Burns & McDonnell Engineering Company, Inc. et al v. Tank Connection, LLC et al

Filing 16

MEMORANDUM AND ORDER granting 12 Motion to Change Venue. The clerk shall transfer this case to the United States District Court for the Southern District of Iowa. Ordered by Magistrate Judge Cheryl R. Zwart. (E-mailed to Judge Gerrard)(JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
BURNS & MCDONNELL
ENGINEERING COMPANY, INC.,
LOUISA ENVIRONMENTAL PROJECT
PARTNERS,
Plaintiffs,

8:12CV357
MEMORANDUM AND ORDER

vs.
TANK CONNECTION, LLC, NEIGHBORS
& ASSOCIATES, INC., CHARTIS
SPECIALTY INSURANCE COMPANY,
Defendants.
The defendants have moved to dismiss this case, arguing the forum selection clause in
the contract at issue requires that any disputes must be litigated in an Iowa court. (Filing No.
8). Under the terms of the contract, "the parties agree to venue in any court of competent
jurisdiction in Iowa, and specifically waive challenges to such venue on any grounds."
(Filing No. 9-1, at CM/ECF p. 11, ¶ 19).

In response the motion to dismiss, the plaintiffs have moved to transfer this case to
the United States District Court for the Southern District of Iowa. (Filing No. 12). The
defendants oppose the motion to transfer venue, citing the arguments advanced on the motion
to dismiss. (Filing No. 15).

Diversity jurisdiction exists, and the plaintiffs' lawsuit could have been filed in the
Iowa federal court. When ruling on a motion to transfer pursuant to 28 U.S.C. § 1404(a), the
court must analyze case specific factors to determine whether the plaintiffs' requested
transfer to the Iowa federal court will advance the convenience and fairness of these
proceedings. Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988). The court
must consider the convenience of the parties, the convenience of the witnesses, the interests
of justice, and any other relevant factors when comparing alternative venues.

The plaintiffs' complaint seeks recovery of unpaid attorney fees and expenses
incurred to defend a personal injury lawsuit related to a construction project in Louisa, Iowa.
By filing their action in a Nebraska federal court, the plaintiffs chose a federal forum. And
as argued in the defendants' brief:
Plaintiffs are from Kansas City, Missouri and Omaha, Nebraska, respectively,
and Tank is from Parsons, Kansas. . . . The forum selection clause is presumed
valid and there is no reason to believe it is unjust, unreasonable or invalid. The
contract giving rise to Plaintiffs’ lawsuit was between sophisticated business
entities for a construction project in Iowa, and litigating these issues in Iowa
instead of Nebraska is consistent with federal law and the public policy of both
Nebraska and Iowa.
(Filing No. 9, at CM/ECF pp. 4-5).

Finally, under the forum selection clause at issue, the

defendants have waived any challenge to an Iowa forum. (Filing No. 9-1, at CM/ECF p. 11, ¶
19).
Upon consideration of the arguments and evidence before me, the court finds this case
should be transferred to the United States District Court for the Southern District of Iowa.
Accordingly,
IT IS ORDERED:
1)

The plaintiffs' motion to transfer venue, (Filing No. 12), is granted.

2)

The clerk shall transfer this case to the United States District Court for
the Southern District of Iowa.

January 14, 2013.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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