Wiggins v. Darden Restaurants, Inc.

,IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

EDWARD and BEVERLY WIGGINS, )

)

Plaintiffs, )

)

v. ) CIVIL ACT. NO. 3:20-cv-746-ECM

) (WO)

DARDEN RESTAURANTS, INC., )

)

Defendant. )

MEMORANDUM OPINION and ORDER

On June 2, 2021, the Court entered a memorandum opinion and order denying the

Defendant’s motion to dismiss for improper venue, (doc. 15), and ordering the parties to

show cause why the motion to transfer venue (doc. 7) should not be granted and this case

transferred to the Southern District of Mississippi pursuant to 28 U.S.C. § 1404(a). The

Plaintiffs filed a response opposing transfer. (Doc. 16). The motion is fully briefed and

ripe for resolution.1 For the reasons that follow, the Court concludes that the motion to

transfer venue (doc. 7) should be granted and this case transferred to the Southern District

of Mississippi pursuant to 28 U.S.C. § 1404(a).

1 Also pending before the Court is a motion to intervene (doc. 6) filed by United Wisconsin Insurance

Company, Inc. Because the Court concludes that this case should be transferred to the Southern District of

Mississippi, it declines to rule on the motion to intervene.

JURISDICTION AND VENUE

The Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332.

Personal jurisdiction is uncontested, and the Court has previously concluded that venue

properly lies in the Middle District of Alabama. (Doc. 15).

DISCUSSION

When jurisdiction is based on diversity of citizenship, as is the case here, 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).

There is no dispute that venue would be proper in the Southern District of

Mississippi because a substantial part of the events giving rise to the Plaintiffs’ claims

occurred in that district. The Plaintiffs’ claims arise from injuries Edward Wiggins

suffered when he slipped and fell in the kitchen of the Olive Garden Italian Restaurant in

Hattiesburg, Mississippi. (Doc. 1 at 2, para. 7).

On or about the 19th day of June, 2019, Plaintiff was

performing an inspection on the premises of Olive Garden

Italian Kitchen located at 4505 Hardy Street in Hattiesburg,

Mississippi[.] . . . Following Plaintiff’s inspection and upon

being escorted by the manager through the restaurant, Plaintiff

slipped on the tiled floor in the kitchen and sustained serious

personal injuries. Plaintiff was injured when he slipped and

fell where the floor was slippery due to a wet substance that

had spilled and remained on the floor, creating a hazardous

condition to invitees. Said hazardous condition was unmarked

in any way to warn passers by of the hazard that existed.

(Id. at 2-3, para. 7).

The Defendant asserts that transfer of this case to the Southern District of

Mississippi is in the interest of justice because “not only a ‘substantial part,’ but all of the

events or omissions alleged to have given rise to the claims occurred” in that district. (Doc.

7 at 6).

The Plaintiffs oppose transfer to that court because venue is proper in this District

and this is their chosen forum. (Docs. 13 & 16). In addition, the Plaintiffs assert that

although the accident occurred in Mississippi, all of Edward Wiggins’ medical treatment

for his injuries occurred in this district. More importantly, the Plaintiffs contend that their

financial condition and Edward’s medical condition will “make it difficult, if not

impossible, for [them] to attend trial” in Mississippi. (Doc. 16 at 7).

Although the Court has determined that venue is proper in the Middle District of

Alabama, 28 U.S.C. § 1404(a) permits, “[f]or the convenience of the parties and witnesses,

and 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.”

Usually, the Court accords “considerable deference” to the Plaintiffs’ choice of

forum and “in the usual motion for transfer under section 1404(a), the burden is on the

[Defendant] to establish that the suggested forum is more convenient.” In re Ricoh Corp.,

870 F.2d 570, 573 (11th Cir. 1989).

In the typical case not involving a forum-selection clause, a

district court considering a § 1404(a) motion (or a forum non

conveniens motion) must evaluate both the convenience of the

parties and various public-interest considerations. Ordinarily,

the district court would weigh the relevant factors and decide

whether, on balance, a transfer would serve “the convenience

of parties and witnesses” and otherwise promote “the interest

of justice.” § 1404(a).

Atl. Marine Const. Co., Inc. v. U.S. Dist. Court for W. Dist. of Texas, 571 U.S. 49, 62–63

(2013) (footnote in original omitted).

The Plaintiffs’ choice of forum weighs in their favor. However, the other factors

weigh in favor of transfer. The decision to transfer a case is within the discretion of the

trial court with the propriety of transfer being decided based on the facts of each individual

case. See Brown v. Connecticut General Life Ins. Co., 934 F.2d 1193, 1196 (11th Cir.

1991). In considering whether the Defendant has demonstrated that its suggested forum is

more convenient and serves the interest of justice, the Court considers a variety of case-

specific factors such as

(1) the convenience of the witnesses; (2) the location of

relevant documents and the relative ease of access to sources

of proof; (3) the convenience of the parties; (4) the locus of

operative facts; (5) the availability of process to compel the

attendance of unwilling witnesses; (6) the relative means of the

parties; (7) [the suggested] forum’s familiarity with the

governing law; (8) the weight accorded a plaintiff's choice of

forum; and (9) trial efficiency and the interests of justice, based

on the totality of the circumstances.

Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir. 2005); see also Stewart

Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (holding that a motion to transfer

venue requires the court to “balance a number of case-specific factors” in an

“individualized, case by-case consideration of convenience and fairness” (citation and

internal quotation marks omitted)).

In evaluating the factors, the Court considers that the Plaintiffs are residents of this

District. However, the events giving rise to the Plaintiffs’ claims all occurred in the

Southern District of Mississippi. Edward Wiggins was injured in that district and treated

that day at the emergency room in Hattiesburg, Mississippi. These factors are entitled to

more weight than the Plaintiffs attribute to them. Where, as here, “the operative facts

underlying the cause of action did not occur within the forum chosen by the Plaintiff[s],

the choice of forum is entitled to less consideration.” Moore v. Baker, 2018 WL 3421601,

*4 (M.D. Ala. 2018) (quoting Gould v. Nat'l Life Ins. Co., 990 F. Supp. 1354, 1358 (M.D.

Ala.1998)).

In addition, crucial evidence and witnesses are located in that district. Litigation in

the Southern District of Mississippi will provide the parties with access to key witnesses

including the manager and other employees who were at the restaurant when Edward

Wiggins was injured. A critical factor for the court’s consideration is the convenience of

witnesses. See Owens v. Blue Tee Corp., 177 F.R.D. 673, 679 (M.D. Ala. 1998). “The

convenience of non-party witnesses is important, if not the most important, factor in

determining whether a motion for transfer should be granted.” Conseal Int’ Inc. v.

Econalytic Sys., Inc., No. 09-60477-CIV, 2009 WL 1285865 (S.D. Fla. 2009) (discussing

transfer under § 1404(a)). Litigating in the Southern District of Mississippi will be more

convenient for witnesses, and the availability of process to compel the attendance of

unwilling witnesses also weighs in favor of transferring this case to Mississippi.

In addition, relevant evidence such as maintenance or cleaning records and other

relevant documents in Olive Garden’s possession will be located in Hattiesburg,

Mississippi. While these documents may be available electronically, the physical location

of documents weigh slightly in favor of transfer.

Mississippi substantive law applies in this case, and the Plaintiffs concede that this

factor “weighs only slightly” in favor of transfer to Mississippi. (Doc. 16 at 8). While the

law may not be novel or complex, the District Court in Mississippi is more familiar with

the applicable law, and this factor weighs in favor of transfer.

Relying on Dekle v. Global Digital Solutions, Inc., 2015 WL 3562412 (S.D. Ala.

2015), the Plaintiffs argue that Edward Wiggins’ medical condition weighs heavily against

transfer. In Dekle, the plaintiff was suffering from pancreatic cancer and was undergoing

chemotherapy. 2015 WL 3562412, *5. Based on the plaintiff’s medical condition, the

court denied a motion to transfer venue. Here is no suggestion that Edward Wiggins’

medical condition is as dire and fragile as Dekle’s. Moreover, days after the motion to

transfer venue was denied, Dekle passed away, and the Court subsequently transferred the

case to a more convenient forum. Id. at * 3. Thus, Dekle does not provide the support or

persuasive effect urged by the Plaintiffs. The Court has considered Edward Wiggins’

medical condition and the Plaintiffs’ current financial situation and concludes that these

factors weigh slightly in favor of the Plaintiffs.

The Court concludes that relevant factors — the events giving rise to the Plaintiffs’

claims occurred in the Southern District of Mississippi, most of the witnesses and evidence

are located in the Southern District of Mississippi, and Mississippi substantive law applies

to this case — weigh heavily in favor of transfer to the Southern District of Mississippi.

Accordingly, the Court concludes that transfer to the Southern District of Mississippi is

more convenient and serves the interests of justice.

CONCLUSION

Accordingly, it is

ORDERED that, pursuant to 28 U.S.C. § 1404(a), the motion to transfer venue (doc.

7) is GRANTED, and this case is transferred to the Southern District of Mississippi.

The Clerk of the Court is DIRECTED to take the necessary steps to effectuate the

transfer of this case to the Southern District of Mississippi.

Done this 30th day of July, 2021.

/s/Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE