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FCCI Insurance Co. v. Mountain Reclamation & Construction, LLC

United States District Court, M.D. Florida, Tampa Division

December 20, 2017

FCCI INSURANCE COMPANY, Plaintiff,
v.
MOUNTAIN RECLAMATION & CONSTRUCTION, LLC, et al., Defendants.

          ORDER

          STEVEN D. MERRYDAY UNITED STATES DISTRICT JUDGE.

         FCCI Insurance Company sues (Doc. 1) fifteen contractors for breach of an indemnity agreement. The Commonwealths of Kentucky and Virginia contracted with the defendants to “stabilize” or to “rehabilitate” several defunct coal mines. (Doc. 1-2) Because the commonwealths work only with a bonded contractor, FCCI agreed to guarantee the defendants' satisfaction of the Virginia and Kentucky contracts, and the defendants agreed to indemnify FCCI if a commonwealth claimed against an FCCI bond. FCCI paid, but the defendants allegedly failed to indemnify FCCI for, at least $227, 718.89 in claims. The indemnity agreement provides that an action for breach of the indemnity agreement “shall be brought in a court of competent jurisdiction in Sarasota County, Florida.” (Doc. 1-1 at 9) Moving to dismiss for improper venue and forum non conveniens, the defendants argue that venue is improper in the Middle District of Florida and that the defendants agreed to litigate only in Sarasota County. Although including Sarasota County, the Tampa division sits in Hillsborough County.[1]

         DISCUSSION

         I. Improper venue

         The complaint attempts to invoke venue under 28 U.S.C. § 89(b) and under 28 U.S.C. § 1391(b).[2] Not a venue statute, Section 89(b) lists the counties that constitute the Middle District of Florida. Section 1391(b) lays venue in:

(1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located.
(2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred . . .
(3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.

         FCCI concedes that venue in the Middle District of Florida is improper under Section 1391(b)(1). The Hurleys reside in Kentucky, and the corporate defendants reside in Kentucky or West Virginia. (Doc. 1 at ¶¶ 2-16).

         According to the defendants, FCCI fails to show that a “substantial part of the events or omissions giving rise to the claim occurred” in the Middle District of Florida. In a breach-of-contract action, venue lays in the place of performance. American Carpet Mills v. Gunny Corp., 649 F.2d 1056, 1059 (5th Cir. July 6, 1981). If a contract omits mentioning the place of performance and if the defendant fails to pay money owed under the contract, the breach of contract occurs where the plaintiff resides, that is, the place to which the defendant should have but allegedly failed to send money. See, e.g., Florida Nursing Home Ass'n v. Page, 616 F.2d 1355 (5th Cir. 1980) (affirming venue in the Southern District of Florida and observing that “[n]ot only does appellant maintain a large office there but the payments which the [appellee] is seeking were allegedly due it within the Southern District where [the appellees] are located”), rev'd on other grounds, 450 U.S. 147 (1981)). Although the indemnity agreement identifies no address to which the defendants must send money, FCCI resides in Sarasota County. (Doc. 34-1) Because a substantial part of the “events or omissions giving rise” to the action occurred in the Middle District of Florida - the district to which the defendants should have but allegedly failed to send money - venue is proper under Section 1391(b)(2).

         II. Forum non conveniens

         If venue lays under Section 1391 but the parties agreed to litigate in a state court, the defendant may move to dismiss under forum non conveniens. Atlantic Marine Const. Co., Inc. v. U.S. Dist. Ct. for the Western Dist. of Tex., 134 S.Ct. 568, 580 (2013). Except in an extraordinary circumstance, the parties' agreement to litigate in state court deserves deference. Atlantic Marine, 134 S.Ct. at 581 (“[A] valid forum-selection clause should be given controlling weight in all but the most exceptional cases.”) (internal quotation omitted). For several reasons, FCCI opposes (Doc. 34) the defendants' motion to dismiss under forum non conveniens.

         First, FCCI argues that the indemnity agreement permits an action in the U.S. District Court for the Middle District of Florida. But the indemnity agreement mandates suing in a “court of competent jurisdiction in Sarasota County.” (Doc. 1-1 at 9 (italics added)) Although the Middle District of Florida includes Sarasota County, the Tampa division sits in Hillsborough County. Because FCCI sued in a court “in” Hillsborough County rather than a court “in” Sarasota County, FCCI violated the forum-selection provision. See Cornett v. Carrithers, 465 Fed.Appx. 841 (11th Cir. Mar. 2, 2012) (remanding an action removed to a court in Duval County where the contract mandated litigating in Suwannee County); Mobile Aggregates Recycling Servs., Inc. v. Collier Aggregates, LLC, 2013 WL 2479782 (M.D. Fla. June 10, 2013) (Steele, J.) (dismissing an action for improper venue where the district judge sat in Lee County but the contract mandated litigating in Collier County).[3]

         Second, FCCI cites a peculiar provision in the indemnity agreement and argues that FCCI's suing in Hillsborough County implicitly waived the defendants' right to enforce the forum-selection provision. (Doc. 34 at 13-14) The indemnity agreement provides FCCI “the right, in its sole discretion, to waive venue . . . in Sarasota County.” (Doc. 30-1 at 9) But the waiver provision appears meaningless if applied literally to this circumstance. “Venue” describes a convenient or mutually-agreed location for the litigation; in every dispute, venue lays in at least one court, whether federal, state, or foreign. Because venue always lays somewhere, a party cannot “waive venue” entirely - but a party can waive an objection to, or a defense of, improper venue. See, e.g., Booth v. Carnival Corp., 522 F.3d 1148, 1153 (11th Cir. 2008) (observing that “defendants can, and often do, waive their defense of improper venue.”); Rule 12(h), Federal Rules of Civil Procedure (providing that a party waives an objection to improper venue by failing to include the defense in either a ...


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