United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on Defendant Bil-Jim
Construction Co., Inc.'s (“Bil-Jim”) Motion
to Transfer Venue [ECF No. 7], pursuant to 28 U.S.C. §
1404(a). The Court has carefully reviewed the briefs, the
record in this case, the applicable law, and is otherwise
fully advised. For the reasons that follow, the motion shall
removal action, Plaintiff Ashbritt, Inc.
(“Plaintiff” or “Ashbritt”), filed a
Complaint for Declaratory Relief and Damages against Bil-Jim
(“Complaint”) [ECF No. 1-1]. Ashbritt is a
contractor that provides recovery and environmental clean-up
services after national disasters. Following Hurricane Sandy,
Ashbritt and Bil-Jim entered into a Subcontract Agreement
(“Agreement”) [ECF No. 1-1, pp.14-44] for Bil-Jim
to perform debris clean-up in Ocean County, New Jersey.
Section 15.4 of the Agreement contains a forum selection
clause and choice of law provision which states in pertinent
With respect to any litigation, this Agreement shall be
construed and governed by the laws of the State of Florida,
without giving effect to any choice or conflict of law
provision or rule. The sole and exclusive
venue for any suit, action or proceeding of any
kind arising out of, relating to, to interpret or for breach
of this Agreement, or with respect to the Subcontract Work (a
“Related Proceeding”) shall only be in the courts
of Broward County, Florida, federal or state. Each of the
parties irrevocably consents and submits to the exclusive
subject matter and personal jurisdiction of the courts of the
State of Florida located in Broward County, and of the United
States District Court for the Southern District of Florida
located therein for the purposes of a Related Proceeding, and
the parties irrevocably waive, to the fullest extent they may
effectively do so, (i) any objection they may have to the
laying of venue of any Related Proceeding in the Courts of
Broward County, Florida, federal or state, (ii) any objection
they may have to personal jurisdiction in any Related
Proceeding in the Courts of Broward County, Florida, federal
or state, and (iii) the defense of any inconvenient forum to
the maintenance of any Related Proceeding in the Courts of
Broward County, Florida, federal or state.
about November 9, 2015, Bil-Jim employees brought a class
action against it in the United States District Court for the
District of New Jersey (the “NJ Lawsuit”) seeking
damages for unpaid wages for work performed under the
Agreement pursuant to the New Jersey Prevailing Wage Act (the
“PWA”). See Wall v. Bil-Jim Construction, et
al, No. 3:15-cv-08982(PGS)(TJB). The plaintiffs in the
N.J. Lawsuit later added Ashbritt as a defendant, alleging
that Ashbritt, along with Bil-Jim, were jointly and severally
liable for Bil-Jim's alleged failure to pay wages under
the PWA. Ashbritt denied liability in the N.J. Lawsuit and
requested indemnification from Bil-Jim pursuant to Sections
9.1 and 10.1 of the Agreement. After Bil-Jim refused to
defend and indemnify Ashbritt in the N.J. Lawsuit, Ashbritt
filed the instant action seeking a declaratory judgment that
it is entitled to defense and indemnification from Bil-Jim in
connection with the N.J. Lawsuit, that it has no obligation
to indemnify Bil-Jim in the N.J. Lawsuit, and that
Bil-Jim's actions have breached the Agreement entitling
Ashbritt to recover damages incurred in the N.J. Lawsuit.
has moved to transfer venue from this Court to the District
of New Jersey pursuant to 28 U.S.C. § 1404(a) arguing
that this action involves the same facts and parties involved
in the pending N.J. Lawsuit. Bil-Jim argues that the
interests of justice favor transfer to the District Court of
New Jersey in order to coordinate this action with the N.J.
Lawsuit, prevent the duplication of discovery, and promote
judicial economy. Bil-Jim argues that the interests of
judicial economy trump the Agreement's forum selection
clause, and weigh heavily in favor of transfer.
Standard of Law
statute governing venue transfer, 28 U.S.C. § 1404(a),
provides, in relevant part, 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 . . . where it might have been
brought.” This analysis requires a two-pronged inquiry.
First, a court must determine whether the case may have been
brought in the desired district of transfer. Meterlogic,
Inc. v. Copier Solutions, Inc., 185 F.Supp.2d 1292, 1299
(S.D. Fla. 2002). This question depends on whether Bil-Jim is
subject to jurisdiction in New Jersey, whether venue is
appropriate in the District of New Jersey, and whether
Bil-Jim is amenable to service of process in New Jersey.
See Id. Because the parties do not dispute that this
action could have been brought in the District of New Jersey,
the Court turns to a discussion of the second prong.
a court finds an action could have been brought in the
transferee forum, the court must weigh various factors . . .
to determine if a transfer . . . is justified.”
Elite Advantage, LLC v. Trivest Fund, IV, L.P., No.
15-22146, 2015 WL 4982997, at *5 (S.D. Fla. Aug. 21, 2015)
(citation and internal quotation marks omitted). The Eleventh
Circuit instructs that a district court should generally
consider the following private and public interest factors to
determine whether a transfer is appropriate:
(1) the convenience of the witnesses; (2) the location of the
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).
calculus changes, however, when the parties' contract
contains a valid forum-selection clause, which
‘represents the parties' agreement as to the most
proper forum.'” Atl. Marine Const. Co. v. U.S.
Dist. Ct. for W. Dist. of Tex., 134 S.Ct. 568, 581
(2013) (quoting Stewart Org., Inc. v. Ricoh Corp.,
487 U.S. 22, 31 (1988)). When there is a valid
forum-selection clause, the court's analysis changes in
three ways: (1) “the plaintiff's choice of forum
merits no weight”; (2) the court “should not
consider arguments about the parties' private
interests”; and (3) the choice-of-law rules of the
original venue are not transferred to the new venue-“a
factor that in some circumstances may affect public-interest
considerations.” Id. at 581-82; see also
GDG Acquisitions, LLC v. Government of Belize, 849 F.3d
1299, 1304 (11th Cir. 2017) (“[a] binding
forum-selection clause requires the court to find that the
forum non conveniens private factors entirely favor
the selected forum.”) (citations omitted). ...