Schwarz v. National Van Lines, Inc.

• Decision Date: 24 February 2004
• Docket Number: No. 03 C 7096.,03 C 7096.
• Citation: 317 F.Supp.2d 829
• Parties: Sofia SCHWARZ, Plaintiff, v. NATIONAL VAN LINES, INC., Dwayne Schiesser, and Apex Relocation Specialists, Inc., Defendants.
• Court: U.S. District Court — Northern District of Illinois

317 F.Supp.2d 829

Sofia SCHWARZ, Plaintiff, v. NATIONAL VAN LINES, INC., Dwayne Schiesser, and Apex Relocation Specialists, Inc., Defendants.

No. 03 C 7096.

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

February 24, 2004.

COPYRIGHT MATERIAL OMITTED

Jose Antonio Isasi, II, Carey L. Bartell, Raven Moore, Sachnoff & Weaver, Ltd., Chicago, IL, for plaintiff.

Dennis E. French, Jonathan Patrick Stringer, Dombroff & Gilmore, Chicago, IL, for defendants.

MEMORANDUM OPINION AND ORDER

ST. EVE, District Judge.

Plaintiff Sofia Schwarz filed an eight-count complaint against Defendants National Van Lines, Inc. ("National"), Dwayne Schiesser, and Apex Relocation Specialists, Inc. ("Apex"), alleging breach of contract in a bill of lading under 49 U.S.C. § 14706 (the "Carmack Amendment") (Count I), statutory claims under section 1961 of the Racketeer Influenced and Corrupt Organizations Act ("RICO") (Counts VII and VIII), conversion (Count II), intentional infliction of emotional distress (Count III), negligent infliction of emotional distress (Count IV), breach of the implied covenant of good faith and fair dealing (Count V), and constructive fraud based on breach of fiduciary duty (Count VI). In response to Schwarz's complaint, National filed a motion to transfer venue pursuant to 28 U.S.C. § 1404(a). For the reasons stated herein, Defendant's motion to transfer is denied.

BACKGROUND

Schwarz is a citizen of the United States and of Oregon. Defendant National is an Illinois corporation. (R. 9-1, Def.'s Mem. Supp. Mot. to Transfer Venue, Ex. B at 3.) Defendant Schiesser is a citizen of the United States and of Texas. (Id. at 3.) Defendant Apex is a defunct Texas corporation. (Id.)

I. Events Surrounding Schwarz's Move from Scottsdale to Salem

In December of 2000, Schwarz hired National to move her belongings from Scottsdale, Arizona to Salem, Oregon. (R. 11-1, Pl.'s Opp'n to Def.'s Mot. to Transfer Venue at 1); (R. 9-1, Def.'s Mem. Supp. Mot. to Transfer Venue at 1.) National's disclosed agent, Apex, through Schiesser, Apex's alleged owner and operator, picked up Schwarz's belongings in Scottsdale, Arizona. (R. 3-1, Pl.'s First Am. Compl. ¶¶ 4-5, 28-33.) Central Moving and Storage ("Central") acted as National's agent in Arizona, coordinating and facilitating Apex and Schiesser's pickup of Schwarz's belongings on December 31, 2000. (Id. ¶¶ 12-17, 24-29.)

Schwarz's belongings were scheduled to arrive in Salem, Oregon between December 30 and January 10, 2001, but did not arrive within the scheduled delivery window. (R. 11-1, Pl.'s Opp'n to Def.'s Mot. to Transfer Venue at 2.); (R. 9-1, Def.'s Mem. Supp. Mot. to Transfer Venue, Ex. C.) When January 10, 2001 passed with no sign of her belongings, Schwarz began to search for their whereabouts. (R. 11-1, Pl.'s Opp'n to Def.'s Mot. to Transfer Venue at 2.) Schwarz claims that she repeatedly called National in Illinois while her belongings were missing. (R. 3-1, Pl.'s First Am. Compl. ¶¶ 41, 59.)

On March 18, 2001, a third party informed Schwarz's sister that Schwarz's belongings were in Weatherford, Texas. (Id. at ¶ 61.) National finally delivered Schwarz's belongings on April 22, 2001, without charge. (Id. ¶ 78.)

II. Schwarz's Insurance Claim and the Ensuing Litigation

On May 16, 2001, Schwarz filed a formal insurance claim with National for costs resulting from the late delivery of her belongings. (R. 3-1, Pl.'s First Am. Compl. ¶ 78.) On October 12, 2001, National rejected a portion of her claim and offered to settle the remainder of the claim. (Id. ¶ 93.) On August 29, 2003, Schwarz's attorney sent National a draft complaint that Schwarz contemplated filing in the United States District Court for the Northern District of Illinois. (R. 11-1, Pl.'s Opp'n to Def.'s Mot. to Transfer Venue at 2.) National responded by filing a declaratory judgment action in the United States District Court for the District of Arizona on September 9, 2003 (the "Arizona Action").

Schwarz filed her complaint in this Court on October 7, 2003. On December 9, 2003, Schwarz moved to dismiss National's Arizona Action for lack of personal jurisdiction and improper venue, or alternatively, to transfer the case to the Northern District of Illinois ("Illinois Action"). (R. 11-1, Pl.'s Opp'n to Def.'s Mot. to Transfer Venue at 3.)

ANALYSIS

I. The First-to-File Rule

When two similar actions are filed, the general rule favors the forum of the first-filed suit. MLR, LLC v. U.S. Robotics Corp., No. 02 C 2898, 2003 WL 685504, *1 (N.D. Ill., Feb. 26, 2003) (citations omitted); Barrington Group, Ltd. v. Genesys Software Systems, Inc., 239 F.Supp.2d 870, 873 (E.D.Wis.2003) (citing Warshawsky & Co. v. Arcata Nat. Corp., 552 F.2d 1257, 1263 (7th Cir.1977)). Under this "first to file" rule, district courts normally stay or transfer a federal suit "for reasons of wise judicial administration ... whenever it is duplicative of a parallel action already pending in another federal court."¹ Serlin v. Arthur Andersen & Co., 3 F.3d 221, 223 (7th Cir.1993) (citations omitted); Barrington Group, 239 F.Supp.2d at 873 (citations omitted).

The Seventh Circuit, however, does not rigidly adhere to a "first to file" rule, Trippe Mfg. Co. v. American Power Conversion Corp., 46 F.3d 624, 629 (7th Cir.1995) (citations omitted). Second-filed actions may proceed where favored by the interests of justice. Tempco Elec. Heater Corp. v. Omega Eng'g, Inc., 819 F.2d 746, 749-750 (7th Cir.1987). Similarly, courts refuse to enforce the first to file rule where forum shopping motivated the first-filed action or the first-filed action constitutes an "improper anticipatory filing" made under threat of an imminent suit and asserting the mirror-image of that suit in another district. Barrington Group, 239 F.Supp.2d at 873; MLR, 2003 WL 685504 at *1 (citations omitted).

The Declaratory Judgment Act is not a tool with which potential litigants may secure a delay or choose the forum. Schumacher Elec. Corp. v. Vector Products, Inc., 286 F.Supp.2d 953, 955 (N.D.Ill.2003) (citations omitted). Declaratory judgment actions brought in the face of clear threats of suit and seeking determinations that no liability exists will be closely scrutinized as potentially improper anticipatory filings if the other party proceeds to file. Barrington Group, 239 F.Supp.2d at 873-874 (citing Tempco Elec. Heater Corp., 819 F.2d at 749-750).

Here, National filed the Arizona Action shortly after Schwarz provided National with a copy of the complaint that she anticipated filing in Illinois. Since National filed its declaratory judgment action in the face of a clear threat that Schwarz would sue, the Court will treat the present case as an exception to the first to file rule. National's declaratory judgment action appears to be an attempt to trump Schwarz's choice of forum. Further, as addressed below, the interests of justice counsel against invoking the first to file rule here.

II. National's Motion to Transfer

Assuming that venue is proper in a federal district court, "[f]or the convenience of parties and witnesses, in the interest of justice, [that] district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). Transfer under section 1404(a) is appropriate where the moving party demonstrates that (1) venue is proper in the transferor district; (2) venue and jurisdiction are proper in the transferee district; and (3) the transfer will serve the convenience of the parties, the convenience of the witnesses, and the interests of justice. Vandeveld v. Christoph, 877 F.Supp. 1160, 1167 (N.D.Ill.1995). The movant has the burden of establishing, by reference to particular circumstances, that the transferee forum is clearly more convenient. Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219-220 (7th Cir.1986). In assessing a motion to transfer, the Court must consider the statutory factors in light of all of the circumstances of the case. Id. at 219. The weight accorded to each factor is committed to the sound discretion of the Court. Id.

A. Venue

Where a party moves to transfer venue pursuant to section 1404(a), the burden is on the movant to establish that venue is proper in the transferee court. IP Innovation, 289 F.Supp.2d at 954 (citations omitted). To establish venue, a plaintiff need only demonstrate that a "substantial part" of the events or omissions giving rise to the claim occurred within the forum district, not that a majority of the events took place there.² Pasulka v. Sykes, 131 F.Supp.2d 988, 994 (N.D.Ill.2001). The test for venue under 28 U.S.C. § 1391 focuses on the location of the events giving rise to the cause of action. Master Tech Prods., Inc. v. Smith, 181 F.Supp.2d 910, 913 (N.D.Ill.2002). To be "substantial," the events that occurred in the forum district must be a part of the historical predicate of the claim. Id. at 914.

Even when the defendant never personally enters the forum district, venue can nonetheless be appropriate in that district. Master Tech, 181 F.Supp.2d at 913. Telephone conversations and correspondence can support venue under section 1391(b)(2) depending on the nature of the contacts and their relationship to the claim. Id. at 913-914.

Here, neither party disputes that venue is proper in the Northern District of Illinois. Venue also is proper in the District of Arizona. Schwarz entered into the contract in Arizona, and the original location of Schwarz's belongings in and the shipping of these belongings from Arizona form a part of the historical predicate of the claim. If Schwarz had not entered into the contract for the shipment of her belongings or if National's agent had not picked up her belongings, the sequence of events culminating in Schwarz's complaint would not have taken place.

B. Jurisdiction in the District of Arizona

The Arizona long-arm statute provides for personal jurisdiction co-extensive with the limits of federal...