TURNER CONSTRUCTION COMPANY v. INDEPENDENCE EXCAVATING, INC.
MEMORANDUM OPINION denying 23 Response to Order to Show Cause filed by TURNER CONSTRUCTION COMPANY; the Court finds that the parties have not met their burden to show cause why this matter should not be transferred to the U.S. District Court for the Northern District of West Virginia pursuant to 28 U.S.C. § 1404(a); An appropriate Order transferring this matter to the Clarksburg Division of that District follows. Signed by Judge Nora Barry Fischer on 4/11/2016. (bdk)[Transferred from Pennsylvania Western on 4/12/2016.]
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TURNER CONSTRUCTION COMPANY,
INDEPENDENCE EXCAVATING, INC.,
Civil Action No. 16-337
Judge Nora Barry Fischer
This multi-million dollar lawsuit involves disputes between a general contractor, Plaintiff
Turner Construction Company, (“Turner”), and one of its subcontractors, Defendant
Independence Excavating, Inc., (“Independence”), arising from excavation work at the Federal
Bureau of Investigation, (“FBI”), Biometric Technology Center New Office Building and
Central Utilities Plant in Clarksburg, West Virginia – a building which is situated approximately
8 miles from the Federal Courthouse located in Clarksburg.1 (Docket Nos. 10, 20). Neither
company has its headquarters in Pittsburgh, as Turner is based in New York City and
Independence’s operations are run from Cleveland, Ohio. (Id.). But, both parties maintain
offices here. (Docket No. 23). Turner initially filed this case in the U.S. District Court for the
District of Columbia but the matter was transferred to this District upon the “consent” of the
parties and the entry of an Order by the Court. (Docket Nos. 1, 13). Upon the transfer, this
Court directed the parties to show cause why this matter should not be transferred to the U.S.
“It is well settled that the Court may take judicial notice of geography and other Courts have used Google
Maps to estimate distances between two established locations.” Armstrong Development Properties, Inc. v. Ellison,
2014 WL 1452322 at *n.3 (W.D. Pa. Apr. 14, 2014).
District Court for the Northern District of West Virginia. (Docket No. 17). Upon careful
consideration of the parties’ Joint Response to Show Cause Order, (Docket No. 23), and after
evaluating the relevant private and public factors under Jumara v. State Farm Insurance Co., 55
F.3d 873, 879 (3d Cir. 1995), this Court will exercise its broad discretion and transfer this matter
to the U.S. District Court for the Northern District of West Virginia pursuant to 28 U.S.C. §
At the outset, the Court notes that it believes that the parties’ Joint Response is deficient
in several respects. (See Docket No. 23). Among them, the parties have: not included any
evaluation of the Counterclaims that have now been asserted by Independence; provided only a
cursory assertion that the alleged defective performance under the subcontract which necessarily
took place at the site in Clarksburg is not relevant to the transfer evaluation, despite the fact that
these issues are pled in the Amended Complaint and Counterclaims; and, did not present any
evaluation of the potential choice-of-law issues that may or may not be at issue throughout the
course of this litigation. (Id.).
Most critically, however, is that the parties, through their counsel, failed to disclose to
this Court all of the other lawsuits arising out of this particular construction project that they are
involved in and are pending in the U.S. District Court for the Northern District of West
Virginia.2 See Carnegie Mellon Univ. v. Marvell Tech. Grp., Ltd., Civ. A. No. 09-290, 2012 WL
5409793, at *2 (W.D. Pa. Nov. 6, 2012) (citing PA. RULES OF PROF’L CONDUCT R. 3.3 (2012))
(“Counsel has a duty of candor to the Court pursuant to Rule 3.3 of the Pennsylvania Rules of
Professional Conduct.”). To this end, based on a review of the Northern District of West
Virginia docket, it appears that both of the instant parties are defendants in a personal injury case
The Court takes judicial notice of the docket reports and existence of these pending lawsuits. See Steadfast
Ins. Co. v. Environmental Barrier Co., LLC, 2016 WL 878122, at *2, n.2 (W.D. Pa. Mar. 8, 2016) (McVerry, J.)
(citing FED. R. EVID. 201; Schuylkill Health Sys. v. Cardinal Health, Inc., 2014 WL 3805466, at *1 (E.D. Pa. Mar.
that was removed to that Court in September of 2015. See Newman v. Turner Const. Co. and
Independence Excavating, Civ. A. No. 15-155-IMK (N.D. W.V. removed 9/4/15). Turner is also
involved in three separate lawsuits with its subcontractors on the project that are pending in that
District. See e.g., Turner Const. Co. v. American Safety Cas. Ins. Co., Civ. A. No. 15-83-FPS
(N.D. W.V. filed 5/15/15) (disputes as to millwork subcontract and performance bond); United
States of America, for the use and benefit of Modern Mosaic Ltd., v. Turner Const. Co. et al.,
Civ. A. No. 16-12-FPS (N.D. W.V. filed 1/28/16) (dispute with labor, materials and equipment
subcontractor); Turner Const. Co. v. Wyatt Inc., Civ. A. No. 16-58-IMK (N.D. W.V. filed
4/6/16) (dispute with drywall subcontractor).
Indeed, Turner initiated the lawsuit against
Pittsburgh-based Wyatt, Inc. in the Northern District of West Virginia only a few days ago, i.e.,
Wednesday, April 6, 2016.
So, the question now becomes, why would the litigation over the
excavation subcontract and performance thereunder take place in Pittsburgh, Pennsylvania?
This Court ordered the parties to show cause why the matter should not be transferred
under the discretionary transfer statute, 28 U.S.C. § 1404(a), which provides that “[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 where it might have been brought or to any district or
division to which all parties have consented.” 28 U.S.C. § 1404(a). It is well established that this
Court retains “broad discretion” to transfer venue when justice so requires after weighing the
private and public factors set forth in Jumara v. State Farm Ins. Co., 55 F.3d 873, 883 (3d Cir.
1995). See also Ogundoju v. Attorney General of U.S., 390 F. App’x. 134, 137 n.2 (3d Cir.
2010). The relevant private interests include: (1) each party’s forum preference; (2) where the
claims arose; (3) the convenience of the parties; (4) the convenience of the witnesses; and (5) the
location of the books and records. Jumara, 55 F.3d at 879. The cited public interests include: (1)
the enforceability of the judgment; (2) practical considerations of expediting trial and reducing
costs; (3) administrative difficulties in the two fora due to court congestion; (4) the local interest
in deciding local controversies; (5) public policies of the fora; and (6) the familiarity of the trial
judge with the applicable state law. Id.
Returning to their Joint Response, the Court does not quarrel with the parties’ recitation
of the applicable legal standards, as they have appropriately set forth the public and private
Jumara factors, in a manner that is consistent with this Court’s many decisions evaluating
discretionary transfers of cases under § 1404(a). See e.g., Northgate Processing, Inc. v. Spirongo
Slag McDonald, L.L.C., 2015 WL 7308675 (W.D. Pa. Nov. 19, 2015); Carpenters Combined
Funds, Inc. ex rel. Klein v. Kelly Systems, Inc., 2015 WL 3457872 (W.D. Pa. May 29, 2015);
Armstrong Development Properties, Inc. v. Ellison, 2014 WL 1452322 (W.D. Pa. Apr. 14,
2014). Rather, the Court takes issue with the application of those factors to the entirety of the
circumstances surrounding this matter, including the facts noted above, and believes that an
appropriate weighing of the relevant factors compels that the case be transferred to the Northern
District of West Virginia, which is a much more appropriate forum for this case.
With respect to the private Jumara factors, the parties suggest that the following
considerations support permitting them to litigate in this District: their respective forum
preferences, (first and second factors); where the claim arose (third factor); and the convenience
of the parties (fourth factor). (Docket No. 23). They contend that the other two factors are
neutral because no witnesses will be unavailable if the matter is transferred, (fifth factor) and the
books and records can be produced electronically in any other District, (sixth factor). (Id.). The
Court does not feel the need to further address those matters that they have identified as neutral
in the analysis of the private factors. (Id.). However, this Court disagrees that the factors the
parties have identified support venue remaining here.
This case was initiated by Turner in the District of Columbia and the forum preferences
of the parties must be evaluated in that context. (Docket No. 1). Hence, Turner’s choice of
forum was simply not the Western District of Pennsylvania, as the parties now suggest. (Docket
No. 23). Likewise, Independence moved to have the case transferred to either the Northern
District of Virginia or to this Court. (Id.). Given their initial positions, the parties’ subsequent
agreement that they would prefer to litigate here as opposed to the Northern District of West
Virginia is entitled to little weight. (Docket No. 13). Their initial venue preferences to litigate in
other Districts significantly undermine their present claims that litigating in this particular venue
is warranted because it is closer to their respective Pittsburgh offices. Of course, the parties both
actively pursued this construction project in Clarksburg and are litigating other cases arising
from the project there, further supporting the transfer. See Northgate, 2015 WL 7308675, at *34 (forum preference is not lightly disturbed when facts showed that the parties actively sought to
do business in the transferee forum). The parties have also conducted no evaluation of how
litigating this case in Pittsburgh would affect third party witnesses, such as any FBI personnel
that may remain at the facility in the Clarksburg area.3 (See Docket No. 23). Hence, the first,
second and fourth factors all favor the transfer.
As to the second private factor, where the claim arose, at most, the circumstances result
in a finding that this factor is neutral. See Jumara, 55 F.3d at 879. Neither party has suggested
that the operative agreements contain a forum selection clause indicating that they agreed to
litigate here or a choice of law clause demonstrating that Pennsylvania law should apply to their
The Court briefly notes that at least one of the third parties mentioned in the parties’ pleadings has an office
in the Clarksburg area as Thrasher Engineering is based in nearby Bridgeport, W.Va. See Trasher Engineering,
available at: http://thrashereng.com/contact/ (last visited 4/8/16).
breach of contract claims. (Docket No. 23). As both parties have asserted claims that the other
breached the subcontract, the Court must weigh the place of contracting, the place of
performance and the place of the breach as part of its evaluation. See Northgate, 2015 WL
7308675, at *3-4; see also Air Liquide Indus. U.S. LP v. Butterball, LLC, Civ. A. No. 12-6390,
2013 WL 3345537, at *5 (E.D. Pa. July 3, 2013) (quoting CoActiv Capital Partners, Inc. v.
Feathers, No. 08–5506, 2009 WL 1911673, at *5 (E.D. Pa. July 1, 2009)) (“In determining
where the claim arose in a breach of contract case, a court looks to ‘the place of contract
negotiation/execution, performance, or breach.’”). The parties’ disputes include whether the
correct type of soil was installed prior to the construction of the building and which party was
supposed to test the soil before it was installed. (Docket Nos. 10, 20). They likewise contest
whether Independence adequately performed under the contract or not. (Id.). There is also a
claim that Turner failed to pay Independence for remediation work that was completed by
Independence “under protest.” (Docket No. 20).
The facts that some of the negotiations
surrounding the parties’ contract and certain aspects of the administration of same took place in
Pittsburgh are certainly provided some weight. But, the Court cannot conclude that a majority of
those facts clearly outweigh the appropriateness of Clarksburg as a venue because it is also the
location of both the place of performance and the alleged breach. See Air Liquide, 2013 WL
3345527, at *5. Therefore, this third private factor is, at most, neutral.
Overall, the Court holds that the first, second and fourth private Jumara factors are
supportive of a transfer to the federal court in Clarksburg, while the other factors are neutral, the
results of which strongly favor of the transfer. See Jumara, 55 F.3d at 879–80. The Court
reaches a similar result when it looks to the public Jumara factors.
In this Court’s opinion, the most relevant public factor is that local courts have inherent
interests in presiding over local controversies.
See Armstrong, 2014 WL 1452322 at *7.
Further, lawsuits relating to the performance of construction projects are localized matters that
should be tried within the District where the site is located, as is the case with the four other
lawsuits pending in the Northern District of West Virginia arising from this particular project.
Other courts have found the location of the construction project to be a significant factor in
weighing the public Jumara factors.
See e.g., Asphalt Paving Systems, Inc. v. General
Combustion Corp., 2015 WL 167378, at *8 (D. N.J. Jan. 13, 2015) (construction project was
located in Florida, among the factors making transfer to District within Florida appropriate);
Ferratex, Inc. v. U.S. Sewer & Drain, Inc., 121 F. Supp. 3d 432, 442-43 (D. N.J. Aug. 4, 2015)
(construction project in New Jersey did not warrant transfer to Philadelphia); Al-Ghena Intern.
Corp. v. Radwan, 957 F. Supp. 2d 511, 526-27 (D. N.J. Jul. 16, 2013) (case transferred to Florida
district where failed construction project was located); Wheeling-Pittsburgh Steel Corp. v. U.S.
E.P.A., 1999 WL 111459 (E.D. Pa. Mar. 3, 1999) (transferring case to Northern District of West
Virginia, location of the alleged environmental violations at Plaintiff’s site there).
Without citing any supporting authority, the parties surmise that because this case
implicates the construction of a federal building on federal land, it somehow undermines a
finding that this is a local controversy. (See Docket No. 23). This Court disagrees as the federal
taxpayers in the Clarksburg area certainly have a right to know how the private contractors and
subcontractors that are ultimately compensated (or not) with taxpayer funds performed on the
construction project in their District. In contrast, the federal taxpayers here in Pittsburgh would
have little, if any, interest in the parties’ disputes surrounding this building that is more than 100
miles away in West Virginia. Again, this building is around 8 miles away from the Clarksburg
Federal Courthouse. Thus, the parties should have expected that any disputes arising from their
participation in the construction project would be litigated and tried there. See Northgate, 2015
WL 7308675, at *4.
Additionally, the Court recognizes that the interests of judicial economy would be
promoted if all of the lawsuits generated by the construction of this building were handled in the
same District. See 28 U.S.C. § 1404(a); cf. U.S. ex rel. Frank M. Sheesley Co. v. St. Paul Fire &
Marine Ins. Co., 239 F.R.D. 404, 415 (W.D. Pa. 2006) (“Judicial economy is not a principle that
operates exclusively to the courts’ advantage. Litigants also benefit when the consolidation of
related actions results in the most expedited determination of debts and liabilities.”).
Construction litigation of this type usually involves complex multi-layered agreements and this
appears to be no exception, with a general contract between the United States and Turner and its
numerous subcontracts, each of which have their own terms and conditions but also often
incorporate certain of the terms and conditions of the general contract. (See Docket Nos. 10, 20).
In fact, the parties have presented only portions of the subcontract and specifications as
attachments to their filings. (Docket No. 20 at ¶¶ 6, 9). As there are undoubtedly common
issues pertaining to these agreements, judicial economy is promoted if the same Judge or Judges
are able to handle all of these subcontractor cases.4 Cf. FED. R. CIV. P. 42(a) (“If actions before
the court involve a common question of law or fact, the court may: (1) join for hearing or trial
any or all matters at issue in the actions; (2) consolidate the actions; or (3) issue any other orders
to avoid unnecessary cost or delay.”).
Further, despite this being a breach of contract action, the parties have made no effort to
demonstrate that Pennsylvania law would apply to this case such that this forum appears to have
little connection to this dispute. (Docket No. 23). The parties likewise admit that this District is
more congested than the Northern District of West Virginia, which is yet another factor favoring
transfer. (Id. at 8). Indeed, this Court has also been operating with three empty District Judge
seats for the past three years while the Northern District of West Virginia has a full complement
This Court is well familiar with the quality of the Judges of the Northern District and believes that they are
excellent jurists and more than capable of handling this lawsuit.
See Federal Court Management Statistics, June 2015, available at:
visited 4/11/16). The remaining public factors are neutral and require no further evaluation.
However, like the private factors, this Court’s weighing of all of the facts and circumstances
under the public Jumara factors also supports the transfer.
For these reasons, the Court finds that the parties have not met their burden to show cause
why this matter should not be transferred to the U.S. District Court for the Northern District of
West Virginia pursuant to 28 U.S.C. § 1404(a). An appropriate Order transferring this matter to
the Clarksburg Division of that District follows.
s/Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Dated: April 11, 2016
cc/ecf: All counsel of record
Clerk of Court
U.S. District Court for the Northern District of West Virginia, Clarksburg Division
The Court recognizes that judicial nominations are pending in this District. However, it is simply unknown
when and if those will be acted on by the Senate.
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