United States District Court, E.D. Missouri, Eastern Division
EILEEN L. ZELL, Plaintiff,
DAVID DALE SUTTLE, et al., Defendants.
MEMORANDUM AND ORDER
G. FLEISSIG UNITED STATES DISTRICT JUDGE.
matter is before the Court on the renewed motion (ECF No. 28)
of Defendants Michael Mindlin and Elizabeth
Kurila to transfer this case pursuant to 28
U.S.C. § 1404(a) to the United States District Court for
the Southern District of Ohio, Eastern Division. For the
following reasons, the Court will deny the motion to
Eileen Zell initiated this action in the Eastern District of
Missouri on August 6, 2016. The action involves a $90, 000
promissory note made to Plaintiff that was signed in 2001.
The signatories to the note were Mindlin, his wife Kurila,
and Mindlin's business partner Suttle in their individual
capacities, and Mindlin and Suttle on behalf of their St.
Louis-based architectural firm Suttle Mindlin, LLC. Plaintiff
alleges that the Defendants did not repay the loan by the
original due date, and instead sought extensions on the loan,
making sporadic payments through 2010. On October 12, 2010,
Mindlin and Kurila, who were later joined by Suttle, filed a
complaint for declaratory relief in Ohio state court.
Plaintiff asserted a counterclaim for breach of promissory
note and promissory estoppel. Relying on Ohio's six-year
statute of limitations for written promises for the payment
of money,  the Ohio court granted summary judgment on
behalf of Mindlin, Kurila, and Suttle. This decision was
affirmed on appeal. Plaintiff subsequently filed a legal
malpractice suit against her Ohio state court counsel in the
United States District Court for the Southern District of
Ohio. See generally Zell v. Klingelhafer, No.
13-CV-458, 2018 WL 334386, at *1 (S.D. Ohio Jan. 8, 2018).
then filed this action in the Eastern District of Missouri.
Mindlin and Kurila responded with a motion to dismiss on
res judicata grounds, or in the alternative for the
case to be transferred to the Southern District of Ohio. The
Court granted the motion to dismiss and held that the motion
to transfer was therefore moot. ECF No. 9. The United States
Court of Appeals for the Eighth Circuit reversed in part,
holding that Plaintiff's claims for breach of promissory
note, promissory estoppel, and breach of contract were not
barred by res judicata. Zell v. Suttle, 709
F. App'x 391 (8th Cir. 2017).
and Kurila then filed this renewed motion to transfer
pursuant to 28 U.S.C. § 1404(a). These Defendants
reassert and renew their previously filed motion (ECF No. 4),
arguing that the convenience of the parties and witnesses and
the interest of justice require that the case be transferred
to the Southern District of Ohio.
and Kurila argue that the Southern District of Ohio will be
more convenient for witnesses because the only expected
witnesses will be the parties, and none of the parties
resides in Missouri. Plaintiff resides in Florida, while
Mindlin and Kurila state that they reside in California.
Second, Mindlin and Kurila argue that Ohio would be more
convenient for the parties because the attorneys for both
parties are located in Ohio. Finally, these Defendants argue
that the case should be transferred to Ohio to avoid
piecemeal and duplicative litigation. They claim that the
facts underlying this case have been litigated in both state
and federal courts in Ohio, and that the enforceability of
the promissory note has already been determined to be
governed by the application of Ohio law.
incorporates her previously filed memorandum in opposition to
the motion to transfer (ECF No. 6), and further responds to
the renewed motion by arguing that Missouri is at least as
convenient as Ohio. Plaintiff first contends that the
argument concerning the ongoing litigation in the Ohio courts
is moot because both the malpractice case in Ohio federal
court and the Ohio state court litigation have ended. Second,
Plantiff argues that it is the convenience of the witnesses,
not counsel, that is at issue in a motion to transfer.
Regarding potential witnesses, Plaintiff asserts that she
plans to call Suttle to testify, and that Suttle lives in
Missouri. Plaintiff also disputes the fact that Mindlin and
Kurila do not live in Missouri. Finally, Plaintiff argues that it
would not be in the interest of justice to transfer this case
to Ohio because it would be the “death
knell'” to the case.” ECF No. 31-1 at 13.
Plaintiff argues that the real reason these Defendants want
to transfer this case to Ohio is not for convenience of the
parties, but rather because Defendants seek to reassert their
statute of limitations argument based on Ohio's shorter
1404(a) provides that “[f]or the convenience of the
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). A threshold showing must be made that the
action could have been filed in the proposed transferee
forum. See Caleshu v. Wangelin, 549 F.2d 93, 96
& n.4 (8th Cir. 1977).
has been established that venue would have been proper in the
transferee forum, a court may then consider three broad
categories of interests set forth in § 1404(a):
“(1) the convenience of the parties, (2) the
convenience of the witnesses, and (3) the interests of
justice.” Terra Int'l, Inc. v. Mississippi
Chem. Corp., 119 F.3d 688, 691 (8th Cir. 1997).
Generally, “federal courts give considerable deference
to a plaintiff's choice of forum and thus the party
seeking a transfer. . . bears the burden of proving that a
transfer is warranted.” Id. at 695.
Accordingly, unless the movants make a “clear
showing” that the balance of interest is strongly in
favor of a transfer, the plaintiff's choice of forum
should not be disturbed. See Ascension Health All. v.
Ascension Ins., Inc., No. 4:15CV283 CDP, 2015 WL
5970487, at *1 (E.D. Mo. Oct. 13, 2015).
it is not clear to the Court that venue would have been
proper in the Southern District of Ohio, neither party
disputes this issue. In any event, as discussed below, the
balance of the § 1404(a) factors weighs against
transfer. See e.g., Burkemper v. Dedert Corp., No.
4:11CV1281 JCH, 2011 WL 5330645, at *1 (E.D. Mo. Nov. 7,
2011) (considering the relevant § 1404(a) factors when
parties did not dispute that the case could have been brought
in the alternative forum).
of the Parties
the plaintiff's choice of forum is generally entitled
great weight, when, as here, the plaintiff chooses a forum
other than the one in which she resides, it is entitled to
considerably less weight. See Ascension Health All.,
2015 WL 5970487, at *2. Therefore, Plaintiff's choice ...