lands are, citing Minichiello, etc. v. Britt, 460 F. Supp. 896 (D.N.J.1978) and other precedents there referred to. X-Rail argues that the claim is not local but transitory and relies on a number of New Jersey cases, among others, for the proposition. Lindsley v. O'Reilly, 50 N.J.L. 636, 15 A. 379 (E & A 1888) does not support the proposition. It does contain a passage, quoted in X-Rail's brief, that courts of equity of one jurisdiction may entertain a suit for specific performance, or to establish a trust, or for a conveyance, in respect to land (or an interest therein) located in another jurisdiction. But, as the rest of the decision shows, this only is true when there is no dispute of title or right of possession, referring to Davis v. Headley, 22 N.J.Eq. 115 (Ch. 1871) where the New Jersey court refused to enforce a Kentucky court decree rescinding a conveyance of New Jersey lands, and fell outside the Full Faith and Credit Clause, citing Public Works v. Columbia College, 84 U.S. 521 (1873).
In Clement v. Stanger, 75 N.J.L. 287, 68 A. 97 (Sup., 1907), a suit for damages for breach of personal derelictions by the covenanting lessee was held transitory rather than local because "(t)he action is not brought to recover possession * * *."
Similarly, a suit to recover unpaid rent, where "the title to the land was at no time legally brought in(to) question" was held transitory and not local. Prospect Point v. Jackson, 109 N.J.L. 385, 162 A. 576 (E & A 1932).
The dispute here does involve possession. Railway expects to have the right to possession on March 31/April 1, 1980 (which date controls would be a matter of Illinois law), and X-Rail seeks to restrain Railway from obtaining possession then.
X-Rail does also seek damages, but if its claim proves to be unfounded, it will have no claim for damages but may be liable in damages. If it be sustained in its claim to retain possession for the months while it readies its new location, the possession itself will be enjoyed and no claim for damages can arise. X-Rail can only recover damages if Railway recovers possession and its recovery thereof proves to have been unwarranted.
Thus, the outcome will necessarily be controlled by the disputed issue of the right to possession, and this aspect is local, not transitory.
Railway also claims lack of in personam jurisdiction, especially in light of the recent decisions in Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S. Ct. 559, 62 L. Ed. 2d 490 (1980) and Rush v. Savchuk, 444 U.S. 320, 100 S. Ct. 571, 62 L. Ed. 2d 516 (1980), and their effect on International Shoe Co. v. Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945).
X-Rail has the burden of showing sufficient minimum contacts to show jurisdiction over the person, and is entitled to have discovery to obtain the facts to carry that burden. McNutt v. General Motors, etc., 298 U.S. 178, 56 S. Ct. 780, 80 L. Ed. 1135 (1936); Krasnov v. Dinan, 465 F.2d 1298 (CA3, 1972); Blue v. Nat'l. Fuel, etc., 437 F. Supp. 715 (D.Pa.1977); River Plate Corp. v. Forestal Land, etc., 185 F. Supp. 832 (D.N.Y.1960).
Discovery by deposition and document discovery began March 10, 1980, but documents were refused and witnesses were improperly instructed not to answer, so that discovery is incomplete. This court is unable to rule on the point.
In these circumstances, the proper remedy is to transfer the case to the U.S. District Court for the Northern District of Illinois. Such a transfer is authorized by 28 U.S.C. § 1404(a) in the interests of justice, and by 28 U.S.C. § 1406(a) where a case is in the wrong district. See, U. S. v. Berkowitz, 328 F.2d 358 (3 Cir. 1963), cert. den., 379 U.S. 821, 85 S. Ct. 42, 13 L. Ed. 2d 32 (1964).
Railway is undeniably present in Chicago for in personam actions, and the land is also in Chicago. Transfer will accordingly strike a constructive blow in support of the need to eliminate avoidable discovery, and aid in the inexpensive determination of the action, Rule 1, F.R.Civ.P., since it will render moot the dispute over minimum contacts.
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