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The Berg Corp. v. C. Norris Manufacturing, LLC

United States District Court, D. Maryland

January 15, 2020

BERG CORPORATION, Plaintiff,
v.
C. NORRIS MANUFACTURING, LLC, Defendant. C. NORRIS MANUFACTURING, LLC, Third-Party Plaintiff,
v.
POWERPURE, LLC, et al., Third-Party Defendants.

          MEMORANDUM

          JAMES K. BREDAR CHIEF JUDGE

         This case arises out of a business transaction between the Berg Corporation ("Berg") and C. Norris Manufacturing, LLC ("C. Norris"). Berg, a Maryland demolition contractor, hired C. Norris, an Ohio manufacturer, to substantially modify a piece of heavy equipment called the Komatsu. Berg alleges that C. Norris committed negligence in modifying the Komatsu. (Compl., ECF No. 1-2.) C. Norris filed a counterclaim against Berg as well as a third-party complaint against several parties that assisted C. Norris in modifying the equipment: PowerPure, LLC ("PowerPure"), P.E. Alliance, LLC ("P.E. Alliance"), and Holmbury, Inc. and Holmbury Group (collectively, "Holmbury"). (Counterclaim, ECF No. 12; Third-Party Compl., ECF No. 15.) Each of the third-party defendants performed all work relevant to the Komatsu project in Ohio. (Klusch Decl. ¶¶ 8-12, ECF No. 53-1; Mulder Decl. ¶ 10, ECF No. 63-1; Eppler.Decl. ¶¶ 5-6, ECF No. 90-4.)

         On November 12, 2019, the Court concluded that it lacked personal jurisdiction over the third-party defendants (Mem. Op., ECF No. 94), and C. Norris subsequently moved to transfer this entire action to the Northern District of Ohio (Mot. Transfer, ECF No, 98).[1] Berg opposes the motion. The matter is fully briefed, and no hearing is required. See Local Rule 105.6 (D. Md, 2018). The Court will grant C. Norris's motion to transfer.

         I. Legal Standard

         Section 1404(a) provides that "[f]or the convenience of parties and witnesses/in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404. In deciding whether to grant a motion to transfer, courts should consider the following: "(1) the weight accorded the plaintiffs choice of venue, (2) witness convenience and access, (3) convenience of the parties, and (4) the interest of justice." Lynch v. Vanderhoef Builders, 237 F.Supp.2d 615, 617 (D. Md. 2002).

         The burden is on the moving party to show that transfer to another forum is proper. Id. The question of transfer is "a matter resting in the sound discretion of the District Judge." S, Ry. Co. v. Madden, 235 F.2d 198, 201 (4th Cir. 1956). Analysis As. an initial matter, Berg contends that C. Norris's motion to transfer must be denied because it is untimely. (Second Opp'n Mot. Transfer at 7-8, ECF No. 100.) This case has been pending in the District of Maryland for one year, Berg argues, and transferring it at this late stage would "considerabl[y] prejudice" Berg. (Id. at 8.)

         Section 1404(a) does not provide a time limit within which to bring a motion to transfer, but courts agree that the motion should be brought with "reasonable promptness." 15 C. Wright & A. Miller, Federal Practice and Procedure § 3844 (4th ed, ). C. Norris first raised the issue of transfer in the briefing on the third-party defendants' motions to dismiss; it officially filed its motion ten days after the Court ruled that it lacked personal jurisdiction over the third-party defendants. Although changing venue after one year is not ideal, the timing of C. Norris's motion was reasonable, as transfer only became relevant once the Court's ruling made real the possibility that C. Norris would have to resolve this dispute in two separate litigations. Therefore, the motion will not be denied as untimely.

         Because the parties do not dispute that this case could have been brought in the Northern District of Ohio, the issue is whether convenience and the interests of justice warrant transfer there. See 28 U.S.C. § 1404. The Court evaluates the relevant factors in turn.

         A. The Plaintiff's Choice of Venue

         Berg chose to file this suit in Maryland, so this factor weighs against transfer. This factor should be given "substantial weight," Stronghold Sec. LLC v. Sectek, Inc., 582 F.Supp.2d 726, 729 (D. Md. 2008), however, "it is not controlling," Convergence Techs. (USA), LLC v. Microloops Corp., 711 F.Supp.2d 626, 641 (E.D. Va. 2010).

         B. Witness Convenience and Access

         Some witnesses will be inconvenienced no matter where this case is adjudicated. As Berg points outfits Maryland-based witnesses will be relevant to a number of questions, including the manner in which the Komatsu failed and the scope of the resulting damages. (First Opp'n Mot. Transfer at 4, ECF No. 96.) But Berg's negligence claim ultimately centers on the alleged 98, 000 pounds of additional counterweight and the defective couplings. (Compl. ¶ 7.) The work related to the counterweight and couplings was all performed in Ohio by Ohio-based employees. (Mot. Transfer at 1 ¶ 2.) Therefore, more Ohio-based witnesses are likely to be relevant to resolving this dispute than Maryland-based witnesses, and this factor weighs in favor of transfer.

         C. Convenience of the Parties

         In considering convenience of the parties, "the district judge is not limited to considering the convenience of the original parties, but should consider the convenience of those later joined as well." 15 C. Wright & A. Miller, Federal Practice and Procedure § 3849 (4th ed.); see also In re Volkswagen AG,371 F.3d 201, 205 (5th Cir. 2004) (concluding it was error for the district court not to consider the convenience of the third-party defendants in denying a motion to transfer). Here, C. Norris and the ...


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