United States District Court, N.D. Alabama, Southern Division
E. OTT CHIEF UNITED STATES MAGISTRATE JUDGE.
case is before this Court on Defendant's Motion to
Transfer Venue. (Doc. 6). In its motion, Defendant seeks to
have this case transferred to the United States District
Court for the Southern District of Alabama pursuant to 28
U.S.C. § 1404(a). The parties have consented to the
jurisdiction of this Court for the disposition of the matter.
See 28 U.S.C. § 636(c); Fed.R.Civ.P. 73(a).
Upon consideration of the pleadings, briefs, and relevant
law, the Court concludes that Defendant's motion is due
to be granted.
case arises out of Defendant CSX Transportation's
(“CSX”) performance under a June 5, 1976 release
agreement between Plaintiff Virgil Armstrong and CSX's
predecessor in interest, the Louisville and Nashville
Railroad Company (“LNRC”). (Doc. 1 at ¶ 10).
Dissatisfied with CSX's performance under the agreement
since January 2017, Virgil Armstrong and his wife, Ann
Armstrong, filed a complaint in the Circuit Court of
Jefferson County, Alabama on May 3, 2018. The thrust of the
underlying action is that Defendant failed to uphold its
obligation under the release agreement by refusing to pay
Plaintiff Ann Armstrong for providing care to her husband.
Instead, Defendant intends to provide and pay for
professional nursing care for Mr. Armstrong. On June
4, 2018, Defendant filed a Notice of Removal of this action
this Court. (Doc. 1).
are residents of Flomaton, Alabama, which is located in the
Southern District of Alabama. Defendant CSX is a Virginia
corporation with its principal place of business in
Jacksonville, Florida. Plaintiffs assert that negotiation of
the release agreement involved in this case began within the
territorial boundaries of the Northern District of Alabama
and that at least one critical witness is located in this
District. Id. Defendant states that all negotiations
of the release agreement were centered in Southern District
of Alabama and that the operative incidents and critical
witnesses are located in the Southern District. (Doc. 22).
Defendant argues that a transfer to the Southern District of
Alabama would be most convenient and would be in the interest
of justice. This Court agrees.
U.S.C § 1441 establishes federal venue in the district
from which a state action is removed. See Hollis v.
Florida State University, 259 F.3d 1295, 1300 (11th Cir.
2001). However, a removing defendant may seek a transfer of
venue under 28 U.S.C. § 1404(a). See Id.
(quoting Hartford Fire Ins. Co. v. Westinghouse Elec.
Corp., 725 F.Supp. 317, 320 (S.D.Miss. 1989)
(“[T]hough their removal precludes a challenge to venue
as improper, defendants may still attack this venue as
inconvenient”)). 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.” Courts enjoy wide discretion in
determining whether to transfer an action to a more
convenient forum. A.J. Taft Coal Co. v. Barnhart,
291 F.Supp.2d 1290, 1306 (N.D. Ala. 2003). The determination
of whether it would be proper to transfer venue relies upon a
two-part analysis: first, the court must determine whether
the case could have been brought in the proposed transferee
district and second, the court must then determine whether a
transfer to that district would be more convenient for the
parties and witnesses and in the interest of justice.
See 28 U.S.C. § 1404(a); see also Mede
Cahaba Stable & Stud LLC. v. Washington International
Horse Show, 2010 WL 11614802, at *6 (N.D. Ala. Feb. 2,
is little to discuss regarding whether the Southern District
of Alabama could have been an appropriate venue for this
action. 28 U.S.C. § 1391(a)(2) provides that, in a
diversity action, a suit may be brought in “a judicial
district in which a substantial part of the events or
omissions giving rise to the claim occurred….”
It is uncontested that the release at issue was executed in
the Southern District of Alabama and the alleged injury took
place within the territorial boundaries of the Southern
District of Alabama. Neither party expressly disputes that
the matter could have properly been brought in the Southern
District of Alabama; therefore, the analysis hinges on the
second consideration - convenience.
the consideration that remains is whether a transfer would be
convenient for the parties and witnesses and would be in the
interest of justice. To make this determination, courts often
rely on a number of factors: (1) the plaintiff's initial
choice of forum, (2) the convenience of the parties, (3) the
convenience of the witnesses, (4) the relative ease of access
to sources of proof, (5) the availability of compulsory
process for witnesses, (6) the location of relevant
documents, (7) the financial ability to bear the cost of the
change in venue, and (8) trial efficiency. C.M.B Foods,
Inc. v. Corral of Middle Georgia, 396 F.Supp.2d 1283,
1286-87 (M.D. Ala. 2005). The general rule is that the
“plaintiff's choice of forum should not be
disturbed unless it is clearly outweighed by other
considerations.” See Robinson v. Giamarco &
Bill, P.C. 74 F.3d 253, 260 (11th Cir. 1996). However,
the weight of the plaintiff's choice is lessened when the
chosen forum is not the plaintiff's home forum as is the
case here. See Hutchens v. Bill Heard Chevrolet Co.,
928 F.Supp. 1089, 1091 (M.D. Ala. 1996). Even so, it is the
movant's burden to establish that the proposed
alternative forum is more convenient. In re Rioch
Corp., 870 F.2d 570, 572-73 (11th Cir. 1989). Defendant
has met this burden.
argues that several factors favor a transfer to the Southern
District of Alabama. Most notably, Defendant directs the
Court's attention to the location of the witnesses it
intends to call regarding Ann and Virgil Armstrong's
domestic nursing help. (Doc. 22 at 8). The convenience of the
non-party witnesses is the “primary, if not most
important, factor” in determining whether to transfer
an action to another venue. Liberty Nat'l Life Ins.
Co. v. Suntrust Bank, 2012 WL 3849615 at *5 (N.D. Ala.
Sep. 5, 2012). In this case, the majority of Defendant's
identified witnesses able to testify about Mr.
Armstrong's domestic nursing situation, Mr.
Armstrong's required care, and Mrs. Armstrong's
capacity to provide that care are currently in Flomaton,
Alabama or elsewhere within the Southern District of Alabama.
Defendants identified eleven such witnesses. (Doc. 22 at 8).
It would be markedly more convenient for these witnesses to
travel the 70 miles from Flomaton to Mobile than to travel
the 200 miles from Flomaton to Birmingham. On the other hand,
Plaintiffs' only identified witness in the Northern
District of Alabama is Bobby Pate. Pate is a retired former
employee of Defendant who allegedly oversaw some of the
payments to Plaintiffs. Pate has signed an affidavit
indicating his willingness and ability to testify in the
Southern District of Alabama. (Doc. 22-1). As such,
Pate's inconvenience does not weigh heavily against
transfer. Further, it is highly likely that other potential
witnesses, whether for Plaintiffs or Defendant, regarding
Plaintiffs' domestic nursing situation are also located
in the Southern District of Alabama where the domestic
nursing takes place. Considering the convenience of all the
non-party witnesses, this factor weighs heavily in favor of a
compulsory service would be impossible for most of the
aforementioned witnesses should this action remain in the
Northern District of Alabama. Under the Federal Rules of
Civil Procedure, witnesses may be subject to compulsory
process so long as they are within a 100-mile radius of the
trial location. Fed.R.Civ.P. 45(c)(1)(A). The identified
witnesses live outside of that radius; thus, they would not
be subject to compulsory process. Securing testimony of these
witnesses without the availability of compulsory process
would likely cause inconvenience and expense to both parties.
In contrast, most of the identified witnesses would be
subject to compulsory service should the action be
transferred to the Southern District of Alabama. The only
identified witness outside of this range of compulsory
service is Bobby Pate who indicated through an affidavit that
his attendance at trial would not need to be compelled. This
factor weighs in favor of transfer.
weighing in favor of transfer is ease of access to relevant
evidence. Much like the non-party witnesses in this case,
most of the evidence related to the execution, negotiation,
and performance of the release agreement and the domestic
nursing situation is likely to be located in the Southern
District of Alabama. Though Plaintiffs contend that
negotiations began within the territorial boundaries of the
Northern District of Alabama, they do not dispute that
negotiations continued in the Southern District, and that the
release agreement was subsequently executed there. (Doc. 1).
Further, they do not dispute that the effects of the alleged
injury have largely manifested within the Southern District
and that the domestic nursing services at issue have been
conducted within the Southern District. Because of the strong
connection to the Southern District, the access to relevant
evidence is greatest in that District. As such, this factor
weighs in favor of transfer.
important to note Defendant's claim that the Southern
District of Alabama is the more convenient forum for
Plaintiffs holds little weight. Courts may generally presume
that the forum in which the complaint was filed is the most
convenient forum for the plaintiffs. Cellularvision
Technology & Telecom., L.P. v. Alltel
Corp., 508 F.Supp.2d 1186, 1190 (S.D. Fla. 2017). In
fact, it “seems anomalous to give any significant
weight to the defendant's opinion of which district is
more convenient for the plaintiff; the plaintiff seemingly
would be the best judge of that.” Trinity Christian
Center of Santa Ana, Inc. v. New Frontier Media, 761
F.Supp.2d 1322, 1328 (M.D. Fla 2010). Despite this factor
favoring Plaintiffs, Defendant has adequately shown that
convenience and justice are best served by a transfer of this
case to the United States District Court for the Southern
District of Alabama. Ultimately, the convenience of the
witnesses, the availability of compulsory process, and ease
of access to sources of proof overshadow the diminished
weight of Plaintiffs' choice of forum, satisfying
Defendant's burden on the motion.