tort claims and claims brought pursuant to other contracts). At
its heart, this is a suit about the dissolution of that Illinois
corporation, not about the agreement that governed the
discussions that preceded the corporation's creation. Under these
circumstances, plaintiff's claims did not arise "with regard to"
the NDA, but with regard to the Illinois corporation that was
created subsequently. See, e.g. Armco Inc. v. North Atlantic
Insurance Co., 68 F. Supp.2d 330, 338-40 (S.D.N.Y. 1999) (finding
a forum selection clause inapplicable where the "`gist' of
plaintiffs' claims" did not "arise out of" the contract with the
Finally, there is no indication that defendant Stout in any way
consented to either venue or personal jurisdiction in the
Southern District of New York for the purposes of any suit
against him in his personal capacity. His name does not appear
anywhere on plaintiff's proffered NDA. The only name that does
appear on the NDA on behalf of SCA (although not as a signature)
is that of Bartholomew, who operated out of South Carolina. See
Pl. Mem. at 21.*fn7
Given these concerns, we can make no "clear finding" that
defendants intended to be bound to the NDA's forum selection
clause, much less that it determines the forum for this lawsuit.
As a result, we can find no reason that this suit could not be
brought in another district, making venue here improper under §
B. § 1404 — Transfer of Venue
Even if we were to find that the NDA's forum selection clause
provides a basis for venue to be laid in the Southern District of
New York, we would still find that a transfer to the Northern
District of Illinois is appropriate as in the best "interests of
justice" under § 1404. Section 1404(a) provides that "[f]or 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 may have been brought." The
purpose of 1404(a) is to "prevent waste `of time, energy and
money' and `to protect litigants, witnesses and the public
against unnecessary inconvenience and expense.'" Van Dusen v.
Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)
(quoting Continental Grain Co. v. Barge FBL-585, 364 U.S. 19,
26-27, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960)).
While we normally would give full weight to a forum selection
clause, the factors by which a court must evaluate the "interests
of justice" so overwhelmingly favor transfer (see infra) as to
make this case one of the rare exceptions in which a forum
selection clause would not control. See APA Excelsior III L.P.
v. Premiere Technologies, Inc., 49 F. Supp.2d 664, 671-72
(S.D.N.Y. 1999) (reciting a long line of cases in support of the
proposition that "even if the Court were to find the forum
selection clause to be operative in the current dispute, the
Court would still retain the discretion to transfer the action in
the interest of justice"). See also Maltz v. Union Carbide
Chemicals & Plastics Co., 992 F. Supp. 286, 295-96 (S.D.N Y
1998) (citing a line of case for the proposition that transfers
made pursuant to a forum selection clause are controlled by §
C. Interest of Justice Analysis
Among the factors a court should consider in determining a
question of venue are: (1) the place where the operative facts
took place; (2) the convenience of the parties; (3) the
convenience of the witnesses; (4) the location of relevant
and the relative ease of sources of proof; (5) the forum's
familiarity with the governing law the weight accorded; (6) the
availability of process to compel unwilling witnesses; and (7)
the plaintiff's choice of forum.*fn8 JVC Professional Products
Co. v. HT Electronics, Inc., No. 99 Civ. 3425, 1999 WL 1080280,
at * 1 (S.D.N.Y. Dec. 1, 1999); Fine Foods, 1999 WL 1288681, at
*5. Based on our analysis of these factors, we find that
defendants have made a "clear-cut showing" that transfer to the
Northern District of Illinois is in the best interest of justice.
See, e.g., Schieffelin & Co. v. Jack Co. of Boca, Inc.,
725 F. Supp. 1314, 1321 (S.D.N.Y. 1989).
First, the location of operative events is a "primary factor"
in determining a motion to transfer venue. Smart v. Goord,
21 F. Supp.2d 309, 316 (S.D.N.Y. 1998). Here, plaintiff alleges that
both defendants are residents of Illinois (Comp. ¶¶ 2-3), that
Ceross met with the defendants in Chicago (Comp. ¶ 15), that the
joint company was formed and operated in Illinois (Comp. ¶¶ 16,
22), that it was SCA's Illinois attorney who organized it (Comp. ¶
20), and that the company used an Illinois accountant (Comp. ¶
24). Consequently, any misappropriation of the company's assets
or other violations most likely occurred in Illinois. Nowhere in
plaintiff's pleadings, briefs, or supporting affidavits does it
point to any significant events that took place in New York.
Plaintiff argues that "a substantial part" occurred in South
Carolina, specifically the injury to plaintiff, but does not
contest the fact that the "greater part of the events occurred
elsewhere." Pl. Reply at 4-5. See also Pl. Mem. at 24. Taking
notice of these facts, the "center of gravity" is undoubtedly in
Illinois. See, e.g., Stein, 1999 WL 540443, at *7. See also
Wechsler v. Macke International Trade, Inc., No. 99 Civ. 5725,
1999 WL 1261251, at *4 (S.D.N.Y. Dec. 27, 1999); Smart, 21
F. Supp.2d at 316.
Second, the convenience of both the parties and witnesses also
favors a transfer of venue to Illinois. As for witnesses,
defendants have named six who reside in Illinois plus Stout
himself, who can testify to the actions of the Illinois
corporations involved in this suit. See Aff. of Stout of Nov.
20, 1999, attached to Declaration of James M. Moschella of Nov.
23, 1999. Plaintiff, on the other hand, has named three potential
South Carolina witnesses: Ceross, his wife, and Bartholomew. Pl.
Mem. at 21-22. Bartholomew, though, is defendant's agent and his
location cannot be counted against defendant. That leaves only
the consideration for the convenience of Mr. and Mrs. Ceross.
Since none of the parties reside in New York, it is only logical
that a transfer to the residence of one of them would be more
convenient. Plaintiff argues that Mr. and Mrs. Ceross find New
York more convenient because of "the presence of friends and
relatives in the New York area." Id. However, the location of
plaintiff's friends and relatives cannot outweigh the actual
residence of one of the parties. And since defendants' allegedly
wrongful activity occurred in Illinois, the seven witnesses there
are clearly central to the outcome of the case. As a result, the
balance of convenience of the parties and the witnesses favors
Similarly, we also find that the location of relevant
documents, the relative ease of sources of proof, and the forum's
familiarity with the governing law all favor transfer to
Illinois. For the same reason that most witnesses are found in
Illinois, the relevant documents and other sources of proof are
likely to be among the records of the Illinois corporation at the
heart of this suit. Additionally, the complaint makes it clear
that this suit is brought pursuant to
causes of action under Illinois law. Even if, as plaintiff
maintains, the tort claims may fall under the aegis of South
Carolina law following a conflict analysis, the fact remains that
the majority are governed by the law of the state under which SCA
ZPC Solutions was incorporated.
Finally, a plaintiff's choice of forum is generally entitled to
"substantial consideration." In re Warrick, 70 F.3d 736, 741
(2d Cir. 1995). "However, when a plaintiff brings a suit . . . in
a forum that has no material connection with the action, this
factor should be given little weight." Wechsler, 1999 WL
1261251, at *9 (quoting Brown v. Dow Corning Corp., No. 93 Civ.
5510, 1996 WL 257614, at *3 (S.D.N.Y. May 15, 1996)). This is
particularly true "when a plaintiff brings suit outside his home
forum." Id. See also Coker v. Bank of America, 984 F. Supp. 757,
766 (S.D.N.Y. 1997) ("[P]laintiff's choice of the New York forum
also is entitled to lesser weight because [plaintiff] has chosen
a forum that is not his residence."). As we have discussed above,
both sides essentially concede that New York has no material
connection to the suit, and plaintiff brought the suit initially
outside its home forum in South Carolina. As a result,
plaintiff's choice of forum is entitled to little deference.
For the foregoing reasons, the Clerk of the Court is hereby
directed to promptly transfer this action in its entirety to the
United States District Court for the Northern District of
IT IS SO ORDERED.