APR, LLC v. American Aircraft Sales, Inc., et al
MEMORANDUM OPINION AND ORDER directing as follows: (1) Plaintiff APR, LLC's 13 motion to remand is denied; (2) Defendants American Aircraft Sales, Inc. and Jet Tolbert's 22 alternative motion to change venue is granted; (3) This lawsuit is transferred in its entirety to the United States District Court for the Middle District of Florida; (4) All other pending motions are left for resolution after transfer; the clerk of the court is DIRECTED to take appropriate steps to effect the transfer; this case is closed in this court. Signed by Honorable Judge Myron H. Thompson on 2/19/13. (scn, )
IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION
AMERICAN AIRCRAFT SALES,
INC.; and JET TOLBERT,
individually, and as an
agent, servant, and/or
employee of American
Aircraft Sales, Inc.,
CIVIL ACTION NO.
OPINION AND ORDER
defendants American Aircraft Sales, Inc. and Jet Tolbert
for injuries arising out of the purchase of a Cessna
aircraft facilitated by American Aircraft and Tolbert.
APR asserts a number of state-law claims, including breach
unjust enrichment, conspiracy, wantonness, conversion,
jurisdiction of this court has been invoked pursuant to
28 U.S.C. § 1332 (diversity of citizenship) and 1441
Now before the court are four motions: APR’s motion to
remand; American Aircraft and Tolbert’s two motions to
dismiss for lack of personal jurisdiction and failure to
alternative motion for transfer of venue.
For the reasons
that follow, the remand motion will be denied and the
alternative transfer motion granted.
This case arises out of the purchase of an aircraft by
business in Opelika.
APR contends that, while it believed
process by a responsible broker, it was instead being
duped into paying a higher price so that the company it
believed was brokering the transaction could profit at
In March 2012, while APR was in the midst of its
search for a corporate aircraft, one of its employees
found a 1984 Cessna Citation S/II listed as available for
sale on the website .
maintained by American Aircraft, a corporation organized
and existing under the laws of Florida.
On its website,
aircraft brokerage firm” that uses its expert assistance
to help buyers navigate the negotiation and purchase
The Cessna itself was not owned by American
Aircraft but by a company called Lewis Air Fleet.
An APR employee contacted Jet Tolbert, an American
Aircraft employee, who assured him that he would help APR
get “the best deal.”
Compl. (Doc. No. 18) at 5.
sent APR some of American Airlines’s marketing material.
After some discussion between Tolbert and APR, Tolbert
recommended that APR offer Lewis Air Fleet $ 1,050,000 to
purchase the Cessna.
Although APR asked if a lower figure
APR agreed to make the offer.
Tolbert began to aid APR in the purchasing process.
He instructed APR to wire a deposit to an escrow company
that he had selected, and he promised to present APR’s
offer to Lewis Air Fleet once the wire transfer was
Two APR representatives flew to Jacksonville
International Airport in Florida to inspect the Cessna.
purchase the Cessna from Lewis Air Fleet for less than APR
had offered to pay; APR was unaware that American Aircraft
had taken this step.
Shortly before closing, APR learned
that American Aircraft would actually become the owner and
the seller of the Cessna, but was informed that title was
merely passing through American Aircraft.
APR now alleges that Tolbert and American Aircraft
actually used APR’s financial resources to purchase the
Cessna for a lower price and then sell it to APR for a
profit; APR further alleges that Tolbert used information
that he learned from APR to negotiate a contract between
Lewis Air Fleet and American Aircraft, and he used APR’s
deposit (which Tolbert had APR wire to an escrow account)
to make a deposit on the Cessna for American Aircraft.
In addition to the bad deal APR alleges it received at
the hands of American Aircraft and Tolbert, APR alleges
that the Cessna had defects when it was delivered.
alleges that the Cessna’s systems and avionics were not
“functioning normally to manufacturer’s specifications”
and that it was “not current on its factory-recommended
Am. Compl. (Doc. No. 18) at 12.
A. Motion to Remand
APR initially filed this lawsuit in an Alabama state
Tolbert removed it to this federal court pursuant to
28 U.S.C. § 1332 (diversity of citizenship) and 1441
APR now moves to remand this case to state
court pursuant to 28 U.S.C. § 1447.
Federal district courts have original jurisdiction
“$ 75,000, exclusive of interest and costs.”
APR does not contest that the diversity-of-
citizenship requirement is satisfied; instead, it disputes
Because APR did not specify the amount at issue in its
complaint, American Aircraft and Tolbert bear the burden
preponderance of the evidence.
See Lowery v. Alabama
Power Co., 483 F.3d 1184, 1208 (11th Cir. 2007).
end, a removing defendant “may submit a wide range of
requirements of removal.”
Pretka v. Kolker City Plaza II,
Inc., 608 F.3d 744, 755 (11th Cir. 2010).
“affidavits, declarations, or other documentation.”
The evidence presented may be “combined with reasonable
deductions, reasonable inferences, or other reasonable
extrapolations” to meet the defendant’s burden.
Here, American Aircraft and Tolbert’s evidence is
affidavit from Tolbert stating that American Aircraft had
bought the Cessna from its original owner for $ 850,000.
This statement was supported by a purchase agreement and
aircraft acceptance receipt, which were both attached as
Because, as described above, APR purchased the
aircraft for $ 1,050,000, American Aircraft’s gross profit
was $ 200,000.
Tolbert also explained in his affidavit
$ 1,050,000, the normal commission rate is 5-8 %.
earlier brokerage agreement that American Aircraft had
with the owner of the Cessna at issue in this case set the
commission rate at 5 %.
Given these rates, even if APR
expected to pay the highest commission rate within the
normal range for an aircraft with this market value, the
approximately $ 132,000, well over the $ 75,000 mark.1
Tolbert’s affidavit and supporting documentation, combined
with the reasonable inference that American Aircraft would
1. The court arrived at this estimate by assuming
that APR would have paid an 8 % commission (because doing
so would yield the lowest amount of damages). At that
rate, the commission paid for an $ 850,000 aircraft would
have been $ 68,000, making the total paid $ 918,000. The
$ 132,000 figure reflects the difference between what APR
would have paid had it been given the deal to which it
alleges it was entitled ($ 918,000. )and what it actually
paid for the aircraft ($ 1,050,000).
have charged a commission rate within its normal range,
suffice to establish the requisite jurisdictional amount
by a preponderance of the evidence.
APR contends that
this court should discredit the evidence that American
Aircraft and Tolbert append to their amended removal
notice because it contradicts statements they make in
their motion to dismiss.
Specifically, APR cites three
Aircraft and Tolbert point out that the APR has not
specified what damages it has suffered and that the amount
of damages is therefore unclear; APR argues that these
statements reveal that American Aircraft and Tolbert do
accurate assertions that APR did not specify its damages
in no way preclude American Aircraft and Tolbert from
presenting evidence to establish what those damages might
For these reasons, APR’s motion to remand will be
B. Motion to Transfer Venue
As an alternative to their motion to dismiss, American
discretion pursuant to 28 U.S.C. § 1404(a) to transfer
this action to the United States District Court for the
Middle District of Florida.
Because a transfer of venue
would render unnecessary a ruling on the merits of the
dismissal motion, the court will address the alternative
transfer motion first.
As an initial matter, APR argues that, pursuant to
American Aircraft and Tolbert have waived their right to
request a change of venue by not arguing that venue was
‘improper’ venue made pursuant to Rule 12(b), the waiver
provisions of 28 U.S.C. § 1404(a).
See, e.g., Aalberg v.
Plan 4 Coll., Inc., No. 8:09-CV-1393-T-27EAJ, 2009 WL
3698039, at *1 (M.D. Fla. Nov. 4, 2009) (Porcelli, J.) (a
motion to transfer venue under § 1404(a) “is not a Rule
provisions of 12(h)”) (quotations and citations omitted)
; Smith v. Kyphon, 578 F. Supp. 2d 954, 957 (M.D. Tenn.
2008) (Wiseman, J.) (“[A] motion to dismiss for improper
venue pursuant to Rule 12(b) is not the same as a motion
to transfer to a more convenient venue under 28 U.S.C.
§ 1404(a) and [the latter] is therefore not subject to the
waiver provisions of Rule 12(h)”) (emphasis in original);
Mohamed v. Mazda Motor Corp., 90 F. Supp. 2d 757, 759
(E.D. Tex. 2000)
(Heartfield, J.) (noting that Fed. R.
Civ. P. 12(h) “speaking to improper venue–-not transfer of
venue for convenience of the parties and the witnesses
under Title 28 U.S.C. § 1404(a)”) (emphasis in original).
Therefore, American Aircraft and Tolbert have not waived
their right to make this request.
Section 1404(a) provides that a district court may
transfer a civil action to another district or division in
which it might have been brought, “For the convenience of
the parties and witnesses, in the interest of justice.”
plaintiff’s initial choice of forum.
See In re Ricoh
Corp., 870 F.2d 570, 573 (11th Cir. 1989).
the burden is on the party requesting a
transfer to show that the forum it suggests is more
convenient or that litigating the case there would be in
the interest of justice.
See C.M.B. Foods, Inc. v. Corral
of Middle Georgia, 396 F. Supp. 2d 1283, 1285 (M.D. Ala.
2005) (Thompson, J.).
Determining the propriety of transfer entails two
“First, the court must determine whether the
action could originally have been brought in the proposed
transferee district court.” Id. at 1286 (quotations and
Second, the court “must determine
Here, the first step is easily accomplished.
Middle District of Florida has original subject-matter
jurisdiction over this action based on diversity pursuant
to 28 U.S.C. § 1332(a).
That court also has personal
jurisdiction over American Aircraft and Tolbert, a Florida
corporation and a Florida resident, respectively.
§ 1391(b)(1) and (2), which state that a civil 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 if located” or “in a judicial district
in which a substantial part of the events or omissions
giving rise to the claim occurred.”
American Aircraft is
a Florida corporation and has offices only in Florida;
Tolbert is a resident of Florida.
Moreover, the aircraft
at issue was located, inspected, and delivered in Florida.
Therefore, the Middle District of Florida is a proper
venue for this action.
The court now turns to the second inquiry: whether
convenience and the interest of justice favor a transfer.
To evaluate this concern, this court may consider a broad
range of 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. Convergys Corp., 430 F.3d 1132, 1135 (11th Cir.
2005) (quotations and citations omitted).
The court must
‘individualized, case-by-case consideration of convenience
and fairness.’” Stewart Organization, Inc. v. Ricoh Corp.,
487 U.S. 22, 29 (1988) (quoting Van Dusen v. Barrack, 376
U.S. 612, 622 (1964)).
Here, American Aircraft and Tolbert allege that, aside
from the parties themselves, “there are no non-party
witnesses expected other than the company in Venice[,]
Florida” that inspected the Cessna before it was delivered
Defs.’ Mot. (Doc. No. 22) at 28, and APR does not
The parties also agree that the location of
documents is a non-issue given the ease of moving them.
The convenience to the parties, on balance, counsels
in favor of a transfer.
While APR is located in Alabama,
American Aircraft and Tolbert have presented evidence
showing that APR has flown the Cessna at issue to Florida
aircraft in July.
American Aircraft and Tolbert, on the
other hand, are based in Florida and, by their account,
“never travel to Alabama.”
Defs.’ Mot. (Doc. No. 22) at
American Aircraft and Tolbert also note that, while
APR is “a large corporate entity with its own corporate
jet,” American Aircraft and Tolbert stay in business by
earning commissions, which would be seriously hampered if
key staff had to travel to Alabama for trial.
not directly dispute any of these arguments, but instead
makes a blanket argument that, “The convenience of the
parties amounts to a wash in this case” because APR would
American Aircraft and Tolbert would be inconvenienced by
traveling to Alabama.
However, the court finds that
American Aircraft and Tolbert’s arguments (uncontested by
APR) are persuasive and concludes that, on balance, the
Florida, particularly given the parties’ relative means.
The Cessna was located in Florida and
was also delivered in that State; APR visited Florida to
inspect the aircraft; and neither Tolbert nor any other
Alabama to discuss the transaction at issue in this case.
The concentration of the operative facts in Florida is
significant for a second reason: it gives this court
Aircraft and Tolbert have also filed a motion to dismiss,
contacts” with Alabama to be subject to suit in this
See Helicopteros Nacionales de Colombia S.A. v.
Hall, 466 U.S. 408, 414 (1984) (“Due process requirements
are satisfied when in personam jurisdiction is asserted
over a nonresident corporate defendant that has ‘certain
minimum contact with [the forum] such that the maintenance
of the suit does not offend ‘traditional nations of fair
play and substantial justice.’’”) (quoting Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945)).
In order to have minimum contacts with a forum State,
benefits” of that forum’s law.
accessible in Alabama, which is the means by which APR
It is indisputable that “advertising
that is reasonably calculated to reach the forum may
constitute purposeful availment of the privileges of doing
business in the forum.”
U.S. S.E.C. v. Carillo, 115 F.3d
1540, 1545 (11th Cir. 1997).
However, district court
cases in this circuit strongly suggest that the mere
existence of a website that includes contact information
is not the sort of active advertising effort that would
justify the exercise of personal jurisdiction. See, e.g.,
Brannon v. Fin. Am., LLC, 483 F. Supp.2d 1136, 1140-41
(M.D. Ala. 2007) (Thompson, J.) (concluding that the
defendants actively targeted the plaintiffs’ business, as
opposed to merely making “an unfocused solicitation, such
as an advertisement on a nationally oriented website”)
(emphasis added); Butler v. Beer Across America, 83 F.
Supp.2d 1261, 1268 (N.D. Ala. 2000) (Hancock, J.) (finding
that “the limited degree of interactivity available on the
defendants’ website [was] ... insufficient to satisfy the
minimum contacts requirement of due process” where the
site was “closer to an electronic version of a postal
information about its business to Sandhills Publishing
Company for the purpose of advertising on Sandhills’s
website at and operated a website of
its own at . APR’s use of
these websites as a means of finding and learning about
American Aircraft does not show that American Aircraft
purposefully availed itself of the laws of Alabama by
actively advertising in this forum.
initiate contact with APR or visit Alabama, nor did they
have an ongoing business relationship with APR.
escrow funds were never held in Alabama, and the aircraft
was never delivered in this State.
Compare Banton Indus.,
Inc. v. Dimatic Die & Tool Co., 801 F.2d 1283, 1284 (11th
Cir. 1986) (finding no personal jurisdiction where the
defendant “[was] not an Alabama corporation and ha[d] no
contacts with that state other than its sale of goods to
an Alabama resident,” nor did it “actively seek business
in Alabama”; instead the “contract and sale upon which
defendant,” which were “tendered to [the plaintiff] in
Omaha, Nebraska”), with Brannon, 483 F. Supp. 2d at
41 (M.D. Ala. 2007) (Thompson, J.) (finding personal
jurisdiction where the defendant “clearly directed its
activities toward the [plaintiffs], and not the other way
around”; and the defendant’s actions “evince[d] intent to
conduct business on an ongoing basis with a particular
consumer in Alabama”).
The court is therefore doubtful
that it has personal jurisdiction over American Aircraft
In addition, that the underlying facts transpired
almost exclusively in Florida dilutes the weight of APR’s
initial choice of forum: “[W]hen ‘the operative facts
underlying the cause of action did not occur within the
forum chosen by the Plaintiff, the choice of forum is
entitled to less consideration.’”
Gould v. Nat'l Life
Another factor this court considers is which State’s
law will be applied in this case.
For, “there is an
appropriateness ... in having the trial of a diversity
case in a forum that is at home with the state law that
must govern the case rather than having a court in some
other forum untangle problems in conflicts of laws and in
law foreign to itself.”
Gulf Oil Corp. v. Gilbert, 330
U.S. 501, 509 (1947).
In addition, when an action is
transferred upon a request from the defendants, “the
transferee district court must ... apply the state law
that would have been applied if there had been no change
Van Dusen v. Barrack, 376 U.S. 612, 639
State’s law would govern.
A federal court sitting in
Petroleum, Inc. v. Federated Mut. Ins. Co., 135 F.3d 750,
752 (11th Cir. 1998); thus, this court will apply Alabama
In tort cases, Alabama courts apply the substantive
law of the place of injury.
See Movie Gallery US, LLC v.
Greenshields, 648 F. Supp. 2d 1252, 1262 (M.D. Ala. 2009)
Thus, “it is not the site of the alleged
tortious act that is relevant, but the site of the injury,
or the site of the event that created the right to sue.”
Glass v. Southern Wrecker Sales, 990 F. Supp. 1344, 1347
(M.D. Ala. 1998 (Albritton, J.).
“[T]he place of injury
for tort claims involving financial injury is ‘the state
in which the plaintiff suffered the economic impact.’”
Movie Gallery, 648 F. Supp.2d at 1262 (quoting Glass, 990
F. Supp. at 1348).
The parties hotly dispute the site of
injury in this case.
Alabama law demands that, “[i]n breach of contract
actions, the law of the state in which the contract was
executed determines the rights and liabilities of the
Brown Mach. Works & Supply, Inc. v. Insurance
Co. of North American, Inc., 951 F. Supp. 988, 992 (M.D.
Ala. 1996) (De Ment, J.) (emphasis in original).
parties even more closely dispute where the governing
contract was finalized, for the contract went through a
number of drafts and exchanges between the parties in
Alabama and Florida.
Alabama’s choice-of-law rules for torts and breachof-contract claims, therefore, present quite challenging
For, assuming that Alabama law governs these
claims (as APR contends), the court still concludes that
this case should be transferred (as American Aircraft and
A court must not mechanically apply the factors it
considers when determining whether a transfer of venue is
In this case, the overall convenience of
transferring this case and this court’s concerns about its
personal jurisdiction over American Aircraft and Tolbert
weigh most heavily.
See, e.g., C.M.B. Foods, 396 F.
Supp.2d at 1287 (“[N]otwithstanding C.M.B.’s preference
and issues of convenience, the court is concerned that a
substantial question remains as to whether the Stephensons
have had ‘minimum contacts’ with the State of Alabama such
jurisdiction over them in this lawsuit.
For this reason,
concerns about personal jurisdiction strongly outweigh the
issue of which State’s law applies.
Moreover, where it is substantially uncertain as to
which State’s law applies to the claims at issue, it would
seem to follow that the applicable-state-law factor should
weigh less in the court’s determination of whether a
transfer is warranted pursuant to § 1404, for even after
resolution at the trial level the issue would still remain
realistically open for, and have a significant possibility
of, contrary resolution on appeal.
Here, because the law
is so uncertain as to whether Alabama or Florida law
should govern the tort and breach-of-contract claims, the
applicable-state-law factor carries must less, if, in
fact, no weight.2
2. Indeed, it could be argued that it would be
unwise for this court to resolve the applicable-state-law
issue since, regardless as to the resolution of that
issue, transfer is still warranted.
For, it could be
argued, that, should this court resolve the issue one way
transfer this action to the Middle District of Florida.
That forum undoubtedly is more convenient and has personal
jurisdiction over the American Aircraft and Tolbert, and
it is an appropriate venue for this action.
* * *
Accordingly, it is ORDERED as follows:
(1) Plaintiff APR, LLC’s motion to remand (Doc. No.
13) is denied.
(2) Defendants American Aircraft Sales, Inc. and Jet
Tolbert’s alternative motion to change venue (Doc. No. 22)
(3) This lawsuit is transferred in its entirety to the
United States District Court for the Middle District of
and the Florida court, after transfer, resolve it another
way, the two courts would have been put, unnecessarily,
in conflict. Or, to put it another way, this court sees
no reason to saddle the transferee court with the
transferor court’s resolution of the issue.
(4) All other pending motions are left for resolution
The clerk of the court is DIRECTED to take appropriate
steps to effect the transfer.
This case is closed in this court.
Done this the 19th day of February, 2013.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE
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