Williamson–dickie Mfg. Co. v. M/V Heinrich J

• Decision Date: 31 January 2011
• Docket Number: Civil Action No. H–10–1620.
• Citation: 762 F.Supp.2d 1023
• Parties: WILLIAMSON–DICKIE MANUFACTURING COMPANY, Plaintiff,v.M/V HEINRICH J, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

762 F.Supp.2d 1023

WILLIAMSON–DICKIE MANUFACTURING COMPANY, Plaintiff,

v.M/V HEINRICH J, et al., Defendants.

Civil Action No. H–10–1620.

United States District Court, S.D. Texas, Houston Division.

Jan. 31, 2011.

Robert C. Oliver, Sharpe Oliver LLP, Houston, TX, for Plaintiff.Dennis John Sullivan, Stepp Sullivan P.C., Keith Bernard Letourneau, Bell Ryniker et al., Houston, TX, Vic Houston Henry, Henry Oddo Austin & Fletcher, P.C., Dallas, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

KENNETH M. HOYT, District Judge.I. Introduction

Pending before the Court is the defendant's, Seaboard Marine Ltd., motion to dismiss with an alternative motion to transfer (Docket Entry No. 15). ¹ Another defendant, Evans Delivery Company, Inc., filed a response to Seaboard's motion (Docket Entry No. 23).² The plaintiff, Williamson–Dickie Manufacturing Company, also filed a response in opposition to Seaboard's motion (Docket Entry No. 24), to which Seaboard filed a reply (Docket Entry No. 25). After having carefully reviewed motion, the responses, the record and the applicable law the Court denies both of Seaboard's motions.

II. Factual Background

This action involves alleged water, mold and mildew contamination of a containerized shipment of work apparel carried over the road in Guatemala from Amatitlan to Santo Tomas De Castilla, aboard the M/V HEINRICH J from Santo Tomas De Castilla to New Orleans, Louisiana, and then again over the road from New Orleans to Fort Worth, Texas. The plaintiff contends that its cargo, in good condition, was tendered to Astor and Seaboard for shipment from Amatitlan on May 16, 2009. The plaintiff further contends that Evans received custody of the cargo in New Orleans on May 22, 2009 and then transported it to Fort Worth, where the plaintiff discovered that it was damaged. A June 15, 2009 survey at the plaintiff's Fort Worth facility indicated that the container had been received with a hole in its roof panel. Due to as-yet undetermined causes, the plaintiff alleges that the cargo was damaged during multiple legs of its journey from Guatemala to Fort Worth. The plaintiff seeks to recover $138,028.98 for the cargo damages, plus interest dating from May 16, 2009.

The plaintiff is incorporated in Delaware with its principal place of business in Fort Worth, Texas. Astor (owner of the M/V HEINRICH J at all relevant times) is a foreign entity. The plaintiff contends that Seaboard (charterer and/or operator of the M/V HEINRICH J at all relevant times) is a Liberian corporation with a registered agent in Austin, Texas, but Seaboard claims that it is headquartered in Florida. Evans is a Pennsylvania corporation with its principal place of business in Pennsylvania.

On May 6, 2010, the plaintiff filed suit against the defendants. On July 7, 2010, Seaboard filed its answer. On July 8, 2010, Seaboard filed the present motion to dismiss, with an alternative motion to transfer, contending that venue is improper based on a forum selection clause.

III. Contentions of the PartiesA. Seaboard's Contentions

Seaboard claims that venue is improper due to the forum selection clause contained in the bill of lading between Seaboard and the plaintiff, which specifies that any suit must be brought in the United States District Court for the Southern District of Florida, Miami Division. Thus, Seaboard contends that dismissal is appropriate pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a). Seaboard disputes the plaintiff and Evans' claims that Seaboard waived its ability to seek a motion to dismiss, asserting that it preserved its ability to seek dismissal in its original answer. Alternatively, Seaboard contends that transfer is appropriate pursuant to 28 U.S.C. § 1404(a), because the balance of Section 1404(a) factors weighs in favor of transfer.

B. The Plaintiff and Evans' Contentions ³

The plaintiff and Evans contend that, pursuant to Federal Rule of Civil Procedure 12(g)-(h), Seaboard waived its ability to seek dismissal of this case for improper venue when it failed to raise a specific objection or defense to venue in its answer. The plaintiff contends that Seaboard is now precluded from raising an objection or defense to venue pursuant to Federal Rule of Civil Procedure 12(g), and Evans contends that Seaboard is precluded pursuant to Rule 12(h). They also claim that, even if timely, Seaboard improperly asserted its motion to dismiss because the majority of district courts in the Fifth Circuit prefer transfer rather than dismissal for improper venue, when possible. Finally, they assert that the balance of applicable Section 1404(a) factors dictates against a venue transfer.

IV. Standards of ReviewA. Federal Rule of Civil Procedure 12(b)(3)

“Federal Rule of Civil Procedure 12(b)(3) permits a defendant to [timely] move to dismiss an action on the basis of improper venue.” Laserdynamics Inc. v. Acer Am. Corp., 209 F.R.D. 388, 390 (S.D.Tex.2002) (internal citations omitted); De Joseph v. Odfjell Tankers (USA), Inc., 196 F.Supp.2d 476, 479 (S.D.Tex.2002) (internal citations omitted). The majority of courts conform to the standard that once a defendant has raised the improper venue issue by motion, the burden of sustaining venue rests with the plaintiff. McCaskey v. Cont'l Airlines, Inc., 133 F.Supp.2d 514, 523 (S.D.Tex.2001) (internal citations omitted); Bigham v. Envirocare of Utah, Inc., 123 F.Supp.2d 1046, 1048 (S.D.Tex.2000) (internal citations omitted). In the absence of an evidentiary hearing on the matter, courts will allow a plaintiff to carry this burden by establishing facts, taken as true, that establish venue. McCaskey, 133 F.Supp.2d at 523 (internal citations omitted); Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.1994) (internal citation omitted). The Court will “accept uncontroverted facts contained in the plaintiff's complaint as true, and resolve any conflicts in the parties' affidavits in the plaintiff's favor.” McCaskey, 133 F.Supp.2d at 523 (internal citation omitted). While a defendant need not affirmatively disprove all bases for a plaintiff's choice of venue, courts will provide the plaintiff the benefit of the doubt in ascertaining the controlling facts. McCaskey at 523.

B. Motion to Transfer Pursuant to 28 U.S.C. § 1404(a)

A motion to transfer venue from one district court to another is governed by 28 U.S.C. § 1404(a). Specifically, § 1404(a) gives a federal court discretion to “transfer any civil action to any other district or division where it might have been brought” if to do so would be convenient for the parties and witnesses and “in the interest of justice.” 28 U.S.C. § 1404(a). “[T]he purpose of [Section 1404(a) ] is to prevent the waste ‘of time, energy and money’ and ‘to protect litigants, witnesses and the public against unnecessary inconvenience and expense.’ ” Van Dusen v. Barrack, 376 U.S. 612, 616, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (quoting Cont'l Grain Co. v. Barge F.B.L.–585, 364 U.S. 19, 26–27, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960)); see also, Spiegelberg v. Collegiate Licensing Co., 402 F.Supp.2d 786, 789 (S.D.Tex.2005). The movant, however, bears the burden of proving that a transfer is necessary. Spiegelberg, 402 F.Supp.2d at 789; see also, Peteet v. Dow Chem. Co., 868 F.2d 1428, 1436 (5th Cir.1989).

The first issue that a district court must consider in evaluating a motion under Section 1404(a) “is the question of whether the judicial district to which transfer is sought qualifies under the applicable venue statutes as a judicial district where the civil action ‘might have been brought.’ ” In re Horseshoe Entm't, 337 F.3d 429, 433 (5th Cir.2003), cert. denied, 540 U.S. 1049, 124 S.Ct. 826, 157 L.Ed.2d 698 (2003); see also, In re Volkswagen AG, 371 F.3d 201, 203 (5th Cir.2004). Next, a district court must consider the issue of “the convenience of the parties and witnesses,” which “turns on a number of private and public interest factors, none of which are given dispositive weight.” In re Volkswagen AG, 371 F.3d at 203 (citations omitted); see also, Amini Innovation Corp. v. Bank & Estate Liquidators, Inc., 512 F.Supp.2d 1039, 1043 (S.D.Tex.2007). The private interest factors include:

(1) the relative ease of access to sources of proof; (2) the availability of compulsory process to secure the attendance of witnesses; (3) the cost of attendance for willing witnesses; and (4) all other practical problems that make trial of a case easy, expeditious and inexpensive.

In re Volkswagen AG, 371 F.3d at 203 (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n. 6, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)). The public interest factors include:

(1) the administrative difficulties flowing from court congestion; (2) the local interest in having localized interests decided at home; (3) the familiarity of the forum with the law that will govern the case; and (4) the avoidance of unnecessary problems of conflict of laws of the application of foreign law.

In re Volkswagen AG at 203 (citing Piper Aircraft Co. at 241 n. 6, 102 S.Ct. 252).V. Analysis and Discussion

The Court denies Seaboard's motion for dismissal and its alternative motion for transfer because the Court determines that Seaboard waived its right to move for dismissal and because the balance of Section 1404(a) factors do not justify a transfer.

A. Motion to Dismiss

The Court denies Seaboard's motion to dismiss for improper venue because Seaboard waived its ability to do so by not specifically including that defense in its responsive pleading. See Federal Rule of Civil Procedure 12(h) (“A party waives any defense listed in Rule 12(b)(2)-(5) by ... failing to ... include it in a responsive pleading”). A “responsive” pleading under Rule 12 is the first pleading filed after the claim for relief is made. T & R Enters., Inc. v. Continental Grain Co., 613 F.2d 1272, 1277 (5th Cir.1980). If the party fails to assert a 12(b)(2)-(5) issue in either its first responsive pleading or a preceding Rule 12(b) m...