Vines et al v. Cook et al (Joint Assign)
MEMORANDUM OPINION AND ORDER granting 15 MOTION to Transfer Venue; further ORDERED that this case is TRANSFERRED to the Northern Division of the Southern District of Alabama; DIRECTING the Clerk to take the necessary steps to effectuate the terms of this Order. Signed by Chief Judge William Keith Watkins on 2/27/2015. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
DANA JO VINES and EDWARD
BILLIE GENE COOK and
RICHARD SISSON TRUCKING,
CASE NO. 2:14-CV-1183-WKW
MEMORANDUM OPINION AND ORDER
Before the court is Plaintiffs’ Motion to Transfer Venue (Doc. # 15). The
motion is opposed by Defendants. (Doc. # 17.) After careful consideration of the
arguments of counsel, the relevant law, and the record as a whole, the motion is due
to be granted.
Plaintiffs filed this lawsuit on October 21, 2014, in the Circuit Court of Dallas
County, Alabama, to recover for injuries resulting from an April 2013 automobile
accident. On December 1, 2014, Defendant Richard Sisson Trucking, Inc., with the
consent of Defendant Billie Gene Cook, removed Plaintiffs’ lawsuit to the United
States District Court for the Middle District of Alabama, Northern Division. (Doc.
# 1.) On January 29, 2015, Plaintiffs filed a motion to transfer venue from the
Middle District of Alabama to the Southern District of Alabama. In support,
Plaintiffs highlight that Dallas County, Alabama – the lawsuit’s previous state court
venue – is located in the Northern Division of Alabama’s Southern District, and as
a result, the Southern District is the proper district for removal under 28 U.S.C. §
Section 1441(a) provides that “any civil action brought in a State court of
which the district courts of the United States have original jurisdiction, may be
removed . . . to the district court of the United States for the district and division
embracing the place where such action is pending.” 28 U.S.C. § 1441(a). The
parties agree that the action was pending in Dallas County, Alabama, and
accordingly, was properly removable to the Northern Division of Alabama’s
Southern District. Defendants, however, highlight Peterson v. BMI Refractories, in
which the Eleventh Circuit determined that an error of § 1441(a)’s geographic
requirement amounts to a procedural defect. 124 F.3d 1386, 1391 (11th Cir. 1997).
Additionally, the Eleventh Circuit explained that, “[a]s with other procedural
defects, parties can waive venue requirements” Id. (citing 28 U.S.C. § 1406(b)).
Pursuant to § 1406, which speaks to both the cure and waiver of defects, a
“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 or division in which it could have been brought” unless a party “does not
interpose timely and sufficient objection to the venue.” 28 U.S.C. §§ 1406(a), (b).
Accordingly, the central question is whether Plaintiffs’ motion to transfer is timely
under § 1406(b). Defendants argue that Plaintiffs’ motion is not timely because it
undisputedly was not made within thirty days of the filing of their notice of removal
in accordance with § 1447(c). See 28 U.S.C. § 1447(c) (“A motion to remand the
case on the basis of any defect other than lack of subject matter jurisdiction must be
made within 30 days after the filing of the notice of removal under section
1446(a).”). Plaintiffs’ motion, however, is not a motion to remand the case back to
state court, but a motion to transfer the case to the Southern District of Alabama.
While the Eleventh Circuit in Peterson found that the plaintiffs had waived their
right to object to venue, it did so in recognition of the fact that plaintiffs had engaged
in extensive litigation in federal court prior to challenging venue and not because the
challenge came outside the motion-to-remand window. 124 F.3d 1390–91.
Plaintiffs filed the motion to transfer approximately fifty-nine days after
Defendants filed their notice of removal.
During the fifty-nine-day window,
Plaintiffs only filed a single motion requesting that two of their counsel of record be
withdrawn. (Doc. # 13.) Additionally, a Uniform Scheduling Order has yet to be
entered. In light of § 1446(a)’s plain language and the limited litigation undertaken
by Plaintiffs since the removal of this case, Plaintiffs’ motion is deemed timely.
Because Plaintiffs’ motion to transfer is timely and both parties agree that the present
venue is improper pursuant to § 1441(a), venue will be transferred in accordance
with § 1406(a).
Based on the foregoing analysis, it is ORDERED that Plaintiffs’ Motion to
Transfer Venue (Doc. # 15) is GRANTED. It is further ORDERED that this case is
TRANSFERRED to the Northern Division of the Southern District of Alabama. The
Clerk of the Court is DIRECTED to take the necessary steps to effectuate the terms
of this Order.
DONE this 27th day of February, 2015.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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