RICHARD ENSLEN, District Judge
In accordance with the Court's Opinion of this date;
IT IS HEREBY ORDERED that Defendants Radians, Inc. and Safety Supply Corporation's Motion to Dismiss, or for Summary Judgment, or, in the Alternative, to Change Venue (Dkt. No. 16) is GRANTED to the extent that venue shall be transferred to the Western District of Tennessee pursuant to 28 U.S.C. § 1404(a).
IT IS FURTHER ORDERED that the Clerk shall forthwith transfer this matter to the Western District of Tennessee for further proceedings.
OPINION
This matter is before the Court on the Defendants Radians, Inc. and Safety Supply Corporation's Motion to Dismiss, or for Summary Judgment, or, in the Alternative, to Change Venue. Although the parties have requested oral argument, those requests will be denied since the Motion can be promptly decided based upon the written briefing.
BACKGROUND
Plaintiff James C. Barber, Sr. has sued his former employer, Radians, Inc., and his former employer's parent company, Safety Supply Corporation. Radians, Inc. (Radians) is a manufacturer of safety equipment with its former principal place of business in Bartlett, Tennessee. (Aff. of Michael Tutor ¶ 1.) Safety Supply Corporation (Safety Supply) is a Nevada corporation with its principal place of business in Nevada. (Supp. Aff. of Michael Tutor ¶ 6; Compl. ¶ 2.) Plaintiff is an individual who was employed as a sales executive for Radians. Throughout his employment, and currently, Plaintiff has been and is a citizen of Michigan and a resident of Kewadin, Michigan. The alleged jurisdiction for this suit is diversity jurisdiction. The principal damages claimed by Plaintiff are lost commissions on sales and future sales of Radians' products sold as part of contracts with large corporations — i.e., the Black and Decker Corporation (under its trade name DeWalt), Caterpillar, Inc., and Stihl, Inc. ( See Compl. ¶¶ 36-44.) Plaintiff has alleged that he is owed a sales commission of 3.5 percent on such sales, which sales he estimates to be in the millions. ( Id.) These damages are sought under various state law theories: (1) breach of contract; (2) equitable estoppel; (3) promissory estoppel; (4) procuring cause doctrine; (5) quantum meruit; (6) unjust enrichment; (7) violation of Michigan's Elliot Larsen Civil Rights Act ("MELCRA"), Mich. Comp. Laws § 37.2101 et seq., because of age discrimination; (8) declaratory relief as to future damages; and (9) declaratory relief as to the Confidential Information Agreement. ( Id. ¶¶ 45-101.)
Bartlett, Tennessee, according to reliable maps, is just outside of Memphis, Tennessee. Both Memphis and Bartlett are located in Shelby County, Tennessee, and both are located in the Western District of Tennessee.
To understand these claims, it is useful to have an understanding of Plaintiff's employment with Defendant Radians. Defendant Radians, through its President Michael Tutor, hired Plaintiff in July 2001 as an at-will employee. (Tutor Aff. ¶ 5.) Prior to the hiring, Plaintiff and Tutor had discussions (presumably by telephone) between Tennessee and Michigan beginning in May 2001. (Barber Aff. ¶ 4.) Tutor then sent to Plaintiff at his Michigan address a letter dated June 22, 2001 outlining a general offer of employment. (Barber Aff. ¶ 5; Pl.'s Ex. B.)
Plaintiff was then hired in Tennessee and was required as a condition of an employee to sign employment documents at Defendants' Tennessee office. At that time, he received an employee handbook indicating that the companies employment policies were governed by Tennessee law. (Tutor Aff. ¶ 5.) He also signed a Confidential Information and Invention Assignment Agreement in Tennessee, which document indicated that it was governed by California law. ( Id. ¶ 6.) Plaintiff also received stock options as part of his employment and signed a stock option agreement indicating that it was governed by Tennessee law. ( Id.) Tutor was reluctant to hire a sales person not located in Tennessee, but did so because the work involved out-of-state travel. (Tutor Supp. Aff. ¶ 2.) It was contemplated, at that time, that Plaintiff would perform some work in Tennessee, some work through travel to companies throughout the United States, and some work at home. ( See Barber Aff. ¶¶ 7, 8 23.) According to Plaintiff, negotiations about the terms of employment continued after the July visit through August 2001. (Barber Aff. ¶ 6.)
Radians is a small company which employs only 14 employees. (Tutor Aff. ¶ 8.) Most of those employees would be required to testify in the event of trial. (Tutor Supp. Aff. ¶ 13.) Other persons required to testify at trial include: Plaintiff, Plaintiff's wife, employees of the Black and Decker Corporation (located in Baltimore, Maryland), employees of Stihl, Inc. (located in Virginia Beach, Virginia), and employees of Caterpillar, Inc. (located in Peoria, Illinois). (Barber Aff. ¶ 24; Tutor Aff. ¶ 9.) Plaintiff's job at Radians was to contact prospective business customers-including Black and Decker (principally regarding its DeWalt division products), Caterpillar, Stihl and others. (Tutor Aff. ¶ 9.) According to Radians, Plaintiff was properly compensated by Defendant and was terminated due to poor performance, and not because of job discrimination. (Tutor Aff. ¶¶ 7 11.)
Plaintiff has also listed employees of Kawasaki Corporation and employees of Techna International as possible witnesses. (Barber Aff. ¶ 24.) However, in the Court's judgment, such witnesses would have very slight relevance to the proceedings given the allegations at issue.
Plaintiff has made factual allegations about his regular work for Defendant in Michigan, including work performed in connection with a company acquired by Safety Supply Corporation-Techna International. While such allegations tend to show that Plaintiff performed work for Defendant Radians in Michigan, they do not relate to the basis for the lawsuit-that Plaintiff was not paid commissions on sales regarding customers located in neither Michigan nor Tennessee.
LEGAL ANALYSIS
Defendants have argued to dismiss for lack of personal jurisdiction over them, for summary judgment (because Plaintiff has not pled violations of Tennessee and California law, respectively), and for change of venue. Because the Court finds the argument for change of venue most persuasive, it will be addressed first and to the exclusion of the other arguments.
1. Standards for Change of Venue
Title 28 U.S.C. 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.
28 U.S.C. § 1404(a).
This federal statute was enacted by Congress in 1948 to both codify and
broaden the common law doctrine of
forum non conveniens, which prior to the statute's adoption permitted such transfers upon a showing of inconvenience.
Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955).
See also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 253 (1981). A decision to transfer under § 1404(a) lies within the sound discretion of the district court.
See Norwood, 349 U.S. at 31-33.
A transferor court may only transfer to a venue as to which there is personal jurisdiction over the parties and where venue is proper. See Hoffman v. Blaski, 363 U.S. 335, 343-44 (1960). It appears to the Court that the Western District of Tennessee is such a venue (given the venue requirements of 28 U.S.C. § 1391 and given that Plaintiff and Defendant both have sufficient contacts with Tennessee to make the exercise of personal jurisdiction constitutional under the Due Process Clause of the Constitution). Therefore, the Western District of Tennessee is an appropriate candidate for transfer under section 1404(a).
In enforcing the statute, the district courts must consider both the private interests of the parties and their witnesses (under the statutory rubric of "convenience") and the public interest of efficient judicial administration (under the statutory rubric of "the interest of justice"). The private interests include, without limitation, "the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947) (discussing factors pertinent to forum non conveniens). The public interests include, without limitation, docket congestion; the burden of trial within the particular jurisdiction; the value of holding trial within a community in which the affected public live; and the familiarity of the court with the controlling law. Id. See also Moses v. Business Card Express, Inc., 929 F.2d 1131, 1137 (6th Cir. 1991) (discussing factors pertinent to transfer under section 1404(a)); Keboro v. Southwestern Clean Fuels Corp., 285 F.3d 531, 537 (6th Cir. 2002). The trial court must examine all pertinent factors and determine whether the factors weigh more heavily in favor of the moving party's venue or the existing venue. Keboro, 285 F.3d at 537.
2. Private Factors
As to the private factors, it is clear from the parties' briefing that the dominant private factors to be considered are the convenience of the parties and of witnesses. As to the parties themselves, the interests are fairly balanced. Plaintiff is a moderately well-to-do former executive who can afford the costs of litigation whether the litigation be in Tennessee or in Michigan. Defendant Radians is a small corporation which, like Plaintiff, can afford the costs of litigation in either Tennessee or in Michigan. Defendant Safety Supply is an even larger corporation that can afford the costs of litigation in either forum. Therefore, this factor does not strongly favor either Michigan or Tennessee. However, the convenience of witnesses does strongly favor a Tennessee forum. Many if not most of Defendant Radians 14 employees would be called for testimony and/or discovery regarding the merits of this suit. Their prolonged absence from Tennessee, because of trial, would certainly impair the company's ability to function during the suit. Other witnesses, including Plaintiff and his wife, though, are able to travel without extreme inconvenience and could readily travel to Tennessee for trial. Therefore, the Court determines that this factor does strongly favor a Tennessee forum. It is also noted that discovery documents are located in Tennessee and this factor also slightly favors a transfer to a Tennessee forum.
3. Public Factors
As to the public factors, the parties' briefing has focused primarily on the choice of law- i.e., whether the trial court would be called upon to apply Tennessee or Michigan law concerning the various claims asserted (especially the contract claims which are the focus of the suit). It appears from the Court's analysis of choice of law, based on the briefing of the parties, that Count 9 of the Complaint is likely governed by California law and that all other counts are likely governed by Tennessee law, including the state job discrimination claim. This is principally true because the employment relationship was formed and documented in Tennessee with the express intent of making Plaintiff a Tennessee employee; the employment was for a Tennessee corporation; and the employee's primary job responsibilities involved servicing prospective business relations located in neither Michigan nor Tennessee. Although some of the work was performed in Michigan, it appears that this location was an accommodation to the employee rather than a requirement of the employer. Given the likely application of primarily Tennessee law to the resolution of the legal disputes at issue, the Court finds that the public factors favor a Tennessee forum.
Therefore, the Court finds as a whole that the convenience of the parties and witnesses and the interest of justice under 28 U.S.C. § 1404(a) favor the transfer of this suit to the Western District of Tennessee.
CONCLUSION
For the reasons given, Defendants' motion to transfer venue will be granted and this suit transferred to the Western District of Tennessee.