United States District Court, M.D. Florida, Jacksonville Division
TIMOTHY J. CORRIGAN Judge.
breach of contract dispute is before the Court on Defendant
Western Surety Company's Motion to Dismiss, Transfer, or
Stay and Order to Arbitration (Doc. 8), to which Plaintiff
Harry Pepper & Associates, Inc. (“HPA”) has
filed a response (Doc. 12).
of a restoration project for the rocket launch site at the
Stennis Space Center in Hancock County Mississippi, NASA
awarded a contract to Jacksonville-based construction company
HPA. Pursuant to a January 2014 task order, HPA entered into
a subcontract with PASI of LA, Inc. (the
“Subcontract”) to perform blasting and painting
work on a structure at Stennis called the B2 Test Stand.
Western, as surety, issued Subcontract Performance Bond No.
58709779 (the “Bond”), which named HPA as
“Obligee (Contractor)” and PASI as
“Principal (Subcontractor).” (See Doc.
1-1, an excerpt of the Bond).
work at the site had begun, NASA allegedly became aware that
PASI had failed to comply with its obligations under the
Subcontract, specifically by failing to properly abate
lead-based paint, and shut down all work on the B2 Test
Stand. (Doc. 1 ¶¶ 16-23). As a result, in February
2015, HPA terminated the Subcontract with PASI for default,
though PASI contests that it was in default and claims the
termination was wrongful. (Id. ¶ 30).
demanded that Western undertake performance of its Bond
obligations, which include remedying the default, completing
the Subcontract, obtaining new contractors, paying HPA, or
denying liability. (Doc. 1-1 at 3). In March 2015, a Western
representative visited the site at Stennis and met with HPA
representatives regarding PASI's alleged default. (Doc. 1
¶ 36; Doc. 8 at 3). Western allegedly notified HPA that
it was proceeding with a bid process for replacement
contractors, and HPA obtained bids from alternate
subcontractors and alleges that it submitted those proposals
to Western. (Doc. 1 ¶¶ 50, 64-65). Despite the
parties' actions, replacement contractors were not hired,
and in October 2015, Western wrote to HPA that it disputes
coverage and liability for the damages arising out of the
default. (Id. ¶ 67).
confluence of events has spawned numerous legal actions. In
August 2015, HPA filed a demand for arbitration against PASI,
and the parties are arbitrating their dispute in Hancock
County, Mississippi. (Doc. 8-1). In November 2015, PASI filed a
lawsuit against HPA and its Payment Bond Surety, Travelers
Casualty & Surety Company of America, in the U.S.
District Court for the Southern District of Mississippi,
Southern Division (Doc. 8-5); the court stayed the case in
the interest of judicial economy pending the outcome of
arbitration (Doc. 8-7). Finally, on May 27, 2016, HPA filed
this lawsuit against Western, alleging two counts for breach
of contract (Doc. 1). Now, Western contends that venue here is
improper and thus argues that the Court should dismiss or
transfer the case, or stay the case and order the parties to
arbitrate the dispute. (Doc. 8). HPA opposes the motion on
the grounds that venue is proper here, as the Bond covers
HPA, a Jacksonville-based company, and the parties
corresponded to and from Florida in the course of discussing
their obligations under the Bond. (Doc. 12).
STANDARD OF REVIEW
motion to transfer venue is governed by 28 U.S.C. §
1404(a). Section 1404(a) is the statutory codification of the
common law doctrine of forum non conveniens. See Tampa
Bay Storm v. Arena Football League, Inc., 932 F.Supp.
281, 282 (M.D. Fla. 1996). The section states: “For 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.” 28 U.S.C. § 1404(a).
§ 1404(a), a district court may transfer any civil
action to any district where it could have been brought for:
(1) the convenience of the parties; (2) the convenience of
the witnesses; and (3) the interests of justice. See
Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260
(11th Cir. 1996). The Eleventh Circuit has determined that a
court should be somewhat restrictive in transferring actions,
stating that “[t]he plaintiff's choice of forum
should not be disturbed unless the movant can show that it is
clearly outweighed by other considerations.” See
id. (quoting Howell v. Tanner, 650 F.2d 610,
616 (5th Cir. Unit B 1981), cert. denied, 456 U.S.
918 (1982) (internal quotations omitted)). The movant has the
burden of persuading the trial court that the transfer is
appropriate and should be granted. See id. In
considering whether to transfer, the Court must consider: the
plaintiff's initial choice of forum, convenience of the
parties and witnesses, relative ease of access to sources of
proof, availability of compulsory process for witnesses,
location of relative documents, financial ability to bear the
cost of the change, and all other practical problems that
make trial of the case easy, expeditious, and inexpensive.
See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508
Jurisdiction in the Southern District of Mississippi
does not dispute that the matter could have been brought in
the Southern District of Mississippi; it merely argues that
its chosen venue is proper and transfer is unwarranted. (Doc.
12 at 1-6). Based on the allegations of HPA's complaint,
which show that the vast majority of events giving rise to
HPA's cause of action occurred in Mississippi, the case
could have been brought in Mississippi as well as in Florida.