United States District Court, W.D. Kentucky, Eastern Division
OPINION AND ORDER
CHELSEY M. VASCURA UNITED STATES MAGISTRATE JUDGE
Ernest Flatt (“Flatt”), brings this action for
discrimination and wrongful termination under Ohio law
against Defendants, Aspen Dental Management, Inc.
(“Aspen”) and Dr. John W. Ihnen
(“Ihnen”). This matter is now before the Court on
Aspen's Motion to Transfer Venue, ECF No. 13, and the
parties' related memoranda. For the reasons that follow,
the Court GRANTS this Motion.
is a business management company for dental offices across
the United States. Aspen is a Delaware corporation with its
principal place of business in East Syracuse, New York. On
June 21, 2010, Aspen hired Flatt as a Lab Technician in Ohio.
Though Flatt was originally hired as an hourly employee in a
fixed location, he became a salaried employee with job titles
and travel responsibilities that evolved throughout his
employment with Aspen. Most recently, Flatt was employed as a
Territory Manager of Lab Support assigned to the Kentucky
Territory, with responsibility for providing laboratory
support to nineteen offices in Kentucky and two offices in
West Virginia. Regardless of his changing positions with
Aspen, Flatt always remained domiciled in Ohio.
is a dentist who lives and works in the Louisville, Kentucky
area. Ihnen owns, in whole or in part, twelve of the nineteen
Kentucky dental offices that were under Flatt's
responsibility. One of these locations in Louisville, known
as the “Dixie Office, ” lies at the heart of the
11, 2018, Ihnen informed Flatt that he was no longer welcome
to work in his Kentucky offices. On July 12, 2018, Aspen
terminated Flatt's employment. Flatt initiated the
instant action in the Court of Common Pleas for Franklin
County, Ohio. (ECF No. 2.) Aspen then removed the action to
federal court based on diversity jurisdiction. (ECF No. 1.)
Subsequently, in May 2019, Aspen filed the subject Motion to
Transfer Venue, seeking an order transferring this action to
the Western District of Kentucky, Louisville Division. (ECF
Court's authority to transfer venue lies in multiple
statutes, including 28 U.S.C. §§ 1404(a), 1406(a),
and 1631. Under § 1404(a), when “[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 where it might have been brought.”
Section 1404(a) presupposes that venue is proper in the
original forum. Elcheikhali v. Geico Ins. Co., No.
1:09 CV 2434, 2010 U.S. Dist. LEXIS 3857, at *4-5 (N.D. Ohio
Jan. 19, 2010) (“The purpose of the provision is to
transfer actions brought in a permissible yet
inconvenient forum.”) (emphasis in original) (relying
on Martin v. Stokes, 623 F.2d 469, 471 (6th Cir.
1980)). When venue is improper in the original forum, §
1406(a) enables a district court, in lieu of dismissal, to
transfer venue “if it be in the interest of justice . .
. to any district or division in which it could have been
brought.” Id. A similar provision in §
1631 authorizes a district court to transfer a case to an
appropriate district, “in the interest of justice,
” when the court finds “a want of
jurisdiction.” Stanifer v. Brannan, 564 F.3d
455, 456-457 (6th Cir. 2009). The Sixth Circuit interprets
“jurisdiction” to include both subject matter and
personal jurisdiction. Jackson v. L&F Martin
Landscape, 421 Fed.Appx. 482, 483 (6th Cir. 2009). These
venue statutes confer broad discretion to district courts
ruling on a motion to transfer. Id. at 483-84.
has moved for transfer under § 1404(a). As the movant,
Aspen bears the burden of showing that transfer is
appropriate. Inter-National Found. Corp. v. Disney 1999
Ltd. P'ship, No. 2:09-cv-983, 2010 U.S. Dist. LEXIS
138283, *5 (S.D. Ohio Apr. 9, 2010). Deciding this Motion
requires a two-step analysis by the Court: (1) whether the
action could have initially been brought in the court where
transfer is sought and, if so, (2) whether transfer is
appropriate under a balance of convenience and justice
factors. Badger v. Speedway, LLC, No. 3:14-cv-7,
2014 U.S. Dist. LEXIS 184426, *2-3 (S.D. Ohio Dec. 5, 2014).
Part one of this § 1404(a) analysis is satisfied if: (1)
the transferee court has jurisdiction over the subject matter
of the action; (2) venue is proper in the transferee court;
and (3) the defendants are amenable to process issuing out of
the transferee court. Sky Tech. Partners, LLC v. Midwest
Research Inst., 125 F.Supp.2d 286, 291 (S.D. Ohio 2000).
resolving part two of this § 1404(a) analysis, a
district court evaluates various private-interest factors
(which have been recited in a number of ways), including: (1)
the convenience of the parties and witnesses, (2) the
accessibility of the evidence, (3) the availability of
compulsory process, (4) the cost of obtaining willing
witnesses, (5) the practical problems of trying the case most
expeditiously and inexpensively, and (6) the interests of
justice. Reese v. CNH Am. LLC, 574 F.3d 315, 320
(6th Cir. 2009). Courts may also consider public-interest
factors such as (1) court congestion, (2) local interest in
deciding the controversy at home, and (3) in diversity cases,
the interest of conducting the trial in the forum of the
governing law. Youngblood v. Life Ins. Co. of N.
Am., No. 3:16-CV-34-TBR, 2016 U.S. Dist. LEXIS 50081,
*2-3 (W.D. Ky. 2016) (citing Atl. Marine Constr. Co. v.
U.S. Dist. Ct. for W. Dist. of Tex., 134 S.Ct. 568, 581
(2013)). Ultimately, the transfer statute provides district
courts with broad discretion to determine the appropriateness
of transfer on an individualized, case-by-case basis.
Reese, 574 F.3d at 320; Inter-National Found.
Corp., 2010 U.S. Dist LEXIS 138283, at *5.
Court's analysis in this diversity case boils down to a
balance of convenience and justice factors. The Court finds
merit in Aspen's showing of jurisdiction and venue for
the proposed transferee court. (ECF No. 13, PAGEID # 79-80;
28 U.S.C. § 1391(b)(2).) Significantly, Flatt
acknowledges that he could have filed his claims in the
Western District of Kentucky. (ECF No. 14, PAGEID # 99.)
Thus, the only dispute among the parties is whether Aspen has
adequately shown that the Western District of Kentucky,
Louisville Division is a more appropriate choice for venue
such that transfer away from this district is warranted.
Court's Sua Sponte Consideration of Transfer
Pursuant to 28 U.S.C. §§ 1406(a) and 1631 for Lack
of Personal Jurisdiction
Court would be remiss if it proceeded with its § 1404(a)
analysis and overlooked the outstanding question of personal
jurisdiction over Defendant Ihnen. Defendants have made it
abundantly clear that if the instant motion is denied they
will be filing a motion to dismiss the claims against Ihnen
for lack of personal jurisdiction in Ohio. All of the
evidence before this Court shows that Defendants would be
justified in seeking such dismissal.
Court lacks personal jurisdiction over Ihnen then it
cannot grant transfer pursuant to § 1404(a).
The Sixth Circuit has specifically limited § 1404(a)
transfers to “actions commenced in a district court
where both personal jurisdiction and venue are proper.”
Newberry v. Silverman, 789 F.3d 636, 641 (6th Cir.
2015); Jackson, 421 Fed.Appx. at 483 (“[A]
transfer under section 1404(a) may not be granted when the
district court does not have personal jurisdiction over the
defendants.”). Though no party has raised this issue,
federal courts have the power to transfer cases sua
sponte under 28 U.S.C. §§ 1406(a) and 1631.
Flynn v. Greg Anthony Constr. Co., 95 Fed.Appx. 726,
738 (6th Cir. 2003); Krawec v. Allegany Co-op Ins.
Co., No. 1:08-CV-2124, 2009 U.S. Dist. LEXIS 57792,
*10-11 (N.D. Ohio July 7, 2009); see, e.g.,
Elcheikhali, 2010 U.S. Dist. LEXIS 3857, at *10-11,
14-15 (denying the defendant's pending § 1404(a)
motion and instead transferring on own accord pursuant to
§ 1406(a) due to finding lack of personal jurisdiction);
Jones v. Herbert Kannegiesser GmbH, No. 5:06-cv-39,
2006 U.S. Dist. LEXIS 81251, *7-8 (W.D. Mich. Nov. 7, 2006)
(noting the mandatory cast of § 1631's instructions
when denying the defendant's motion to dismiss and
instead sua sponte ordering transfer under §
1631 to cure possible jurisdictional defect).
this Court must ascertain whether it can exercise personal
jurisdiction over Ihnen before it can determine whether and
on what basis transfer is appropriate.