Morrison Constr. Co. v. Blurock Concrete, LLC
Morrison Constr. Co. v. Blurock Concrete, LLC
Opinion of the Court
Before the Court are Defendant BluRock Concrete, LLC's Motion to Dismiss *1159for Improper Venue or, in the alternative, Transfer This Action to the District of Kansas ("venue motion") (Doc. 10) and Plaintiff Morrison Construction Company's Motion to Remand (Doc. 14). For reasons discussed below, both motions are DENIED.
I. Factual and Procedural Background
Plaintiff is an Oklahoma corporation located in Tulsa, OK, and Defendant is a Kansas LLC located in Wichita, KS. (Doc. 2-1, pg. 10.) Plaintiff and Defendant entered into a contract for Defendant to provide services and materials for a construction project ("project") located in Arkansas City, KS. (Doc. 2-1, ¶ 4, 7.) Plaintiff alleges that Defendant failed to fulfill its contractual obligations, including failure to pay vendors, causing delays to the project and damages. (Doc. 2-1, ¶ 17, 22, 23.) Plaintiff also alleges that Defendant made intentional and negligent misrepresentations about its ability to complete the work. (Doc. 2-1, ¶ 38-47.)
Plaintiff filed this case in Tulsa County District Court on December 14, 2017, alleging causes of action for breach of contract, promissory estoppel, delay in performance, intentional misrepresentation, negligent misrepresentation, unjust enrichment, and "constructive fraud and deceit." Plaintiff also requested damages "in excess of $ 75,000." (Doc. 2-1, pg. 9.) Defendant removed this case to this Court on the basis of diversity jurisdiction on January 25, 2018. (Doc. 2.) Plaintiff does not contest that the parties are diverse for removal purposes.
Defendant filed its venue motion on February 1, 2018, alleging that the requirements for proper venue are not met and, in the alternative, that the case should be transferred for the convenience of parties and witnesses. (Doc. 10.) Plaintiff filed its Motion to Remand on February 26, 2018, alleging that removal on the basis of diversity jurisdiction was not appropriate, as the case does not satisfy the amount in controversy requirement. (Doc. 14.)
II. Motion to Remand (Doc. 14)
A. Removal Law
Any state court case that could have been filed in federal court can also be removed to federal court. See
The amount in controversy requirement can be established by a plaintiff's allegation that the amount in controversy exceeds $ 75,000, or by a defendant coming forward with evidence of jurisdictional facts supporting a conclusion that the amount in controversy exceeds $ 75,000. See McPhail v. Deere & Co. ,
*1160Whitham v. Progressive Northern Ins. Co. , No. 19-cv-0055-CVE-FHM,
B. Remand is not Appropriate
The Court finds that Plaintiff's Motion to Remand should be denied, because the case was properly removed on the basis of diversity jurisdiction. As Plaintiff concedes, at the time it filed this action, it held the good faith belief that the recovery would be in excess of $ 75,000. (Doc. 14, pg. 3.) Plaintiff stated that "since the filing of the lawsuit , some invoices have been paid, certain delay charges that were anticipated from the owner of the project have not been charged to date, damages have been recalculated, and Plaintiff no longer believes the amount in controversy exceeds $ 75,000." (Doc. 14, pg. 3) (emphasis added). In an affidavit attached to its Motion to Remand, Plaintiff's president stated that as of February 22, 2018, Defendant owed Plaintiff $ 14,861.53, and that the owner of the project "has not [invoked its right to assess] back charges against Morrison, and Morrison now anticipates that the owner intends to waive the right to the same." (Doc. 14-1, ¶ 9.)
However, none of these facts were established at the time of removal. When Defendant removed this case, it cited Plaintiff's allegation that the amount in controversy would be in excess of $ 75,000. The Tenth Circuit has held that "[g]enerally, the amount sued for fixes the amount in controversy for jurisdictional purposes." Huffman v. Saul Holdings Ltd. Pshp. ,
III. Venue Motion
A. Venue is Proper
Defendant moves for dismissal under Federal Rule of Civil Procedure 12(b)(3) based on its allegation that venue is improper here. Defendant alleges that venue is improper in this Court under
*1161B. Transfer under
Defendant alternatively requests that the Court transfer this case to the District of Kansas pursuant to
This case "might have been brought" in the District of Kansas. Under § 1391(b), venue is proper "in a judicial district in which any defendant resides." It is uncontested that Defendant is a citizen of Kansas. Accordingly, the case might have been brought in the District of Kansas, and the Court may proceed to its analysis of the discretionary factors.
In considering a motion to transfer under § 1404(a), the court must weigh the following discretionary factors:
the plaintiff's choice of forum; the accessibility of witnesses and other sources of proof, including the availability of compulsory process to insure attendance of witnesses; the cost of making the necessary proof; questions as to the enforceability of a judgment if one is obtained; relative advantages and obstacles to a fair trial; difficulties that may arise from congested dockets; the possibility of the existence of questions arising in the area of conflict of laws; the advantage of having a local court determine questions of local law; and [ ] all other considerations of a practical nature that make a trial easy, expeditious and economical.
Emplrs. Mut. Cas. Co. ,
The parties have not meaningfully contested the fourth, fifth, and sixth factors; accordingly, the Court finds them to be neutral. The Court addresses the remaining factors in turn.
1. Plaintiffs' Choice of Forum
"[U]nless the balance is strongly in favor of the movant[,] the plaintiff's choice of forum should rarely be disturbed." See Emplrs. Mut. Cas. Co. ,
2. Accessibility of Witnesses and Other Sources of Proof
Defendant has not established that accessibility of witnesses and other *1162sources of proof weighs in favor of transferring this case. For example, Defendant concedes that "[t]he location of documents should not be an issue in this case." (Doc. 10, pg. 8.) Additionally, "[t]he convenience of witnesses is the most important factor in deciding a motion to dismiss under § 1404(a). To demonstrate inconvenience, the movant must (1) identify the witnesses and their locations; (2) indicate the quality or materiality of their testimony; and (3) show that any such witnesses were unwilling to come to trial, that deposition testimony would be unsatisfactory, or that the use of compulsory process would be necessary." See Emplrs. Mut. Cas. Co. ,
3. The Cost of Making the Necessary Proof
Defendant argues that it is a small company that will experience a great deal of disruption if its employees are required to travel to this district for litigation activities, including depositions and trials. However, as Defendant concedes, Plaintiff and its employees are located in Tulsa, and would be required to travel to the District of Kansas if the matter is transferred. Defendant has failed to demonstrate, or even allege, that transfer of venue will not simply shift costs from one party to another, or that Plaintiff is somehow better equipped to bear these costs. Finally, it appears from the record that both parties have retained counsel located in Tulsa, OK, indicating that litigating this case in the District of Kansas may actually add to the cost of either attorney travel or local counsel. This factor weighs against transfer.
4. The Possibility of the Existence of Questions Arising in the Area of Conflict of Law
In a diversity action such as this one, courts prefer that the action be adjudicated by a court sitting in the state that provides the substantive law. See Emplrs. Mut. Cas. Co. ,
5. The Advantage of Having a Local Court Determine Questions of Local Law
"When the merits of an action are unique to a particular locale, courts *1163favor adjudication by a court sitting in that locale."
6. All Other Considerations of a Practical Nature that Make a Trial Easy, Expeditious, and Economical
In Defendant's discussion of this factor, it emphasizes its lack of contacts with Oklahoma. In doing so, Defendant appears to conflate the § 1404(a) venue analysis with personal jurisdiction analysis. See Benton v. Cameco Corp. ,
Accordingly, Defendant has not demonstrated that transfer is appropriate pursuant to § 1404(a). While some factors weigh in favor of transfer, most factors do not-including the most important factors, Plaintiff's choice of forum and the convenience of the witnesses. Accordingly, transfer is not appropriate pursuant to § 1404(a).
IV. Conclusion
For the reasons set forth above, the Court finds that Plaintiff has failed to establish a that the amount in controversy requirement is not satisfied and that Defendant has failed to demonstrate that transfer of venue is appropriate. For these reasons, both Defendant's Motion to Dismiss for Improper Venue or, in the alternative, Transfer This Action to the District of Kansas (Doc. 10) and Plaintiff's Motion to Remand (Doc. 14) are DENIED.
In its Reply, Defendant argues that a district court in the Tenth Circuit found that a defendant had not waived a forum selection clause by removing the case to federal court, and that this reasoning applies equally to the venue statute in this case. However, the Court finds it improper to consider an argument first raised in a reply, to which Plaintiff lacked a meaningful opportunity to respond. See United States v. Herget ,
The resolution of this dispute will not change the outcome of the venue motion and the Court declines to determine which state's substantive law applies without further briefing.
Reference
- Full Case Name
- MORRISON CONSTRUCTION CO., an Oklahoma corporation v. BLUROCK CONCRETE, LLC a Kansas limited liability company
- Cited By
- 3 cases
- Status
- Published