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Dutton v. Stifel Nicolaus & Company, Inc.

United States District Court, D. South Carolina, Florence Division

July 22, 2019

BRAD DUTTON, Plaintiff,


          R. Bryan Harwell Chief United States District Judge.

         This 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.

         Factual and Procedural Background

         This 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. ¶¶ 4-5.

         In 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. Id.

         On June 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, [1] 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.

         Based 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.

         On May 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.

         On May 28, 2019, Dutton filed the instant lawsuit against Stifel, T.D. Bank, N.A., [2] 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.[3] ECF No. 14.

         On June 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.

         Legal Standard

         “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 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)).

         A 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).”).

         In 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 ...

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