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Filing# 160141040 E-Filed 10/27/2022 05:50:59 PM
IN THE CIRCUIT COURT OF THE SEVENTEETH JUDICIAL CIRCUIT
IN AND FOR BROWARD COUNTY, STATE OF FLORIDA
CIVIL DIVISION
CARMEN BATALLAN,
Plaintiff, Case No.: CACE22005385
VS.
MACY'S RETAIL HOLDING, LLC a
Foreign Limited LiabilityCompany, and
WESTFIELD PROPERTY MANAGEMENT, LLC,
A Foreign Limited LiabilityCompany.
Defendants.
i
DEFENDANTS' MOTION FOR CHANGE OF VENUE
Defendants, MACY'S RETAIL HOLDING, LLC ("Macy's") and WESTFIELD
PROPERTY MANAGEMENT, LLC ("Westfield"),and by and through their undersigned
counsel, hereby file this Motion for Change ofVenue pursuant to Section 47.122, Florida Statutes,
and state:
I. Introduction
1. This case arises out of an allegedtripand fall that occurred at Broward Mall, located
at 8000 W. Broward Blvd., Plantation,FL 33388, on May 14, 2021.
2. On April 12, 2022, Plaintiff filed her initial Complaint in Seventeenth Judicial
Circuit Broward County against Macy's Retail Holding, LLC. Plaintiff filed an Amended
Complaint in the same venue on September 8,2022, adding Westfield as a Defendant. In her
Amended Complaint, Plaintiff,
Carmen Batallan,allegesshe trippedand fell and sustained injury
on land that is owned and operatedby Defendants.
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/27/2022 05:50:59 PM.****
3 In the initial review and analysisof this case, Defendant Westfield learned that
Carmen Batallan, is the daughter of sitting
Plaintiff, Broward County Honorable Judge Francis
Viamontes, who currentlypresidesover Circuit Family Division 33.
4. with Plaintiff,
In addition to this familial relationship upon information and belief
and based on property records, Plaintiff and Honorable Judge Viamontes currentlylive together
and did so at the time of Plaintiff's incident.
5. Based on the fact the Hon. Judge Viamontes lived with Plaintiff at the time of the
incident,she likelyhas knowledge of how this incident has affected Plaintiff and it is possible
Judge Viamontes may serve as a fact witness in this case.
6. Given that Plaintiff has a close familial with a current sitting
relationship judge in
Broward County, this presents a possibleconflict both with this venue and the potential
jury venire.
Any Broward County judge presidingover this case would be placed in a difficult positionof
evaluating the credibilityof the mother of a colleague, as well as potentiallyevaluating a
colleague'stestimony.
7. There is also the a juryvenire from Broward County would be comprised
possibility
o f individuals familiar with the Hon. Judge Viamontes by virtue o f her positionin the community
and within the family court circuit for Broward County. Further,should it be revealed at any point
that the Hon. Judge Viamontes is a member of the judiciaryfor the jury'svery same county, it is
very possiblethe citizens ofBroward County would give more weight the Hon. Judge Viamontes's
testimony,or Plaintiff' s over other witness testimony.
testimony itself,
8 For the aforementioned reasons, Defendants have a good-faith concern that
Plaintiff's familial with a current sitting
relationship judge in this venue
particular may warrant
removal from this circuit. As such, Defendants respectfully
request this case be transferred to
another authorized venue.
II. Memorandum of Law and Argument
9- It is from cases where a party has
well established that judges may be disqualified
a well-grounded fear that the party will not receive a fair trial (Aberdeen Prop. Owners Ass'n, Inc.
v. Bristol Lakes Homeowners Ass'n, Inc., 8 So. 3d 469, 471 (Fla.4th DCA 2009)) or where the
with those involved in the matter are such that
judge'spersonalrelationships their involvement in
Bethesda
the case does not "satisfythe appearance ofjustice." Memz'I Inc. v. Cassone, %07
Hosp.,
So. 2d 142, 143 (Fla.4th DCA 2002) (citingAtkinson Dredging Co. v. Henning, 631 So.2d 1129,
1130 (Fla.4th DCA 1994)).
10. It is not only the "appearance of justice"that must be satisfied,but also the
See Potashnickv. Port Cio' Const. Co., 609 F.2d 1101,1111 (5thCir.
appearance of impartiality.
when determining adequate
1980) (discussingthe importance of the appearance of impartiality
grounds for disqualification); 420
see also Smith v. SikorskyAircraft, F. Supp. 661,662 (C.D. Cal.
but because his impartiality
a judge, not for any personalbias or prejudice,
1976) (disqualifying
"might reasonably be questioned[...I.").
11. Defendants certainlydo not suggest that any Broward County judge in particular
of any
with Plaintiff or any witnesses, only that the impartiality
has an inextricable relationship
judge in Broward County might be questioned as all judges in this venue work in close proximity
the law does not state this tenet
with Plaintiff' s mother, Honorable Judge Viamontes. Importantly,
of a fair trial is aimed only at judges with actual bias. Atkinson Dredging Co., 631 So.2d at 1130
("The appearance ofjusticeproscribesthe trial judge from continuing,even though the record may
be void of any actual bias or prejudiceon her part.").
Rather, the courts recognizethis principle
may bar impartialjudges who will "do their very best to weigh the scales o fjusticeequallybetween
Id. (quotingIn re Murchison, 349 U.S. 133, 136 (1955)).
contendingparties."
12. Nevertheless, courts have held that where there is even the appearance of bias or
Menada,
is required.
prejudice,disqualification Inc. v. Arevalo, 341 So. 3d 1189, 1191 (Fla.3d
DCA 2022) (quotingState v. Oliu, 183 So. 3d 1161, 1163 (Fla.3d DCA 2016)).Disqualification
does not turn on what the judge feels,but rather a party'swell-grounded fear that they will not
receive a fair trial.See Aberdeen Prop. Owners Ass'n, Inc., 8 So. 3d at 471.
13. Defendants present this question to the Court as to whether there may be an
implicationofconflict with the judges in Broward County, justas the Rules Regulatingthe Florida
Bar state that personalconflicts that would disqualify lawyer from a case are imputed
a particular
to all attorneys working together at the same firm. R. Regulating Fla. Bar 4-1.10. Here, the
Broward County judge that presidesover this case will be forced to rule on a matter that directly
and significantly
affects the interests of an esteemed colleague'smother and co-tenant.
14. As the judge of Broward County civil circuit division would all share the same
issue, Defendants request a change of venue. A trial court may transfer the case to another
Fla. Stat. § 47.122; see also Houchins
authorized venue "in the interest ofjustice." v. Florida E.
Coast Ry. Co., 388 So. 2d 1287, 1291 (Fla.3d DCA 1980).
15. Under Florida law, actions againstforeigncorporations
doing business in the state
can be brought in any county where the corporationhas "an agent or other representative."
Fla.
Stat. § 47.051.
16. Defendant Macy's Retail Holdings,LLC's registered
agent-both now and at the
time this action was filed-is located in North Palm Beach, Florida in Palm Beach County, Florida.
(See Macy's Annual Report, attached as Exhibit A.)
17. Therefore, pursuant to Florida Statute § 47.122, venue would be proper in Palm
Beach County as a county where the action could have originally
been filed. Fla. Stat. § 47.122;
see also Cohen v. Scarnato, 270 So.3d 410,412 (Fla.4th DCA 2019).
18. Defendants do not mean judges of this circuit are
to suggest the distinguished
incapableof renderingneutral decisions in this matter, as whether there would be actual bias on
the bench is immaterial. Defendants only questionifit is reasonable to expect any Broward County
judicialofficer to sit in a courtroom next door to their colleagueand dispense"cold neutrality"
to
that colleague'smother. Additionally,Defendants present this issue to Court to determine if this
conflict will satisfy such
the appearance ofjustice, that would be enough to entitle Defendants to
Dredging Co., 631 So.2d at 1130; Menada, Inc.,341 So. 3d
a change of venue. See, e.g.,Atkinson
at 1191; Aberdeen Prop. Owners Ass'n, Inc., 8 So. 3d at 471.
19. This issue is a one
fragile that Defendants do not bring forward with discourtesyto
this Court. Merely, Defendants feel the complexity ofthese issues requiresraisingthis questionto
this Honorable Court given Defendants questionsas to whether the appearance ofjusticewould
be satisfied if this case were to remain under the umbrella o f Broward County.
III. Conclusion and Demand for Relief
WHEREFORE, the Defendants, MACY'S RETAIL HOLDING, LLC and
WESTFIELD PROPERTY MANAGEMENT, LLC, respectfully
moves this Honorable Court
for entry this cause from Broward County to Palm Beach County, Florida,
of an Order transferring
and award all such other relief as may be justand proper.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy o f the foregoinghas been furnished by
Email to Ramon Blanco-Herrera, Esq., Ramon, Rodriguez & Blanco-Herrera, LLP.,
mbh@rrbhlaw.com, this 27th day of October 2022.
Bleakley,Bavol, Denman & Grace
/s/Josephine Rahn, Esq.
Robert W. Bleakley,Esq.
Florida Bar No. 0966436
Josephine B. Rahn, Esq.
Florida Bar No. 1002557
Austin A. Walker, Esq.
Florida Bar No. 1026098
15316 N. Florida Avenue
Tampa, FL 33613
(813) 221-3759 -Telephone]
(813) 221-3198 -Facsimile]
rbleakley@bbdglaw.com
jrahn@bbdglaw.com
awalker@bbdglaw.com
ktracy@bbdglaw.com
hsmithson@bbdglaw.com
Attorneys for Defendants
2022 FOREIGN LIMITED LIABILITY COMPANY ANNUAL REPORT FILED
DOCUMENT# M20000005752 Apr 19, 2022
Entity Name: MACY'S RETAIL HOLDINGS, LLC Secretary of State
6625203979CC
Current Principal Place of Business:
145 PROGRESS PLACE
SPRINGDALE, OH 45246
Current Mailing Address:
145 PROGRESS PLACE
SPRINGDALE, OH 45246 US
FEI Number: 43-0398035 Certificate of Status Desired: No
Name and Address of Current Registered Agent:
CORPORATE CREATIONS NETWORK INC.
801 US HIGHWAY 1
NORTH PALM BEACH, FL 33408 US
The above named entity submits this statement for the purpose of changing its registered office or registered agent, or both, in the State of Florida.
SIGNATURE:
Electronic Signature of Registered Date
Agent
Authorized Person(s) Detail :
Title MBR Title PRESIDENT
Name MACY'S, INC. Name GARCIA, ELISA D
Address 145 PROGRESS PLACE Address 151 W 34TH STREET
City-State-Zip: SPRINGDALE OH 45246 City-State-Zip: N EW YORK NY 10001
Title VICE PRESIDENT Title ASSISTANT SECRETARY
Name SCHROEDER, MATTHEW S Name O'BRYAN, STEPHEN J
Address 145 PROGRESS PLACE Address 145 PROGRESS PLACE
City-State-Zip: SPRINGDALE OH 45246 City-State-Zip: SPRINGDALE OH 45246
Title VP, TREASURER Title VP, SECRETARY
Name IYER, PRABHAKAR Name BEADLES, WENDY A.
Address 151 W 34TH STREET Address 680 FOLSOM STREET
N EW YORK NY 10001 City-State-Zip: SAN FRANCISCO CA 94107
City-State-Zip:
\ hereby on this report or supplemental report is true and accurate and that my electronic signature shall have the same legal effect as made under
certify that the information indicated if
oath; that I am a managing member or manager of the limited liability company or the receiver or trustee empowered to execute this report as required by Chapter 605, Florida Statutes; and
that my name appears above, or on an attachment with ali other like empowered.
SIGNATURE: MATTHEW S. SCHROEDER VICE PRESIDENT 04/19/2022
Electronic Signature of Signing Authorized Person(s) Detail Date
EXHIBIT A
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Filing# 160141040 E-Filed 10/27/2022 05:50:59 PM IN THE CIRCUIT COURT OF THE SEVENTEETH JUDICIAL CIRCUIT IN AND FOR BROWARD COUNTY, STATE OF FLORIDA CIVIL DIVISION CARMEN BATALLAN, Plaintiff, Case No.: CACE22005385 VS. MACY'S RETAIL HOLDING, LLC a Foreign Limited LiabilityCompany, and WESTFIELD PROPERTY MANAGEMENT, LLC, A Foreign Limited LiabilityCompany. Defendants. i DEFENDANTS' MOTION FOR CHANGE OF VENUE Defendants, MACY'S RETAIL HOLDING, LLC ("Macy's") and WESTFIELD PROPERTY MANAGEMENT, LLC ("Westfield"),and by and through their undersigned counsel, hereby file this Motion for Change ofVenue pursuant to Section 47.122, Florida Statutes, and state: I. Introduction 1. This case arises out of an allegedtripand fall that occurred at Broward Mall, located at 8000 W. Broward Blvd., Plantation,FL 33388, on May 14, 2021. 2. On April 12, 2022, Plaintiff filed her initial Complaint in Seventeenth Judicial Circuit Broward County against Macy's Retail Holding, LLC. Plaintiff filed an Amended Complaint in the same venue on September 8,2022, adding Westfield as a Defendant. In her Amended Complaint, Plaintiff, Carmen Batallan,allegesshe trippedand fell and sustained injury on land that is owned and operatedby Defendants. *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 10/27/2022 05:50:59 PM.**** 3 In the initial review and analysisof this case, Defendant Westfield learned that Carmen Batallan, is the daughter of sitting Plaintiff, Broward County Honorable Judge Francis Viamontes, who currentlypresidesover Circuit Family Division 33. 4. with Plaintiff, In addition to this familial relationship upon information and belief and based on property records, Plaintiff and Honorable Judge Viamontes currentlylive together and did so at the time of Plaintiff's incident. 5. Based on the fact the Hon. Judge Viamontes lived with Plaintiff at the time of the incident,she likelyhas knowledge of how this incident has affected Plaintiff and it is possible Judge Viamontes may serve as a fact witness in this case. 6. Given that Plaintiff has a close familial with a current sitting relationship judge in Broward County, this presents a possibleconflict both with this venue and the potential jury venire. Any Broward County judge presidingover this case would be placed in a difficult positionof evaluating the credibilityof the mother of a colleague, as well as potentiallyevaluating a colleague'stestimony. 7. There is also the a juryvenire from Broward County would be comprised possibility o f individuals familiar with the Hon. Judge Viamontes by virtue o f her positionin the community and within the family court circuit for Broward County. Further,should it be revealed at any point that the Hon. Judge Viamontes is a member of the judiciaryfor the jury'svery same county, it is very possiblethe citizens ofBroward County would give more weight the Hon. Judge Viamontes's testimony,or Plaintiff' s over other witness testimony. testimony itself, 8 For the aforementioned reasons, Defendants have a good-faith concern that Plaintiff's familial with a current sitting relationship judge in this venue particular may warrant removal from this circuit. As such, Defendants respectfully request this case be transferred to another authorized venue. II. Memorandum of Law and Argument 9- It is from cases where a party has well established that judges may be disqualified a well-grounded fear that the party will not receive a fair trial (Aberdeen Prop. Owners Ass'n, Inc. v. Bristol Lakes Homeowners Ass'n, Inc., 8 So. 3d 469, 471 (Fla.4th DCA 2009)) or where the with those involved in the matter are such that judge'spersonalrelationships their involvement in Bethesda the case does not "satisfythe appearance ofjustice." Memz'I Inc. v. Cassone, %07 Hosp., So. 2d 142, 143 (Fla.4th DCA 2002) (citingAtkinson Dredging Co. v. Henning, 631 So.2d 1129, 1130 (Fla.4th DCA 1994)). 10. It is not only the "appearance of justice"that must be satisfied,but also the See Potashnickv. Port Cio' Const. Co., 609 F.2d 1101,1111 (5thCir. appearance of impartiality. when determining adequate 1980) (discussingthe importance of the appearance of impartiality grounds for disqualification); 420 see also Smith v. SikorskyAircraft, F. Supp. 661,662 (C.D. Cal. but because his impartiality a judge, not for any personalbias or prejudice, 1976) (disqualifying "might reasonably be questioned[...I."). 11. Defendants certainlydo not suggest that any Broward County judge in particular of any with Plaintiff or any witnesses, only that the impartiality has an inextricable relationship judge in Broward County might be questioned as all judges in this venue work in close proximity the law does not state this tenet with Plaintiff' s mother, Honorable Judge Viamontes. Importantly, of a fair trial is aimed only at judges with actual bias. Atkinson Dredging Co., 631 So.2d at 1130 ("The appearance ofjusticeproscribesthe trial judge from continuing,even though the record may be void of any actual bias or prejudiceon her part."). Rather, the courts recognizethis principle may bar impartialjudges who will "do their very best to weigh the scales o fjusticeequallybetween Id. (quotingIn re Murchison, 349 U.S. 133, 136 (1955)). contendingparties." 12. Nevertheless, courts have held that where there is even the appearance of bias or Menada, is required. prejudice,disqualification Inc. v. Arevalo, 341 So. 3d 1189, 1191 (Fla.3d DCA 2022) (quotingState v. Oliu, 183 So. 3d 1161, 1163 (Fla.3d DCA 2016)).Disqualification does not turn on what the judge feels,but rather a party'swell-grounded fear that they will not receive a fair trial.See Aberdeen Prop. Owners Ass'n, Inc., 8 So. 3d at 471. 13. Defendants present this question to the Court as to whether there may be an implicationofconflict with the judges in Broward County, justas the Rules Regulatingthe Florida Bar state that personalconflicts that would disqualify lawyer from a case are imputed a particular to all attorneys working together at the same firm. R. Regulating Fla. Bar 4-1.10. Here, the Broward County judge that presidesover this case will be forced to rule on a matter that directly and significantly affects the interests of an esteemed colleague'smother and co-tenant. 14. As the judge of Broward County civil circuit division would all share the same issue, Defendants request a change of venue. A trial court may transfer the case to another Fla. Stat. § 47.122; see also Houchins authorized venue "in the interest ofjustice." v. Florida E. Coast Ry. Co., 388 So. 2d 1287, 1291 (Fla.3d DCA 1980). 15. Under Florida law, actions againstforeigncorporations doing business in the state can be brought in any county where the corporationhas "an agent or other representative." Fla. Stat. § 47.051. 16. Defendant Macy's Retail Holdings,LLC's registered agent-both now and at the time this action was filed-is located in North Palm Beach, Florida in Palm Beach County, Florida. (See Macy's Annual Report, attached as Exhibit A.) 17. Therefore, pursuant to Florida Statute § 47.122, venue would be proper in Palm Beach County as a county where the action could have originally been filed. Fla. Stat. § 47.122; see also Cohen v. Scarnato, 270 So.3d 410,412 (Fla.4th DCA 2019). 18. Defendants do not mean judges of this circuit are to suggest the distinguished incapableof renderingneutral decisions in this matter, as whether there would be actual bias on the bench is immaterial. Defendants only questionifit is reasonable to expect any Broward County judicialofficer to sit in a courtroom next door to their colleagueand dispense"cold neutrality" to that colleague'smother. Additionally,Defendants present this issue to Court to determine if this conflict will satisfy such the appearance ofjustice, that would be enough to entitle Defendants to Dredging Co., 631 So.2d at 1130; Menada, Inc.,341 So. 3d a change of venue. See, e.g.,Atkinson at 1191; Aberdeen Prop. Owners Ass'n, Inc., 8 So. 3d at 471. 19. This issue is a one fragile that Defendants do not bring forward with discourtesyto this Court. Merely, Defendants feel the complexity ofthese issues requiresraisingthis questionto this Honorable Court given Defendants questionsas to whether the appearance ofjusticewould be satisfied if this case were to remain under the umbrella o f Broward County. III. Conclusion and Demand for Relief WHEREFORE, the Defendants, MACY'S RETAIL HOLDING, LLC and WESTFIELD PROPERTY MANAGEMENT, LLC, respectfully moves this Honorable Court for entry this cause from Broward County to Palm Beach County, Florida, of an Order transferring and award all such other relief as may be justand proper. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy o f the foregoinghas been furnished by Email to Ramon Blanco-Herrera, Esq., Ramon, Rodriguez & Blanco-Herrera, LLP., mbh@rrbhlaw.com, this 27th day of October 2022. Bleakley,Bavol, Denman & Grace /s/Josephine Rahn, Esq. Robert W. Bleakley,Esq. Florida Bar No. 0966436 Josephine B. Rahn, Esq. Florida Bar No. 1002557 Austin A. Walker, Esq. Florida Bar No. 1026098 15316 N. Florida Avenue Tampa, FL 33613 (813) 221-3759 -Telephone] (813) 221-3198 -Facsimile] rbleakley@bbdglaw.com jrahn@bbdglaw.com awalker@bbdglaw.com ktracy@bbdglaw.com hsmithson@bbdglaw.com Attorneys for Defendants 2022 FOREIGN LIMITED LIABILITY COMPANY ANNUAL REPORT FILED DOCUMENT# M20000005752 Apr 19, 2022 Entity Name: MACY'S RETAIL HOLDINGS, LLC Secretary of State 6625203979CC Current Principal Place of Business: 145 PROGRESS PLACE SPRINGDALE, OH 45246 Current Mailing Address: 145 PROGRESS PLACE SPRINGDALE, OH 45246 US FEI Number: 43-0398035 Certificate of Status Desired: No Name and Address of Current Registered Agent: CORPORATE CREATIONS NETWORK INC. 801 US HIGHWAY 1 NORTH PALM BEACH, FL 33408 US The above named entity submits this statement for the purpose of changing its registered office or registered agent, or both, in the State of Florida. SIGNATURE: Electronic Signature of Registered Date Agent Authorized Person(s) Detail : Title MBR Title PRESIDENT Name MACY'S, INC. Name GARCIA, ELISA D Address 145 PROGRESS PLACE Address 151 W 34TH STREET City-State-Zip: SPRINGDALE OH 45246 City-State-Zip: N EW YORK NY 10001 Title VICE PRESIDENT Title ASSISTANT SECRETARY Name SCHROEDER, MATTHEW S Name O'BRYAN, STEPHEN J Address 145 PROGRESS PLACE Address 145 PROGRESS PLACE City-State-Zip: SPRINGDALE OH 45246 City-State-Zip: SPRINGDALE OH 45246 Title VP, TREASURER Title VP, SECRETARY Name IYER, PRABHAKAR Name BEADLES, WENDY A. Address 151 W 34TH STREET Address 680 FOLSOM STREET N EW YORK NY 10001 City-State-Zip: SAN FRANCISCO CA 94107 City-State-Zip: \ hereby on this report or supplemental report is true and accurate and that my electronic signature shall have the same legal effect as made under certify that the information indicated if oath; that I am a managing member or manager of the limited liability company or the receiver or trustee empowered to execute this report as required by Chapter 605, Florida Statutes; and that my name appears above, or on an attachment with ali other like empowered. SIGNATURE: MATTHEW S. SCHROEDER VICE PRESIDENT 04/19/2022 Electronic Signature of Signing Authorized Person(s) Detail Date EXHIBIT A