06/10/2008 9 Opposition to Motion for Change of Venue filed by Burr & Forman, LLP. (Nesmith, Kip) (Entered: 06/10/2008)
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Doc 9
Exhibits
EXHIBIT 1 AFFIDAVIT OF GENE PRICE
EXHIBIT 2 AGREEMENT TO PAY AMOUNTS DUE AS INVOICED
OCR Extract
PLAINTIFF’S OPPOSITION TO MOTION FOR CHANGE OF VENUE
Plaintiff, Burr & Forman LLP (“Burr & Forman” or “Plaintiff”). Hereby opposes the motion of defendants Perihelion Global, Inc. (“Perihelion”) and John Beebe (collectively, “Defendants”) to transfer this action to the United States District Court for the Northern District of Florida:
INTRODUCTION
This matter arises out of work and labor done in Birmingham, Alabama, for which Defendants failed to compensate Burr & Forman. The Defendants move to transfer this action to the United States District Court for the Northern District of Florida, ostensibly for the convenience of the parties and witnesses, pursuant to 28 U.S.C. § 1404(a). However, were Defendants’ Motion for Change of Venue (“Motion to Transfer”) granted, those parties and witnesses would be in the unique position of having had a motion granted for their convenience which would actually make the action -- which arose because of Defendants' wrongful behavior -- less convenient for all involved. Thus, as more fully discussed below, Defendants' Motion to Transfer should be denied, and the action should remain in this Court.
FACTUAL BACKGROUND
In or around January 2006, Burr & Forman was engaged by Defendants and undertook to represent Defendants in connection with, among other things, certain planned mergers and acquisitions. Substantially all services for Defendants were performed at Burr & Forman's office in Birmingham, Alabama. (Affidavit of Gene Price, 3, attached hereto as Ex. 1 "Price Aff.").
Burr & Forman incurred attorneys' fees and expenses totaling $215,613.61 for services rendered on behalf of Defendants. Burr & Forman invoiced Defendants in a timely fashion for all services provided. All invoices for those services were created at Burr & Forman's office in Birmingham, Alabama and copies of those invoices have been retained there. Price Aff., 4.
Burr & Forman provided notice to Defendants that such fees and expenses had been incurred and made repeated demands on Defendants for payment of fees and expenses totaling $215,613.61 (hereinafter, the "Indebtedness"). Defendants acknowledged that they owed Burr & Forman the full amount of the Indebtedness and, despite repeated promises that payment was forthcoming, failed to pay Burr & Forman the past due amount of the Indebtedness.
On or around February 5, 2008, Defendants represented to Burr & Forman that they would pay Burr & Forman the full amount of the Indebtedness in monthly installments of Twenty-Five Thousand Dollars and no/100 ($25,000) per month, with the first installment being paid on February 15, 2008. In reliance upon the representations of Defendants, Burr & Forman and Defendants entered into an Agreement to Pay Amounts Due as Invoiced ("Agreement", attached hereto as Ex. 2). That Agreement was drafted Birmingham, Alabama and was accepted in Birmingham, Alabama by Victor Hayslip on behalf of Burr & Forman. Ex. 2.1 [1] Defendants breached the Agreement by failing to timely pay to Burr & Forman monthly installments in accordance with the Agreement's terms.
[1] Victor Hayslip is an attorney in Burr & Forman's Birmingham, Alabama office. Price Aff., 5.
On March 26, 2008, Burr & Forman filed this action asserting four counts against Defendants: two counts of breach of contract (Counts I and II), open account (Count III), and work and labor done (Count IV) (Pacer Doc. 1). Counts I, III and IV arise from services substantially performed by Burr & Forman in Birmingham, Alabama. Price Aff., ¶ 3. Count II of the Complaint arises from the Agreement that was accepted in Birmingham, Alabama and subsequently breached by Defendants. Ex. 2.
ARGUMENT
I. Venue Is Proper In The Northern District Of Alabama And A Transfer To The Northern District Of Florida Is Not In The Interest Of Justice Nor Would It Be More Convenient.
A. Burden of Proof.
"The federal courts traditionally have accorded a plaintiffs choice of forum considerable deference . . . Thus, in the usual motion for transfer under section 1404(4 the burden is on the movant to establish that the suggested forum is more convenient." In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989). "The burden is on the moving party to prove that a case should be transferred, and this burden is high when a defendant asks the court to transfer a case from the plaintiffs home forum ." Irwin v. Zila, Inc., 168 F. Supp. 2d 1294, 1296 (M.D. Ala. 2001) (internal citations omitted) (emphasis added). "[U]nless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed." Ford v. Brown, 319 F.3d 1302, 1306-07 (11th Cir. 2003) (emphasis added). "[The movant] has the burden [of establishing] that the convenience to itself resulting from a transfer would substantially outweigh any resulting inconvenience to the plaintiff," and " 'if [a]transfer would merely shift inconvenience from one party to the other, . . . plaintiffs choice of forum should not be disturbed. . . " Intergraph Corp. v. Intel Corp., 1998 U.S Dist. LEXIS 21425, *4 (N.D. Ala. May 18, 1998) (quoting Bell v. K Mart Corp., 848 F. Supp. 996, 998 (N.D. Ga. 1994)).
B. Venue is Proper in the Northern District of Alabama.
Pursuant to 28 U.S.C. § 1391(a) (West 2007), in a case based only upon diversity jurisdiction, venue is proper in:
(1) a judicial district where any defendant resides, if all defendants reside in the same state, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
Accordingly, venue is proper in the Northern District of Alabama in this case because both § 1391(a)(2) and § 1391(a)(3) are satisfied. First, a substantial part of the events giving rise to Burr & Forman's claims occurred in this judicial district. These events include, but are not limited to: (1) work and labor performed in Birmingham, Alabama for which Defendants failed to compensate Burr & Forman; and (2) an Agreement that was accepted in Birmingham, Alabama and subsequently breached by Defendants. See Ex. 2; Price Aff., ¶ 5. These events transpired in this district. Not only do these events constitute a "substantial part" of the events giving rise to Burr & Forman's claims, but they constitute the very crux of the lawsuit.
C. Defendants Have Failed to Carry Their Heavy Burden in Establishing that this Case Should Be Transferred to the Northern District of Florida.
28 U.S.C. § 1404(a) provides:
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." (emphasis supplied). When making a decision about whether to transfer venue, district courts "generally rely on a number of factors including: (1) the plaintiffs choice of forum; (2) the convenience of the parties; (3) the convenience of the witnesses, and the availability of witnesses through compulsory process; (4) the location of documents and other sources of proof; (5) the relative ability of the parties to hear the expense of changing the forum; and (6) trial efficiency and expense to the justice system."
Pet Friendly, Inc. v. Catapult Group, L.L.C., 2006 WL 3690737, *2 (S.D. Ala. Dec. 12, 2006) (quoting Gould v. Nat'l Life Ins. Co., 990 F. Supp. 1354, 1357-1358 (M.D. Ala. 1998) (emphasis added).
When analyzing these factors in the current case, it is clear Defendants have failed to satisfy their heavy burden in establishing that the Northern District of Florida is a substantially more convenient forum than this judicial district. If nothing else, the convenience of the parties amounts to a wash in this case, and therefore, Burr & Forman's choice of forum is given substantial deference and should not be disturbed. Burr & Forman urges this Court to follow the opinion in the factually analogous case, Pet Friendly, Inc. v. Catapult Group, LLC, 2006 WL 3690737 (S.D. Ala. Dec. 12, 2006) (hereinafter Pet Friendly), and deny Defendants' motion to transfer.
In Pet Friendly the court first analyzed the convenience of the parties and held:
The convenience of the parties amounts to a wash in this case since it is certainly more convenient for the plaintiff, whose principal place of business is in Fairhope, Alabama, to pursue this lawsuit in this Court, whereas it is more convenient for defendants to defend the action in the Northern District of Texas, where the defendants reside and where the contract at issue was drafted and executed by defendant Peterson for Catapult.
Id. at *2. Likewise, any transfer of venue in this case would shift to Burr & Forman any inconvenience in pursuing this litigation.
In analyzing the convenience of witnesses, the court in Pet Friendly held that:
[t]here is no indication from the defendants that they have witnesses that will be unavailable for trial in this Court, cf. American Standard, Inc. v. Bendix Corp., 487 F. Supp. 254, 262 (W.D. Mo. 1980) ("[I]f the party moving for transfer under § 1404(a) merely makes a general allegation that witnesses will be necessary, without identifying those necessary witnesses and indicating what their testimony at trial will be, the motion for transfer based on convenience of witnesses will be denied.") and while those witnesses may possibly be outside the subpoena power of this Court, those problems would persist in Texas, with respect to witnesses located in Alabama (of which there are undoubtedly several given that the main principals and employees of plaintiff reside in the Southern District of Alabama).
Id. at *2. Likewise, Defendants in this case rely on the assertion that venue should be transferred due to the inconvenience on Defendants' witnesses. (See Motion to Transfer, at 3). Yet Defendants, just as in Pet Friendly, failed to give any indication why these witnesses would not be available in Alabama, or what their testimony will be. (See generally Motion to Transfer).[2]
[2] All witnesses for Burr & Forman reside in this judicial district.
As in Pet Friendly, this Court should deny Defendants' motion to transfer because Defendants have failed to meet their heavy burden of proof. Defendants have failed to make a showing that the balance is strongly in favor of transfer, as is required by the Eleventh Circuit. See Ford v. Brown, 319 F.3d 1302, 1306-1307 (11th Cir. 2003)) ("But unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed."). Defendants' arguments are mere generalizations lacking foundation, and as in Pet Friendly, "[a]ll a transfer would do in this case is shift inconvenience from [Defendants] to [Plaintiff]," resulting in no efficient gain. Pet Friendly, 2006 WL 3690737, at *2. Accordingly, Defendants' Motion to Transfer is due to be denied.
WHEREFORE, PREMISES CONSIDERED, Plaintiff Burr & Forman LLP respectfully requests that this Court deny Defendants' Motion for Change of Venue.
Dated this 10th day of June, 2008.
Respectfully submitted,
/s/ Kip A. Nesmith
Victor L. Hayslip, Esq. (HAY019)
Kip A. Nesmith, Esq. (NES007)
Attorneys for Burr & Forman, LLP
OF COUNSEL:
BURR & FORMAN LLP
3400 Wachovia Tower
420 North Twentieth Street Birmingham, Alabama 35203 Telephone: (205) 251-3000 Facsimile: (205) 458-5100 vhayslip@burr.com
knesmith@burr.com |
