United States District Court,

S.D. Florida.

CITIZENS WATCH COMPANY OF AMERICA, INC., Plaintiff,

v.

EXPEDITERS INTERNATIONAL OF WASHINGTON, INC. and Forward Air, Inc., Defendants.

No. 10-21326-CIV.

 

Sept. 30, 2010.

 

Kate S. Goodsell, William Edward Cassidy, Cassidy & Black, P.A., Miami, FL, for Plaintiff.

 

Lawrence J. Roberts, Lawrence J. Roberts & Associates, Coral Gables, FL, for Defendants.

 

ORDER GRANTING MOTION TO REMAND

 

PATRICIA A. SEITZ, District Judge.

 

THIS MATTER is before the Court on Plaintiff’s Motion to Remand [DE-12]. This matter arises from a contract to transport goods from California to Florida. Plaintiff’s Amended Complaint alleges state law claims for bailment, negligence, and breach of contract. Defendant Expeditors International of Washington, Inc. (Expeditors) removed the case to this Court. This is the second time that this case has been removed from state court. Plaintiff again moves for remand based on: (1) the basis for removal was apparent from the face of the original complaint and (2) federal law does not completely preempt Plaintiff’s state law claims. Because Expeditors’ basis for removal was apparent on the face of the original complaint, the Notice of Removal was untimely. Consequently, Plaintiff’s Motion to Remand is granted.

 

Procedural and Factual Background

 

Plaintiff filed this suit on April 29, 2009 in the Circuit Court of the 11th Judicial Circuit of Florida, in and for Miami Dade County, Florida. Defendant Expeditors was served with a summons and complaint on April 30, 2009. Defendant Forward Air, Inc. was served with a summons and complaint on May 4, 2009. On May 20, 2009, Forward Air filed its Notice of Removal based on diversity. On June 10, 2009, Plaintiff filed its Motion to Remand. On June 11, 2009, Expeditors filed a Notice of Consent and Joinder in Removal. On September 3, 2009, the Court granted the Motion to Remand because Expeditors’ Notice of Consent and Joinder in Removal was untimely.

 

On April 5, 2010, Plaintiff filed an Amended Complaint in state court. On April 23, 2010, Expeditors filed a Notice of Removal [DE-1] based on federal question jurisdiction and, on the same day, Defendant Forward Air, Inc. filed its Notice of Consent and Joinder in Removal [DE-3]. The Removal petition states that Plaintiff’s claim is governed exclusively by the Carmack Amendment, 49 U.S.C. § 14706, which preempts Plaintiff’s state law claims. On May 24, 2010, Plaintiff filed its Motion to Remand.

 

The Motion to Remand

 

The Motion to Remand argues that Expeditor’s removal was untimely because the basis for removal was apparent on the face of the original complaint. Plaintiff acknowledges that a “second notice of removal is permitted under § 1446(b), provided that it is ‘through service of a copy of an amended pleading, motion, order, or other paper from which it may be first ascertained that the case is one which is or has become removable.’ ” Deutsche Bank Nat’l Trust v. Jenkins, 2008 WL 4218106 (S.D.Fla.2008) (quoting 28 U.S.C. § 1446(b)) (emphasis added). Plaintiff argues that this is not that case because it was apparent on the face of the original complaint that this case involved interstate commerce and the breach of an interstate shipping agreement. In the Notice of Removal, Expeditors asserts that such a claim is governed exclusively by the Carmack Amendment and therefore the case is removable because the claims arise under federal law.

 

Expeditors argues that this is not a second notice of removal because Forward Air filed the first Notice of Removal and Expeditor’s joinder was held untimely. This argument is irrelevant under the circumstances.

 

Removal statutes are strictly construed and any doubts or ambiguities must be resolved in favor of remand. See Whitt v. Sherman Int’l Corp., 147 F.3d 1325, 1329 (11 th Cir.1998). The removing party bears the burden of demonstrating that removal was proper. Id. A defendant must file its notice of removal within thirty (30) days of service of a pleading which sets forth a basis for removal. 28 U.S.C. § 1446(b) (emphasis added). Expeditors did not do this because the original complaint set forth the allegations that form the basis of Expeditors’ removal.

 

A review of the original complaint, attached as Exhibit 1 to the Motion to Remand [DE-12-1], establishes that Plaintiff pled that: (1) Forward Air was an overland carrier of freight for hire and/or warehouseman and transported and warehoused the subject cargo; (2) Expeditors is a common carrier for the subject cargo; (3) Plaintiff contracted with Expeditors to transport the subject cargo from Torrance, California to Miami, Florida; (4) Expeditors subcontracted with Forward Air to transport the same cargo from Torrence, California to Miami, Florida; and (5) Forward Air transported the cargo by truck to Miami, Florida. A review of the Amended Complaint shows that the only relevant pleading change was Plaintiff’s addition of the allegation that it transacts business in interstate commerce. See DE-1-2 at ¶ 2. Based on the allegations in the original complaint, it is clear that Plaintiff’s claims involved the interstate transportation of goods by truck. These allegations are sufficient to put Defendants on notice that the complaint alleges claims that may fall under the Carmack Amendment. Thus, the original complaint, filed on April 29, 2009, set forth the basis on which Expeditors removed. However, Expeditors did not file the Notice of Removal until nearly a year after the complaint was filed, well beyond the thirty day time limit. Consequently, Expeditors’ Notice of Removal was untimely and Plaintiff’s motion is granted.

 

Because removal was untimely, the Court need not, and will not, address the preemption arguments. Accordingly, it is

 

ORDERED that Plaintiff’s Motion to Remand [DE-12] is GRANTED. This case is remanded to the Eleventh Judicial Circuit in and for Miami Dade County, Florida

 

2. All pending motions not otherwise ruled upon are denied as moot.

 

3. This case is CLOSED.

 

DONE AND ORDERED.

United States District Court,

S.D. Texas,

Houston Division.

TRANSPORTATION SERVICES, INC. and as Assignee of Gonzalez Production Systems, Inc., Plaintiff,

v.

DICEX INTERNATIONAL, INC., et al., Defendants.

Civil Action No. H-10-2246.

 

Sept. 29, 2010.

 

MEMORANDUM OPINION AND ORDER

 

SIM LAKE, District Judge.

 

Transportation Services, Inc. (“TSI”) and as assignee of Gonzalez Production Systems, Inc. brings this action against Dicex International, Inc. (“Dicex”), Dicex, S.A. de C.V. a/k/a Dicex Logistica, S.A. de C.V. (“Dicex Logistica”), Carlos Alberto Fernandez-Martinez (“Martinez”), and Transportes de Carga FEMA, S.A. de C.V. (“FEMA”) alleging negligence, violations of the Interstate Commerce Act, and breach of bailment arising from an automobile accident that allegedly destroyed cargo being transported to a manufacturer in Mexico. Pending before the court are Carlos Alberto Fernandez-Martinez and Transportes de Carga FEMA, S.A. de C.V.’s Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404 (Docket Entry No. 5) and Dicex International Inc.’s Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404 (Docket Entry No. 8). For the reasons explained below, the court will grant both motions to transfer this action to the Laredo Division of the Court.

 

I. Background

 

This action stems from damages sustained to electronics cargo that was being transported from Michigan to an automobile manufacturing facility in Mexico.  The cargo, along with the trailer carrying it, were allegedly destroyed in an automobile accident in Mexico while the cargo was en route to the manufacturing facility. The plaintiff, TSI, is a Delaware motor-carrier corporation headquartered in Romulus, Michigan. TSI’s registered agent resides in Laredo, Texas. Defendant Dicex is a Texas motor-carrier corporation specializing in customs processing with its principal place of business in Laredo, Texas. Defendant FEMA is a Mexican motor-carrier corporation headquartered in Nuevo Laredo, Mexico. Defendant Martinez is the President of FEMA and resides in Laredo, Texas.

 

Plaintiff’s Original Complaint (“the Complaint”), Docket Entry No. 1, ¶ 5.

 

Id. ¶ 7.

 

Id. at 1; Company Information, Exhibit 3 to Carlos Alberto Fernandez-Martinez and Transportes de Carga FEMA, S.A. de C.V.’s Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404 (“Martinez and FEMA’s Motion to Transfer”), Docket Entry No. 5, p. 1.

 

Franchise Tax Certification of Account Status, Exhibit 2 to Martinez and FEMA’s Motion to Transfer, Docket Entry No. 5, p. 1.

 

Dicex International Inc.’s Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404 (“Dicex’s Motion to Transfer”), Docket Entry No. 8, ¶ 2; Declaration of Alberto Aranda, Exhibit 1 to Dicex’s Motion to Transfer, Docket Entry No. 8, p. 1.

 

Declaration of Eliseo Hernandez, Exhibit 1 to Martinez and FEMA’s Motion to Transfer, Docket Entry No. 5, p. 1.

 

Id.

 

TSI alleges that it contracted with Gonzalez Production Systems, Inc. (“Gonzalez”) to transport automobile-manufacturing equipment (“the cargo”) from Gonzalez’s facility in Michigan to Toluca, Mexico. According to TSI, after it safely transported the cargo from Michigan to Laredo, Texas, it made arrangements with Dicex for Dicex to oversee the cargo’s passage across the border and down to Toluca. TSI alleges that Dicex in turn made arrangements with FEMA for FEMA to transport the cargo from the border to Toluca.0 It is undisputed that while a FEMA employee was driving the cargo through Mexico, the truck was involved in an accident that allegedly caused damages to the cargo and the trailer in which it was being transported. 1

 

Affidavit of Michael Zavislak, Exhibit 1 to Plaintiffs, Transportation Services, Inc. and as Assignee of Gonzalez Production Systems, Inc.’s Response to Defendants’ Motion to Transfer Venue (“TSI’s Response”), Docket Entry No. 10, p. 1.

 

Id.

 

0. Id. at 1-2.

 

1. Id. at 2; Exhibit 1 to Martinez and FEMA’s Motion to Transfer, Docket Entry No. 5, p. 2.

 

Following the accident Gonzalez brought suit in Michigan state court against TSI, Dicex, and FEMA.2 The claims against Dicex and FEMA were dismissed for lack of personal jurisdiction.3 TSI settled its case with Gonzalez, and under the settlement agreement TSI is assignee and subrogee of Gonzalez’s right to pursue claims against Dicex and FEMA.4

 

2. The Complaint, Docket Entry No. 1, ¶ 8; Defendant Dicex International, Inc.’s Answer (“Dicex’s Answer”), Docket Entry No. 12, ¶ 10; Defendant Transportes de Carga FEMA, S.A. de C.V.’s Answer (“FEMA’s Answer”), Docket Entry No. 9, ¶ 10.

 

3. The Complaint, Docket Entry No. 1, ¶ 10; Dicex’s Answer, Docket Entry No. 12, ¶ 10; FEMA’s Answer, Docket Entry No. 9, ¶ 10.

 

4. The Complaint, Docket Entry No. 1, ¶ 9.

 

On June 24, 2010, TSI brought this action (Docket Entry No. 1) to recover damages for the destroyed cargo and trailer, alleging negligence, violations of the Carmack Amendment, and breach of bailment.5 Martinez and FEMA moved to transfer to the Laredo Division of the Southern District of Texas on August 6, 2010 (Docket Entry No. 5), and Dicex moved for the same transfer on August 25, 2010 (Docket Entry No. 8). TSI responded to both motions on August 26, 2010 (Docket Entry No. 10).

 

5. Id. ¶¶ 12-27.

 

II. Analysis

 

A. Applicable Law

 

District courts may transfer an action for the “convenience of parties and witnesses” and “in the interest of justice” to any other district “where it might have been brought.” 28 U.S.C. § 1404(a) (2006). When considering a motion to transfer the preliminary question is whether the action “might have been brought” in the proposed venue. In re Volkswagen of America, Inc ., 545 F.3d 304, 312 (5th Cir.2008) (en banc). Section 1391 controls venue when no special, restrictive venue statute applies. Id.

 

If the filing of the action would have been proper in the proposed venue, the court must then determine “whether a [Section] 1404(a) venue transfer is for the convenience of parties and witnesses and in the interest of justice.” Id. at 315. To justify a transfer of venue the movant must show “good cause.” Humble Oil & Ref. Co. v. Bell Marine Serv., Inc., 321 F.2d 53, 56 (5th Cir.1963). When the movant demonstrates that the transferee venue is “clearly more convenient,” it has shown good cause, and the district court should grant the transfer. In re Volkswagen, 545 F.3d at 315. When “the transferee venue is not clearly more convenient than the venue chosen by the plaintiffs, the plaintiff’s choice should be respected.” Id.

 

The Fifth Circuit has provided a non-exclusive list of private-and public-interest factors, none of which are given dispositive weight, for courts to use in determining whether a given venue is “clearly more convenient than another.” Id. The private-interest factors include (1) the relative ease of access to sources of proof, (2) the availability of compulsory process to secure the attendance of witnesses, (3) the cost of attendance for willing witnesses, and (4) all other practical problems that make trial of a case easy, expeditious, and inexpensive. Id. (citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 258 n .6 (1981)). The public-interest factors include (1) the administrative difficulties flowing from court congestion, (2) the local interest in having localized interests decided at home, (3) the familiarity of the forum with the law that will govern the case, and (4) the avoidance of unnecessary problems of conflict of laws or in the application of foreign law. Id.

 

B. Venue in the Laredo Division of the Southern District of Texas Would be Proper

 

The relevant venue statute provides that venue is proper in “a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated.” 28 U.S .C. § 1391(a) (2006). A substantial part of the events or omissions giving rise to this action occurred in the Laredo Division. Although the accident itself occurred in Mexico, the transfer of the cargo from TSI to Dicex, as well as Dicex’s allegedly negligent business practices, occurred in Laredo.6 TSI transferred the cargo to Dicex in Laredo pursuant to their agreement.7 TSI alleges that Dicex was negligent “by failing to procure a safe and reliable motor carrier to transport the Cargo and TSI’s trailer through to the consignee” 8 and in “selecting, instructing, training[,] and overseeing” FEMA in the transportation of the shipment.9 These allegations pertain to Dicex’s business decisions, and Dicex’s principal place of business is in Laredo. In addition, TSI’s alleged bailment of its trailer to Dicex occurred in Laredo.0

 

6. Affidavit of Michael Zavislak, Exhibit 1 to TSI’s Response, Docket Entry No. 10, pp. 1-2. See the Complaint, Docket Entry No. 1, ¶¶ 12-15.

 

7. Affidavit of Michael Zavislak, Exhibit 1 to TSI’s Response, Docket Entry No. 10, pp. 1-2.

 

8. The Complaint, Docket Entry No. 1, ¶ 14.

 

9. Id. ¶ 15.

 

0. The Complaint, Docket Entry No. 1, ¶ 26.

 

C. The Private-Interest Factors

 

The private-interest factors that courts must consider are: (1) the relative ease of access to sources of proof, (2) the availability of compulsory process to secure the attendance of witnesses, (3) the cost of attendance for willing witnesses, and (4) all other practical problems that make trial of a case easy, expeditious, and inexpensive. In re Volkswagen, 545 F.3d at 315.

 

The first factor, which concerns ease of access to proof, weighs in favor of transfer. TSI’s allegations target the business practices and decisions of both Dicex and FEMA, as well as Martinez, the President of FEMA.1 The Complaint states that both Dicex and FEMA do business in Laredo.2 The Complaint does not allege, nor is there anything in the record indicating, that any party to this action does business in Houston. Any business records, receipts, or contracts relating to Dicex’s arrangements with TSI or Dicex’s arrangements with FEMA would be in Laredo or across the border in Nuevo Laredo, but not in Houston. Evidence relating to the accident itself is located in Mexico, and even though the defendants’ proposed venue, Laredo, is not in Mexico, it is much closer to such evidence than Houston.

 

1. Id. ¶¶ 12-30.

 

2. Id. ¶¶ 2-3.

 

The second and third factors also weigh in favor of transfer. Securing the attendance of either willing or unwilling witnesses would be better facilitated from Laredo. Judging from the record before the court, no employee of any party to this action resides in Houston or works in Houston, no party to this action maintains an office in Houston, and no event relevant to this action took place in Houston. Apparently, the only Houstonians in this action are TSI’s lawyers. 3 TSI’s registered agent is in Laredo, not Houston.4 Its corporate office is in Michigan, and the costs of transporting TSI’s representatives to appear in court in Texas would be incurred whether the action was adjudicated in Houston or Laredo. Most of Dicex’s employees live and work in Laredo.5 Martinez lives and works in Laredo.6 Furthermore, most of FEMA’s employees as well as any witnesses who would testify about the accident reside in Nuevo Laredo, Mexico, across the border from Laredo.7 FEMA alleges, and TSI does not dispute, that most of these Mexican citizens are able to cross into Laredo using a border crossing card, but would not be able to travel to Houston with that card.8 Any potential testimony from these witnesses is more likely to be obtained if the action was in Laredo than if it was in Houston.

 

3. Martinez and FEMA’s Motion to Transfer, Docket Entry No. 5, ¶ 7.

 

4. Franchise Tax Certification of Account Status, Exhibit 2 to Martinez and FEMA’s Motion to Transfer, Docket Entry No. 5, p. 1.

 

5. Declaration of Alberto Aranda, Exhibit 1 to Dicex’s Motion to Transfer, Docket Entry No. 8, p. 1.

 

6. Declaration of Eliseo Hernandez, Exhibit 1 to Martinez and FEMA’s Motion to Transfer, Docket Entry No. 5, p. 1.

 

7. Martinez and FEMA’s Motion to Transfer, Docket Entry No. 5, ¶¶ 12-14.

 

8. Id. ¶ 14; Declaration of Eliseo Hernandez, Exhibit 1 to Martinez and FEMA’s Motion to Transfer, Docket Entry No. 5, p. 1.

 

The fourth factor, which addresses the parties’ interest in an easy, expeditious, and inexpensive trial, favors Laredo over Houston because of Laredo’s proximity to the events, records, and witnesses relevant to the action.

 

D. Public-Interest Factors

 

The public-interest factors that courts must consider are: (1) the administrative difficulties flowing from court congestion, (2) the local interest in having localized interests decided at home, (3) the familiarity of the forum with the law that will govern the action, and (4) the avoidance of unnecessary problems of conflict of laws and of the application of foreign law. In re Volkswagen, 545 F.3d at 315.

 

Although TSI argues that the Laredo Division is “swamped” and “understaffed,” it presents no evidence suggesting that the Laredo judges cannot move their civil docket expeditiously.9 Therefore, the court finds that the first factor does not favor either division.

 

9. TSI’s Response, Docket Entry No. 10, p. 6.

 

The second factor relating to Houston or Laredo’s interest in deciding localized interests at home does not bear significant weight in the court’s analysis, but does weigh slightly in favor of Laredo. Given their close proximity to the United States-Mexico border, both Houston and Laredo have an interest in deciding cases that involve border-crossing issues. In this action, however, Laredo’s interest outweighs Houston’s because Laredo is situated directly on the border, and the events giving rise to the action involve a Laredo company specializing in the transportation of cargo across the border. 0

 

0. Declaration of Alberto Aranda, Exhibit 1 to Dicex’s Motion to Transfer, Docket Entry No. 8, p. 1 (“Dicex’s business consists mainly of customs processing between the U.S.-Mexico border and Laredo, Texas, is its main business point.”).

 

Because the Houston and Laredo Divisions both sit in the Southern District of Texas, the court is not persuaded that the third or fourth factors, which concern the forum’s familiarity with the governing law and the avoidance of conflict-of-laws or foreign-law problems, respectively, favor one division over the other.

 

E. Conclusion

 

Multiple factors support, and no factors argue against, transferring this action to the Laredo Division of the Southern District of Texas. The court concludes, therefore, that the defendants have demonstrated that the Laredo Division is “clearly more convenient” than the Houston Division, and thus have shown good cause for granting a transfer.

 

III. Conclusion and Order

 

For the reasons stated above, the court concludes that transfer to the Laredo Division of the United States District Court for the Southern District of Texas is appropriate under 28 U.S.C. § 1404(a). Accordingly, Carlos Alberto Fernandez-Martinez and Transportes de Carga FEMA, S.A. de C.V.’s Motion to Transfer Venue Pursuant to 28 U .S.C. § 1404 (Docket Entry No. 5) and Dicex International Inc.’s Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404 (Docket Entry No. 8) are GRANTED. This action is TRANSFERRED to the Laredo Division of the Court.