The opinion of the court was delivered by: Wigenton, District Judge.
Before the Court is the motion of defendant, Stevenson Crane Services, Inc. ("Stevenson") to dismiss the Complaint (Docket Entry No. 4) for lack of personal jurisdiction pursuant to FED.R.CIV. P. 12(b)(2). Stevenson alternatively moves to dismiss for improper venue pursuant to FED.R.CIV. P. 12(b)(3), or to transfer the case to the United States District Court for the Northern District of Illinois, Eastern Division, based on forum non conveniens, pursuant to 28 U.S.C. § 1404(a). Plaintiff, J.F. Lomma, Inc. d/b/a J.F. Lomma, Inc. of Delaware ("Lomma") opposes this motion.
This Court has considered the papers submitted in support of and in opposition to the motion. For the reasons expressed below, the Court concludes that venue is improper in this district. The Court therefore, in its discretion, will transfer this action pursuant to 28 U.S.C. § 1406(a), to the Northern District of Illinois.*fn1
This is a diversity suit brought by Lomma against Stevenson.*fn2 Lomma seeks to recover $343,936.48 in withheld payments from Stevenson and $488,500.00 for the fair market value of the crane allegedly seized by Stevenson. (Compl. Counts I-IV). Lomma is a Delaware corporation, with its principal place of business in New Jersey.*fn3 (Compl. ¶1). Lomma is engaged in the business of renting cranes, transporting construction cranes, and other related services. (Compl. ¶ 3).
Stevenson is an Illinois corporation, with its principal place of business in Bolingbrook, Illinois. (Compl. ¶2; Donna Stevenson Affidavit ("Stevenson Aff.) ¶¶ 3-4). Although not explained by the parties, the Complaint, documents attached thereto, and Stevenson's briefs in support of its motion to dismiss suggest that Stevenson is in the construction business.
Lomma's claims arise out of a series of crane rental contracts between the parties. Between 2006 and 2008, the parties entered into three separate rental contracts, whereby Lomma provided crane rental services to Stevenson for use on various construction projects. (Compl. ¶¶ 5-6 and Exhs. A-C). The first contract, dated September 8, 2006, was a lease agreement with an option to purchase a FAVCO 760 Tower Crane ("Tower Crane") for use on a street project in Chicago, Illinois. (Compl., ¶5 and Exh. A). The contract included a transportation "in" fee for $70,000 and a transportation "out" fee for $70,000 with the crane being returned to Newark, New Jersey after the rental period expired. (Compl. at Exh. A).
The second contract, dated May 30, 2007, was a "Bare Rental Agreement Per Estimate Number R6070505-F" for a Manitowoc 18000 Crawler Crane ("Crawler Crane") for use on a highway project in Clifton Hills, Missouri. (Compl. ¶5 and Exh. B). The contract provided that Stevenson was to pick up the Crawler Crane in Manitowoc, Wisconsin and Newark, New Jersey. (Compl. at Exh. B).
The third contract, dated April 29, 2008, was a "Bare Rental Agreement Per Estimate Number R6080412 for a Linkbelt RTC8065 II Rough Terrain "Picker" Crane ("Picker Crane") for use on a nuclear station project in Dresden, Illinois. (Compl. ¶5 and Exh. C). The contract provided that Stevenson was to pick up the Picker Crane for rental at a location in Sublette, Illinois and return it to their own yard after the rental period was complete. (Compl. at Exh. C). All three contracts provided that any disputes arising thereunder were to be governed by New Jersey law. (Id. at Exhs. A-C).
Lomma alleges that, after providing the crane rental services, it sent invoices to Stevenson. (Compl. ¶¶ 6-7 and Exhs. C & D). Lomma further alleges that it made several unsuccessful attempts to collect on these outstanding invoices. (Id. at ¶7). For example, in March 2010, Stevenson allegedly agreed to make a partial payment of its outstanding debt. (Id. at ¶ 7 and Exh. E). Stevenson mailed a $25,000 check from its offices in Illinois to Lomma's office in Kearny, New Jersey but then issued a stop payment. (Id.)
Lomma also alleges that, after it provided the crane rental services, in 2008 Stevenson advised Lomma that the Picker Crane should remain on-site at Stevenson's yard in Illinois to be used for another project. (Id. at ¶8). As such, Stevenson kept the Picker Crane at its Illinois yard. (Id.)
Lomma further contends that, when it sought payment for Stevenson's contractual debt, Stevenson retaliated by seizing the Picker Crane under false pretenses. (Id. at ¶9). According to Lomma, in March 2010, Stevenson created fictitious storage invoices for the Picker Crane, backdating them to October 2008 through March 2010. (Id. at ¶9 and Exh. F). These storage invoices were billed from Stevenson's Bolingbrook, Illinois office and sent to Lomma's office in Kearny, New Jersey. (Compl. at Exh. F).
On May 18, 2010, Stevenson filed a Notice of Labor and Storage Lien Claim ("Lien") in Illinois state court, Cook County, concerning the Picker Crane in its possession. (Id. at ¶ 10 and Exh.H). In the Lien, ...