John W. Johnson, Inc. v. Atlantic States Construction Co.

• Decision Date: 09 November 1967
• Docket Number: Civ. No. 17766.
• Citation: 276 F. Supp. 379
• Parties: JOHN W. JOHNSON, INC. and N. W. Lyle, Inc. v. ATLANTIC STATES CONSTRUCTION COMPANY.
• Court: U.S. District Court — District of Maryland

276 F. Supp. 379

JOHN W. JOHNSON, INC. and N. W. Lyle, Inc. v. ATLANTIC STATES CONSTRUCTION COMPANY.

Civ. No. 17766.

United States District Court D. Maryland.

November 9, 1967.

James J. Cromwell, Silver Spring, for plaintiffs.

Eugene R. Simons, Atlanta, Ga., for defendant.

MEMORANDUM AND ORDER

FRANK A. KAUFMAN, District Judge.

Plaintiffs, John W. Johnson, Inc. ("Johnson"), a District of Columbia corporation, and N. W. Lyle, Inc. ("Lyle"), a Maryland corporation, describing themselves as joint venturers, filed a declaration in this case on September 30, 1966, against defendant, Atlantic States Construction Company ("Atlantic"), a Georgia corporation, in the Circuit Court for Montgomery County, Maryland, alleging that defendant is indebted to plaintiffs in the amount of $46,261.00, for materials sold and delivered and services performed. Summons was issued by the Circuit Court for Montgomery County on October 3, 1966.

On October 27, 1966, pursuant to 28 U.S.C. § 1441, defendant removed the case to this Court alleging the existence of diversity of citizenship and the jurisdictional amount. By affidavits of its officers filed in these proceedings, defendant has informed this Court that on January 27, 1965, Atlantic entered into a contract with the Georgia Ports Authority ("the Authority") to construct certain facilities for the Authority in Savannah, Chatham County, Georgia; that on April 19, 1965, Atlantic entered into a subcontract with Johnson pursuant to which Johnson was to perform all painting in connection with Atlantic's January 27, 1965 contract with the Authority; that later, at Johnson's request, the April 19, 1965 Atlantic-Johnson contract was amended on January 12, 1966, to delete certain work; and that on that latter date, Atlantic contracted with Lyle pursuant to which Lyle was to perform that portion of the work eliminated from the Atlantic-Johnson contract.

On November 1, 1966, defendant filed a Motion for Change of Venue in this Court, seeking to have this case transferred to the United States District Court for the Southern District of Georgia, Savannah Division, under the authority of 28 U.S.C. § 1404(a).¹ The defendant's affidavits state that the Authority is a quasi-public body of the State of Georgia; that both the Atlantic-Johnson and the Atlantic-Lyle subcontracts were entered into at Atlanta, Georgia; that in both of those subcontracts, the Authority is referred to as "Owner", Atlantic as "Contractor" and the Authority-Atlantic contract as the "General Contract"; that all of the work performed by plaintiffs under the two subcontracts was performed in Chatham County, Georgia; that the substantive issues in this case involve interpretations and determinations in connection with the Authority-Atlantic contract and the aforesaid two subcontracts; that all of those questions are governed by Georgia law;² that the witnesses called by Atlantic will include five representatives of the Authority, all of whom reside in Chatham County, Georgia, except one who resides in another county of Georgia, four representatives of the engineer-architect having authority and duties in connection with the Authority-Atlantic contract and the work thereunder, two of whom reside in Chatham County, Georgia and two in South Carolina, and five representatives of Atlantic, one of whom resides in Savannah, Chatham County, and one in a Georgia county other than Chatham, and three in Alabama; that Atlantic will be able to have all witnesses available to testify in this case if it is tried in Savannah, Georgia, but will have difficulty in securing the attendance of Georgia officials and of representatives of the engineer-architect if the case is tried in this Court; that there are voluminous records relevant to this case, of the Authority, Atlantic and others all of which are physically present in Georgia; that it may be important for the Court and the Jury to view the work performed by plaintiffs; that Johnson had previously performed work for Atlantic in Chatham County, Georgia, and in states other than Maryland; that Atlantic qualified to do business in Maryland solely for purposes of enabling it to enter into and perform work under a contract dated September 14, 1964, to construct Laurel Plaza Shopping Center, at Laurel, Maryland, which work was completed in November, 1965; that the only other business transacted in Maryland by Atlantic was the construction of another shopping center in Laurel, Maryland pursuant to a contract dated May 13, 1965, which work was completed in February, 1966; that since February, 1966, defendant has engaged in no activities in Maryland other than the filing of mechanics' liens for the balance of the sums due it pursuant to the two Laurel contracts and other than the commencement of foreclosure proceedings in connection with such liens in the Circuit Court for Prince George's County, Maryland; that no negotiations between plaintiffs and Atlantic in connection with the two subcontracts involved in this case occurred at defendant's Laurel, Maryland construction office; and that defendant had no office or assets in Maryland when this suit was instituted in September, 1966.

Plaintiffs, opposing Atlantic's Motion for Change of Venue, have filed an affidavit of Johnson's president stating that all of plaintiffs' records pertaining to their subcontracts with Atlantic are kept in Maryland; that all of plaintiffs' supervisory personnel involved in the performance of the subcontracts reside in Maryland or in the District of Columbia; and that an expert consultant, a corporation with its offices located in Maryland, was retained by plaintiffs, examined the work here in question, and reported its findings to plaintiffs, and that plaintiffs supplied those findings to defendant.

On January 6, 1967, defendant also filed an answer in this case, denying that it is indebted in any amount whatsoever to plaintiffs, and also alleging alternative defenses.

Counsel for all parties have informed this Court that no evidentiary hearing is desired in this case in connection with defendant's motion to transfer and that there is no dispute as to the basic facts stated hereinabove which has or might have any possible relevance with regard to that motion. This Court will therefore decide the issues raised by defendant's motion to transfer, without a hearing, pursuant to Local Rule 7 of this Court.

Section 1404(a) of 28 U.S.C. provides:

For 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. Emphasis supplied.

Assuming that a district court has the power to transfer this civil action under that statute as requested by defendant—that is to say, assuming that this proceeding could have been originally brought in the United States District Court for the Southern District of Georgia, Savannah Division — the exercise of that power is committed "to the sound discretion of the district court to be exercised in light of all the circumstances of the case." 1 J. Moore, Federal Practice ¶ 0.1455, at 1779 (2d ed. 1964). In opposing defendant's motion for a change of venue in this case, plaintiffs have raised questions which relate both to the power of this Court to grant the requested transfer, and to the exercise by this Court of its discretion if it has such power. Stated in the language of Section 1404(a), those questions are: (1) Is this an action which "might have been brought" by the plaintiffs in the transferee forum, i.e., the Savannah Division of the United States District Court for the Southern District of Georgia, within the meaning of that phrase? and (2) Would the trial of this case in that said Georgia Court rather than in this Court serve the "convenience of parties and witnesses" and be "in the interest of justice"?

This Court has little difficulty in concluding that the latter or second question must be answered in the affirmative. Georgia's points of contact with this case are much greater and more important than those of Maryland. The interest of both the litigants and of the public will almost surely be balanced if this case is transferred as defendant requests, even though, as the Fourth Circuit wrote, in Akers v. Norfolk and Western Ry. Co., 378 F.2d 78, 80 (4th Cir. 1967 (per curiam), "* * * the primary right of the plaintiff to choose his forum, is a selection not easily to be overthrown." The conclusion that this is a case which should be tried in Savannah, Georgia and not at Baltimore, Maryland, is well within the standards enunciated and elaborated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); by Judge Winter, then a District Judge sitting in this Court, in Paesch v. American Cyanamid Co., 257 F.Supp. 116 (D.Md. 1966), aff'd. in Paesch v. Winter, 366 F.2d 756 (4th Cir. 1966); by the authorities cited in Paesch v. American Cyanamid Co., supra, 257 F.Supp. at 117; in Morganstern v. Marriott-Hot Shoppes, Inc., 270 F.Supp. 75 (D.Md.1967); and by 1 J. Moore, Federal Practice ¶ 0.145 5, at 1780-1783 (2d ed 1964). This is particularly true in view of the conditions which this Court, following the pattern suggested in Paesch, supra, 366 F.2d at 757, and followed in Morganstern, supra, 270 F.Supp. at 77, is including in its within Order. These conditions require that defendant file in this case, before the within Order granting the motion of defendant to transfer becomes effective, an undertaking by defendant to pay the reasonable cost of necessary airplane or other travel between their respective Maryland or District of Columbia residences and Savannah, Georgia of plaintiffs' necessary witnesses and of their room and board in Savannah, Georgia, during the trial of this case; the reasonable additional or extra fees or compensation of plaintiffs' expert witnesses because the trial is held in Savannah, Georgia rather than in...