Rotec Industries, Inc. v. Aecon Group, Inc., 05 CV 7034.

• Decision Date: 22 June 2006
• Docket Number: No. 05 CV 7034.,05 CV 7034.
• Citation: 436 F.Supp.2d 931
• Court: U.S. District Court — Northern District of Illinois
• Parties: ROTEC INDUSTRIES INC., a Delaware corporation, Plaintiff, v. AECON GROUP, INC., a foreign corporation, Defendant.

Page 931

436 F.Supp.2d 931

ROTEC INDUSTRIES INC., a Delaware corporation, Plaintiff, v. AECON GROUP, INC., a foreign corporation, Defendant.

No. 05 CV 7034.

United States District Court, N.D. Illinois, Eastern Division.

June 22, 2006.

John C. O'Rourke, Jr., Michael Alan. Gilman, O'Rourke, Hogan, Fowler & Dwyer, Chicago, IL, for Plaintiff.

Evelyn R. Pacino Sanguinetti, Julie J. Haventih, Maisel & Associates, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

CASTILLO, District Judge.

Plaintiff Rotec Industries, Inc. ("Rotec") sued Defendant Aecon Group, Inc. ("Aecon") for breach of contract, claiming that Aecon returned a crane in a damaged condition, in violation of the parties' lease agreement. Aecon filed the instant motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(3) for improper venue, or in the alternative, that this suit should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(7) for failure to join a necessary party. For the reasons discussed below, Aecon's motion to dismiss is denied in its entirety.

RELEVANT FACTS

In July of 2003, Aecon entered into an agreement with Rotec to lease concrete placing equipment ("Lease"), including a Rotec CC-200 Creter Crane ("Crane"). (R. 1, Compl.¶ 6.) The Lease was scheduled to last for nine months at a rate of $28,000 per month, with Aecon responsible for the equipment's return to Rotec at the end of that term. (Id. ¶¶ 6, 8.) During the pendency of the Lease, Aecon contracted with Transport Watson Montreal Ltee ("Watson") to return the Crane to Rotec. (Id., ¶ 11.) While Watson was transporting the Crane back to Rotec, an accident allegedly occurred in or near Aecon's Toulnustouc Project site in Quebec, Canada, which resulted in irreparable damage to the Crane. (R. 14, Def's. Mem. at 2.)

Rotec—a Delaware corporation with its principal place of business in Illinois— brought this suit against Aecon—a Canadian corporation—to recover the cost of replacing the Crane and the rental charges accumulated since the end of the lease period, in an amount in excess of $620,847. (R. 1, Compl.¶¶ 1, 2, 22-23.)

LEGAL STANDARDS

On a motion to dismiss for improper venue under Rule 12(b)(3), the plaintiff bears the burden of establishing that the venue it has chosen is proper. Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972). In ruling on a motion to dismiss under Rule 12(b)(3), the court follows the same standard as that of a Rule 12(b)(2) dismissal, taking all the allegations in the complaint as true unless contradicted by the defendant's affidavit. Turnock v. Cope, 816 F.2d 332, 333 (7th Cir.1987). The Court may examine facts outside the complaint, and the Court resolves all factual conflicts and draws all reasonable inferences in the plaintiff's favor. Id.; Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005).

Rule 12(b)(7) provides for dismissal of an action where a litigant fails to join a necessary party under Rule 19. Fed.R.Civ.P. 12(b)(7). As with a Rule 12(b)(3) motion, a ruling on a motion to dismiss for failure to join a necessary and indispensable party requires the Court to accept the allegations of the complaint as true, and the Court may go outside the pleadings and look at extrinsic evidence. Davis Cos. v. Emerald Casino, Inc., 268 F.3d 477, 479-80 nn. 2, 4 (7th Cir.2001). On a Rule 12(b)(7) motion, the defendants have the burden of showing that the plaintiff has failed to join a necessary and indispensable party. Ilan-Gat Eng'rs, Ltd. v. Antigua Intl Bank, 659 F.2d 234, 242 (D.C.Cir.1981); see also, Ploog v. Home-Side Lending, Inc., 209 F.Supp.2d 863, 873 (N.D.Ill.2002).

ANALYSIS

I. Forum Non Conveniens

Aecon claims that Rotec's suit should be dismissed under Rule 12(b)(3) because this venue is improper under the doctrine of forum non conveniens. Aecon argues that Canada is the proper venue because that is where the alleged accident that damaged the Crane occurred. Under the doctrine of forum non conveniens, the Court can "dismiss a suit over which it would normally have jurisdiction if it best serves the convenience of the parties and the ends of justice." In re Bridgestone/Firestone, Inc., 420 F.3d 702, 703 (7th Cir.2005) (quoting Kamel v. Hill-Rom Co., Inc., 108 F.3d 799, 802 (7th Cir.1997)). To dismiss under the doctrine, however, the plaintiff's choice of forum must "establish . . . oppressiveness and vexation to a defendant ... out of all proportion to [the] plaintiff's convenience." Id. at 703 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). Further, the Court should dismiss the suit as inconvenient only if an alternative forum is both available and adequate. Kamel, 108 F.3d at 802. A forum is "available" if "all parties are amenable to process and are within the forum's jurisdiction." Id. at 803 (citing Piper Aircraft, 454 U.S. at 254 n. 22, 102 S.Ct. 252). An alternative forum is "adequate" if "the parties will not be deprived of all remedies or treated unfairly [in that venue.]" Kamel, 108 F.3d at 803.

Once the existence of an adequate alternative forum has been established, the Court decides "whether to keep or dismiss the case by weighing various private and public interest factors." Bridgestone, 420 F.3d at 704. The private interest factors include: "[the] relative case of access to sources of proof; availability of compulsory process for attendance of unwilling ... witnesses; [the] possibility of [a] view of premises [if practical]; and all other practical problems that make trial of a case easy, expeditious and inexpensive." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The public interest factors include: the administrative difficulties in handling litigation in congested courts instead of at the origin of the controversy; the burden on a community of jury duty when the community has no relation to the litigation; and the benefit of deciding "localized controversies ... at home," in a venue whose law will govern the case. Id. The Court may reasonably assume that a plaintiff's home forum is convenient, and therefore this choice should rarely be disturbed. Kamel, 108 F.3d at 803 (citing Piper Aircraft, 454 U.S. at 241, 102 S.Ct. 252).

A. Adequate and Available Alternative Forum

The first inquiry in a forum non conveniens analysis is to determine the existence of an adequate alternative forum. Bridgestone, 420 F.3d at 704. Rotec does not dispute that Quebec, Canada, is an adequate alternative venue. (R. 19, Pl's. Resp. at 2.) Aecon is a Canadian corporation subject to process in Canada, and a Canadian venue is available as an alternative. (R. 14, Def's. Mem. at 4.) Therefore, this requirement of the forum non conveniens analysis is met.

B. Private Interest Factors

Because an adequate alternative forum exists and is available, the Court must examine the balance of private interests as they relate to the choice of venue in this litigation. Bridgestone, 420 F.3d at 704. No single private interest is dispositive, although this Court must ensure careful consideration of the relevant factors. In re Ford Motor Co., 344 F.3d 648, 652 (7th Cir.2003); see also Wilson v. Humphreys (Cayman) Ltd., 916 F.2d 1239, 1246 (7th Cir.1990). The first of these factors—the case of access to sources of proof—directs the Court to examine the location of evidence relevant to the claim in relation to the plaintiffs chosen forum. If the majority of the evidence is in a different location than the plaintiffs venue, this factor weighs in favor of dismissing under the doctrine of forum non conveniens. Bridgestone, 420 F.3d at 705; Gilbert, 330 U.S. at 508, 67 S.Ct. 839.

The issue here is what constitutes the relevant evidence. While this is a breach of contract case, Aecon argues there is greater access to evidence in Canada because that is where the alleged damage to the Crane occurred. (R. 14, Def's. Mem. at 4.) Aecon claims that the evidence located in Canada provides details surrounding the accident. They also assert that it provides evidence relevant to Aecon's contract with Rotec because the Lease and Return Requisite¹ ("Requisite") contemplate that "rainy on-site damage" to the Crane "must be repaired." (Id.) These contractual provisions do not change the fact that Aecon allegedly violated the Lease by returning the Crane to Illinois in an unusable condition. Proof of the condition in which the Crane was returned is in Elmhurst, Illinois, where the Crane currently rests. (R. 19, Pl's. Resp. at 4.) Proof of whether the Lease required return of the Crane in a useable condition, and damages if it was not so returned, lies in the Lease itself. Thus, there is greater access to relevant sources of proof in Illinois than in Canada.

This Court next considers the availability of compulsory process to gain attendance of unwilling witnesses located in or near the alternative venue and the cost of obtaining the attendance of willing witnesses from that venue. See Bridgestone, 420 F.3d at 705; Gilbert, 330 U.S. at 508, 67 S.Ct. 839. This factor only weighs in Aecon's favor if their difficulty in gaining attendance of witnesses is so extreme as to reach a level "out of all proportion to the plaintiff's convenience." Bridgestone, 420 F.3d at 703 (quoting Piper Aircraft, 454 U.S. at 241, 102 S.Ct. 252). Here, Aecon asserts that the majority of relevant witnesses are located in Canada and speak French as their primary language. (R. 14, Def's. Mem. at 4-5.) Aecon argues that this will make it difficult to require attendance of unwilling witnesses and to obtain willing witnesses due to costly travel and translation obstacles. (R. 21, Def's. Reply at 4.)

Aecon's argument fails for two reasons. First, because the points of contention in this action are the parties' understanding of the Lease and the alleged damage to the Crane, the relevant witnesses will likely be Aecon and Rotec employees with knowledge of...