WELLS, Judge.
R.J. Reynolds Tobacco Company, Philip Morris USA Inc., and Lorillard Tobacco Company (collectively, "the defendants"),
Engle
The defendant tobacco companies do not dispute that venue was proper when Mooney originally filed her consolidated action against them and Vector in the Miami-Dade Court. Nor have they at any time argued that venue was not proper in the court below after Mooney severed her action and dropped Vector as a party defendant. Indeed, this court has previously found that "if — as was obviously and concededly the case here — a local or resident defendant is made a party in good faith at the outset of the litigation, his subsequent voluntary (or involuntary) dismissal does not affect the propriety of the initial venue so as to require that the action be transferred...." Vance, M.D. v. Minton, 444 So.2d 1162, 1163 (Fla. 3d DCA 1984). The defendant tobacco companies have, therefore, moved to transfer venue to Duval County under section 47.122, claiming that it is "[f]or the convenience of the parties or witnesses or in the interest of justice," to transfer this action to Duval County where this action might also have been brought.
As this court has already confirmed, a "plaintiff's forum selection is presumptively correct, and in order to successfully challenge that selection,
As to the convenience of the parties, the tobacco company defendants have made no argument that it would be inconvenient in any manner
As to the convenience of any witnesses, the tobacco company defendants have not identified a single defense witness who would be inconvenienced by keeping this case in Miami-Dade County. Rather, they rely solely upon a response to a written interrogatory asking Mooney to identify those whom might have knowledge of the issues raised in the instant suit:
In her response, Mooney provided the names and addresses of four individuals, three of whom lived in Jacksonville who might have knowledge of decedent's "smoking history and smoking related illness." While such individuals, may prove to have relevant knowledge concerning issues in this lawsuit, there is no evidence that any of these individuals actually has relevant information, will be deposed, or will be called as a witness at trial. Indeed, it may very well be that, as is often the case, the decedent's extended family members will have little relevant knowledge given the fact that they resided in a city different
Moreover, the uncontradicted evidence also is that the potential witness with the most knowledge of decedent's smoking history and smoking related illnesses — decedent's surviving spouse — lived in Tallahassee with the decedent until decedent's death and now lives in Georgia. As was the case with the other individuals listed in Mooney's interrogatory response, the tobacco company defendants have made no showing of substantial inconvenience or undue expense as to this most significant witness and Georgia resident in having this case tried in Miami-Dade County.
The same can be said of any treating physician or expert witnesses. As is often the case, the treating physicians may require that their trial testimony be presented by deposition so as not to interfere with their treatment of patients. And no expert witnesses, local or otherwise, have been identified. Thus, whether any witness will be inconvenienced or not cannot, as the trial court noted, be determined until further discovery takes place.
Nor can we agree with any argument that it is incumbent to grant the motion to transfer venue now in order to prevent Mooney from "hav[ing][her] cake and eat[ing] it too" by asking for more time to determine where witnesses reside while simultaneously arguing that a transfer becomes less fair with the passage of time. To use another popular idiomatic expression, such a claim would put the "cart before the horse" by prematurely ruling on a venue motion in order to prevent Mooney from making some argument that she might make at some point in the future, for the law requires the production of
As to the interests of justice, transfer to Duval County because: (1) "
There is no record evidence as to a case management order to handle tobacco litigation in Duval or Miami-Dade Counties, much less the state of the dockets in either county. And to the extent that this is even a valid consideration, this court has previously cautioned that the court's concerns about preserving judicial resources does not, by itself, constitute a valid reason for disturbing the plaintiff's forum choice:
Burns, 672 So.2d at 836.
For this reason we also cannot so easily reject Mooney's contention that trying this case in Miami-Dade County would be more expeditious. Absent
We also cannot agree with any conclusion that plaintiffs should not be able to select an attorney or expert witnesses in a county and maintain suit there simply because they see some procedural advantage or because juries in the chosen forum tend to award larger monetary damages. There is nothing improper in choosing a venue because it is the most advantageous venue procedurally, or otherwise, for the law itself recognizes a plaintiff's privilege in initially selecting a venue irrespective of reason. If, therefore, venue is proper in more than one place, a plaintiff has the privilege of selecting which venue is most favorable to it for any reason and that selection will not be disturbed absent
There is no question that venue was proper in Miami-Dade County when this action was filed. Now that the only local defendant has been dropped from the case, Mooney wishes to continue her case here, first, because it is no more inconvenient for her to have the case heard here than in Duval County; second, because none of the witnesses whom she has identified as potential witnesses has been proved to be inconvenienced by this decision; third, because the tobacco company defendants do not claim that they are in any manner inconvenienced; and lastly, because the lawyer who is intimately familiar with her case will be substantially inconvenienced — to say nothing of the costs that must be incurred — in travelling back and forth to Duval County to try this case. While we agree that the location of the lawyer's office is generally not relevant to this inquiry, the unique circumstances of this case present an instance where it cannot be said that the trial court abused its discretion in concluding that the interests of justice would better be served if the case were to stay in Miami-Dade County.
EMAS, J., concurs.
ROTHENBERG, J. (dissenting).
This appeal comes to us upon the trial court's denial of a motion to transfer venue filed jointly by R.J. Reynolds Tobacco Company, Philip Morris USA Inc., and Lorillard Tobacco Company (collectively, "the defendants"). Because this case has absolutely no connection to Miami-Dade County, the trial court abused its discretion in denying the motion. Accordingly, I would reverse the trial court's denial of the defendant's motion to transfer venue to Duvall County, and I respectfully issue this dissent.
This is an Engle-progeny
The defendants established the following facts in support of their motion to transfer: Mooney currently resides in Duval County; the decedent resided in Duval County for twenty years and has never resided in Miami-Dade County; the decedent was diagnosed with, treated for, and died of lung cancer in Duval County; the decedent's treating physicians reside in Duval County; the decedent's husband, who Mooney has admitted will "undoubtedly testify at trial," resided in Duval County until the decedent's death and currently resides in Georgia; all but one of the decedent's family members reside in Duval County; and Mooney identified only three witnesses in her response to defendants' interrogatories that may have personal knowledge of the facts surrounding the decedent's death, all of which reside in Duval County. There are no current or potential witnesses listed by either side who live in Miami-Dade County. Mooney's only proffered connection to Miami-Dade County is her attorney, who resides and practices in Miami-Dade County.
A trial court's ruling on a motion for transfer of venue is reviewed for an abuse of discretion, Burger King Corp. v. Koeppel, 564 So.2d 209, 210 (Fla. 3d DCA 1990), but "the discretion of the [trial] court is not unbridled and must be predicated upon a proper showing of convenience or interest of justice." Taylor v. Dasilva, 401 So.2d 1161, 1163 (Fla. 3d DCA 1981). Section 47.122 provides: "For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought." Section 47.122 itself, as well as our case law interpreting the statute, espouses three distinct factors to consider when determining whether a transfer of venue is proper: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of justice. A trial court may transfer venue if any of these three factors weigh in favor of the alternate forum. See § 47.122 (using the word "or" to refer to the three factors in the disjunctive). In this case, all three factors weigh in favor of transferring venue to Duval County. Thus, the trial court abused its discretion by denying the motion to transfer.
A plaintiff's choice of venue is given a presumption of correctness, but it is not a "paramount consideration" that cannot be overcome. Hu v. Crockett, 426 So.2d 1275, 1278 (Fla. 1st DCA 1983). The circumstances surrounding a plaintiff's choice of forum are relevant to the level of deference afforded:
Id. at 1279 (citation omitted). Furthermore, transfer of venue can be ordered based on convenience to a plaintiff even if that plaintiff opposes transfer. See Burger King, 564 So.2d at 210 (reversing the trial court's denial of a motion to transfer venue when a different venue was more convenient to the witnesses and the plaintiff, who opposed the motion).
The facts in this case illustrate precisely the reason a plaintiff's forum choice should not ultimately control. Mooney and nearly all of her family are Duval County residents. The decedent lived in Duval County for over twenty years, was diagnosed in Duval County, and was treated in Duval County until her death in 1993. In fact, Mooney
In a series of deposition questions regarding the propriety of Miami-Dade as a venue, Mooney responded:
(emphasis added). Mooney's testimony underscores the notion that a plaintiff's choice of venue should be afforded less deference when that plaintiff seeks to litigate away from her "home turf" for an unexplained reason. It is clear from the record, and Mooney admits, that Duval County would be a more convenient place to litigate this matter.
There is no dispute that venue was proper in Miami-Dade County when the consolidated multi-plaintiff lawsuit was filed. There is also no dispute that, because venue was proper when the consolidated lawsuit was filed, by severing her lawsuit from the consolidated lawsuit, the propriety of the prior venue determination remains undisturbed. Thus, there is no
In this case, none of the parties remaining in this suit has
"The convenience of the witnesses is probably the single most important consideration of the three statutory factors." Hu, 426 So.2d at 1279. In determining the ultimate convenience to the witnesses, the trial court should consider the number of witnesses who will testify as well as the relative significance of each witness's testimony. See Ford Motor Co. v. James, 33 So.3d 91, 93 (Fla. 4th DCA 2010); Hu, 426 So.2d at 1279. Where witnesses have been identified in two potential forums, the trial court has great discretion in determining that one is more convenient than the other, but when the chosen forum contains no discernible witnesses, that discretion is substantially limited. Compare Hu, 426 So.2d at 1279-81 (finding that the trial court did not abuse its discretion when witnesses resided in various potential forums) with Hall v. R.J. Reynolds Tobacco Co., 118 So.3d 847, 848 (Fla. 3d DCA 2013) and Brown & Williamson Tobacco Corp. v. Widdick, 717 So.2d 572, 573-74 (Fla. 1st DCA 1998) (both finding that venue was improper in a forum where no witnesses reside).
In this case, the fact witnesses identified by the parties all reside in or near Duval County or in Georgia. Mooney and all of the decedent's family members, except the decedent's husband, who lives in Georgia, reside in the Duval County area and could more conveniently respond to discovery requests and appear and/or testify at trial in a Duval County court. Furthermore, all of the decedent's treating physicians reside in either Duval County or the Tallahassee area — none reside or practice in Miami-Dade County. It is clear from this record that the convenience of the witnesses weighs in favor of a transfer to Duval County.
Mooney argues that ordering a transfer to Duval County would be premature because the parties have not yet identified all witnesses who will testify, including expert witnesses. This argument is unavailing for several reasons. First, convenience to expert witnesses is of minimal importance. See Pep Boys v. Montilla, 62 So.3d 1162, 1166 (Fla. 4th DCA 2011) (disagreeing "that the convenience of the expert witnesses is of utmost importance" because "[i]t goes without saying that most expert witnesses travel for their work and are paid for doing so"); see also Mankowitz v. Staub, 553 So.2d 1299, 1300 (Fla. 3d DCA 1989) ("The fact that certain expert witnesses and treating physicians reside in Dade County is not sufficient to defeat Monroe County venue."); but see Brown & Williamson Tobacco Corp. v. Young, 690 So.2d 1377, 1379-80 (Fla. 1st DCA 1997) (finding that expert witnesses were critical in tobacco cases).
While Mooney contends that the significance of the identified family members' and treating physicians' testimony is unknown, plaintiffs in tobacco cases almost always rely on such witnesses to testify about the nature of the injuries and the appropriate damages. Additionally, Mooney has never contended that there is even a possibility that further discovery will reveal a fact witness in Miami-Dade County.
Mooney argued persuasively at the hearing on the motion to transfer venue that the case has been languishing too long and that a transfer would be inappropriate because she would again have to wait in Duval County for an open docket spot. At the same time, she argued that the parties need more time to determine which witnesses will testify and how relevant their testimony will be. Allowing the case to stay in Miami-Dade County until more discovery has taken place will necessarily strengthen the plaintiff's argument that the case should remain in Miami-Dade County for expediency reasons. We cannot permit a litigant to "have their cake and eat it too" by asking for more time to determine where the witnesses reside while simultaneously arguing that a transfer becomes less fair with the passage of time. Where it is clear that further discovery will yield no fact witnesses in the chosen forum, the trial court should not delay its ruling on a motion to transfer.
The final statutory factor is the catch-all provision advising courts to weigh the interest of justice. This factor is susceptible to many considerations, but ultimately hinges on the overall fairness of the chosen and alternative forums considering the totality of the litigation. See Pep Boys, 62 So.3d at 1165 ("The third factor, that of the interest of justice, is a catch-all consideration including many considerations, and in some close cases this factor may be determinative." (quoting Hu, 426 So.2d at 1280)). The interest of justice clearly weighs in favor of transferring this case to Duval County. It is readily apparent when viewing this case in total that it is not a Miami-Dade County case. All discernible connections are to Duval County, and the
In Westchester Fire Insurance Co. v. Fireman's Fund Insurance Co., 673 So.2d 958, 959 (Fla. 3d DCA 1996), this Court stated in no uncertain terms:
(emphasis added). Applying the Westchester policy in Hall v. R.J. Reynolds, 118 So.3d at 848 n. 3, this Court found that the trial court had properly granted the defendant tobacco companies' motion for transfer under nearly identical circumstances by directly holding that the plaintiff's attorney's location is not a relevant connection to the forum. Similarly, the First District has held that the trial court
Finally, the interest of justice dictates that this case be transferred to Duval County because plaintiffs should not be able to select an attorney or expert witnesses in a county and maintain suit there simply because they envision some procedural advantage or because juries in the chosen forum tend to award larger monetary damages awards. Plaintiffs cannot defeat transfer to a more convenient forum by their own deliberate actions. Resolution Trust Corp. v. Diaz, 578 So.2d 40, 41 (Fla. 4th DCA 1991) (per curiam) ("The power to defeat a transfer to a convenient forum should derive from rights and privileges conferred by law, not from the deliberate conduct of a party favoring trial in an inconvenient forum."). Such proscribed deliberate actions include hiring an attorney or expert witnesses in a specific forum to which the plaintiff has no other relevant connection to bolster the convenience of litigating in that forum. Allowing a party to maintain suit based on the location of his or her attorney and expert witnesses, especially when
The cause of action before us has no connection to Miami-Dade County. The plaintiff is from Duval County; all listed witnesses are from Duval County or Georgia; the plaintiff has admitted that Duval County would be a more convenient forum; there is no evidence that the plaintiff will be prejudiced by transferring the case to Duval County; and none of the remaining defendants have a particular connection with Miami-Dade County. Simply put, this is not a Miami-Dade County case. Rather, to quote one of our recent decisions, Mooney's case "is a[ ] [Duval] County case which belongs in [Duval] County." Hall, 118 So.3d at 848. Allowing the cause of action to remain in Miami-Dade County by denying a proper motion for transfer of venue, as the trial court did, simply opens the Miami-Dade County venue for a flood of tobacco litigation with no connections to the area.
Allowing discovery to continue and postponing the ruling on the transfer of venue motion is similarly problematic in this case because Mooney has essentially conceded that further discovery will not yield any fact witnesses or evidence in Miami-Dade County. If we endorse Mooney's position, plaintiffs could simply delay the transfer of an unrelated case until they have gotten so close to the trial date that a transfer would be impractical. Miami-Dade cases should remain in Miami-Dade. Duval County cases, however, should be tried in the Duval County courts. This case has no connection