Nicholas v. Mobile Infirmary Association

          MEMORANDUM OPINION

          Susan Russ Walker United States Magistrate Judge

         I. Introduction

         On August 31, 2017, Plaintiff Brendalyn Nicholas filed a complaint in the Mobile, Alabama EEOC office alleging violations of Title VII of the Civil Rights Act of 1964. Doc. 41 ¶ 6. On December 26, 2018, Plaintiff initiated this suit against Defendant Mobile Infirmary Association doing business as Mobile Infirmary Medical Center (“MIMC”), Defendant Dr. Benjamin J. Makamson, and Defendant Vascular Associates of South Alabama, LLC (“VASA”). Doc 1. Plaintiff filed her amended complaint on July 17, 2019. Doc. 41. The amended complaint alleges (1) claims for sexual harassment and constructive discharge under Title VII against Plaintiff's former employer, MIMC; and (2) state law tort claims for assault and battery against Makamson, as well as vicarious liability for those torts against VASA, of which Makamson is a member. Doc. 41 ¶¶ 41-71.

         Pending before the court are Makamson's Motion to Dismiss or Transfer Venue (Doc. 43), MIMC's Restated Motion to Transfer Venue to the Southern District of Alabama (Doc. 44), and VASA's Motion to Dismiss or, in the Alternative, to Transfer Venue (Doc. 46). Plaintiff responded to each motion (Docs. 48, 49, 50), and each defendant filed a reply (Docs. 55, 56, 57). Having carefully considered the parties' briefs, the record, and the applicable law, the court finds that Makamson's, MIMC's, and VASA's motions (Docs. 43, 44, 46) are due to be granted to the extent that this case should be transferred to the United States District Court for the Southern District of Alabama.

         II. Legal Standards

         Pursuant to the special venue provision of Title VII, an action:

may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed, in the judicial district in which the employment records relevant to such practice are maintained and administered, or in the judicial district in which the aggrieved person would have worked but for the alleged unlawful employment practice, but if the respondent is not found within any such district, such an action may be brought within the judicial district in which the respondent has his principal office. For purposes of sections 1404 and 1406 of Title 28, the judicial district in which the respondent has his principal office shall in all cases be considered a district in which the action might have been brought.

42 U.S.C. § 2000e-5(f)(3). Additionally, “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.” 28 U.S.C. § 1404(a). “The law in the Eleventh Circuit . . . is that a Title VII case is subject to the same § 1404(a) analysis as other cases.” E.E.O.C. v. Outokumpu Stainless, USA, LLC, No. 2:15-cv-405-WHA, 2015 WL 5685240 at *3 (M.D. Ala. Sept. 25, 2015); see Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 654- 655 (11th Cir. 1993). The district court retains broad discretion to transfer a case to a more convenient forum, and the decision to transfer is reviewed only for clear abuse of discretion. Brown v. Conn. Gen. Life Ins. Co., 934 F.2d 1193, 1197 (11th Cir. 1991); Carter v. Rudinplay, Inc., No. 18-117-WS-B, 2018 WL 2107608 at *7 (S.D. Ala. May 7, 2018); Johnston v. Foster-Wheeler Constructors, Inc., 158 F.R.D. 496, 503 (M.D. Ala. 1994). The moving party bears the burden of showing entitlement to transfer. See In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989) (“[I]n the usual motion for transfer under section 1404(a), the burden is on the movant to establish that the suggested forum is more convenient.”).

         To determine whether transfer is proper, the court engages in a two-step analysis under 28 U.S.C. § 1404(a). First, the court determines whether the suit could have been brought in the venue in which transfer is sought. Second, the court “weigh[s] the relevant factors and consider[s] the interests of justice to decide whether transfer is appropriate.” Moore v. Baker, No. 2:18-cv-6-MHT-DAB, 2018 WL 3421601 at *3 (M.D. Ala. June 18, 2018) (citing Carroll v. Tex. Instruments, Inc., 910 F.Supp.2d 1331, 1333 (M.D. Ala. 2012)). In deciding the second step, the court considers factors including (1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances. Manuel v. Convergy's Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005).

         III. Discussion

         In this case, all three Defendants seek to transfer this matter to the Southern District of Alabama, the district in which they reside. As to whether this action could have been brought in the Southern District originally, 28 U.S.C. § 1391 provides that an action may be brought in a judicial district “in which any defendant resides, if all defendants are residents of the State in which the district is located” or a judicial district “in which a substantial part of the events or omissions giving rise to the claim occurred.” 28 U.S.C. § 1391(b)(1), (2). Defendant MIMC, referencing Title VII's special venue provision, correctly asserts that the Southern District “is in the State where the claimed unlawful employment practice allegedly occurred, is the judicial district where the employment records are maintained and administered, and is the district where the Plaintiff worked.” Doc. 44 at 4; 42 U.S.C. § 2000e-5(f)(3). MIMC is an Alabama non-profit corporation, formed in Mobile County, whose principal place of business is Mobile. Doc. 44-1 ¶ 2. Defendant Makamson maintains, also correctly, that because the events or omissions giving rise to the state-law claims against him^[1] “allegedly occurred at [MIMC] in Mobile County, and [because] Makamson is a resident of Baldwin County, ” this case could have been filed in the Southern District. Doc. 43 at 5. For purposes of its motion, Defendant VASA has established through the affidavit of Andrew Radoszewski that it is an LLC registered in Mobile; its offices are located in Mobile County; it has never conducted business by agent in any county besides Mobile County or Baldwin County; it has never had projects or employees in any county located in the Middle District of Alabama; and Makamson, a member of VASA, resides in Baldwin County. Docs. 46 at 6; 54-1. Plaintiff does not argue otherwise, and, based on defendants' responses, the court finds that the Southern District of Alabama is a venue in which this case could have been brought in the first instance.

         The convenience and the interests of justice also weigh in favor of transfer to the forum requested by all three Defendants, as discussed below.

         1. Convenience of the Witnesses

         “[T]he most important factor in passing on a motion under § 1404(a) is the convenience of witnesses.” Hutchens v. Bill Heard Chevrolet Co., 928 F.Supp. 1089, 1091 (M.D. Ala. 1996). The court should consider the convenience of non-party witnesses more than that of party witnesses. See, e.g., Armstrong v. CSX Transp., Inc., No. 2:18-cv-856-JEO, 2018 WL 4144996 at *2 (N.D. Ala. Aug. 30, 2018); ASD Specialty Healthcare, Inc. v. Letzer, No. 2:10-cv-388-WKW, 2010 WL 2952573 at *4 (M.D. Ala. July 26, 2010). Makamson, a party witness, resides in Baldwin County. Docs. 43 at 5; 54-1 ¶ 13. VASA's clinic is located in Mobile, where VASA is registered. Doc. 54-1 ¶¶ 5, 6. Through the affidavit of Randy Stembridge, MIMC, Plaintiff's former employer, has “confirmed from the records of [MIMC] . . . five (5) current clinical employees . . . all of whom provide direct patient care in either Mobile, Alabama or Fairhope, Alabama” who are possible witnesses in this case. Doc. 44-1 at 2. MIMC also names as potential witnesses the employee of one of its vendors and “Plaintiff's personal medical providers who submitted medical certifications for her FMLA requests.” Id. All of these possible witnesses live and work in either Mobile County or Baldwin County. Id.; Doc. 44 at 4. Plaintiff responds that because the aforementioned witnesses are yet unnamed, they should not factor into the analysis. See Doc. 48 at 6. The court disagrees. See Carroll, 910 F.Supp.2d at 1338 (A moving party need not “identify with certainty all of its potential witnesses . . . for litigation at the motion-to-transfer stage is often much too early in the game to ask that.”). Moreover, in her amended complaint, Plaintiff names five individuals who have knowledge of the underlying incidents in this case: R.B., a “fellow female nurse employee”; Ann Sands, her immediate supervisor; Ashley Simmons, director; Pat McDonald, team leader; and Melissa Boesen, a MIMC human resources official. Doc. 41 ¶¶ 17, 22, 23, 25. The court reasonably infers that these five possible non-party witnesses live ...