ORDER GRANTING RENEWED MOTION TO TRANSFER
THIS CAUSE is before the court upon the plaintiffs motion to sever defendants’ counterclaim and/or renewed motion for voluntary dismissal of action without prejudice and/or renewed motion for transfer (DE # 218). The primary relief sought by the plaintiff in this motion is a transfer of this case from the Southern District of Florida to the Western District of Missouri pursuant to 28 U.S.C. §§ 1404, 1406, and 1631. The court has reviewed the parties’ arguments and, for the reasons stated below, has determined that a transfer of this case is warranted. 1
Factual Background and Procedural History
I. The Case as Originally Filed
In August of 1999, the plaintiff, Meter-logic, Inc. (“Meterlogie”), a Florida corporation, filed suit against the defendants, Copier Solutions (“CS”), a Missouri limited liability company, and Telemetry Solutions (“TS”), a Delaware limited liability company (“collectively, the defendants”). The defendants’ corporate parents, KLT Tele-com, Inc. (“KLT”), a Missouri corporation; KLT, Inc. (“KLT, Inc.”), a Missouri corporation; and Kansas City Power and Light Co. (“KCPL”), a Missouri corporation, also were joined as defendants in the original and the amended complaints. Meterlogic’s
In its amended complaint, Meterlogic claimed monetary damages in the amount of $50,000,000.00 for CS’s and TS’s breach of contract, fraud, and misrepresentations. It alleged that officers of CS and TS induced Meterlogic to enter into three related agreements by misrepresenting the economic and technological support that KLT, KLT, Inc., and KCPL (the “corporate parents” of CS and TS) would provide their business venture. Meterlogic sought to hold KLT, KLT, Inc., and KCPL liable for their subsidiaries’ misrepresentations.
On September 27, 2000, this court entered an order on the defendants’ and corporate parents’ motions to dismiss. In addition to dismissing count IV, which had been filed against CS and TS, the court held that it lacked personal jurisdiction over KLT, KLT, Inc., and KCPL due to their insufficient contacts with the state of Florida. As a result, the corporate parents’ motion to dismiss was granted, and CS and TS remained as the only defendants in this case.
II. Meterlogic’s First Motion to Transfer
Sometime after the corporate parents were dismissed from this case, Meterlogic learned that CS and TS were insolvent. As a result, in May of 2001, it filed a motion to transfer this case to Missouri, where the defendants and their corporate parents are incorporated, pursuant to 28 U.S.C. §§ 1404, 1406, and 1631. Alternatively, Meterlogic moved for a voluntary dismissal without prejudice under Federal Rule of Civil Procedure 42(a)(2). In its motion, Meterlogic argued that it would be futile for it to pursue its claims against the defendants in this jurisdiction. Because the defendants were empty, shell corporations of their parents, Meterlogic effectively would recover nothing from them if it prevailed on its complaint. Rather, Meter-logic would have to file a lawsuit in Missouri against the corporate parents to enforce any judgment it may obtain against CS and TS. This collection action would be in addition to the complaint Meterlogic was planning to file against the corporate parents in the Western District of Missouri for their independent tortious behavior. Meterlogic contended that, rather than prosecuting two separate lawsuits in two jurisdictions, it should prosecute all its claims in Missouri.
On June 21, 2001, the court entered an order denying Meterlogic’s motion for voluntary dismissal because the defendants had filed a counterclaim against Meterlogic and had objected to Meterlogic’s request for a dismissal.
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Although independent jurisdiction exists over the defendants’ counterclaim, the court found that dismissal of the plaintiffs claim would be inappropriate. As stated in the order, “If the plaintiffs request were granted under Federal Rule of Civil Procedure 41(a)(2), there exists the possibility that the defen
After the entry of this order, Meterlogic notified the court that it had filed its complaint against the corporate parents in the Missouri district court in June of 2001. The Missouri complaint asserted essentially the same veil-piercing theory Meterlogic had argued in opposition to the corporate parents’ motion to dismiss for lack of personal jurisdiction, but it differed substantially from the amended complaint filed by Meterlogic in this court. The Missouri complaint contained many factual allegations that were not asserted in the amended complaint pending in this jurisdiction.
On July 26, 2001, the court entered an order denying Meterlogic’s motion to transfer. It found that adjudicating this case in the Western District of Missouri would not serve the “interest of justice”, as required by 28 U.S.C. § 1404(a). Based on the facts that were before this court at the time it entered its order denying transfer, the court found that Meterlogic still had not established an agency relationship between the corporate parents and defendants sufficient to pierce their corporate veil. As stated in the order:
This finding is significant because, even if the plaintiff were to file suit against the corporate defendants in Missouri (as it has done), the Missouri court will be bound by this court’s finding that the corporate parents cannot be held responsible for the defendants’ tortious conduct. If, as a matter of substantive law, the corporate veil cannot be pierced, it would be futile for the plaintiff to file a claim against the corporate parents in any court, or for this case to be transferred to a court having personal jurisdiction over the corporate parents. Transfer to the Western District of Missouri would result in a needless expenditure of additional time, energy, and money.
Order of 7/26/01 at 3. In effect, Meterlogic’s motion to transfer was denied because Meterlogic failed to make the requisite showing under any of the transfer statutes. Additionally, it was asking the defendants to begin defending their case anew in another jurisdiction.
On August 23, 2001, the court entered an order clarifying its order of July 26, 2001, and the order dismissing the corporate parents for lack of personal jurisdiction. The court explained that the dismissal order was limited to the issue of personal jurisdiction over the corporate parents and was not intended to preclude Meterlogic from prosecuting its claims against them in Missouri “based on additional facts that were not before this court at the time it issued its order dismissing” the corporate parents. Order of 8/23/01 at 2. That is, the order of dismissal was based only on the complaint and evidence that was before the court when that order was issued, not the facts as they have been or will be developed through discovery.
III. The Litigation In This Jurisdiction Has Continued
While the transfer issue was being litigated, CS, TS, and Meterlogic proceeded to commence discovery in this case. On August 15, 2001, the defendants filed a
Daubert
motion to exclude the testimony of Meterlogic’s expert and a motion for summary judgment. The defendants requested summary judgment on Meterlogic’s claims for fraud, negligent misrepresentation, and promissory estoppel.
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Because the defendants’ motions were interdependent, the court held a hearing on October 2, 2001, during which it heard evidence on both motions. During this hearing, it became apparent that the arguments contained in the defendants’ motions and the plaintiffs responses were not consistent with the pleadings. Additionally, the damage theory advanced by the plaintiff through its expert witness differed materially from the damage theory pled in the amended complaint. The defendants were discussing lost profits, Meterlogic was discussing lost business opportunities, and the complaint was based primarily on a breach of contract claim that no longer existed. Because each of these theories required different evidence under the applicable case law, on October 4, 2001, the court entered an order holding the Dau-bert and summary judgment motions in abeyance pending further briefing by the parties. Meterlogic also was invited to file a motion for amendment.
Meterlogic filed a second amended complaint on January 4, 2002. 4 The defendants did not oppose the filing of this complaint, which rendered moot the parties’ previous pleadings and the defendants’ summary judgment and Daubert motions. Meterlogic asserted the following claims against CS and TS in its second amended complaint: count I, tortious interference with Meterlogic’s relationship with Copycomm; count II, fraudulent inducement and deceit; count III, fraudulent concealment and continuing fraud; and count IV, negligent misrepresentation.
Like the amended complaint, the second amended complaint attempts to recover damages incurred from the parties’ venture into the remote monitoring business, but the theory of the case and underlying facts alleged in the latter pleading differ substantially from the original complaints. The most significant distinction between the pleadings is that, throughout the second amended complaint, Meterlogic alleges that the corporate parents created CS and TS to insulate themselves from liability in the event they incurred any liability in the remote monitoring business venture and that they maintained CS and TS as under-capitalized shell corporations. The corporate parents’ involvement is alleged in almost every paragraph of the second amended complaint. The original and first amended complaint are devoid of similar allegations, but these allegations are essentially identical to those of the Missouri complaint.
Moreover, the second amended complaint relies heavily upon allegations relating to several third parties who were involved with Meterlogic and the defendants in their business venture. For example, the second amended complaint discusses Copier Monitoring Systems, LLC, Copy-comm, Inc., and Advance Measurement Solutions, none of which are mentioned in the previous pleadings. These entities’ involvement is discussed at great length throughout the second amended complaint. According to the second amended complaint, the defendants and their corporate parents fraudulently purchased the assets of Copycomm in order to disrupt Meter-
IY. Meterlogic’s Renewed Motion to Sever
On October 17, 2001, prior to the filing of the second amended complaint, Meter-logic filed the motion that is now under consideration. As in its original motion, Meterlogie contends that this case should be transferred to the Western District of Missouri because trying this case against CS and TS in this jurisdiction would be futile. Meterlogie eventually would have to file an action in Missouri to enforce any judgment it obtains in this court. Additionally, Meterlogie has argued that each of the requirements for a transfer under 28 U.S.C. § 1404 are met in this case.
In opposition to Meterlogic’s motion to transfer, the defendants repeatedly contend that the court has “encouraged plaintiff to replead its case and renew its motion to transfer.” Def. Opp. at 2. As discussed in section III, above, this case could not continue as originally pled because Meterlogic’s theories of the case and recovery have changed considerably from when this case was originally filed. It would be impossible to try this case on the pleadings as they existed before the filing of the most recent complaint, and the defendants never objected to the filing of the second amended complaint. In fact, they “encouraged” Meterlogie to do so. As such, it was necessary for Meter-logic to replead its case.
As for the defendants’ statement that the court encouraged Meterlogie to renew its motion to transfer, it is clear that circumstances have changed considerably between the filing of Meterlogic’s original motion to transfer and the oral argument on the
Daubert
and summary judgment motions. These changed circumstances warrant a reconsideration of the transfer motion.
See Cordis Corp. v. Siemens-Pacesetter, Inc.,
When the court denied Meterlogic’s transfer motion, it assumed that the facts that had been and would be developed in discovery were consistent with the facts that were originally pled in this case. During oral argument on the defendants’ substantive motions, however, it became clear that each party and the court were in significant disagreement as to the factual basis and legal theories being advanced in
Analysis
The primary relief requested by Meterlogic in its renewed motion is a transfer to the United States District Court for the Western District of Missouri pursuant to 28 U.S.C. § 1404(a).
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This provision is the statutory codification of the common law doctrine of
forum non conveniens.
Section 1404(a) states, “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.” The standard for transfer under 28 U.S.C. § 1404(a) leaves much to the broad discretion of the trial court, and once a trial judge decides that transfer of venue is justified for the convenience of parties and witnesses and in the interest of justice, the ruling can be overturned only for clear abuse of discretion, and the presumption in favor of the district court judge is heavy.
See Brown v. Connecticut Gen. Life Ins. Co.,
Congress authorized courts to transfer the venue of a case in order to avoid unnecessary inconvenience to the litigants, witnesses, and the public and to conserve time, energy, and money.
See Van Dusen v. Barrack,
I. Whether the Action Might Have Been Brought in Transferee Court
The first threshold consideration when deciding the merits of a motion to transfer is whether the case may have been brought in the desired district of transfer, which, in this case, is the Western District of Missouri.
See Miot,
II. Application of Factors
After determining that the action could have been brought in the alternative forum, the next consideration is whether the transfer would be for the convenience of the parties and witnesses and in the interest of justice. This, in turn, depends on Meterlogic’s ability to satisfy certain factors. These factors include the convenience of the parties, the convenience of the witnesses, the relative ease of access to sources of proof, the availability of service of process to compel the presence of unwilling witnesses, the cost of obtaining the presence of witnesses, the public interest, and all other practical problems that make trial of the case easy, expeditious, and inexpensive.
See Mason v. Smithkline Beecham Clinical Labs.,
A. Convenience of the Parties
In the typical motion to transfer, the plaintiff will be inconvenienced because it is usually the defendant who is attempting to remove the case to the defendant’s home forum. In this case, however, it is the plaintiff who is seeking to transfer the case. As such, it can be assumed that Meterlogic’s convenience is not contested. Moreover, the fact that the plaintiff is requesting the transfer can be considered as one factor in favor of allowing a change of venue.
See Moore v. McKibbon Bros., Inc.,
Although they vehemently contest Meterlogic’s transfer motion, the defendants have failed to explain why Missouri is an inconvenient forum to try this case. In contrast, the plaintiff has met its burden of demonstrating that Missouri is more convenient for all the parties. CS is a Missouri limited liability company with its principal place of business in Kansas City, Missouri. TS is a Delaware limited liability company with its principal place of business in Kansas City, Missouri. Because both defendants are Missouri companies with no apparent connection to Florida other than this litigation, it is clear that Missouri is the more convenient forum for this case to proceed.
B. Convenience of Witnesses, Sources of Proof, and Compulsory Process
The transactions giving rise to this case occurred in Florida and Missouri. Although it is not clear where most of the documents are located, there is no question that most of the witnesses reside in Missouri. More importantly, it is the non-moving parties’ witnesses who reside in the transferee forum. Thus, the defendants cannot seriously argue that then-witnesses would be inconvenienced by trial in Missouri. In its motion to transfer, Meterlogic names the following individuals as witnesses: David McCoy, Ronald Was-son, Jim Gilligan, Greg Clizer, Mark English, Joe Jacobs, Brenda Hagood, Doug Morgan, Carl Greenway, and Teresa Cook.
This is not simply a case where the plaintiff, as the party requesting transfer, wishes to shift the inconvenience to the defendants, the parties opposing transfer. Instead, it is the plaintiffs who theoretically would be inconvenienced by the transfer. Trying this case in Missouri would not prejudice the defendants or their witnesses in any way. In fact, from the record it appears that it would be more convenient for the defendants to try this case in Missouri, and they have not shown otherwise. This fact weighs heavily in favor of trying this case in Missouri.
C. Duplicative Litigation
As stated by the United States Supreme Court, “The idea behind [28 U.S.C.] § 1404(a) is that where a ‘civil action’ to vindicate a wrong — however brought in a court — presents issues and requires witnesses that make one District Court more convenient than another, the trial judge can, after findings, transfer the whole action to the more convenient court.”
Continental Grain Co. v. Barge FBL-585,
As in
Continental Grain Co.,
trying this case in two separate district courts would “lead to the wastefulness of time, energy, and money”. Most of the witnesses are located in Missouri, and only the plaintiffs witnesses are located in this jurisdiction. Moreover, the issues before
Two separate cases currently exist because Meterlogic filed a second lawsuit when it learned that this court did not have jurisdiction over the corporate parents. Courts have recognized that transfer of a case is appropriate under these circumstances. For example, in
Goldlawr, Inc. v. Heiman,
Other courts have transferred cases under identical circumstances pursuant to 28 U.S.C. § 1404(a).
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In
Fein v. Public Service Coordinated Transport,
As stated by the Supreme Court in
Goldlawr,
dismissal
of
the corporate par
D. Administrative Difficulties
The defendants’ primary argument in opposition to Meterlogic’s motion is that transferring this case to the Western District of Missouri would result in a delay in trying this case. As discussed above, this case is not significantly more advanced in this jurisdiction than in Missouri because the filing of a second amended complaint in this forum has served to postpone the trial date to a much later time. The parties now need to conduct additional discovery, the defendants must respond to the complaint, and the defendants have indicated that they will file new summary judgment and Daubert motions. The situation would be different if this case were ready for trial or if dispositive motions had been filed and were ripe for a ruling by the court. However, because a second amended recently has been filed that dramatically changes Meterlogic’s theory of the case and the course of discovery, it is unlikely that any delay would result by transferring this case to Missouri. 9
Moreover, this is one of the busiest district courts in the nation, so it would be impossible for the court to address any dispositive motions that may be filed by the defendants, much less try this case, in the near future. In contrast, the Western District of Missouri has fifty percent less civil cases per judgeship than this district.
10
It is more than likely that the
E. Attorneys
Of the factors considered on a transfer motion, the location of counsel is entitled to the least consideration. It is worth noting, however, that at least two district courts have found that this factor is relevant when the counsel for both parties are not practitioners in the transferor forum.
See Dupre v. Spanier Marine Corp.,
F. Insolvency of Defendants
Section 1404(a) authorizes transfer “for the convenience of parties and witnesses” and “in the interest of justice”. While the defendants are correct that no reported decision has ever found that the collectability of a judgment is a factor to be considered in a motion to transfer, the language of § 1404(a), which provides generally for transfer to further the “interest of justice”, is broad enough to encompass this case. 11 It is undisputed that, if Meterlogic prevails on the second amended complaint it has filed in this forum, it will collect nothing from CS and TS. Meterlogic will have wasted its resources by litigating in this forum, only to have to file a separate suit to collect the judgment in Missouri from the corporate parents. Additionally, this court will have wasted its time and resources in conducting this litigation, which involves insolvent defendants. Transferring this action to Missouri, a jurisdiction where the plaintiffs potentially can be afforded full relief, would further the interest of justice. In any event, whether or not the court may consider the insolvency of the defendants in this jurisdiction as a factor warranting transfer, there are sufficient other reasons to justify transfer of this case to the Western District of Missouri.
III. Conclusion
In one way or another, the facts at issue in this ease eventually will be before the Missouri district court, either by means of supplemental judgment enforcement proceedings against the corporate parents (if
As recognized in the previous order denying Meterlogic’s original motion to transfer, Meterlogic’s situation is self-imposed because it chose to file suit in this jurisdiction, where none of the defendants reside. It is also true, however, that the defendants’ situation is self-imposed. CS and TS have provided no justification for keeping the case in this forum. Despite their conclusory statements to the contrary, it is more inconvenient for CS and TS to try this case in Florida than in Missouri, where they are incorporated and their witnesses reside. Moreover, it is not as if the defendants chose to appear in this forum. They only appeared here because they were haled into this court when Me-terlogic brought suit in Florida. Similarly, they only filed their counterclaim in this court because they were sued here. The filing of this counterclaim does not weigh against transfer because the defendants have not shown that they would be prejudiced by the transfer of the counterclaim to Missouri. Moreover, it does not appear from the record that anything has been done on this counterclaim by any of the parties.
This case actually would not be delayed if it were tried in Missouri because discovery already has commenced in that jurisdiction. Moreover, Meterlogic’s filing of a second amended complaint requires an amended pleading and counterclaim by the defendants. Most importantly, discovery will need to be reopened and new summary judgment and Daubert motions will need to be filed because Meterlogic has changed its entire theory of the case. New parties and factual circumstances have been introduced by the second amended complaint. It would be impossible for the parties and the court to abide by the most recent scheduling order. In effect, the defendants would not be prejudiced by a transfer of this case to the Western District of Missouri. Accordingly, it is hereby:
ORDERED AND ADJUDGED THAT:
1. Meterlogic’s renewed motion to transfer (DE # 224) is GRANTED.
2. The Clerk of the Court shall transfer this case in its entirety to the United States District Court for the Western District of Missouri.
3. All pending motions are DENIED AS MOOT.
4. The Clerk of the Court shall CLOSE this case.
Notes
. Because the primary relief sought by the plaintiff is being granted, the plaintiff’s requests for severance and voluntary dismissal are not addressed in this order.
. The defendants' counterclaim is predicated on facts indirectly related to the subject of Meterlogic's complaint. CS and TS claim that they paid Meterlogic for a product that never was delivered to them. Because the parties are diverse, and the amount in dispute exceeds $75,000.00, independent subject matter jurisdiction exists over the counterclaim.
. Meterlogic withdrew its claim for breach of contract.
. An amended complaint supersedes a previously filed complaint.
See Malowney v. Fed. Coll’n Deposit Gp.,
. Meterlogic also requests a transfer pursuant to 28 U.S.C. §§ 1406 and 1631, but, as transfer is warranted under § 1404, it is not necessary to discuss the applicability of those provisions.
. The transfer statute at issue in Goldlawr was 28 U.S.C. § 1406, not 1404, but the Court's analysis applies to this case because both statutes involve the same requirements.
. It is significant that, while case law exists to support transfer in this case, the court has been unable to find any cases denying transfer under similar circumstances, and the defendants have not cited to any such cases.
.In their opposition to Meterlogic's renewed motion, the defendants contend that the plaintiff could have avoided the current status of the case by dismissing this case and refiling in Missouri immediately after this court dismissed the corporate parents for lack of personal jurisdiction. While it is true that this would have avoided the situation that currently exists, the court will not sacrifice its time, resources, and overall considerations of judicial economy to "punish” Meterlogic for its misguided strategic decisions. The court must do what ultimately will further the “interest of justice”, and in this case, this interest is advanced by transfer pursuant to 28 U.S.C. § 1404.
. The defendants’ argument that transfer would delay this case is further undermined by the Missouri court's discovery order, which allows discovery obtained in this action to be used in the Missouri litigation.
. According to the 2000 Federal Court Management Statistics, which are published by the Administrative Offices of the United States Courts, the Western District of Missouri had an average of 286 civil cases pending per judgeship in 2000, while the Southern District of Florida had 527 civil cases pending per judgeship.
. It also is true that no court has held that a defendant’s insolvency is not a factor to be considered in transfer analysis.