Gibson v. Scap et al

Filing 81

ORDER granting 17 Defendants' Motion to Transfer and denying as moot 3 Defendants' Motion to Dismiss Plaintiff's Complaint for Lack of Personal Jurisdiction and Improper Venue. The Clerk is directed to transfer this case to the United States District Court for the District of Connecticut. Thereafter, the Clerk is directed to close this case. Signed by Judge Virginia M. Hernandez Covington on 4/16/2012. (MEB)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
CHARLES GIBSON, JR.,
Plaintiff,
v.

Case No. 8:11-cv-949-T-33TGW

GEZA
LLC,

SCAP

and

JGS

PROPERTIES,

Defendants.
________________________________/
ORDER
This matter is before the Court pursuant to Defendants'
Motion to Dismiss Plaintiff's Complaint for Lack of Personal
Jurisdiction and Improper Venue (Doc. # 3), filed on April 29,
2011.

Plaintiff filed a response in opposition to the motion

to dismiss on June 24, 2011. (Doc. # 16).

Also before the

Court is Defendants’ Motion to Transfer (Doc. # 17), filed on
June 24, 2011.

Plaintiff filed a response in opposition to

the motion to transfer on July 5, 2011. (Doc. # 25).

The

Court heard oral arguments on the motions on February 23,
2012.

At the hearing, the Court directed Defendants to file

supplemental evidence regarding their motions.

(Doc. ## 69,

70). Defendants filed their supplemental evidence on March 7,
2012 (Doc. ## 73, 74), and Plaintiff filed a response and
supplemental evidence on March 21, 2012 (Doc. # 76).

For the

reasons that follow, the Court grants the Motion to Transfer

and

denies

the

Motion

to

Dismiss

for

Lack

of

Personal

Jurisdiction and Improper Venue as moot.
I.

Background
Plaintiff Charles Gibson, Jr. is a Florida resident who

has

alleged

that

his

principal

place

of

Hillsborough County, Florida. (Doc. # 2).
Scap,

is

a

resident

of

Connecticut,

business

is

Defendant, Geza

and

Defendant

JGS

Properties is a limited liability company with its principal
place of business in Fairfield County, Connecticut.

(Id.).

On April 11, 2011, Plaintiff filed his complaint in state
court containing the following counts against both Defendants:
(1) breach of contract, (2) civil fraud, and (3) unjust
enrichment. (Doc. # 2).

Defendants timely removed the action

to this Court based on diversity jurisdiction on April 29,
2011. (Doc. # 1).

Plaintiff

contends that the parties

entered into an oral agreement to purchase the assets of a
bankrupt company and to use those assets to start a business
venture in Lakeland, Florida.

(Doc. # 2).

Plaintiff alleges

that after the assets were purchased, Defendants disclaimed
that Plaintiff was a business partner and retained all the
assets, thereby breaching the parties’ alleged oral agreement.
(Id.).
On April 29, 2011, Defendants filed their motion to
dismiss for lack of personal jurisdiction and improper venue.

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(Doc. # 3).

Defendants filed a Motion to

Transfer based on

improper venue on June 24, 2011. (Doc. # 17).
II.

Legal Standard
Transfer of venue is governed by 28 U.S.C. § 1404(a),

which provides that “[f]or the convenience of the 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.”

The Supreme Court has

commented on § 1404(a), noting that “Section 1404(a) is
intended

to

place

discretion

in

the

district

court

to

adjudicate motions for transfer according to individualized,
case-by-case

consideration

of

convenience

and

fairness.”

Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988).
III. Analysis
Defendants ask this Court to transfer this case to the
United States District Court for the District of Connecticut
pursuant to 28 U.S.C. § 1404(a). (Doc. # 17 at 3). Such a
decision is within the broad discretion of this Court.

See

Am. Aircraft Sales v. Airwarsaw, Inc., 55 F. Supp. 2d 1347,
1351 (M.D. Fla. 1999).
As a threshold matter, the Court must consider whether
this

action could

Connecticut.

An

have

been

brought in

action could

have

been

the

District

brought

in

of
the

proposed transferee court if “(1) the court had jurisdiction

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over the subject matter of the action; (2) venue is proper
there; and (3) the defendant is amenable to process issuing
out of the transferee court.”

Windmere Corp. v. Remington

Prods., Inc., 617 F. Supp. 8, 10 (S.D. Fla. 1985).
Here,
District

Plaintiff

of

could

Connecticut

have

filed

this

because

Scap

is

a

case

in

resident

the
of

Connecticut and JGS Properties has its principal place of
business there.

The Court therefore turns to the relevant

factors governing transfer of venue.
The Eleventh Circuit has outlined the following factors
for determining whether to transfer under § 1404(a):
(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).

As movant, Defendants bear the burden of establishing

that the District of Connecticut is a more convenient forum.
In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989).
Upon due consideration, the Court finds that Defendants
have met their burden.

Defendants point out that several of

the key witnesses identified by Plaintiff including Defendant
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Scap, Julie Scap and George Mescaros, are all affiliated with
JGS Properties, and are all located in or near Connecticut
(Doc. # 17 at 4).

Plaintiff counters that many of the

individuals he intends to call as witnesses are Florida
residents. (Doc. # 25 at 1).

However, on balance, the Court

finds Defendants’ arguments more persuasive.
Defendants contend that they do not own or lease any real
property in Florida, do not maintain any offices in Florida,
do not maintain any employees in Florida, and do not have a
registered agent in Florida. (Doc. # 3).

However, Plaintiff

has presented evidence establishing that Defendants conduct
some limited business in Florida by shipping parts to Kaman
Aerospace

Corporation,

Connecticut and Florida.

which

has

facilities

(Doc. ## 65, 75).

in

both

In response,

Defendants assert that Kaman is their only client located in
Florida and that the percentage of sales derived from its
business with Kaman’s Florida division represents only one
percent of its overall gross sales. (Doc. # 74).

The Court

finds this evidence weighs in Defendants’ favor.
Finally, Plaintiff contends that financial difficulties
favor litigation in the Middle District of Florida.
25).

(Doc. #

However, courts within the Eleventh Circuit have not

been inclined to deny motions to transfer venue on the basis
of financial difficulty absent extreme physical or financial

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hardship – particularly when a plaintiff has chosen to enter
into an agreement with a foreign corporation.
Of course, great deference is afforded the plaintiff’s
choice of forum, and “the burden is on the movant to show that
the suggested forum is more convenient or that litigation
there would be in the interest of justice.” Louisiana Fish Fry
Prods. v. Corry, 3:07-cv-1224-J-33TEM, 2008 WL 1882264, at *3
(M.D. Fla. Apr. 24, 2008).

Defendants have made such a

showing in this case. The relevant factors and the transferee
forum’s familiarity with the governing law weigh in favor of
transferring this case.

Based upon the totality of the

circumstances, the Court finds that the interests of justice
will be served by a transfer of this case from the Middle
District of Florida, Tampa Division, to the District of
Connecticut.

Defendants’ Motion to Dismiss is therefore

denied as moot.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED that:
(1)

Defendants’ Motion to Transfer (Doc. # 17) is GRANTED.

(2)

Defendants’ Motion to Dismiss Plaintiff’s Complaint for
Lack of Personal Jurisdiction, Improper Venue (Doc. # 3)
is DENIED AS MOOT.

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(3)

The Clerk is directed to transfer this case to the United
States District Court for the District of Connecticut.
Thereafter, the Clerk is directed to close this case.
DONE and ORDERED in Chambers in Tampa, Florida, this 16th

day of April 2012.

Copies: All Counsel and Parties of Record

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