Gibson v. Scap et al
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
CHARLES GIBSON, JR.,
Case No. 8:11-cv-949-T-33TGW
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,
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).
Court heard oral arguments on the motions on February 23,
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).
reasons that follow, the Court grants the Motion to Transfer
Jurisdiction and Improper Venue as moot.
Plaintiff Charles Gibson, Jr. is a Florida resident who
Hillsborough County, Florida. (Doc. # 2).
Properties is a limited liability company with its principal
place of business in Fairfield County, Connecticut.
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).
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).
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.
On April 29, 2011, Defendants filed their motion to
dismiss for lack of personal jurisdiction and improper venue.
(Doc. # 3).
Defendants filed a Motion to
Transfer based on
improper venue on June 24, 2011. (Doc. # 17).
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
adjudicate motions for transfer according to individualized,
Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988).
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.
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
proposed transferee court if “(1) the court had jurisdiction
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).
Connecticut and JGS Properties has its principal place of
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.
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
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).
has presented evidence establishing that Defendants conduct
some limited business in Florida by shipping parts to Kaman
Connecticut and Florida.
(Doc. ## 65, 75).
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).
finds this evidence weighs in Defendants’ favor.
Finally, Plaintiff contends that financial difficulties
favor litigation in the Middle District of Florida.
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
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
Defendants’ Motion to Dismiss is therefore
denied as moot.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED that:
Defendants’ Motion to Transfer (Doc. # 17) is GRANTED.
Defendants’ Motion to Dismiss Plaintiff’s Complaint for
Lack of Personal Jurisdiction, Improper Venue (Doc. # 3)
is DENIED AS MOOT.
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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