United States District Court, S.D. Mississippi, Eastern Division
MEMORANDUM OPINION AND ORDER
STARRETT, UNITED STATES DISTRICT JUDGE
reasons below, the Court denies the Motion
to Transfer Venue  filed by Mount Carmel Ministries and
Alpha Christian School.
an interpleader action concerning the proceeds of a judgment
previously entered by this Court. GuideOne Elite Insurance
Company filed a declaratory judgment action concerning its
obligations to Mount Carmel Ministries, Alpha Christian
School, and Seaway Bank and Trust Company - their mortgagee -
after a tornado caused heavy damage to insured property in
Hattiesburg, Mississippi. On December 3, 2015, the Court entered
a Final Judgment in favor of Mount Carmel, Alpha Christian
School, and Seaway in the amount of $1, 693, 035.31. Final
Judgment, Guideone Elite Ins. Co. v. Mount Carmel
Ministries, No. 2:13-CV-134-KS-MTP (S.D.Miss. Dec. 3,
2015), ECF No. 204. After the Court's judgment was
affirmed on appeal, GuideOne filed a Complaint for
Interpleader , and the Court granted  its request to
deposit the proceeds of the judgment into the registry of the
parties claim an interest in the insurance proceeds. First,
Mount Carmelclaims that it is entitled to direct
payment of the insurance proceeds. Second, State Bank of
Texas, successor-in-interest to Seaway, claims that it is
entitled to the insurance proceeds in partial satisfaction of
the deed of trust which secured the mortgage on the damaged
buildings. Finally, Jernigan Copeland Attorneys, PLLC, and
The May Law Firm, PLLC - counsel for Mount Carmel in the
insurance dispute - claim that their contingency fee must be
deducted from the insurance proceeds before any funds are
remitted to Mount Carmel or State Bank. Mount Carmel filed a
Motion to Transfer Venue , which the Court now addresses.
Carmel argues that the Court should enforce the
forum-selection clauses in the Seaway loan documents, and
that a transfer is appropriate under 28 U.S.C. §
State Bank argues that Mount Carmel's motion is untimely,
citing Rule 12(b). The rule provides that a “motion
asserting” the defense of improper venue “must be
made before pleading if a responsive pleading is
allowed.” Fed.R.Civ.P. 12(b). However, Mount Carmel did
not file a motion to dismiss for improper venue under Rule
12(b)(3). Instead, it filed a motion to transfer under 28
U.S.C. § 1404(a). “[A] party may seek a §
1404(a) transfer of venue after filing its first responsive
pleading.” Allen v. U.S. Dep't of Homeland
Sec., 514 F. App'x 421, 422 (5th Cir. 2013) (citing
14 Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 3829 (2012)); see also
Smith v. Kyphon, Inc., 578 F.Supp.2d 954, 957 (M.D.
Tenn. 2008) (defendants did not waive ability to bring a
motion under § 1404(a) by failing to assert defense of
improper venue in a Rule 12(b) motion). Mount Carmel's
motion was timely.
Section 1404(a) Analysis
courts “have broad discretion in deciding whether to
order a transfer” pursuant to 28 U.S.C. § 1404(a).
In re Volkswagen of Am., 545 F.3d 304, 311 (5th Cir.
2008). The statute provides: “For the convenience of
the 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).
first question under Section 1404(a) is whether the case
“might have been brought in the destination
venue.” In re Volkswagen of Am., 545 F.3d at
312. Interpleader cases under Rule 22 must meet the normal
venue requirements of 28 U.S.C. § 1391. Lummis v.
White, 629 F.2d 397, 400-01 (5th Cir. 1980),
rev'd on other grounds, 457 U.S. 85, 102 S.Ct.
2325, 72 L.Ed.2d 694 (1982). A civil action may be brought
(1) a judicial district in which any defendant resides, if
all defendants are residents of the State in which the
district is located;
(2) a judicial district in which a substantial part of the
events or omissions giving rise to the claim occurred, or a
substantial part of property that is the ...