United States District Court, S.D. Ohio
THE HUNTINGTON NATIONAL BANK, assignee of FIFTH THIRD BANK, Plaintiff,
RALPH MILMAN, EPHRAT K. AFEK, RONEN KOUBI, TEMPEST TRANSPORTATION, INC., FLORAL LOGISTICES OF CALIFORNIA, INC., FLORAL LOGISTICS OF MIAMI, INC. FLORIDA BEAUTY EXPRESS, INC. and FLORIDA BEAUTY FLORAL, INC., Defendants.
Barry Fischer United States District Judge.
diversity action, Plaintiff Huntington National Bank alleges
that Defendants Ralph Milman et al. breached
personal guarantees pertaining to a lease entered into by
non-party Optimized Leasing, Inc, which is currently in
bankruptcy proceedings in the U.S. Bankruptcy Court for the
Southern District of Florida. (Docket Nos. 1; 17). The
personal guarantees were negotiated between 2014 and 2016 by
Plaintiff's predecessor, Fifth Third Bank, which, like
Plaintiff, is based in Ohio and Defendants, which are
residents of either Florida and California. (Id.).
Each of the personal guarantees contain a forum selection
clause designating the state and federal courts in Hamilton
County, Ohio as appropriate venues, with Defendants waiving
any objections to venue or jurisdiction in those courts.
(Docket Nos. 1-5:1-11). Presently before the Court is a
motion to dismiss for lack of personal jurisdiction and/or
venue filed by Defendants, wherein they contend that there
are not sufficient contacts with this District for purposes
of venue and/or personal jurisdiction. (Docket Nos. 16, 17).
In opposition, Plaintiff suggests that forum specific
contacts occurred starting in October of 2017 at which time
the file was assigned to a Pittsburgh-based employee who
engaged in collection efforts from this District by
exchanging correspondence and other communications with
certain of the individual Defendants who were out of state at
the time. (Docket No. 22). Plaintiff further contends that if
the Court finds that venue or personal jurisdiction are
lacking, the Court should transfer the case to the U.S.
District Court for the Southern District of Ohio rather than
dismissing the action. (Id.). After careful
consideration of the parties' positions, and for the
following reasons, Defendants' motion  is granted, in
part and denied, in part and this matter will be transferred
to the U.S. District Court for the Southern District of Ohio,
the question of personal jurisdiction is typically decided in
advance of venue, a court may proceed to the consideration of
venue whenever there is sound justification for its doing
so.'” Armstrong Dev. Properties, Inc. v.
Ellison, Civ. A. No. 13-1590, 2014 WL 1452322, at *4
(W.D. Pa. Apr. 14, 2014) (quoting Centimark Corp. v.
Saffold, Civ. A. No. 07-342, 2007 WL 2317350, at *1
(W.D.Pa. Aug.8, 2007) (Lancaster, J.), which cited Leroy
v. Great Western United Corp., 443 U.S. 173, 180, 99
S.Ct. 2710, 61 L.Ed.2d 464 (1979)). “Courts have
recognized that such a sound justification arises if the
resolution of contested issues on personal jurisdiction is
not in the interests of judicial economy due to the
complexity of the issues raised and the Court finds that
venue should more appropriately lie in another
District.” Id. In this Court's estimation,
a transfer of venue is appropriate under either 28 U.S.C.
§§ 1404 or 1406 such that it is in the interest of
judicial economy to proceed to decide the contested venue
issues which are dispositive.
it appears that the U.S. District Court for the Western
District of Pennsylvania is an improper venue for litigation
surrounding the alleged breach of personal guarantees
negotiated between a bank based in the Southern District of
Ohio (with offices in Florida) and Defendants who are
residents of Florida and California. See 28 U.S.C.
§ 1391(a) (“A civil action may be brought in--(1)
a judicial district in which any defendant resides, if all
defendants are residents of the State in which the district
is located; (2) a judicial district in which a substantial
part of the events or omissions giving rise to the claim
occurred, or a substantial part of property that is the
subject of the action is situated; or (3) if there is no
district in which an action may otherwise be brought as
provided in this section, any judicial district in which any
defendant is subject to the court's personal jurisdiction
with respect to such action.”). The only evidence of a
connection to this District concerns unilateral action taken
by the Plaintiff to use employees in its Pittsburgh Office
(rather than its Columbus headquarters) to engage Defendants
for collection purposes after the default had occurred.
(Docket No. 22-1). But, this Court has held that these types
of contacts are generally not sufficient to demonstrate that
Defendants purposefully availed themselves to being sued in
this District. See e.g., Smith v. Integral Consulting
Serv., Inc., 2014 WL 4828972, at 11* (W.D. Pa. Sept. 29,
2014) (listing cases and holding that personal jurisdiction
was not satisfied by contacts with the District occasioned by
the unilateral movement of the plaintiff and communications
sent and received while he was located here). Accordingly,
venue is improper in this District, warranting a transfer to
the more appropriate venue in the U.S. District Court for the
Southern District of Ohio. See 28 U.S.C. §
1406(a) (“[t]he district court of a district in which
is filed a case laying venue in the wrong division or
district shall dismiss, or if it be in the interest of
justice, transfer such case to any district or division in
which it could have been brought.”).
Discretionary Transfer of Venue
alternative, insofar as venue properly lies here, the Court
would exercise its discretion to transfer this matter under
28 U.S.C. § 1404(a) after considering all of the factors
in Jumara v. State Farm Ins. Co., 55 F.3d 873, 879
(3d Cir.1995), as a careful weighing of those factors
strongly suggest that such a transfer is in the interests of
justice. The relevant private interests for consideration
include: (1) each party's forum preference; (2) where the
claims arose; (3) the convenience of the parties; (4) the
convenience of the witnesses; and (5) the location of the
books and records. Id. The cited public interests
include: (1) the enforceability of the judgment; (2)
practical considerations of expediting trial and reducing
costs; (3) administrative difficulties in the two fora due to
court congestion; (4) the local interest in deciding local
controversies; (5) public policies of the fora; and (6) the
familiarity of the trial judge with the applicable state law.
Id. at 879-80.
respect to the relevant private interests, all of the factors
support the transfer, strongly counseling the Court to
transfer this case to the U.S. District Court for the
Southern District of Ohio. Jumara, 55 F.3d at 879.
In this regard, Plaintiff's forum preference is given
little weight because: the personal guarantees all contain
forum selection clauses listing the Courts in Hamilton
County, Ohio as an appropriate forum, which includes the U.S.
District Court for the Southern District of Ohio; Plaintiff
maintains its headquarters in Columbus, Ohio, which is within
that District; the personal guarantees are governed by Ohio
law; and Plaintiff has brought suit here against non-resident
Defendants, which have waived any objection to the transferee
venue. See e.g., See Dawes v. Publish Am. LLLP, 563
Fed.Appx. 117, 118 (3d Cir.2014), cert. denied sub nom .,
Dawes v. Publish Am. LLP, ___ U.S. ___, 135 S.Ct. 1159,
190 L.Ed.2d 917 (2015) (citations omitted) (“If the
contract does not contain a mandatory forum selection clause,
then a forum non conveniens analysis applies.”);
Carpenters Combined Funds, Inc. ex rel. Klein v. Kelly
Systems, Inc., Civ. A. No. 14-1681, 2015 WL 3457872, at
*8 (W.D. Pa. May 29, 2015) (transfer lightly disturbed as
Plaintiff maintained offices in transferee District). As to
where the claims arose, the guarantees were not negotiated in
this District, the contracts were not performed here and the
only connection appears to be the unilateral decision by
Plaintiff to use its employees in its Pittsburgh office to
attempt to collect from Defendants. See Northgate
Processing, Inc. v. Spirongo Slag McDonald, LLC, Civ. A.
No. 15-1116, 2015 WL 7308675, at *3 (W.D. Pa. Nov. 19, 2015)
(transferring case to Ohio in case where “the facts are
clear that the claims Plaintiffs are pursuing in this case
arose, if at all, through conduct which took place (or is
still taking place) in Ohio and the connection to
Pennsylvania is attenuated, at best.”). The convenience
of the parties and location of the books and records
similarly favor transfer because, again, the parties agreed
to litigate in that District and any evidence can be produced
there electronically. Jumara, 55 F.3d at 879.
relevant public factors favoring the transfer include the
first, third, fourth, and sixth factors, which compel this
Court to exercise its discretion to transfer the matter.
Jumara, 55 F.3d at 879-80. As to the enforceability
of the judgment, the Defendants have raised a significant
defense that this Court lacks personal jurisdiction over them
which is not an impediment if the litigation proceeds in the
Southern District of Ohio given the forum selection clause.
(See Docket Nos. 16, 17). Further, there is little
local interest in this controversy involving out-of-state
parties and while this Court is capable of determining and
applying Ohio common law to the parties' claims and
defenses in this litigation, the Judges sitting in Ohio have
more experience in these areas. See Northgate, 2015
WL 7308675, at *4. With respect to court congestion, this
Court is presently operating with six judicial vacancies (out
of ten seats), three of which have been empty for almost five
years, while the Southern District of Ohio has two vacancies
(out of eight seats), lending further support to the
Court's decision. See Administrative Office of U.S.
Courts, Current JudicialVacancies,
vacancies/current-judicial-vacancies (last visited
5/18/18). The remaining public factors are largely neutral.
But, an overall weighing of the Jumara factors
plainly supports a transfer to the U.S. District Court for
the Southern District of Ohio. Jumara, 55 F.3d at
on the foregoing, Defendants' Motion  is granted, in
part, and denied, in part. Said motion is granted to the
extent that the case will be transferred to the U.S. District
Court for the Southern District of Ohio, Western Division and