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Zell v. Suttle

United States District Court, E.D. Missouri, Eastern Division

April 5, 2018

EILEEN L. ZELL, Plaintiff,
v.
DAVID DALE SUTTLE, et al., Defendants.

          MEMORANDUM AND ORDER

          AUDREY G. FLEISSIG UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on the renewed motion (ECF No. 28) of Defendants Michael Mindlin and Elizabeth Kurila[1] 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 transfer.

         BACKGROUND

         Plaintiff 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, [2] 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).

         Plaintiff 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).

         Mindlin 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.

         Mindlin 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.

         Plaintiff 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.[3] 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 limitations period.

         DICUSSION

         Section 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).

         Once it 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).

         Although 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).

         Convenience of the Parties

         While 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 ...


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