Opinion
Civil Action No. 3:03-CV-2701-D.
July 20, 2004
MEMORANDUM OPINION AND ORDER
In this removed action, defendant's motion to transfer presents the question whether the case should be transferred under 28 U.S.C. § 1404 (a) for the convenience of the parties and witnesses and in the interest of justice. For the reasons that follow, the court holds that the case should be transferred and therefore grants the motion.
I
Plaintiffs, who are beneficiaries of the Charlotte Crimmins Pandt Revocable Trust ("the Trust"), sue defendant Sun Trust Bank, N.A., d/b/a Sun Bank, N.A. ("SunTrust"), Trustee of the Trust and personal representative of the estate of Charlotte Crimmins Pandt ("Pandt"), alleging that it is liable for breach of fiduciary duty, negligence, fraud, negligent misrepresentation, equitable accounting, and conversion in handling an interest in real property that is part of the Trust. Pandt established the Trust in 1982 at the Orlando, Florida office of SunTrust's predecessor. She named SunTrust as Trustee. Subsequently, the Trust was amended four times between May 1982 and May 1989, all before Pandt's death in 1994. Included in the Trust assets is an interest in real property located on St. Eustatius Island in the Netherlands, Antilles ("the St. Eustatius Property"). Thomas Pandt ("Thomas") owned the St. Eustatius Property at the time of his death in 1982 and left it to Pandt through a trust that SunTrust administered. According to the fourth amendment to the Trust, the St. Eustatius Property passed to Thomas' nieces or their issue on Pandt's death. Pandt's Last Will and Testament ("the Will") incorporates the Trust and names SunTrust as the personal representative of her estate. The Will and the Trust both provide that they are governed by Florida law.
Plaintiffs are John D. Sargent, Sally S. Logan, Janet S. Propsma, Marjorie S. Carriger, Maynard D. Stephens, Richard H. Stephens, Robert N. Stephens, Darrell A.P. Jones, Thomas B. Pederson, Christopher J. Pederson, Darrell E. Jordan, Stephen T. Jordan, Judith J. Green, Gregory M. Jordan, and Martha J. Horton. Most plaintiffs are Texas citizens, but other plaintiffs are citizens of Colorado, Massachusetts, Minnesota, and Rhode Island
Defendant's brief states that its correct name is SunTrust Bank. See D. Br. at 1. The court will refer to SunTrust and its predecessor as "SunTrust."
SunTrust is a Georgia banking corporation with its principal office in Orlando. Id. at 3.
Plaintiffs aver that Pandt died on October 21, 1994, Ps. Br. at 2, and SunTrust states that she died on October 11, 1994, D. Br. at 4. Because the precise date of death is immaterial, the court need not resolve this discrepancy.
Plaintiffs are the children of Thomas' nieces. See Ps. Br. at 2.
Following Pandt's death, SunTrust, as personal representative of her estate, retained Cynthia J. Pyles, Esquire ("Pyles"), an Orlando attorney, as outside counsel. She commenced probate proceedings in Florida circuit court and began administering Pandt's estate. In 1999 Pyles withdrew as counsel, and the law firm of Baker Hostetler was substituted as counsel. SunTrust identifies the Baker Hostetler attorneys who have been involved in this matter as Christopher Fountas ("Fountas"), Esquire, Joel H. Sharp, Esquire, G. Thomas Ball, Esquire ("Ball"), and Tico Perez, Esquire ("Perez"). SunTrust has also consulted with others in an attempt to arrive at a final administration of the St. Eustatius Property: Jose M. Palli, Esquire ("Palli") of First American Title Insuranc Company, Miami, Florida, Richard Gibson, Esquire, Hans Hoeksma, Esquire, Roland Duncan, Esquire, and Ferd J.L.M. Steeman, Esquire, all of whom are attorneys in law firms in Phillipsburg, St. Maarten. Administration of the estate is not yet final. Plaintiffs contend this is a result of incompetence on the part of SunTrust, and SunTrust maintains it is the result of severe title problems with the St. Eustatius Property. Plaintiffs sued SunTrust in Texas state court, and SunTrust removed the case to this court. SunTrust moves under § 1404 (a) to transfer the case to the Middle District of Florida, Orlando Division.
Fountas is no longer with the firm.
II
Section 1404 (a) provides "[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." "The decision to transfer is made to prevent waste of time, energy, and money and to protect litigants, witnesses, and the public against unnecessary inconvenience and expense." Bank One, N.A. v. Euro-Alamo Invs., Inc., 211 F.Supp.2d 808, 811 (N.D. Tex. 2002) (Fitzwater, J.) (citing Stabler v. N.Y. Times Co., 569 F. Supp. 1131, 1137 (S.D. Tex. 1983)).When deciding a motion to transfer under § 1404(a)
[t]he court considers several factors in their totality, including (1) plaintiff's choice of forum; (2) the availability of compulsory process for the attendance of unwilling witnesses; (3) the cost of obtaining the attendance of willing witnesses; (4) the accessibility and location of sources of proof; (5) the relative congestion of the courts' dockets; (6) the accessibility of the premises to jury view; (7) the relation of the community in which courts and the jurors are required to serve to the occurrence giving rise to the suit; and (8) the time, cost, and ease with which the trial can be conducted, and all other practical considerations relative to the trial and determination of the case.Id. at 811-12 (citing Fletcher v. S. Pac. Transp. Co., 648 F. Supp. 1400, 1401 (E.D. Tex. 1986); Greiner v. Am. Motor Sales Corp., 645 F. Supp. 277, 278 (E.D. Tex. 1986)).
Although plaintiffs contend a factor weighing against transfer is that counsel for both parties office in this district, the convenience of counsel is irrelevant to the § 1404(a) equation. See In re Horseshoe Entm't, 337 F.3d 429, 434 (5th Cir. 2003); Young v. Armstrong World Indus., Inc., 601 F. Supp. 399, 402 (N.D. Tex. 1984) (Sanders, J.) (holding that "convenience of counsel is not an appropriate consideration").
"The moving parties bear the burden of proving by a preponderance of the evidence that transfer is appropriate. This requires a particularized showing regarding why transfer is necessary, including identification of key witnesses and the general content of their testimony." Id. at 812 (citations omitted). "Plaintiff's choice of forum is entitled to substantial weight and should be highly esteemed. The court may not transfer venue where the result will be merely to shift the burden of the trial from one party to the other." Id. (citations omitted).
III
The court now considers the factors that guide its decision.
A
The first factor is plaintiffs' choice of forum. This choice is usually entitled to substantial weight and should be highly esteemed. Bank One, 211 F.Supp.2d at 812. "However, the plaintiff's choice of forum has reduced significance where most of the operative facts occurred outside the district." Minka Lighting, Inc. v. Trans Globe Imps., Inc., 2003 WL 21251684, at *1 (N.D. Tex. May 23, 2003) (Fish, C.J.) (citing Lindloff v. Schenectady Int'l, 950 F. Supp. 183, 185 (E.D. Tex. 1996); Robertson v. Kiamichi R.R. Co., 42 F.Supp.2d 651, 656 (E.D. Tex. 1999)). Accordingly, although this factor weighs in plaintiffs' favor, the court gives it reduced significance.
B
The court next considers the availability of compulsory process for the attendance of unwilling witnesses. There are limits on a party's ability to compel witnesses who live more than 100 miles from the court where the trial will be held. Fed.R.Civ.P. 45(c)(3)(A)(ii) provides that, on timely motion, a court
In its brief, SunTrust appears to suggest that non-party witnesses who reside more than 100 miles from the courthouse cannot be compelled to testify at trial. See Ds. Br. at 10-11. This is partially correct but fails to account for the full effect of Fed.R.Civ.P. 45(c)(3)(A)(ii) and (B)(iii).
shall quash or modify [a] subpoena if it . . . requires a person who is not a party or an officer of a party to travel to a place more than 100 miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c) (3) (B) (iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held[.]
Rule 45(c)(3)(B)(iii) provides that
[i]f a subpoena . . . requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
SunTrust has identified three non-party witnesses whose testimony will be required at trial and who it believes may be unwilling to testify: Pyles, Fountas, and Palli. The sole reason it cites for why these witnesses would be unwilling to testify is that it has been several years since Pyles and Fountas have been involved in the St. Eustatius matter and Pyles withdrew as counsel. This assertion is not supported by evidence.
SunTrust also asserts that for the convenience of several other witnesses, including other Baker Hostetler attorneys and former and current employees of SunTrust, the case should be transferred to Florida. It does not, however, identify which, if any, of these potential witnesses would be unwilling to testify; it merely states that the witnesses are not subject to compulsory process. Accordingly, this factor weighs against transferring the case.
C
The court now considers the cost of obtaining the attendance of willing witnesses.
"The convenience of the witnesses is often regarded as the most important factor to be considered in deciding whether to transfer venue. However, it is the convenience of the non-party witnesses that is accorded the greatest weight." Minka Lighting, 2003 WL 21251684, at *2 (citations omitted). Because SunTrust bears the burden of proving that the case should be transferred, it must identify the "key witnesses and the general content of their testimony." Bank One, 211 F.Supp.2d at 812 (citations omitted).
SunTrust identifies several non-party witnesses who it asserts have material knowledge of the facts, and it contends they will testify that SunTrust acted in accordance with its obligations under Florida law in serving as Trustee of the Trust. Compulsory process over these witnesses would be available in Florida, but not Texas. And assuming the witnesses would be willing to testify in Texas, the cost of transporting them to trial and covering their expenses while they are here could be substantial. Plaintiffs have failed to identify any material non-party witness who will be inconvenienced by transferring this case to the Middle District of Florida.
Plaintiffs posit that the convenience of SunTrust's witnesses should be accorded less weight because they are employees of the moving party. The court gives "less consideration to the convenience of witnesses who are employees of a party, as their testimony can be compelled." TIG Ins. Co. v. NAFCO Ins. Co., 177 F.Supp.2d 561, 569 (N.D. Tex. 2001) (Sanders, J.). Several SunTrust witnesses are neither employees nor parties. Thus their convenience should be given substantial weight.
Assuming that Pyles, Fountas, and Palli, whom plaintiffs identify as potentially unwilling to testify, are in fact willing to do so, the court includes them with Perez in the court's analysis of this issue.
SunTrust also vaguely refers to other current or former employees of SunTrust and residents of the Netherlands, Antilles who may be called to testify. These potential witnesses do not assist SunTrust, however, because it has not identified them and has provided no general outline of their anticipated testimony. See Bank One, N.A., 211 F.Supp.2d at 812.
Plaintiffs provide cost estimates for round trip flights from Orlando to Dallas, but they do not include in these figures expenses for meals, lodging, automobile rental, taxis, and similar costs that would increase the costs of obtaining non-party witness testimony at a trial in this district. This approach necessarily assumes that witnesses would fly to Dallas and return to Orlando without staying overnight and without incurring transportation costs between the airport and the courthouse. In the court's experience, such assumptions are based on unique rather than commonplace circumstances.
Plaintiffs mention in their surreply their offer to take witness depositions in Florida. While this would avoid the cost of transporting them to this district for discovery, it would not eliminate the cost of transporting them here for trial. SunTrust prefers to call these witnesses live. Calling them by deposition — even by video deposition — would deprive SunTrust of the benefit of presenting them in a manner that would enable the jury to judge their demeanor in the personal setting of the courtroom. See Peterson v. DAKA Int'l, Inc., No. 3:98-CV-0154-G, slip op. at 11 (N.D. Tex. Oct. 7, 1998) (Fish, J.) ("This court agrees that live testimony at trial is preferable to deposition testimony.").
Accordingly, the presence of several non-party witnesses in Florida whose testimony appears germane and essential, and the fact that no non-party witness is located in Texas, weighs in favor of transferring the case.
D
The court next addresses the accessibility and location of sources of proof, although noting that these considerations are less influential due to advances in copying technology and information storage. See Mohamed v. Mazda Motor Corp., 90 F.Supp.2d 757, 778 (E.D. Tex. 2000). SunTrust asserts that all its documents and employee records and other relevant documents and records maintained by non-party witnesses are located in Florida and the Netherlands, Antilles, but not in this district. SunTrust presents no evidence, however, indicating the number or volume of these documents or the potential inconvenience of transporting them. In fact, SunTrust admits in its reply brief that it is able to ship documents to Texas for production.Plaintiffs cite no evidence of any documents located in or near this district, and they concede that relevant documents are located in Florida. They maintain, however, that the number is insufficient to warrant transferring the case. Moreover, plaintiffs contend that this factor has little significance due to the availability of communications technology. Because SunTrust has not demonstrated that the number and volume of documents and records located in Florida will interfere with the accessibility to such sources of proof, this factor weighs against transferring the case.
Plaintiffs point out that SunTrust has only produced approximately 1,300 pages of documents in compliance with Rule 26(a) (1) (b), which provides that, without awaiting a discovery request, a party must provide "a copy of, or description by category and location of, all documents, data compilations, and tangible things in the possession, custody, or control of the party and the disclosing party may use to support its claims or defenses, unless solely for impeachment[.]"
E
The next factor is the relative congestion of the courts' dockets. According to the Administrative Offices of the United States Courts, and as SunTrust acknowledges, the median time interval for case resolution in this district is one and one-half months shorter than in the Middle District of Florida. This difference is immaterial, and this factor is neutral in the court's analysis.
F
The court now addresses the accessibility of the premises to jury view, the time, cost, and ease with which the trial can be conducted, and all other practical considerations relative to the trial and determination of this case.
SunTrust does not present any evidence of a need for accessability of the premises to jury view, and it would be rare for this court to conduct a jury view in any event. Nor has SunTrust demonstrated that the case should be transferred based on considerations of time, cost, and ease with which the trial can be conducted.
Because both sides agree, however, that Florida law will apply, the court will give weight to the fact that the Will and the Trust are governed by Florida law. See Laumann Mfg. Corp. v. Castings USA, Inc., 913 F. Supp. 712, 721-22 (E.D.N.Y. 1996) (citing Filmline (Cross-Country) Prods. v. United Artists, 865 F.2d 513, 520 (2d Cir. 1989); 15 Charles Alan Wright, et al., Federal Practice and Procedure § 3854, at 466-68 (2d ed. 1986)). "There is an appropriateness . . . in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself." Van Dusen v. Barrack, 376 U.S. 612, 645 (1964) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509 (1947)). Because Florida law governs the Will and Trust, this factor weighs in favor of transferring the case.
G
The court now considers the relation of the community in which the courts and the jurors are required to serve to the occurrence giving rise to the suit. Plaintiffs contend that because SunTrust maintains offices throughout the state of Texas and several of the injured plaintiffs reside in Texas, Texas citizens have an interest in resolving this case. SunTrust maintains that because all the alleged acts and omissions took place in Florida and in relation to a trust created under Florida law, by a deceased citizen of Florida to govern her estate, Florida citizens have an interest in resolving it. The court finds that the interest of Florida citizens is greater and that this factor weighs in favor of transferring the case.
IV
Having weighed the factors together, the court finds, for the convenience of the parties and witnesses and in the interest of justice, that this case should be transferred. SunTrust needs to call several non-party witnesses who are located in Florida. It must incur the expense of bringing them to Texas for trial. No such non-party witness is located in Texas, and plaintiffs will not incur the expense of transporting them to Florida. Florida citizens have a greater interest in resolving the case, and Florida law governs. This case is about the conduct of a Florida trustee with respect to a Florida trust created by a Florida resident and governed by Florida law. The relevant conveniences and the interest of justice point to trying it there.
At various points in the briefing, plaintiffs compare their financial standing to that of SunTrust's to support their contention that the burden of litigating this case in Florida is greater on them than it is on SunTrust in litigating the case in Texas. But this is more the result of their being beneficiaries of a trust created by a Florida citizen, in Florida, with a Florida trustee, under Florida law, involving an interest in property in the Netherlands, Antilles. In other words, plaintiffs have been remotely located from the geographic center of the conduct at issue simply as a function of where they reside in relation to where the relevant decedent, documents, property, and trust services are or were located or performed. The court has not rendered them more distant by transferring the case to Florida, nor is it unfair to them to require that they litigate the suit there.
* * *
SunTrust's April 29, 2004 motion to transfer is granted, and this case is transferred to the Middle District of Florida, Orlando Division. The clerk of court shall effect the transfer according to the usual procedure.