Laing v. BP, P.L.C. et al

Filing 70

ORDER transferring the action to the Houston Division of the Southern District of Texas. Signed by Judge Steven D. Merryday on 8/14/2014. (BK)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
JOHN LAING,
Plaintiff,
v.

CASE NO.: 8:13-cv-1041-T-23TGW

BP EXPLORATION & PRODUCTION
INC., et al.,
Defendants.
____________________________________/
ORDER
A January 23, 2014, order (Doc. 39) dismisses Laing’s initial complaint, which
alleges claims under only Florida law. Laing amends (Doc. 43) his complaint and
alleges under only Texas law claims for quantum meruit, breach of implied contract,
and conversion. BP moves (Doc. 48) to dismiss the complaint, but a July 22, 2014,
order (Doc. 67) directs the parties to brief whether to transfer this action to the
Southern District of Texas under Section 1404(a). BP argues (Doc. 69) for, and
Laing argues (Doc. 68) against, transfer.

DISCUSSION
Under 28 U.S.C. § 1404(a), “[f]or the convenience of 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 or to any district or division to which
all parties have consented.” Although Section 1404(a) lists only three factors –

convenience of the parties, convenience of the witness, and the interest of justice – a
district court may consider, at least, these factors:
(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 n.1 (11th Cir. 2005); see also Wright &
Miller, Federal Practice and Procedure, Vol. 15, § 3847 (4th ed. 2014) (“The three
statutory factors . . . are broad generalities that take on a variety of meanings in the
context of specific cases. . . . [E]ach case must turn on its particular facts, and the
trial court must consider and balance all the relevant factors to determine whether the
litigation would proceed more conveniently and whether the interests of justice
would be better served by transfer to a different forum.” (footnote omitted)).
1. Location of the Non-party Witnesses
Laing names two non-party witnesses in Houston and six non-party
witnesses – Kayworth Mann, Alfred Scott, an engineer for Pennpro, Bruce Laurion,
Zelco Kirincich, and Kevin Carroll – “who all reside in or around Tampa, Florida.”
(Doc. 68 at 6) The defendant states, “Plaintiff has already deposed two Houstonbased BP witnesses and noticed the deposition of a third . . . . Plaintiff has also
indicated that he may seek the deposition of at least five other BP employees as well
as a former BP subcontractor, who are all located in the Houston area.” (Doc. 69
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at 3) “Thus,” according to the defendant, “at least nine potential witnesses are
located in the [Southern District of Texas].” (Doc. 69 at 3) Also, BP explains that,
contrary to Laing’s assertion, two of Laing’s witnesses – Kirincich and Carroll – no
longer reside in Florida. Kirincich has moved to New York, and Carroll has moved
to Virginia. (Doc. 69-1 at 27, 30) The majority of likely non-party witnesses is in
Houston. This factor favors transfer.
2. Location of Relevant Documents and Relative Access to Proof
As Laing concedes, the predominant bulk of the documents pertaining to this
action resides in Houston. Although electronics mitigates the inconvenience of
discovery, conducting from Houston discovery of documents (and the documents’
custodians) located mostly in Houston is more convenient than conducting from
Florida discovery of documents located mostly in Houston. On balance, this factor
favors transfer.
3. Location of the Parties
Each party is located in that party’s preferred venue. This factor is neutral.
4. Location of Operative Facts
Laing argues that the operative facts occurred equally in the Middle District of
Florida and the Southern District of Texas and that therefore this factor is neutral.
However, BP correctly argues that the disputed facts occurred mostly in the Southern
District of Texas. Although the communications between Laing and BP occurred
equally in Florida and Texas, BP’s alleged copying of Laing’s idea – perhaps the
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most important issue in this action – occurred, if at all, in Houston. This factor
favors transfer.
5. Ability to Compel Attendance of Unwilling Witnesses
Laing argues that more witnesses are “outside the reach” of the Southern
District of Texas than the Middle District of Florida. However, Laing bases his
argument on the unsupported assertion that a district court presiding over an action
in which BP is a party may subpoena any witness employed by BP. However, to
subpoena the employee, Rule 45(c)(1)(B) requires BP’s “officer” to “regularly
transact[] business in person” in Florida. Laing’s motion fails to demonstrate that the
relevant BP employees regularly transact business in Florida and in person.
Accordingly, for reasons similar to the first factor, this factor favors transfer.
6. Relative Means of the Parties
BP, an international corporation, has the means – especially compared to
Laing, a natural person – to litigate easily from afar. However, Laing’s letter to BP
demands BP pay – among other amounts – more than $146 million for each day (i.e.,
more than $6 million for each hour) that BP used his invention. (Doc. 43 at 19) In
other words, Laing asserts claims for damages measurable in the billions of dollars.1
Pursuit of a claim measurable in billions of dollars (assuming Laing’s faith in the

1

Laing’s demand letter states, “[P]resentment is hereby made by demand for
$146,186,315.00 per day (U.S. currency), calculated from the inception of the oil spill and continuing
so long as Mr. Laing’s invention is used now and into the future.” (Doc. 43 at 19) Accordingly, by
the end of the eight-six-day leak, BP owed Laing approximately $12.6 billion, which excludes the
damages accrue after the spill and “so long as Mr. Laing’s invention is used now and into the
future.”

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plausibility of the claims) is a matter sufficient to reduce to near insignificance the
monetary difference between litigation in Florida and litigation in Texas. If Laing
has even a small chance of collecting his demand for even one day, he can afford to
litigate in Houston. This factor is either neutral or somewhat favors transfer.
7. A Forum’s Familiarity with the Governing Law
Laing alleges claims under only Texas law. The defendant interposes
defenses, including the applicable limitations, under Texas law. The correct
resolution of Laing’s claims requires careful and correct analysis of Texas law. A
district judge in Texas indisputably has the advantage in an action based on Texas
law. This factor distinctively favors transfer.
8. The Plaintiff’s Choice of Forum
“[W]here 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.” Windmere Corp. v. Remington Prods., Inc., 617 F. Supp. 8, 10 (S.D.
Fla. 1985). As discussed above, the operative facts primarily occurred in the
Southern District of Texas. Accordingly, this factor slightly favors retention.
9. Trial Efficiency and the Interests of Justice
Each party argues that trial efficiency favors that party’s preferred venue
because the preferred court is more prepared to analyze the governing facts. Laing
argues that “[t]his Court is familiar with the allegations and pleadings of th[is] case.”
(Doc. 68) Of course, “this court” has only the preliminary and incomplete
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knowledge of the dispute that appears in the pleadings and initial motions, and “this
court” enjoys no knowledge of the applicable Texas law that will govern. However,
as BP asserts, a court in the Southern District of Texas – a venue in which oil and gas
litigation is common – is especially prepared to resolve a dispute that depends upon
the proper understanding of drilling technology and the customs of the industry.
Accordingly, this factor favors transfer.

CONCLUSION
“The plaintiff’s choice of forum should not be disturbed unless it is clearly
outweighed by other considerations.” Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253,
260 (11th Cir. 1996). Laing’s choice of forum is “clearly outweighed.” Most of the
factors in this action favor transfer, and those that favor retention are insignificant.
Accordingly, this action is TRANSFERRED to the Houston Division of the
Southern District of Texas.
ORDERED in Tampa, Florida, on August 14, 2014.

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