JOHN J. O'SULLIVAN, United States Magistrate Judge.
THIS MATTER is before the Court pursuant to the defendants' Motions to Dismiss/Transfer for Improper Venue (DE # 21-22, 12/17/10).
ORDERED AND ADJUDGED that the defendants' Motion to Dismiss/Transfer for
On September 3, 2010, the plaintiff filed the instant action against the defendant alleging common law claims of unjust enrichment (Count I), tortuous interference with a contractual right (Count II) and conversion (Count III). See Complaint for Damages (DE# 1, 9/3/10). The complaint alleges that the plaintiff is a musician who was invited to perform at a concert in Abu Dhabi in the United Arab Emirates. Id. at ¶ 14. The plaintiff required a chartered round-trip flight for himself, his band and his crew from Miami, Florida to Abu Dhabi. Id. at ¶ 15. The plaintiff contacted a third party who in turn made arrangements with the defendants to charter a plane round-trip from Miami to Abu Dhabi. Id. at ¶¶ 16-18. The cost of the charter was $165,000.00. Id. at ¶ 24. The defendants negotiated with the third party and it was agreed that the plaintiff would pay a deposit of $145,000 to secure the aircraft. Id. at ¶¶ 24, 26-27. The plaintiff made this payment. Id. at ¶ 29-30. After obtaining the plaintiff's payment, the defendants flew the aircraft from Orlando, Florida to Miami, Florida in preparation for the plaintiff's flight. Id. at ¶ 32. The plaintiff became ill and cancelled the chartered flight. Id. at ¶ 33. The defendants employed the aircraft for a different flight. Id. at ¶ 34. The defendants retained the plaintiff's deposit. Id. at 42.
The defendants seek to dismiss the plaintiff's complaint for improper venue under Rule 12(b)(3) of the Federal Rules of Civil Procedure. See Motion to Dismiss/Transfer for Improper Venue, and Affidavits and Memorandum of Law in Support (DE # 22 at 1, 12/17/10). The plaintiff invokes the Court's diversity jurisdiction. Venue in a diversity case is controlled by 28 U.S.C. § 1391(a). The statute provides:
28 U.S.C. § 1391(a) (emphasis added). The defendants have filed an affidavit attesting that the defendants are residents of Orange County located in the Middle District of Florida. See Affidavit of Joshua Perrotta (DE #22-1 at ¶¶ 4-5, 12/17/10). The affidavit further states that the plane in question is physically based in Orange County, Florida and in Michigan and that the monies paid for the flight were wired to the defendants' bank account in Orange County. Id. at ¶¶ 6, 11.
The plaintiff does not dispute the contents of this affidavit. Rather, the plaintiff argues that because the chartered plane was scheduled to fly round-trip from Miami, Florida to Abu Dhabi in the United Arab Emirates, a substantial part of the events or omissions giving rise to the plaintiff's claims occurred in this district. Plaintiff's Response in Opposition to Defendants' Motion to Dismiss Complaint/Transfer for Improper Venue (DE # 24 at 5, 12/20/10).
At the hearing on the instant motion, the plaintiff acknowledged that venue would be proper in the Middle District of
As an alternative to dismissal, the defendants seek the transfer of the instant action to the Middle District of Florida. The defendants do not identify the statute they seek the transfer under. Section 1404(a), United States Code, Title 28 states "[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(a). "The federal courts traditionally have accorded a plaintiff's choice of forum considerable deference." In re Ricoh Corp., 870 F.2d 570, 573 (11th Cir.1989) (per curiam) (citation omitted). Additionally, "in the usual motion for transfer under section 1404(a), the burden is on the movant to establish that the suggested forum is more convenient." Id. The defendants have failed to show that the Middle District is a more convenient forum for the instant case. Transferring the instant case to the Middle District of Florida would likely shift the inconvenience from the defendants to the plaintiff. Accordingly, the defendants' request to transfer the instant action to the Middle District of Florida is