Zell v. Suttle et al
Filing
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MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendants Michael Mindlin and Elizabeth Kurila's renewed motion to transfer is DENIED. ECF No. 28 . Signed by District Judge Audrey G. Fleissig on 4/5/18. (KXS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
EILEEN L. ZELL,
Plaintiff,
vs.
DAVID DALE SUTTLE, et al.,
Defendants.
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Case No. 4:16-CV-01293-AGF
MEMORANDUM AND ORDER
This matter is before the Court on the renewed motion (ECF No. 28) of
Defendants Michael Mindlin and Elizabeth Kurila 1 to transfer this case pursuant to 28
U.S.C. § 1404(a) to the United States District Court for the Southern District of Ohio,
Eastern Division. For the following reasons, the Court will deny the motion to transfer.
BACKGROUND
Plaintiff Eileen Zell initiated this action in the Eastern District of Missouri on
August 6, 2016. The action involves a $90,000 promissory note made to Plaintiff that
was signed in 2001. The signatories to the note were Mindlin, his wife Kurila, and
Mindlin’s business partner Suttle in their individual capacities, and Mindlin and Suttle on
behalf of their St. Louis-based architectural firm Suttle Mindlin, LLC. Plaintiff alleges
that the Defendants did not repay the loan by the original due date, and instead sought
1
Suttle was not a party to this action when the renewed motion was filed, having been
dismissed without prejudice for lack of timely service by Plaintiff. See ECF No. 9.
However, Plaintiff has since renamed Suttle as a Defendant in an amended complaint
filed with leave of the Court on April 3, 2018. See ECF No. 41.
extensions on the loan, making sporadic payments through 2010. On October 12, 2010,
Mindlin and Kurila, who were later joined by Suttle, filed a complaint for declaratory
relief in Ohio state court. Plaintiff asserted a counterclaim for breach of promissory note
and promissory estoppel. Relying on Ohio’s six-year statute of limitations for written
promises for the payment of money,2 the Ohio court granted summary judgment on
behalf of Mindlin, Kurila, and Suttle. This decision was affirmed on appeal. Plaintiff
subsequently filed a legal malpractice suit against her Ohio state court counsel in the
United States District Court for the Southern District of Ohio. See generally Zell v.
Klingelhafer, No. 13-CV-458, 2018 WL 334386, at *1 (S.D. Ohio Jan. 8, 2018).
Plaintiff then filed this action in the Eastern District of Missouri. Mindlin and
Kurila responded with a motion to dismiss on res judicata grounds, or in the alternative
for the case to be transferred to the Southern District of Ohio. The Court granted the
motion to dismiss and held that the motion to transfer was therefore moot. ECF No. 9.
The United States Court of Appeals for the Eighth Circuit reversed in part, holding that
Plaintiff’s claims for breach of promissory note, promissory estoppel, and breach of
contract were not barred by res judicata. Zell v. Suttle, 709 F. App’x 391 (8th Cir. 2017).
Mindlin and Kurila then filed this renewed motion to transfer pursuant to 28
U.S.C. § 1404(a). These Defendants reassert and renew their previously filed motion
(ECF No. 4), arguing that the convenience of the parties and witnesses and the interest of
justice require that the case be transferred to the Southern District of Ohio.
2
See Ohio Rev. Code § 1303.16. Comparatively, the Missouri statute of limitations
for such promises is 10 years. See Mo. Rev. Stat. § 516.110.
2
Mindlin and Kurila argue that the Southern District of Ohio will be more
convenient for witnesses because the only expected witnesses will be the parties, and
none of the parties resides in Missouri. Plaintiff resides in Florida, while Mindlin and
Kurila state that they reside in California. Second, Mindlin and Kurila argue that Ohio
would be more convenient for the parties because the attorneys for both parties are
located in Ohio. Finally, these Defendants argue that the case should be transferred to
Ohio to avoid piecemeal and duplicative litigation. They claim that the facts underlying
this case have been litigated in both state and federal courts in Ohio, and that the
enforceability of the promissory note has already been determined to be governed by the
application of Ohio law.
Plaintiff incorporates her previously filed memorandum in opposition to the
motion to transfer (ECF No. 6), and further responds to the renewed motion by arguing
that Missouri is at least as convenient as Ohio. Plaintiff first contends that the argument
concerning the ongoing litigation in the Ohio courts is moot because both the malpractice
case in Ohio federal court and the Ohio state court litigation have ended. Second, Plantiff
argues that it is the convenience of the witnesses, not counsel, that is at issue in a motion
to transfer. Regarding potential witnesses, Plaintiff asserts that she plans to call Suttle to
testify, and that Suttle lives in Missouri. Plaintiff also disputes the fact that Mindlin and
Kurila do not live in Missouri.3 Finally, Plaintiff argues that it would not be in the
interest of justice to transfer this case to Ohio because it would be the “death knell’” to
3
In support of this allegation, Plaintiff attaches a newspaper article from the St. Louis
Post-Dispatch dated November 12, 2013, which states that Mindlin was at that time
“splitting [his] time between STL and California.” See ECF No. 6-1.
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the case.” ECF No. 31-1 at 13. Plaintiff argues that the real reason these Defendants
want to transfer this case to Ohio is not for convenience of the parties, but rather because
Defendants seek to reassert their statute of limitations argument based on Ohio’s shorter
limitations period.
DICUSSION
Section 1404(a) 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.” 28 U.S.C. § 1404(a). A threshold
showing must be made that the action could have been filed in the proposed transferee
forum. See Caleshu v. Wangelin, 549 F.2d 93, 96 & n.4 (8th Cir. 1977).
Once it has been established that venue would have been proper in the transferee
forum, a court may then consider three broad categories of interests set forth in § 1404(a):
“(1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the
interests of justice.” Terra Int’l, Inc. v. Mississippi Chem. Corp., 119 F.3d 688, 691 (8th
Cir. 1997). Generally, “federal courts give considerable deference to a plaintiff’s choice
of forum and thus the party seeking a transfer. . . bears the burden of proving that a
transfer is warranted.” Id. at 695. Accordingly, unless the movants make a “clear
showing” that the balance of interest is strongly in favor of a transfer, the plaintiff’s
choice of forum should not be disturbed. See Ascension Health All. v. Ascension Ins.,
Inc., No. 4:15CV283 CDP, 2015 WL 5970487, at *1 (E.D. Mo. Oct. 13, 2015).
Although it is not clear to the Court that venue would have been proper in the
Southern District of Ohio, neither party disputes this issue. In any event, as discussed
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below, the balance of the § 1404(a) factors weighs against transfer. See e.g., Burkemper
v. Dedert Corp., No. 4:11CV1281 JCH, 2011 WL 5330645, at *1 (E.D. Mo. Nov. 7,
2011) (considering the relevant § 1404(a) factors when parties did not dispute that the
case could have been brought in the alternative forum).
Convenience of the Parties
While the plaintiff’s choice of forum is generally entitled great weight, when, as
here, the plaintiff chooses a forum other than the one in which she resides, it is entitled to
considerably less weight. See Ascension Health All., 2015 WL 5970487, at *2.
Therefore, Plaintiff’s choice of this forum weighs only slightly in favor of retaining the
case in this forum.
While Defendants argue that the location of counsel makes Ohio a more
convenient forum, Plaintiff is correct that the location of counsel has been found to be
irrelevant in determining the question of the transfer under §1404(a). See Krakowski v.
American Airlines, Inc., 927 F. Supp. 2d 769, 775 (E.D. Mo. 2013).
This Court therefore finds that this factor weighs slightly in favor of retaining the
case in the Eastern District of Missouri.
The Convenience of the Witnesses
“The convenience of witnesses is said to be a primary, if not the most important,
factor in passing on a motion to transfer under § 1404(a).” Houk v. Kimberly–Clark
Corp., 613 F. Supp. 923, 928 (W.D. Mo. 1985). The party seeking a transfer also has the
burden to specify which key witnesses will be called. Id. Mindlin and Kurila state that
only the parties are anticipated to testify, and seem to make much of the fact that none of
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the witnesses resides in Missouri. But neither does any witness reside in Ohio.
Moreover, as discussed above, Plaintiff plans to call Suttle, who lives in Missouri.
Although Suttle is now a party to the case, Mindlin and Kurila still have failed to name a
single witness who resides in Ohio. As such, this factor, too, weighs in favor of retaining
the case in the Eastern District of Missouri.
Interests of Justice
The Court is not persuaded by Mindlin and Kurila’s argument that transferring this
case to Ohio would avoid piecemeal and duplicative litigation. Plaintiff is correct that
there is no longer, if there ever was, any duplicative litigation pending in the Southern
District of Ohio.4 Moreover, this Court finds that the Eastern District of Missouri has at
least as much local interest in adjudicating this claim as does the Southern District of
Ohio, because a substantial portion of the events occurred here. See Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 260 (1981) (finding that there is a “local interest in having localized
controversies decided at home”). At the time the promissory note was signed, all of the
individual burrowers of the loan lived and worked full-time in St. Louis, Missouri. ECF
No. 31-1. The additional signatory, and the supposed beneficiary of the loan funds,
4
While Plaintiff argues that transferring this case to Ohio would be prejudicial because
the Ohio federal court would apply Ohio’s statute of limitations, it is doubtful that this
would be the case. The Supreme Court has held that in order to preserve the advantages
flowing from the state laws of the forum a plaintiff has initially selected, the choice-oflaw rules “should not change following a [§1404(a)] transfer initiated by a defendant.”
Van Dusen v. Barrack, 376 U.S. 612, 639 (1964). Moreover, any such concern would be
secondary to the issue of convenience. See e.g., Ferens v. John Deere Co., 494 U.S. 516,
528 (1990) (holding that the decision of whether to transfer a case under § 1404(a) should
turn on “considerations of convenience, rather than the possibility of prejudice resulting
from a change in the applicable law”).
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Suttle Mindlin LLC, was also a Missouri company. Id. Therefore, if any breach did
occur, the decision to breach was presumably made in Missouri.
Accordingly, this Court finds that this factor also weighs in favor of retaining the
case here.
CONCLUSION
On balance, this Court finds that the 1404(a) factors weigh decidedly against
transfer.
Accordingly,
IT IS HEREBY ORDERED that Defendants Michael Mindlin and Elizabeth
Kurila’s renewed motion to transfer is DENIED. ECF No. 28.
_______________________________
AUDREY G. FLEISSIG
UNITED STATES DISTRICT JUDGE
Dated this 5th day of April, 2018.
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