SHAW, Judge.
{¶ 1} Appellant, Steven Woolley, appeals the February 24, 2010 judgment of the Shelby County Court of Common Pleas finding that appellee, Scott Woolley, was granted a devise of a fee simple subject to a condition subsequent in a certain parcel of real estate.
{¶ 2} The parties stipulated to the following facts. Alfred B. Woolley (also known as "Sam") owned real estate located at 105 East Russell Road in Sidney, Ohio. Alfred had two sons, Wayne Woolley and appellant, Steven Woolley. Appellee, Scott Woolley, is Wayne's son. Scott is also Alfred's grandson and Steven's nephew.
{¶ 3} Alfred died on September 15, 1998. Alfred's last will and testament specified the following transfers of real and personal property:
Item VI
I give and bequeath all of my interests including my common shares in Sam's Skating Club, Inc. to my Grandson, SCOTT WOOLLEY, absolutely.
I give, devise and bequeath the real property and improvements thereon located at 105 East Russell Road, Sidney, Ohio which is occupied by Sam's Skating Club, Inc. to my Grandson, SCOTT WOOLLEY, absolutely and in fee simple on the condition that he pays to my sons, WAYNE WOOLLEY and STEVEN WOOLLEY, Two Thousand Dollars ($2,000) per month ($1,000 to each) for twenty (20) years without interest. (Interest discounted if prepaid). For valuations purposes, the payments shall be discounted by an amount equal to the Applicable Federal Rate in effect as of the date of my death.
Item VII
All the rest, residue and remainder of my property real, personal and mixed, I give, devise, and bequeath to my sons, WAYNE WOOLLEY and STEVEN WOOLLEY in equal shares absolutely and in fee simple.
{¶ 4} After Alfred's death, the property located at 105 East Russell Road was transferred to Scott. The certificate of transfer reflecting the transfer of the property from Alfred's estate to Scott contained verbatim the same conditional language stated in Alfred's will. Specifically, the certificate of transfer stated:
The devise of decedent's fee simple interest is subject to the terms and conditions contained in Item VI of the Last Will and Testament of Alfred B. Woolley, deceased, Shelby County Probate Court, case number 1988-EST-224, which states in relevant part:
"I give, devise and bequeath the real property and improvements thereon located at 105 East Russell Road, Sidney, Ohio which is occupied by Sam's Skating Club, Inc. to my Grandson, SCOTT WOOLLEY, absolutely and in fee simple on the condition that he pays to my sons, WAYNE WOOLLEY and STEVEN WOOLLEY, Two Thousand Dollars ($2,000) per month ($1,000 to each) for twenty (20) years without interest. (Interest discounted if prepaid). For valuations purposes, the payments shall be discounted by an amount equal to the Applicable Federal Rate in effect as of the date of my death."
{¶ 5} On January 31, 2000, Scott transferred his interest in 105 East Russell Road to his wife, Becca Woolley, via a quitclaim deed. The deed stated, "This conveyance is subject to the terms and conditions contained in Item VI of the Last Will and Testament of Alfred B. Woolley * * * as set forth in that certain Certificate of Transfer No. 2 filed in the office of the Shelby County Recorder on the 7th day of October, 1999."
{¶ 6} For 103 months, Scott paid $1,000 to Steven pursuant to Item VI of Alfred's will. In April 2008, Scott ceased to make any further payments to Steven. On December 29, 2008, Steven filed a complaint against Scott, Becca, and Wayne as defendants. The complaint alleged that Scott had failed to satisfy the "condition of transfer" stated in Item VI of Alfred's will, the certificate of transfer, and the quitclaim deed, because Scott stopped making the $1,000 monthly payments to Steven in April 2008.
{¶ 7} The complaint sought the following remedies for Scott's breach of the condition. First, the complaint requested that the court declare that due to Scott's failure to satisfy the condition, title to the real estate vested absolutely in Wayne and Steven as the beneficiaries under the residuary clause. Second, the complaint requested declaratory relief stating that the transfers of the real estate to Scott and Becca, via the certificate of transfer and quitclaim deed, now failed because Scott did not satisfy the condition. Third, Steven also requested that Scott and Becca be held personally liable for the remaining $137,000 that Steven alleged was owed to him under Item VI of Alfred's will.
{¶ 8} On March 9, 2009, Scott and Becca filed their answers to Steven's complaint. Wayne failed to file an answer or to participate in the action in any way. No evidentiary hearing was held. Rather, upon stipulating to the relevant facts, the trial court requested the parties to submit their written arguments.
{¶ 9} In his brief to the trial court, Steven argued that the conditional language in Alfred's will granted a legacy to both Steven and Wayne in the amount of $240,000 each"$1,000 per month for 20 years. According to Steven's argument, Alfred's will granted Scott a fee-simple interest in the real estate subject to the payment of Steven and Wayne's legacies. Steven now argued that as a holder of a legacy, he was entitled to enforce his right to receive the remaining payment of $137,000 from Scott and Becca personally. Specifically Steven requested that the court grant him the following: (1) a judgment finding that a lien exists on the property for the purpose of enforcement of his legacy rights, (2) a judgment of joint and several liability against Scott and Becca personally for damages in the amount of $137,000, and (3) a finding that Wayne Woolley waived his rights under the legacy.
A legacy is simply a gift by will, especially of personal property and often money. Black's Law Dictionary 974 (9th Ed. 2009).
{¶ 10} Notably, Steven's argument now exclusively focused on the third claim of relief stated in his complaint — holding Scott and Becca personally liable for the remaining $137,000 that Steven alleged remained due to him. Steven no longer appeared to argue that he and Wayne were entitled to the real estate as co-beneficiaries under the residuary clause in Alfred's will and for the court to declare Scott and Becca's interests in the premises void, despite the statements in his first and second claims for relief in his complaint, in which he requested the court to grant these remedies.
{¶ 11} On the contrary, Scott and Becca argued that the language contained in Alfred's will granted Scott a fee simple subject to a condition subsequent. Specifically, Scott argued that his interest in the land was conditioned on his making the $1,000 monthly payment to Steven and Wayne for 20 years. Scott maintained that upon his failure to meet this condition, Steven's exclusive remedy was to exercise his "right of re-entry" to effectuate the reversion of the property back to Alfred's estate, giving Steven and Wayne absolute title to the property as co-beneficiaries of the will's residuary clause. Thus, Scott contended that there was no provision in Alfred's will that granted Steven a legacy holding Scott and Becca personally liable for payment due to Scott's breach of the condition. {¶ 12} On January 29, 2010, the trial court issued its decision, which was subsequently journalized in its February 24, 2010 judgment entry. The trial court found that the language contained in Item VI of Alfred's will granted Scott a fee simple subject to condition subsequent. Accordingly, the court ruled that Scott and Becca incurred no personal liability upon Scott's failure to make the $1,000 monthly payments to Steven. Rather, the court found the following:
A review of the language of the Will of Testator as repeated in the Certificate of Transfer of October 1999, suggests that the intent of the Testator was to convey the property to Scott if he paid the monthly installments. Since Scott has failed to make the payments, the proper remedy is to void the conveyance and return the real property to the estate of the testator.
{¶ 13} The court then ordered Alfred's estate to be reopened to allow the property to be placed back into the estate. The court further ordered the property to be transferred from Alfred's estate to Wayne and Steven, in equal shares, as co-beneficiaries under the residuary clause stated in Item VII of Alfred's will.
{¶ 14} Steven filed this appeal, asserting the following assignments of error.
Because Steven appeals the judgment of the trial court only as it relates to Scott, we will not discuss the trial court's ruling regarding Becca on appeal.
Assignment of Error No. I
The trial court erred as a matter of law by holding that the testator granted to Scott Woolley a fee simple subject to a condition subsequent instead of a legacy.
Assignment of Error No. II
The trial court erred as a matter of law by holding that Scott Woolley is not personally liable for the non-payment of the accepted devise.
Assignment of Error No. III
The trial court erred as a matter of law by holding that Steven Woolley's only recourse against Scott Woolley for the failure to comply with the provisions of the devise is to take ownership of the property.
{¶ 15} Initially, we note that Steven's assignments of error are interrelated because they are dependent on our review of the trial court's conclusion that Alfred's will granted Scott a devise of the property in fee simple subject to a condition subsequent. Therefore, we elect to discuss Steven's assignments of error together.
{¶ 16} In making its final determination in this case, the trial court noted that Alfred's will failed to provide any guidance in the event that Scott did not satisfy the condition stated in Item VI of the will. Specifically, the trial court noted that Alfred's will contained no provision for re-entry, which is typically included in a grant of a fee simple subject to a condition subsequent and specifies that the grantor retains a right of re-entry upon the failure of the stated condition. However, Alfred's will also does not provide for the acceleration of the full $240,000 payment upon Scott's failure to satisfy the condition, as Steven now argues that he is entitled to under Item VI of the will. Therefore, the trial court was required to construe Alfred's testamentary intent in drafting his will in order to resolve the issue at hand.
{¶ 17} An appellate court independently reviews the interpretation of a will under a de novo standard of review. Dunkel v. Hilyard (2001), 146 Ohio App.3d 414, 418, 766 N.E.2d 603, citing McCulloch v. Yost (1947), 148 Ohio St. 675, 677, 36 O.O. 274, 76 N.E.2d 707. Upon our review, we are reminded that the most fundamental tenet for the construction of a will requires that the court ascertain and carry out, within the bounds of the law, the intent of the testator. Domo v. McCarthy (1993), 66 Ohio St.3d 312, 314, 612 N.E.2d 706. That intention must be determined from the words contained in the will. Oliver v. Bank One, Dayton, N.A. (1991), 60 Ohio St.3d 32, 34, 573 N.E.2d 55. "These words, *if technical, must be taken in their technical sense, and if not technical, in their ordinary sense, unless it appear[s] from the context that they were used by the testator in some secondary sense.'" Polen v. Baker (2001), 92 Ohio St.3d 563, 565, 752 N.E.2d 258, quoting Townsend's Exrs. v. Townsend (1874), 25 Ohio St. 477, paragraph three of the syllabus.
{¶ 18} Because Alfred's will omits any provision discussing the occurrence of Scott's failure to satisfy the condition, we must glean Alfred's intent in addressing this situation from the four corners of his will. At the core of the parties' dispute is the characterization of the devises that Alfred intended to give his beneficiaries — specifically, whether Alfred intended to grant Scott a fee simple subject to a condition subsequent in the 105 East Russell Road property or whether Alfred intended to grant Steven a legacy — i.e., an unconditional and outright gift of $240,000 to be paid by Scott in $1,000 monthly installments over a period of 20 years.
{¶ 19} In reviewing the provisions in Alfred's will, we find no indication that Alfred intended to give Steven a gift in the definite sum of $240,000. Moreover, as noted by the trial court, there is no provision in Alfred's will that holds Scott personally responsible for the entire $240,000 payment to Steven upon Scott's failure to satisfy the condition. Rather, the language of the devise to Scott focuses on Scott's conditional ownership and possession of the property. As stated above, the pertinent language in Alfred's will provides:
Since, by the terms of the will, Scott was entitled to a discount if he paid in advance, were Steven to be correct in his argument that Alfred intended to grant him a legacy, he would be entitled to only a discounted judgment, and not the full $137,000.
I give, devise and bequeath the real property and improvements thereon located at 105 East Russell Road, Sidney, Ohio which is occupied by Sam's Skating Club, Inc. to my Grandson, SCOTT WOOLLEY, absolutely and in fee simple
on the condition that he pays to my sons, WAYNE WOOLLEY and STEVEN WOOLLEY, Two Thousand Dollars ($2,000) per month ($1,000 to each) for twenty (20) years without interest.
(Emphasis added.)
{¶ 20} We believe that the trial court correctly surmised that this language indicated that it was Alfred's intention to grant Scott a fee-simple interest in 105 East Russell Road contingent upon Scott making the $1,000 monthly payments to Steven over a 20-year period. Therefore, similar to a land-installment contract, Alfred's will gave Scott the right to possess the property in exchange for Scott's paying $1,000 monthly installments to Steven and Wayne for a period of 20 years. Upon Scott's completion of making these payments for the 20-year period, he would then own the real estate absolutely in fee simple.
{¶ 21} Based on the foregoing, we find that characterizing Alfred's devise to Scott as a fee simple subject to a condition subsequent is more consistent with Alfred's testamentary intent than finding that Alfred granted Steven a $240,000 legacy to be paid by Scott. Therefore, we conclude that it was Alfred's intention that in the event that Scott failed to satisfy the condition of transfer stated in Item VI of Alfred's will, Scott's interest in the land would cease, and the right to possess and own the property would pass to Wayne and Scott as co-beneficiaries under the residuary clause in Alfred's will.
{¶ 22} Accordingly, it is our conclusion that the trial court correctly found that Alfred intended to grant Scott a fee simple subject to a condition subsequent when it interpreted Item VI in Alfred's will. Thus, we find no error in the trial court's decision on this matter, and Steven's first assignment of error is overruled. Furthermore, because Steven's remaining two assignments of error hinge on our finding error in the trial court's ruling as to his first assignment of error, and because we have found no such error in the trial court's ruling, Steven's second and third assignments of error are hereby overruled. Additionally, for the reasons stated in the foregoing opinion, the motion to dismiss the appeal for lack of standing is denied via a separate judgment entry of this court.
{¶ 23} For all these reasons, the judgment of the Shelby County Court of Common Pleas is affirmed.
Judgment affirmed.
WILLAMOWSKI, P.J., and PRESTON, J., concur.
mmitted an intentional tort (2) that was directly aimed at the forum, (3) causing an
injury within the forum that the defendant should have reasonably anticipated."
Id. (citations omitted);
see also Licciardello v. Lovelady, 544 F.3d 1280, 1286 (11th Cir. 2008) ("In
Ziegler [
v. Indian River County, 64 F.3d 470, 473 (9th Cir. 1995)], the court noted that[] . . . `[i]n [a] tort case[] jurisdiction may attach if an out-of-forum defendant merely engages in conduct aimed at, and having effect in, the situs state.' The court formulated the
Calder test for personal jurisdiction as requiring a tort that was (1) intentional; (2) aimed at the forum state; and (3) caused harm that the defendant should have anticipated would be suffered in the forum state." (internal citation omitted)).
12. In this case, the defendants do not contend that the allegations of plaintiff's complaint, or the additional allegations contained in Ward's first affidavit, do not establish the first and third prongs of Calder's "effects" test; instead, the focus of the
The tort claims asserted against the defendants are certainly properly classified as intentional torts. See, e.g., Tom's Foods, Inc. v. Carn, 896 So.2d 443, 453 (Ala. 2004) ("This Court recently recognized that to establish tortious interference with contractual or business relations a plaintiff must prove: 1) the existence of a contract or business relation; 2) the defendant's knowledge of the contract or business relation; 3) intentional interference by the defendant with the contract or business relation; 4) the absence of justification for the defendant's interference; and 5) damage to the plaintiff as a result of the interference." (internal quotation marks and citations omitted)); Warren v. Birmingham Bd. of Educ., 739 So.2d 1125, 1132 (Ala.Civ.App. 1999) ("To establish a prima facie case of defamation, the plaintiff must show that the defendant was at least negligent in publishing a false and defamatory statement to another concerning the plaintiff, which is either actionable without having to prove special harm (actionable per se) or actionable upon allegations and proof of special harm (actionable per quod)." (internal citations and quotation marks omitted)); Ala. Code § 8-27-1, et seq. (the Alabama Trade Secrets Act).
The defendants do not contest that their actions/conduct caused harm that they reasonably should have anticipated would be suffered by plaintiff in Alabama, instead emphasizing that "something more than `mere effects' is required." Drayton Enterprises, L.L.C. v. Dunker, 142 F.Supp.2d 1177, 1185 (D.N.D. 2001); see also id. ("Here, there is no connection between defendants and North Dakota beyond the alleged tort, and this is insufficient even under the effects test. . . . In short, the Court has been unable to locate a case in which the sole connection between the defendant and the forum is the effects of the intentional tort. All the cases the Court has considered and discussed above contain some additional element of some kind justifying application of the effects-test method of establishing jurisdiction."). As the undersigned explains, infra, this case does present additional contacts which demonstrate that the defendant expressly aimed its tortious conduct at Alabama and thereby justifies a finding that the minimum contacts requirement has been established by plaintiff.
Even assuming a passing suggestion by the defendants that the third prong of Calder is not present, the contents of the complaint and the affidavits filed to date in this case establish that the defendants knowingly and voluntarily undertook a business relationship with plaintiff, an Alabama corporation, and knew that the brunt of any injury to plaintiff (as a result of actions taken by defendants related to plaintiff and its business activities) would be felt in Alabama.
defendants' motion to dismiss and their reply is upon the second requirement, namely, whether they aimed their alleged tortious conduct at Alabama.
[J]urisdiction under
Calder requires more than a finding that the harm caused by the defendant's intentional tort is primarily felt within the forum. . . . [T]he
Calder effects test can only be satisfied if the plaintiff can point to contacts which demonstrate that the defendant
expressly aimed its tortious conduct at the forum, and thereby made the forum the focal point of the tortious activity. Simply asserting that the defendant knew that the plaintiff's principal place of business was located in the forum would be insufficient in itself to meet this requirement. The defendant must manifest behavior intentionally targeted at and focused on the forum for
Calder to be satisfied. In the typical case, this will require some type of entry into the forum state by the defendant.
IMO Industries, Inc. v. Kiekert AG, 155 F.3d 254, 265 (3rd Cir. 1998);
see Far West Capital, Inc. v. Towne, 46 F.3d 1071, 1079 (10th Cir. 1995) ("Our review of [] post-
Calder decisions indicates that the mere allegation that an out-of-state defendant has tortiously interfered with contractual rights or has committed other business torts that have allegedly injured a forum resident does not necessarily establish that the defendant possesses the constitutionally required minimum contacts. Instead, in order to resolve the jurisdictional question, a court must undertake a particularized inquiry as to the extent to which the defendant has purposely availed itself of the benefits of the forum's laws.");
Ashton v. Florala Memorial Hosp., 2006 WL 2864413, *10 (M.D. Ala. 2006) ("Courts in other jurisdictions, and most recently the Supreme Court of Alabama, however, have recognized that `most courts define the
Calder test as requiring something more than mere awareness that one's intentional acts will cause harm in the forum state.'").
13. Although this case again poses a close question, the undersigned concludes that the evidence in this case meets the second prong of the Calder "effects" test. In reaching this conclusion, the undersigned finds that this case closely parallels Calder. First, just as the defendants in Calder garnered all the information for the allegedly libelous article from California sources, where plaintiff lived and worked, so too the defendants in this case used the information gained about plaintiff's software and business operations, including private client lists, from the many training sessions originating from Alabama to then slander plaintiff, misappropriate its software, business
processes and ideas, and client lists, and interfere with its contractual relationships with the Campbell Clinic and Tria. In other words, the information that defendants obtained from the training sessions with plaintiff originating from Alabama (via the internet or conference call) underscore and inform all of plaintiff's tort claims asserted against the defendants; without these training sessions and the information supplied to defendants from Alabama regarding plaintiff's unique software, business processes and ideas, and client lists, the defendants would have been unable to form Dox Consulting, LLC, a business all but identical to DocRX (including the name), and directly compete with plaintiff. The activities of the defendants in procuring and using the foregoing information were not the sole activities aimed at Alabama. In addition, according to the allegations of the complaint, after the "launch" of Dox Consulting by the defendants, the defendants utilized DocRX documents and materials provided to them during their time with DocRX in promoting Dox Consulting and in an attempt to take clients from DocRX and made phone calls, sent emails, and initiated correspondence with DocRX in Alabama. Further, the defendants contacted current DocRX sales representatives in Alabama, Chris Gaddy and Andrew Lewis, in an attempt to hire them away from plaintiff despite the defendants' knowledge that both men were under contract with DocRX.
Without the California sources, the defendants in Calder would not have been able to publish their article about Shirley Jones.
Prior to the formation of Dox Consulting, while the individual defendants were working on behalf of DocRX, Booty and Herfield traveled to Mobile and attempted to garner Mobile Infirmary as a client for plaintiff.
Cf. Nucor Corp v. Bell, 482 F.Supp.2d 714, 722 (D.S.C. 2007) (finding "SeverCorr's solicitation of Nucor's employees in South Carolina" to be "a significant contact with the forum.").
14. Based upon the foregoing, the undersigned can reach no other conclusion but that the defendants were taking aim at DocRX in Alabama when they interfered with its contractual relationships with the Campbell Clinic and Tria, misappropriated its software, processes and ideas, and client lists, and made false and defamatory statements about plaintiff to its current and potential clients, including the Campbell Clinic and Tria, in an effort to take these clients from plaintiff. Cf. Eagle Metal Products, LLC v. Keymark Enterprises, LLC, 651 F.Supp.2d 577, 588 589 (N.D. Tex. 2009) ("VPT alleges that Dietzen defamed and disparaged VPT's business in statements to several VPT customers, including TUFF SHED, Inc. . . . The Complaint does not allege that the disparaging and defamatory statements were actually made to TUFF SHED representatives in Texas, but VPT urges that, most of its business is conducted in Texas, with Texas-based customers, and therefore the harm to it is felt primarily in Texas. The Court concludes that jurisdiction over Dietzen can be exercised under Calder. It is reasonable to expect that the effect of the alleged disparagement and defamation would be felt in Texas, where VPT was principally doing business. . . . The contracts allegedly
interfered with by Dietzen . . . [include] contracts between VPT and its customers, such as TUFF SHED. . . . Because the tortious interference claim relating to customer agreements is based on Dietzen's allegedly defamatory statements to customers such as TUFF SHED, the same rationale that applies to the defamation claim applies here. Dietzen is charged with knowledge that any harm to VPT from such conduct would be felt in Texas, and Calder thus vests jurisdiction in this Court. . . . VPT claims Keymark and Dietzen stole VPT's customer lists and distributed them to VPT's competitors, Automatic and Black, who then used the lists to solicit VPT's customers. Dietzen is charged with knowing that the harm to VPT from this alleged conduct would be felt in Texas. The Court thus has jurisdiction over the misappropriation claim under the effects test."); TEKsystems, Inc. v. Modis, Inc., 2008 WL 5155667, *3 (N.D. Ill. Dec. 5, 2008) ("Personal jurisdiction over Pelligrini is appropriate with respect to TEKsystems' misappropriation of trade secrets [] and tortious interference with contractual relationships [] claims based upon the effects doctrine. Under the effects doctrine, personal jurisdiction over a nonresident defendant is proper when defendant's intentional tortious actions aimed at the forum state cause harm to plaintiff in the forum state. The effects doctrine is interpreted broadly to permit the state in which the injury (and therefore the tort) occurs to entertain the suit, even if all other relevant conduct occurred outside the state. Pelligrini engaged in sufficient minimum contacts with Illinois to satisfy personal jurisdiction requirements. Pelligrini solicited Lukas to breach his employment agreement, and encouraged him to misappropriate TEKsystems' customer information from its Downers Grove, Illinois office. After Modis hired Lukas, Pelligrini was involved in coordinating Lukas' delivery of the customer information to Modis' Chicago office. Pelligrini denies these allegations, but all factual disputes must be resolved in favor of TEKsystems. According to TEKsystems, it suffered injury in Illinois from the compromise of the Chicago Data. Under these circumstances, it was foreseeable that Pelligrini would be required to answer for his alleged conduct in Illinois." (internal citations and quotation marks omitted)); Stelax Industries, Ltd. v. Donahue, 2004 WL 733844, *4 (N.D. Tex. Mar. 25, 2004) ("[T]o the extent Plaintiff's claim for misappropriation of trade secrets is premised on the misappropriation of secrets learned in phone conversations between the individual Defendants and Hardy, while Hardy was in Texas, Plaintiff has established a prima facie case for jurisdiction with respect to all Defendants."); see First American First, Inc. v. National Ass'n of Bank Women, 802 F.2d 1511, 1517 (4th Cir. 1986) ("The allegedly defamatory letters, though written in and mailed from Illinois and distributed throughout the country, were nevertheless directed in their intended effect at the activities in Virginia of Virginia residents. Plaintiff Leake lives and works in Virginia; First American, his corporate business, is incorporated in Virginia and its officers are residents there. All the operations, activities and services of First American are conducted in Virginia by Leake and other employees. Accordingly, the NABW knew or should have known that its allegedly defamatory letters would inflict
the greatest injury upon Leake in the state in which he resided and conducted his business. There can be no doubt that, for purposes of the jurisdictional inquiry, the brunt of the harm, in terms of both Leake's emotional distress and the injury to his professional reputation was suffered in Virginia. Though the allegedly libelous letters were not directed only at the plaintiffs' actions in Virginia, there can be no doubt that the primary and most devastating effects of the letters would be felt in Virginia where Leake lives and his business is principally located." (internal citations, quotation marks, and brackets omitted)). Stated differently, the defendants' knowledge that their conduct ultimately would be felt by DocRX in Alabama, when accompanied by the above-identified other contacts, is not too unfocused to justify personal jurisdiction. Cf. ESAB Group, Inc. v. Centricut, Inc., 126 F.3d 617, 625 (4th Cir. 1997) ("The ESAB Group contents[] that[] whenever the sales were made by Centricut, and thus lost by the ESAB Group, they were ultimately felt in South Carolina at the ESAB Group's headquarters. While this is undoubtedly true, when unaccompanied by other contacts, it is ultimately too unfocused to justify personal jurisdiction."), cert. denied, 523 U.S. 1048, 118 S.Ct. 1364, 140 L.Ed.2d 513 (1998); see Pebble Beach Co. v. Caddy, 453 F.3d 1151, 1157 (9th Cir. 2006) ("The defendant in both Bancroft and Metropolitan Life did `something more' than commit a `foreign act with foreseeable effects in the forum state.'"). Accordingly, the defendants in this case reasonably should have anticipated being haled into this court to defend plaintiff's tort claims. D. Fair Play and Substantial Justice .
15. In addition to the above, "considerations of fair play and substantial justice counsel permitting the exercise of personal jurisdiction[.]" Sun Bank, N. A. v. E. F. Hutton Co., Inc., 926 F.2d 1030, 1034 (11th Cir. 1991) (citation omitted); see Rudzewicz, supra, 471 U.S. at 477, 105 S.Ct. at 2184 ("These considerations [of fair play and substantial justice] sometimes serve to establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would otherwise be required."); Ruiz de Molina, supra, 207 F.3d at 1358-1359 ("[B]ecause these considerations serve to establish the reasonableness of jurisdiction in this case, a lesser showing of minimum contacts than otherwise would be required is sufficient."). "In determining whether jurisdiction comports with traditional notions of fair play and substantial justice, the court looks at: (a) `the burden on the defendant,' (b) `the forum State's interest in adjudicating the dispute,' (c) `the plaintiff's interest in obtaining convenient and effective relief,' (d) `the interstate judicial system's interest in obtaining the most efficient resolution of controversies,' and (e) `the shared interest of the several States in furthering substantive social policies.'" McGow v. McCurry, 412 F.3d 1207, 1216 (11th Cir. 2005), quoting Meier ex rel. Meier v. Sun International Hotels, Ltd., 288 F.3d 1264, 1276 (11th Cir. 2002); see Ruiz de Molina, supra, 207 F.3d at 1358 ("Once it is decided that defendants have at least minimum contacts with a forum, the burden is on the defendants to show that the imposition of jurisdiction in the forum is unreasonable. Several factors are relevant to this showing: (1) the defendant's burden; (2) the forum state's interest; (3) the plaintiff's interest in convenient and effective relief; (4) the judicial system's interest in efficient resolution of controversies; and (5) the state's shared interest in furthering fundamental social policies.").
Professional Locate Recovery, Inc. v. Prime, Inc., 2007 WL 2333218, *8 (S.D. Ala. Aug. 15, 2007) ("Of course, a finding of minimum contacts does not conclude the personal jurisdiction analysis in and of itself; rather, personal jurisdiction can only be exercised over one having minimum contacts with the forum if doing so would not offend traditional motions of fair play and substantial justice."); see Posner, supra, 178 F.3d at 1221 (after finding the minimum contacts requirements satisfied, the appellate court considered whether exercising jurisdiction over the non-resident defendant would offend notions of fair play and substantial justice).
16. It is clear to the Court that while the defendants will feel some burden by having to come to Alabama to defend DocRX's suit, that burden will not be significant given the availability of modern transportation and communication. See Robinson v. Giarmarco Bill, P.C., 74 F.3d 253, 259 (11th Cir. 1996) ("The burden on the defendants occasioned by litigating outside of Michigan is not slight, but modern methods of transportation and communication reduce this burden significantly."); Olivier, supra, 979 F.2d at 834 ("[A]s the Supreme Court of the United States has noted `. . . modern transportation and communication have made it much less burdensome for a party sued to defend himself in a State where he engages in economic activity.' . . . The Supreme Court subsequently stated that the historical developments noted in McGee have only accelerated in the generation since that case was decided. . . . Requiring adjudication in Alabama will not impose a substantial burden on LIGA and SCIGA."); Morris, supra, 843 F.2d at 495 ("[M]odern transportation and communication have made it much less burdensome for a party sued to defend himself in a state where he engages in economic activity."). Although most of the defendants reside in Louisiana, with one individual defendant residing in Florida and another in New York, it is clear from the evidence submitted in relation to the instant motion to dismiss that all individual defendants have traveled through Mobile on several occasions and given the close proximity of the Louisiana residences of the defendants to Mobile, this Court cannot find that the defendants will be significantly burdened by having to come to this Court to defend this action. Second, Alabama has significant interests in adjudicating a lawsuit involving one of its residents who alleges it was injured in the forum state as a result of the actions of the defendants, particularly given the allegations that defendants made false and defamatory statements about plaintiff in order to convince its clients to use the identical services provided by defendants, which the defendants learned from plaintiff through internet and telephone connections emanating from Alabama, instead of remaining clients of plaintiff. See Andersen v. Sportmart, Inc., 57 F.Supp.2d 651, 662 (N.D. Ind. 1999) ("States have an important interest in providing a forum in which their residents can seek redress for injuries caused by out-of-state actors."). Third, DocRX has a significant interest in obtaining convenient and effective relief in this forum and it does not appear to this Court that Louisiana would have as much interest, as would Alabama, in providing such relief since the injury to plaintiff occurred in Alabama as a result of the defendants' contacts with Alabama. See Morris, supra, 843 F.2d at 495 ("[O]btaining the most efficient resolution of the controversy suggests that Alabama is an appropriate forum for such a resolution. As the District Court for the Southern District of Mississippi noted when it transferred the case to the Southern District of Alabama, `It appears that the Southern District of Alabama is the proper venue for this cause. It is where the alleged accident occurred, diversity jurisdiction exists, and a majority of witnesses reside.'"). Fourth, the witnesses and evidence relevant to plaintiff's claims are in Alabama, Louisiana, Florida, and New York, with most of the defendants residing in Louisiana. However, those defendants live in relative close proximity to Mobile, Alabama and, therefore, this Court concludes that efficient resolution of this case suggests that jurisdiction be asserted over the defendants in the Southern District of Alabama. See Andersen, supra, 57 F.Supp.2d at 663 ("In evaluating [the efficient administration of justice] factor, courts generally consider where witnesses and evidence are likely to be located."). Finally, allowing this case to proceed in this Court arguably will further Alabama's "interest in `providing an effective means of recovery for a resident who has been damaged.'" Leithead v. Banyan Corp., 926 So.2d 1025, 1032 (Ala. 2005), quoting Shrout v. Thorsen, 470 So.2d 1222, 1225 (Ala. 1985).
17. In light of the foregoing, this Court concludes that exercising personal jurisdiction over the defendants in this case would not be unreasonable or inconsistent with the notions of fair play and substantial justice.
18. Plaintiff has established not only that minimum contacts exist in Alabama over the defendants, such that this Court may exercise specific personal jurisdiction over this matter, it has also established that exercising personal jurisdiction over the defendants in this case would comport with notions of fair play and substantial justice.
E. Venue .
19. While the propriety of venue normally is governed by 28 U.S.C. § 1391, the general venue statute, it is clear that "[v]enue in removed cases is governed solely by § 1441(a)." Kerobo v. Southwestern Clean Fuels, Corp., 285 F.3d 531, 534 (6th Cir. 2002); Quick v. Coale, Cooley, Lietz, McInerny Broadus, P.C., 212 F.R.D. 299, 301 (M.D.N.C. 2002) ("[V]enue of removed actions is determined by section 1441(a)[.]"). Section 1441(a) provides, in relevant part, that "any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending." 28 U.S.C. § 1441(a) (emphasis supplied). Thus, "§ 1441(a), by requiring removal to the district court for the district in which the state action is pending, properly fixes the federal venue in that district." Hollis v. Florida State University, 259 F.3d 1295, 1299 (11th Cir. 2001); see also id. at 1300 ("[A]s a matter of law, § 1441(a) establishes federal venue in the district where the state action was pending[.]"). Since venue is properly fixed in this district, the undersigned DENIES the defendants' motion to dismiss this action for improper venue. Instead, the Court focuses on the defendants' alternative argument that a transfer of venue is appropriate under 28 U.S.C. § 1404.
20. Section 1404(a) provides: "For the convenience of 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." (emphasis supplied). Relevant § 1404 factors include: "(1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum's familiarity with the governing law; (8) the weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances." Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n. 1 (11th Cir. 2005) (citations omitted); see also Gould v. National Life Ins. Co., 990 F.Supp. 1354, 1357-1358 (M.D.Ala. 1998) (when deciding whether to transfer venue, "courts generally rely on a number of factors including: (1) the plaintiff's choice of forum; (2) the convenience of the parties; (3) the convenience of the witnesses, and the availability of witnesses through compulsory process; (4) the location of documents and other sources of proof; (5) the relative ability
of the parties to bear the expense of changing the forum; and (6) trial efficiency and expense to the justice system."); see Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-509, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947) (decided before enactment of § 1404 but noting numerous relevant factors and observing that "unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed.").
21. The defendants in this case have not satisfied their burden of establishing that this case represents one of those rare situations warranting the disturbance of plaintiff's choice of forum. See In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir. 1989) ("The federal courts traditionally have accorded a plaintiff's choice of forum considerable deference. . . . Thus, in the usual motion for transfer under section 1404(a), the burden is on the movant to establish that the suggested forum is more convenient."). The convenience of the parties amounts to a wash in this case since it is certainly more convenient for the plaintiff, whose principal place of business is in Mobile, Alabama, to pursue this lawsuit in this Court, whereas it is more convenient for defendants to defend the action in the Western District of Louisiana, where most of the defendants reside. There is no indication from the defendants that they have witnesses that will be unavailable for trial in this Court, cf. American Standard, Inc. v. Bendix Corp., 487 F.Supp. 254, 262 (W.D.Mo. 1980) ("[I]f the party moving for transfer under § 1404(a) merely makes a general allegation that witnesses will be necessary, without identifying those necessary witnesses and indicating what their testimony at trial will be, the motion for transfer based on convenience of witnesses will be denied."), and while those witnesses may possibly be outside the subpoena power of this Court, those problems would persist in Louisiana, with respect to witnesses located in Alabama and elsewhere. Given the ability to move documents with relative ease in today's world, the location of documents (and access to other sources of proof) factor certainly does not weigh in favor of transfer to the Western District of Louisiana. In addition, as plaintiff points out, this Court is more familiar with Alabama law, the governing law in this action, than is the United States District Court for the Western District of Louisiana. Finally, there has been presented nothing to suggest that trial efficiency and the interests of justice weigh in favor of transfer, particularly since this Court stands ready to give both parties a full and fair hearing in an expeditious manner. Cf. P S Business Machines, Inc. v. Canon USA, Inc., 331 F.3d 804, 808 (11th Cir. 2003) ("Although docket congestion, if proven, may be an appropriate consideration in a § 1404 motion to transfer, case law does not suggest that docket congestion is, by itself, a dispositive factor."). All a transfer would do in this
The relative means of the parties also appears to be a wash, the defendants providing no evidence that they have less of an ability to travel to this district to litigate this action or that the plaintiff is in a superior financial position to travel and litigate this action in the Western District of Louisiana.
Defendants have not made the specific showing regarding witnesses that the court in American Standard, Inc. found to be necessary.
case is shift inconvenience from the defendants to the plaintiff and, therefore, this Court must necessarily favor plaintiff's choice of forum by denying the defendants' motion to transfer venue to the Western District of Louisiana. See Robinson, supra, 74 F.3d at 260 ("`The plaintiff's choice of forum should not be disturbed unless it is clearly outweighed by other considerations.'"); Susie's Structures, Inc. v. Ziegler, 2010 WL 2136513, *6 (M.D. Fla. May 27, 2010) ("[G]reat deference is afforded the plaintiff's choice of forum when that forum is in the district in which the plaintiff resides.").
CONCLUSION
In light of the foregoing, the defendants' motion to dismiss for lack of personal jurisdiction and improper venue or to transfer venue (Doc. 4) is DENIED IN ITS ENTIRETY. DONE and ORDERED this the 7th day of September, 2010.