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Patton v. Johnson

United States District Court, D. Rhode Island

September 4, 2019




         Before the Court is Defendants' motion to transfer this case to the United States District Court for the Northern District of Texas for all purposes pursuant to 28 U.S.C. § 1404(a). Plaintiffs oppose the motion. For the reasons stated below, the motion is granted.

         I. BACKGROUND

         In April 2007, Plaintiff Rickie Patton and his wife, Plaintiff Cathleen Marquardt, (collectively, “Plaintiffs”), then residents of Louisiana, engaged the Fort Worth, Texas-based attorney Steven Johnson and his firm, Law Offices of Steven M. Johnson, P.C., d/b/a The Johnson Law Firm (“JLF”), to represent them in connection with injuries Patton experienced due to a kugel mesh patch used to treat a hernia. The complaint in this case relies on the engagement agreement between them (Attorney Representation Agreement (“ARA”) (ECF No. 1-3 at 19)), which specifies that it was entered into in Tarrant County, Texas, which “shall also be the place of performance and payment” and that “it shall be construed in accordance” with Texas law. ECF No. 1-1 at 18 ¶ 10 (“Compl.”). The ARA also contains an arbitration clause requiring that disputes arising from the engagement be resolved in Fort Worth, Texas.[2] Id. ¶¶ 16-18.

         Based on the ARA, JLF filed suit on Plaintiffs' behalf in Texas. Later in 2007, the case was transferred to the District of Rhode Island as part of a centralized multi-district litigation proceeding along with over one thousand other cases. In re Kugel Mesh Hernia Patch Prods. Liab. Litig., MDL Docket 07-1842WES (D.R.I.). Rhode Island attorney John Deaton was engaged to act as local counsel and did most of the Rhode Island in-court work. In 2013, another Texas attorney, Defendant Barry Johnson, [3] was hired by JLF to work on the Plaintiffs' case. In 2015, following the Texas-based efforts of JLF and Barry Johnson, Plaintiffs' kugel mesh suit settled - all relevant communications regarding the settlement were between JLF in Fort Worth, Texas, and Plaintiffs in Louisiana; the only in-person meeting to discuss the settlement was in Fort Worth, Texas. Compl. ¶¶ 25-26; ECF No. 52-2 ¶ 5. The settlement was executed by Patton in Louisiana and returned to JLF in Fort Worth, Texas. ECF Nos. 52-8, 52-9.[4] The settlement document contains a choice-of-laws clause, which states that the “Release shall be governed by and construed in accordance with the law of the State of Rhode Island as applied to contracts made in the State of Rode Island.” ECF No. 52-9 at 17. It also has a venue clause: “Any dispute arising under this Release or relating to the subject matter thereof, shall be filed only in the Superior Court of Rhode Island.” Id. Unlike the ARA, the Release referenced in the settlement is not attached to or relied on in the complaint in this case.

         Plaintiffs were not satisfied with the work of Fort Worth, Texas, attorneys, although they had no complaint about the work of Deaton, the Rhode Island attorney. In April 2017, they filed suit against JLF and Barry Johnson in Rhode Island Superior Court for legal malpractice, intentional and negligent misrepresentation and infliction of emotional distress, breach of fiduciary duty and unfair business practices in violation of R.I. Gen. Laws § 6-13.1-1, et seq. (“UDAP”). Because Plaintiffs still both resided in Louisiana, while JLF and Barry Johnson were citizens of Texas, this malpractice/tort case was removed to this Court based on diversity of citizenship. With no claim grounded in the settlement Release, no party tried to assert its clause requiring venue in the Rhode Island Superior Court. Meanwhile, Barry Johnson and JLF each tried to initiate a Texas-based arbitration and/or Texas state court litigation to compel Texas-based arbitration of Plaintiffs' claims in accordance with the ARA. Since then, the parties' fight over arbitration has been raging, in this Court (and the First Circuit) and, more recently, in Texas, principally in the Northern District.[5]

         Since removal to this Court, the case has been stuck in the pre-discovery phase due to the efforts of Barry Johnson and JLF to force the case into arbitration in Texas, and Plaintiffs' aggressive resistance to those efforts, as well as the parties' unsuccessful court-annexed mediation. The fight over arbitration has resulted in particularly time-consuming litigation. See, Patton v. Johnson, 915 F.3d 827, 830 (1st Cir. 2019) (“Patton II”), affirming Patton v. Johnson, C.A. No. 17-259WES, 2018 WL 3655785 (D.R.I. Aug. 2, 2018) (“Patton I”).[6] And after the mandate from the appeal returned the case to the District Court, the parties filed more pre-discovery motions. As a result, this case is over two years old, two pretrial scheduling orders have lapsed and most recently, the Court did not enter a scheduling order at the parties' request due to the need to resolve pre-discovery issues. Text Order of Apr. 19, 2019. As a practical matter, the discovery phase of this case has not yet begun, nor has this Court tangled at all with issues related to the merits of Plaintiffs' claims.

         Among the post-mandate pre-discovery motions[7] is JLF's motion (joined by Barry Johnson) to transfer venue to the Northern District of Texas pursuant to 28 U.S.C. § 1404(a). ECF No. 52. In support of the venue-transfer motion, JLF advises that it recently learned that Patton and Marquardt have moved from Louisiana and now live in Texas.[8] In light of the overwhelming number of witnesses and documents and relevant events located in Texas, compared with only one witness (with associated documents) in Rhode Island (Deaton), the Court directed the parties to focus on the § 1404(a) transfer motion first.

         In their opposition to the § 1404(a) venue-transfer motion, Plaintiffs concede the accuracy of JLF's summary of the situs of witnesses, documents and relevant events in Texas, essentially confirming that the Northern District of Texas would be a far more convenient forum than the District of Rhode Island. Their only factual quibble is their argument that Deaton (and his Rhode Island staff and documents in his Rhode Island office) is more important to the case than JLF and Barry Johnson have portrayed, although they fail to explain why. They nevertheless object to transfer to the Northern District of Texas because this is the “first filed” federal case. They also contend that equitable considerations, including the timing of JLF's motion (filed more than two years after the complaint was filed), dictate that it should stay here, and that transfer would cause delay. Therefore, they argue that transfer would not be in the interest of justice.


         Section 1404(a) of Title 28 provides:

For 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 or to any district or division to which all parties have consented.

         Section 1404(a) confers on the district court discretion “to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness.” Astro-Med, Inc. v. Nihon Kohden Am., Inc., 591 F.3d 1, 12 (1st Cir. 2009) (internal quotation marks omitted). First, however, the Court must determine whether the case is one that “might have been brought in the transferee court.” In re Collins & Aiken Corp. Sec. Litig., 438 F.Supp.2d 392, 394 (S.D.N.Y. 2006) (internal quotation marks omitted). If it is, the Court then looks to both private and public interest factors to determine if transfer is appropriate. Tristar Prods., Inc. v. Novel Brands, LLC, 267 F.Supp.3d 380, 382 (D.R.I. 2017). Such factors include: (1) ease of access to sources of proof; (2) availability of compulsory process to compel attendance of witnesses; (3) cost of attendance of willing witnesses; (4) ease of a view of premises, if necessary; (5) enforceability of the judgment, if obtained; (6) advantages and obstacles to a fair trial; (7) status of the court's trial calendar; and (8) familiarity of forum with applicable state law. Id. The moving party bears the burden of proving that a transfer is warranted. Momenta Pharm., Inc. v. Amphastar Pharm., Inc., 841 F.Supp.2d 514, 522 (D. Mass. 2012).

         Plaintiffs do not dispute that, at the time it was filed in Rhode Island, this case could have been brought in the Northern District of Texas under either 28 U.S.C. § 1391(b)(1) or § 1391(b)(2) because JLF and Barry Johnson were both citizens of Texas, both then were residing in the Northern District of Texas, as well as because the ARA stipulates that Tarrant County, Texas, (which is in the Northern District of Texas) is the place of performance[9] and virtually all of the events and omissions that give rise to the malpractice/misrepresentation claims occurred in the Northern District of Texas. Diversity jurisdiction under 28 ...

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