Kolodziej v. Mason et al
Filing
20
ORDER AND OPINION DENYING dft's 11 Motion to Dismiss ; GRANTING dft's 11 Motion to Transfer Case and DENYING pla's 17 Motion for Leave to File Surreply. The Clerk is DIRECTED to transfer this action to the U.S.D.C for the Middle District of Florida, Orlando Division. Signed by Judge Julie E. Carnes on 5/20/11. (jlm)
FILII IN CH.¥.1MS
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
U.S.D.C. A. . .
MAY 202011
DUSTIN S. KOLODZIEJ,
/
Plaintiff,
CIVIL ACTION NO.
v.
1:lO-CV-2012-JEC
JAMES CHENEY MASON and J.
CHENEY ~lASON, P.A.,
Defendants.
ORDER & OPINION
This case is presently before the Court on defendants' t-lotion to
Dismiss or Transfer Venue ill] and plaintiff's Motion for Leave to
File a Surreply in Opposition to Defendants' Motion [17].
The Court
has reviewed the record and the arguments of the parties and, for the
reasons set out below, concludes that defendants' Motion to Dismiss
or Transfer Venue [11] should be GRANTED in part and DENIED in part
and plaintiff's Motion for Leave to File a Sur reply [17]
should be
DENIED.
BACKGROUND
This
contract
case
arises
between
Defendant Mason
in Florida.
from
plaintiff
the
and
breach
of
defendant
an
alleged
James
unilateral
Cheney
Mason.
a criminal defense attorney who works and resides
(Compl.
[:]
at 'lI'lI 2-8.)
school graduate who resides in Texas.
Plaintiff is a recent law
(Id. at "
1, 17.)
Defendant
J. Cheney Mason, P.A. is defendant: Mason's professional organizacion
and is a Florida corporation wit:h its principal place of business in
Orlando, Florida.
(Id.
at 'lI'lI 3, 7.)
The underlying facts of the case originated with defendant Mason
representing Nelson Serrano ("Serrano") in a capical murder trial in
Florida.
(Id. at 'lI 9.)
Serrano's defense was that: he
co~ld
not have
been the killer because he was in Atlanta on the day of the crime, a
fact
evidenced by his appearance in a
s~rveillance
video at
Atlanta La Quinta hotel a few hours after the homicide.
10.)
(Id.
the
at 'lI
According to Serrano, the timeline would have required him to
t:ravel from the Atlanta airport to the La Quinta hotel in 28 minutes,
which he claims was impossible.
(Compl.
[1]
at 'lI 10.)
The jury
rejected Serrano's defense and sentenced him to death in 2007.
(Id.
at: 'lI 11.)
The Serrano trial generated significant publicity, including a
nat:ionally aired segment
December 2006.
part:
of
the
(Id.
on the television program "Dateline" in
at 'lI 12.)
Defendant Mason was interviewed as
"Dateline" broadcast.
Dc;rinq
the
interview,
Mason
reaffirmed his position that Serrano could not have committed the
murder because
it
would have been impossible to travel
Atlanta airport to the La Quinta hotel within 28 minc;tes.
13. )
He subsequem;ly made t:he
anybody to show me,
(Id.
fo::'lowinq statement:
from t:he
(Id. at 'lI
"I challenge
I'll pay them a million dollars if they can do
at 'lI 14.)
2
Plaintiff, then a law student at South Texas College of Law, had
been
fo~lowing
the Serrano case.
(Compl.
[lJ at
~
17.)
He observed
the remarks that Mason made on "Dateline H and undertook to meet his
million
dollar
challenge.
at
(Id.
~
plaintiff retraced Serrano's alleged route,
Orlando,
driving to
the
December
2007,
flying from Atlanta to
scene of the crine,
then flying back to
Plaintiff was able to go from the
(Id.at~18.)
Atlanta.
In
18.)
airport to the La Quinta hotel within 28 ninutes.
At~anta
(Id. )
Upon returning frorr, his trip, plaintiff sent a recorded video of
his
journey to Mason,
million dollars.
(Id.
along with a
at
~
19.)
demand
letter
requesting one
When Mason declined to sat
demand, plaintiff filed this lawsuit.
(Compi.
e:e:
Cl] at
19-20.)
suit was first filed in the Southern District of Texas.
Oct.
22,
2009,
attached
to
Defs.'
Mot.
to
Dismiss
fy the
The
(Order of
[11].)
That
action was dismissed under Federal Rule 12 (b) (2) for lack of personal
jurisdiction.
(Id. )
Plaintiff subsequently
filed
suit
in this
Court.
In his complaint, plaintiff asserts a claim against defendants
for breach of contract.
(Compl. :1] at
~~
21-23.)
In support of his
claim, plaintiff alleges that defenda::1t J:.Jason made an offer to enter
into
a
unilateral
challenge,
(Id.
at
~
contract
when
he
issued
the
million
dollar
and that plaintiff accepted the contract by performing.
22.)
According to plaintiff, Mason's failure to satisfy
the demand constitutes a breach of the contract, entitling plaintiff
3
to damages.
(Id. at 'll 23.)
Defendants have
filed
Federal Rule 12(b) (2)
Rule
12 (b) (3)
for
Transfer [11].)
a motion to dismiss
the action
under
for lack of personal jurisdiction and under
improper
venue.
(Defs.'
Mot.
to
Dismiss
or
In the alternative, defendants move to transfer the
case to t:he Middle District of Florida under 28 U.S.C.
1404 (a).
§
Plaintiff has filed a related notion for leave to file a sur
(Id.)
reply.
(PI.'s Mot. to File Surreply [17].J
All of those motions are
presently before the Court.
DISCUSSION
I.
Pla~nt~ff's Mot~on
Plaintiff
requests
motion in order
to
(1)
For Leave To
F~le
leave
to
file
avoid
running
a
A Surreply
surreply
afoul
to
0= hi s
defendants'
duty to cite
adverse authority and (2) address arguments supposedly raised for the
(PI. ' s Mot. to File Surreply [17].)
first time in defendants' reply.
Surreplies are not generally allowed in this district.
v. NE Georgia Med. Ctr., Inc.,
See Garrison
66 F. Supp. 2d 1336, 1340
(N. D.
Ga.
1999) (O'Kelley, J.) ("to allow such surreplies as a regular practice
would put the court in the position of refereeing an endless volley
0=
bri.efs").
deviate
from
Nei.ther
the
is
there
general
rule
any
particularly
here.
Contrary
good
to
reason
to
plaintiff's
argument, he is not in danger of violating any ethical obligations
because
the
relevant
adverse
authority
Court's attention by de=endants.
has
been brought
to
the
See Georgia Rules of Professional
4
Conduct
3.3(a) (3).
§
;'>1oreover, defendants' reply does not raise any
issues that are outside the scope of plaintiff's response.
The Court previously granted plaintiff permission to file ten
additional pages to its response to defendants' motion to dismiss.
(Order
[15).)
This
allotment
should
adequately address the matters before the
have
been
sufficient
to
Plaintiff's motion
Co~rt.
for leave to file a sur-reply is therefore DENIED.
II.
Defendants' Personal Jurisdiction Motion
A.
Applicable Standard
On
a
plaintiff
motion
has
the
jurisdiction.
to
Stubbs
v.
under
Federal
of establishing
b~rden
447 F.3d 1357,
Casino,
dismiss
Wyndham
1360
Nassau
(11th Cir.
a
Rule
prima
Resort
2006).
12(b)(2),
facie
case
& Crystal
the
of
Palace
In evaluating the
plaintiff's case, the Court accepts as true the allegations in the
complaint.
through
Id.
However, if the defendant contests the allegations
affidavits,
"the burden shifts
back to
the plaintiff to
produce evidence supporting personal jurisdiction."
Id.
Where the
plaintiff's complaint and the defendant's affidavits conflict, the
Court
"must
plaintiff."
construe
all
reasonable
inferences
in
favor
of
the
Id.
The Court applies a two-part test to determine whether it has
personal
COff~c'n
1990).
j ur isdicti.on
Corp.
v.
over
a
nonresident
Network Prods.,
Inc.,
defendant.
Cable/Home
902 F.2d 829, 855 (11th Cir.
First, the Court must "examine the jurisdictional issue under
5
the state long-arm statute."
Second, the Court must deternine
Id.
whether the defendant has sufficient ftminimum contacts" to satisfy
the Due Process Clause of the Fourteenth Amendment.
Tnt'l
Shoe
Jurisdiction
satisfied.'
B.
is
326
Wa shin gton,
U.S.
310,
only permissible i:' both parts
Madara v. Hall,
316
(quoting
(1945»
the test
0:'
.
are
916 F.2d 1510, 1514 C:'lth Cir. 1990).
The Georgia Long Arm Statute
Georgia's
personal
v.
Co.
Td.
long-arm
jurisdiction
statute
over
a
permits
the
nonresident
Court
who
to
exercise
ft[tlransacts
any
business within th[e] state" as to a cause of action arising out 0:'
that transaction.
O.C.G.A. § 9-10-91(1).
The Eleventh Circuit has
interpreted this provision literally, as follows:
"Transact" means "to prosecute negotiations," to "carryon
business, II "to carry out," or "to carryon. I'F "Any" means
"to any extent U or "in any degree.
"Business" means
(I
"activity directed toward some end." or °a usually
commercial or mercantile activity customarily engaged in as
a means of livelihood." or "transactions, dealings, or
intercourse of any nature.
Diamond Crysta.I Brands,
Tnc.
v.
Food Movers Int'l.
Inc.,
593 F.3d
1249, 1264-65 (11th Cir. 2010) (internal citations omitted).
At
the least,
the above
language "expressly depends on the
1
Until recently, courts in this district treated the first and
second prongs as coextensive.
See Diamond Crystal Brands, Inc. v.
Food Movers Tnt'l, Inc., 593 F.3d 1249, 1254 (11th Cir. 2010).
However, the Eleventh Circuit recently noted a shift in Georgia law
that requires a separate inquiry as to each prong.
Td. at 1263
("courts must apply the specific limitations and requirements of
O.C.G.A. § 9-10-91 literally and must engage in a statutory
examination that is independent of
the constitutional
analysislf) .
6
actual transaction of [sone act of] business
in
the
state.-
Id.
Consulting Serv.,
(2005) ).
at
LLC v.
1260
(applying
First Nat'l
. by the defendant
Innovative
Bank of Ames,
Clinical
279 Ga.
&
672
However, a defendant need not physically enter the state to
"transact any business u
here.
though
the
occurring while
Id.
at 1264.
defendant
is
state] of Georgia- are relevant.
Id.
"[I]ntangible acts,
physically outside
[the
For example, a defendant may
subject itself to jurisdiction under the Georgia long-arm statute
through mailings and telephone calls made from outside but directed
Id.
to the state.
Plaintiff contends that defendant Mason transacted business in
Georgia when he entered into a contract that, by its express terms,
could only be accepted and performed in Georgia.
[13] at 14-15.)
physical
act
It is undisputed that Mason did not undertake any
in Georgia
million dollars
to
Airport
LaQuinta
However,
Mason's
to
the
(P 1 . 's Resp. Br.
when
he purportedly offered to pay one
the person who could travel from the Atlanta
hotel
in
ss
than
28
minutes.
(Id. )
the Court agrees with plaintiff that the transmission of
challenge
into
contract in Georgia,
Georgia,
as
well
as
the
formation
of
a
are sufficient to show that Mason transacted
some business within the state.
As discussed, a defendant may transact business iCl Georgia on
the basis of "intangible acts" such as telephone, postal, or internet
communications made outside of the state.
7
Diamond Crystal Brands,
593 F.3d at 1264.
Inc.,
Mason's televised challenge was expressly
conditioned on performance in Georgia.
As such, Mason's conduct was
similar to that of other defendants found subject to
jurisdict~on
based
by
on
an
offer
to
enter
a
contract
transmittal of an offer through the mail.
orders
were
routed
through
a
in
Georgia
phone
or
Id.at1265 (that purchase
California
intermediary
does
not
disqualify them from consideration under the "transacts any business"
equation) and ATCO Sign
Ga.
App.
528,
statute
may
534
be
& Lighting Co.,
LLC v.
(2009) (jur:'sdiction
based
on
"business
Stamm Mfg., Inc.,
under
Georg:'a's
conducted
298
long-arm
through
postal,
telephonic, and !nternet contacts").
In
addition,
and
assuming
plaintiff's
allegations
are
true,
Mason was a party to a contract that was accepted and completed in
Georgia.
Under the theory of a unilateral contract, t1ason incurred
an obligation to
contract.
pay upon the acceptance
See Consolo
Freightways Corp.
v.
and performance of the
Wi~l1iams,
139 Ga. App.
302, 306 (1976) (upholding a jury charge instructing that "if and when
the
plaintiff
accepted
the
offer
by
performance
services, there would be a binding contract").
of
the
alleged
I'lhile Mason may not
have physically appeared in Georgia, his obligation to pay, and thus
a transaction, cane to fruition in Georgia.
Id.
In support of their motion, defendants argue that plaintiff did
not complete the contract in Georgia, but in Florida.
Br.
[16]
at 7-9.)
'l'he Court is not persuaded.
8
(Defs.' Reply
A district court,
s!tting in diversity, applies the forum state's choice of law
v. Federated Mut. Ins. Co., 135 F.3d 750,
Boardman Petroleum, Inc.
752
(11th Cir. 1998).
loci
contractus,
contract is made.
Georgia follows the traditional rule of lex
which
Id.
r~les.
applies
the
law
of
the
state
where
the
Under Georgia law, a contract is made where
"the last act essential to the completion of the contract" takes
place.
Gen.
Tel. Co. of Se. v.
Trimm,
252 Ga.
95,
95
(1984).
The
"last act" essential to completion of this contract took place in
Atlanta,
when plaintiff traveled from the Atlanta a:'-rport to the
LaQuinta hotel.
In entering into a contract that was executed and required to be
performed in Georgia, Mason "transacted business" in the state.
See
O.C.G.A. § 9-10-91 (1) and Diamond Crystal Brands, Inc., 593 F.3d at
1264-65.
Plaintiff's breach of contract claim arises direct!y from
that transaction.
Georgia long-arm
C.
Accordingly, jurisdiction is authorized under the
stat~te.
Federal Due Process
In addition to complying with the long-arm statute, plaintiff
m~st
demonstrate that jurisdiction in this forum co;cports with due
process.
Due process is satisfied "if the non-resident defendant has
established 'certain minimum contacts with the forum such that the
maintenance of the suit does not offend traditional notions of fair
play and
S.IL,
558
s~bstantial
F.3d
:210,
justice.'" Oldfield v.
1220
(llth
9
Cir.
Pueblo de Bahia Lora,
2009) (quoting
ffelicoptero3
Nacionales de Colombia,
S.A.
v.
466 U. S.
Hall,
Once a plaintiff shows that the defendant has
~he
~he
408,
414
(1984).
requisite contacts,
burden shifts to the defendant to make a "'compelling case' that
the exercise of
jurisdiction would violate
substantial justice. D
1267.
Diamond Crystal
fair play and
593 F. 3d at
Brands tIne.,
defendant's contacts with the forum may give rise to
A
either "gene raID or "specific D personal jurisdiction.
F.3d at 1221.
Oldfield, 558
Specific jurisdiction is the only type of jurisdiction
at issue in this case.
In cases involving specific jurisdiction,
there is a three-part test to determine if a defendant's contacts
with the forum comport with due process:
(1)
related to the plaintiff's cause of action,
the contacts must be
(2)
they must involve
SOIr.e act by which the defendant purposefully availed itself of the
privilege of conducting activities within the forum,
must be of a nature that
~he
and
(3)
they
defendant should reasonably anticipate
being haled into court in the forum.
Sloss Indus. Corp. v. Burisol,
488 F.3d 922, 925 (11th Cir. 2007).
1.
Relatedness
Plaintiff's
claim against defendants
Mason's contacts with Georgia.
is directly related to
Specifically, the claim arises out of
Mason's offer and alleged breach of a unilateral contract that was
execu~ed
(Comol.
and
[1]
sufficient
could only be
at
'il.'!!
14-20.)
relationship
accepted by
Under the
between
the
10
performance
facts
al2.eged,
asserted
claim
in Georgia.
there
and
is a
Mason's
activities
in
558
Oldfield,
Georgia
F.3d
to
at
support
1222
personal
(focusing
on
jurisdiction.
the
direct
See
causal
relationship among the defendant, the forum, and the litigation) and
Sloss, 488 F.3d at 925
(the relatedness element is satisfied where a
party's acts within the forum give rise to the asser-ted cause of
action) .
2.
Purposeful Availment
Defendants argue that Mason did not purposefully avail himself
of the benefit of conducting business in Georgia because plaintiff's
actions in the state were under-taken without Mason's knowledge or
(Defs.' Br.
consent.
[11] at 15.)
This argument ignores the fact
that 1>1ason is the one who initially issued the challenge that brought
about plaintiff's actions in Georgia.
Plaintiff alleges that Mason
made an offer on a unilateral contract that could only be performed
in Georgia.
(Compl.
[lJ at 'it'it 14-18.)
Assuming that a:legation is
true, Mason, by requiring performance in Georgia, can be charged with
contemplating a relationship with and reliance on the laws of this
state.
See Sloss,
488
F. 3d at
933
(finding purposeful availment
where the defendant was "more than a mere passi"ve purchaser") .
Defendants
point
to
PVC
Constr., N.V., 598 F.3d 802
M/V Charm,
contract
19 F.3d 624
requiring
Windoors,
Inc.
v.
Babbitbay
Beach
(11th Cir. 2010) and Francosteel Corp. v.
(11th Cir. 1994) as examples of cases where a
an
act
of
performance
insufficient to establish mi:limum contacts.
11
in
the
forum
was
However, both cases are
distinguishable.
In PVC Windoors, the contract was to be performed
in another country, not the forum state.
F.3d at 804-805.
PVC Windoors,
Inc.,
598
Similarly, the contract in Francosteel only called
for delivery of certain cargo in the forum state, with none of the
events giving rise to the cause of action actually occurring in the
Francosteel, 19 F.3d at 628.
forum.
Unlike the contracts at issue in PVC Windoors and Francostee1,
the contract here was not only performed in Georgia, but could only
have been performed in Georgia pursuant to
such
an
offer,
Mason
impliedly,
but
~ason's
offer.
intentionally,
In issuing
invoked
the
privilege of conducting activities in Georgia and the protection of
Georgia contract law.
therefore met.
3.
Finally,
The "purposeful availment" requirement is
See Sloss, 488 F.3d at 933.
~easonable
Anticipation
the
finds
Court
that
defendants
could
reasonably
anticipate being haled into a Georgia court as a result of Mason's
conduct.
As
alleged
in
the
complaint,
Mason,
in
a
nationally
televised "Dateline" broadcast, issued a million dollar offer on a
contract
(Compl.
that
required
[1] ac 11 14-18.)
acceptance
and
performance
in
Georgia.
Having issued such an offer, Mason should
have expecced that the contract might be executed and accepted by a
viewer,
Georgia.
through
Under
performance
the
that
could
circumstances,
anticipace being haled into court here.
12
only
be
defendants
Id.
accomplished
could
in
reasonably
4.
fairness Factors
Having concluded that
Georgia,
the
Court x.ust
defendants
have minimu:n contacts with
consider the contacts
in lig:'1t
of other
factors to determine whether the assertion of jurisdiction comports
with
"traditional
justice."
conception[s]
of
fair
play
and
substantial
Burger King Corp. v. Rudzewicz, 471 U.S. 462, 464 (1985).
These factors include:
[the] burden on the defendant, the forum State's interest
in adjudicating the dispute, the plaintiff's interest in
obtaining convenient and effective relief, the interstate
judicial system's interest in obtaining the most efficient
resolution of controversies, and the shared interest of the
several States in furthering fundamental substantive social
policies.
Id.
(internal quotations omitted).
Applying the above factors, defendants have not met their burden
of showing that
would be fundamentally unfair to subject them to
jurisdiction in Georgia.
Litigating in a foreign forum is always
somewhat onerous on a defendant,
but "[rn] odern transportation and
Olivier v.
communication" have substantially reduced the burden.
Merritt Dredging Co., Inc., 979 F.2d 827, 834 (11th Cir. 1992).
As
demonstrated by plaintiff's response to the million dollar challenge,
one may travel from Florida to Atlanta with relative ease.
U:e
contract
Georgia
law,
at
issue was
which
at
formed
least
to
in Georgia
some extent
interest in adj udicating the dispute.
and
is
Moreover,
governed by
irr.plicates
Georgia's
Psychological Res.
Support
Sys., Inc. v. Ger.leman, 624 F. Supp. 483, 487 (N. D. Ga. 1985) (Moye,
13
J. ) .
I!'inally,
there is no reason to expect that a Georgia court
would afford any less effective relief than a Florida court.
In short, defendants have not presented a "compelling case" that
jurisdiction in Georgia would "violate traditional notions of fair
play and substantial justice."
F.3d at
1267.
All
of
the
Diamond Crystal Brands,
relevant
fairness
Inc.,
593
factors
are either
neutral, or weigh only slightly in favor of defendants.
'.::he Court
thus concludes that the requisites of due process are met, and DENIES
defendants' motion to dismiss for lack of personal jurisdiction.
III. Motion to Dismiss for Improper Venue
In addition to Rule 12 (b) (2),
improper
venue
under
Rule
defendants
12 (b) (3) .
Venue
seek dismissal
for
this
for
action
is
governed by the general venue statute, which provides that:
A civil action wherein jurisdiction is founded only on
diversity of citizenship may, except as otherwise provided
by law, be brought only in
a judicial district in
which a substantial part of the events or omissions giving
rise to the claim occurred.
28
u.S.C.
1391(a) (2).
§
Applying
this
provision,
the
Eleventh
Circuit has recognized that there may be cases in which venue will be
proper in more than one district.
Jenkins Brick Co.
v. Bremer, 321
F.3d 1366, 1371 (11th Cir. 2003).
The parties dispute whether "a substantial part of the events"
giving rise
to plaintiff's claim occurred in Georgia.
Defendants
argue that Florida, not Georgia, is the state where a "substantial
part
of
the
events"
occurred.
14
(Defs. '
Br.
[ 11]
at
19. )
Specifically, defendants argue that Florida is the location where the
initial offer and the alleged breach of contract took place.
(Id. )
Defendants cite evidence showing that Mason was in Florida when he
extended the challenge,
and that he refused to pay plaintiff from
correspondence originating from Florida.
While many of the
action occurred
including
the
in
Florida,
formation
occurred in Georgia.
events
a
and
(Id. )
necessary to plaintiff's
"substantial" part
performance
As discussed below,
of
the
of
cause of
the events,
contract,
also
the Northern District of
Georgia is not the only district in which venue is proper.
However,
this district meets the requirements of the federal venue statute, 28
U.S.C. § 1391(a) (2).
Accordingly, defendants' motion to dismiss for
improper venue is DENIED.
IV.
Motion to Transfer
As an alternative to dismissal,
defendants ask the Court
to
transfer this action to the Middle District of Florida pursuant to 28
U.S.C.
§
1404(a).
That
statute
provides
that:
" [C 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."
28 U.S.C.
§
1404(a).
The moving party bears the burden of establishing the propriety of a
transfer under § 1404 (a).
In re Ricoh Corp., 870 F".2d 570, 573 (11th
Cir. 1989).
Under the express language of the statute, a transfer of venue
15
is only available if the proposed transferee foru:r. is a district
where the case "might have been brought."
Middle District of Florida
u.s.c.
28
1404(a).
§
a district where the case "might have
been brought" under the general venue statute, 28 U.S.C.
§
That
where
statute
permits
defendant resides."
The
venue
in
28 U.S.C.
"a
judicial
district
1391(a).
any
1391(a).
As noted above, defendant
J. Cheney Mason, P.A. resides in Orlando,
Florida, which is located
§
in the Middle District of Florida.
(Compl.
[1] at 'lI'l1 3, 7.)
Having properly identified an alternate forum,
criteria
deternine
whether
a
transfer
is
three general
appropriate:
(1)
the
convenience of the parties, (2) the convenience of the witnesses, and
(3) the interests of justice.
England v. ITT Thompson Indus .• Inc.,
856 F.2d 1518, 1520 (11th Cir. 1988).
may be expanded to
include
the
These general considerations
following:
(1)
the
location of
relevant documents and the relative ease of access to sources of
proof,
process
(2)
the locus of operative facts,
(3)
the availability of
to compel the attendance of unwilling witnesses,
relative means of the parties,
(5)
(4)
the
a forum's familiarity with the
governing law, and (6) trial efficiency and the interests of justice,
based on the
Corp.,
totality of the circumstances.
430 F.3d 1132,
1135
(11th Cir.
2005).
Manuel v.
Convergys
In this case,
the
relevant factors favor transfer.
A.
The Convenience Of The Witnesses
The convenience of the witnesses is one of the most important
16
factors in evaluating a motion to transfer venue, with the main focus
on "key witnesses."
Ramsey v.
1352,1356 (N.D. Ga.
Fox News Network F LLC,
2004) (Thrash,
323 E'. Supp. 2d
"Key witnesses" are those
J.).
who have information regarding the liability of defendant.
1357,
Further,
Id.
at
a distinction is made between party witnesses and
nonparty witnesses,
Id. at 1356.
Party w.i. tnesses are presumed to be
willing to testify in a different forum, while nonparty witness are
not.
The convenience of nonparty witnesses holds more weight
Id.
than that of party witnesses in evaluating the convenience of the
forum.
Id.
Defendants offer three nonparty witnesses who are not residents
of Georgia.
The first two witnesses were present at the interview in
question and are residents of Florida.
28-29. )
(Id.
at
interview
(~ason
[11] at
~~
2-3,
The producer for the interview is a resident of New York.
~
Apparently,
29.)
will
be
needed
to
witnesses
give
a
who
[16]
at 12.)
were
description
interview and the overall context of Mason's
Reply Br.
Decl.
present
of
at
the
the unedited
statements.
(Defs.'
These witnesses are directly relevant to
defendants' liability, as their testimony would be used to deterrLine
if Mason made a viable offer.
In response, plaintiff offers unnamed Del ta Air Lines Or Atlanta
airport employees as nonparty witnesses needed to verify the exact
time
the
airplane
touched
down.
(Pl.'s
Resp.
[13'
at
26-27.)
However, live testimony need not be offered to establish this fact,
17
a matter of off:'cial record that is likely subject to stipulation o:c
judicial notice.
Mo:ceover, plaintiff alleges in his complaint that
his journey was videotaped, p:coviding another source of evidence as
to the timing of plaintiff's jou:cney.
( Comp 1.
[ IJ at 'l1 19.)
Plaintiff does not identify any other nonparty witnesses who
:ceside in Georgia.
(P1.'s Resp.
[13J.)
The lack of witnesses in
Georgia, set against the presence of key nonparty witnesses residing
in
Florida,
weighs
District of Florida.
heavily
in
favor
of
transfer
to
the
Middle
See England, 856 F.2d at 1519 and Ramsey, 323
F. Supp. 2d at :356.
B.
The Convenience Of The Parties
When
evaluating
the
relative
convenience
of
the
parties,
"[tlransfer should be denied if it would merely shift inconvenience
from one party to another.
v. City of Tulsa,
J. ) .
However,
Georgia.
Texas.
U
Paul, Hastings, Janofsky
&
Walker, LLP
245 F. Sc;pp. 2d 1248, 1260 (N.D. Ga. 2002) (Martin,
in this case none of the parties lives or works in
Both defendants reside in Florida, and plaintiff resides in
Beca'..Ise defendants are in Florida, a transfer to that venue
would certainly be more convenient for them.
Further, plaintiff will
have to travel to litigate this matter regardless of whether the
litigation is in Florida or Georgia,
and as plaintiff has aver:ced,
the difference in travel time by air is less than thirty min'..Ites.
(Kolodz
Decl.
[13] at 'l1 9.)
Because plaintiff has chosen a forum
that is inconvenient for all the parties, this factor weighs heavily
18
in favor of defendants.
C.
The Weight Accorded plaintiff's Choice Of Forum
In evaluating a motior: to trar:sfer, "[t] he plaintiff's statutory
privilege of choosing his forum is a factor, held in varying degrees
of esteem,
to be weighed against other factors in determining the
most convenient forum."
Garner v. Wolfinbarger,
433 F.2d 117, 119
(5th Cir. 1970).2 Although not yet addressed by the Eleventh Circuit,
several courts in this district have fou:-1d that when the forum is not
the home district for any of the parties involved ir: the action,
"plaintiff's original choice of forum is entitled to less weight."
Haworth, Inc. v. Herman Miller, Inc., 821 F. Supp. 1476, 1479 (N.D.
Ga. 1992) (Forrester, J.).
(holding
same).
Thus,
See also Ramsey, 323 F. Supp. 2d at 1352
plaintiff's
choice
of
forum
is
arguably
entitled to less weight in this case than if plaintiff had filed suit
in the state where he resides.
D.
Trial Efficiency And The Interests Of Justice
8efer:dants claim that the "median time from filing to trial for
civil cases in the Northern 8istrict of Georgia was 26.6 months in
2009, as com,pared to 22.6 months in the Middle 8istrict of E'lorida."
(Defs.' Br.
negligible.
[11]
at 24.)
(Pl.'s Resp.
Plaintiff argues that this difference is
[13] at 32.)
However, the Court suspects
2
1:-1 Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
:981) (en bane), the Eleventh Circuit adopted as b~nding precedent
all the decisions of the former Fifth Circuit handed down prior to
the close of business on September 30, 1981.
19
that the disparity in resolution time is now greater than it was in
The Administrative Office of the U.S. Courts has declared a
2009.
judicial emergency in the Northern Distr
of Georgia because three
active judicial positions have been vacant for two years and court
filings average fro:r. 500 to 700 per judge.
the
U.S.
Courts,
Judges
and
Administrative Office of
Judgeships:
Judicial
www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies
2011).3
The Court has little doubt that th
Emergencies,
(Feb.
11,
matter will be brought
to a more speedy resolution in the Middle District of Florida.
This
factor thus weighs in favor of transfer.
E.
The Remaining Factors And Conclusion
The remaining factors are neutral.
Relevant documents and other
sources of proof, including the -Dateline" interview and plaintiff's
docurr,entary
evidence
of
his
journey,
Florida, Texas and perhaps New York.
can
be
found
in
Georgia,
The locus of operative facts is
similarly spread evenly among three states.
The relative means of
the parties is not a significant factor, given that both parties will
have to travel to litigate the case in Georgia.
The
determinative
factors,
including the
convenience of
the
parties and particularly the witnesses, overwhelmingly weigh in favor
of t.ransfer.
As none of the parties or witnesses have any real
connection to the forum, transfer is particularly appropriate here.
Since issuance of the report, two vacancies have been filled,
but two mOre vacancies remain, with one vacancy having lasted almost
two and one-half years and the other for over one year.
20
While the minimum requiremer.ts of the Georgia lor.g-arm statute and
due process would
perm~t
the Court to hear
pla~ntiff's
claim,
the
interests of justice would be better served by resolutior. of this
matter
in
the
Middle
District
of
Florida,
where
defendants
and
several key witnesses reside and where Mason's challenge was issued.
Defendants' motion to trar.sfer is thus GRANTED.
CONCLUSION
For the foregoing reasons, plaintiff's Motion for Leave to File
Surreply
[17]
Trar.sfer [11]
is
DENIED,
and
defendants'
t4otion
is GRANTED i.n part and DENIED in part.
to
Dismiss
or
The Clerk :'..s
directed to transfer this action to the United States District Court
for the Middle District of Florida, Orlando Division.
SO ORDERED, this
~c/ day
of May, 2011.
Jif.ro:E E. CARNES
6HIEF UNITED STATES DISTRICT .IUDGE
21
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