United States District Court, D. Maryland
K. BREDAR CHIEF JUDGE
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.)
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). 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.
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).
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
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
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.
The Plaintiff's Choice of Venue
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).
Witness Convenience and Access
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.
Convenience of the Parties
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