Opinion
Civil Action No. 1:02cv130GR
June 24, 2002
MEMORANDUM OPINION
This cause comes before the Court on motion of the defendant, Greyhound Lines, Inc., [Greyhound] to dismiss [4-1] this action because it was not filed in the proper venue or in the alternative, to transfer venue [4-2] of this action to the United States District Court for the Northern District of Texas, Dallas Division. The Court has duly considered the record in this action, in addition to the briefs of counsel, and, being fully advised in the premises, concludes as follows.
Statement of Facts
This suit was filed on March 4, 2002, in the Circuit Court of Harrison County, Mississippi. (Compl.) According to the allegations of the complaint, plaintiffs are Mississippi residents domiciled in Gulfport, Mississippi. ( Id., p. 1.) Greyhound is listed as a foreign corporation doing business in Mississippi, and Chen is listed as domiciled in Nogales, Arizona. ( Id., ¶ 1.) The plaintiffs contend that Greyhound owned and operated a bus which was traveling east on Interstate 20 in Texas on November 27, 2001, and Chen was moving in the same direction while operating his private vehicle. ( Id., ¶ 2.) The vehicles collided with each other, which the plaintiffs contend was due to the weather conditions and the negligence of the drivers. ( Id., p. 2) The plaintiffs were passengers on the bus and allegedly sustained disabling injuries as a result of the accident. ( Id., p. 4.)
The suit was removed to this Court by Greyhound on April 2, 2002, based on diversity of citizenship. (Ct. R., Doc. 1.) Greyhound contends that venue is not proper in this Court because none of the defendants in this case reside in Mississippi. (Mot. to Dismiss, p. 1.) Greyhound asserts that Chen lacks sufficient minimum contacts with the state of Mississippi to allow for jurisdiction over him, under 28 U.S.C. § 1391, because Chen does not reside in Mississippi and the tort did not occur in whole or part in this state. (Def's Mot. to Transfer, p. 2.) Greyhound maintains that the suit should be dismissed rather than transferred because under Mississippi law subject matter jurisdiction is lacking over Chen. ( Id.)
The plaintiffs contend that the voluntary removal by a defendant of a matter from state to federal court confers venue on the federal court. (Pl.' Resp., p. 2.) The plaintiffs maintain that when the case was removed to this Court from the Circuit Court of Harrison County, Mississippi, venue in this case is properly in this Court. ( Id.)
Greyhound argues that the state of Mississippi has no relation to the subject litigation and there is no jurisdiction over Chen in this Court. (Def's Reb., p. 2.) Greyhound contends that any claims brought against Chen would be severed from the claims against Greyhound, necessitating multiple litigation of the issues which would defeat judicial economy. ( Id.)
Discussion
I. Motion to Dismiss
Greyhound asserts that venue is improper in this case and moved for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(3). The plaintiffs correctly indicate that the general removal statutes do not apply in cases that are removed to federal court from state court. Polizzi v. Cowles Magazines, Inc., 345 U.S. 663, 665-6 (1953). In addition, a defendant's voluntary application for removal confers venue over that defendant. Seaboard Rice Milling Co. v. Chicago, RI. P. RR., 270 U.S. 363, 367 (1926). Both defendants in this case sought removal. (Ct. R., Docs. 1, 5.)
Venue in a case removed from state to federal court is governed by the removal statute, 28 U.S.C. § 1441, and not by 28 U.S.S. § 1391. Polizzi, 345 U.S. at 665. The underlying state court action in this case was filed in the Circuit Court for Harrison County, Mississippi. Removal to this Court was proper, because this is the court and division which embraces the place where the action was pending. 28 U.S.C. § 1441 (a).
Although both defendants removed the case, Chen did so reserving all objections to venue or jurisdiction. (Ct. R., Doc. 5.) A party who removes an action from state to federal court does not, by doing so, waive the defense of improper venue in the underlying state court action. PT United Can Co. Ltd v. Crown Cork Seal Co., 138 F.3d 65, 72 (2d Cir. 1998). The Court will examine the basis for jurisdiction in this case.
II. Personal Jurisdiction Over Chen
"A nonresident defendant is amenable to personal jurisdiction in a federal diversity case to the extent permitted in a state court in the state in which the federal court resides." Bullion, 895 F.2d at 215 (5th Cir. 1990) (citing Cycles, Ltd v. W.J. Digby, Inc., 889 F.2d 612, 616 (5th Cir. 1989); Thompson v. Chrysler Motors Corp., 755 F.2d 1162, 1165 (5th Cir. 1985) (citations omitted); Burger King Corp. v. Rudzewicz, 471 U.S. 462, 471-8 (1985). A federal court in diversity action "may assert jurisdiction if: (1) the state's long-arm statute applies, as interpreted by the state's courts; and (2) if due process is satisfied under the Fourteenth Amendment to the United States Constitution." Cycles, 889 F.2d at 616.
Mississippi's long-arm statute states in relevant part:
Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this state as to doing business herein, who shall make a contract with a resident of this state to be performed in whole or in part by any party in this state, or who shall commit a tort in whole or in part in this state against a resident or nonresident of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi and shall thereby be subjected to the jurisdiction of the courts of this state. Service of summons and process upon the defendant shall be had or made as is provided by the Mississippi Rules of Civil Procedure.
Miss. CODE ANN. § 13-3-57. The tort prong of the long-arm statute only applies if the nonresident defendant commits the tort, in whole or part, in the state of Mississippi. Miss. CODE ANN. § 13-3-57; Roxco, Ltd v. Harris Specialty Chem., Inc., 133 F. Supp.2d 911, 915 (S.D. Miss. 2000). Plaintiffs bear the burden of establishing that the defendant committed a tort in whole or in part against them within the state of Mississippi. Wilson v. Belin, 20 F.3d 644, 646-7 (5th Cir. 1994). In this case, the alleged injury occurred in Texas, not Mississippi. The Court, therefore, finds that it lacks personal jurisdiction over one of the named defendants in this case, Chen, and that this is not the proper venue for this case. Nonetheless, as in this case, a party may request a discretionary transfer to a more convenient district court forum under the transfer provision. 28 U.S.C. § 1404 (b). The Court, therefore, finds that the motion to dismiss for improper venue should be denied, and will consider the motion to transfer.
III. Transfer
In the alternative, the defendant seeks transfer of this action under 28 U.S.C. § 1404 (a). (Ct. R., Doc. 4.) Greyhound contends that because the accident occurred in Texas and all the witnesses and the accident scene are located in Texas that the matter should be transferred to the proper court in the state of Texas. (Ct. R., Doc. 12, p 1.)
Section 1404(a) states 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." 28 U.S.C. § 1404 (a). The burden is on the party seeking the transfer to establish by a preponderance of the evidence, that the transfer should be made. Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir. 1989), cert. denied sub nom, Dow Chem. Co. v. Greenhill, 493 U.S. 935; Medical Assur. Co. of Miss. v. Jackson, 864 F. Supp. 576, 580 (S.D. Miss. 1994). In determining whether to transfer venue in a particular case, the court must exercise its discretion in light of the particular circumstances of the parties and the circumstances of the case. Pierce v. Alleluia Cushion Co., 397 F. Supp. 338 (N.D.Miss. 1975); see Caldwell v. Palmetto State Sav. Bank, 811 F.2d 916, 919 (5th Cir. 1987).
Factors to be considered in determining the propriety of a transfer include the following: the availability and convenience of witnesses and parties, including consideration of the availability of compulsory process over witnesses; the location of counsel, and of books and records; the cost of obtaining attendance of witnesses and other trial expenses; the place of the alleged wrong, including the possibility for a view of the premises, if need be; the possibility of delay and prejudice if transfer is granted; the plaintiff's choice of forum, which is generally entitled to great deference, if it is not clearly outweighed by other factors; and "all other practical problems that make the trial of a case easy, expeditions and inexpensive." Apache Products Co. v. Employers Ins. of Wausau, 154 F.R.D. 650, 653 (S.D.Miss. 1994); Puerto v. Marine Transp. Lines, Inc., 976 F. Supp. 1072, 1073 (S.D.Tex. 1997)
"Transfer of a cause under section 1404(a) is limited to those situations in which the district to which transfer is sought is one where the plaintiff could have entertained the suit originally." Mizell V. Prism Computer Corp., 27 F. Supp.2d 708, 713 (S.D. Miss. 1998). Transfer is appropriate only to the court which would have been a proper venue and would have personal jurisdiction over all defendants if it had been the original forum. Frazier v. Commercial Credit Equip. Corp., 755 F. Supp. 163, 165 (S.D.Miss. 1991). The Court has determined that this court would not be a proper venue for this case. In addition, further factors favor transfer of this case.
When the plaintiffs' choice of forum has no factual nexus to the case, then courts are to give that choice of forum little weight. See Robertson v. Kiamichi RR., 42 F. Supp.2d 651, 656 (E.D.Tex. 1999); Paul v. International Metals Corp, 613 F. Supp. 174, 179 (S.D.Miss. 1985). Greyhound contends that most of the witnesses in this case would be required to travel from Texas to testify in the trial of this case. The witnesses have not been identified, other than the parties to this suit, which certainly live closer to Texas than Biloxi, Mississippi. The sources of proof weigh more heavily toward Texas because that is the location of the accident at issue in this suit. There is also no evidence of possible delay or prejudice if the motion to transfer is granted.
Plaintiffs have failed to present the Court with any evidence that would convince the Court that a transfer of this case to the Northern District of Texas would be unwarranted. It appears to the Court, which the plaintiffs have failed to refute, that the parties can try the cases more expeditiously and less expensively in Texas. The Court has a duty to administer cases in such a manner "to secure the just, speedy, and inexpensive determination of every action." FED R. CIV. P. 1. Although this Court recognizes the requisite weight to the plaintiffs' choice of forum, the Court finds that most of the relevant factors in this case preponderate in favor of transfer. Casarez v. Burlington Northern/Santa Fe Co., 193 F.3d 334, 339 (5th Cir. 1999), reh'g reh'g en banc denied 201 F.3d 383 (2000). Furthermore, the Court must address the jurisdictional issue before determining that this is the proper venue for the case. Accordingly, the Court concludes that the motion to transfer should be granted. The Court further finds, in the interest of justice, that this cause should be transferred to the Northern District of Texas, Dallas Division.
Conclusion
For the above stated reasons, the Court finds that the defendant's motion to dismiss [3-1] should be denied. The Court further finds that the motion to transfer this action [3-2] to the Northern District of Texas, Dallas Division, pursuant to 28 U.S.C. § 1404 (a), should be granted. A separate order in conformity with and incorporating by reference the foregoing Memorandum Opinion shall issue this date. Each party shall bear their respective costs associated with this motion.
ORDER
This cause comes before the Court on motion of the defendant, Greyhound Lines, Inc., [Greyhound] to dismiss [4-1] this action because it was not filed in the proper venue or in the alternative, to transfer venue [4-2] of this action to the United States District Court for the Northern District of Texas, Dallas Division. Pursuant to the Memorandum Opinion entered in this cause, this date, incorporated herein by reference, it is therefore,
ORDERED AND ADJUDGED that Greyhound's motion to dismiss [4-1] for improper venue be, and is hereby, denied. It is further,
ORDERED AND ADJUDGED that the motion to transfer venue [3-2] of this action to the Northern District of Texas, Dallas Division be, and is hereby, granted. The Clerk of Court is directed to mail this file along with a certified copy of this order to the Northern District of Texas, Dallas Division, after the expiration of ten days of the entry date of this judgment or by no earlier than July 15, 2002. It is further,
ORDERED AND ADJUDGED that any party attempting to circumvent the procedures of this Court shall be sanctioned. It is further,
ORDERED AND ADJUDGED that each party shall bear their respective costs associated with this motion.