United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND TRANSFER ORDER
H. ENGLAND, III, UNITED STATES MAGISTRATE JUDGE.
Renay Cunningham (“Cunningham”) brings this
action for unpaid overtime compensation under the Fair Labor
Standards Act, 29 U.S.C. §§ 201 et seq.
(“FLSA”), against her former employer Defendant
Professional Wiregrass Communications, Inc.
(“PWC”) and Defendant Douglas E. Lindley
(“Lindley”), an individual. (Doc. 1). Defendant
PWC moves to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(3) for improper venue, or, alternately, to
transfer the case to the United States District Court for the
Middle District of Alabama. (Doc. 5). In response, Cunningham
has moved to transfer venue, stating she does not oppose
transferring this action to the United States District Court
for the Middle District of Alabama. (Doc. 12). Defendant
Lindley has not appeared; however, the Clerk issued an Alias
Summons to Defendant Lindley on December 3, 2019. (Doc. 11).
For the reasons that follow, PWC's alternative motion to
transfer venue and Cunningham's motion to transfer are
Cunningham and PWC, the parties who have appeared, agree that
a transfer of venue to the United States District Court for
the Middle District of Alabama is appropriate. Furthermore,
it appears that venue in this District may not be proper.
Accordingly, for these reasons along with the fact that it
does not appear that transfer to the Middle District would
prejudice Defendant Lindley in any way, this action will be
PWC is a domestic corporation organized in Montgomery,
Alabama in 1986, and has always done business exclusively in
Dothan, Houston County, Alabama - both of which are in the
Middle District of Alabama. (Doc. 5-1). Plaintiff Cunningham
worked for PWC between 2009 and 2017, as a telephone operator
at PWC's answering service in Dothan, Houston County,
Alabama. (Id.). All books and records related to the
business, including personnel and payroll records, were
generated and are maintained in Dothan, Houston County,
Alabama. (Id.). All witnesses who would be able to
testify about the nature of Cunningham's work, the hours
that she worked, and her regular and overtime pay live in and
work in and around Houston County, Alabama. (Id.).
Although the complaint does not identify Defendant
Lindley's city or county of residence, the complaint
identifies Lindley's office as located in Montgomery,
Alabama. (Doc. 1). The recently issued alias
summons for Lindley was issued to a Montgomery, Alabama
address. (Doc. 11).
general federal venue statute, applicable to this action,
states as follows:
(b) Venue in general. - A civil action may
be brought in -
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located; (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 the property
that is the subject of the action is situated; or (3) if
there is no district in which an action may otherwise be
brought as provided in this section, any judicial district in
which any defendant is subject to the court's personal
jurisdiction with respect to such action.
28 U.S.C. § 1391(b).
points out, the Northern District of Alabama does not appear
to be a proper venue, as none of the defendants reside here
and there are no allegations that even a small part of the
events or omissions giving rise to the claim occurred here.
(See doc. 5). See also 28 U.S.C. §
1391(b). Also, as PWC points, it appears all of the
defendants reside in and events or omissions giving rise to
this action took place in the Middle District of Alabama,
which includes Montgomery and Houston County. Cunningham not
only agrees that transfer to the United States District Court
for the Middle District of Alabama is proper, but requests
the action be transferred there. (See doc. 12).
regardless of whether this action should have been brought in
the Northern District of Alabama, the undersigned may
transfer this action to another district in which it might
have been brought “[f]or the convenience of the parties
and witnesses (and) in the interest of justice.” 28
U.S.C. § 1404(a); Tomberlin v. Clark, No.
2:12CV1052-MHT, 2013 WL 2297184, *2-5 (M.D. Ala. May 24,
2013). To decide whether justice and convenience favor
transfer, courts generally consider a number of
non-exhaustive factors, including the plaintiff's initial
choice of forum, the convenience of the parties, the relative
means of the parties, the relative ease of access to sources
of proof, the availability of compulsory process for
witnesses, the convenience of the witnesses, the location of
relevant documents, the financial ability to bear the costs
of the change, and trial efficiency. Tomberlin, 2013
WL 2297184, at *2. Other than the plaintiff's initial
choice of forum, which she now requests be transferred, all
of these factors weigh in favor of transfer. Accordingly, it
is ORDERED that this action be
TRANSFERRED to the United States District
Court for the Middle District of Alabama.
 Defendant PWC asserts that Lindley has
not been affiliated with PWC in almost thirty years and would
not have been Cunningham's employer or supervisor during
the time she worked at ...