06/13/2008 10 RESPONSE to Motion re 5 MOTION to Change Venue filed by Perihelion Global, Inc.. (Attachments: # 1 Affidavit of John Beebe)(McPhillips, Julian) (Entered: 06/13/2008)
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Doc 10
Extract
DEFENDANTS’ RESPONSE TO PLAINTIFF’S OPPOSITION
TO MOTION FOR CHANGE OF VENUE
FACTUAL BACKGROUND
Perihelion Global, Inc. hired the law firm of Burr and Forman, LLP. to perform due diligence work regarding a merger and acquisition of a Florida based company incorporated in the State of Delaware. (Affidavit of John Beebe, ¶ 5 attached hereto as Ex. A “Beebe Aff.”).
The Plaintiff’s representative (Gene Price) traveled to northern Florida to meet Defendants, not vice-versa. In fact, none of the Defendants, or their representatives, ever traveled to Alabama to meet with the Plaintiff. All documents and agreements were signed by the Defendants in northern Florida. All face-to-face communications, meetings, and transactions between the Plaintiff and Defendants John Beebe and Perihelion Global, Inc. occurred only while the Defendants were in northern Florida. Beebe Aff., ¶ 2.
ARGUMENT
A. Venue is Improper in the Northern District of Alabama.
The Plaintiff states that venue is proper in the Northern District of Alabama because both § 1391(a)(2) and § 1391(a)(3) are satisfied. However, the Plaintiff provided no reasons or arguments stating why § 1391(a)(3) is satisfied in this case. § 1391(a)(3) requires that there must be no district in which the action may otherwise be brought and that the judicial district is one in which any defendant is subject to personal jurisdiction at the time the action is commenced. 28 U.S.C. § 1391(a) (West 2007). To the contrary, this action could have been brought in the United States District Court for the Northern District of Florida, and it is more proper that it be brought there.
The Plaintiff also argues that this Court has proper venue because § 1391(a)(2) is satisfied. § 1391(a)(2) allows a civil action to be brought in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. “Section 1391(a)(2) has been interpreted as requiring a court to focus on the actions of the defendant, not of the plaintiff.” McDaniel v. IBP, Inc., 89 F. Supp. 2d 1289 (M.D. Ala. 2000).
The Eleventh Circuit held that venue is improper where a defendant’s actions giving rise to a breach of contract claim did not substantially occur in that district. Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1372 (11th Cir. Ga. 2003). An Alabama company alleged that the defendant violated a non-compete agreement after his employment with the plaintiff. Id. The court noted that the defendant’s alleged actions that gave rise to the breach of contract claim occurred exclusively in Georgia. Id. In addition, the court also noted that the contract was presented to and signed by the plaintiff in the State of Georgia, even though the company signed it in Alabama. Id. The court specifically pointed to the fact that the breaching conduct by the defendant occurred only in Georgia. Id.
In the case before this Court, all the Defendants’ actions and alleged omissions occurred in northern Florida. The Defendants signed all documents and agreements with the Plaintiff in northern Florida. All communications with the Plaintiff occurred while the Defendants and their representatives were in northern Florida. All meetings between the Plaintiff and the Defendants and their representatives occurred in northern Florida. All payments sent to the Plaintiff originated from northern Florida. The Defendants have no physical connection whatsoever with the Northern District of Alabama.
The Plaintiff undertook representation of the Defendants with respect to a certain merger and acquisition of another corporate entity. However, said company was not located in the Northern District of Alabama, but instead was located in Florida and incorporated in the State of Delaware.
Therefore, based on the alleged actions and omissions by the defendant, § 1391(a)(2) is not satisfied and venue is improper in the Northern District of Alabama. As such, venue should be transferred to the United States District Court for the Northern District of Florida.
B. Alternatively, Transferring This Case to the Northern District of Florida is in the Interest of Justice.
Deciding whether to transfer a case is within the discretion of the trial court. Gould v. Nat’l Life Ins. Co., 990 F. Supp. 1354, 1357-1358 (M.D. Ala. 1998). Courts generally consider the following factors in determining whether to transfer a case: (1) the plaintiff’s choice of forum; (2) the convenience of the parties; (3) the convenience of the witnesses, and the availability of the witnesses through compulsory process; (4) the location of documents and other sources of proof; (5) the relative ability of the parties to bear the expense of changing the forum; and (6) trial efficiency and expense to the justice system. Id.
“The Eleventh Circuit has determined that a court should be somewhat restrictive in transferring actions; indeed, ‘the plaintiff’s choice of forum should not be disturbed unless’ the movant can show that ‘it is clearly outweighed by other considerations.’” Id. (quoting Howell v. Tanner, 650 F.2d 610 (5th Cir. Unit B 1981).
The Plaintiff’s choice of a forum in this case is clearly outweighed by other considerations. The Defendants’ ability to defend themselves from this lawsuit would be significantly burdened, amounting to a forum non conveniens, if venue remains in Birmingham, Alabama. Most importantly, the prior actions of the parties illustrate that the relationship between the Plaintiff and Defendants was based in northern Florida. The Plaintiff’s representative (Gene Price) traveled to northern Florida to meet Defendants, not vice-versa. In fact, none of the Defendants, or their representatives, ever traveled to Alabama to meet with the Plaintiff. All documents and agreements were signed by the Defendants in northern Florida. All face-to-face communications, meetings, and transactions between the Plaintiff and Defendants John Beebe and Perihelion Global, Inc. occurred only while the Defendants were in northern Florida. Beebe Aff., ¶ 2.
The Defendants expect to call several witnesses from northern Florida to defend themselves from this lawsuit. Beebe Aff., ¶ 3. Those witnesses would not be available through compulsory process, if venue remains in the Northern District of Alabama. The parties prior actions illustrate the facility of the Plaintiff traveling to northern Florida.
Thus, the Plaintiff’s ability to bear the expense of changing the forum far outweighs the ability of the Defendants’ to bear the expense of defending itself from a lawsuit in the Northern District of Alabama. Remember that the Defendants have never traveled to Alabama with respect to their relationship with the Plaintiff that forms the basis of this lawsuit.
All documents and other sources of proof the Defendants expect to use to defend themselves from this lawsuit are located in northern Florida. The Plaintiff alleges that the Defendants failed to pay for their services. The Defendants expect to rebut that claim with evidence located in northern Florida, the home of both the Defendants John Beebe and Perihelion Global, Inc.
Thus, it would create an undue expense of time and money on the part of the Defendants and a manifest burden and injustice for their witnesses to have to travel up to Alabama, particularly when the Defendants never traveled to Alabama to meet with the Plaintiff. The relationship between the parties thus far illustrates that it is significantly more convenient for the Plaintiff to travel to Florida, rather than vice-versa.
Respectfully submitted,
Perihelion Global, Inc. and
John Beebe,
Defendants/Counter-Plaintiffs
OF COUNSEL: By /s/ Julian McPhillips
McPHILLIPS, SHINBAUM, LLP Julian McPhillips
516 S. Perry St. Attorney for Defendants/Counter-Plaintiffs
Montgomery, AL 36104
(334) 262-1911 |
