Central States, Southeast and Southwest Areas Pension Fund et al v. Mid-West Illinois Concrete Construction, Inc.

Filing 23

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 5/14/2015:Mailed notice(wp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

CENTRAL STATES, SOUTHEAST
AND SOUTHWEST AREAS PENSION
FUND and ARTHUR H. BUNTE,
JR., as Trustee,
Case No. 14 C 9939
Plaintiffs,
Judge Harry D. Leinenweber
v.
MID-WEST ILLINOIS CONCRETE
CONTRUCTION, INC.,
Defendants.

MEMORANDUM OPINION AND ORDER
Before
West”)

the

Motion

Court
to

is

Defendant

Transfer

Venue

Mid-West

from

Illinois’

this

district

Central District of Illinois [ECF No. 10].

(“Midto

the

For the reasons

stated herein, Mid-West’s Motion is denied.
I.
This

ERISA

case

BACKGROUND

arises

from

Plaintiffs

Central

States,

Southeast and Southwest Areas Pension Fund and Arthur H. Bunte,
Jr.’s (collectively, “the Fund”) efforts to recover withdrawal
liability payments from Mid-West.
Construction

Inc.

(“AEH”)

was

According to the Fund, AEH
previously

bound

by

several

collective bargaining agreements to make contributions to the
Fund.
2011,

Those obligations permanently ceased around August 28,
effecting

a

complete

withdrawal.

Although

the

Fund

notified AEH of its withdrawal liability, AEH failed to make
payments or timely initiate arbitration.
the

Fund

filed

judgment

for

suit

against

$40,531.42

in

AEH

On January 16, 2013,

and

ultimately

withdrawal

liability

obtained

a

principal,

interest, and liquidated damages.
The

Fund

now

seeks

to

recover

$31,866.43

in

withdrawal

liability from Mid-West under a theory of successor liability.
In support of its successor liability theory, the Fund alleges
that Mid-West performs the same work as AEH, employs former AEH
employees, and came into being just as AEH ceased operations.
Mid-West’s

President,

Thomas

Hensley,

previously

served

as

President of AEH.
II.
“For

the

convenience

LEGAL STANDARD
of

parties

and

witnesses,

in

the

interests of justice, a 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 is appropriate if

“(1)

proper

transferor

venue

is

in

both

the

and

transferee

court; (2) transfer is for the convenience of the parties and
witnesses; and (3) transfer is in the interests of justice.”
Midas Int’l Corp. v. Chesley, No. 11 C 8933, 2012 WL 1357708, at
*2 (N.D. Ill. Apr. 19, 2012) (citation and internal quotations
omitted).

In evaluating the second and third factors, the Court

considers “both the private interests of the parties and the
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public interests of the court.”

Medi USA v. Jobst Inst., Inc.,

791 F.Supp. 208, 210 (N.D. Ill. 1992).
broad

discretion

in

weighing

these

District courts have

factors,

and

the

party

seeking transfer 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 (7th Cir. 1986).
III.

ANALYSIS

As to the first factor, the parties do not dispute that
venue is proper in both the Northern and the Central Districts
of Illinois.

Under ERISA’s venue provisions, venue is proper

“where the plan is administered, where the breach took place, or
where a defendant resides.”
id. § 1451(d).

29 U.S.C. § 1132(e)(2); see also,

Here, venue is proper in the Northern District

of Illinois because the Fund is administered out of Rosemont,
Illinois,
proper

located

in

the

in

the

Central

Northern

District

of

District.

Venue

Illinois

because

is

also

Mid-West

resides in Galesburg, Illinois, located in the Central District.
(For

this

reason,

the

Court

rejects

Mid-West’s

alternative

argument that the case should be dismissed pursuant to 28 U.S.C.
§ 1406(a).)
The Court now turns to the convenience of the parties and
witnesses.

As an initial matter, the Fund argues that Mid-West

has waived its right to challenge the convenience of this forum
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because Mid-West — as AEH’s successor — is bound by the forumselection clause contained in a Trust Agreement between AEH and
the Fund.

(See, Ex. 1 to Pls.’ Resp., ECF No. 18-1.)

Agreement

provides

venue

“in

the

that

United

all

unions

States

and

District

employers

Court

District of Illinois, Eastern Division.”

for

The Trust
consent

the

to

Northern

(Id. at 28.)

Although

no judicial determination has been made as to whether Mid-West
is

AEH’s

successor,

the

Fund

argues

that

Mid-West

is

nevertheless bound by the Trust Agreement as a party that is
“closely related” to the dispute.

However, the issue of whether

Mid-West and AEH are “closely related” is the crux of the Fund’s
successor liability theory.
early

stage

of

the

The Court cannot conclude, at this

litigation,

and

in

the

absence

of

any

discovery, that Mid-West is so closely related to AEH that it is
bound by the Trust Agreement.

The Court therefore finds that

Mid-West has not waived its right to object to the convenience
of this forum.
In assessing the convenience of the parties and witnesses,
courts examine the following private interest factors:

“(1) the

plaintiff’s choice of forum; (2) the situs of material events;
(3) the relative ease of access to sources of proof; (4) the
convenience of the witnesses; and (5) the convenience to the
parties

of

litigating

in

the

respective

forums.”

Omarc, Inc., 6 F.Supp.2d 770, 774 (N.D. Ill. 1998).
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Hanley

v.

Here, no

single

factor

tips

the

scale

strongly

in

favor

of

transfer.

Although Mid-West recites the relevant factors, “it never goes
beyond

vague

generalizations”

in

showing

District of Illinois is more convenient.

why

the

Central

See, Heller Fin., Inc.

v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th Cir. 1989).

As

to the situs of material events, Mid-West states that “[t]he
subject

matter

of

the

Complaint

allegedly

occurred

in

the

Central District of Illinois,”

(Def.’s Mem., ECF No. 17, at 6),

but

support

provides

instance,

no

specifics

Mid-West

does

in
not

of

contend

its

that

argument.
the

For

collective

bargaining agreements were negotiated or executed in the Central
District, or that the alleged breach occurred there.
Mid-West’s arguments regarding the convenience of witnesses
and access to sources of proof fare no better.
(“All

of

the

potential

witnesses

on

behalf

(See, id. at 6–7
of

the

Defendant

reside in or around Galesburg, Illinois. . . . All sources of
proof

on

behalf

of

the

Galesburg, Illinois.”).)

Defendant

are

located

in

or

around

To establish that the Central District

of Illinois is a more convenient forum, Mid-West is “obligated
to clearly specify the key witnesses to be called and make at
least a generalized statement of what their testimony would have
included.”

Heller,

883

F.2d

at

1294;

see,

e.g.,

Sayles

v.

DirectSat USA, LLC, No. 10 C 2879, 2011 WL 382875, at *4 (N.D.
Ill.

Feb.

3,

2011)

(finding

that
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defendant

in

distant

forum

failed to establish convenience where there was no indication
“that voluminous records would need to be transferred” or that
“any

significant

witnesses

will

be

required

to

travel.”)

Moreover, it is unclear from Mid-West’s vague statements whether
it intends to call employee or non-party witnesses.

Because it

is assumed that a party will be able to compel its own employee
witnesses

to

appear,

the

Court’s

convenience of non-party witnesses.

analysis

focuses

on

the

Kammin v. Smartpros, Ltd.,

No. 07 C 2665, 2007 WL 3046128, at *2 (N.D. Ill. Oct. 9, 2007).
Mid-West fails show why the Central District provides a more
convenient forum for witnesses, or improved access to relevant
sources of proof, with any degree of specificity.
Mid-West contends that litigating in this forum would be
inconvenient because it is a small company with only six to nine
employees

located

Although

the

litigating

in

approximately

Court
a

is

200

mindful

distant

forum,

of
in

miles
the
this

away

from

potential
case,

Chicago.

burden

transfer

of

would

merely transform inconvenience for Mid-West into inconvenience
for the Fund.
Research

In such instances, transfer is not appropriate.

Automation,

Inc.

v.

Schrader-Bridgeport

Int’l,

Inc.,

626 F.3d 973, 979 (7th Cir. 2010).
Finally, Mid-West argues that this Court should not afford
the Fund’s choice of forum any deference because the Fund lacks
a

substantial

connection

to

this
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district,

apart

from

its

administration here.

“In an ERISA enforcement action brought by

a pension plan, the court must give substantial deference to the
plaintiff’s choice of venue unless it is clearly outweighed by
other factors.”

Cent. States v. Lewis & Michael, Inc., 992

F.Supp. 1046, 1048 (N.D. Ill. 1998).

Because Mid-West has not

carried its burden in showing that the Fund’s choice is clearly
outweighed by other factors, the Court concludes that the Fund’s
choice

of

forum

“convenience

of

is

entitled

to

the

parties

deference.

and

witnesses”

On
does

balance,
not

the

support

transfer.
The “interests of justice” element of the transfer analysis
relates to the efficient administration of the court system.
Research

Automation,

626

F.3d

at

978.

In

assessing

whether

transfer serves the interests of justice, the Court considers
public interest factors including:
will

proceed

to

trial;

(2)

the

“(1) how quickly the case

court's

familiarity

with

the

applicable law; and (3) the relationship of the parties to and
the desirability of resolving the controversy in a particular
community.”

Cent. States, Se. & Sw. Areas Pension Fund v. Mills

Investments, LLC, No. 11 C 3297, 2011 WL 4901322, at *2 (N.D.
Ill. Oct. 14, 2011).

Although Mid-West refers to the “interests

of justice,” it does not address any of these factors in its
memorandum.

As a result, the Court has no basis to conclude

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that transfer to the Central District of Illinois would serve
the interests of justice.
IV.

CONCLUSION

For the reasons stated herein, because Mid-West has not
carried

its

burden

in

showing

that

transfer

serves

the

convenience of the parties and witnesses or the interests of
justice, its Motion to Transfer [ECF No. 10] is denied.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated:5/14/2015

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