MEMORANDUM OPINION
In this lawsuit,- plaintiff Stephen B. Pence has brought claims against defendant GEE Group, Inc. (“GEE”), for which Pence formerly .served as chairman, seeking indemnification for attorney’s fees and other expenses. GEE has moved-to dismiss under the - doctrine of forum non conve-niens, or, in the alternative, to transfer the case to the Northern District of Illinois under 28 U.S.C. §§ 1404(a) - or' 1406(a).
1. BACKGROUND
A. Pence’s Connection to GEE
Pence is an attorney who has worked in private practice in Louisville, Kentucky since late 2007. Pence Aff. ¶¶ 2-3. During 2009, Pence worked for W. Anthony Huff and regularly traveled with Mr. Huff to New York City in connection with his work. Id. ¶ 4. During one of these trips, Pence met with representatives of GEE, including Dennis W. Baker, a former director of the company. Id ¶¶ 5-6; Baker Decl. ¶ 8.
GEE is a temporary staffing agency, providing “direct hire, contract, and contract-to-hire services.” Stuckey Decl. ¶3. Although GEE is incorporated in Illinois, “senior management runs the company from Jacksonville, Florida and Tampa, Florida.”
B. The Indemnification Agreement
As of June 30, 2009, GEE’s bylaws provided that it would indemnify all of its directors and officers who are sued in connection with their positions at GEE. See By Laws of General Employment Enterprises, Inc., As Amended Effective June 30, 2009 (attached as Ex. A. to Stuckey Deck) (“Bylaws”) Art. VIII § 1. The Bylaws provide:
The corporation shall, to the fullest extent to which it is empowered to do so by The Illinois Business Corporation Act of 1983 or any other applicable laws ... indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending!,] or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was a director or officer of the corporation ... against all expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding.
Id. The Bylaws also declare that this provision is “a contract between the corporation and each director or officer who serves in any such capacity at any time while this article is in effect.” Id. Art. VIII § 2.
On July 9, 2009, Pence signed an Indemnity Agreement with GEE. Pence Aff. ¶ 14; Minutes, dated July 9,2009 (attached as Ex. B to Stuckey Decl.); Indemnity Agreement, dated July 9,2009 (attached as Ex. 2 to Amended Complaint for Declaratory Relief and Damages, filed Oct. 14, 2016 (Docket #25) (“Am. Compl.”)) (“Indemnity”). Pence was attending a board meeting in Oakbrook Terrace, Illinois at the time. Pence Aff. ¶ 14; Minutes. The Indemnity states that GEE will “attempt” to maintain liability insurance for those serving it and its subsidiaries, and that although GEE’s Charter and Bylaws and Illinois law provide for indemnification
This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the Stale of Illinois, without regard to its conflict of laws rules. ... [GEE] and [Pence] hereby irrevocably and unconditionally: (a) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in an Illinois Court; (b) consent to submit to the jurisdiction of an Illinois Court for purposes of any action or proceeding arising out of or in connection with this Agreement; (c) waive any objection to the laying of venue of any such action or proceeding in an Illinois Court; and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in an Illinois Court has been brought in an improper or inconvenient forum, or is subject (in whole or in part) to a jury trial.
Id. ¶23. The Indemnity defines “Illinois Court” as “the Circuit Court of the Eighteenth Judicial District of the State of Illinois- or another federal or state court of competent jurisdiction.” Id. ¶2(6). Oak-brook Terrace, where the Indemnity was signed, is located in Dupage County. Du-' page County is in the Eighteenth Judicial Circuit. See 705-111. Comp. Stat. 35/1.
C. Pence’s Costs Incurred, and Indemnity Requests
At some point thereafter, the United States Attorney’s Office for the Southern District of New York began a criminal-investigation that resulted in the filing of a criminal complaint in 2010 against the president- of a bank where GEE had an account. Pence Decl. ¶ 17; Letter from Gregory Bartko, Esq., dated Apr. 26, 2010 (attached as Ex. 3 to Am. Compl.) (“Bart-ko Letter”). In an April 26, 2010, letter from GEE’s General Counsel to an insurer, GEE’s General Counsel stated that Pence incurred expenses during that investigation for which he claimed indemnification. See Bartko Letter. That letter staked: “pursuant to GEE’s' Bylaws, as amended November 19, 2007, GEE has an obligation under Article VII of those Bylaws to indemnify Mr. Pence for the costs of his defense, including the advancement of attorneys’ fees necessary to engage counsel to represent him.” Id. The letter was sent from Atlanta, Georgia, to Rolling Meadows, Illinois, with a dopy sent' to Pence by email. See id. Pence’s complaint alleges that he relied on the Bartko Letter when he hired counsel tó represent him in connection with a criminal investigation. Am. Compl. ¶ 70. However, GEE has not indemnified Pence for any of these expenses. Id. ¶ 71.
On September 9, 2015, the Securities and Exchange Commission (“SEC”) filed a civil complaint against Pence. See Complaint and Jury Demand, filed Sept. 9, 2015 (Docket # 1), in SEC v. Pence, No. 15
D. Procedural History
Pence’s original complaint in this action was filed on August 19, 2016. It contained a claim seeking a declaratory judgment that .GEE is legally obligated to indemnify Pence and a claim for damages resulting from GEE’s alleged breach of the Indemnity. See Complaint for Declaratory Relief and Damages, filed Aug. 19, 2016 (Docket # 1) ¶¶ 52-58. GEE then filed a motion to dismiss the complaint, arguing that this Court lacked personal jurisdiction, that venue was improper, and that the complaint failed to state a claim.
II. DISCUSSION
GEE moves for transfer under 28 U.S.C. §§ 1404(a) or 1406(a) to the United States District Court for the Northern District of Illinois, - or, in the alternative, for dismissal or transfer under the common law doctrine of forum non conveniens.
Section 1404(a) is merely a codification of the doctrine of forum non conveniens for the subset of cases in which the transferee forum is within the federal court system; in such cases, Congress has replaced the traditional remedy of outright dismissal with transfer.
Id. at 580 (citations omitted). Here, GEE seeks transfer to the United States District Court for the Northern District of Illinois, which is “within the federal court system.” See id. Thus, Atlantic Marine mandates that we analyze GEE’s application exclusively under 28 U.S.C. § 1404(a).
GEE contends that the forum non con-veniens doctrine — rather than section 1404(a) — applies because the contract at issue permits suit to-be brought either in federal court or in state court and, according to GEE, in such circumstances, the rule quoted above from Atlantic Marine does not apply. Def. Mem, at 6. To support this argument, GEE points to a passage from Atlantic Marine stating that “the appropriate way to enforce a forum-selection clause pointing to a state or foreign forum is through the doctrine of forum non con-veniens.”
A. Law Governing Motions t,o Transfer to Another Judicial District Under § 1404(a)
In deciding whether to transfer a case from one judicial district to another, a court first examines whether the case could have been brought in the other district.. See, e.g., ICICI Bank Ltd. v. Essar Glob, Fund Ltd.,
If the case could have been brought in the other district, a court then examines a number of factors, commonly referred to as “private” and “public-interest” factors. Id. The Second Circuit has listed the following factors as appropriate for consideration in determining whether to grant a motion to transfer venue:
(1) the plaintiffs choice of forum, (2) the convenience of witnesses, (3) the location of relevant documents and relative ease of access to sources of proof, (4) the convenience of parties, (5) the locus of operative facts, (6) the availability of process to compel the attendance of unwilling witnesses, and (7) the relative means of the parties.
N.Y. Marine & Gen. Ins. Co. v. Lafarge N. Am., Inc.,
“The calculus changes, however, when the parties’ contract contains a valid forum-selection clause.” Atlantic Marine,
First, the plaintiffs choice of forum merits no weight. Rather, as the party defying the forum-selection clause, the plaintiff bears the burden of establishing that transfer to the forum for which the parties bargained is unwarranted. ... Second, a court evaluating a defendant’s § 1404(a) motion to transfer based on a forum-selection clause should not consider arguments about the parties’ private interests. When parties agree to a forum-selection clause, they waive the right to challenge the preselected forum as inconvenient or less convenient for themselves or their witnesses, or for their pursuit of the litigation. A court accordingly must deem the private-interest factors to weigh entirely in favor of the preselected forum. ... As a consequence, a district court may consider arguments about public-interest factors only. ...
Third, when a party bound by a forum-selection clause flouts its contractual obligation and files suit in a different forum, a § 1404(a) transfer of venue will not carry with it the original venue’s choice-of-law rules — a . factor that in some circumstances may affect public-interest considerations.
Id. at 581-82 (emphasis added) (citations omitted); accord Bent v. Zounds Hearing Franchising, LLC,
B. Forum Selection Clause
As to whether a forum selection clause applies, the Second Circuit has held that a forum-selection clause is “presumptively enforceable” if the moving party can demonstrate that: (1) the clause was “reasonably communicated to the party resisting enforcement”; (2) the clause is mandatory, rather than permissive, in nature; and (3) the clause encompasses the plaintiffs claims. See Phillips v. Audio Active Ltd.,
Pence does not contest that the clause was reasonably communicated to him — nor could he given that it was contained iñ a contract he signed and, he was sufficiently sophisticated to understand it. As for whether the clause encompasses any of the claims in this lawsuit, Pence similarly does not contest that his claim for breach of the Indemnity agreement, Am. Compl. ¶¶ 62-67, would be subject to the forum selection clause if it were enforced.
We thus examine next whether the Indemnity’s forum selection clause is mandatory. We apply Illinois law in interpreting the Indemnity because the Second Circuit has held that the law specified in the parties’ agreement containing a forum selection clause governs the interpretation (as opposed to the enforcement) of the forum selection clause. See Martinez,
Under Illinois law, “an indemnity agreement is a contract and is subject to contract interpretation rules.” Va. Sur. Co. v. N. Ins. Co. of N.Y.,
Read by itself, paragraph 23 is clearly a mandatory forum selection clause inasmuch as it statés that “any action or proceeding arising out of or in connection with
We agree with GEE that the Indemnity can only rationally be read to require suit in a federal or state court located in Illinois. The phrasing of paragraph 23 — which contains the actual ‘ forum selection clause — reflects an unambiguous intention to limit suit to an “Illinois Court.” The intent of that paragraph would be destroyed were' we to interpret the term “Illinois Court” to mean' a court anywhere in the- United States. Such a conclusion could only be characterized as “absurd” — a result that must be avoided. Suburban Auto Rebuilders, Inc. v. Associated Tile Dealers Warehouse, Inc.,
Pence urges that the phrase “another federal or state court of competent jurisdiction” has “no geographic limitation” and thus that the Court should not' “add” one. Pl. Mem. at 18. But Pence does not explain how we could interpret the phrase as containing no geographic limitation and maintain fidelity to the parties’ intention as expressed in paragraph .23, which contains the operative language; In fact, to accept Pence’s interpretation would make clause “(a)” of paragraph 23 meaningless and unnecessary, and would violate the canon of interpretation that a contract should be construed' to give effect to all its provisions. See Martindell v. Lake Shore Nat’l Bank,
This reading of the Indemnity becomes all the more obvious if we imagine that paragraph 23 had been written as follows: “ ‘Illinois Court’ shall mean any federal or state court of competent jurisdiction.” Had the provision been so drafted, it would be beyond dispute that the parties did not intend to define “Illinois Court” to refer to any federal or state court in the United States but rather were referring to any federal or state court in Illinois. This reading would be correct because We can imagine that the drafters of the definition might have reasonably assumed that it was not necessary to repéat the limiting phrase “in Illinois,” given that the provision was itself a definition of “Illinois Court.” With this in mind, we do not see why the naming of a specific court in Illinois in the definition — that is, “the Circuit Court of the Eighteenth Judicial District of the State of Illinois” — should change the analysis. Thus, the drafters of paragraph 2(e) could have reasonably concluded that an additional limiting phrase, such as “in Illinois,” was unnecessary.
Pence urges that if we find the phrase “another federal or state court of competent jurisdiction” to be ambiguous, we should construe the term against GEE because it was the contract’s drafter. PI. Mem. at 21. We accept that “any ambiguity in the terms of a contract must be resolved against the drafter of the disputed provision.” Dowd & Dowd, Ltd. v. Gleason,
Accordingly, we conclude that the forum selection clause is mandatory. Pence has not made a showing that enforcement of the clause is “unreasonable or unjust, or that the clause was invalid.” Martinez,
C. Section 1404(a) Analysis of the Indemnity Claim
As discussed above, if the forum selection clause is mandatory, the plaintiffs choice of forum carries no weight in the section 1404(a) analysis and a court does not consider private interests. Atlantic Marine, 134 S.Ct..,at 581-82. The factors the Supreme Court identified as non-private, or “public,” consist of “the administrative difficulties flowing from court Congestion;- the local interest in having localized controversies decided -at home; [and] the interest in having the trial of a diversity case in a forum that is at home with the law.” Id. at 581 n.6 (alteration in original) (citation and internal quotation marks omitted). The party acting in violation of the' forum-selection clause “bear[s] the burden of showing that public-interest factors overwhelmingly disfavor a transfer.” Id. at 583.
Pence recognizes that, in the event the forum selection clause is found to be mandatory as to the Indemnity claim, we must not consider any “private” factors. PL Mem. at 22. Yet his only argument that the Indemnity claim should not be transferred relies exclusively on his argument that hearing the case in Illinois would “create inconvenience to Mr. Pence” — a matter that cannot be considered under Atlantic Marine — and that the transfer would “needlessly waste judicial resources” be
Thus, Pence has not met his burden of showing that the public-interest factors “overwhelmingly disfavor a transfer.” Atlantic Marine,
D. Section 1404(a) Analysis of the Claim Under the Bylaws and for Promissory Estoppel
GEE. argues that the .remaining claims — under the Bylaws and for promissory estoppel — are governed by the broad language of the forum selection clause. See Indemnity ¶23 (“any action or proceeding arising out of or in connection with this Agreement shall be brought only in an Illinois Court”) (emphasis added). Pence disputes this reading, of the forum, selection clause. See PI. Mem. at 24-26. We do not address GEE’s argument, however, because even if Pence is correct, these claims must still be transferred under section 1404(a).
. Because we assume arguendo that the forum selection clause does not apply to these claims, we examine all the section 1404(a) factors — both public and-private.
1. Trial Efficiency and the Interest of Justice
Concerns of trial efficiency and the interest of justice weigh overwhelmingly in favor of transfer because the Indemnity claim must be transferred as a result of the forum selection clause. The Bylaws and promissory estoppel claims rely on essentially the same facts as the claim under the Indemnity. See Am. Compl. ¶¶ 56, 61, 68. All three of the claims seek the same relief: that is, advancement or reimbursement of Pence’s attorney’s fees and other expenses for some or all of the proceedings he has been sued in (or a declaration that he is entitled to reimbursement). See id. ¶¶ 60, 62, 71. It would be wasteful in the extreme if discovery and trial of these matters were to be duplicated in two different districts.
2. Locus of Operative Facts
In contract cases, the locus of operative facts examines “where the con
Here, the causes of action center on the failure of GEE to advance or pay money to Pence to cover'his attorney’s fees and expenses — not the negotiation of the contract or the creation of the Bylaws. The Court views the causes of action under the Bylaws as having several loci of operative facts. The decision not to indemnify Pence, according to GEE’s Chief Operating Officer and President, was made “principally in Florida.” Stuckey Decl. ¶¶ 1, 11. The source of the potential reimbursement is GEE, whose offices are located in Florida. Id. ¶ 2. The benefit of the payment inures to Pence, who is located in Kentucky. Am. Compl. ¶ 2. The attorneys who generated or are generating the expenses allegedly subject to reimbursement are located in New York. See Bartko Letter; Answer to Complaint and Defenses, filed Feb. 4, 2016 (Docket # 16), in SEC v. Pence, No. 15 Civ. 07077 (GBD) (GWG) (S.D.N.Y.), at 16 (listing Pence’s defense counsel’s address as New York, New York).
The claim for promissory estoppel has little connection to New York inasmuch as the Bartko Letter was sent from Atlanta, Georgia, to Rolling Meadows, Illinois, copying Pence (who lives in Kentucky) via email. See Bartko Letter.
Given the fact that New York is at best one of several loci of operative facts, this factor provides little reason to deny transfer.
3. Forum’s Familiarity with the Governing Law
Pence has not argued, that New York law applies to his claims under the Bylaws or for promissory estoppel. The Bylaws will presumably be construed in accordance with Illinois law, given that they emanate from an Illinois company and their indemnification article refers to indemnification occurring “to the fullest extent to which [GEE] is empowered to do so by The Illinois Business Corporation Act of 1983.” Bylaws Art. VIII § 1. A federal court in Illinois will be more familiar with the governing law and thus this factor favors transfer.
4. Plaintiffs Choice of Forum
“A plaintiffs choice of forum is generally entitled to considerable weight and should not be disturbed unless the
5. Convenience of the Parties and Non-Party Witnesses
“The convenience of parties and witnesses is considered the essential criterion] under the venue statute.” In re Nematron Corp. Sec. Litig.,
Because neither GEE nor Pence has listed what witnesses it will seek to call at trial, let alone their locations, the Court is unable to analyze the issue of convenience for the witnesses. As for convenience to the parties* however, the factor weighs somewhat in favor of transfer. The Northern District of Illinois is seemingly convenient for GEE, as it holds meetings
6.Location of Relevant Documents and Ease of Access to Sources of Proof
“In an era of electronic documents, easy copying and overnight shipping, this factor assumes much less importance than it did formerly. Furthermore, the location of documents is entitled to little weight unless [the movant] makes a detailed showing of the burden it would incur absent transfer.” Larew,
7.Availability of Process to Compel Attendance of Unwilling ■ Witnesses’
Pursuant to Federal Rule of Civil Procedure 45(c)(1)(A), a court generally cannot issue a subpoena that would compel a non-party witness to travel more than 100 miles or out of state. Neither party has listed witnesses, let alone any non-party witnesses, who may need to be subpoenaed. Thus this factor does not affect our analysis. Tlapanco,
8.Relative Means of the Partiés
Neither party has suggested that this factor has any bearing on the analysis.
9.Summary
While a few factors counsel slightly against transfer, most of the factors are either neutral or strongly favor transfer. More importantly, it would be extremely wasteful to litigate nearly identical claims in two separate fora, The question of efficiency so obviously dictates a transfer in this matter that we conclude that the two remaining claims must also be transferred pursuant to 28 U.S.C. § 1404(a). ,
III. CONCLUSION
For the reasons stated above, the defendants have made a meritorious motion" to transfer this case in its entirety. The Court will delay issuing the order of transfer, however, until after March 2, 2017, to allow plaintiff to seek a stay in the event he seeks review of this Opinion and Order pursuant to Federal Rule of Civil Procedure 72(a) and chooses to make a motion
Notes
. See Notice of Motion, filed Oct, 28, 2016 (Docket # 30); Declaration of Michael P. Re-gan in Support of Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint, or Alternatively, to Transfer, filed Oct, 28, 2016 (Docket # 31); Declaration of Dennis W. Baker, filed Oct. 28, 2016 (Docket #32) ("Baker Decl.”); Declaration of Alex P. Stuckey in Support of Motion to Dismiss, filed Oct. 28, 2016 (Docket #33) ("Stuckey Decl.”); Memorandum of Law in Support of Defendant GEE Group Inc.’s Motion to Dismiss the Amended Complaint or, Alternatively, to Transfer, filed Oct. 28, 2016 (Docket #34) ("Def. Mem,”); Affidavit of Stephen B. Pence in Opposition to Defendant GEE Group, Inc.’s Motions- to Dismiss or Transfer, filed Nov. 14, 2016 (Docket #40) ("Pence Aff,”); Memorandum of Law in Opposition to Defendant GEE Group, Inc.’s Motions to to [sic] Dismiss or Transfer, filed Nov.' 14, 2016 (Docket # 41) ("Pi. Mem.”); Declaration of Michael P, Regan in Further Support of Defendant’s Motions to Dismiss, filed Dec. 2, 2016 (Docket # 42); Reply Memorandum of Law in Further Support of Defendant GEE Group, Inc.’s Motions to Dismiss the Amended Complaint or, Alternatively, to Transfer,
. GEE considers Florida its “principal place of business” for jurisdictional purposes. See Memorandum of Law in Support of Defendant GEE Group, Inc.’s Motion to Dismiss the Amended Complaint Under Rule 12(b), filed Oct. 28, 2016 (Docket # 39) at 9.
. See Notice of Motion, filed Sept, 26, 2016 (Docket # 12); Declaration of Alex P.’ Stuckey in Support of Motion to Dismiss, filed Sept. 26, 2016 (Docket # 13); Declaration of Michael P. Regan in Support of Defendant’s Motion to Dismiss Plaintiff's Claim, filed Sept. 26, 2016 (Docket # 14); Memorandum Of Law in Support of Defendant GEE Group, Inc.’s Motion to Dismiss the Complaint Under Rule 12(b), filed Sept. 26, 2016 (Docket # 15) ("Def. Dismiss Mem.”); Supplemental Declaration of'Alex P. Stuckey in Support of Motion to Dismiss, filed Oct. 11, 20-16 (Docket # 24). The motion to dismiss included an argument that the complaint should be dismissed under Fed., R. Civ. P. 12(b)(6) based on the forum-selection clause. See Def. Dismiss Mem. at 10-13.
. See Notice .of Motion, filed Sept. 26, 2016 (Docket # 16); Declaration of Michael P. Re-gan ,in Support of Defendant’s Motion to Dismiss Plaintiff’s Complaint, or, in the Alternative, Motion to Transfer, filed Sept. 26, 2016 (Docket # 17); Memorandum of Law in Support of Defendant GEE Group, Inc.’s Motion to Dismiss the Complaint or, Alternatively, to Transfer, filed Sept. 26, 2016 (Docket # 18).
.At a conference on October 17, 2016, two days after filing his amended complaint, Pence’s counsel stated that he would not pursue claims under the Indemnity if this Court found the forum selection clause was mandatory. See generally Pi. Mem. at 23 n. 10. Pence has since reconsidered that position and stated that he will not forgo enforcement of his 'rights under the Indemnity. Ick He also states that he intends to amend his complaint to add .a claim for specific performance under section 20(e) of the Indemnity. Id. at 23-24 n.10.
. In addressing the question of whether the forum selection clause should be applied at all, Pence- argued that the case brought against him in New York by. the SEC and the instant case involve similar facts. See PI. Mem. at 23-24. We reject this argument. The SEC case involves allegations that Pence violated securities laws; it makes no mention of arrangements between GEE and Pence regarding indemnification. Pence does not identify any issues that will be litigated in the SEC case that will also be litigated in the instant case.
. The Court notes that this factor is generally given little weight, as "federal courts commonly apply state substantive law, which may not be the law of the state in which the federal court sits.” Freeplay Music, LLC v. Gibson Brands, Inc.,
. We note that the courthouse for the Eastern Division of the Northern District of Illinois in Chicago is approximately 300 miles from Jefferson County, Kentucky, where Pence lives and practices law. The Southern District of New York is approximately 750 miles from Jefferson County.- -
. Any motion for a stay should be made in the first instance to the undersigned. The Court's pre-motion conference requirement is waived for such a motion.