United States District Court, D. South Carolina, Florence Division
Bryan Harwell Chief United States District Judge.
matter is before the Court on Defendants Gordan C. Brydger
(“Brydger”), and Brydger & Porras, LLP, a/k/a
The Law Office of Sara J. Singer, P.A..'s (“Brydger
& Porras, ” and collectively with Brydger,
“Moving Defendants”) motion to dismiss under Rule
12(b)(2) of the Federal Rules of Civil Procedure and motion
to transfer venue pursuant to 28 U.S.C. § 1631, and
alternative motion to transfer venue pursuant to 28 U.S.C.
§ 1404(a). ECF No. 17. For the reasons set forth below,
the Court grants Moving Defendants' motion to transfer
the case under 28 U.S.C. § 1404(a). As a result, Moving
Defendants' motion to dismiss and motion to transfer
venue pursuant to 28 U.S.C. § 1631 are rendered moot.
and Procedural Background
case arises out of a dispute over attorneys' fees.
See, generally, ECF No. 1-1 at 3-8
(“Compl.”). Plaintiff Brad Dutton
(“Dutton”) is - and has been since 2014 - a
resident of South Carolina. Id. ¶ 1. Defendant
Stifel Nicolaus & Company, Inc. (“Stifel”) is
a Missouri corporation, id. ¶ 2, with offices
in, inter alia, Florida and South Carolina, ECF No.
17-1 at 2. Moving Defendants are residents of Florida. Compl.
July, 2016, Dutton entered an agreement with Brydger &
Porras for Brydger & Porras to represent Dutton in a
domestic relocation matter. Compl. ¶ 9; ECF No. 17-1 at
17-19. Under the terms of the agreement, Dutton agreed to pay
Brydger & Porras at hourly rates ranging from $150 per
hour for paralegals to $500 per hour for Brydger's work.
ECF No. 17-1 at 17. Dutton also agreed to pay Brydger &
Porras “for any and all of the ordinary and necessary
costs incurred while rendering services” to him under
the agreement. Id. The agreement provided for a
retainer of $25, 000 ($20, 000 to be applied to fees, and $5,
000 to be applied to costs, with $2, 500 of the retainer to
be maintained in trust and used towards the final bill).
Id. In the event Dutton failed to pay fees and costs
owed, the agreement indicated Brydger & Porras would
pursue action in the courts of Broward County, Florida, and
would be entitled to fees and costs associated with pursuing
the monies owed. Id. at 18. The agreement also
granted Brydger & Porras an interest in Dutton's real
and personal property within the jurisdiction of the court.
30, 2018, Brydger & Porras provided Dutton with a final
statement of account indicating Dutton owed $139, 445.39 for
services rendered. Id. at 20, 22. When Dutton failed
to pay the amount due, Brydger & Porras filed a lawsuit
against Dutton in the Circuit Court for Broward County,
Florida bringing causes of action for: 1) breach of contract,
and 2) account stated. Id. at 21-23. The summons,
complaint,  and exhibits were served on Dutton on
December 19, 2018. Id. at 36. When Dutton failed to
answer or respond to the complaint, Brydger & Porras
moved for default; that motion was likewise served on Dutton.
Id. at 34-35. The Clerk of Court of the Circuit
Court for Broward County, Florida entered a default against
Dutton on January 25, 2019. Id. at 40. On February
18, 2019, Brydger & Porras provided an affidavit as to
fees, costs, and amounts owing, id. at 37-39, 41; on
February 27, 2019, the Circuit Court entered a default final
money judgment against Dutton in the amount of $151, 464.59
as of Februrary 15, 2019, plus interest. Id. at
40-41. The Circuit Court reserved jurisdiction to enforce
said Order. Id. at 41.
upon their representation of Dutton, Brydger & Porras
knew Dutton had assets with, inter alia, Stifel.
See Id. at 24-33. Plaintiff avers he opened his
Stifel accounts in South Carolina, and they are maintained in
South Carolina. ECF No. 22-1 ¶ 3. Following entry of the
default final money judgment against Dutton, the Clerk of
Court for the Circuit Court of Broward County, Florida issued
a writ of garnishment dated April 2, 2019, as to Stifel. ECF
No. 17-1 at 47. The writ directed Stifel to serve an answer
on Brydger and file it with the Clerk of Court indicating
whether Stifel held any of Dutton's funds, and in what
amount. Id. at 47. The Clerk of Court noted that the
amount sought was $151, 464.59, plus interest. Id.
The writ was to be served on Stifel via its registered agent
in Plantation, Florida. I d . Stifel filed an answer
via its Florida attorney indicating it had an account in
Dutton's name and had frozen $160, 00 of funds in that
account to ensure the judgment and interest owing were paid.
Id. at 54-55. Brydger & Porras served a notice
of garnishment which included copies of the writ of
garnishment, Stifel's answer, and directions for
contesting the garnishment, on Dutton on April 11, 2019.
Id. at 45-53.
5, 2019, Dutton was notified of a hearing to be held on May
21, 2019, on Brydger & Porras's motion for final
judgment of garnishment. Id. at 56-58. After Dutton
failed to file any answer or otherwise contest the
garnishment, on May 21, 2019, the Circuit Court for Broward
County, Florida signed a final judgment of garnishment
ordering Stifel to pay $156, 140.27, which sum included
interest through May 28, 2019, from Dutton's funds to
Brydger & Porras. Id. at 59-60.
28, 2019, Dutton filed the instant lawsuit against Stifel,
T.D. Bank, N.A.,  Brydger, and Brydger & Porras in the
Court of Common Pleas for Florence County, South Carolina.
Compl. Dutton's complaint alleged Brydger and Brydger
& Porras failed to properly domesticate the foreign
Florida judgment in South Carolina, and failed to follow
South Carolina law regarding executing judgments, and T.D.
Bank, N.A. and Stifel had wrongfully frozen his accounts.
See, generally, id. Plaintiff brought
claims for: 1) injunction against all Defendants; 2)
conversion against all Defendants; 3) unfair trade practices
against Brydger and Brydger & Porras; and 4) breach of
fiduciary duty/negligence against Brydger and Brydger &
Porras. Id. Dutton also moved for a temporary
restraining order (“TRO”) prohibiting Stifel and
T.D. Bank, N.A. from disbursing Dutton's funds to
Brydger. ECF No. 1-1 at 9-19. The Florence County Court
issued a TRO the same day restraining T.D. Bank, N.A. and
Stifel from disbursing funds to Brydger or Brydger &
Porras; the TRO was due to expire ten days after issuance.
Id. at 20. On June 3, 2019, the Florence County
Court extended the TRO through June 10, 2019, which was the
first date the Court could hold a hearing on the TRO. ECF No.
5-1 at 1-2 On June 4, 2019, Stifel removed the case to this
Court. ECF No. 1. Dutton filed a motion to extend TRO, ECF
No. 5, and following a hearing on June 10, 2019, this Court
issued an Order granting the TRO as to Stifel, and ordering
Stifel to hold $160, 000 of Dutton's funds and not
disburse said funds to any party without further Order of the
Court. ECF No. 14.
20, 2019, Moving Defendants filed a motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(2) seeking dismissal of
Dutton's complaint as to them for lack of personal
jurisdiction. ECF No. 17. If the Court found it lacked
personal jurisdiction over Moving Defendants, they requested
transfer to the United States District Court for the Southern
District of Florida (“Southern District of
Florida”) under 28 U.S.C. § 1631. Id. In
the alternative, Moving Defendants sought transfer to the
Southern District of Florida under 28 U.S.C. § 1404(a).
Id. Dutton filed a response in opposition, ECF No.
22, to which Moving Defendants replied, ECF No. 23.
Accordingly, this matter is now ripe for decision.
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.” 28 U.S.C. § 1404(a). District
courts have wide discretion to transfer an action under
§ 1404(a) “to prevent the waste ‘of time,
energy and money' and ‘to protect litigants,
witnesses and the public against unnecessary inconvenience
and expense . . . .” Van Dusen v. Barrack, 376
U.S. 612, 616 (1964) (quoting Cont'l Grain Co. v. The
Barge FBL-585, 364 U.S. 19, 26-27 (1960)).
district court has the power to transfer venue under §
1404(a) even if it lacks personal jurisdiction over the
defendants in the action. Fort Knox Music Inc. v.
Baptiste, 257 F.3d 108, 112 (2nd Cir. 2001). However, a
district court must have subject matter jurisdiction over a
case to transfer the case under § 1404(a). See
Grimsley v. United Eng'rs & Constructors, Inc.,
818 F.Supp. 147, 148 (D.S.C. 1993) (“When the court
lacks subject matter jurisdiction, it does not have the power
to transfer pursuant to § 1404(a).”).
analyzing a motion to transfer venue under 28 U.S.C. §
1404(a), a district court must conduct a two-step analysis:
1) the district court must consider whether venue would be
proper in the proposed district; and 2) if the proposed venue
would be proper, the court must evaluate “whether
transfer is in the interest of justice and will serve the
convenience of the parties and witnesses.” United
States v. $78, 850.00 in U.S. Currency, 446 F.Supp.2d
428, 431 (D.S.C. 2006). This analysis involves an
“individualized, case-by-case consideration of
convenience and fairness . . . .” Van Dusen,
376 U.S. at 622. In making that individualized analysis,
courts in this Circuit look at: “(1) the weight
accorded to plaintiff's choice of venue; (2) witness