Goodwyn, Mills & Cawood, Inc. v. Black Swamp, Inc., et al

Filing 25

OPINION AND ORDER directing defendants Black Swamp, Inc. and Murphree Evans's 6 motion to transfer venue is denied, as further set out. Signed by Honorable Judge Myron H. Thompson on 10/19/12. (scn, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION

GOODWYN, MILLS & CAWOOD,
INC., a corporation,
Plaintiff,
v.
BLACK SWAMP, INC. d/b/a
Black Swamp Mitigation
Bank, a corporation, and
MURPHREE EVANS, an
individual,
Defendants.

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CIVIL ACTION NO.
2:12cv549-MHT
(WO)

OPINION AND ORDER
Plaintiff Goodwynn, Mills & Cawood, Inc. brought this
action against defendants Black Swamp, Inc. (d/b/a Black
Swamp Mitigation Bank) and Murphree Evans (Black Swamp’s
President and Director) claiming breach of contract,
breach

of

implied-in-fact

contract,

quantum

meruit,

unjust enrichment, breach of the duty of good faith and
fair

dealing,

conversion.

suppression,

promissory

fraud,

and

Subject-matter jurisdiction is proper under

28 U.S.C. § 1332 (diversity).

The case is now before

this court on Black Swamp and Evans’s motion to transfer
venue from the Middle District of Alabama to the Northern
District of Mississippi.

For the reasons that follow,

the motion will be denied.

I. BACKGROUND
Goodwyn is an Alabama corporation with its principal
place of business in Montgomery, Alabama, which is home
to this court and where Goodwyn instituted this case.
Goodwyn provides various consulting services, including
assistance

to

landowners

who

are

seeking

to

obtain

approval under federal and state law to use their land
for ‘mitigation banks.’
A mitigation bank is, generally speaking, in the
business of creating new wetlands.

The Clean Water Act,

33 U.S.C. § 1251 et seq., as enforced by the Army Corps
of Engineers, protects the nation’s wetlands by, among
other things, requiring that persons or businesses that
adversely impact existing wetlands compensate for the

2

damage by establishing new wetlands.
through

third-party

mitigation

They often do so

banks.

See,

e.g.,

Highview Eng'g, Inc. v. U.S. Army Corps of Engineers,
2010 WL 2106664, at *1 (W.D. Ky. May 24, 2010) (Simpson,
J.) (describing the role of mitigation banks); United
States E.P.A., Mitigation Banking Factsheet, available at
http://www.epa.gov/owow/wetlands/facts/fact16.html
(same).
Black Swamp, one such landowner, is a Mississippi
corporation (of which Evans is a shareholder, President,
and Director) with its principal place of business in an
area adjacent to Aberdeen, Mississippi.

Aberdeen is home

to the U.S. District Court for the Northern District of
Mississippi.
In 2004, Evans, on behalf of Black Swamp, made a trip
to Montgomery to meet with Goodwyn and discuss retaining
its services.

That year, Goodwyn began providing Black

Swamp and Evans with assistance in establishing the Black
Swamp Mitigation Bank.

The efforts were successful, and

3

the bank began making money in late 2008.

During those

intervening years, despite the ongoing work, the parties
were still negotiating the terms of their contractual
relationship.

According to Goodwyn (and denied by Black

Swamp and Evans), the contract was finalized in late
2008, after the first money started coming in.

At that

time, Evans visited Goodwyn in Montgomery to execute the
finalized contract.

That trip was Evans’s second, and

last, visit to the city.

(Goodwyn alleges that Evans

traveled to the Middle District of Alabama a third time
to attend a meeting related to the parties’ business, but
that visit was to Prattville, Alabama, not Montgomery.)
The contract (which Black Swamp and Evans contend is no
contract at all) provided that Goodwyn’s various services
were to be compensated from a percentage of the money the
Black Swamp Mitigation Bank would make in the future.
At some point, the relationship went sour and Black
Swamp stopped making payments that Goodwyn claimed were
due.

Goodwyn filed this lawsuit in the U.S. District

4

Court for the Middle District of Alabama to recover the
debt.

Black Swamp and Evans moved to have this court

transfer the case from the Middle District of Alabama
(which,

like

Goodwyn,

has

its

home

in

Montgomery,

Alabama) to the U.S. District Court for the Northern
District of Mississippi (which, as noted above, is near
the Black Swamp Mitigation Bank).
U.S.C.

§

1406(a)

or,

in

the

They do so under 28

alternative,

28

U.S.C.

§ 1404(a).

II. DISCUSSION
A.
28 U.S.C. § 1406(a) requires that, “The district
court of a district in which is filed a case laying venue
in the wrong division or district shall dismiss, or if it
be in the interest of justice, transfer such case to any
district
brought.”

or

division

in

which

it

could

have

been

For this court to transfer the case pursuant

to § 1406(a), venue in this district must be improper.

5

Venue is proper in any district “in which a substantial
part of the events or omissions giving rise to the claim
occurred.”

28 U.S.C. § 1391(b)(2).

Black Swamp and Evans contend that venue is proper in
the Northern District of Mississippi, because the most
substantial part of the events at issue in this case
occurred there, not here.
mark.

But that argument misses the

The language of 28 U.S.C. § 1391 “contemplates

some cases in which venue will be proper in two or more
districts.”

Jenkins Brick Co. v. Bremer, 321 F.3d 1366,

1371 (11th Cir. 2003) (noting that before it was amended,
§ 1391 once “provided for venue only in the single
district ‘in which the claim arose’”).

Under the current

statute, venue may be proper in any number of districts
in which a “substantial part” of the events at issue
occurred.

As

such,

in

ruling

on

a

motion

under

§ 1406(a), the court is not required to weigh the events
that occurred in Mississippi against those that took
place in Alabama and choose which venue is more proper;

6

rather, even though “a substantial part of the events or
omissions giving rise to” the claim in this litigation
may have occurred in Mississippi, so long as the same can
be said as to the Middle District of Alabama, venue is
proper in this district.
As Black Swamp and Evans have challenged venue under
§ 1406(a), Goodwyn, the party that chose to institute
this case in the Middle District of Alabama, now must
carry the burden of showing that its choice of venue was
correct, that is, that “a substantial part of the events
or omissions giving rise to the claim” asserted in this
case occurred in the Middle District of Alabama.

Reyes

v. JA & M Developing Corp., 2012 WL 3562024, at *3 (S.D.
Fla. 2012) (Rosenbaum, J.).

But Goodwyn’s burden is not

heavy. “‘[T]he plaintiff must present only a prima facie
showing of venue.’”

Home Ins. Co. v. Thomas Indus.,

Inc., 896 F.2d 1352, 1355 (11th Cir. 1990) (quoting
Delong Equipment Co. v. Washington Mills Abrasive Co.,
840 F.2d 843, 845 (11th Cir. 1988)).

7

A district court

may decide whether a plaintiff’s choice of forum is
proper by reference to factual allegations made in the
plaintiff’s complaint and supplemental evidence in the
form of affidavits submitted by both parties, and the
court need not conduct an evidentiary hearing.

Id.

The

court will assume that facts alleged in the plaintiff’s
complaint are true if they are not controverted by the
defendant.

Id.

But, even if the defendant submits

evidence that conflicts with the plaintiff’s factual
allegations and evidence, “the court is inclined to give
greater

weight

to

the

plaintiff's

version

of

the

jurisdictional facts and to construe such facts in the
light

most

favorable

to

the

plaintiff.”

Id.

Essentially, the prima-facie standard, the determination
of which may be made on the pleadings, boils down to one
of ‘plausibility’; to withstand a motion to transfer on
the basis of plaintiff’s venue of choice being improper,
the plaintiff must show only that the venue chosen is
plausibly proper.

Cf. Ashcroft v. Iqbal, 556 U.S. 662,

8

678 (2009) (“To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true,
to ‘state a claim to relief that is plausible on its
face.’”) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)).

If the plaintiff meets this light

standard, then the burden shifts to the defendant, as the
movant, to show why venue is improper.

Canal Ins. Co. v.

Yelder, 2010 WL 2640241
at *1 (M.D. Ala. June 22, 2010) (Thompson, J.) (“As
[defendant] Harco has objected to the venue under 28
U.S.C. § 1406(a), it bears ‘the burden of establishing
that venue is improper.’”) (quoting 17 James Wm. Moore,
et al., Moore’s Federal Practice § 110.01[5][c] (3d ed.
2012)).
In

this

case,

which

is

essentially

a

contract

dispute, the parties signed their contract (or, as Black
Swamp and Evans contend, signed some document that was a
part of contract negotiations but was not a contract) in
the

Middle

District

of

Alabama.

9

Whether

the

court

ultimately agrees with either Goodwyn or Black Swamp and
Evans as to the legal significance of the document is
immaterial for the venue inquiry.

Both parties agree

that the document was drafted and signed in the Middle
District of Alabama, and that event, regardless of its
contested legal significance, is clearly “a substantial
part of the events or omissions giving rise to” the claim
in

this

litigation.

Moreover,

although

the

record

currently before the court does not wholly illuminate the
nature of the services Goodwyn offered Black Swamp and
Evans, it appears clear that at least some of those
services took place in this district.

These events also

plainly constitute “a substantial part of the events or
omissions giving rise to the claim.”

Therefore, to the

extent that Black Swamp and Evans’s motion to transfer
venue rests on § 1406(a), it will be denied; Goodwyn has
pointed to the basis for a prima-facie finding of proper
venue in Alabama, and Black Swamp and Evans have failed

10

to convince the court that the conclusion should be
otherwise.

B.
Black
§ 1404(a).

Swamp

and

Evans

next

invoke

28

U.S.C.

That statute authorizes a district court to

transfer a civil action to any other district in which it
might have been brought “for the convenience of parties
and

witnesses,

in

the

interest

of

justice.”

Id.

“Because federal courts normally afford deference to a
plaintiff's choice of forum, the burden is on the movant
to show that the suggested forum is more convenient or
that

litigation

justice.”

there

Carroll

v.

would

be

in

the

Texas

Instruments,

interest
Inc.,

of

____

F. Supp. 2d ____, ____, 2012 WL 1533785, at *1 (M.D. Ala.
May 1, 2012) (Thompson, J.) (citing In re Ricoh Corp.,
870 F.2d 570, 573 (11th Cir. 1989)).
has

broad

arguments

discretion
as

to

in

venue,

weighing
but

11

must

“A district court
the

conflicting

engage

in

an

individualized, case-by-case consideration of convenience
and

fairness.”

Id.

(quotation

marks

and

citations

omitted).
“In resolving a § 1404(a) motion, the court first
determines whether the action could have originally been
brought in the proposed district of transfer” (here, the
Northern District of Mississippi), and, “if so, the court
then weighs the convenience of the parties and considers
interests of justice to determine whether a transfer is
appropriate.”

Id. at ____, 2012 WL 1533785, at *2

(citing C.M.B. Foods, Inc. v. Corral of Md. Ga., 396 F.
Supp. 2d 1283, 1286 (M.D. Ala. 2005) (Thompson, J.)).
Here, as Goodwyn concedes, there is no question that this
case could have originally been brought in the Northern
District of Mississippi.
Accordingly, the court's inquiry focuses solely on
whether the balance of justice and convenience favors
transfer. In making this determination, courts generally
consider a number of non-exhaustive factors, including

12

the following: the plaintiff's initial choice of forum;
the convenience of the parties; the relative means of the
parties; the convenience of the witnesses; the relative
ease of access to sources of proof; the availability of
compulsory

process

for

witnesses;

the

location

of

relevant documents; the financial ability to bear the
cost of the change; and trial efficiency.
First,

as

to

the

plaintiff’s

Id.

choice

of

forum,

Goodwyn’s principal place of business is in the district
chosen

for

Alabama.

this

litigation:

the

Middle

District

of

Goodwyn’s choice of venue in its home district

should be given considerable weight and should not be
disturbed absent other factors that weigh strongly in
favor of transfer.

Id.; see also Robinson v. Giarmarco

&

F.3d

Bill,

P.C.,

plaintiff's
unless

it

74

choice
is

of

253

(11th

Cir.

forum

should

not

clearly

outweighed

1996)
be

(“The

disturbed
by

other

considerations.”) (internal quotes and citation omitted).

13

Second, the court turns to the “convenience for and
cost of attendance of witnesses,” which is an important
factor.

Carroll, ____, F. Supp. 2d at ____, 2012 WL

1533785,

at

*3.

For

non-party

witnesses,

“it

is

sometimes dubbed the single most important factor in
determining whether the transfer of venue is proper.”
Id.

“Because this factor may be so important, some

courts view it as helpful if the party seeking transfer
clearly specifies the witnesses to be called and makes a
general statement of what their testimony will cover.”
Id. (citing Neil Bros. Ltd., v. World Wide Lines, Inc.,
425 F. Supp. 2d 325, 329 (E.D. N.Y. 2006) (Spatt, J.)).
“After that, the reasoning continues, a district court
may be able to ‘assess the relevance and materiality of
the

information

the

witness

may

provide.’”

In

re

Genentech, Inc., 566 F.3d 1338, 1343 (Fed. Cir. 2009).
In other words, resolution of the convenience-ofwitnesses
parties

of

issue
the

should

not

lengths

of

14

be

a

battle

witness

between

lists;

the

the

court

“should not merely tally the number of witnesses who
reside in the current forum in comparison to the number
located in the proposed transferee forum.”

Neil Bros.,

425 F. Supp. 2d at 329 (internal quotation marks and
citations omitted)); see also Dale v. United States, 846
F. Supp. 2d 1256, 1258 (M.D. Fla. 2012) (Presnell, J.)
(noting that the court “will not simply ‘tally the number
of witnesses' in each prospective forum to determine
which

is

more

convenient”);

Microspherix

LLC

v.

Biocompatibles, Inc., 2012 WL 243764, at *3 (S.D. Fla.
Jan. 25, 2012) (Moore, J.) (“In assessing the convenience
of

the

witnesses,

the

mere

length

of

an

individual

parties' list of potential witnesses is not of great
significance.”).

The resolution should turn on a more

substantive

qualitative

and

analysis,

based

on

the

totality of the circumstances, of the comparative real
burdens faced by the parties in gathering, preparing, and
presenting their evidence.

15

Here, Black Swamp and Evans identify nine potential
non-party witnesses to serve at trial, all of whom reside
in various parts of Mississippi.

For six of those nine,

Black Swamp and Evans provide the court with names,
titles

(for

example,

“Engineer”),

and

addresses

in

Mississippi, but provide no other information that would
allow the court to determine the role the persons listed
play in the dispute.

With such terse descriptions, the

court cannot “assess the relevance and materiality of the
information the witness[es] may provide,”

Carroll, ____

F. Supp. 2d at ____, 2012 WL 1533785, at *3 (quoting
Genentech, 566 F.3d at 1343), and thus engage in the
required substantive and qualitative analysis of the
real burden Black Swamp and Evans face.
non-party

witnesses

for

whom

Black

As to the three
Swamp

and

Evans

provide more information, the court agrees that those
witnesses

are

testimony.
of

hardship

likely

to

provide

relevant,

material

But, Black Swamp and Evans offer no evidence
that

would

result

16

from

requiring

those

witnesses to travel to Montgomery for trial (for example,
as a consequence of precarious financial circumstances,
poor health, or other limiting conditions).
indication

that

the

witnesses

would

There is no

be

unable

unwilling to offer their testimony in Montgomery.

or
Cf.

Mason v. Smithkline Beecham Clinical Labs., 146 F. Supp.
2d 1355, 1361 (S.D. Fla. 2001) (Moore, J.) (“[I]t is not
so

much

the

convenience

of

the

witnesses

but

the

possibility of having their testimony at the trial that
is important.”).

By identifying several witnesses who

reside closer to the Northern District of Mississippi
than this court, Black Swamp and Evans have only slightly
established cause for transferring venue.
Third, the court next considers the public interest
in having this dispute resolved in either Alabama or
Mississippi.

Black Swamp and Evans lean heavily on this

factor, claiming that the “fate of a mitigation bank that
serves a 17-county area in Mississippi will have [a]
significant

impact

and

consequences

17

in

the

State

of

Mississippi and thus public interest ‘heavily’ favors
having the case transferred there.”
6) at 6.

Pl.’s Mot. (Doc. No.

But, the case that Black Swamp and Evans cite

for support, Nat’l Wildlife Fed’n v. Harvey, 437 F. Supp.
2d

42,

49-50

inapposite.

(D.D.C.
In

2006)

that

(Kollar-Kotelly,

case,

plaintiffs

J.),

asked

is
for

injunctive relief regarding the U.S. Corps of Engineers’
operations in Florida.

The U.S. District Court for the

District of Columbia held that the case was “local to
Florida and ... one in which Florida and its residents
have

a

great

interest,”

and

that

factor

“weigh[ed]

heavily in favor of transfer” to Florida.

Id. at 49.

contrast,

not

Goodwyn

in

this

case

does

ask

By
for

injunctive relief that could have a significant impact on
the Mississippi environment, but only for payment of a
debt.

It

is

true

that

a

judgment

from

this

court

ordering payment could have an indirect effect on the
continued operations of the mitigation bank, but that
possibility seems speculative and remote.

18

The record is

insufficient to show anything more than a minor public
interest, if that, in having this dispute resolved in
Mississippi.
On the other hand, all things considered, the public
interest may actually favor Alabama over Mississippi,
given

that

Black

Swamp

and

Evans

have

not

denied

Goodwyn’s contention that Alabama law controls in this
case.

“Generally,

this

court

agrees

that

it

is

appropriate to have the trial of a diversity case in the
forum which provides the law of decision, rather than in
another forum which will have to apply foreign law.”
Holmes v. Freightliner, LLC., 237 F. Supp. 2d 690, 695
(M.D. Ala. 2002) (Albritton, C.J.).
Lastly, the court turns to comparative access to
evidence in this court versus the Northern District of
Mississippi.

Black

Swamp

and

Evans

argue

that

“[a]lthough jury views of the [property involved in a
trial]

are

rarely

necessary,

photographs

and

other

evidence may not constitute adequate substitutes for a

19

site visit.”

Pl.’s Mot. (Doc. No. 6) at 7 (citing Speed

Trac Technologies, Inc. v. Estes Express Lines, Inc., 567
F. Supp. 2d 799, 804 (M.D. N.C. 2008) (Schroeder, J.);
compare United Air Lines, Inc. v. United States, 192 F.
Supp. 796, 798 (D. Del. 1961) (Wright, J.) (“A view of
the scene ... is not likely to be of much aid, for
topographical maps or photographs, supplemented by expert
testimony, are likely to be far more illuminating to the
trier of fact than a glimpse at some mountains.”).
general,

in

deciding

venue

transfer

motions,

In

courts

disregard the possibility of a site visit except “in the
most exceptional cases.”

15 Charles Alan Wright & Arthur

R. Miller, Federal Practice & Procedure § 3854 (3d ed.)
(“Courts

should

refuse

to

take

into

account

the

possibility of a jury view unless the moving party has
shown

how

a

view

of

the

locality

litigation could be helpful.”).

of

the

events

in

While site visits may

often be desirable, Black Swamp and Evans have not by any
stretch of the imagination shown that a site visit will

20

be desirable or necessary in this case.

Nothing in the

record before the court indicates that a site visit would
be warranted.
At the end of the day, after considering the totality
of the circumstances, the court cannot conclude that the
case should be transferred to Mississippi.

Black Swamp

and Evans have not met their burden of demonstrating that
justice and fairness require a transfer in this case.

To

the extent that Black Swan and Evans have shown that some
factors could be viewed as supporting transfer, they have
done so “only slightly.”

Carroll, ___ F. Supp. 2d at

____, 2012 WL 1533785, at *8.

In such a case, and giving

deference to Goodwyn’s choice of forum, the court has no
choice but to conclude that transfer would not be in the
interest of justice.

See id.; Johnston v. Foster–Wheeler

Constructors, Inc., 158 F.R.D. 496, 503 (M.D. Ala. 1994)
(Albritton, J.) (“If the transfer would merely shift the
inconvenience from one party to the other, or if the
balance of all factors is but slightly in favor of the

21

movant, the plaintiff's choice of venue should be given
deference.”) (internal quotations omitted)).

***
Accordingly, it is ORDERED that defendants Black
Swamp, Inc. and Murphree Evans's motion to transfer venue
(Doc. No. 6) is denied.
DONE, this the 19th day of October, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE