United States District Court, M.D. Alabama, Northern Division
BRENDALYN C. NICHOLAS, Plaintiff,
MOBILE INFIRMARY ASSOCIATION, et al., Defendants.
Russ Walker United States Magistrate Judge
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.
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.
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.”).
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).
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 “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
convenience and the interests of justice also weigh in favor
of transfer to the forum requested by all three Defendants,
as discussed below.
Convenience of the Witnesses
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 ...