Nebraska Beef v. Advanced Food Company

Filing 34

ORDER 1. Nebraska Beefs motion to submit additional evidence, 19 , is granted. 2. AFCs unopposed motion for leave to allow additional evidentiary materials, Filing 27 , is granted. 3. The appeal of Nebraska Beef, 21 , is overruled and denied. 4 . The Clerk of Court is ordered to transfer this case to the United District Court for the Western District of Oklahoma and notify the Clerk of Court in Oklahoma that this case may or may not be related to the pending case of Advance Food Company, Inc. v. NebraskaBeef, Ltd., No. 08CV1139-M. Ordered by Chief Judge Joseph F. Bataillon. (PCV, )

IN THE UNITED STATES DISTRICT COURT F O R THE DISTRICT OF NEBRASKA N E B R A S K A BEEF, LTD., a Nebraska L im ite d Partnership, Plaintiff, v. A D V A N C E D FOOD COMPANY, Inc., an O k la h o m a Corporation, Defendant. ) ) ) ) ) ) ) ) ) ) ) )

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M E M O R A N D U M AND ORDER

B e fo re the court are 1) plaintiff's (hereinafter "Nebraska Beef") motion to permit a d d itio n a l evidence, Filing No. 19; 2) Nebraska Beef's appeal from the magistrate judge's o rd e r, Filing No. 21; and 3) defendant's (hereinafter "AFC") unopposed motion for leave to a llo w additional evidentiary materials, Filing No. 27. Background O n October 24, 2008, AFC filed a lawsuit against Nebraska Beef in the United States D is tric t Court for the W e s te rn District of Oklahoma. This lawsuit involves a contract dated J u n e 25, 2008, for the sale of beef that was recalled on August 14, 2008, and AFC sought o v e r $700,000 in damages. It also involves a Product W a rra n ty, General and Continuing G u a ra n te e , and Indemnification Agreement. AFC asserted ten claims for relief under this w a rra n ty agreement. On March 23, 2009, Nebraska Beef filed this action against AFC in the U n ite d States District Court for the District of Nebraska. This lawsuit allegedly involves s e v e n unpaid contracts for goods entered into by Nebraska Beef and AFC between August a n d September 2008, none of which, Nebraska Beef argues, were involved in the recall in t h e Oklahoma case. AFC contends that these transactions involve the Product W a r ra n t y

a n d the beef which is already the subject of the Oklahoma case. AFC moved to transfer the N e b ra s k a case to Oklahoma. Filing No. 7. E vid e n tia ry Motions W ith regard to Nebraska Beef's motion to file additional evidence, Filing No. 19, the c o u rt finds this motion should be granted. Nebraska Beef asks this court to permit the d e c la ra tio n of its attorney, Brian Brislen, and review Filing No. 20, Exhibit 1, "Notice of D e p o sitio n of Rob McLaughlin and Mark Allen" which contains a certificate of service on A F C 's local counsel in Oklahoma case dated July 24, 2009. Counsel for Nebraska Beef also a s k s this court to review Filing No. 20, Exhibit 2, which is a copy of a "Notice of Deposition o f Advance Food's Employees Named Herein," with a certificate of service on AFC's local c o u n s e l in the Oklahoma case on July 24, 2009. Counsel for Nebraska Beef stated that c o u n s e l for AFC in the Oklahoma case indicated that his partner had deposed at least fifteen o f the witnesses set forth in Exhibits 1 and 2 during the week of July 27, 2009. Filing No. 20, E x . 1. AFC has filed a statement saying it has no objection to these additional evidentiary m a te ria ls which were not submitted to the magistrate judge. Filing No. 30. The court has re v ie w e d the motion and the evidence and finds the motion should be granted. Accordingly, N e b ra s k a Beef's evidence is received by the court for purposes of this motion. AFC also asks the court to allow it to submit additional evidence in opposition to N e b ra s k a Beef's appeal of the magistrate judge's order transferring this case. Filing No. 27. A F C contends that this evidence did not exist at the time of briefing and could not be p re s e n te d to the magistrate judge. Nebraska Beef has no objection to this motion. The c o u rt has carefully reviewed the motion and finds it should be granted. AFC's Exhibit 1, F ilin g No. 28, dated July 28, 2009, which is the amended scheduling order in the Oklahoma c a s e , is received for purposes of this motion.
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S ta n d a rd of Review ­Motion to Transfer In nondispositive matters, this court reviews the magistrate judge's order under the c le a rly erroneous or contrary to law standard. Fed. R. Civ. P. 72(a). Although venue in N e b ra s k a has been found proper, a district court may nevertheless transfer any civil a c tio n -- fo r the convenience of the parties and witnesses or in the interest of justice--to any o th e r district in which it could have been brought. 28 U.S.C. § 1404(a). This provision was d r a f te d in accordance with the doctrine of forum non conveniens, permitting transfer to a m o re convenient forum, even though venue is proper. Wisland v. Admiral Beverage Corp., 1 1 9 F.3d 733, 736 n.2 (8th Cir. 1997). A plaintiff's choice of his home forum is usually a c c o rd e d great deference and will not be disturbed unless the balance of private and public fa c to rs heavily indicate another forum. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-256 (1 9 8 1 ). Generally, transfer under § 1404(a) "should not be freely granted." In re Nine Mile L td ., 692 F.2d 56, 61 (8th Cir. 1982). W h e n deciding a motion to transfer venue under the doctrine of forum non c o n ve n ie n s, courts must consider: (1) the convenience of the parties; (2) the convenience o f the witnesses; and (3) the interests of justice. Terra Int'l, Inc. v. Mississippi Chem. Corp., 1 1 9 F.3d 688, 691 (8th Cir. 1997). A district court is not, however, limited to evaluating only th e se factors in assessing a transfer motion. Id. Determinations of venue require a

c a s e -b y-c a s e evaluation of the particular circumstances at hand and a consideration of all re le v a n t factors. Id. at 697-98. There is no exhaustive list of specific factors to consider. Id . A district court is directed to take account of factors other than those that bear solely on th e parties' private ordering of their affairs; it also must weigh in the balance the convenience o f the witnesses and those public-interest factors of systemic integrity and fairness that, in

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a d d itio n to private concerns, come under the heading of "the interest of justice." Stewart O rg a n iza tio n , Inc. v. Ricoh Corp., 487 U.S. 22, 30 (1988). A transfer pursuant to § 1404(a) d o e s not carry with it a change in the applicable law. Van Dusen v. Barrack, 376 U.S. 612, 6 3 6 -6 3 7 (1964) (stating section 1404(a) "should be regarded as a federal judicial h o u s e k e e p in g measure, dealing with the placement of litigation in the federal courts and g e n e r a l ly intended, on the basis of fairness, simply to authorize a change of courtrooms."). T h e burden is on the movant to show that a transfer is proper. Terra Int'l, Inc., 119 F.3d at 6 9 5 -9 6 . D i s c u s s io n T h e magistrate judge granted AFC's motion to transfer. See Filing Nos. 7 and 18. N e b ra s k a Beef appealed, Filing No. 21, arguing the magistrate judge erred in finding that (1) th e events giving rise to this litigation essentially occurred in Oklahoma; (2) that the relevant d o cu m e n ts are in Oklahoma; (3) that the interests of justice and convenience of the parties a n d witnesses weighs in favor of Oklahoma; (4) that the costs would be less if litigated in one fo ru m ; and (5) that the balance of interests weigh heavily in favor of transferring this action to Oklahoma. Nebraska Beef contends that the Nebraska case and the Oklahoma case are not b a se d on the same facts or legal issues. Further, Nebraska Beef argues that under N e b r a s k a law contracts for the sale of goods prohibits a party from deducting or setting off d a m a g e s from one contract for amounts owed on another contract in any event. Neb. Rev. S ta t. U.C.C. § 2-717. Nebraska Beef further contends that the magistrate judge erroneously d e te rm in e d that the beef products sold by Nebraska Beef to AFC were done so on different d a ys but all sold by Nebraska Beef to AFC pursuant to the June 11, 2008, warranty

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a g re e m e n t. Nebraska Beef states this finding is clearly erroneous. Nebraska Beef agrees th a t products purchased in both contracts were subject to the June 11 th warranty agreement. H o w e v e r, Nebraska Beef argues that these products were not purchased pursuant to the w a rra n ty agreement and, thus, the Oklahoma case deals with the warranty agreement and th e Nebraska case deals with the separate contract. In addition, Nebraska Beef contends th a t AFC placed its order with a Nebraska business, that the product was shipped from N e b ra s k a to Oklahoma, payment was due in Nebraska, and AFC refused to pay in N e b ra s k a . These factors, assert Nebraska Beef, favor keeping the case in Nebraska. N e b ra s k a Beef also contends that the primary documents, i.e., invoices, are located in N e b ra s k a . Further, argues Nebraska Beef, as the additional evidence presented by AFC s h o w s , fifteen depositions have been taken in the Oklahoma case and would be duplicated in any event. Thus, argues Nebraska Beef, AFC cannot meet its burden of showing the court th a t this case should be transferred to Oklahoma. AFC argues that the magistrate judge's order in this case is neither clearly erroneous n o r contrary to law. AFC contends that Nebraska Beef could have filed a counterclaim in the O k la h o m a case and chose not to do so. AFC argues that there were seven oral contracts b e tw e e n the parties, that the beef was shipped to Oklahoma, that the invoices were sent to O k la h o m a , that AFC accepted the beef in Oklahoma, and that AFC refused to pay in O k la h o m a . Further, AFC argues that the documents include the invoices and bills of lading, a n d that most documents are located in Oklahoma, including some recall documents that A F C contends are relevant to this lawsuit. In addition, AFC argues that the magistrate ju d g e 's finding that these two cases are interrelated, as are the witnesses and parties, is not c le a rly erroneous and that this factor weighs in favor of Oklahoma. For the same reasons, a s s e rts AFC, the costs of litigation will be reduced if the case is transferred to Oklahoma.
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T h e court has carefully reviewed the magistrate judge's order, Filing No. 18, as well a s the new evidence and arguments submitted by both counsel. The court finds the

m a g is tra te judge's findings of fact are not clearly erroneous nor are his legal applications c o n t r a r y to the law . Although this court cannot at this time say conclusively so, the court a g re e s that these contracts might be related, given the context of the situation that has a r is e n between the parties. The court also agrees with the magistrate judge's analysis, F ilin g No. 18 at 4-6, regarding the factors for transfer of this case to Oklahoma. Accordingly, th e court will deny the appeal. THEREFORE, IT IS ORDERED: 1 . Nebraska Beef's motion to submit additional evidence, Filing No. 19, is granted. 2 . AFC's unopposed motion for leave to allow additional evidentiary materials, Filing N o . 27, is granted. 3 . The appeal of Nebraska Beef, Filing No. 21, is overruled and denied. 4 . The Clerk of Court is ordered to transfer this case to the United District Court for th e W e s te r n District of Oklahoma and notify the Clerk of Court in Oklahoma that this case m a y or may not be related to the pending case of Advance Food Company, Inc. v. Nebraska B e e f, Ltd., No. 08CV1139-M. DATED this 18 th day of September, 2009. B Y THE COURT:

s / Joseph F. Bataillon Chief United States District Judge

*This opinion m a y contain hyperlinks to other docum e n ts or W e b sites. The U.S. District Court for th e District of Nebraska does not endorse, recom m e n d , approve, or guarantee any third parties or the services o r products they provide on their W e b sites. Likewise, the court has no agreem e n ts with any of these third p a r tie s or their W e b sites. The court accepts no responsibility for the availability or functionality of any h yp e r lin k . Thus, the fact that a hyperlink ceases to work or directs the user to som e other site does not affect t h e opinion of the court. 6