C. § 1404. Section 1404 (a) provides for transfer if venue is proper in both the original and the requested venues. Section 1406 (a) provides for the dismissal or transfer of an action brought in an improper venue. Initially, this Court will determine whether venue is appropriate in this District. If it is, § 1404 will apply to Mercury's motion, if it is not, § 1406 will apply.

 Section 1391 of Title 28 of the United States Code, the federal venue statute, provides in part:

 
(a) A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State.
 
* * * *
 
(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced. In a State which has more than one judicial district and in which a defendant corporation is subject to personal jurisdiction at the time an action is commenced, such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State, and, if there is no such district, the corporation shall be deemed to reside in the district within which it has the most significant contacts.

 28 U.S.C. § 1391.

 Once an objection to venue has been raised, the plaintiff bears the burden of establishing that venue is proper. D'Anton Jos. S.L. v. Doll Factory, Inc., 937 F. Supp. 320, 321 (S.D.N.Y. 1996); French Transit, Ltd. v. Modern Coupon Sys., Inc., 858 F. Supp. 22, 25 (S.D.N.Y. 1994). To prove that venue lies here, MAI must demonstrate that under 28 U.S.C. § 1391 (a)(1), the Eastern District ...


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