IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MORRIS INDUSTRIAL CORPORATION, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 05-0326-WS-B

 )

WEYERHAEUSER COMPANY, )

 )

Defendant. )

ORDER 

This matter is before the Court on the defendant’s motion to transfer. (Doc.19). The plaintiff

has filed a response and the defendant a reply, (Docs. 24, 29), and the motion is ripe for resolution. 

After carefully considering the foregoing materials, the Court concludes that the motion to transfer is

due to be denied.

BACKGROUND

The plaintiff and the defendant entered a contract pursuant to which the plaintiff was to design,

build and install a lumber sorter and stacker system (“the System”) for the defendant. The design,

manufacture and initial testing of the System occurred at the plaintiff’s Mobile, Alabama facility. 

Installation occurred at the defendant’s New Bern, North Carolina facility. 

The contract price was $815,802, payable in stages as progress payments. The defendant

made some of these payments but did not pay the final $123,161. Nor did the defendant pay $20,450

for change orders submitted during installation. The plaintiff sues for these amounts. The defendant

counterclaims that the System was defective, that it was required to expend its funds to correct the

defects (including damage to an adjacent strapper machine during installation of the System), and that it

lost profits as a result of the downtime required to effect these repairs. The defendant seeks damages

of $611,145.87. 

Case 1:05-cv-00326-WS-B Document 30 Filed 11/10/05 Page 1 of 5
1

(Doc. 19, James Declaration, ¶¶ 1, 11).

-2-

DISCUSSION

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.

28 U.S.C. § 1404(a). The defendant argues that this action should be transferred to the Eastern

District of North Carolina pursuant to Section 1404(a).

It is undisputed that subject matter jurisdiction, personal jurisdiction and venue all are proper in

the Eastern District of North Carolina, which is therefore a district in which this action “might have been

brought.” See, e.g., Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1104 n.5, 1107 (5th Cir.

1981).

“[I]n the usual motion for transfer under section 1404(a), the burden is on the movant to

establish that the suggested forum is more convenient.” In re: Ricoh Corp., 870 F.2d 570, 573 (11th

Cir. 1989). The defendant begins this exercise with a handicap, because “[t]he federal courts

traditionally have accorded a plaintiff’s choice of forum considerable deference,” id., so that the

defendant must show that the plaintiff’s choice is “‘clearly outweighed by other considerations.’”

Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11th Cir. 1996)(quoting Howell v. Tanner,

650 F.2d 610, 616 (5th Cir. 1981), cert. denied, 456 U.S. 919 (1982)). The defendant

acknowledges, if reluctantly, its heavy burden. (Doc. 19 at 14). 

To meet this challenge, the defendant notes that its “key witnesses” live in North Carolina and

Canada. (Doc. 19 at 9-10). Because the defendant has not attempted to support the facially

implausible proposition that it is more convenient for witnesses to travel from Alberta or British

Columbia1 to North Carolina than to Alabama, the Canadian witnesses may be ignored. 

The defendant identifies four “key witnesses” residing in North Carolina, but the plaintiff

identifies a similar number residing in Alabama. (Doc. 24 at 3; Williamson Affidavit, ¶¶ 5, 6, 9). The

Case 1:05-cv-00326-WS-B Document 30 Filed 11/10/05 Page 2 of 5
2Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947). 

-3-

defendant does not dispute the plaintiff’s designation of these witnesses as “key,” nor does it offer any

reason why the convenience of witnesses should nevertheless be deemed to favor transfer. See

Robinson v. Giarmarco & Bill, 74 F.3d at 260 (if transfer would simply shift the inconvenience from

one party to the other, a case for transfer has not been made). 

Because the defendant insists that the convenience of witnesses is the “most important factor”

under Section 1404(a), (Doc. 19 at 8), its inability to show that this factor favors transfer makes its

burden of showing that other factors “clearly outweigh” the plaintiff’s choice of forum that much more

difficult. The defendant gamely attempts to shoulder the load.

First, the defendant correctly notes that the physical evidence — that is, the System and the

strapper machine — are located in North Carolina. This is significant, the defendant says, both

because experts will be required to inspect the physical evidence and because a view is possible only

there. (Doc. 19 at 10-11). Experts are simply witnesses, however, and the defendant has neither

identified any nor suggested that they will be more inconvenienced by trying the case in Alabama than in

North Carolina. 

While the possibility of a view is a relevant consideration “if [a] view would be appropriate to

the action,”2 the defendant has identified no case affording significant independent weight to the

possibility of a view. In each of the cases cited by the defendant in which such a possibility was relied

on as favoring transfer, both the convenience of witnesses and several other factors had already been

judged to support transfer. The defendant’s unexplained insistence that a view “will likely [be]

require[d],” (Doc. 19 at 11), suggests hyperbole and does not transform this into a significant factor;

cases involving defective equipment are routinely decided without a view of the equipment, and the

defendant has not articulated how this case is exceptional in that regard. See Marbury-Patillo

Construction Co. v. Bayside Warehouse Co., 490 F.2d 155, 158 (5th Cir. 1974)(discounting a

defendant’s representation that “it may be invaluable for the jury to make a physical inspection,” when

no “supporting reasons [were] assigned”).

The defendant next notes that an unquantified but “substantial portion of [its] documents

Case 1:05-cv-00326-WS-B Document 30 Filed 11/10/05 Page 3 of 5
3Problems with installation included lateness, failure to install the control panel, and damage to

the strapper machine. (James Declaration, ¶¶ 5-6). Problems with design and/or manufacture included

failure to meet the rated capacity of 18 cycles per minute, and it was this failure that required retrofitting

by the Canadian contractor. (Id., ¶¶ 5, 7). James declares that the failure to meet rated capacity was

“discovered” in North Carolina, (id., ¶ 5), but neither his declaration nor the defendant’s counterclaim

alleges that the failure did not exist prior to delivery. On the contrary, the defendant denies that the

System passed the pre-delivery tests conducted in Alabama. (Doc. 4 at 5, ¶ 27; Doc. 6 at 3, ¶ 27). 

-4-

relevant to this case” are located in Charlotte, North Carolina. (Doc. 19 at 10). This may be so, but

Charlotte is not in the Eastern District of North Carolina, and the defendant has not explained how,

given that it will have to transport documents to any trial venue, this factor favors transfer. Moreover,

the plaintiff has documents relevant to the case that are located in this forum. (Williamson Affidavit, ¶

11). Finally, “[e]asy air transportation, the rapid transmission of documents, and the abundance of law

firms with nationwide practices, make it easy these days for cases to be litigated with little extra burden

in any of the major metropolitan areas.” Board of Trustees v. Elite Erectors, Inc., 212 F.3d 1031,

1037 (7th Cir. 2000); see also Scheidt v. Klein, 956 F.2d 963, 966 (10th Cir. 1992) (the defendant

failed to show that its documents “could not be sifted through (at his Florida offices) and the probative

ones shipped at relatively minor cost to Oklahoma for trial”).

The defendant also stresses “the location of the operative facts,” which it describes as: the

installation of the System, including the damage to the strapper machine; the discovery of the System’s

nonconformity to the contract; and the retrofit of the System by a British Columbian company — all of

which occurred in North Carolina. (Doc. 19 at 11). As with its cases concerning view, the

defendant’s cases considering the location of the operative facts all had previously found that the

convenience of witnesses favored transfer. 

At any rate, while some “operative facts” may have arisen in North Carolina, others arose in

Alabama. The defendant’s own filings reflect that the primary failing of the plaintiff was not its

installation of the System but its design and/or manufacture of the System — which occurred in

Alabama.3 The same observation disposes of the defendant’s argument that a plaintiff’s chosen forum

is not entitled to great weight “where the cause of action bears little relation to” that forum. (Doc. 19 at

Case 1:05-cv-00326-WS-B Document 30 Filed 11/10/05 Page 4 of 5
4

In fact, most of the cases cited by the defendant support only the proposition that, when

neither the cause of action nor the plaintiff is connected with the forum, the plaintiff’s choice of forum

will be afforded less deference. Because the plaintiff brought suit in its own forum, these cases are

inapposite regardless of the connection between the parties’ claims and Alabama. The few cases cited

by the defendant that reduced the deference to the plaintiff’s choice of forum on a simple showing that

the forum was unconnected to the cause of action involved situations in which the convenience of the

witnesses weighed heavily in favor of transfer and/or in which there was literally no connection between

the lawsuit and the forum — circumstances absent here.

-5-

15).4

Next, the defendant argues that North Carolina governs the parties’ claims, providing a “strong

reason” to transfer the case there. (Doc. 19 at 13). Assuming without deciding that North Carolina

does in fact control, the defendant acknowledges that this factor is significant only when the forum court

would have to “untangle the problems” in the foreign state’s law. (Id.). The parties’ claims sound in

contract and negligence, and the defendant has identified no thorny issue of North Carolina law in these

fairly straightforward areas that this Court will be called upon to decide. 

Finally, the defendant asserts that the citizens of North Carolina “have a great interest in

deciding this dispute because the injuries were sustained in North Carolina.” (Doc. 29 at 8). That may

be so from the defendant’s perspective, but the citizens of Alabama presumably have a similar interest

in deciding this dispute because the injury to the plaintiff — nonpayment on a contract — occurred in

Alabama. Moreover, that the plaintiff is an Alabama corporation while the defendant is not a North

Carolina corporation suggests, if anything, that Alabama’s interest in the litigation outweighs that of

North Carolina.

CONCLUSION

For the reasons set forth above, the defendant’s motion to transfer is denied.

DONE and ORDERED this 10th day of November, 2005.

s/ WILLIAM H. STEELE

UNITED STATES DISTRICT JUDGE

Case 1:05-cv-00326-WS-B Document 30 Filed 11/10/05 Page 5 of 5