Spound v. Action Industries, Inc., 73 C 1418.
| Decision Date | 09 January 1974 |
| Docket Number | No. 73 C 1418.,73 C 1418. |
| Citation | 369 F. Supp. 1066 |
| Parties | Albert M. SPOUND et al., Plaintiffs, v. ACTION INDUSTRIES, INC., Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
R. Howard Goldsmith, William S. Feiler, Dressler, Goldsmith, Clement & Gordon, Ltd., Chicago, Ill., for plaintiffs.
Holland C. Capper, McBride, Baker, Wienke & Schlosser, Chicago, Ill., for defendant.
This cause comes on the defendant's motion to dismiss this action for lack of proper service and venue, pursuant to 28 U.S.C. § 1400(b) and in the alternative to transfer this civil action to the Western District of Virginia pursuant to 28 U.S.C. § 1404(a) or 28 U.S.C. § 1406 (a).
This is an action based on the alleged infringement of U.S. Patent Nos. 2,884,992; 2,958,374; 2,982,340; and 3,024,064 by the defendant.
The plaintiffs, Albert Spound and Joseph Spound, are residents of Massachusetts and plaintiff Morris Loeb is a resident of California. The defendant, Action Industries, Inc. ("Action"), is a Virginia corporation having its principal place of business in Tupelo, Mississippi. Illinois is not the state of incorporation or residence of any party. The principal place of business of any party is not within the state of Illinois.
The following facts are of significant importance to the proper disposition of the instant motion.
In the instant complaint, the plaintiffs allege that the defendant Action has infringed certain patents relating to reclining chair moveable headrest constructions, referred to in the trade as "pop-up" headrests. More specifically, the plaintiffs allege that the defendant has infringed certain patents by making, using, and selling within this District and elsewhere throughout the United States low back reclining chairs embodying plaintiffs' patented inventions.
Action does not design or manufacture its "pop-up" chairs in Illinois. All of the "pop-up" operating mechanisms used in the Action chairs are procured from the Royal Development Company, Inc., located in High Point, North Carolina.1
Action's only direct contact with Illinois is that it leased space at the American Furniture Mart, 666 Lake Shore Drive, Chicago, Illinois, and retained a manufacturer-representative, Mr. Ronald Fink, to obtain and forward orders to Action.2
The patents in issue define a particular "pop-up" headrest construction. All of the people, records and documents closely associated with the design and manufacture of Action's "pop-up" headrest chairs are either in Virginia, North Carolina or Mississippi, and not in Illinois.3
Albert M. Spound, plaintiff, is named as an inventor of all four patents involved in this suit and resides in Massachusetts. The other two plaintiffs, Joseph Spound and Morris Loeb, allegedly have "rights" in these patents. They reside in Massachusetts and California respectively.
After carefully examining the instant motions, memoranda and exhibits submitted by the parties in support of their respective positions, it is the opinion of this Court that the instant action should be transferred to the Western District of Virginia for the convenience of the parties and witnesses and in the interest of justice. This Court need not and will not pass on the defendant's motion to dismiss, given the instant ruling.
It is well settled that the question of whether an action should be transferred pursuant 28 U.S.C. § 1404 (a) is one that rests in the sound discretion of the trial court. Nowell v. Dick, 413 F.2d 1204 (5th Cir. 1964); Arley v. United Pacific Ins. Co., 379 F.2d 183 (9th Cir. 1967), cert. denied, 390 U. S. 950, 88 S.Ct. 1039, 19 L.Ed.2d 1140; Barber-Greene v. Blaw-Knox Co., 239 F. 2d 774 (6th Cir. 1957); Burroughs Corp. v. Newark Electronics Corp., 317 F.Supp. 191 (N.D.Ill.1970).
Before a court can appropriately rule on a motion for transfer, the controlling factors relating to convenience of the parties and witnesses and the interests of justice should be carefully weighed.4
Plaintiff should not be sent to a forum which in the court's opinion does not assure it a fair trial. The privilege of selecting a forum continues to play a part in deciding transfer motions but it should not be cast in the leading role. The court should also consider the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling witness; cost of obtaining attendance of witnesses; possibility of a view, if appropriate; and other practical factors that would make the trial of a case easy, expeditious and inexpensive. In the long run, the ultimate inquiry is in what District a trial would best serve the convenience of the parties and witnesses, and the ends of justice.
After weighing the relevant factors, it is clear that the appropriate forum for the litigation of the instant action is the Western District of Virginia. This ruling is based on the following considerations:
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