# Brigade Holdings, Inc. v. Aegis Business Credit, LLC

> District Court, M.D. Florida · August 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10108277

## Case

- **Court:** District Court, M.D. Florida
- **Decided:** August 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

BRIGADE HOLDINGS, INC.,

Plaintiff,

v. Case No. 8:21-cv-609-TPB-SPF

AEGIS BUSINESS CREDIT, LLC,

Defendant.
______________________________________/

ORDER GRANTING DEFENDANT’S MOTION TO TRANSFER
This matter is before the Court on “Defendant Aegis Business Credit, LLC’s Motion
to Transfer or, Alternatively, Dismiss and Supporting Memorandum of Law,” filed on
April 30, 2021. (Doc. 21). Plaintiff Brigade Holdings, Inc. filed a response in opposition on
May 20, 2021. (Doc. 28). Upon review of the motion, response, court file, and record, the
Court finds as follows:
Background
Plaintiff Brigade Holdings, Inc., though now defunct, is a Delaware corporation
which designed, manufactured, and installed LED lighting for customers mostly in
Maryland and New York. Defendant Aegis Business Credit, Inc. is a corporate lender,
incorporated in Florida with its principal place of business in Tampa. On November 20,
2018, the parties entered into a contract whereby Aegis loaned funds to Brigade. The loan
was secured by an interest in Brigade’s customer accounts and a lien on Brigade’s
inventory, which consisted of lighting fixtures and other items located in a warehouse in
Maryland. After entering the contract, Brigade went out of business. Aegis contends that
Brigade was in default on the loan and, as a result, it seized a portion of the secured
property in Maryland. Other portions of the property have disappeared and cannot be
located.

On March 16, 2021, Brigade filed a three-count complaint in this Court asserting
the following claims: conversion (Count I), breach of contract (Count II), and tortious
interference with advantageous business relationships (Count III). The very next day,
Aegis filed a complaint arising from the same dispute in the United States District Court
for the District of Maryland, asserting claims against Brigade and other parties for breach
of contract and for replevin of the secured property. On April 16, 2021, Brigade filed an
amended complaint, adding a claim for usury against Aegis. In the instant motion to

dismiss, Aegis argues that the case should be transferred to the district court in Maryland
pursuant to 28 U.S.C. § 1404(a) or, alternatively, be dismissed for failure to state a claim.
Legal Standard
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 might have been brought or to any district or division to which all parties

have consented.” Among others, venue is appropriate 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.
The purpose of § 1404(a) is to “prevent the waste ‘of time, energy and money’ and ‘to
protect litigants, witnesses and the public against unnecessary inconvenience and
expense.’” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Continental Grain Co.
v. The Barge FBL-585, 364 U.S. 19, 26-27 (1960)). Section1404(a) leaves much discretion
for the court, and “once a trial judge decides that transfer of venue is or is not justified, the
ruling can be overturned only for clear abuse of discretion.” Trace-Wilco, Inc. v. Symantec

Corp., No. 08-80877-CIV, 2009 WL 455432, at *1 (S.D. Fla. Feb 23, 2009) (citing Brown v.
Conn. Gen. Life Ins., 934 F.2d 1193, 1197 (11th Cir. 1991)).
Analysis
Aegis argues this matter should be transferred to Maryland because the events
giving rise to this cause of action occurred in Maryland, a large number of witnesses are in
Maryland, and the property at issue was stored and last seen in Maryland. However,
Brigade contends that transfer is inappropriate because it filed suit in Florida before

(albeit only one day before) Aegis filed suit in Maryland, and that the forum selection
clause in the parties’ contract mandates that the dispute be resolved in Florida.
The Eleventh Circuit follows the first filed rule. Under this rule, when parties have
instituted competing or parallel suits in separate courts involving overlapping parties and
issues, the court where the controversy was filed first should presumptively be the one to
decide the case. Collegiate Licensing Co. v. Am. Cas. Co. of Reading, Pa., 713 F.3d 71, 78

(11th Cir. 2013). This presumption, however, may be rebutted if “compelling
circumstances” warrant an exception to the first-filed rule. Manuel v. Convergys Corp.,
430 F.3d 1132, 1135 (11th Cir. 2005). In ascertaining whether compelling circumstances
exist, courts consider the same factors applicable to transfer motions under § 1404(a).
CSX Intermodal Terminals, Inc. v. Nickolas Savko and Sons, Inc., No. 3:18-cv-96-J-
34PDB, 2018 WL 4932891, at *2 (M.D. Fla. May 21, 2018). Accordingly, consideration of
Aegis’s motion to transfer under § 1404 and Brigade’s “first filed” argument turn on the
same issues.
In opposing transfer, Brigade argues that the parties’ forum selection clause

“mandates” that this dispute be resolved in Florida and therefore precludes transfer of the
action to Maryland. However, this clause is not a mandatory forum selection clause.
Rather, it is a “hybrid” clause, permitting Aegis to elect whether to require suit in Florida.
See Ocwen Orlando Holdings Corp. v. Harvard Property Trust, LLC, 526 F.3d 1379, 1381
(11th Cir. 2008). As Aegis has not elected to do so, the clause remains merely permissive.
As such, it is only one of a number of factors to be weighed in the analysis of whether to
transfer the case. See CSX Intermodal Terminals, 2018 WL 4932891, at *5.

Cases may be transferred under § 1404(a) where the court finds transfer serves the
interest of justice based on established public and private factors.1 Soliman v. Daimler
AG, No. 6:09-cv-00947-MSS-KRS, 2010 WL 11506980 at *3 (M.D. Fla. Jan. 22, 2010); see
also Trafalgar Capital Specialized Inv. Fund (In Liquidation) v. Hartman, 878 F. Supp.
1274, 1282 (S.D. Fla. 2012). 2 Private factors include

1 Section 1404(a) also requires the alternative venue to be proper. See Soliman v. Daimler AG, No.
6:09-cv-00947-MSS-KRS, 2010 WL 11506980 at *3 (M.D. Fla. Jan. 22, 2010). 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(b)(2). A substantial part of the events giving rise to the claims in this case occurred in
Maryland, and the case is centered around rights to property in Maryland. Therefore, venue is
proper in the District of Maryland.
2 Where parties agree to a mandatory forum selection clause, courts should not consider private
interest factors in determining transfer. See Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for
Western Dist. Of Texas, 571 U.S. 49, 64 (2013). As noted above, the clause at issue here is a hybrid
clause which remains merely permissive because Aegis did not elect to file suit here. See Anderson
v. First Mercury Ins. Co., No. 6:19-cv-1389-Orl-40EJK, 2020 WL 3316917, at *4 (M.D. Fla. Feb. 28,
2020) (considering private interest factors in a case involving an uninvoked hybrid forum selection
clause). Accordingly, private interest factors are considered here.
relative ease of access to sources of proof; availability of compulsory process
for attendance of unwilling, and the cost of obtaining attendance of willing,
witnesses; possibility of view of premises, if view would be appropriate to the
action; and all other practical problems that make trial of a case easy,
expeditious and inexpensive.

Atl. Marine, 571 U.S. at 62 n.6 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6
(1981)). Courts also consider the plaintiff’s choice of forum as a private interest factor. Id.
The public interest factors include “the administrative difficulties flowing from court
congestion; the local interest in having localized controversies decided at home; [and] the
interest in having the trial of a diversity case in a forum that is at home with the law.” Id.
Here, the Court finds these factors weigh in favor of transfer. Although Aegis is a
Florida corporation, the dispute in both cases centers largely around rights to property
that was held and last seen in Maryland. Moreover, Brigade offers little to rebut Aegis’
showing that most of the evidence and witnesses underlying the parties’ dispute lies in
Maryland. Brigade argues that the contract’s choice of law provision requires that Florida
law be applied, and the dispute is therefore better decided by a Florida court. The
outcome in this case will likely turn, however, on the terms of the parties’ contract and on
the Uniform Commercial Code, which has been adopted in both Florida and Maryland.
Brigade added a usury claim to its suit here after Aegis filed suit in Maryland and argues
that Florida and Maryland law on usury differ, but the Court has no doubt that the
Maryland district court is fully capable of interpreting Florida law on that issue.
Accordingly, the dispute’s Florida connections are insufficient to outweigh the
practical benefits of transferring this case to Maryland. See Fed. R. Civ. P. 1 (the Federal
Rules of Civil Procedure “should be construed, administered, and employed by the court
and the parties to secure the just, speedy, and inexpensive determination of every action
and proceeding.”). Aegis’s motion to transfer is granted.
Accordingly, it is
ORDERED, ADJUDGED, and DECREED:
(1) “Defendant Aegis Business Credit, LLC’s Motion to Transfer or, Alternatively,
Dismiss and Supporting Memorandum of Law” (Doc. 21) is hereby GRANTED.
(2) The Clerk is directed to TRANSFER this case to the United States District of
for the District of Maryland, Southern Division for all further proceedings.
(3) Following transfer, the Clerk is directed to terminate any pending motions and
deadlines, and thereafter close the case.
DONE and ORDERED in Chambers in Tampa, Florida, this 26th day of August,
2021.

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TOM BARBER
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10108277. Public record. Not legal advice.