United States District Court,

N.D. Texas,

Dallas Division.

PYRAMID TRANSPORTATION, INC., Plaintiff-counterdefendant,

v.

GREATWIDE DALLAS MAVIS, LLC d/b/a Greatwide Dallas Mavis, Defendant-counterplaintiff.

 

Civil Action No. 3:12–CV–0149–D.

July 25, 2013.

 

Henry Peyton Inge, IV, Chamblee Ryan Kershaw & Anderson, Dallas, TX, Ryan Wozny, Dallas, TX, for Plaintiff–counterdefendant.

 

John W. Greene, Scopelitis Garvin Light Hanson & Feary PC, Fort Worth, TX, Craig J. Helmreich, Scopelitis Gavin Light Hanson & Feary, Indianapolis, IN, for Defendant–counterplaintiff.

 

MEMORANDUM OPINION AND ORDER

SIDNEY A. FITZWATER, Chief Judge.

*1 In the court’s prior memorandum opinion and order in this case, it held that defendant Greatwide Dallas Mavis, L.L.C. d/b/a Greatwide Mavis (“Greatwide”) was entitled to summary judgment dismissing Pyramid Transportation, Inc.’s (“Pyramid’s”) Carmack Amendment claim because Pyramid lacked prudential standing. Pyramid Transp., Inc. v. Greatwide Dall. Mavis, LLC, 2013 WL 840664, at *6 (N.D.Tex. Mar.7, 2013) (Fitzwater, C.J.) (“Pyramid II” ). Because the court raised this ground for summary judgment sua sponte, it afforded Pyramid an opportunity to oppose dismissal of its Carmack Amendment claim on this basis. Id. Having considered Pyramid’s response, the court concludes that Pyramid’s claim under the Carmack Amendment claim must be dismissed. The court will, however, grant the real party in interest 30 days to ratify, join, or substitute into this action. The court also concludes that, if the real party in interest does not ratify, join, or substitute into this action and diversity jurisdiction is not established, the balance of the case will be remanded to state court.

 

I

The background facts of this case are set out in Pyramid II. Id . at *1–2. The court will therefore recount only the facts and procedural history necessary to address Pyramid’s opposition response.

 

This lawsuit arises from an accident in which a large articulated Caterpillar dump truck owned by Claudio Macias (“Macias”) FN1 was damaged while being shipped from Georgia to Texas. Macias is a customer of Pyramid, a transportation broker. Pyramid arranged for Greatwide, an interstate motor carrier, to transport the truck. Following the accident, Pyramid paid a third-party approximately $5,000 to transport the truck to Texas, and Pyramid is now incurring storage costs for the damaged truck. Until this case is resolved, Macias refuses to pay Pyramid for approximately $80,000 worth of services rendered. Pyramid has in turn refused to pay Greatwide for services rendered on other jobs.

 

FN1. Ownership of the truck is a contested issue. For purposes of this decision, the court will assume arguendo that Macias owns the truck, as Pyramid maintains.

 

Pyramid originally sued Greatwide in Texas state court on behalf of itself and Macias, alleging a right to recover under the Carmack Amendment. Greatwide removed the case to this court under 28 U.S.C. § 1441 based on this court’s jurisdiction over a Carmack Amendment claim exceeding $10,000. See 28 U.S.C. § 1337(a). Pyramid later sought leave to amend to drop Macias as a party, and it obtained a durable power of attorney to act on his behalf regarding litigation involving the truck. Pyramid’s present Carmack Amendment claim seeks to recover on behalf of Macias for damages to his truck and on Pyramid’s behalf for damages resulting from transporting the truck to Texas, loss of use, lost business opportunities, and the costs of storing the truck. On the parties’ cross-motions for summary judgment, the court raised sua sponte that Pyramid’s Carmack Amendment claim should be dismissed because Pyramid lacks prudential standing and permitted Pyramid to file an opposition response. Pyramid has responded.

 

II

A

*2 In its opposition response, Pyramid recognizes that it is not entitled to sue under the Carmack Amendment. See P. Opp. Br. 3 (“Pyramid acknowledges that, as a broker, it is not entitled to recover under a bill of lading, even if one existed, which it does not, and that its injuries necessarily sound in Texas contract law.”). Pyramid likewise does not take issue with the conclusion in Pyramid II that the Carmack Amendment does not allow Pyramid, a broker, to assert a shipper’s legal rights. See Pyramid II, 2013 WL 840664, at *4. Pyramid instead contends that it can maintain the Carmack Amendment claim in its own name on behalf of Macias because it has a durable power of attorney from Macias. Pyramid’s argument appears to be that, because it has constitutional standing, see id. at *3, it can bring suit in its own name, and because it has a power of attorney, it can assert Macias’ rights.

 

B

A party can bring suit on behalf of another party pursuant to a power of attorney, but the “action must be prosecuted in the name of the real party in interest.” Fed.R.Civ.P. 17(a). “The real party in interest is the person holding the substantive right sought to be enforced, and not necessarily the person who will ultimately benefit from the recovery.” Wieburg v. GTE Sw. Inc., 272 F.3d 302, 306 (5th Cir.2001); In re Signal Int’l, LLC, 579 F.3d 478, 487 (5th Cir.2009). This requirement is in essence a codification of the prudential standing requirement that a litigant cannot sue in federal court to enforce the rights of third parties. See Ensley v. Cody Res., Inc., 171 F.3d 315, 320, 320 n. 10 (5th Cir.1999) (stating that Rule 17(a) addresses prudential standing limitation); see also RMA Ventures Cal. v. SunAmerica Life Ins. Co., 576 F.3d 1070, 1073 (10th Cir.2009). “A plaintiff that does not possess a right under the substantive law is not the real party in interest with respect to that right and may not assert it.” In re Enron Corp. Secs., Derivative & ERISA Litig., 279 F.R.D. 395, 409 (S.D.Tex.2011) (citing United States v. 936.71 Acres of Land, 418 F.2d 551, 556 (5th Cir.1969)). Rule 17(a) lists persons who “may sue in their own names without joining the person for whose benefit the action is brought,” Rule 17(a), but the list “is not meant to be exhaustive and anyone possessing the right to enforce a particular claim is the real party in interest even if that party is not expressly identified in the rule.” Farrell Constr. Co. v. Jefferson Parish, La., 896 F.2d 136, 141 (5th Cir.1990) (quoting 6A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1543 (2d ed.1990)). As Pyramid acknowledges, the Carmack Amendment does not provide it a right to sue on its own behalf or on behalf of Macias. And the fact that Pyramid has constitutional standing has no bearing on this. But it is nonetheless possible for Pyramid to be the real party in interest. For example, it could become the real party in interest through an assignment. See 6A Charles Alan Wright, Arthur Miller, Mary Kay Kane, Federal Practice and Procedure § 1545, at 490–99 (3d ed.2010) (discussing real parties in interest via assignment); S. Cnty. Mut. Ins. Co. v. Ochoa, 19 S.W.3d 452, 465 (Tex.App.2000, no pet.) (holding that once “a cause of action is assigned or transferred, the assignee becomes the real party in interest with the authority to prosecute the suit to judgment”). The question, therefore, is whether the power of attorney, as construed under state law, provides Pyramid a right under the substantive law. FN2

 

FN2. Although the court’s subject matter jurisdiction is not premised on diversity, the court nonetheless looks to state substantive law to determine whether power of attorney, which is governed by Texas law, provides Pyramid a substantive right. See BAC Home Loans Servs., LP v. Tex. Realty Holdings, LLC, 901 F.Supp .2d 884, 907 (S.D.Tex.2012) (“[W]hile the question of whether a claimant is the real party in interest is a procedural one, ‘that question must be answered with reference to substantive state law.’ ” (quoting Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt Int’l B.V. v. Schreiber, 407 F.3d 34, 48 (2d Cir.2005) (emphasis in original)).

 

*3 The court concludes that it does not. “A power of attorney is a written instrument by which one person, the principal, appoints another as agent and authorizes the agent to perform certain specified acts on behalf of the principal.” 3 Tex. Jur.3d § 26 (citing Eastham v. Hunter, 102 Tex. 145, 114 S.W. 97 (1908); Comerica Bank–Texas v. Tex. Commerce Bank Nat’l Ass’n, 2 S.W.3d 723 (Tex.App.1999, pet.denied)). That is, it does not itself provide the agent with a substantive right as an assignment does. For this reason, it is generally acknowledged that a party with only a power of attorney is not a real party in interest. See, e.g., Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 17–18 (2d Cir.1997) (“The grant of a power of attorney … is not the equivalent of an assignment of ownership; and, standing alone, a power of attorney does not enable the grantee to bring suit in his own name.”) (applying New York law); 4 Moore’s Federal Practice § 17.10[4] (3d ed. 2012) (“An attorney-in-fact is not a real party in interest. The attorney is merely an agent of the real party in interest and does not possess interests sufficient to qualify for real party in interest status. Thus, the attorney-in-fact cannot bring suit in its own name.”).

 

Nevertheless, some Texas courts have allowed an agent with power of attorney to sue in his own name.FN3 Although the general rule in Texas law is that an agent lacks standing to bring suit in his own name for an injury to the principal, see Tinsley v. Dowell, 87 Tex. 23, 26 S.W. 946, 948 (Tex.1894), this line of Texas cases holds that an agent has standing to bring a suit in his own name on behalf of the principal if he pleads that he is suing on behalf of a principal with a justiciable interest in the case. See Rodarte v. Investeco Grp., L.L. C., 299 S.W.3d 400, 406 (Tex.App.2009, no pet.); AVCO Corp. v. Interstate Sw., Ltd., 251 S.W.3d 632, 652–53 (Tex.App.2007, pet.denied). The relevant distinction, according to these cases, is that the agent in Tinsley sued in his own name and on his own behalf and therefore lacked standing because he did not have an enforceable right, whereas the plaintiffs in Rodarte and AVCO alleged in their pleadings that they were suing on behalf of their respective principals. See Rodarte, 299 S.W.3d at 406–07. These cases make clear that, although an agent may sue in his own name pursuant to power of attorney in Texas courts, he is able to do so because these courts adopted a procedural rule allowing an agent to maintain a suit in his own name when he pleaded that he was acting on behalf of the principal, and not because the agent possessed the substantive right sought to be enforced. That is, in these cases the power of attorney allowed the agent to assert the substantive right only when he was acting on the principal’s behalf. If the agent possessed the substantive right via power of attorney, he would be able to sue in his own name without stating that the suit was on behalf of another entity or person. See BAC Home Loans Servs., LP v. Tex. Realty Holdings, LLC, 901 F.Supp.2d 884, 907 (S.D.Tex.2012) (“[W]hile the question of whether a claimant is the real party in interest is a procedural one, ‘that question must be answered with reference to substantive state law.’ ” (quoting Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders In Het Kapitaal Van Saybolt Int’l B.V. v. Schreiber, 407 F.3d 34, 48 (2d Cir.2005) (emphasis in original)). Therefore, because Pyramid is the agent and does not possess a substantive right under the Carmack Amendment—even with the power of attorney—it is not a real party in interest under Rule 17(a).FN4

 

FN3. At least one case has held otherwise. See Elizondo v. Tex. Nat’l Res. Conservation Comm’n, 974 S.W.2d 928, 931 (Tex.App.1998, no pet.) (holding that plaintiff’s appointment as attorney-in-fact did not authorize her to bring suit on behalf of principals in a representative capacity).

 

FN4. Furthermore, “ ‘the modern function of [Rule 17] in its negative aspect is simply to protect the defendant against a subsequent action by the party actually entitled to recover, and to ensure generally that the judgment will have its proper effect as res judicata.’ ” 6A Wright & Miller (3d ed.), supra, § 1543, at 480 (quoting Rule 17 advisory committee’s notes (1966 Amendments)). See also In re Signal Int’l, 579 F.3d at 487 (“The purpose of this requirement ‘is to assure a defendant that a judgment will be final and that res judicata will protect it from having to twice defend an action, once against an ultimate beneficiary of a right and then against the actual holder of the substantive right.’ ” (quoting Farrell, 896 F.2d at 142)). This concern appears to be present here because Macias has filed a separate Carmack Amendment claim against Greatwide that is now pending in the Southern District of Texas.

 

*4 The fact that Pyramid is not a real party in interest does not end the matter. Rule 17(a)(3) states:

 

The court may not dismiss an action for failure to prosecute in the name of the real party in interest until, after an objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally commenced by the real party in interest.

 

“This provision requires the defendant to object in time to allow the opportunity for joinder of the ostensible real party in interest, and the defense may be waived if the defendant does not timely object.” In re Signal Int’l, 579 F.3d at 487–88 (citing Gogolin & Stelter v. Karn’s Auto Imps., Inc., 886 F.2d 100, 102 (5th Cir.1989)). “The defendant timely objects so long as joinder of the real party in interest remains ‘practical and convenient.’ ”   Id. at 488 (quoting Rogers v. Samedan Oil Corp., 308 F.3d 477, 484 (5th Cir.2002)). “There is no magic formula for determining practicality and convenience,” id. (citing 6A Wright & Miller (2d ed.), supra, § 1554), and the court must instead look to the facts of each case.

The relevant factors for making this determination are when the defendant knew or should have known about the facts giving rise to the plaintiff’s disputed status as a real party in interest; whether the objection was raised in time to allow the plaintiff a meaningful opportunity to prove its status; whether it was raised in time to allow the real party in interest a reasonable opportunity to join the action if the objection proved successful; and other case-specific considerations of judicial efficiency or fairness to the parties.

 

Id.

 

The court in its discretion concludes that Greatwide’s motion was not tardy, but it also holds that Macias has not yet been afforded a reasonable time to ratify, join, or be substituted into this action. Greatwide did not argue that Pyramid is not the real party in interest until its reply to Pyramid’s response in Pyramid II, but it did argue in its motion for summary judgment that Pyramid cannot recover under the Carmack Amendment. And although a Rule 17 motion can be deemed tardy when not raised early in litigation, see 6A Wright & Miller (3d ed.), supra, § 1554, at 556–64, Greatwide did not discover until Pyramid moved for summary judgment that Pyramid might not be the proper plaintiff because it has a power of attorney rather than an assignment. Because there does not appear to be any reason why Macias cannot, if he so desires, ratify, join, or be substituted into this action, and because, soon after learning that Pyramid did not have an assignment, Greatwide contested whether Pyramid could recover under the Carmack Amendment claim, the court finds that joinder of the real party in interest remains practical and convenient. The court therefore declines to dismiss the case without allowing the real party in interest 30 days to ratify, join, or be substituted into the action.FN5

 

FN5. The court grants Greatwide’s April 17, 2013 motion for leave to file appendix in support of reply. The appendix includes correspondence between the attorneys for Pyramid and Greatwide in which Pyramid’s attorney states that Pyramid plans to proceed on its claim in Dallas and Macias plans to proceed on its Carmack Amendment claim in Hidalgo County. D.App. 9. Despite this evidence that Macias will not ratify, join, or be substituted into this case, the court concludes that Macias should be afforded this opportunity, even if he opts not to do so.

 

III

*5 Following the dismissal of Pyramid’s Carmack Amendment claim, unless the real party in interest ratifies, joins, or substitutes into this case, only Pyramid’s state-law breach of contract claim FN6 and Greatwide’s state-law counterclaim will remain. Absent a showing of diversity jurisdiction, the court will remand the case to state court. See, e.g., Burnett v. Petroleum Geo–Servs., Inc., 2013 WL 1723011, at *5 (N.D.Tex. Apr.22, 2013) (Fitzwater, C.J.) (holding that court has discretion to remand case removed based on federal question where federal question claim has dropped out of case and parties are not diverse citizens) (citing Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 357, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988)); see also Giles v. NYLCare Health Plans, Inc., 172 F.3d 332, 338–39 (5th Cir.1999) (affirming remand of state claims after plaintiff’s amended complaint dropped claim supporting federal question jurisdiction). As of now, diversity jurisdiction has not been properly alleged or established. Pyramid’s proposed second amended complaint does not properly plead diversity jurisdiction.FN7 First, the proposed pleading relies on federal question jurisdiction based on the Carmack Amendment. See Prop.2d Am. Compl. ¶ 5 (“The Court has jurisdiction over this matter because the amount in controversy exceeds the minimum jurisdictional limits of the Court and pursuant to 49 U.S.C.A. § 14706(d).”). Second, in pleading the parties’ citizenship, Pyramid alleges that Greatwide “is a Delaware limited liability company registered to conduct business in the State of Texas with its principal place of business [in Texas].” Id. at ¶ 2. The citizenship of a limited liability company, however, is determined by the citizenship of all of its members. “All federal appellate courts that have addressed the issue have reached the same conclusion: like limited partnerships and other unincorporated associations or entities, the citizenship of a LLC is determined by the citizenship of all of its members.” Harvey v. Grey Wolf Drilling Co., 542 F.3d 1077, 1080 (5th Cir.2008) (collecting cases). “To sufficiently allege the citizenships of these unincorporated business entities, a party must list the citizenships of all the members of the limited liability company[.]” Rolling Greens MHP, L.P. v. Comcast SCH Holdings L.L.C., 374 F.3d 1020, 1022 (11th Cir.2004) (per curiam).FN8 And diversity jurisdiction has not otherwise been established.

 

FN6. Pyramid has not yet pleaded a breach of contract claim. Although the court previously granted Pyramid leave to file a second amended complaint that included a breach of contract claim, see Pyramid Transportation, Inc. v. Greatwide Dallas Mavis, LLC, 2012 WL 5875603, at *3 (N.D.Tex. Nov.21, 2012) (Fitzwater, C.J.), Pyramid never filed the second amended complaint, as N.D. Tex. Civ. R. 15.1(b) requires. In Pyramid II the court noted this procedural defect and relied on Pyramid’s proposed second amended complaint when addressing several motions. The court explicitly stated, however, that “Pyramid must … separately file the second amended complaint, as Rule 15.1(b) requires, within 14 days of the date this memorandum opinion and order is filed.” Pyramid II, 2013 WL 840664, at * 1 n. 3. Pyramid has still failed to file an amended complaint, although it has separately moved for leave to file a second amended complaint. See infra note 7. Nevertheless, for purposes of this analysis, the court will assume that Pyramid has alleged a breach of contract claim.

 

FN7. Pyramid has filed a June 28, 2013 motion for leave to amend and a July 1, 2013 amended motion for leave to amend in which it seeks leave to file a second amended complaint (which it refers to by the state term, “petition”).

 

FN8. There are other motions pending in this case that the court is not reaching in view of the present posture of the case.

 

* * *

 

For the reasons explained, Pyramid’s Carmack Amendment claim is dismissed, and the court grants the real party in interest 30 days to ratify, join, or be substituted into this action. If the real party in interest does not ratify, join, or substitute into this action and diversity jurisdiction is not established, the balance of this case will be remanded to state court.

 

SO ORDERED.

United States District Court,

M.D. Tennessee,

Nashville Division.

AMERICAN GUARANTY AND LIABILITY INSURANCE COMPANY, Plaintiff/Counter–Defendant,

v.

CROSBY TRUCKING SERVICE, INC., Defendant/Counter–Plaintiff,

Crosby Trucking Service, Inc., Third–Party Plaintiff,

v.

Echo Global Logistics, Inc., Benteler Automotive Corporation, and Benteler Goshen, Inc., Third–Party Defendants.

 

No. 3:13–CV–00147.

July 26, 2013.

 

Chris J. Webb, Michael G. McLaren, Black, McLaren, Jones, Ryland & Griffee, Memphis, TN, for Plaintiff/Counter–Defendant.

 

Lauren C. Barron, Tara L. Swafford, The Swafford Law Firm, PLLC, Franklin, TN, for Defendant/Counter–Plaintiff.

 

Andrew B. Campbell, Wyatt, Tarrant & Combs, Nashville, TN, Kevin K. Ross, K&L Gates LLP, Miami, FL, for Third–Party Defendants.

 

MEMORANDUM

ALETA A. TRAUGER, District Judge.

*1 Defendant and counter-plaintiff Crosby Trucking Service, Inc. (“Crosby Trucking”), has filed a Motion to Transfer for Forum Non–Conveniens (Docket No. 29), to which the plaintiff and counter-defendant, American Guaranty and Liability Insurance Company (“American”), has filed a Response in opposition (Docket No. 35), and Crosby Trucking filed a Reply (Docket No. 40). Crosby Trucking has also filed a Motion for Leave to File a Third Party Claim Against Martinrea Industries, Inc. (“Martinrea”), to which American filed a Response in opposition (Docket No. 53) and a Motion for Oral Argument (Docket No. 62), to which Crosby Trucking filed a Response in opposition (Docket No. 66). For the reasons stated herein, the court will deny Crosby Trucking’s Motion to File a Third–Party Complaint Against Martinrea, the court grant Crosby Trucking’s Motion to Transfer Venue, the court will deny American’s Motion for Oral Argument, and the court will transfer the case to the United States District Court for the Northern District of Indiana.

 

BACKGROUND

The basic facts of this case are relatively simple. Martinrea, a Michigan corporation with a principal place of business in Springfield, Tennessee, is in the business of developing and producing metal parts for use in various industries. Martinrea operates a facility in Springfield, Tennessee. In 2011, Martinrea contacted Echo Global Logistics, Inc. (“Echo”), a Delaware corporation with a principal place of business in Illinois, to arrange for transportation of an A–Pillar Die Machine (the “Die”) from a facility in Goshen, Indiana, to a facility in Lenoir City, Tennessee, operated by Dienamic Tooling Systems (“DTS”). Apparently, the original plan was for DTS to perform some type of modification to the Die, after which the Die would be transported to Martinrea’s facility in Springfield, Tennessee.

 

Echo, acting as a broker, contracted with Crosby Trucking to transport the Die from Indiana to Tennessee. On or about September 20, 2011, Benteler Automotive, acting as the consignor, loaded the Die, which was then in good condition, onto a Crosby Trucking truck at the Goshen, Indiana facility. On or about September 21, 2011, while transporting the die, the Crosby Trucking vehicle had a traffic accident in or near Marion, Indiana. The Die fell off of the truck and sustained substantial damage. At an unspecified point after the accident, the Die was transported to the DTS facility in Lenoir City, where it underwent significant repairs. After the repairs, the Die was transported to Martinrea’s facility in Springfield, Tennessee, where, according to American, the Die remains. American had insured Martinrea against damage to the Die during its transport from Indiana to Tennessee. American accordingly paid Martinrea for the repairs, which, according to American’s Complaint, cost over $1 million.

 

American, acting as Martinrea’s subrogee, filed a single-count Complaint against Crosby Trucking, demanding, inter alia, recovery of the value of the repairs under 49 U.S.C. § 14706.FN1 In response to the Complaint, Crosby filed (1) an Answer; (2) a Counterclaim against American; and (3) a Third–Party Complaint agains Benteler Automotive Corporation and Benteler Goshen, Inc. (collectively, “Benteler”), which are both Michigan corporations with principal places of business in Michigan, and Echo. (See Docket No. 31.) Crosby Trucking alleges that it insured the Die for only $250,000—rather than $1,000,000—because Martinrea and/or Echo breached a duty to inform Crosby Trucking of the value of the Die. Essentially, Crosby Trucking contends that, if Martinrea and/or Echo had informed Crosby Trucking that the Die was worth approximately $1 million, Crosby Trucking would have retained sufficient insurance to cover the damages now claimed by American. Crosby Trucking also alleges that Benteler improperly loaded and secured the Die at the point of shipment in Goshen, Indiana, and that Benteler’s negligence caused the Die to fall and sustain damages when the accident occurred. Accordingly, Crosby Trucking asserts counterclaims against American (standing in the shoes of Martinrea) for negligence and equitable estoppel, third-party claims against Echo for negligence, negligent misrepresentation, and breach of fiduciary duty, and a third-party claim against Benteler for negligence. American and Crosby Trucking appear to agree, at least for purposes of the pending motions, that Indiana law will govern Crosby Trucking’s third-party claims.

 

FN1. American also named Echo as a defendant in the Complaint. Before the responsive pleading deadline, American voluntarily dismissed its claims against Echo.

 

*2 Crosby Trucking has filed two motions that are pending before the court. Based on a representation in American’s Answer to Crosby Trucking’s Counterclaims, Crosby Trucking seeks leave to file a Third–Party Complaint against Martinrea. Crosby Trucking has also moved to transfer this case to a federal district court in Indiana—either the Northern District of Indiana or the Southern District of Indiana—under the federal change of venue statute, 28 U .S.C. § 1404(a) (“Motion to Transfer Venue”).FN2 In support of its position, Crosby Trucking has filed the First and Second Affidavits of Butch Munson (Docket No. 30, Ex. 1, and Docket No. 40, Ex. A, respectively).FN3 American has not introduced any testimony in support of its opposition to the Motion to Change Venue. However, in its brief, American has made several factual representations that Crosby Trucking did not dispute in its Reply. Crosby Trucking seeks to transfer the case either to (1) the Northern District of Indiana, which has jurisdiction over the geographic area within which the Die was loaded and the accident occurred; or (2) the Southern District of Indiana, where Crosby Trucking maintains a terminal facility. FN4

 

FN2. Although Crosby Trucking’s motion is styled as a motion to transfer based on the doctrine of “forum non conveniens,” that characterization is a bit of a misnomer because the transfer decision here is governed by § 1404(a), not federal common law. With certain exceptions not relevant here, § 1404(a) largely superseded the federal common law doctrine of forum non conveniens. See Moore, James Wm., Moore’s Fed. Prac., § 111.04[11] [3d ed.2013]. Therefore, the court will refer to the motion as a “Motion to Transfer Venue” under § 1404(a).

 

FN3. Although American argues that the court should ignore the Second Munson Affidavit because it is not notarized, the court exercises its discretion to consider that affidavit, which Munson signed under penalties of perjury. See Peters v. Lincoln, 285 F.3d 456, 475 (6th Cir.2002) (citing 28 U.S.C. § 1746, and observing that “[c]ourts are generally consistent in validating documents that were sworn under penalty of perjury, notwithstanding the fact that they were not notarized.”)

 

FN4. In its Answer to Crosby Trucking’s Third–Party Complaint, Benteler has conceded that this court has personal jurisdiction over both Benteler entities and that venue is proper. Echo, on the other hand, has represented that it will (a) challenge venue on the grounds that Crosby Trucking is contractually obligated to bring any disputes with Echo in Illinois under a forum selection clause, and (b) assert that the court does not have personal jurisdiction based on a lack of minimum contacts. Echo has not yet filed a challenge on either basis. Although Benteler and Echo have had nearly two months to address Crosby Trucking’s motion (either in support of the motion or in opposition to it), they have not sought leave of court to do so. Crosby Trucking has not explained how Benteler’s and/or Echo’s stated positions with respect to jurisdiction and venue would impact the court’s analysis, nor have Benteler or Echo sought to address the issue. Under the circumstances, the court finds no need to order briefing from Benteler and/or Echo regarding the Motion to Transfer Venue.

 

ANALYSIS

I. Motion to File Third–Party Complaint Against Martinrea

Crosby Trucking seeks to join Martinrea as a party, based on its interpretation of a single sentence in American’s Answer. (See Docket No. 38 ¶ 2 (“Plaintiff denies that American [ ] is subject to or liable for claims against Martinrea.”).) In light of this representation, Crosby Trucking has sought leave to add Martinrea as a party only in an “abundance of caution.”

 

American argues that adding Martinrea would be unnecessary and duplicative, because, as a subrogee, American is subject to the same defenses that Crosby Trucking could have asserted against Martinrea, if Martinrea had filed an essentially identical claim against Crosby Trucking. See Nipponkoa Ins. Co., Ltd. v. Ozark Motor Lines, Inc., No. 3:06CV0447, 2006 WL 2947467, at * 4 (M.D.Tenn. Oct.12, 2006) (citing United States v. Aetna Cas. & Sur. Co., 338 U.S. 366, 380–81, 70 S.Ct. 207, 94 L.Ed. 171 (1949)). Accordingly, American has represented that, if Crosby Trucking’s allegations are proven true, it (American) would be liable for Martinrea’s actions in the form of a setoff against its (American’s) claim against Crosby Trucking, to the extent permitted by applicable law and the Carmack Amendment. (See Docket No. 53 at pp. 1–2.)

 

Based on American’s representations to the court, which permit Crosby Trucking to pursue a setoff against American’s claim premised on Martinrea’s allegedly negligent conduct, the court finds that adding Martinrea as a party is unnecessary at this stage. Therefore, Crosby Trucking’s Motion for Leave to File a Third–Party Complaint Martinrea will be denied.

 

II. Motion to Change Venue

Under 28 U.S.C. § 1404(a), “[f]or the convenience of the parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it may have been brought.” District courts have wide discretion in deciding motions to transfer.   Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 104 L.Ed.2d 22 (1988) (“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.’ ”) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964)). In deciding whether to grant transfer under § 1404(a), the Sixth Circuit has suggested that the court may consider: (1) the convenience of the parties and witnesses; (2) the accessibility of evidence; (3) the availability of process to make reluctant witnesses testify; (4) the costs of obtaining willing witnesses; (5) the practical problems of trying the case most expeditiously and inexpensively; and (6) the interests of justice. Reese v. CNH Am. LLC, 574 F.3d 315, 320 (6th Cir.2009). The burden is on the defendant to establish that a transfer is warranted. Blane v. Am. Investors Corp., 934 F.Supp. 903, 907 (M.D.Tenn.1996) (citing Factors, Etc. v. Pro Acts, Inc., 579 F.2d 215 (2d Cir.1978)); Smith v. Kyphon, Inc., 578 F.Supp.2d 954, 958 (M.D.Tenn.2008) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 91 L.Ed. 1055 (1947)).

 

*3 Convenience of non-party witnesses, as opposed to parties or employee witnesses, is one of the most important factors in the transfer analysis.   Smith, 578 F.Supp.2d at 963. Transfer of venue is inappropriate where it would serve only to transfer the inconvenience from one party to the other.   Diebold, Inc. v. Firstcard Fin. Servs., Inc., 104 F. Sup.2d 758, 764 (N.D.Ohio 2000). Although a plaintiff’s choice of forum is generally entitled to substantial weight, when a given action has a limited connection with the forum and is not the plaintiff’s residence, the plaintiff’s choice is to be afforded less weight than would otherwise be the case. Lisenbee v. FedEx Corp., 579 F.Supp.2d 993, 1007 (M.D.Tenn.2008). The plaintiff’s interest decreases even further where the central facts of the lawsuit occurred outside the chosen forum. Id.

 

As American points out, this case does have some connection to Tennessee. Martinrea operates in Tennessee, Martinrea contacted Echo from Tennessee, the Die was repaired in Lenoir City, Tennessee (which is in the Eastern District), and (after its repairs) the Die was transported to and remains in Springfield, Tennessee (within this district). The court presumes that Martinrea (now a party) will likely present at least one witness on its behalf voluntarily and that DTS may be called to present a witness as well. However, even assuming that these witnesses are based in Tennessee, there are a host of factors suggesting that litigating this case in Indiana is warranted.FN5

 

FN5. American’s brief did not indicate whether a Martinrea or DTS witness would be located in Tennessee. In a footnote, American asked that, if the court believed that the location of those witnesses is relevant to the Motion to Transfer Venue, then the court should permit American to conduct discovery. Because the court would exercise its discretion to transfer the case regardless of whether a Martinrea and/or DTS witness will be located in Tennessee, discovery regarding the transfer issue is unnecessary.

 

Crosby Trucking has essentially two theories under which it believes other parties are responsible for the damages to the Die. First, as against American and Echo, Crosby Trucking alleges that Martinrea and Echo breached a duty to inform Crosby Trucking of the value of the Die, causing Crosby Trucking to retain insufficient insurance. Second, as against Benteler, Crosby Trucking argues that the damage to the Die was caused by Benteler’s negligence in loading the Die at the Goshen, Indiana point of origin. With respect to American’s Carmack Amendment claim, Crosby Trucking’s defense presumably will require Crosby Trucking to show, inter alia, that it was not negligent and that some factor beyond its control caused the Die to fall and sustain damage. See Custom Rubber Corp. v. ATS Specialized, Inc., 633 F.Supp.2d 495, 509–510 (N.D.Ohio 2009) (defendant carrier disclaimed liability on grounds that cargo was improperly loaded by shipper, i.e., that “the shipper himself” solely caused the damage for purposes of defense under Carmack Amendment) (citing Plough, Inc. v. Mason & Dixon Lines, 630 F.2d 468, 470 (6th Cir.1980)). That defense presumably will implicate (a) facts related to the loading of the Die and (b) the circumstances of the accident itself—i.e., whether some party other than Crosby Trucking caused the accident and/or is responsible for the resulting damages, through no fault of Crosby Trucking. Live testimony from witnesses to the loading of the Die and to the accident, both of which occurred in Indiana, will likely be crucial to resolving the apportionment of liability and damages as among the multiple parties to this case.

 

*4 Thus, although some potential witnesses in this case are located in this district and/or in other states—such as the former Crosby Trucking driver of the truck that overturned, who is believed to reside in Ohio—the locus of events most likely to involve disputed facts, and, therefore, disputed testimony, is in Indiana. The court is not persuaded that the physical location of the Die strongly favors remaining in this district. By American’s own admission, the Die is not going anywhere and, as a consequence, should be available for inspection by the parties at an appropriate time. Thus, with respect to the Die, American has not shown that a transfer would be unduly prejudicial, insofar as inspecting the Die will be relevant. On the other hand, if Crosby Trucking cannot compel witnesses to testify regarding the loading and/or the accident, it would be highly prejudicial to Crosby Trucking’s attempts to apportion responsibility among other allegedly responsible parties.

 

Furthermore, Crosby Trucking’s third-party claims (and some of the associated defenses) will involve the application of Indiana law, with which the transferor court in Indiana will be familiar. As to American’s underlying Carmack Amendment claim, both this court and a federal court in Indiana are equally able to apply federal law.

 

Finally, in point of fact, the plaintiff in this case, American, is not a Tennessee resident. Therefore, American’s choice of forum is entitled to less weight.FN6

 

FN6. Although it would not affect the court’s disposition of the motion, the court notes that American has not provided any authority establishing that, for purposes of § 1404(a) deference to a plaintiff’s choice of forum, the court should graft the non-party subrogor’s residence onto the subrogee.

 

The other factors are essentially neutral as between this court and a federal district court in Indiana. The parties and several non-party witnesses are located in states other than Tennessee and Indiana. Relevant documents are likely located in multiple states, at least including Indiana, Tennessee, and Virginia.

 

Taking the relevant factors into consideration, the court finds that the balance of factors weighs in favor of transfer and that, in the interests of justice, transfer to a federal district court in Indiana is warranted. Therefore, the court will exercise its discretion to transfer this case to a federal district court in Indiana. Because the loading of the Die and the accident both took place within the Northern District of Indiana, the court will transfer the case to that district.

 

CONCLUSIONS

For the reasons stated herein, Crosby Trucking’s Motion to File a Third–Party Complaint Against Martinrea will be denied, Crosby Trucking’s Motion to Transfer Venue will be granted, and American’s Motion for Oral Argument will be denied. In the exercise of its discretion, the court will transfer the case to the United States District Court for the Northern District of Indiana pursuant to 28 U .S.C. § 1404(a).

 

An appropriate order will enter.

 

ORDER

For the reasons set forth in the accompanying Memorandum, the court hereby finds as follows:

 

• Defendant/Counter–Plaintiff Crosby Trucking Service, Inc.’s (“Crosby Trucking”) Motion for Leave to File a Third–Party Complaint Against Martinrea Industries, Inc. (Docket No. 44) is DENIED.

 

*5 • Plaintiff American Guaranty and Liability Insurance Company’s Motion for Oral Argument (Docket No. 62) is DENIED.

 

• Crosby Trucking’s Motion to Transfer Venue (Docket No. 29) is GRANTED.

 

• This case is hereby TRANSFERRED to the United States District Court for the Northern District of Indiana.

 

It is so ORDERED.