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PEIN v. HEDSTROM CORPORATION

January 12, 2004.

WERNER VON PEIN, Plaintiff, -against-, HEDSTROM CORPORATION, Defendant


The opinion of the court was delivered by: RICHARD CASEY, District Judge

MEMORANDUM & ORDER

Werner Von Pein ("Plaintiff) brought suit against his former employer, Hedstrom Corporation ("Defendant"), for breach of contract and violation of the Illinois Wage Payment and Collections Law. Currently before the Court is Defendant's motion for a change of venue under 28 U.S.C. § 1404(a). The Court hereby GRANTS Defendant's motion. I. Background

Defendant employed Plaintiff as a Vice President and General Manager from November 2000 until December 12, 2002, when Plaintiff was terminated. Plaintiff alleges that the parties entered into a Severance Agreement on March 14, 2002, which gave Plaintiff the right to receive one year's salary and benefits for one year if he was terminated without cause. Plaintiff alleges that he was, in fact, fired without cause and has not received over $ 200,000 which he is owed. Defendant, however, contends he was fired for misconduct and thus it has not breached the Severance Agreement. Defendant's defense is based, in part, on an allegation that Plaintiff engaged in willful misconduct when he coerced Defendant's human resources director to make a loan to him using company funds without knowledge of the company's chief executive officer. Defendant brought a counterclaim based on an allegation that Plaintiff converted property and Page 2 was planning a business to compete with Defendant while he was still Defendant's employee.

  Defendant maintains its principal place of business in Arlington Heights, Illinois, located in the Northern District of Illinois. Plaintiff was hired in New York by Executive Interim Management ("EM"), which appears to provide executives on a temporary basis to companies. EIM and Defendant executed a contract under which Plaintiff provided executive services to Defendant on an interim basis. After that interim period, Defendant hired Plaintiff as Vice President and General Manager. While Plaintiff appears to have worked out of New York as an EIM employee, he worked in Arlington Heights once Defendant hired him.

  Defendant maintains that this suit has no nexus to New York, and that Defendant merely maintains an office in New York, used only a few weeks out of the year during an annual toy show. Moreover, Defendant states that there are eight witnesses that it intends to call, all but one of whom reside in the Northern District of Illinois.

  Plaintiff disputes the contention that the suit has no connection to New York because: (1) the employment relationship between the parties was actually formed in New York while Plaintiff was an EIM employee; (2) the contract between EEM and Defendant specified that all disputes were to be governed by New York law; and (3) Defendant spends more than $ 50,000 per year maintaining its New York showroom. In addition, Plaintiff argues that there are only two witnesses who would testify about events material to the underlying dispute, and therefore the other witnesses should be disregarded in analyzing the convenience of this venue. Finally, Plaintiff maintains that Defendant's employees regularly travel to New York, belying the argument that it would be inconvenient to do so for trial. Page 3

 II. Discussion

  Section 1404(a) provides: "For the convenience of 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."*fn1 28 U.S.C. § 1404(a). The determination to transfer venue is done on a case-by-case basis, guided by notions of convenience and fairness. In re Cuyahoga Equip. Corp., 980 F.2d 110, 117 (2d Cir. 1992); Goggins v. Alliance Capital Mgmt. L.P., 279 F. Supp.2d 228, 232 (S.D.N. Y. 2003). Courts consider the following eight factors in deciding a motion to transfer: (1) Plaintiffs choice of forum; (2) the locus of the operative facts; (3) convenience and relative means of the parties; (4) convenience of the witnesses; (5) availability of process to compel the attendance of witnesses; (6) location of physical evidence; (7) relative familiarity of the courts with the applicable law; and (8) interests of justice and trial efficiency. Id. Applying these factors, the Court concludes that this case should be transferred to the Northern District of Illinois.

  A. Plaintiffs Choice of Forum

  Plaintiff's choice of forum in the Southern District of New York is entitled to considerable weight. Orb Factory Ltd, v. Design Science Toys, Ltd., 6 F. Supp.2d 203, 210 (S.D.N. Y. 1998). But that choice is given more deference if there is a material connection between the forum and the events giving rise to the cause of action. Goggins, 279 F. Supp.2d at 232. As stated below, there is little, if any, material connection between the Southern District of New York and the events that give rise to this suit. Page 4

  B. Locus of Operative Facts

  Plaintiff's case arises out of an employment relationship that took place in the Northern District of Illinois. Plaintiff worked at Defendant's offices in Arlington Heights, Illinois, and it is the events surrounding his termination from that job that gives rise to both his claims and to Defendant's counterclaim. No operative facts occurred in or have any relation to the Southern District of New York.

  Plaintiff's arguments to the contrary have little merit. First, Plaintiff was an employee of EM, not Defendant, while he worked in New York, and the contract between EM and Defendant has no relevance to this case. Thus, the fact that New York law might have governed any disputes between EM and Defendant is also irrelevant. Finally, Defendant's warehouse in New York does not have anything to do with the controversy between the parties. Neither the complaint nor the answer establishes any relevant events that occurred in, or relate to, the New York warehouse. "Courts routinely transfer cases where the principal events ...


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