Kendle v. WHIG Enterprises, LLC et al

Filing 40

OPINION AND ORDER DENYING 30 Defendant Jason Rutland's Motion to Transfer Venue and 31 Motion to Transfer Venue of Defendants Whig Enterprises, LLC, RXPRO of Mississippi, Inc. and Mitchell Chad Barrett. Signed by Magistrate Judge Norah McCann King on 1/29/2016. (pes)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN F. KENDLE,
Plaintiff,
vs.

Civil Action 2:15-cv-1295
Judge Frost
Magistrate Judge King

WHIG ENTERPRISES, LLC, et al.,
Defendants.
OPINION AND ORDER
This matter is before the Court on Defendant Jason Rutland’s
Motion to Transfer Venue, ECF No. 30 (“Rutland Motion”); Motion to
Transfer Venue of Defendants Whig Enterprises, LLC, RXPRO of
Mississippi, Inc. and Mitchell Chad Barrett, ECF No. 31 (“WHIG
Motion”); plaintiff’s opposition to both motions, ECF No. 32
(“Plaintiff’s Opposition”); and the reply brief of defendant WHIG
Enterprises, LLC (“WHIG’s Reply”).

For the reasons that follow, the

Rutland Motion and WHIG Motion are DENIED.
I.

Factual Allegations and Procedural History
Defendant WHIG Enterprises, LLC (“WHIG”) is a Florida limited

liability company with its principal place of business in Jackson,
Mississippi.

Amended Complaint, ECF No. 10, ¶ 1.

WHIG’s members

include, inter alios, defendants Mitchell Chad Barrett and David Jason
Rutland, who are residents and citizens of Jackson, Mississippi.
at ¶¶ 1, 3-4.

Id.

Rx Pro Mississippi, Inc. (“Rx Pro”), an affiliate of

WHIG, is incorporated under the laws of the State of Mississippi with

1

its principal place of business in Jackson, Mississippi.

Id. at ¶ 2.

Defendants Barrett and Rutland, as Rx Pro’s sole shareholders, control
Rx Pro.

Id.

WHIG and Rx Pro are in the business of manufacturing and

marketing medical and pharmaceutical products, including compounded
medications, which are formulations of individual medications
prescribed to provide relief from pain, scars, wounds, migraine
headaches, and other physical ailments.

Id. at ¶¶ 6, 10.

WHIG and Rx

Pro market their medical products through distributors and
salespersons such as plaintiff, a resident of Marietta, Ohio.

Id. at

¶¶ 5-6.
At all times relevant to the Amended Complaint, defendants
Barrett and Rutland, individually and on behalf of WHIG and/or Rx Pro,
had a continuing business relationship with Axion Therapeutics, LLC
(“Axion”), which is located in Cleveland, Ohio, involving the sale of
compounded medications.

Id. at ¶ 11.

In the summer of 2013, after

learning of plaintiff’s sales and marketing activities on Axion’s
behalf, defendants Barrett and Rutland began communicating with
plaintiff, who was located in Ohio, in order to recruit plaintiff to
work directly with them and on behalf of WHIG and/or Rx Pro.

Id. at ¶

11.
On August 27, 2013, plaintiff and WHIG entered into a consultant
agreement and a memorandum of understanding.

Id. at ¶¶ 12-25.

More

specifically, following negotiations, plaintiff entered into a
Distributor Consultant Agreement with WHIG pursuant to which he would
receive a commission on plaintiff’s sale of medical products

2

manufactured by WHIG and/or Rx Pro, including compounded medications,
by distributing the products in Ohio and throughout the United States.
Id. at ¶¶ 12-13; Exhibit A (copy of Distributor Consultant Agreement
effective September 1, 2013), attached thereto.

This agreement

contains, inter alia, the following forum-selection clause:
11. GOVERNING LAW. This Agreement and the employment
relationship created by it shall be governed by Florida
law. The parties hereby consent to jurisdiction in Florida
for the purposes of any litigation relating to this
Agreement.
Exhibit A, p. 5, Article 11, attached to Amended Complaint.

Plaintiff

and defendant Barrett signed the Distributor Consultant Agreement.
Id. at p. 5.
Plaintiff and WHIG also entered into a memorandum of
understanding (“Memorandum of Understanding”) regarding certain
physician marketing groups known as “BAMBR Marketing Groups.”
Complaint, ¶¶ 20-27; Exhibit B (copy of Memorandum of Understanding),
attached thereto.

Under the BAMBR business model, defendants

compensated physicians and other healthcare providers who prescribed
WHIG products to their patients by offering the providers ownership
interests in BAMBR Marketing Groups.

Complaint, ¶ 22.

According to

plaintiff, defendants had already begun establishing such groups in
Mississippi and Florida and solicited plaintiff to expand the BAMBR
business model throughout the United States.

Id. at ¶ 23.

In

exchange, defendants Barrett and Rutland, individually and on behalf
of WHIG and/or Rx Pro, promised plaintiff that he would receive an
ownership interest in and a share of the profits earned by the BAMBR

3

program.

Id. at ¶ 24.

Defendant Barrett, acting on behalf of WHIG

and/or Rx Pro, and plaintiff executed the Memorandum of Understanding,
which entitled plaintiff to an ownership interest in BAMBR Marketing
Groups and additional compensation for marketing BAMBR stock ownership
to qualified physicians for membership in BAMBR.
B, attached to Amended Complaint.

Id. at ¶ 25; Exhibit

Plaintiff successfully enlisted at

least three physicians, including one from West Virginia and two from
North Carolina, as members.

Amended Complaint, ¶ 27.

On February 25, 2014, plaintiff, acting as a marketer for
defendants, communicated with defendants Barrett and Rutland about
organizing a meeting of distributors in Atlanta, Georgia.
35.

Id. at ¶

Plaintiff alleges that defendants Barrett and Rutland later

wrongfully blamed him for promoting the discussion of negative topics
during the distributor meeting in Atlanta and “immediately terminated
their business relationships with Plaintiff and ceased all
communication with him” and terminated his access to defendants
at ¶¶ 36-38.

Id.

According to plaintiff, defendants Barrett and Rutland

contacted plaintiff’s sales representatives and encouraged them to
terminate existing relationships with plaintiff and work directly with
defendants.

Id. at ¶ 39.

Despite plaintiff’s requests, defendants

allegedly failed and refused to pay plaintiff commissions from
(1) sales procured by plaintiff and his sales team for
January, 2014, February 2014 and all months to follow until
all refills on all scripts were exhausted from those made
in Ohio and throughout the United States (2) commissions
owed to Plaintiff for refill sales procured by Plaintiff
and his sales team, and (3) commissions that he would have
earned in the future but for Defendants’ wrongful
termination of the Distributor Consulting Agreement.

4

Id. at ¶ 40.

Plaintiff also alleges that defendants have failed to

pay him for services in connection with the expansion and development
of the BAMBR program nationwide and have failed to pay him profits
and/or other compensation for plaintiff’s actions that were necessary
to the establishment of the Rx Pro Compounding pharmacy in Indiana,
Pennsylvania.

Id. at ¶¶ 41-42.

On April 15, 2015, plaintiff instituted this action, naming as
defendants WHIG, Rx Pro, and Messrs. Barrett and Rutland.
ECF No. 1.

Complaint,

Thereafter, plaintiff filed the Amended Complaint,

asserting claims of breach of contract (breach of the Distributor
Consultant Agreement, the Memorandum of Understanding, and the
agreement in connection with the Rx Pro compounding pharmacy in
Pennsylvania), unjust enrichment, and tortious interference with
contractual and business relationships arising out of defendants’
alleged wrongful termination of the parties’ medical and
pharmaceutical products and services marketing agreement.

All of the

defendants have moved to transfer this action to the Northern District
of Florida, Pensacola Division.

See Rutland Motion, WHIG Motion.

The

motions to transfer are ripe for resolution.
II.

Standard
The Rutland Motion and WHIG Motion seek to transfer this action

pursuant to 28 U.S.C. § 1404(a), which provides, in pertinent part,
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[.]”

5

This Court employs a two-step analysis in resolving motions filed
pursuant to § 1404(a).

See, e.g., Pac. Life Ins. Co. v. U.S. Bank

Nat’l Ass’n, No. 1:15-CV-416, 2016 WL 223683, at *2 (S.D. Ohio Jan.
19, 2016); DRFP, LLC v. Republica Bolivariana De Venezuela, 945 F.
Supp. 2d 890, 902 (S.D. Ohio 2013); Kay v. Nat’l City Mortg. Co., 494
F. Supp.2d 845, 849–50 (S.D. Ohio 2007).

First, the threshold

determination is whether the action might have been brought in the
proposed transferee court.

Id.

“An action ‘might have been brought’

in a transferee court if: (1) the court has jurisdiction over the
subject matter of the action; (2) venue is proper there; and (3) the
defendant is amenable to process issuing out of the transferee court.”
SKY Techs. Partners, LLC v. Midwest Research Inst., 125 F. Supp.2d
286, 291 (S.D. Ohio 2000) (citations and punctuation omitted).

Under

28 U.S.C. § 1391(b)(2), venue is proper in “a judicial district in
which a substantial part of the events or omissions giving rise to the
claim occurred, or a substantial part of property that is the subject
of the action is situated[.]”
Next, the Court must “evaluate both the convenience of the
parties and various public-interest considerations[,]” which means
that the Court ordinarily “weigh[s] the relevant factors and decide[s]
whether, on balance, a transfer would serve ‘the convenience of
parties and witnesses’ and otherwise promote ‘the interest of
justice.’”

Atlantic Marine Const. Co. v. U.S. Dist. Court for W.

Dist. of Texas, __ U.S. __,
U.S.C. § 1404(a)).

134 S. Ct. 568, 581 (2013) (quoting 28

“The balance of convenience, considering all the

6

relevant factors, ‘should be strongly in favor of a transfer before
such will be granted.’”

Kay, 494 F. Supp. 2d at 850 (quoting First

Bank of Marietta v. Bright Banc Savings Assoc., 711 F. Supp. 893, 896–
97 (S.D. Ohio 1988)).

See also DRFP, LLC, 945 F. Supp. 2d at 902

(explaining that the second step of a § 1404(a) analysis requires a
court to determine whether, “considering all relevant factors, the
balance of convenience and the interest of justice ‘strongly’ favor
transfer”) (quoting Proctor & Gamble Co. v. Team Tech., Inc., No.
1:12–cv–552, 2012 WL 5903126, at *3 (S.D. Ohio Nov. 26, 2012)); Kay,
494 F. Supp.2d at 849-50.
However, this analysis changes when there exists a valid forumselection clause, “which ‘represents the parties’ agreement as to the
most proper forum.’”

Id. (quoting Stewart Organization, Inc. v. Ricoh

Corp., 487 U.S. 22, 31 (1988)).

Accordingly, when the parties have

agreed to a valid forum-selection clause, “[o]nly under extraordinary
circumstances unrelated to the convenience of the parties should a §
1404(a) motion be denied.”

Id.

Finally, the moving party bears “the burden of establishing the
need for a transfer of venue.”

Dayton Superior Corp. v. Yan, 288

F.R.D. 151, 165 (S.D. Ohio 2012).

See also Steelcase, Inc. v. Smart

Techs., Inc., 336 F. Supp. 2d 714, 719 (W.D. Mich. 2004) (“This burden
is a heavy one and requires the moving party to show that the balance
of factors weighs strongly in favor of transfer.”).

Ultimately, the

decision whether to transfer venue is left to the discretion of the

7

trial court.

Id.; Midwest Motor Supply Co., Inc. v. Kimball, 761 F.

Supp. 1316, 1318 (S.D. Ohio 1991).
III. Discussion
A.

Forum-selection clause

As discussed supra, the Distributor Consultant Agreement contains
a forum-selection clause that provides that the “Agreement and the
employment relationship created by it shall be governed by Florida
law.

The parties hereby consent to jurisdiction in Florida for the

purposes of any litigation relating to this Agreement.”
5, Article 11, attached to Amended Complaint.

Exhibit A, p.

The parties do not

disagree that this clause is valid and no party argues that the clause
is unreasonable.

See also M/S Bremen v. Zapata Off-Shore Co., 407

U.S. 1, 10 (1972) (agreeing that forum-selection clauses are “prima
facie valid”).
The parties do disagree, however, on the impact, if any, of this
clause on the requests to transfer.

Plaintiff takes the position that

the forum-selection clause at issue in this case is permissive rather
than mandatory and therefore does not require or even support the
transfer of this action to Florida.
7-8.

Plaintiff’s Opposition, pp. 4-5,

Defendant Rutland argues that the existence of this clause is a

binding agreement, voluntarily entered into by the parties, that
obligates the parties to litigate in Florida and which requires the
transfer of this action to Florida.

Rutland Motion, pp. 3-6 (arguing

further that the validity of the clause is the “most significant
factor” under § 1404).

WHIG contends that the forum-selection clause,

8

even if construed as permissive, is an important factor in the § 1404
analysis, impacting considerations of the parties’ choice of forum and
the convenience of the parties.

WHIG Motion, pp. 8-10; WHIG Reply,

pp. 2-4.
“A forum selection clause is mandatory if it clearly indicates
that jurisdiction is proper only in the selected forum.”

Braman v.

Quizno’s Franchise Co., LLC, No. 5:07CV2001, 2008 WL 611607, at *6
(N.D. Ohio Feb. 20, 2008).

“By contrast, a permissive forum selection

clause merely authorizes jurisdiction in the specified forum, but does
not require that forum to be the exclusive venue for litigation.”

Id.

Stated differently, where the clause at issue “does not mandate a
singular forum, but simply states that the parties consent to the
jurisdiction of state and federal courts located in [a particular
state,]” the clause is, as a matter of law, permissive.

Hitachi Med.

Sys. Am., Inc. v. Bay Harbor MRI, Inc., No. 5:09CV639, 2009 WL
2252875, at *3 (N.D. Ohio July 28, 2009) (collecting cases).

See also

Lopesco Industria De Subprodutos Animais, Ltda v. Free Range Dog
Chews, Inc., No. 10-CV-10970, 2010 WL 3790179, at *2 (E.D. Mich. Sept.
22, 2010); 14D Charles Alan Wright & Arthur R. Miller, Fed. Prac. &
Proc. Juris. § 3803.1 (4th ed.) (“Permissive forum selection clauses,
often described as ‘consent to jurisdiction’ clauses, authorize
jurisdiction and venue in a designated forum, but do not prohibit
litigation elsewhere.”).

In the case presently before the Court, the

forum-selection clause provides that the parties “consent to the
jurisdiction in Florida for the purpose of any litigation relating to”

9

the Distribution Consultant Agreement.
permissive.

The clause is therefore

Id.

In considering a permissive forum-selection clause in the context
of a § 1404(a) motion to transfer, this Court has distinguished
Atlantic Marine, noting that the forum-selection clause at issue in
that case was mandatory.

Residential Finance Corp. v. Jacobs, No.

2:13-cv-1167, 2014 WL 1233089, at *3 (S.D. Ohio Mar. 25, 2014)
(considering a clause that permitted the plaintiff to sue in Ohio).
In so finding, Residential Finance acknowledged, but distinguished,
the holding of another court in this circuit suggesting that there is
no functional difference between permissive and mandatory forumselection clauses.

Id. (citing United Am. Healthcare Corp. v. Backs,

997 F. Supp.2d 741 (E.D. Mich. 2014), and noting that the clause in
Backs expressly waived any claim of improper venue or inconvenient
forum).

Residential Finance therefore granted “exactly what the[]

parties have bargained for - an agreement that prevents, in this case,
Defendants from arguing that Ohio is an improper venue[.]”

Id. (going

on to consider factors under § 1404(a)).
In the case presently before the Court, the permissive forumselection clause does not require transfer to Florida.

However, the

clause does prevent plaintiff from arguing that Florida is an improper
venue.

Id.

Indeed, Plaintiff’s Opposition does not dispute that

Florida is a proper venue.

Moreover, the record reflects that this

action might have been brought in the Northern District of Florida,
Pensacola Division, the proposed transferee court.

10

As discussed

supra, an action “might have been brought” in a transferee court if,
e.g., venue is proper there, i.e., “a substantial part of the events
or omissions giving rise to the claim occurred” in that judicial
district.

SKY Techs. Partners, LLC, 125 F. Supp.2d at 291; 28 U.S.C.

§ 1391(b)(2).

Plaintiff alleges that he attended “numerous executive

team meetings in Pensacola, Florida and Jackson, Mississippi to devise
marketing and sales strategies and to position the company to go
public.”

Amended Complaint, ¶ 20.

Plaintiff also acknowledges that

defendants had established BAMBR marketing groups in Florida.
¶ 23.

Id. at

Moreover, plaintiff entered into the Distributor Consultant

Agreement, which underlies some of plaintiff’s claims, with WHIG, a
Florida company, and WHIG’s “affiliates, Florida entities[.]”
Exhibit A, p. 1, attached to the Amended Complaint.

See

These factual

allegations and evidence, combined with the forum-selection clause,
satisfy the Court that venue would be proper in the Northern District
of Florida, Pensacola Division.

Having so concluded, the Court next

considers whether the public and private factors strongly weigh in
favor of transfer.
B.

Id.

Private Factors Under Section 1404(a)

The private interest factors that the Court must consider include
relative ease of access to sources of proof; availability
of compulsory process for attendance of unwilling, and the
cost of obtaining attendance of willing witnesses;
possibility of view of the premises, if view would be
appropriate to the action; and all other practical problems
that make trial of a case easy, expeditious and
inexpensive.
Atl. Marine Const. Co., 134 S. Ct. at 581 n.6 (quoting Piper Aircraft

11

Co. v. Reyno, 454 U.S. 235, 241 n.6 (1981) (internal quotation marks
omitted)).

The Court must also consider plaintiff’s choice of forum.

See, e.g., DRFP, LLC, 945 F. Supp.2d at 902.
1.

Plaintiff’s chosen forum

“Plaintiff’s choice of forum should be given ‘great’ or
‘substantial’ weight when considering whether to transfer a case under
§ 1404(a).”

Trustar Funding v. Mruczynski, No. 1:09–cv–01747–CAB,

2010 WL 1539759, at *10 (N.D. Ohio Mar. 30, 2010) (quoting United
States v. Cinemark USA, Inc., 66 F. Supp. 2d 881, 887 (N.D. Ohio 1999)
(internal quotation marks omitted)).

See also Capitol Specialty Ins.

Corp. v. Splash Dogs, LLC, 801 F. Supp. 2d 657, 672-73 (S.D. Ohio
2011) (“There is thus a strong presumption in favor of a plaintiff’s
choice of forum that ‘may be overcome only when the private and public
interest factors clearly point towards trial in the alternative
forum.’”) (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255
(1981)).

“This is especially true where the plaintiff also resides in

the chosen forum.”

Smith v. Kyphon, Inc., 578 F. Supp. 2d 954, 962

(M.D. Tenn. 2008).

See also Thomas v. Home Depot, U.S.A., Inc., 131

F. Supp. 2d 934, 937 (E.D. Mich. 2001) (same).
choice of forum is not dispositive.
F.3d 389, 413 (6th Cir. 1998).

However, plaintiff’s

Lewis v. ACB Bus. Servs., 135

A court gives plaintiff’s chosen forum

little weight “‘where none of the conduct complained of occurred in
the forum selected by the plaintiff.’”

Keybanc Capital Markets v.

Alpine Biomed Corp., No. 1:07 CV 1227, 2008 WL 828080, at *7 (N.D.
Ohio Mar. 26, 2008) (quoting Edmison v. Vision Inv. & Dev., LLC, No.

12

1:06 CV 1108, 2006 WL 3825149, at *5 (N.D. Ohio Dec. 26, 2006)).
Finally, “[d]istrict courts in the Sixth Circuit generally assign
permissive forum-selection clauses little weight in deciding whether
to transfer venue.”

Flight Sols., Inc. v. Club Air, Inc., No. 3:09-

CV-1155, 2010 WL 276094, at *3 (M.D. Tenn. Jan. 14, 2010) (collecting
cases).
In the case presently before the Court, defendant Rutland
characterizes the forum-selection clause as the most significant
factor and contends that, because Ohio bears little or no relationship
to the allegations in the Amended Complaint, the existence of the
clause weighs in favor of transfer to the Northern District of
Florida.

Rutland Motion, pp. 3-7.

Similarly, WHIG argues that

plaintiff’s choice of forum should be given little weight because even
a permissive forum-selection clause is a manifestation of the parties’
preferences as to a convenient forum.
Reply, pp. 4-6.

WHIG Motion, pp. 8-9; WHIG

WHIG further argues that the facts and circumstances

of this case are “more closely related to Florida or locales in the
vicinity of Pensacola, Florida” than to Ohio.

WHIG Motion, pp. 4-5, 9

(contending, inter alia, that WHIG, the only party defendant to the
Distributor Consultant Agreement, is a Florida entity; plaintiff
attended certain executive meetings in Florida; defendants established
BAMBR marketing groups in Florida; and that any alleged breaches of
agreements arose of Florida when defendants Barrett and Rutland took
actions on behalf of WHIG, a Florida entity); WHIG Reply, pp. 4-6.
Plaintiff disagrees, arguing that his choice of forum is entitled to

13

more weight, particularly because he resides in the chosen forum, the
forum-selection clause in this case is permissive, and Ohio has a
strong connection to plaintiff’s claims.

Plaintiff’s Opposition, pp.

2-3, 7-9.
Plaintiff’s arguments are well-taken.
plaintiff resides in his chosen forum.

It is undisputed that

See, e.g., Amended Complaint,

¶ 5 (alleging that plaintiff resides in Marietta, Washington County,
Ohio).

Although the forum-selection clause establishes that the

parties consented to the jurisdiction of courts in Florida, this Court
has concluded, for the reasons discussed supra, that the clause is
permissive.

The “little weight” that the Court assigns to this

permissive forum-selection clause, see Flight Sols., Inc., 2010 WL
276094, at *3, will not overcome the substantial weight that must be
given to plaintiff’s chosen forum, in which he resides.
Defendants insist that the Court must assign little weight to
plaintiff’s choice of forum because Ohio has little or no connection
to this action.

This Court disagrees. It was through their ongoing

business relationship with Axion Therapeutics, LLC (“Axion”), which is
located in Cleveland, Ohio, that defendants Barrett and Rutland
learned of plaintiff’s sales and marketing activities on behalf of
Axion.

Amended Complaint, ¶ 11.

Defendants Barrett and Rutland

routinely communicated with and negotiated the terms of certain
business relationships with plaintiff, who resides in Ohio.
11-12, 20-25, 29.

Id. at ¶¶

Upon entering into the Distributor Consultant

Agreement, defendants Barrett and Rutland gave plaintiff access to

14

WHIG’s and Rx Pro’s computer systems, which plaintiff accessed from
his office in Marietta, Ohio.

Id. at ¶ 15.

Defendants also paid

plaintiff through deposits made to plaintiff’s bank account in
Marietta, Ohio.

Id.

Upon entering into business relationships with

defendants, at least defendants Barrett and Rutland knew that
plaintiff was engaged in the business of marketing, selling, and
distributing medical products while located in Marietta, Ohio, in
furtherance of, inter alia, the Distributor Consultant Agreement.
at ¶¶ 5, 7, 18-20.

Id.

Defendants Barrett and Rutland also attended a

meeting with plaintiff in Ohio and visited potential pharmacy sites in
Ohio.

Id. at ¶¶ 29-30.

In short, although Florida has a connection

to this action, the Court cannot say that Ohio has so little
connection to the events giving rise to this action that plaintiff’s
choice of forum should be utterly discounted.
Markets, 2008 WL 828080, at *7.

See Keybanc Capital

Accordingly, consideration of this

factor weighs against transfer to the Northern District of Florida.
2.

Access to sources of proof

Defendant Rutland generally asserts that, because “the evidence
associated with this action[,]” “much of the relevant documentary
evidence[,]” and the “vast majority” of documents are located in
Mississippi and Florida, transfer of the action is appropriate.
Rutland Motion, pp. 6-7, 9.

However, WHIG and plaintiff do not

disagree that, regardless of the location of the relevant documents,
modern technology will permit the production of adequate versions of
these documents regardless of their location. Thus, the factor of

15

access to proof is neutral.

See WHIG Motion, pp. 10-11; Plaintiff’s

Opposition, p. 13; WHIG Reply, p. 8.
3.

Convenience of the party witnesses

Plaintiff asserts that only WHIG is incorporated in Florida and
that the individual defendants reside in Mississippi, which is
approximately 250 miles away from Pensacola, Florida.
Opposition, p. 9.

Plaintiff’s

According to plaintiff, the transfer of the case to

Pensacola, Florida, would therefore result in a greater total combined
distance of travel for the parties.

Id. at 10.

Plaintiff further

argues that, even if Pensacola, Florida, is a more convenient forum
for defendants, it is greatly more inconvenient for plaintiff and that
the Court should not shift that inconvenience to plaintiff.
10.

Id. at 9-

For their part, defendants argue that Pensacola, Florida, is a

more convenient forum for them and that plaintiff essentially waived
any inconvenience argument as to Florida when he signed the
Distributor Consultant Agreement.

Rutland Motion, pp. 6-7; WHIG

Motion, p. 10; WHIG Reply, pp. 7-8.
Defendants’ arguments in this regard are well-taken.

Defendant

Rutland, a Mississippi resident, and WHIG, a Florida limited liability
company with its principal place of business in Mississippi, represent
that driving to Pensacola, Florida, is more convenient than flying to
Columbus Ohio.

See id.

Moreover, as discussed supra, the permissive

forum-selection clause in this case establishes that plaintiff
consented to litigating in Florida.

Under these circumstances, the

Court is not persuaded by plaintiff’s present arguments that Florida

16

is an inconvenient forum.
1233089, at *3.

Cf. Residential Finance Corp., 2014 WL

Accordingly, this factor favors transfer to the

Northern District of Florida.
4.

Convenience of the non-party witnesses and
availability of compulsory process for attendance of
unwilling witnesses

“The convenience of the witnesses, particularly nonparty
witnesses important to the resolution of the case, is often cited as
the most significant factor in ruling on a motion to transfer under 29
U.S.C. § 1404(a).’”

Residential Fin. Corp., 2014 U.S. Dist. LEXIS

42745, at *16 (quoting 15 C.A. Wright, A.R. Miller & E.H. Cooper, Fed.
Prac. & Proc. § 3851 (4th ed.)).

See also Nationwide Mut. Fire Ins.

Co. v. Barbour, No. 5:15 CV 456, 2015 WL 5560209, at *3 (N.D. Ohio
Sept. 21, 2015) (“The convenience of witnesses is one of the most
important factors in determining whether to grant a change of venue
under 28 U.S.C. § 1404(a), and the residence of key witnesses is a
critical consideration.”); Steelcase, Inc. v. Smart Techs., Inc., 336
F. Supp. 2d 714, 720 (W.D. Mich. 2004) (“Convenience of witnesses is
perhaps the most important factor in the transfer analysis.”).

The

“party seeking the transfer must clearly specify the essential
witnesses to be called and must make a general statement of what their
testimony will cover.”
(M.D. Tenn. 2008).

Smith v. Kyphon, Inc., 578 F. Supp.2d 954, 963

See also Slate Rock Const. Co. v. Admiral Ins.

Co., No. 2:10-CV-1031, 2011 WL 3841691, at *9 (S.D. Ohio Aug. 30,
2011) (“[A] generalized assertion by a defendant that witnesses reside
in, and documents are located in, the proposed transferee district, is

17

generally insufficient to support a change of venue.”).

A defendant

seeking transfer “must also show that witnesses (usually third party
witnesses, rather than employees of the defendants) are unwilling to
attend a trial in that forum [chosen by plaintiff].”

Id.

See also

Pearle Vision, Inc. v. N.J. Eyes, Inc., No. 1:08–CV–190, 2009 WL
73727, at *9 (S.D. Ohio Jan. 6, 2009) (noting that the defendants
“have [not] offered any evidence that their witnesses would be unable
or unwilling to provide testimony at a trial in this district”).
Defendant Rutland argues, without specificity, that “witnesses
[whom] Defendant Rutland anticipates calling who possess information
regarding the Agreement and the negotiations related to the same are
based in Florida and Mississippi.”

Rutland Motion, p. 7.

See also

id. at 9 (asserting generally that the “vast majority” of unidentified
individual witnesses are located in Florida).

WHIG contends that, of

the twenty-four witnesses identified by the parties in their Rule
26(a)(1) disclosures, only three reside in Ohio, while ten reside in
either Florida or Mississippi, i.e., within a 250-mile radius of
Pensacola, Florida.

WHIG Motion, pp. 4-5 (citing to a list of witness

names, the party disclosing that witness, and the location of each
witness, which is attached thereto as Exhibit C, pp. 1-2); WHIG Reply,
pp. 7-8.

WHIG therefore argues that this factor either favors

transfer or is neutral.

Id.

Plaintiff, however, points out that most

of the witnesses identified by WHIG are located in Mississippi and are
party witnesses and that only one of them, Wade Walters, is a thirdparty witness.

Plaintiff’s Opposition, p. 12.

18

According to

plaintiff, the only potential witness located in Florida is Joseph
Story, M.D., WHIG’s member/manager, who is a party witness.

Id.

The

remaining witnesses are non-party witnesses scattered throughout the
United States, e.g., Louisiana, Pennsylvania, North Carolina,
Colorado, Texas, and California.
attached to the WHIG Motion.

Id.

See also Exhibit C, pp. 1-2,

Conversely, Ryan Pojman and Scott

Raybuck, two non-party witnesses, are located in Ohio.

Id.

Plaintiff

goes on to point out that WHIG has provided no evidence that any
witness, party or non-party, would be unable or unwilling to provide
testimony in this district and has failed to provide any evidence
regarding each witness’s expected testimony and the importance of that
testimony.

Plaintiff’s Opposition, p. 11.

Plaintiff therefore argues

that defendants have failed to meet their evidentiary burden necessary
to establish non-party witness inconvenience.
Plaintiff’s arguments are well-taken.

Id. at 12.

Defendants, as the parties

seeking transfer, must do more than simply identify non-party
witnesses who do not live in Ohio.

See Smith, 578 F. Supp.2d at 963;

Slate Rock Constr. Co., 2011 WL 3841691, at *9; Pearle Vision, Inc.,
2009 WL 73727, at *9.

In the case presently before the Court,

defendants have not clearly specified the essential witnesses to be
called and have not provided a general statement of their testimony.
While WHIG submits a list summarizing witnesses disclosed by the
parties, as well as copies of the parties’ Rule 26(a)(1) disclosures,
it is not immediately clear to the Court which of these witnesses are
essential or the nature of their expected testimony.

19

See generally

Exhibit C, attached to the WHIG Motion.

Similarly, neither defendant

Rutland nor WHIG has offered any evidence that any of the third party
witnesses are unable or unwilling to provide testimony at a trial in
this district.

WHIG concedes “that [it] generally may be the rule” to

require affidavit or other evidence specifying the name and intended
testimony of relevant non-party witnesses, but nevertheless argues
that this requirement “is not strictly enforced” where, as here,
little to no discovery has yet taken place.

WHIG Reply, pp. 7-8

(citing GE Capital Franchise Fin. Corp. v. Cosentino, No. 08-CV-2025,
2009 U.S. Dist. LEXIS 53891 (W.D. N.Y. June 25, 2009)).

However, WHIG

relies on authority outside this circuit for this proposition,
ignoring case law from this circuit, which requires defendant to
provide evidentiary support in connection with this factor.

See,

e.g., Smith, 578 F. Supp.2d at 963; Slate Rock Constr. Co., 2011 WL
3841691, at *9; Pearle Vision, Inc., 2009 WL 73727, at *9.
While defendants have identified no non-party witnesses located
in Florida, plaintiff has named two non-party witnesses, Messrs.
Pojman and Raybuck, who are located in Ohio.
p. 12.

Plaintiff’s Opposition,

In addition, although many non-party witnesses are located

across the United States, it does not appear that travel to Ohio would
be materially more difficult for them than would their travel to
Florida.

Taking this record as a whole, consideration of this factor

weighs against transfer to the Northern District of Florida.
C.

Public Factors under Section 1404(a)

The Court must also consider the public interest when analyzing

20

the requests to transfer this action to the Northern District of
Florida.

See Atlantic Marine Const. Co. v. U.S. Dist. Court for W.

Dist. of Texas, __ U.S. __,

134 S. Ct. 568, 581 n.6 (2013).

interest factors may include the following:

Public

“the administrative

difficulties flowing from court congestion; the local interest in
having localized controversies decided at home; [and] the interest in
having the trial of a diversity case in a forum that is at home with
the law.”

Id. (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241

n.6 (1981) (internal quotation marks omitted)).
consider the enforceability of the judgment.

Courts also may

See, e.g., Slate Rock

Const. Co. v. Admiral Ins. Co., No. 2:10-CV-1031, 2011 WL 3841691, at
*9 (quoting Jumara v. State Farm Ins. Co., 55 F.3d 873, 878 (3d Cir.
1995)).
It is undisputed that neither forum has any advantage over the
other as to the enforceability of the judgment or relative court
congestion.

Instead, the parties disagree as to which forum has a

greater local interest in the dispute.

Plaintiff takes the position

that, even though the issues presented in this case are not contained
in any one locale, Ohio has a greater interest in the resolution of
the dispute than does Florida. Plaintiff’s Opposition, p. 13.
Defendant Rutland disagrees, again arguing that this action has very
little relation to Ohio.

Rutland Motion, pp. 7-8.

WHIG, however,

concedes that both forums have an interest in this action.
Motion, p. 11; WHIG Reply, pp. 8-9.

WHIG

This Court agrees and has found

no evidence or argument that either forum has a “materially greater

21

interest in the determination of the case[.]”

Slate Rock Constr.,

2011 WL 3841691, at *10.
The parties also disagree whether the familiarity of the trial
judge with the applicable law favors Ohio or Florida.

Both defendant

Rutland and WHIG argue that Florida law governs the dispute and that a
judge in Florida would therefore be more familiar with the applicable
law.

Rutland Motion, p. 8; WHIG Motion, pp. 11-12; WHIG Reply, p. 9.

Plaintiff concedes that Florida law governs plaintiff’s claim of
breach of the Distributor Consultant Agreement (Count I), but argues
that Florida law “does not likely govern all of Plaintiff’s claims.”
Plaintiff’s Opposition, pp. 14-15.

Plaintiff also argues that a

court’s familiarity with applicable law is a minimal factor where
there is no indication that the applicable law is unique, novel, or
complex.

Id. at 14 (citing Midwest Motor Supply v. Kimball, 761 F.

Supp. 1316, 1319 (S.D. Ohio 1991)).

This Court agrees.

Where an action “does not appear to present any novel or complex”
or “unique” issues under state law, this Court has previously
determined that one court’s familiarity with the applicable law,
standing alone, should not “strongly militate” in favor of transfer.
Midwest Motor Supply, 761 F. Supp. at 1319 (concluding that Ohio
contract law is not so unique as to strongly militate against transfer
to another forum).

See also Cincinnati Ins. Co. v. O’Leary Paint Co.,

676 F. Supp.2d 623, 638 (W.D. Mich. 2009) (stating that “in the
absence of any legal issues which seem complex, the necessity for
either court to apply another State’s law would not be a weighty

22

factor anyway”); Antioch Co. v. Pioneer Photo Albums, Inc., No. C-399-270, 2000 WL 988249, at *5 (S.D. Ohio Mar. 13, 2000) (concluding
that this Court as well as the Central District of California “are
equally able to address each of Plaintiff’s claims” where the Ohio
statute is a codification of federal law and where the breach of
contract claim did not appear to raise novel or complex issues under
Ohio law).

WHIG nevertheless insists that, “while this case may not

involve complex and unique aspects of Florida law, this factor still
weighs in favor of transfer.”

WHIG Reply, p. 9 (citing GE Capital

Franchise Fin. Corp. v. Cosentino, No. 08-CV-2025, 2009 U.S. Dist.
LEXIS 53891 (W.D. N.Y. June 25, 2009)).

WHIG’s reliance on authority

outside this circuit, however, does not persuade this Court that this
factor strongly favors transfer.

See, e.g., Midwest Motor Supply, 761

F. Supp. at 1319; Cincinnati Ins. Co., 676 F. Supp.2d at 638; Antioch
Co., 2000 WL 988249, at *5.
Accordingly, considering the record as a whole, the balance of
factors does not weigh strongly in favor of transfer to the Northern
District of Florida.

The permissive forum-selection clause does not

outweigh the substantial weight accorded plaintiff’s chosen forum,
i.e., Ohio, where plaintiff resides.

Moreover, as discussed supra,

although the convenience of the parties favors transfer, the
convenience of non-party witnesses, one of the most important
considerations, weighs against transfer.

Finally, the applicability

of Florida law does not militate strongly in favor of transfer.

Under

all these circumstances, then, the Court cannot say that defendants

23

have met their heavy burden of showing that the balance of factors
weighs strongly in favor of transferring this action to the Northern
District of Florida.
WHEREUPON, Defendant Jason Rutland’s Motion to Transfer Venue,
ECF No. 30, and the Motion to Transfer Venue of Defendants Whig
Enterprises, LLC, RXPRO of Mississippi, Inc. and Mitchell Chad
Barrett, ECF No. 31, are DENIED.

January 29, 2016

s/Norah McCann King_______
Norah McCann King
United States Magistrate Judge

24