Vista Communications Group LLC v. Highline Capital Corp.

Filing 34

OPINION AND ORDER granting 11 Motion to Change Venue; denying 20 Motion to Remand to State Court and 24 Motion to Dismiss as MOOT. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/24/2017. (jlk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

VISTA COMMUNICATIONS GROUP
LLC D/B/A VISTA ADVERTISING
GROUP, LLC,
Plaintiff,

Civil Action 2:16-cv-01037
Magistrate Judge Elizabeth P. Deavers

v.
HIGHLINE CAPITAL CORP.,
Defendant.

OPINION AND ORDER
This matter is before the Court for consideration of Defendant’s Motion to Transfer
Venue to the United States District Court for the Middle District of Florida (Orlando Division),
(ECF No. 11.), Plaintiff’s Memorandum in Opposition (ECF No. 19), and Defendant’s Reply in
Support.

(ECF No. 22.)

For the reasons that follow, Defendant’s Motion to Transfer is

GRANTED. As a result, Plaintiff’s Motion to Remand to State Court (ECF No. 20) and
Defendant’s Motion to Dismiss (ECF No. 24) are DENIED as moot.
I.

BACKGROUND

This current dispute began on June 15, 2007, when the Court of Common Pleas, Franklin
County, Ohio entered an Order Granting in favor of Plaintiff, Highline Capital Corp.
(“Highline”), its Motion for Default Judgment against Andrew Robert Williams (“Williams”) for
the aggregate amount of $1,167,180.60 plus interest, attorneys’ fees, and costs. (Defendant’s
Motion to Transfer Venue (“Def.’s Mot. to Transfer”) at 4, ECF No. 11.) Williams is a resident
of Brevard County, Florida, located within the jurisdiction of the Middle District of Florida.

(Order Scheduling Foreclosure Sale of Limited Liability Company Membership Interest, ECF
No. 24-1 PAGEID #: 297.) In March 2007, Vista was organized under Ohio law as an Ohio
limited liability company. (Plaintiff’s Motion in Opposition to Defendant’s Motion for Transfer
of Venue (“Pl.’s Opp.”) at 3 ¶ 6, ECF No. 19.) Florida’s Eighteenth Judicial Circuit found that
Williams was Vista’s only member. (ECF No. 1-3 ¶ 9.) Highline then filed a judgment lien
against Williams in the Franklin County Court of Common Pleas. (Pl.’s Opp. at 4 ¶ 10.) In
December of 2015, Highline issued a garnishment to Chase Bank of the account(s) of Williams.
(Id. at 4 ¶ 11.) As a result, funds in which Vista asserted an interest were attached. (Id. at 4 ¶
12.) Vista then filed a motion to intervene. (Id. at 4 ¶ 13.) After Highline and Vista mediated a
solution, Highline transferred the Ohio judgment against Williams to Florida, where Vista owns
the house in which Williams lives. Upon the transfer, Highline filed an action in Florida seeking
a charging order under Section 605.0503 of the Florida Revised Code to foreclose on Williams’
membership interest in and to Vista.
Between May and September 2016, the Florida Court rendered a series of decisions
charging Williams’ membership interest and ultimately selling the membership interest at a
foreclosure sale, pursuant to Florida law. (Def’s Mot. to Transfer at 3.) On July 26, 2016, the
Florida State Court entered an order scheduling a foreclosure sale for September 14, 2016. (Id.
at 5.) Williams unsuccessfully contested the July 26 order and then attempted to protect his
interest in Vista by conveying his membership interest to his fiancée. (Id.) The Florida Court
deemed Williams’ transfer invalid. (Id.) Williams filed a notice of appeal to Florida’s Fifth
District Court of Appeals, which was dismissed on October 5, 2016. (Id. at 6.)
In September 2016, Highline purchased the entire membership interest in Vista, and the
Florida State Court issued a Certificate of Title. (Id. at 3) Highline looks to § 605.0503(5)(a)

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and asserts that according to Florida law, the Certificate of Title conveyed to Highline “the
member’s entire limited liability company interest, not merely the rights of the transferee.” (Id.
at 7.) Moreover, according to Highline, the amended articles of organizations on file with the
Ohio Secretary of State shows that Highline is the sole member of Vista. (Id.) Further, Highline
contends that the Florida State Court action remains pending. (Id.)
Vista filed a complaint against Highline in the Common Pleas Court of Franklin County,
Ohio seeking declaratory judgment against Highline “as to Highline’s Remedy.” (Pl.’s Opp. at
2.) Highline has since removed the matter to this Court. (Id.) On November 3, 2016, Highline
filed the Motion to Transfer Venue to the Middle District of Florida.
Highline contends that the “central question is who controls the membership interest of
Vista,” (Def.’s Mot. to Transfer at 3.), and as a result, the Court should transfer this case
pursuant to 28 U.S.C. §1404, to the Middle District of Florida. Highline cites several reasons in
support of the Motion including the location of events relevant to Plaintiff’s Complaint; in the
interest of justice; and for the convenience of the parties as Williams, his fiancée, and Williams’
attorneys all live in the Middle District of Florida. Vista, and perhaps more specifically,
Williams disagree, asserting that this litigation relates “solely to and seeks a determination of the
rights of Vista.” (Pl.’s Opp. at 1.) Moreover, Vista contends that “[t]he only relationship to
Florida is that Williams is now a resident of the State of Florida and that Highline (improperly)
seeks to apply the Florida LLC Law to an Ohio limited liability company in order to exercise
dominion and control over Vista’s ownership, management, operations and its assets.” (Id. at 6)
II.

APPLICABLE LAW

Under 28 U.S.C. § 1404(a), “[f]or the convenience of parties and witnesses, in the
interest of justice, a district court may transfer any civil action to any other district or division

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where it might have been brought.” The threshold issue under § 1404(a) is whether the action
could be brought in the transferee court. Kay v. Nat’l City Mortg. Co., 494 F. Supp. 2d 845, 849
(S.D. Ohio 2007). If a case could be brought in the court “the issue becomes whether transfer is
justified under the balance of the language of § 1404(a).” Id. In balancing convenience, the
Court must consider a number of factors such as “the private interests of the parties, including
their convenience and the convenience of potential witnesses, as well as other public-interest
concerns, such as systemic integrity and fairness, which come under the rubric of ‘interests of
justice.’” Moore v. Rohm & Haas Co., 446 F.3d 643, 647 n.1 (6th Cir. 2006) (quoting Moses v.
Bus. Card Exp., Inc., 929 F.2d 1131, 1137 (6th Cir. 1991)). Relevant factors to consider include:
the practical problem of trying the case most expeditiously and inexpensively; the interests of the
justice; the plaintiff’s choice of forum; the defendant’s preference; whether the claim arose
elsewhere; the enforceability of the judgment; and the local interest in deciding local
controversies at home. Reese v. CNH Am. LLC, 574 F.3d 315, 320 (6th Cir. 2009); Slate Rock
Constr., Co. v. Admiral Ins. Co., No. 2:10-CV-1031, 2011 U.S. Dist. LEXIS 97122, at *22 (S.D.
Ohio Aug. 30, 2011) (quoting Jumara v. State Farm Ins. Co., 55 F. 3d 873, 879-80 (3d Cir.
1995)).
The moving party bears the burden to establish a need for transfer. Kay, 494 F. Supp. 2d
at 849–50 (citing Jamhour v. Scottsdale Ins. Co., 211 F. Supp. 2d 941, 945 (S.D. Ohio 2002)).
Transfer pursuant to § 1404 must be “to a more convenient forum, not to a forum likely to prove
equally convenient or inconvenient.” Van Dusen v. Barrack, 376 U.S. 612, 645–46 (1964); see
also Shanehchian v. Macy's, Inc., 251 F.R.D. 287, 292 (S.D. Ohio 2008) (“[Section] 1404 does
not allow . . . for transfer if that transfer would only shift the inconvenience from one party to
another.”).

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“Ultimately . . . the decision whether to transfer venue under § 1404(a) is committed to
the sound discretion of the trial court.” Levy v. Cain, Watters & Assocs., P.L.L.C., No. 2:09-cv723, 2010 U.S. Dist. LEXIS 9537, at *24 (S.D. Ohio Jan. 15, 2010); Reese, 574 F.3d at 320
(“[a]s the permissive language of the transfer statute suggests, district courts have ‘broad
discretion’ to determine when party ‘convenience’ or ‘the interest of justice’ make a transfer
appropriate.”).

Section 1404(a) promotes “an individualized case by case consideration of

convenience and fairness.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (internal
quotation omitted).
III.

ANALYSIS

Neither party disputes that this case could have been brought in the Middle District of
Florida. Moreover Highline does not suggest that venue in this Court is improper. Rather, the
parties have set forth a variety of competing interests and concerns regarding the potential
transfer of this case. As discussed below, the Court finds that Defendant has satisfied its burden
of showing that the Middle District of Florida is the more appropriate forum.
Although Vista has chosen to bring suit in the Southern District of Ohio, a plaintiff’s
preference is not dispositive. Commerzbank AG v. U.S. Bank N.A., No. 1:15-cv-818, 2016 U.S.
Dist. LEXIS 77157, at *6 (S.D. Ohio June 14, 2016) (granting motion to transfer venue).
Highline does not suggest that venue in this Court is improper. Instead, it argues that this Court
is not the most convenient forum for resolution of this matter. The Court agrees. See Kay, 494
F. Supp. 2d at 849 (“[e]ven in cases where venue is proper, a court may entertain a motion to
transfer if there exists a better forum for the resolution of the dispute between the parties.”)
(quoting SKY Tech. Partners v. Midwest Research Inst., 125 F.Supp.2d 286, 290–91 (S.D. Ohio
2000)). As Williams is a Florida resident and resides in the Middle District of Florida along with

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his fiancée (one of the only potential witnesses), and his personal counsel, transferring venue to
the Middle District of Florida will not inconvenience Williams. Moreover, Highline’s primary
counsel also resides in Florida.
Highline argues that the procedural posture of this action and the related Florida
proceeding evidence that the dispute will be tried more expeditiously and inexpensively in
Florida. Vista on the other hand, does not specifically argue against the § 1404 factors, but
instead contends that the Florida court erred in two ways: by not applying the internal affairs
doctrine and by applying the Florida Charging Provision to the aforementioned proceeding. (Id.
at 9.) Further, Vista acknowledges that this matter, the underlying Declaratory Judgment action,
“was necessitated by Highline and its Florida counsel knowingly filing pleadings in Florida (and
now in Ohio) that improperly assert that the Florida LLC law is applicable to an Ohio limited
liability company.” (Id.) Vista’s point illustrates what Highline continuously points out in the
Motion to Transfer Venue—that this matter is a dispute about the Florida court’s decisions and
therefore should be transferred to Florida.
In the interests of trying the case most expeditiously and inexpensively and, additionally,
when considering the enforceability of the judgment, the parties’ dispute favors being resolved in
the Middle District of Florida. As both parties acknowledge, this current dispute hinges on
decisions rendered by the Florida state court. As a result, it follows that the case should
ultimately be resolved in Florida. Highline requests that this Court transfer venue to the Middle
District of Florida emphasizing that Williams, his fiancée, Williams’ primary attorney, and
Highline’s attorney all reside there. This Court agrees with Highline and finds that Highline has
satisfied its burden in showing that there is a need to transfer this case to the Middle District of
Florida.

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IV.

CONCLUSION

Based on the foregoing, Defendant’s Motion to Transfer Venue to the Middle District of
Florida is hereby GRANTED. The Clerk is DIRECTED to transfer this case to the Middle
District of Florida. Plaintiff’s Motion to Remand to State Court and Defendant’s Motion to
Dismiss are DENIED as moot.
IT IS SO ORDERED.
Date: April 24, 2017

/s/ Elizabeth A. Preston Deavers
ELIZABETH A. PRESTON DEAVERS
UNITED STATES MAGISTRATE JUDGE

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