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Maniilaq Association v. International Disaster Services

April 23, 2010

MANIILAQ ASSOCIATION, PLAINTIFF,
v.
INTERNATIONAL DISASTER SERVICES, LLC, DEFENDANT.



The opinion of the court was delivered by: John W. Sedwick United States District Judge

ORDER AND OPINION

[Re: Motion at Docket 5]

I. MOTION PRESENTED

At docket 5, defendant International Disaster Services, LLC moves this court for an order dismissing this action for improper venue pursuant to 28 U.S.C. § 1406(a) or, in the alternative, to change the venue of this proceeding from Alaska to the Middle District of Georgia pursuant to 28 U.S.C. § 1404(a). IDS also claims that service of Maniilaq's summons and complaint was ineffective.*fn1 At docket 15, plaintiff Maniilaq Association opposes the motion. IDS replies at docket 19. Oral argument was not requested, and would not assist the court.

II. BACKGROUND

Maniilaq, a non-profit Alaska corporation, provides health care and other services in and around Northwest Alaska, with headquarters in Kotzebue, Alaska.*fn2 IDS is a limited liability company, which builds and sells modular units and building complexes, with its principal place of business in Macon, Georgia.*fn3 On or about June 10, 2009, Maniilaq entered into a contract with IDS for the construction of a 38-suite apartment building in Kotzebue, Alaska.*fn4 On or about July 30, 2009, Maniilaq entered into a second contract with IDS for the construction of a five-unit medical clinic building in Kivalina, Alaska.*fn5 Both contracts were negotiated by e-mail and telephone, but they were executed by Maniilaq in its Kotzebue offices.*fn6 Both contracts specifically state that "[t]his agreement shall be governed by the laws of Georgia," although neither contract dictates that disputes would be resolved in Georgia courts or otherwise contains a forum selection clause.*fn7 Maniilaq alleges generally that IDS has failed to perform its construction obligations under either contract, and has failed to provide adequate assurances to Maniilaq that it would complete the work on the Kotzebue apartment building or the Kivalina clinic.*fn8

The pending motion requires the court to determine whether Alaska is an improper forum requiring dismissal or, in the alternative, whether the interests of justice require a transfer to the Middle District of Georgia. IDS argues that, because the parties selected Georgia law to govern their contracts, Georgia is the proper forum for resolution of their dispute.*fn9 Indeed, IDS claims that it was the intention of the parties to litigate any disputes in Georgia, citing the affidavit of its president, Michael Garrison, who states that Maniilaq was advised that the contract would have to be enforceable in Georgia and that recourse for disputes would be resolved in Georgia courts."*fn10 In any event, IDS argues that a discretionary change of venue is appropriate because all of the potential witnesses who could speak to the assembly, shipment, and installation of IDS's product are located in Georgia.*fn11 Maniilaq responds that, because the agreement contains no forum selection clause, IDS is prohibited under the parol evidence rule from arguing about the parties' understanding regarding forum selection.*fn12 Moreover, Maniilaq argues that most of the events giving rise to the parties' dispute took place in Alaska, and many of its witnesses - which outnumber IDS's witnesses - are located in Alaska.*fn13 The court considers the parties' arguments below.

III. DISCUSSION

Because the parties appear to agree that this court has specific personal jurisdiction over IDS,*fn14 the court analyzes Maniilaq's motion to transfer venue under § 1404(a).*fn15 Section 1404(a) provides that "[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 Ninth Circuit's decision in Jones v. GNC Franchising, Inc. provides the relevant analysis.*fn16 "Under § 1404(a), the district court has discretion to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness."*fn17 "A motion to transfer venue under § 1404(a) requires the court to weigh multiple factors in its determination whether transfer is appropriate in a particular case."*fn18 For example, the court may consider:

(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.*fn19

"Additionally, the presence of a forum selection clause is a 'significant factor' in the court's § 1404(a) analysis," as well as "the relevant public policy of the forum state."*fn20

Location of Negotiation and Execution. The parties negotiated and executed the two contracts over the telephone and via e-mail from their respective offices in Alaska and Georgia. Therefore, this factor does not favor one venue over another.

Governing Law. Both contracts state that any disputes should be resolved according to Georgia law, and the parties agree that Georgia law applies to the substantive issues. Maniilaq argues that because the contracts "incorporate Alaska building codes, and provide that national and international uniform building standards apply,"*fn21 this factor should favor venue in Alaska. The court disagrees. Because the choice of law provision calls for Georgia law to apply, and because Georgia law will apply to most of the legal issues in the case,*fn22 the court concludes that a Georgia court will be better suited to adjudicating Maniilaq's claims. The court is also confident that a Georgia federal court will be perfectly able to address Alaska building codes and Arctic climatic conditions, should those issues arise. Thus, this factor weighs in favor of venue transfer to the Middle District of Georgia.

Plaintiff's Choice of Forum. Ordinarily, "great weight" is accorded to the plaintiff's choice of forum.*fn23 Maniilaq claims that its selection of Nome was made in good faith, while IDS claims that Maniilaq's decision ignored the parties' mutual understanding that any disputes would be litigated in Georgia. Maniilaq argues that, under Georgia's parol evidence statute, IDS's statement of understanding "is inadmissible to add to, take from, or vary a written contract" in the absence of a contractual ambiguity.*fn24 "[I]f there is an ambiguity, latent or patent, it may be explained; so, if only part of a ...


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