Kolodziej v. Mason et al, No. 1:2010cv02012 - Document 20 (N.D. Ga. 2011)
Court Description: ORDER AND OPINION DENYING dft's 11 Motion to Dismiss ; GRANTING dft's 11 Motion to Transfer Case and DENYING pla's 17 Motion for Leave to File Surreply. The Clerk is DIRECTED to transfer this action to the U.S.D.C for the Middle District of Florida, Orlando Division. Signed by Judge Julie E. Carnes on 5/20/11. (jlm)
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FILII IN CH.¥.1MS IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA ATLANTA DIVISION U.S.D.C. A. . . MAY 202011 DUSTIN S. KOLODZIEJ, / Plaintiff, CIVIL ACTION NO. v. 1:lO-CV-2012-JEC JAMES CHENEY MASON and J. CHENEY ~lASON, P.A., Defendants. ORDER & OPINION This case is presently before the Court on defendants' t-lotion to Dismiss or Transfer Venue ill] and plaintiff's Motion for Leave to File a Surreply in Opposition to Defendants' Motion [17]. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that defendants' Motion to Dismiss or Transfer Venue [11] should be GRANTED in part and DENIED in part and plaintiff's Motion for Leave to File a Sur reply [17] should be DENIED. BACKGROUND This contract case arises between Defendant Mason in Florida. from plaintiff the and breach of defendant an alleged James unilateral Cheney Mason. a criminal defense attorney who works and resides (Compl. [:] at 'lI'lI 2-8.) school graduate who resides in Texas. Plaintiff is a recent law (Id. at " 1, 17.) Defendant J. Cheney Mason, P.A. is defendant: Mason's professional organizacion and is a Florida corporation wit:h its principal place of business in Orlando, Florida. (Id. at 'lI'lI 3, 7.) The underlying facts of the case originated with defendant Mason representing Nelson Serrano ("Serrano") in a capical murder trial in Florida. (Id. at 'lI 9.) Serrano's defense was that: he co~ld not have been the killer because he was in Atlanta on the day of the crime, a fact evidenced by his appearance in a s~rveillance video at Atlanta La Quinta hotel a few hours after the homicide. 10.) (Id. the at 'lI According to Serrano, the timeline would have required him to t:ravel from the Atlanta airport to the La Quinta hotel in 28 minutes, which he claims was impossible. (Compl. [1] at 'lI 10.) The jury rejected Serrano's defense and sentenced him to death in 2007. (Id. at: 'lI 11.) The Serrano trial generated significant publicity, including a nat:ionally aired segment December 2006. part: of the (Id. on the television program "Dateline" in at 'lI 12.) Defendant Mason was interviewed as "Dateline" broadcast. Dc;rinq the interview, Mason reaffirmed his position that Serrano could not have committed the murder because it would have been impossible to travel Atlanta airport to the La Quinta hotel within 28 minc;tes. 13. ) He subsequem;ly made t:he anybody to show me, (Id. fo::'lowinq statement: from t:he (Id. at 'lI "I challenge I'll pay them a million dollars if they can do at 'lI 14.) 2 Plaintiff, then a law student at South Texas College of Law, had been fo~lowing the Serrano case. (Compl. [lJ at ~ 17.) He observed the remarks that Mason made on "Dateline H and undertook to meet his million dollar challenge. at (Id. ~ plaintiff retraced Serrano's alleged route, Orlando, driving to the December 2007, flying from Atlanta to scene of the crine, then flying back to Plaintiff was able to go from the (Id.at~18.) Atlanta. In 18.) airport to the La Quinta hotel within 28 ninutes. At~anta (Id. ) Upon returning frorr, his trip, plaintiff sent a recorded video of his journey to Mason, million dollars. (Id. along with a at ~ 19.) demand letter requesting one When Mason declined to sat demand, plaintiff filed this lawsuit. (Compi. e:e: Cl] at 19-20.) suit was first filed in the Southern District of Texas. Oct. 22, 2009, attached to Defs.' Mot. to Dismiss fy the The (Order of [11].) That action was dismissed under Federal Rule 12 (b) (2) for lack of personal jurisdiction. (Id. ) Plaintiff subsequently filed suit in this Court. In his complaint, plaintiff asserts a claim against defendants for breach of contract. (Compl. :1] at ~~ 21-23.) In support of his claim, plaintiff alleges that defenda::1t J:.Jason made an offer to enter into a unilateral challenge, (Id. at ~ contract when he issued the million dollar and that plaintiff accepted the contract by performing. 22.) According to plaintiff, Mason's failure to satisfy the demand constitutes a breach of the contract, entitling plaintiff 3 to damages. (Id. at 'll 23.) Defendants have filed Federal Rule 12(b) (2) Rule 12 (b) (3) for Transfer [11].) a motion to dismiss the action under for lack of personal jurisdiction and under improper venue. (Defs.' Mot. to Dismiss or In the alternative, defendants move to transfer the case to t:he Middle District of Florida under 28 U.S.C. 1404 (a). § Plaintiff has filed a related notion for leave to file a sur (Id.) reply. (PI.'s Mot. to File Surreply [17].J All of those motions are presently before the Court. DISCUSSION I. Pla~nt~ff's Mot~on Plaintiff requests motion in order to (1) For Leave To F~le leave to file avoid running a A Surreply surreply afoul to 0= hi s defendants' duty to cite adverse authority and (2) address arguments supposedly raised for the (PI. ' s Mot. to File Surreply [17].) first time in defendants' reply. Surreplies are not generally allowed in this district. v. NE Georgia Med. Ctr., Inc., See Garrison 66 F. Supp. 2d 1336, 1340 (N. D. Ga. 1999) (O'Kelley, J.) ("to allow such surreplies as a regular practice would put the court in the position of refereeing an endless volley 0= bri.efs"). deviate from Nei.ther the is there general rule any particularly here. Contrary good to reason to plaintiff's argument, he is not in danger of violating any ethical obligations because the relevant adverse authority Court's attention by de=endants. has been brought to the See Georgia Rules of Professional 4 Conduct 3.3(a) (3). § ;'>1oreover, defendants' reply does not raise any issues that are outside the scope of plaintiff's response. The Court previously granted plaintiff permission to file ten additional pages to its response to defendants' motion to dismiss. (Order [15).) This allotment should adequately address the matters before the have been sufficient to Plaintiff's motion Co~rt. for leave to file a sur-reply is therefore DENIED. II. Defendants' Personal Jurisdiction Motion A. Applicable Standard On a plaintiff motion has the jurisdiction. to Stubbs v. under Federal of establishing b~rden 447 F.3d 1357, Casino, dismiss Wyndham 1360 Nassau (11th Cir. a Rule prima Resort 2006). 12(b)(2), facie case & Crystal the of Palace In evaluating the plaintiff's case, the Court accepts as true the allegations in the complaint. through Id. However, if the defendant contests the allegations affidavits, "the burden shifts back to the plaintiff to produce evidence supporting personal jurisdiction." Id. Where the plaintiff's complaint and the defendant's affidavits conflict, the Court "must plaintiff." construe all reasonable inferences in favor of the Id. The Court applies a two-part test to determine whether it has personal COff~c'n 1990). j ur isdicti.on Corp. v. over a nonresident Network Prods., Inc., defendant. Cable/Home 902 F.2d 829, 855 (11th Cir. First, the Court must "examine the jurisdictional issue under 5 the state long-arm statute." Second, the Court must deternine Id. whether the defendant has sufficient ftminimum contacts" to satisfy the Due Process Clause of the Fourteenth Amendment. Tnt'l Shoe Jurisdiction satisfied.' B. is 326 Wa shin gton, U.S. 310, only permissible i:' both parts Madara v. Hall, 316 (quoting (1945» the test 0:' . are 916 F.2d 1510, 1514 C:'lth Cir. 1990). The Georgia Long Arm Statute Georgia's personal v. Co. Td. long-arm jurisdiction statute over a permits the nonresident Court who to exercise ft[tlransacts any business within th[e] state" as to a cause of action arising out 0:' that transaction. O.C.G.A. § 9-10-91(1). The Eleventh Circuit has interpreted this provision literally, as follows: "Transact" means "to prosecute negotiations," to "carryon business, II "to carry out," or "to carryon. I'F "Any" means "to any extent U or "in any degree. "Business" means (I "activity directed toward some end." or °a usually commercial or mercantile activity customarily engaged in as a means of livelihood." or "transactions, dealings, or intercourse of any nature. Diamond Crysta.I Brands, Tnc. v. Food Movers Int'l. Inc., 593 F.3d 1249, 1264-65 (11th Cir. 2010) (internal citations omitted). At the least, the above language "expressly depends on the 1 Until recently, courts in this district treated the first and second prongs as coextensive. See Diamond Crystal Brands, Inc. v. Food Movers Tnt'l, Inc., 593 F.3d 1249, 1254 (11th Cir. 2010). However, the Eleventh Circuit recently noted a shift in Georgia law that requires a separate inquiry as to each prong. Td. at 1263 ("courts must apply the specific limitations and requirements of O.C.G.A. § 9-10-91 literally and must engage in a statutory examination that is independent of the constitutional analysislf) . 6 actual transaction of [sone act of] business in the state.- Id. Consulting Serv., (2005) ). at LLC v. 1260 (applying First Nat'l . by the defendant Innovative Bank of Ames, Clinical 279 Ga. & 672 However, a defendant need not physically enter the state to "transact any business u here. though the occurring while Id. at 1264. defendant is state] of Georgia- are relevant. Id. "[I]ntangible acts, physically outside [the For example, a defendant may subject itself to jurisdiction under the Georgia long-arm statute through mailings and telephone calls made from outside but directed Id. to the state. Plaintiff contends that defendant Mason transacted business in Georgia when he entered into a contract that, by its express terms, could only be accepted and performed in Georgia. [13] at 14-15.) physical act It is undisputed that Mason did not undertake any in Georgia million dollars to Airport LaQuinta However, Mason's to the (P 1 . 's Resp. Br. when he purportedly offered to pay one the person who could travel from the Atlanta hotel in ss than 28 minutes. (Id. ) the Court agrees with plaintiff that the transmission of challenge into contract in Georgia, Georgia, as well as the formation of a are sufficient to show that Mason transacted some business within the state. As discussed, a defendant may transact business iCl Georgia on the basis of "intangible acts" such as telephone, postal, or internet communications made outside of the state. 7 Diamond Crystal Brands, 593 F.3d at 1264. Inc., Mason's televised challenge was expressly conditioned on performance in Georgia. As such, Mason's conduct was similar to that of other defendants found subject to jurisdict~on based by on an offer to enter a contract transmittal of an offer through the mail. orders were routed through a in Georgia phone or Id.at1265 (that purchase California intermediary does not disqualify them from consideration under the "transacts any business" equation) and ATCO Sign Ga. App. 528, statute may 534 be & Lighting Co., LLC v. (2009) (jur:'sdiction based on "business Stamm Mfg., Inc., under Georg:'a's conducted 298 long-arm through postal, telephonic, and !nternet contacts"). In addition, and assuming plaintiff's allegations are true, Mason was a party to a contract that was accepted and completed in Georgia. Under the theory of a unilateral contract, t1ason incurred an obligation to contract. pay upon the acceptance See Consolo Freightways Corp. v. and performance of the Wi~l1iams, 139 Ga. App. 302, 306 (1976) (upholding a jury charge instructing that "if and when the plaintiff accepted the offer by performance services, there would be a binding contract"). of the alleged I'lhile Mason may not have physically appeared in Georgia, his obligation to pay, and thus a transaction, cane to fruition in Georgia. Id. In support of their motion, defendants argue that plaintiff did not complete the contract in Georgia, but in Florida. Br. [16] at 7-9.) 'l'he Court is not persuaded. 8 (Defs.' Reply A district court, s!tting in diversity, applies the forum state's choice of law v. Federated Mut. Ins. Co., 135 F.3d 750, Boardman Petroleum, Inc. 752 (11th Cir. 1998). loci contractus, contract is made. Georgia follows the traditional rule of lex which Id. r~les. applies the law of the state where the Under Georgia law, a contract is made where "the last act essential to the completion of the contract" takes place. Gen. Tel. Co. of Se. v. Trimm, 252 Ga. 95, 95 (1984). The "last act" essential to completion of this contract took place in Atlanta, when plaintiff traveled from the Atlanta a:'-rport to the LaQuinta hotel. In entering into a contract that was executed and required to be performed in Georgia, Mason "transacted business" in the state. See O.C.G.A. § 9-10-91 (1) and Diamond Crystal Brands, Inc., 593 F.3d at 1264-65. Plaintiff's breach of contract claim arises direct!y from that transaction. Georgia long-arm C. Accordingly, jurisdiction is authorized under the stat~te. Federal Due Process In addition to complying with the long-arm statute, plaintiff m~st demonstrate that jurisdiction in this forum co;cports with due process. Due process is satisfied "if the non-resident defendant has established 'certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and S.IL, 558 s~bstantial F.3d :210, justice.'" Oldfield v. 1220 (llth 9 Cir. Pueblo de Bahia Lora, 2009) (quoting ffelicoptero3 Nacionales de Colombia, S.A. v. 466 U. S. Hall, Once a plaintiff shows that the defendant has ~he ~he 408, 414 (1984). requisite contacts, burden shifts to the defendant to make a "'compelling case' that the exercise of jurisdiction would violate substantial justice. D 1267. Diamond Crystal fair play and 593 F. 3d at Brands tIne., defendant's contacts with the forum may give rise to A either "gene raID or "specific D personal jurisdiction. F.3d at 1221. Oldfield, 558 Specific jurisdiction is the only type of jurisdiction at issue in this case. In cases involving specific jurisdiction, there is a three-part test to determine if a defendant's contacts with the forum comport with due process: (1) related to the plaintiff's cause of action, the contacts must be (2) they must involve SOIr.e act by which the defendant purposefully availed itself of the privilege of conducting activities within the forum, must be of a nature that ~he and (3) they defendant should reasonably anticipate being haled into court in the forum. Sloss Indus. Corp. v. Burisol, 488 F.3d 922, 925 (11th Cir. 2007). 1. Relatedness Plaintiff's claim against defendants Mason's contacts with Georgia. is directly related to Specifically, the claim arises out of Mason's offer and alleged breach of a unilateral contract that was execu~ed (Comol. and [1] sufficient could only be at 'il.'!! 14-20.) relationship accepted by Under the between the 10 performance facts al2.eged, asserted claim in Georgia. there and is a Mason's activities in 558 Oldfield, Georgia F.3d to at support 1222 personal (focusing on jurisdiction. the direct See causal relationship among the defendant, the forum, and the litigation) and Sloss, 488 F.3d at 925 (the relatedness element is satisfied where a party's acts within the forum give rise to the asser-ted cause of action) . 2. Purposeful Availment Defendants argue that Mason did not purposefully avail himself of the benefit of conducting business in Georgia because plaintiff's actions in the state were under-taken without Mason's knowledge or (Defs.' Br. consent. [11] at 15.) This argument ignores the fact that 1>1ason is the one who initially issued the challenge that brought about plaintiff's actions in Georgia. Plaintiff alleges that Mason made an offer on a unilateral contract that could only be performed in Georgia. (Compl. [lJ at 'it'it 14-18.) Assuming that a:legation is true, Mason, by requiring performance in Georgia, can be charged with contemplating a relationship with and reliance on the laws of this state. See Sloss, 488 F. 3d at 933 (finding purposeful availment where the defendant was "more than a mere passi"ve purchaser") . Defendants point to PVC Constr., N.V., 598 F.3d 802 M/V Charm, contract 19 F.3d 624 requiring Windoors, Inc. v. Babbitbay Beach (11th Cir. 2010) and Francosteel Corp. v. (11th Cir. 1994) as examples of cases where a an act of performance insufficient to establish mi:limum contacts. 11 in the forum was However, both cases are distinguishable. In PVC Windoors, the contract was to be performed in another country, not the forum state. F.3d at 804-805. PVC Windoors, Inc., 598 Similarly, the contract in Francosteel only called for delivery of certain cargo in the forum state, with none of the events giving rise to the cause of action actually occurring in the Francosteel, 19 F.3d at 628. forum. Unlike the contracts at issue in PVC Windoors and Francostee1, the contract here was not only performed in Georgia, but could only have been performed in Georgia pursuant to such an offer, Mason impliedly, but ~ason's offer. intentionally, In issuing invoked the privilege of conducting activities in Georgia and the protection of Georgia contract law. therefore met. 3. Finally, The "purposeful availment" requirement is See Sloss, 488 F.3d at 933. ~easonable Anticipation the finds Court that defendants could reasonably anticipate being haled into a Georgia court as a result of Mason's conduct. As alleged in the complaint, Mason, in a nationally televised "Dateline" broadcast, issued a million dollar offer on a contract (Compl. that required [1] ac 11 14-18.) acceptance and performance in Georgia. Having issued such an offer, Mason should have expecced that the contract might be executed and accepted by a viewer, Georgia. through Under performance the that could circumstances, anticipace being haled into court here. 12 only be defendants Id. accomplished could in reasonably 4. fairness Factors Having concluded that Georgia, the Court x.ust defendants have minimu:n contacts with consider the contacts in lig:'1t of other factors to determine whether the assertion of jurisdiction comports with "traditional justice." conception[s] of fair play and substantial Burger King Corp. v. Rudzewicz, 471 U.S. 462, 464 (1985). These factors include: [the] burden on the defendant, the forum State's interest in adjudicating the dispute, the plaintiff's interest in obtaining convenient and effective relief, the interstate judicial system's interest in obtaining the most efficient resolution of controversies, and the shared interest of the several States in furthering fundamental substantive social policies. Id. (internal quotations omitted). Applying the above factors, defendants have not met their burden of showing that would be fundamentally unfair to subject them to jurisdiction in Georgia. Litigating in a foreign forum is always somewhat onerous on a defendant, but "[rn] odern transportation and Olivier v. communication" have substantially reduced the burden. Merritt Dredging Co., Inc., 979 F.2d 827, 834 (11th Cir. 1992). As demonstrated by plaintiff's response to the million dollar challenge, one may travel from Florida to Atlanta with relative ease. U:e contract Georgia law, at issue was which at formed least to in Georgia some extent interest in adj udicating the dispute. and is Moreover, governed by irr.plicates Georgia's Psychological Res. Support Sys., Inc. v. Ger.leman, 624 F. Supp. 483, 487 (N. D. Ga. 1985) (Moye, 13 J. ) . I!'inally, there is no reason to expect that a Georgia court would afford any less effective relief than a Florida court. In short, defendants have not presented a "compelling case" that jurisdiction in Georgia would "violate traditional notions of fair play and substantial justice." F.3d at 1267. All of the Diamond Crystal Brands, relevant fairness Inc., 593 factors are either neutral, or weigh only slightly in favor of defendants. '.::he Court thus concludes that the requisites of due process are met, and DENIES defendants' motion to dismiss for lack of personal jurisdiction. III. Motion to Dismiss for Improper Venue In addition to Rule 12 (b) (2), improper venue under Rule defendants 12 (b) (3) . Venue seek dismissal for this for action is governed by the general venue statute, which provides that: A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred. 28 u.S.C. 1391(a) (2). § Applying this provision, the Eleventh Circuit has recognized that there may be cases in which venue will be proper in more than one district. Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir. 2003). The parties dispute whether "a substantial part of the events" giving rise to plaintiff's claim occurred in Georgia. Defendants argue that Florida, not Georgia, is the state where a "substantial part of the events" occurred. 14 (Defs. ' Br. [ 11] at 19. ) Specifically, defendants argue that Florida is the location where the initial offer and the alleged breach of contract took place. (Id. ) Defendants cite evidence showing that Mason was in Florida when he extended the challenge, and that he refused to pay plaintiff from correspondence originating from Florida. While many of the action occurred including the in Florida, formation occurred in Georgia. events a and (Id. ) necessary to plaintiff's "substantial" part performance As discussed below, of the of cause of the events, contract, also the Northern District of Georgia is not the only district in which venue is proper. However, this district meets the requirements of the federal venue statute, 28 U.S.C. § 1391(a) (2). Accordingly, defendants' motion to dismiss for improper venue is DENIED. IV. Motion to Transfer As an alternative to dismissal, defendants ask the Court to transfer this action to the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). That statute provides that: " [C 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." 28 U.S.C. § 1404(a). The moving party bears the burden of establishing the propriety of a transfer under § 1404 (a). In re Ricoh Corp., 870 F".2d 570, 573 (11th Cir. 1989). Under the express language of the statute, a transfer of venue 15 is only available if the proposed transferee foru:r. is a district where the case "might have been brought." Middle District of Florida u.s.c. 28 1404(a). § a district where the case "might have been brought" under the general venue statute, 28 U.S.C. § That where statute permits defendant resides." The venue in 28 U.S.C. "a judicial district 1391(a). any 1391(a). As noted above, defendant J. Cheney Mason, P.A. resides in Orlando, Florida, which is located § in the Middle District of Florida. (Compl. [1] at 'lI'l1 3, 7.) Having properly identified an alternate forum, criteria deternine whether a transfer is three general appropriate: (1) the convenience of the parties, (2) the convenience of the witnesses, and (3) the interests of justice. England v. ITT Thompson Indus . ¢ Inc., 856 F.2d 1518, 1520 (11th Cir. 1988). may be expanded to include the These general considerations following: (1) the location of relevant documents and the relative ease of access to sources of proof, process (2) the locus of operative facts, (3) the availability of to compel the attendance of unwilling witnesses, relative means of the parties, (5) (4) the a forum's familiarity with the governing law, and (6) trial efficiency and the interests of justice, based on the Corp., totality of the circumstances. 430 F.3d 1132, 1135 (11th Cir. 2005). Manuel v. Convergys In this case, the relevant factors favor transfer. A. The Convenience Of The Witnesses The convenience of the witnesses is one of the most important 16 factors in evaluating a motion to transfer venue, with the main focus on "key witnesses." Ramsey v. 1352,1356 (N.D. Ga. Fox News Network F LLC, 2004) (Thrash, 323 E'. Supp. 2d "Key witnesses" are those J.). who have information regarding the liability of defendant. 1357, Further, Id. at a distinction is made between party witnesses and nonparty witnesses, Id. at 1356. Party w.i. tnesses are presumed to be willing to testify in a different forum, while nonparty witness are not. The convenience of nonparty witnesses holds more weight Id. than that of party witnesses in evaluating the convenience of the forum. Id. Defendants offer three nonparty witnesses who are not residents of Georgia. The first two witnesses were present at the interview in question and are residents of Florida. 28-29. ) (Id. at interview (~ason [11] at ~~ 2-3, The producer for the interview is a resident of New York. ~ Apparently, 29.) will be needed to witnesses give a who [16] at 12.) were description interview and the overall context of Mason's Reply Br. Decl. present of at the the unedited statements. (Defs.' These witnesses are directly relevant to defendants' liability, as their testimony would be used to deterrLine if Mason made a viable offer. In response, plaintiff offers unnamed Del ta Air Lines Or Atlanta airport employees as nonparty witnesses needed to verify the exact time the airplane touched down. (Pl.'s Resp. [13' at 26-27.) However, live testimony need not be offered to establish this fact, 17 a matter of off:'cial record that is likely subject to stipulation o:c judicial notice. Mo:ceover, plaintiff alleges in his complaint that his journey was videotaped, p:coviding another source of evidence as to the timing of plaintiff's jou:cney. ( Comp 1. [ IJ at 'l1 19.) Plaintiff does not identify any other nonparty witnesses who :ceside in Georgia. (P1.'s Resp. [13J.) The lack of witnesses in Georgia, set against the presence of key nonparty witnesses residing in Florida, weighs District of Florida. heavily in favor of transfer to the Middle See England, 856 F.2d at 1519 and Ramsey, 323 F. Supp. 2d at :356. B. The Convenience Of The Parties When evaluating the relative convenience of the parties, "[tlransfer should be denied if it would merely shift inconvenience from one party to another. v. City of Tulsa, J. ) . However, Georgia. Texas. U Paul, Hastings, Janofsky & Walker, LLP 245 F. Sc;pp. 2d 1248, 1260 (N.D. Ga. 2002) (Martin, in this case none of the parties lives or works in Both defendants reside in Florida, and plaintiff resides in Beca'..Ise defendants are in Florida, a transfer to that venue would certainly be more convenient for them. Further, plaintiff will have to travel to litigate this matter regardless of whether the litigation is in Florida or Georgia, and as plaintiff has aver:ced, the difference in travel time by air is less than thirty min'..Ites. (Kolodz Decl. [13] at 'l1 9.) Because plaintiff has chosen a forum that is inconvenient for all the parties, this factor weighs heavily 18 in favor of defendants. C. The Weight Accorded plaintiff's Choice Of Forum In evaluating a motior: to trar:sfer, "[t] he plaintiff's statutory privilege of choosing his forum is a factor, held in varying degrees of esteem, to be weighed against other factors in determining the most convenient forum." Garner v. Wolfinbarger, 433 F.2d 117, 119 (5th Cir. 1970).2 Although not yet addressed by the Eleventh Circuit, several courts in this district have fou:-1d that when the forum is not the home district for any of the parties involved ir: the action, "plaintiff's original choice of forum is entitled to less weight." Haworth, Inc. v. Herman Miller, Inc., 821 F. Supp. 1476, 1479 (N.D. Ga. 1992) (Forrester, J.). (holding same). Thus, See also Ramsey, 323 F. Supp. 2d at 1352 plaintiff's choice of forum is arguably entitled to less weight in this case than if plaintiff had filed suit in the state where he resides. D. Trial Efficiency And The Interests Of Justice 8efer:dants claim that the "median time from filing to trial for civil cases in the Northern 8istrict of Georgia was 26.6 months in 2009, as com,pared to 22.6 months in the Middle 8istrict of E'lorida." (Defs.' Br. negligible. [11] at 24.) (Pl.'s Resp. Plaintiff argues that this difference is [13] at 32.) However, the Court suspects 2 1:-1 Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. :981) (en bane), the Eleventh Circuit adopted as b~nding precedent all the decisions of the former Fifth Circuit handed down prior to the close of business on September 30, 1981. 19 that the disparity in resolution time is now greater than it was in The Administrative Office of the U.S. Courts has declared a 2009. judicial emergency in the Northern Distr of Georgia because three active judicial positions have been vacant for two years and court filings average fro:r. 500 to 700 per judge. the U.S. Courts, Judges and Administrative Office of Judgeships: Judicial www.uscourts.gov/JudgesAndJudgeships/JudicialVacancies 2011).3 The Court has little doubt that th Emergencies, (Feb. 11, matter will be brought to a more speedy resolution in the Middle District of Florida. This factor thus weighs in favor of transfer. E. The Remaining Factors And Conclusion The remaining factors are neutral. Relevant documents and other sources of proof, including the -Dateline" interview and plaintiff's docurr,entary evidence of his journey, Florida, Texas and perhaps New York. can be found in Georgia, The locus of operative facts is similarly spread evenly among three states. The relative means of the parties is not a significant factor, given that both parties will have to travel to litigate the case in Georgia. The determinative factors, including the convenience of the parties and particularly the witnesses, overwhelmingly weigh in favor of t.ransfer. As none of the parties or witnesses have any real connection to the forum, transfer is particularly appropriate here. Since issuance of the report, two vacancies have been filled, but two mOre vacancies remain, with one vacancy having lasted almost two and one-half years and the other for over one year. 20 While the minimum requiremer.ts of the Georgia lor.g-arm statute and due process would perm~t the Court to hear pla~ntiff's claim, the interests of justice would be better served by resolutior. of this matter in the Middle District of Florida, where defendants and several key witnesses reside and where Mason's challenge was issued. Defendants' motion to trar.sfer is thus GRANTED. CONCLUSION For the foregoing reasons, plaintiff's Motion for Leave to File Surreply [17] Trar.sfer [11] is DENIED, and defendants' t4otion is GRANTED i.n part and DENIED in part. to Dismiss or The Clerk :'..s directed to transfer this action to the United States District Court for the Middle District of Florida, Orlando Division. SO ORDERED, this ~c/ day of May, 2011. Jif.ro:E E. CARNES 6HIEF UNITED STATES DISTRICT .IUDGE 21
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