Pace Construction Co. v. McKinney Drilling Company

Filing 18

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Defendants Motion to Transfer (ECF No. 7 ) is DENIED. Signed by District Judge Jean C. Hamilton on 5/5/16. (KJS)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

PACE CONSTRUCTION CO.,
Plaintiff,
v.
MCKINNEY DRILLING COMPANY,
Defendant.

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Case No. 4:16-cv-00455-JCH

MEMORANDUM AND ORDER
This matter is before the Court on Defendant McKinney Drilling Company’s
(“McKinney”) Motion to Transfer. (ECF No. 7.) The Motion has been fully briefed and is ready
for disposition.
BACKGROUND
Plaintiff Pace Construction Company (“Pace”) and McKinney entered into a Subcontract
related to the performance of a project for the Arkansas Highway and Transportation Department
(“AHTD”). (ECF No. 1.1.) The Parties agreed to the inclusion of a forum selection clause,
which provides, “The parties consent and agree to the jurisdiction of the Circuit Court of St.
Louis County, Missouri as to all matters pertaining to this Subcontract.” Id. at 7. As relevant, in
connection with the Subcontract Pace procured a Payment Bond from Liberty Mutual Insurance
Company (“Liberty Mutual”). (ECF No. 7.1.)
On February 4, 2016, Pace filed the instant suit against McKinney, alleging that
McKinney had breached its obligations under the Subcontract and that Pace had suffered
damages as a result. (ECF No. 1.1 at 2-3.) On March 1, 2016, McKinney filed suit for breach of
the Payment Bond against Liberty Mutual (hereinafter, the “Payment Bond Action”). The
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Payment Bond Action is currently pending in the Western District of Arkansas. See McKinney
Drilling Co. v. Liberty Mutual Insur. Co., 5:16-cv-05078-PKH (W.D. Ark. Apr. 7, 2016). As
mentioned above, McKinney now moves to transfer this matter. (ECF No. 7.)
DISCUSSION
McKinney moves to transfer this matter to the Western District of Arkansas, pursuant to
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 or to any district or division to which all parties have
consented.” The Eighth Circuit has declined to provide an exhaustive list of factors to consider
in evaluating a request for a transfer, but has instructed district courts to weigh any case-specific
factors relevant to the convenience and fairness to determine whether transfer is warranted. See
In re Apple, Inc., 602 F.3d 909, 912 (8th Cir. 2010) (per curiam).
The factors relevant to convenience include (1) the convenience of the parties; (2) the
convenience of the witnesses, including the willingness of witnesses to appear, the ability to
subpoena witnesses, and the adequacy of deposition testimony; (3) access to records and
documents; (4) the location where the conduct complained of occurred; and (5) the applicability
of each forum state’s substantive law. See Terra Int’l v. Mississippi Chem. Corp., 119 F.3d 688,
696 (8th Cir. 1997). Factors relevant to fairness or the interest of justice include (1) judicial
economy, (2) the plaintiff’s choice of forum, (3) the comparative costs to the parties of litigating
in each forum, (4) each party’s ability to enforce a judgment, (5) obstacles to a fair trial, (6)
conflict of law issues, and (7) the advantages of having a local court determine questions of local
law. See Id. “In general, federal courts give considerable deference to a plaintiff’s choice of

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forum and thus the party seeking a transfer under section 1404(a) typically bears the burden of
proving that a transfer is warranted.” Id. at 695 (citation omitted).
McKinney contends that this matter should be transferred so that it may be consolidated
with the Payment Bond Action, which McKinney alleges involves the same facts and claims and
cannot be transferred outside of Arkansas. (ECF Nos. 7, 8.) McKinney further asserts that the
statutory factors generally considered under section 1404(a) favor transfer.

Specifically,

McKinney argues that almost all of its witnesses are located in Memphis, and that “all third party
witnesses are located in Arkansas—most significantly, representatives of…AHTD,” who cannot
be subpoenaed to testify in the Eastern District of Missouri. (ECF No. 8 at 6-7.) McKinney also
argues that its records are located in Memphis, and that “AHTD’s records are presumably
located in Arkansas.” Id. at 7. Finally, McKinney argues that transfer is appropriate because the
complained of conduct occurred in Arkansas, and because Arkansas law will apply. Id. at 7-8.
Pace counters that a transfer to the Western District of Arkansas would require rejection
of a valid forum selection clause, and notes that Liberty Mutual has moved to stay the Payment
Bond Action pending resolution of this matter. Pace also argues that the convenience of the
witnesses weighs against transfer because Pace’s witnesses are located in St. Louis and West
Plains, Missouri, and because, contrary to McKinney’s assertions, St. Louis is in fact more
convenient for witnesses located in Memphis. Pace further contends that all of its documents
and records are located in St. Louis, and that shifting the inconvenience from one party to the
other is not a permissible justification for change of venue. (ECF No. 9.)
As an initial matter, Defendants do not dispute the validity of the forum selection clause,
and the Court finds the clause permissive, rather than mandatory. Cf. Dunne v. Libbra, 330 F.3d
1062, 1063-64 (8th Cir. 2003) (finding permissive clause that stated: “[t]his agreement shall be

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governed by and construed and enforced in accordance with the laws of the State of Illinois, and
the parties consent to jurisdiction [in] the state courts of the State of Illinois”).
Upon consideration of the relevant statutory factors and the Parties’ arguments, the Court
concludes that McKinney has failed to meet its burden of proving that a transfer is warranted.
Although McKinney specifically identifies as non-party witnesses two AHTD employees who
are located in Arkansas, McKinney fails to indicate what the testimony of these employees will
entail. See Hall v. Holmes Grp., Inc., No. 4:05CV2052 HEA, 2006 WL 148742, at *3 (E.D. Mo.
Jan. 18, 2006) (merely supplying list of witnesses is insufficient without particularity; party
seeking transfer must specify clearly key witnesses to be called and indicate what their testimony
will entail); see also Discovery Pier Land Holdings, LLC v. Visioneering Envision.Design. Build,
Inc., No. 4:14-CV-2073 (CEJ), 2015 WL 1526005, at *4 (E.D. Mo. Apr. 2, 2015) (convenience
of witnesses analysis “hinges on the importance of their testimony”).
In view of the foregoing, and giving the convenience of the other witnesses and the forum
selection clause considerable weight, the Court concludes that the section 1404(a) factors weigh
against transfer and in favor of maintaining jurisdiction in this Court. See Hall, 2006 WL
148742, at *3 (“The Court may not disturb a plaintiff’s choice of forum unless a balance of
relative considerations tips strongly toward the defendant”; convenience of witnesses is primary,
if not most important, factor in considering motion under § 1404(a)); see also Perficient, Inc. v.
Priore, No. 4:16 CV 249 CDP, 2016 WL 866090, at * 4 (E.D. Mo. Mar. 7, 2016) (“permissive
forum selection clause is given less, though still significant, weight than a mandatory one”;
“even though permissive, [forum selection clause] is determinative in the analysis of…the
convenience of the parties…and weighs against transfer”); Discovery Pier, 2015 WL 1526005, at
*3 (forum selection clause is determinative of convenience of parties; “[t]he fact that the parties

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initially accepted the jurisdiction of a particular court must count”). Therefore, the Court will
deny Defendant’s Motion.
CONCLUSION
Accordingly,
IT IS HEREBY ORDERED that Defendant’s Motion to Transfer (ECF No. 7) is
DENIED.

Dated this 5th day of May, 2016.

/s/ Jean C. Hamilton
JEAN C. HAMILTON
UNITED STATES DISTRICT JUDGE

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