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All Brands Distribution, LLC v. Vital Pharmaceuticals, Inc.

United States District Court, D. Kansas

October 8, 2019

ALL BRANDS DISTRIBUTION, LLC, Plaintiff,
v.
VITAL PHARMACEUTICALS, INC., Defendant.

          MEMORANDUM AND ORDER

          ERIC F. MELGREN, UNITED STATES DISTRICT JUDGE

         Plaintiff All Brands Distribution, LLC (“ABD”) brought this action alleging breach of contract and implied covenant of good faith and fair dealing, promissory estoppel, and unjust enrichment and quantum meruit against Defendant VPX Pharmaceuticals, Inc., d/b/a VPX Sports (“VPX”). Plaintiff designated Wichita, Kansas, as the place of trial. VPX moves to transfer venue for convenience to the United State District Court for the Southern District of Florida pursuant to 28 U.S.C. § 1404(a). For the following reasons, the Court denies Defendant's Motion to Transfer Pursuant to 28 U.S.C. § 1404(a) (Doc. 13).

         I. Factual and Procedural Background

         Plaintiff ABD is a beverage distribution company incorporated in Kansas with its principal place of business in Kansas. All employees of ABD reside and work in Kansas. Defendant VPX produces energy drinks and is incorporated under the laws of Florida with its principal place of business in Florida. In 2013, Joe Huntowski, VPX's Midwest Division Sales Manager, traveled to Wichita to initiate a distribution relationship with ABD. Throughout the alleged relationship, ABD distributed VPX products exclusively in Wichita as well as in various Kansas counties. During negotiations, VPX introduced a proposed Distribution Agreement containing a forum selection clause designating Broward County, Florida, as the proper venue to bring any disputes. The parties never executed the proposed Distribution Agreement. Rather, any agreements ABD alleges to have existed between the parties were either implied or oral.

         In 2018, VPX chose to end its relationship with ABD. ABD subsequently filed suit against VPX for breach of contract and implied covenant of good faith and fair dealing, promissory estoppel, and unjust enrichment and quantum meruit in the United States District Court for the District of Kansas. VPX now moves to transfer venue to the District of Southern Florida.

         II. Legal Standard

         Under 28 U.S.C.§ 1404(a), “[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.” The court considers the following factors in determining whether to grant a transfer: (1) the plaintiff's choice of forum, (2) the convenience of the witnesses, (3) the accessibility of witnesses and other sources of proof, (4) the enforceability of the judgment, (5) the possibility of obtaining a fair trial, (6) the difficulties that may arise from docket congestion, (7) questions arising from conflicts of laws, (8) the advantage of a local court deciding questions of local law, and (9) all other practical considerations that make a trial easy, expeditious, and economical.[1] The Court exercises broad discretion in determining whether to grant a motion to transfer and weighs each factor on a case-by-case basis.[2] The moving party bears the burden of proof to show that the facts weigh heavily in favor of transfer.[3] “ ʻ[U]nless the balance is strongly in favor of the movant the plaintiff's choice of forum should rarely be disturbed.' ”[4]“Merely shifting the inconvenience from one side to the other[ ] obviously is not a permissible justification for a change of venue.”[5]

         III. Analysis

         For the purposes of the present case, the Court considers the following issues: the plaintiff's choice of forum, the convenience and accessibility of witnesses and other evidence, the forum selection clause in the unexecuted Distribution Agreement, and problems that may arise from a congested docket. Applying these factors, the Court finds that the motion to transfer is unwarranted because the facts do not weigh so strongly in Defendant's favor that Plaintiff's choice of forum should be disturbed.

         A. Plaintiff's Choice of Forum

         In a motion to transfer analysis, the Court gives the plaintiff's choice of venue great weight.[6] Courts give less weight to plaintiff's choice of forum where the plaintiff or lawsuit have little relation to the chosen forum.[7] Here, both ABD and the lawsuit have significant relation to Kansas. Kansas is ABD's place of incorporation, principal place of business, and where most of the events giving rise to this suit occurred. Moreover, all of ABD's owners and employees reside and work in Kansas. The initial communication between the parties occurred in Kansas and ABD distributed VPX products exclusively in Kansas. Although ABD could have brought this case in Florida, ABD's choice to file in Kansas is also proper, and the Court gives it great weight. ABD's choice of forum weighs against transfer.

         B. Convenience and Accessibility of Witnesses and Other Evidence

         Witness convenience is the most important factor under a § 1404(a) analysis.[8] To establish inconvenience, “the movant must (1) identify the witnesses and their locations; (2) indicate the quality or materiality of their testimony; and (3) show that any such witnesses were unwilling to come to trial, that deposition testimony would be unsatisfactory, or that the use of compulsory process would be necessary.”[9]

         Here, VPX identifies material witnesses who either reside in Florida or frequently travel to Florida; however, VPX fails to demonstrate that any witnesses are unwilling to come to trial or that their deposition testimony would be unsatisfactory. “The fact that most witnesses live outside of Kansas does not weigh heavily when establishing that a forum is inconvenient in the modern age.”[10] VPX further argues that other evidence is located at the VPX headquarters in Florida and would be burdensome to transfer; however, ABD asserts that documentary evidence also exists in Wichita and identifies several material witnesses who reside and work in Kansas. By transferring the case, any inconvenience and expense avoided by VPX and its Florida witnesses would merely transfer to ABD and its Kansas witnesses. “Furthermore, modern ...


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