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Jones Real Estate, Inc. v. Avatel Technologies, Inc.

United States District Court, S.D. Florida

March 1, 2018

JONES REAL ESTATE, INC., Plaintiff,
v.
AVATEL TECHNOLOGIES, INC., THE CIT GROUP INC. and CIT BANK, N.A., Defendants.

          ORDER

          JOHN J. O'SULLIVAN UNITED STATES MAGISTRATE JUDGE

         THIS MATTER is before the Court on the Defendant CIT Group Inc.'s Motion to Transfer Venue and Incorporated Memorandum of Law (DE# 37, 12/4/17). Pursuant to the parties' Consent to Proceed before a United States Magistrate Judge, the Honorable Ursula Ungaro, United States District Judge, referred the matter to the undersigned for adjudication of all pretrial motions as well as jury or non-jury trial on the merits. See Order of Reference (DE# 43, 12/21/17). Having reviewed the motion, response and reply as well as the Plaintiff's First Amended Class Action Complaint (DE# 47, 12/29/17) (“Amended Complaint”), which was filed after the motion to transfer venue was filed, it is

         ORDERED AND ADJUDGED that the Defendant CIT Group Inc.'s Motion to Transfer Venue and Incorporated Memorandum of Law (DE# 37, 12/4/17) is GRANTED for the reasons set forth below.

         ANALYSIS

         None of the parties are located in the Southern District of Florida. The plaintiff is a Missouri corporation with its principal place of business in Missouri. The defendant, CIT Group Inc., is a Delaware corporation with its principal place of business in Livingston, New York. CIT Bank, N.A., is the principal bank subsidiary of CIT Group, Inc.'s. with an address in Jacksonville, Florida but purportedly has headquarters in California. Avatel Technologies, Inc. (“Avatel”) is a Florida corporation with a principal place of business in Brandon, Florida. The plaintiff's attorneys are also in Brandon, Florida.

         After CIT Group, Inc. (“CIT Group”) filed its motion to transfer venue, the plaintiff filed its Amended Complaint and added Avatel as a defendant. In its Amended Complaint the plaintiff alleges a class action and seeks to represent the following classes: a Nationwide Force Placed Insurance Class; a Missouri Forced Place Insurance Class; a Nationwide Service Protection Plan Class, and a Missouri Service Protection Plan Class. The putative national classes would include Floridians.

         CIT Group seeks to transfer venue to the Southern District of New York on the following grounds: the plaintiff does not reside in the Southern District of Florida; the plaintiff seeks to represent a putative nationwide class; there is little to no connection with South Florida because the plaintiff does not reside here; CIT Group does not lease office equipment in Florida or to Florida residents; CIT Group is not a party to any insuring or reinsuring agreement with the former defendants, Assurant, Inc. or American Bankers Insurance Company of Florida, both of whom were dropped as defendants in the plaintiff's Amended Complaint; CIT Group does not have any employees located within Florida; and CIT Group does not engage in any substantial and non-isolated activities in Florida. Additionally, CIT Group contends that it is significant that the plaintiff consented to jurisdiction in New York and unequivocally agreed to waive any objection to venue in any court in New York in its Lease Agreement with CIT Bank, N.A.[1] See Lease Agreement, Exhibit 2, Amended Complaint (DE# 47-2, 12/29/17).

         After CIT Group filed its motion to transfer venue, the plaintiff filed an Amended Complaint that added CIT Bank, N.A. and Avatel as defendants in addition to CIT. The plaintiff argues that venue is proper in the Southern District of Florida because two letters that it received were sent from Miami, Florida, the plaintiff's attorneys and the defendant Avatel are located in Brandon, Florida, and CIT Bank, N.A. has an address in Jacksonville, Florida. The plaintiff argues that CIT Group is not a signatory to the Lease Agreement and the defendant CIT Group has not cited any case law that a choice-of-law provision, standing alone, requires transfer. Additionally, the plaintiff contends that CIT Group's reliance on its witness, Steven Salisbury of New Jersey, does not support transfer because Mr. Salisbury was not directly involved in the lease, insurance or Service Protection Plan at issue. The plaintiff argues further that

the normal rule of law that Plaintiff's choice of forum should not be disturbed should apply here because Plaintiff filed the case in the state that has the most “locus of operative facts” with the lease, insurance, and Service Protection Plan at issue in Plaintiff's consumer claims; to wit, CIT and CIT Bank, N.A. dealt with Plaintiff through Miami, Florida and Jacksonville, Florida, and Avatel Technologies, Inc. is out of Brandon, Florida.

         Response at 2 (DE# 48; 12/29/17).

         Factors

         CIT Group seeks to transfer this action pursuant to 28 U.S.C. § 1404(a). Section 1404(a) 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). “A court must first determine whether the action could have been brought in the venue to which transfer is sought.” Soler v. Indymac Mortg. Services, No. 14-ICV-22541, 2015 L 3952620, at *2 (S.D. Fla. June 29, 2015) (citing Windmere Corp. v. Remington Productions, Inc., 617 F.Supp. 8, 10 (S.D. Fla. 1985)). Because the plaintiff does not dispute that this action could have been brought in the Southern District of New York, the Court only needs to address the second prong, which involves weighing various factors. See Response at 2 (DE# 48; 12/29/17).

         To determine whether transfer is appropriate, the Eleventh Circuit requires the Court to weigh the following Section 1404(a) factors: “(1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances.” Manuel v. Convergys Corp. 430 F.3d 1132, 1135 n.1 (11th Cir. 2005) (citation omitted).

         CIT Group argues that the plaintiff's choice of forum should be given little to no weight because the plaintiff agreed to a forum selection clause and waived any objections related to improper venue in New York. See Atlantic Marine Construction Co. v. United States District Court, 134 S.Ct. 568, 581 (2013).

         1) Convenienc ...


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