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Ashbritt, Inc. v. Bil-Jim Construction Co., Inc.

United States District Court, S.D. Florida

May 9, 2018

ASHBRITT, INC., a Florida corporation, Plaintiff,
v.
BIL-JIM CONSTRUCTION CO., INC., Defendant.

          ORDER

          DARRIN P. GAYLES UNITED STATES DISTRICT JUDGE.

         THIS 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 be denied.

         I. BACKGROUND

         In this 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 part:

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.

         On or 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.

         Bil-Jim 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.

         II. DISCUSSION

         A. Standard of Law

         The 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.

         “Once 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).

         “The 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). ...


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