Virginia Lawyers Weekly VA Lawyers Weekly
Where the court previously denied the defendants’ motion to transfer the suit to New Jersey, and the defendants moved for reconsideration, their reconsideration motion was denied because it repeated arguments already made, or which should have been made, in their prior motion.
Background
In July 2022, Boxley Materials Company filed this case in the circuit court against Dobco Inc., a New Jersey corporation who was the general contractor for a construction project at Ramapo College of New Jersey; Liberty Mutual Insurance Company and Arch Insurance Company. The lawsuit alleged that Boxley “fully performed its obligations under the terms and conditions of the Credit Agreement and Purchase Order and has delivered the goods,” but has not been paid.
Defendants removed the case to this court based on diversity jurisdiction. They then filed their motion to transfer the case to the New Jersey federal district court. Boxley filed an untimely response, arguing the court should remand the case to the circuit court because of a venue and jurisdiction provision in the commercial credit application, or alternatively, deny the motion to transfer.
Before defendants submitted a rebuttal brief, the court denied their motion to transfer because defendants failed to meet their burden of showing that transfer was warranted. The court found that Boxley’s choice of venue provided substantial weight against transfer and that defendants “failed to proffer any factually disputed issue that would require the travel of more Defendants’ witnesses to Virginia, if the case was not transferred, than the travel of Plaintiff’s witnesses to New Jersey, if it is transferred.” The court also denied Boxley’s request to remand because it was untimely. Defendants have now filed a motion to reconsider.
Analysis
Defendants first argue they were deprived of an opportunity to rebut Boxley’s argument that the commercial credit application is controlling. However, defendants repeat the same arguments raised in their motion to transfer. Because the court already considered these arguments when deciding not to transfer the case, defendants were not adversely affected by being unable to respond to Boxley’s argument that the commercial credit application is controlling.
Next, defendants argue they were deprived of an opportunity to respond to Boxley’s description of the case and to explain the importance of non-party witnesses located in New Jersey. Specifically, defendants claim that if they had been able to submit a rebuttal brief, they would have detailed how New Jersey-located witnesses’ testimony would support their affirmative defenses and proof of damages.
In their motion for reconsideration, defendants provide a list of 22 potential entities and individuals located in New Jersey that conceivably could be called as witnesses but would be located outside the court’s subpoena power. However, defendants do not claim that this list of potential witnesses was unavailable, or not known to them, when they filed their motion to transfer.
These new arguments should have been presented in defendants’ motion to transfer. To show that witness inconvenience favors transferring the case, defendants reasonably should have known they had “‘the burden to proffer, by affidavit or otherwise, sufficient details respecting the witnesses and their potential testimony to enable the court to assess the materiality of evidence and the degree of inconvenience.’”
Despite this, defendants’ motion to transfer failed to proffer sufficient details or affidavits to support their witness inconvenience argument. In addition, defendants’ non-party witnesses being located outside of the court’s subpoena power does not create an injustice because defendants may depose these witnesses.
Defendants’ motion for reconsideration denied.
Boxley Materials Company v. Dobco Inc., Case No. 6:22-cv-51, Dec. 28, 2022. WDVA at Lynchburg (Moon). VLW 022-3-560. 7 pp.
