1

 To the best determination of the Court at this juncture of the case and upon the

representations made by Plaintiff, the Floragon Companies are a conglomeration of about six (6)

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

LINDA PEACOCK )

)

Plaintiff, )

)

v. ) Civil Action No. 05-377-BH-C

)

BURNEY H. MERRILL, et al. )

)

Defendants. )

ORDER

This matter is before the Court on Defendants’ Motion (Doc. 8) to Dismiss Plaintiff’s Complaint

for Lack of In Personam Jurisdiction and Improper Venue or, in the alternative, for Transfer of Venue.

Plaintiff hasfiled a Response (Doc. 14) to Defendants’ Motionand Defendants, inturn, filed a Reply (Doc.

18). The Court hasreviewed the parties’ pleadings and all evidence submitted therewith. The Court finds

that Defendants’ Motionto Dismissis due to be DENIED IN PART and GRANTED IN PART and

the Motion to Transfer Venue is due to be DENIED. 

RELEVANT FACTS

On June 24, 2005 Plaintiff Peacock commenced this action by filing her Complaint against

DefendantsBurneyH. Merrill,J.CollierMerrill, Willis C. Merrill(hereinafter, “Merrills”),Lawrence Schill,

and Lawrence Schill, P.A. (Compl., Doc. 1). Plaintiff has alleged claims ofConversion, Interference with

Business Relationships, Breach of Fiduciary Duties, Conspiracy and seeks Declaratory Judgment as the

ownership of a fifteen percent (15%) interest in the Floragon Companies.1 Id. 

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 1 of 15
corporations formed either in Florida or Oregon. These corporations are seemingly being held and

governed as a group by several shareholders and members including the Merrills. 

2

 The dispute regarding this transaction and Uter’s actions surrounding it are at issue in another

case before this Court, now styled Peacock v. Uter, et al. 04-cv-279-BH-C. 

PlaintiffallegesthatonMarch20, 2002 she entered into anagreement withherex-husband,Marion

Uter, whereby Uter agreed to sell and convey to her a 15% interest in the Floragon Companies in

considerationfor $100,000. Id. at ¶38. Though Peacock paid the requisite amount for the bargained for

interest, Uter allegedly breached the contract by, among other actions, failing to cause the Floragon

Companies to issue Peacock the certificates representing her purchased interest.2 Id. at ¶39-40. 

Plaintiff’s allegations against Defendantsinthis action, however,stem from Uter’s subsequent sale

ofthatsame 15% to the Merrills in May, 2003. Id. at 44. Peacock asserts that Defendant Burney Merrill,

acting individually and as the agent and representative of Willis Merrill and J. Collier Merrill, and Schill,

acting as the agent, representative, and attorney for the Merrills, went to Peacock’s home in Baldwin

County, Alabama for the purpose of purchasing Peacock’s interestsinthe FloragonCompanies. Id. at ¶

13. While there, Defendants supposedly sought Peacock to execute a document providing for Peacock’s

conveyance, transfer and assignment ofherinterest inthe FloragonCompaniesto the Merrills. Id. at ¶14.

Peacock refused to sign the document. Id.

Subsequently, it is alleged, Uter, the Merrills and Schill conspired to dispossess Peacock of her

interest in the FloragonCompanies despite herrefusal. Id. at ¶49. Plaintiff submits that Defendants’ visit

to her home in May 2003 demonstrates their knowledge of her ownership of the interests and that they

nevertheless entered into a transaction to purchase the same stock from Uter without her consent. (Pl.’s

Br. Opp. Mot. Dismiss, Doc. 14, p. 20). In addition to the claim of Conspiracy, Peacock seeks

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 2 of 15
3

 An evidentiary hearing on a motion to dismiss for lack of personal jurisdiction is discretionary

but not mandatory. Coastal Builders, Inc. v. Ficon Fabricators, Inc., 2005 WL 1005135 (S.D.

Ala.)(citing Madera v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)).

declaratory judgment as to her proper ownership of the 15% interest conveyed to her by Uter and

contends that Defendants are liable for Conversion of said interests, Interference with her Business

Relationships with the Floragon Companies and Breach of Fiduciary Duties by the Merrills as Directors,

Officers and/or Managers of the Floragon Companies. (Compl.). 

Defendants, however, contend that this matter is due to be dismissed asthis Court lacks personal

jurisdiction over them and because venue in this forum is improper. In the alternative, they argue, this

matter should be transferred to the NorthernDistrict of Florida. (Defs. Br. Supp. Mot. Dismiss, Doc. 9,

p. 1). 

LEGAL ANALYSIS

I. Personal Jurisdiction

A. Procedure

In the instant case, the parties have not requested an evidentiary hearing.3 Therefore, the plaintiff

must only demonstrate a prima facie case of personal jurisdiction. Abramson v. Walt Disney Co., 132

Fed.Appx. 273, 275 (11th Cir. 2005)(citing Madera v. Hall, 916 F.2d 1510, 1514 (11th Cir. 1990)).

Such a burden is satisfied “if the plaintiff presents enough evidence to withstand a motion for directed

verdict.” Meier ex rel. Meier v. Sun Int’l. Hotels, Ltd., 288 F.3d 1264, 1269 (11th Cir. 2002)(citing

Madera, 946 F.2d at 1514). In examining whether this burden has been satisfied, the Court must accept

all uncontroverted allegations by the plaintiff as true. Abramson, 132 Fed.Appx. at 275. Further, if any

assertions are challenged, the Court must construe all reasonable inferences in favor of the plaintiff. Id. 

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 3 of 15
Analysis ofwhetherthe Court has personal jurisdiction over the non-resident defendants turns on

a two-prong test. Abramson, 132 Fed.Appx. at 275. Only if both prongs are satisfied, may the Court

assert jurisdiction. Id.

1. Alabama’s Long-Arm Statute

First, the Court looksto whetherthe forumstate’slong-armstatuteprovidesabasisforjurisdiction.

Id. Alabama’s long-arm statute provides the state courts withauthorityto assert jurisdiction to the extent

that due process under the state and federal constitutions allow. Ex parte Fidelity Bank, 893 So.2d

1116, 1121 (Ala. 2004); accord Ala.R.Civ.P. 4.2(a)(2)(I); Ruiz de Molina v. Merritt & Furman Ins.

Agency, Inc., 207 F.3d 1351, 1355-56. The Alabama Constitution’s due process guarantee is

coextensive withthat ofthe United States Constitution. Ex parteGeorgia Farm Bureau Mut.Auto. Ins.

Co., 889 So.2d 545, 550 (Ala. 2004). Therefore, the Court turns to the second prong of whether the

requirements for personal jurisdiction under the Due Process Clause of the Fourteenth Amendment have

been satisfied. See, e.g., Morris v. SSE, Inc., 843 F.2d 489, 492 n.3 (11th Cir. 1988). 

2. Due Process Under the Fourteenth Amendment

It is well established that in order for a court to have personal jurisdiction over a nonresident

defendant, that defendant must have “certain minimum contacts with the forum such that the maintenance

of the suit does not offend traditional notions of fair play and substantial justice.” McGow v. McCurry,

412 F.3d 1207, 1214 (11thCir. 2005); Helicopteros Nacionales de Colombia, S.A. v. Hall, 466 U.S.

408, 414 (1984)(citing International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945)). A two-part

analysis is again utilized indeterminingwhether personaljurisdictioncomports with due process. Lawson

Cattle Equip., Inc. v. Pasture, 2005 WL 1189631 (11th Cir. 2005). Initially, it is the plaintiff’s burden

to establish such minimum contacts, however, once established, the burden then shifts to defendant to

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 4 of 15
demonstrate that the exercise of jurisdiction would offend traditional notions of fair play and substantial

justice. Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476-77 (1985); Ruiz de Molina, 207 F.3d at

1358. 

a. Minimum Contacts

Though Plaintiff must show Defendants had the requisite minimum contacts with the forum, the

“nature and qualityofthese contacts... varydependinguponwhetherthe type ofpersonaljurisdictionbeing

asserted isspecific or general.” Consolidated Dev. Corp. v. Sherrit, Inc., 216 F.3d 1286, 1291 (11th

Cir. 2000).

(1) General Jurisdiction

Though Plaintiff submits that Defendants are also subject to specific personal jurisdiction by this

Court, we first address their assertion ofgeneraljurisdiction. General jurisdiction arises from defendants’

contactsina forumthat are unrelated to the cause of actionbeing litigated. Consolidated Dev.Corp., 216

F.3d at 1292. As the Eleventh Circuit has noted, the requirements for satisfying general jurisdiction are

more stringent thanthose ofspecific jurisdiction as continuous and systematic contacts withthe forumstate

must be shown. Id. However, in the instant case, the Court believes that a finding of general personal

jurisdiction over defendants is apt. 

Defendants claim that their activities are simply not significant or “systematic and continuous”

enough to warrant personal jurisdiction over them in this forum. (Defs. Mem. Supp. Mot. Dismiss, Doc.

9-1, p.13). They also assert that the “fiduciary shield doctrine” further precludes personal jurisdiction.

(Defs. Reply, Doc. 18, p. 16). The Court disagrees. First, Defendants misapply the fiduciary shield

doctrine. “The ‘fiduciary shield’ doctrine provides that personal jurisdiction over a corporate agent or

employee cannot be based on the jurisdiction over the corporation for which the fiduciary acts when the

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 5 of 15
4

 The Court relies on Plaintiff’s Exhibits (Doc. 12) evidencing the corporate details of Crystal

Shores, LLC (Doc. 12-2, p. 29-30); Crystal Shores Owner’s Association, LLC (Doc. 12-3, p. 85);

Crystal Shores West, LLC (Doc. 12-4 at 87); Crystal Tower, LLC (Doc. 12-4 at 88); Fort Morgan I,

LLC (Doc. 12-7 at 285); and West Beach Properties, LLC (Doc. 12-7 at 286).

fiduciary’s activitiesinthe forumstate were conducted solely as anagent or employee of the corporation.”

Sonja Larson, J.D., Annotation, Validity, Construction, Application of “Fiduciary Shield” Doctrine -

Modern Cases, 79 A.L.R.5th 587 §2(a) (2005). In the instant case, the basis for asserting general

personal jurisdiction over the Merrills does not stem from their actions as fiduciaries of their Alabama

corporations. Rather, the Court finds jurisdiction is proper over the Merrills because their actions as

individuals within the statedemonstratesapurposefulavailmenttothe policies and procedures ofthisforum.

As Peacock has demonstrated, without refute from Defendants, the Merrills have established at

least six (6) different limited liability corporations within Alabama since 2002.4 The Merrills set up each

of these corporations as individuals, rather than through one of their corporations, and serve as their sole

members. Each of these corporations has their principal place of business in Gulf Shores, Alabama and

each is registered with the Alabama Secretary of State. The Court finds that the Merrills’ actions of

establishing these Alabama corporations over the past 3 years to do business in the state of Alabama is

sufficient to demonstrate systematic and continuous contacts within the forum to support personal

jurisdiction over them. 

The Court further finds that it has personal jurisdiction over the defendant corporation Lawrence

Schill, P.A., as well. Lawrence Schill, P.A. undisputedlymaintains anoffice inGulfShores, Alabama and

conducts business, at least inthe wayof establishing the Merrills’ aforementioned corporations and serving

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 6 of 15
5

 Plaintiff’s exhibits from the Alabama Secretary of State indicate that the corporations in

question list Lawrence Schill, rather than Lawrence Schill, P.A., as the registered agent. However,

Schill seems to be serving as the registered agent for these corporations in his capacity as an

agent/representative of Lawrence Schill, P.A., not in an individual capacity.

as their registered agent, within the forum.5 Such contact with the forum is sufficient to assert personal

jurisdiction.

The Court, however, declines to assert general personal jurisdiction over Lawrence Schill as an

individual. Schill’s only contacts withAlabama are as an agent of his law practice, Lawrence Schill, P.A.

Under Alabama law, “[a] corporation is a legal entity that exists separate from its shareholders, and its

actions and obligations are to be considered separately from those of its shareholders.” Shelton v.

Clements,834So.2d 775,781(Ala.Civ.App. 2002). The purpose of the corporate structure is to protect

corporate officers and shareholder’s from liability arising from operationofthe corporation. Id. “Piercing

the corporate veil” to hold a individual corporate shareholder liable is a power that should be not be

exercised lightly by the courts. Id. Though Schill is the sole shareholder and president ofLawrence Schill

P.A., this alone does not automatically destroy the corporate entity. Id. Rather, in order to hold Schill,

as an individual, liable, Plaintiff must show, 

where a corporation is set up as a subterfuge, where shareholders do not observe the

corporate form, where the legal requirements of corporate law are not complied with,

where the corporation maintains no corporate records, where the corporation maintains

no corporate bank account, where the corporation has no employees, where corporate

and personalfunds are intermingled and corporate funds are used for personal purposes,

or where an individual drains funds from the corporation.

Econ Marketing, Inc. v. Leisure American Resorts, Inc., 664 So.2d 869, 870 (Ala. 1994). 

Inthe instant case, Plaintiff has notsubmitted anygroundsbeyond Schill’s positionofpresident and

sole shareholder to support a piercing of the corporate veil. Therefore, the Court declines to do so. 

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 7 of 15
(2) Specific Jurisdiction

Peacock also assertsthat Defendants are subject to specific personaljurisdictionwithin thisforum.

“Specific jurisdiction arises out of a party’s activities in the forum that are related to the cause of action

alleged in the complaint.” Consolidated Dev. Corp., 216 F.3d at 1291. It must be shown that

Defendants purposefully availed themselves “ofthe privilege of conducting activities within the forumState,

thus invoking the benefits and protections of its laws.” Id. The “purposeful availment” standard prevents

personaljurisdictionbased on“random” or “fortuitous”contacts. Burger King, 471 U.S. at 475. Rather,

defendants must have “deliberately ... engaged in significant activities within a State.” Id. at 475-76.

Defendants’ presence in this forum certainly was not random or fortuitous. Defendants purposefully and

uninvited met with Peacock in May 2003 at her Alabama home to obtain a transfer of her interestsin the

Floragon Companies. However, Defendants’ attempt at obtaining the interests from Peacock was

rebuffed. It is alleged that the meetingwithPeacock serves both as an acknowledgment of her ownership

of the interest as well asthe impetus for Defendantsseeking to obtain the interestsfrom Marion Uter. The

Court finds that Defendants’ actions within this forum are significant and so integrally intertwined with

Peacock’s cause of action that Defendants can reasonably anticipate being hailed into court here.

Again, as stated in our examination of general personal jurisdiction, Lawrence Schill, as an

individual, is not subject to specific personal jurisdiction. Though he came to Alabama with the Merrills

to meet with Peacock, he did so in his role as an attorney for Lawrence Schill, P.A. Because he is not

subject to jurisdictionbased onhis actions onbehalf ofhis corporation, the Court findsthat itdoes not have

either general or specific personal jurisdiction over Lawrence Schill, as an individual. Therefore

Defendants’ Motion to Dismiss for Lack of Personal Jurisdiction as it applies to Plaintiff’s claims against

Lawrence Schill, an individual, is due to be GRANTED. 

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 8 of 15
b. Notions of Fair Play and Substantial Justice

Since the Court has found that Plaintiff has demonstrated continuous and systematic contacts to

support personaljurisdiction, the burdenshiftsto Defendantstodemonstratea “compellingcase”thatsuch

jurisdiction offends traditional notions of fair play and substantial justice. Burger King Corp. v.

Rudzewicz, 471 U.S. at 476-77 (1985); Ruiz de Molina, 207 F.3d at 1358. The Eleventh Circuit has

held that courts are to look at the following factors in making this determination:

(a) the burden on the defendant, (b)the forumState’sinterest in adjudicating the dispute,

(c) the plaintiff’sinterest inobtaining convenient and effective relief(d)the interstatejudicial

system’s interest in obtaining the most efficient resolution of controversies, and (e) the

shared interest of the several States in furthering fundamental substantive social policies.

McGow, 412 F.3d at 1216 (citing Meier, 288 F.3d at 1276).

Upon examining these factors, Defendants have not shown, in a compelling manner, that this

Court’s personal jurisdiction over them offends traditional notions offair playand substantialjustice. The

Court does not find that jurisdiction by this Court places a great burden on Defendants. All of the

Defendantsregularlyconduct business within this district. Though litigating outside of one’s home state may

be inconvenient, “modern methods of transportation and communication have lessened the burden of

defending a suit in a foreign jurisdiction.” Mutual Serv. Ins. Co. v. Frit Indus., Inc., 358 F.3d 1312,

1320 (11th Cir. 2004); See also McGee v. International Life Ins. Co., 355 U.S. 220, 223 (1957).

Furthermore, asthe Court will later address, Plaintiff is an Alabama resident and this forum best provides

her with convenient and effective relief. Finally, though, the Court finds that the interstate judicial system

has an interest in this matter being adjudicated before this court. As we have already mentioned, Plaintiff

is involved in another case before the Court regarding her ex-husband, Marion Uter. Included as claims

inher case against Uter are Peacock’s allegations of wrongdoing stemming from the sale of the Floragon

interests at issue in this matter. In addition, in the instant case, Peacock asserts that Uter and Defendants

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 9 of 15
conspired indispossessing herthe interests. In promotion of judicial economy and consistency, the Court

findsthat the interstate judicialsystemhas a genuine interest inseeingthatbothcases are adjudicated before

this court. 

The Court finds, therefore, that Plaintiff has met her burden of demonstrating that Defendants

Lawrence Schill, P.A. and the Merrills have constitutionally sufficient minimum contacts with Alabama.

These Defendants, on the other hand, have not satisfied their burden of presenting a compelling case that

this court’sexercise ofpersonaljurisdictionoverthemwould offend traditionalnotions ofsubstantialjustice

and fair play. The Court also finds that it has not beenestablished that Lawrence Schill, an individual, has

such sufficient contacts so that this Court may assert personal jurisdiction over him. Defendants’ Motion

(Doc. 8) for Lack of In Personam Jurisdictionis due to be DENIED IN PART and GRANTED IN

PART. 

II. Venue

A. Dismiss

Since the Merrills and Lawrence Schill, P.A. are subject to personal jurisdiction, the Court

examines their alternative argument that this matter should be dismissed for improper venue. Pursuant to

federal statute, venue is proper, 

in (1) a judicial district where any defendant resides, if all defendants reside in the same

State, (2) a judicial district inwhicha substantialpart ofthe events or omissions giving rise

to the claim occurred ... or (3) a judicial district in which any defendant is subject to

personal jurisdiction at the time the action is commenced, if there is not a district in which

the action may otherwise be brought.

28 U.S.C. §1391(a).

In the instant case, Plaintiff contends that venue is proper in this court because a substantial part

of the events givingrise to the claimoccurred within thisfederaldistrict. In examining this particular clause

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 10 of 15
of the venue statute, the Eleventh Circuit has held, “[o]nly the events that directly give rise to a claim are

relevant. And of the places where the events have takenplace, only those locations hosting a “substantial

part” of the events are to be considered.” Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11thCir.

2003). Furthermore, “the statute protects defendants, and Congresstherefore meant to require courts to

focus onrelevant activities of the defendant, not ofthe plaintiff.” Id. at 1371-72 (citingWoodke v. Dahm,

70 F.3d 983 (8th Cir. 1995))(internal quotations omitted). 

It isstillunclear asto where the allegedly tortious act of the transfer of the stock actually occurred.

However, this Court gives great weight to Defendants’ “visit”withPlaintiffinAlabama as a substantialpart

ofthe events givingrise to her claims. Defendants claim that traveling to Alabama in May2003 to discuss

Peacock transferring her shares of Floragon to them was not tortious, therefore could not be considered

a substantial part of her claims. The Eleventh Circuit’s standard, however, is not the wrongfulness of the

act, rather, whether “those acts and omissions ... have a close nexus to the wrong ... .” Bremer, 321 F.3d

at 1372. 

In Bremer the Circuit Court analyzed the Eighth Circuit’s holding in Woodke and agreed that the

defendant’s manufacturing of trailers did not give rise to the claim because the act of manufacturing itself

was not wrongful. 321 F.3d at 1372 (citing Woodke, 70 F.3d at 986). This, however, does not

unequivocally indicate thatsimplybecauseanact is not inand ofitselftortious, the act cannot be considered

a substantialpart ofthe plaintiff’s claims. This Court, rather, looks to whether or not the acts, wrongful or

not, had a close nexus to the asserted torts. Bremer, 321 F.3d at 1372. In Woodke, the Eighth Circuit

found that the manufacturing of trailers was not significantly related to plaintiff’s claims of trademark

infringement because it was only necessaryto the alleged wrong ina causal sense. 70 F.3d at 986. In the

instant case, this Court finds that Defendants’ foray into Alabama has a much closer nexus to the alleged

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 11 of 15
wrong than was evident in Woodke. It is undisputed that Defendants attempted to procure Peacock’s

endorsement for a transfer of her Floragon stock interests to them. Though this action is not unlawful, it

does establishthat Defendants were aware of her possession of the stock. This knowledge is closely tied

to Peacock’s claims that Defendantslaterintentionally and knowingly dispossessed her of those interests.

Furthermore, Peacock also asserts that her refusal to permit such transfer to Defendants at that time was

the impetus for their subsequent tortious conduct. The Court findsthat Peacock has alleged a sufficiently

close nexus between Defendants’ venture into Alabama in May 2003 and the claims asserted in her

complaint. Therefore, under 28 U.S.C. §1391(a)(2), a substantial part of the events giving rise to Plaintiff’s

claims occurred in this federal district. Defendants Motion to Dismiss for improper venue is due to be

DENIED.

B. Transfer

Defendants also seek the Court to transferthis matterto the Northern District of Florida pursuant

to 28 U.S.C. §1404. The statute permits transfer of a case to any district where it may have been brought,

forthe convenience of parties and witnesses or in the interest of justice. Traditionally, federalcourts have

given great deference to a plaintiff’s choice of forum, particularly if it is the forum in which the plaintiff

resides. Robinson v. Giarmarco & Bill, P.C., 74 F.3d 253, 260 (11thCir. 1996); In re Ricoh Corp.,

870 F.2d 570, 573 (11th Cir. 1989). Therefore, the burden is on defendants to demonstrate that their

suggested alternative forumis more convenient. Ricoh, 870 F.2d at 573. However, “[d]istrict courts have

broad discretion in deciding whether to transfer an action to a more convenient forum.” Folks v. Haley,

64 F.Supp.2d 1152, 1154 (M.D.Ala. 1999); Johnston v. Foster-Wheeler Constructors, Inc., 158

F.R.D. 496, 503 (M.D.Ala. 1994).

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 12 of 15
6

 Defendants seemingly do this in the hopes that they can demonstrate that neither the parties

nor the subject matter of the lawsuit have a connection to the present venue. Such a showing would

make it easier for them to “tip the balance of convenience strongly in [their] favor.” Owens v. Blue

Tree Corp., 177 F.R.D. 673, 679 (M.D.Ala. 1998). However, as the Court has already discussed,

we find that a substantial part of the events relating to the subject matter in this case have taken place in

this forum. See supra Part II.A.

7

 Peacock’s last declaration as part of her suit with Uter regarding her intent to remain an

Arizona resident occurred on October 8, 2004. 

Defendants contest that Alabama is not Peacock’s true place of residence.6 They cite that she is

considered by this Court as a resident of Arizona in her case against Marion Uter. However, citizenship

fordiversitypurposesis determined at the time the suit isfiled. MacGinnitie v. Hobbs Group, LLC, 2005

WL1922572, *2 (11th Cir. 2005)(citing Harris v. Garner, 216 F.3d 970, 983 (11thCir. 2000)). In her

action against her ex-husband, an Alabama citizen, Peacock asserted that she was a resident of Arizona

and the case was properly removed to this Court. However, the instant case was filed in this court more

than a year after Marion Uter filed his action against her.7 Though the Court determined in that case her

domicile at that time was Arizona, domicile is certainly not permanent. Once one’s domicile is established,

it canbe changed upona concurrent showing ofboth(1) physicalpresence at a newlocation, and (2) intent

to remain there indefinitely. McCormick v. Aderholt, 293 F.3d 1254, 1258 (11thCir. 2002). The intent

element “does notrequire that the persons have anaffirmative intent to remain permanently inthe state, but

merely that [theyhave] no present intent to move to another state.” Hicks v. Brophy, 839 F. Supp. 948,

950 (D. Conn. 1993).

SincePeacock’sprevious assertions inherlawsuit withUter,she has demonstrated botha physical

presence in Alabama as well as a intent to remain indefinitely. Peacock has sold her home in Arizona and

purchased two others in Alabama. At the time of filing her complaint, Peacock was solely a resident of

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 13 of 15
8

 Decisions of the former Fifth Circuit rendered prior to October 1, 1981, constitute binding

authority in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.

1981) (en banc).

Alabama withno physical presence inArizona and therefore could not have filed inany capacityotherthan

as a resident of Alabama. Furthermore, there has been no showing that she has a present intent to move

elsewhere. Therefore, at this point, the Court finds Peacock is a resident of the state of Alabama for

purposes of examining Defendants’ burden of showing convenience of forum. 

The Court also findsthat Defendants have submitted noevidence insupport oftheir contentionthat

the present forum is inconvenient. As the Court discussed inits consideration of jurisdictional matters, all

Defendants conduct business or have an office within the district. Though all are Florida residents, making

the NorthernDistrict ofFlorida a more convenient forumforthempersonally, Plaintiffis a Alabama resident

and transfer would “merely shift inconvenience ... .” Robinson, 74 F.3d at 260; See also Folks, 64

F.Supp.2d at 1154. The Court also looksto “the foruminwhich judicial resources could most efficiently

be utilized and the place in which the trial would be most ‘easy, expeditious and inexpensive.’” Howell v.

Tanner, 650 F.2d 610, 616 (5thCir. 1981)8(quoting Gulf OilCorp. v. Gilbert, 330 U.S. 501 (1947)).

Though not included inthissame case, Peacock’s claims against Uterregarding the Floragonstock interest

transactions are already before this Court. Keeping this matter in this forum will best utilize judicial

resources and prevent inconsistent rulings. Based on the broad discretion bestowed up on it, the Court

findsthat Defendants Motionto Transfer Venue to the NorthernDistrict ofFlorida is due to be DENIED.

CONCLUSION

Based on the above findings, the Court holds that Defendants’ Motion (Doc. 8) to Dismiss for

Lack ofIn Personam Jurisdiction, as it applies to Defendants Burney H. Merrill, J. Collier Merrill, Willis

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 14 of 15
C. Merrill, and Lawrence Schill, P.A., is hereby DENIED. However, the Court has determined that it

does lack personal jurisdiction over Defendant Lawrence Schill, as an individual, therefore this portion of

the Motion (Doc. 8) to Dismiss is hereby GRANTED. The remaining Defendants have alternatively

argued that this matter should be dismissed for improper venue. Based on the grounds already put forth,

the Court disagrees and the Motion (Doc. 8) is hereby DENIED. The Court also findsthat Defendants’

request to transfer venue to the Northern District of Florida is hereby DENIED. 

So ORDERED, this 14th day of September, 2005.

s/ W. B. Hand

SENIOR DISTRICT JUDGE

Case 1:05-cv-00377-KD-C Document 27 Filed 09/14/05 Page 15 of 15