R. ALLAN EDGAR, Chief Judge, District
I. Introduction
Currently pending before the Court is the motion of defendant, Ameri-Life and Health Services of Chattanooga, Inc., ("Ameri-Life") to transfer this action to the United States District Court for the Middle District of Florida pursuant to 28 U.S.C. § 1404(a). [Court File No. 12]. Plaintiff, Donna Graham Haynes, has filed a response to Ameri-Life's motion to transfer. [Court File No. 14].
II. Background
Plaintiff brought this action in the Chancery Court of Hamilton County, Tennessee, on December 23, 2003 [Court File No. 1]. On January 26, 2004, Ameri-Life removed the case to this Court pursuant to 28 U.S.C. § 1441(a) based upon complete diversity of citizenship between the parties under 28 U.S.C. § 1332 [Court File No. 1].
Thereafter, Ameri-Life moved to dismiss this action for improper venue. [Court File No. 5]. In an order, dated March 4, 2004, this Court denied Ameri-Life's motion to dismiss this action pursuant to Fed.R.Civ.P. 12(b)(3) on the grounds of improper venue. [Court File No. 11]. Subsequently, Ameri-Life filed the instant motion to transfer venue to the United States District Court for the Middle District of Florida under 28 U.S.C. § 1404(a). [Court File No. 12].
III. The Motion to Transfer Venue under 28 U.S.C. § 1404(a) [Court File No. 21].
Ameri-Life seeks a transfer under 28 U.S.C. § 1404(a) based upon the terms of an agreement it entered into with plaintiff on or about April 30, 2001. [Court File No. 13]. In this agreement, plaintiff entered into an independent contractor relationship with Ameri-Life, pursuant to which she was authorized to solicit applications for health, life, annuity or other forms of insurance. Id., Exhibit A. Paragraph 25 of the agreement between plaintiff and Ameri-Life provided:
This Agreement is subject and is to be interpreted in accordance with the laws of the State of Florida. Venue for any action, suit or other proceeding including non-contract disputes shall be in Pinellas County, Florida. The parties hereby waive any other venue unless agreed in advance by the parties to the Agreement.
Id. at 25.
A forum selection provision in a written contract is prima facie valid and enforceable unless the opposing party shows that enforcement would be unreasonable. Kevlin Services, Inc. v. Lexington State Bank, 46 F.3d 13 (5th Cir. 1995) (per curiam) (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 10, 92 S. Ct. 1907, 1913 (1972)). "[F]orum selection clauses generally are enforced by modern courts unless enforcement is shown to be unfair or unreasonable." Security Watch, Inc. v. Sentinel Systems, Inc., 176 F.3d 369, 375 (6th Cir. 1999), cert. denied, 528 U.S. 1181, 120 S. Ct. 1220 (2000). Further, as the jurisdiction of this Court in this action is based upon diversity of citizenship under 28 U.S.C. § 1332, the Court notes that Tennessee law is consistent with the Supreme Court's ruling in Zapata; namely, that the courts of Tennessee "should enforce [a forum-selection] clause unless the party opposing enforcement demonstrates that it would be unfair and inequitable to do so." Id. (quoting Dyersburg Mach. Works, Inc. v. Rentenbach Eng'g Co., 650 S.W.2d 378, 380 (Tenn. 1983)).
The Court notes that the forum selection clause in the Independent Agent Agreement states that the agreement is to be interpreted under the law of the State of Florida. The courts of Florida have "consistently held . . `that unambiguous mandatory forum selection clauses contained in contract documents are presumptively valid and should be enforced in the absence of a showing that enforcement would be unreasonable or unjust." Farmers Group Inc. v. Madio Co., No. 4D03-1275, 2004 WL 384371 at * 1 (Fla.Dist.Ct.App. 4th Feb. 11, 2004) (quoting Swarovski N. Am. Ltd. v. House of China, Crystal Silver, Inc., 848 So.2d 452, 453 (Fla.Dist.Ct.App. 4th 2003)).
In Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 108 S. Ct. 2239 (1988), the Court held that federal law, 28 U.S.C. § 1404(a), governed the issue of whether or not to give effect to the forum selection clause in the agreement between the parties. Id., 487 U.S. at 32, 108 S. Ct. at 2245. Specifically, the Court stated:
Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an "individualized, case-by-case consideration of convenience and fairness."
Van Dusen v. Barrack, 376 U.S. 612, 622,
84 S. Ct. 805, 812,
11 L.Ed.2d 945 (1964). A motion to transfer under § 1404(a) thus calls on the district court to weigh in the balance a number of case-specific factors.
The presence of a forum-selection clause such as the parties entered into in this case will be a significant factor that figures centrally in the district court's calculus.
Id., 487 U.S. at 29, 108 S. Ct. at 2244 (emphasis added).
Title 28, United States Code, § 1404(a):
permits the Court to transfer venue to another district where it might have been brought if it is necessary for the convenience of the parties and witnesses or the interests of justice.
28 U.S.C. § 1404(a)(1993). The burden is on the moving party to establish the need for a change of forum.
Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir. 1978). "Unless the balance is strongly in favor of the defendants, the plaintiff's choice of forum should rarely be disturbed."
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508,
67 S. Ct. 839,
91 L.Ed. 1055 (1947). In deciding whether to transfer a case because the forum is inconvenient, courts have considered the following factors: (1) the location of willing and unwilling witnesses, (2) the residence of the parties, (3) the location of sources of proof,
and (4) the location of the events that gave rise to the dispute.
Walker v. Consumers Power Co.,
1990 WL 16387 (6th Cir. ((Mich.)),
cert. denied, 498 U.S. 815,
111 S. Ct. 55,
112 L.Ed.2d 30 (1990)).
Blane v. American Inventors Corp., 934 F. Supp. 903, 907 (M.D. Tenn. 1996)).
In determining whether it will transfer venue under § 1404(a), a district court will consider a number of private and public factors. Nilssen v. Everbrite, Inc., 2001 WL 34368396 at *1 (D.Del. Feb. 16, 2001). The private factors include:
(1) the convenience of the parties due to their relative physical and financial conditions, (2) the convenience of the expected witnesses, but only so far as the witnesses might be unavailable for trial if the trial is conducted in a certain forum, and (3) the location of books and records, to the extent that these books and records could not be produced in a certain forum.
Id. (citing
Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995)). The public factors include:
(1) the enforceability of the judgment, (2) practical considerations regarding the case, speed, or expense of trial, (3) the administrative difficulty due to court congestion, (4) the local interest in deciding local controversies in the home forum, (5) the public policies of the two fora, and (6) the trial judge's familiarity with the applicable state law in diversity cases.
Id. (citing
Jumara, 55 F.3d at 879-80). In addition, "when a forum selection clause purports to govern the choice of venue, the Court must address the convenience of the chosen forum given both parties' expressed preference for that venue."
Lafargue v. Union Pacific R.R., 154 F.Supp.2d 1001, 1004 (S.D. Tex. 2001) (citing
Stewart, 487 U.S. at 29-30, 108 S. Ct. at 2244).
In her complaint, plaintiff has alleged that on or about April 30, 2001, she became associated with defendant, Ameri-Life, as an "Independent Agent" for the sales and servicing of "all forms of Health, Life, Annuity or any other forms of insurance" for defendant. [Court File No. 1, Complaint, ¶ 3]. On April 30, 2001, plaintiff signed an "Independent Agent Agreement" between herself and Ameri-Life. [Court File No. 1, Exhibit A; Court File No. 13, Exhibit A]. The Independent Agent Agreement contains the forum selection clause set forth above. Id. at ¶ 25.
Plaintiff alleges that on or about May 4, 2003, she submitted her written resignation to defendant pursuant to the terms of paragraph 17 of the Independent Agent Agreement. Id. at ¶ 4. Plaintiff further alleges that: (1) within days of her resignation, defendant defamed her by transmitting information to another insurance company which resulted in that insurance company revoking her license to sell its insurance; (2) that despite her request, defendant has refused to release her from the agency agreement between defendant and other numerous insurance companies, resulting in the loss of present and future income to her; (3) defendant has refused to account and pay her for earned commissions and other earned monies; and (4) subsequent to her resignation, defendant, through its agents and employees, has represented to its customers that she was "terminated" from her employment with defendant and has requested that such customers not deal with her. [Court File No. 1, Complaint, ¶¶ 6, 7, 8 and 9].
Also in the record is the February 3, 2004 Affidavit of Tim North, the Secretary of Ameri-Life Health Services of Chattanooga, Inc.[Court File No. 7, 13]. In his affidavit, Mr. North states that Ameri-Life is a Florida corporation, but it is "not presently conducting business." Id. at ¶ 3. Mr. North states that Ameri-Life formerly conducted business in Chattanooga, Tennessee, but that it is currently winding up its affairs from 2536 Countryside Boulevard, Clearwater, Florida, where his office is presently located. Id. at ¶ 3. His affidavit further states that Ameri-Life closed its Chattanooga office on or about October 10, 2003 and has not conducted any business in Tennessee since that date. Id. at ¶ 4. Further, Mr. North's affidavit states that to the best of his knowledge, all witnesses, except plaintiff, are located in Florida and that all of Ameri-Life's corporate records are located in Florida. Id. at ¶ 5.
Plaintiff's February 19, 2004 affidavit also appears in the record. It states in pertinent part that:
3. That at the time she became an agent with Defendant she was required to sign numerous forms, agreements, agency agreements, etc. under such circumstances which did not allow her to question or review any of the agreements or forms she was required to sign.
4. That she has identified approximately twenty (20) witnesses which have information to support her claims in the above entitled lawsuit and that all but one (1) of them reside within approximately 40 miles of the federal courthouse in Chattanooga, Tennessee.
5. That many of these witnesses are elderly, one of them being approximately 80 years of age.
6. That she currently is without sufficient funds to pay for the transportation and lodging of any witnesses in Florida should this matter be transferred to that state.
[Court File No. 9].
In her response, to defendant's motion to transfer venue, plaintiff argues that this action should not be transferred to Florida because many of her witnesses are elderly and unable or unwilling to travel to Florida to testify, while there is no allegation that any of defendant's witnesses would have any difficulty in traveling. [Court File No. 14, p. 3]. She also asserts that to transfer this action to Florida would "substantially impair [her] ability to fully and properly present her case to a jury or other trier of the facts. Plaintiff would have to present most if not all of her facts supporting testimony by deposition which would diminish its value. Further, plaintiff alleges that as she has limited funds these depositions would have to be limited in number and type. Id. at 3, 4. Finally, plaintiff submits that the questionable circumstances surrounding her execution of the forum selection clause should diminish its importance as a factor in the Court's consideration of the motion to transfer. Id.
Having considered and weighed the relevant factors, the Court finds that the balance weighs in favor of transfer of this action to the Middle District of Florida.
First, contrary to plaintiff's assertions the Court finds that there is no reason to diminish the importance of the forum selection clause in the Independent Agent Agreement. Plaintiff suggests that the forum selection clause in the Independent Agent Agreement should be given diminished importance, or not enforced at all, because at the time she entered into the Independent Agent Agreement she signed numerous forms and agreements and "did not question or review any of the agreements or forms she was required to sign." [Court File No. 9, ¶ 3].
However, plaintiff does not dispute that she signed the Independent Agent Agreement. "[A] party who signs a contract in the absence of fraud or other wrongful acts on the part of another contracting party, is presumed to know its contents and to have assented to them." Beletsis v. Credit Suisse First Boston, Corp., No. 01 CIV 6266, 2002 WL 2031610 at * 3 (S.D.N.Y. September 4, 2002) (citing Genesco v. T. Kaikuchi Co., Ltd., 815 F.2d 840, 844 (2d Cir. 1987)). Plaintiff does not assert fraud on the part of Ameri-Life with regard to the Independent Agent Agreement. Rather, she asserts that at the time she executed the Independent Agent Agreement she signed a number of forms and agreements which she asserts she neither read nor questioned. However, a review of the language of paragraph 25 of the Independent Agent Agreement reveals no reason why a reasonable person, including plaintiff, would not have understood the language of that paragraph, assuming they had read it.
Further, the Independent Agent Agreement made plaintiff an independent contractor for the purpose of permitting her "to solicit applications for placement through [Ameri-Life] for all forms of Health, Life, Annuity or any other forms of insurance covered by this agreement." [Court File No. 1, Exhibit A, ¶ 1]. The Independent Agent Agreement also provided that plaintiff would receive "commissions on new and renewal" insurance business which she solicited as an independent contract for Ameri-Life. Id. at ¶ 7. Plaintiff does not object to the receipt of such commissions. Rather, as part of this action, she seeks recovery of unpaid commissions under the Independent Agent Agreement. However, plaintiff cannot seek to enforce one of the provisions of the contract, a provision which is favorable to her, but then seek to avoid a provision of the contract that she deems unfavorable by arguing that she signed the contract without reading it.
Thus, the Court finds that the forum selection clause is valid and that it is a significant, but not dispositive factor in the decision whether or not to transfer venue. Moreover, the forum selection clause as well as the provision that Florida law governs the agreement between the parties does strongly suggest that Florida is a convenient forum for settling the dispute between the parties.
Further, other factors weigh in favor of transferring venue. First, the forum selection clause also states that the Agreement is to be interpreted under the law of the State of Florida. While this Court has no doubt about its ability to interpret and apply Florida law, the United States District Court for the Middle District of Florida is likely to be more familiar with the law of Florida than is this Court.
In addition, as Ameri-Life has ceased doing business is Tennessee and is now winding up its business in Florida, it appears that many, if not all, of the applicable business records are located in Florida. [Court File No. 7, 13, North Affidavit, ¶¶ 4, 5]. Furthermore, in light of the fact that Ameri-Life has ceased operations in Tennessee and is now winding up its business in Florida, it will be more practical to enforce any judgment obtained by plaintiff against Ameri-Life in Florida, since its sole remaining office is currently located in that State.
The location and availability of witnesses does weigh against transferring venue. However, it appears that this factor does not weigh against transfer as strongly as plaintiff suggests. Plaintiff states that her witnesses all reside in the Chattanooga area. She also states that some of her witnesses are elderly and will be unwilling to travel to Florida. This assertion is somewhat conclusory, however, as she states that one of her witnesses is approximately 80 years old. She does not specify the ages of her other elderly witnesses.
Plaintiff suggests that she will be affected by a transfer of this action to Florida because she would have to present a significant portion of her case by deposition. Under the provisions of Fed.R.Civ.P. 32(a)(3)(B), plaintiff would be able to introduce the deposition of any witnesses from this area who is unable or unwilling to travel to Florida for trial of this action. Moreover, with regard to most of plaintiff's witnesses, and particularly her elderly witnesses, regardless of whether this action remains in this Court or is transferred to Florida, plaintiff will no doubt wish to take their depositions in order to preserve their testimony.
Finally, the Court deems certain factors to be either neutral or to have no impact on this case. The Court has no information currently before it dealing with the relative speed or expense of trial in the Middle District of Florida as compared to this district and it has no information that suggests that there is any public policy in the Middle District of Florida as opposed to this Court which would affect this action.
The convenience of the parties is also a neutral factor because plaintiff is located in northern Georgia and defendant, Ameri-Life, no longer does business in Tennessee and is winding up its corporate affairs, with its sole office in Florida. Further, the location of the events which for the basis of plaintiff's complaint is also a neutral factor. Plaintiff clearly earned her commissions in the Eastern District of Tennessee. However, it is not clear from the current state of the pleadings, whether the alleged defamatory statements concerning plaintiff or the allegedly false statement that she was "terminated" was made by defendant Ameri-Life in Florida, Tennessee or both.
Accordingly, for the reasons stated above, the Court finds that the balance of factors in this action weighs in favor of transfer to the United States District Court for the Middle District of Florida under 28 U.S.C. § 1440(a). Therefore the motion of defendant, Ameri-Life, to transfer this action to the United States District Court for the Middle District of Florida, Tampa Division, pursuant to 28 U.S.C. § 1440(a) [Court File No. 12] will be GRANTED.
Pinellas County, Florida, is located in the Tampa Division of the United States District Court for the Middle District of Florida.
A separate order will enter.
ORDER
In accordance with the accompanying memorandum opinion, the motion of defendant Ameri-Life and Health Services of Chattanooga, Inc. for a transfer of this action to the United States District Court for the Middle District of Florida under 28 U.S.C. § 1404(a) [Court File No. 12] is GRANTED.
It is hereby ORDERED that this action is TRANSFERRED in its entirely, pursuant to 28 U.S.C. § 1404(a), to the United States District Court for the Middle District of Florida, Tampa Division.