Preview
Filing # 103437706 E-Filed 02/17/2020 06:40:54 PM
IN THE CIRCUIT COURT OF THE 17™
JUDICIAL CIRCUIT, IN AND FOR
BROWARD COUNTY, FLORIDA
GENERAL JURISDICTION DIVISION
JOE CARL ROGERS and
HILDA ROGERS, his wife, CASE NO.: 19-025692 CA 27
Plaintiffs,
vs.
ACOUSTI ENGINEERING COMPANY OF FLORIDA;
CERTAINTEED CORPORATION;
HONEYWELL INTERNATIONAL, INC.
(sued individually and as successor in interest to
Allied-Signal, Inc., and The Bendix Corporation);
J-M MANUFACTURING COMPANY, INC.;
KAISER GYPSUM COMPANY, INC.;
MCKESSON CHEMICAL COMPANY;
PFEISER, INC.;
PREMIX-MARBLETTE MANUFACTURING CO.;
SUPRO CORPORATION;
UNION CARBIDE CORPORATION;
VANDERBILT MINERALS, LLC., f/k/a
VANDERBILT COMPANY, INC.,
individually and as successor-in-interest to
GOUVERNEUR TALC COMPANY, INC.;
W.W. GAY MECHANICAL CONSTRUCTION, CO.,
Defendants.
ey
MOTION TO DISMISS AND TRANSFER FOR IMPROPER VENUE
COMES NOW, Defendant, W.W. Gay Mechanical Construction, Co.' (“W.W.
Gay”),
by and through undersigned counsel, hereby files this Motion to Dismiss and Transfer for
Improper Venue (F.S. 47.051) or in the Alternative Motion to Transfer Venue for the
) Defendant is improperly named in Plaintiffs’ Complaint. This Defendant is W.W. Gay Mechanical Contractor,
Inc. For purposed of this motion, Defendant will refer to itself as W.W. Gay. W.W. Gay expressly reserves and
does not waive any defense based on Plaintiffs identifying and suing the incorrect Defendant.
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
100 SOUTHEAST SECOND STREET + SUITE 2100 + MIAMI, FLORIDA 33131
TELEPHONE (305) 374-4400 » FACSIMILE (305) 579-0261
*** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/17/2020 06:40:53 PM.****Convenience of the Parties and in the Interest of Justice (F.S. 47.122).
INTRODUCTION
Plaintiffs brings this action alleging defendants’ negligence and strict liability regarding
Plaintiff's alleged personal injury from asbestos exposure between the 1960’s and 1980’s.
Plaintiffs allege the exposure occurred exclusively in Duval County, Florida. The incident
accrued in Duval County, Plaintiffs resided in Duval County at the time of alleged exposure, and
Plaintiffs reside in Duval County now. Defendant W.W. Gay is a domestic corporation with its
office for transaction of business in Duval County. While Plaintiff filed this action in Broward
County, venue is proper in Duval County, where the incident occurred, Plaintiffs reside, W.W.
Gay’s office is, corporate defendants conduct business, where Plaintiff receives his associated
medical treatment, and where all or the majority of witnesses are located. The sole nexus to
Broward County is Plaintiffs allegation three (3) of the foreign corporate defendants have
registered agents at CT Corporation System in Plantation, Florida.
1. Plaintiffs bring this two (2) count action: (1) Count I Negligence; (2) Count II strict liability
regarding Plaintiff’s alleged exposure to asbestos while working in Duval County from the
1960’s to 1980’s.2
2. Plaintiffs are a married couple and reside in Duval County.>
3. Plaintiffs allege 100% of asbestos exposure accrued in Duval County. 4
4. Plaintiff, Joe Carl Rogers, was diagnosed with malignant mesothelioma, which Plaintiffs
allege is causally related to asbestos exposure, in Duval County and receives medical
treatment in Duval County. >
2 See Complaint at §11.
3 See page 1 of 4 of Plaintiff's Affirmation and Section I of Forum Non Conveniens Fact Sheet.
4 See Section 2 of Forum Non Conveniens Facts Sheet.
2
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
100 SOUTHEAST SECOND STREET - SUITE 2100» MIAMI, FLORIDA 33131
TELEPHONE (305) 374-4400 + FACSIMILE (205) 579-02615. W.W. Gay is a domestic corporation with its office in Duval County.
6. W.W. Gay did not have any office for transaction of customary business in Broward County
at the time frame of the alleged exposure and does not now.
7. The applicable statute for venue states:
Actions against domestic corporations shall be brought only in the county where
such corporation has, or usually keeps, an office for transaction of its customary
business, where the cause of action accrued, or where the property in litigation is
located. Actions against foreign corporations doing business in this state shall be
brought in a county where such corporation has an agent or other representative,
where the cause of action accrued, or where the property in litigation is located.
F.S. 47.051
8. There is no property at issue in this matter. Accordingly, because W.W. Gay does not have
an office of its customary business in Broward County, this action must be brought where the
action accrued, which is Duval County, Florida. Venue for a negligence claim accrues in the
county where the accident occurs. See Gulfstream Park Racing Ass‘n.. Inc. _v. Cournoyer,
505 So.2d 629 (Fla. 3d DCA 1987). (Venue for a negligence claim accrues in the county
where the accident occurs).
9. Plaintiffs sue twelve (12) corporate defendants in this action; alleging three (3) are domestic
corporations while the other nine (9) are alleged to be foreign corporations. Of the three (3)
alleged domestic corporations, one has its principal place in Orlando, one in Palm Beach
Gardens, and W.W. Gay in Duval County, Florida. Of the nine (9) alleged foreign
corporations, Plaintiffs allege three (3) of them, CertainTeed Corporation, Pfizer, Inc. and
Supro Corporation, maintain registered agents at CT Corporation System, 1200 Pine Island
Road, Plantation, Florida.° Having a registered agent for purpose of service of process at CT
5 See Exhibit A to Plaintiff's Complaint.
6 See Complaint at 43.
3
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
100 SOUTHEAST SECOND STREET - SUITE 2100» MIAMI, FLORIDA 33131
TELEPHONE (305) 374-4400 + FACSIMILE (205) 579-0261Corporation System in Plantation appears to be the sole nexus to Broward County.
10. In addition to and in the alternative, the action should be transferred to Duval County for the
convenience of the parties or witnesses and in the interest of justice.
11. For the convenience of the parties or witnesses or in the interest of justice, any court of
record may transfer any civil action to any other court of record in which it might have been
brought. F.S. 47.122. There are three statutory factors a court considers in determining
whether to grant a motion pursuant to section 47.122; (1) the convenience of the parties; (2)
the convenience of the witnesses; and (3) the interest of justice. Pep Boys v. Montilla, 62 So.
3d 1162, 1165 (Fla. 4 DCA 2011). Of these, the convenience of the witnesses is the most
important consideration of the three statutory factors. Id. Plaintiffs’ choice of venue is not a
paramount consideration, but is merely a meaningful one in assessing the convenience of the
parties. Universal Property & Cas. Ions. Co. v. Long, 157 So. 3d 383 (Fla. 2"! DCA 2015).
12. In addition to the incident accruing in Duval County and Plaintiffs residing in Duval County,
most or all of the witnesses will be in Duval County. Plaintiff alleges he was employed by
Duval County Public School System during the entirety of the alleged exposure.’ The
locations of alleged exposure are solely within Duval County. W.W. Gay is located in Duval
County and any employees or witness therein will be located in Duval County. Further,
Plaintiff's medical providers are in Duval County. Plaintiffs make no allegation that any
witnesses are located in Broward County and there is no reasonable inference that there
would be any witnesses to the Duval County exposure several hundred miles away at the
opposite end of the state.
7 See Complaint at 49.
4
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
100 SOUTHEAST SECOND STREET - SUITE 2100» MIAMI, FLORIDA 33131
TELEPHONE (305) 374-4400 + FACSIMILE (205) 579-026113.
14.
Venue statutes have often been characterized as statutes of convenience. Their primary
purpose is to require that litigation be instituted in that forum which will cause the least
amount of inconvenience and expense to those parties required to answer and defend the
action. Gaboury v. Flagler Hosp., Inc., 316 So. 2d 642, 645 (Fla. 4th DCA 1975) See also.
Allen vy. Summers, 273 So.2d 13 (3rd DCA Fla.1973); England v. Cook, 256 So.2d 403 (3rd
DCA Fla.1972); Goodyear Tire and Rubber Company v. Mann, 285 So.2d 681 (3rd DCA
Fla.1973), rev'd. 300 So.2d 666 (Fla.1974).
Florida courts have consistently held it is error to deny a transfer of venue where an
accident occurs in a Florida county other than the forum county and the witnesses are
located outside of the forum county and many or most of the witnesses are located in the
county in which the accident occurred. Morrill v. Lytle, 893 So. 2d 671, 673 (Fla. Ist DCA
2005). See. e.g.. Sullivan v. Klein, 691 So.2d 21, 22 (Fla. 3d DCA 1997) (trial court abused
its discretion in denying transfer from Dade County to Pinellas County where accident
occurred in Pinellas and there were potential Pinellas witnesses "albeit nominal," whereas
plaintiff's attorney was only Dade connection); Avis Rent_A Car System. Inc. v.
Broughton, 672 So.2d 656 (Fla. 4th DCA 1996)(trial court abused its discretion in denying
transfer of venue from Broward to Brevard County where only connection to Broward
County was the fact that corporate defendant maintained resident agent in the county and
investigating officers and other witnesses were located in Brevard County where accident
occurred); Prudential Property and Casualty Ins. Co. v. Palma, 622 So.2d 594, 595 (Fla. 3d
DCA 1993)(trial court abused discretion in denying transfer from Dade County to Volusia
County where defendant insurance carrier did business statewide but record was devoid of
“any connection between Dade County and any of the factual occurrences in this case or
WILSON, ELSER, MOSKOWI 7, EDELMAN & DICKER LLP
100 SOUTHEAST SECOND STREET - SUITE 2100 MIAMI, FLORIDA 33131
TELEPHONE (305) 374-4400 » FACSIMILE (305) 579-0261any of the witnesses ...."); Hertz Corp. v. Rentz, 326 So.2d 216, 217 (Fla. 4th DCA
1976)(trial court abused its discretion in denying transfer from Orange County to Jackson
County where only contact with Orange County was agent or representative of nonresident
corporate defendant); Kelly—Springfield Tire Co. v. Moore, 355 So.2d 451, 452 (Fla. 3d DCA
1978) (the court found venue should have been transferred to the county where the accident
occurred, the allegedly defective tire was sold and mounted, all plaintiffs resided, and the
material witnesses to the accident resided.) In Inter—American Sunbelt Corp. v. Borozny, 512
So.2d 287, 288 (Fla. 3d DCA 1987), the court found the trial court abused its discretion in
denying the transfer where the only connection to the forum county was the convenience of
counsel and certain unnamed expert witnesses. In another case, the Third District Court of
Appeal held the trial court abused its discretion in denying a motion to transfer where the only
connections to the forum venue were the plaintiff's attorney and one defendant which
maintained its principal office there. Cooper Tire & Rubber Co. v._ Estate of Chavez ex rel.
Hernandez, 8 So.3d 1157, 1159 (Fla. 3d DCA 2009).
15. The third factor, that of the interests of justice, is a catch-all consideration including many
considerations, and in some close cases this factor may be determinative. One consideration is
the convenience of the attorneys® which is usually accorded very little, if any, weight.... Other
considerations include but are not limited to the avoidance of a crowded court docket and the
imposition of jury duty on an uninvolved community. Pep Boys v. Montilla, 62 So. 3d 1162,
1165 (Fla. 4th DCA 2011. The imposition of jury duty on an uninvolved community would
certainly be present here as a Broward County jury would be deciding a case from Duval
County. To maintain a case from Duval County in an already overcrowded Broward County
Court docket is certainly not in the interests of justice.
8 Plaintiffs’ counsel is located in Coral Gables, Florida and Alton, Illinois.
6
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
100 SOUTHEAST SECOND STREET - SUITE 2100» MIAMI, FLORIDA 33131
TELEPHONE (305) 374-4400 + FACSIMILE (205) 579-026116. In the alternative, W.W. Gay moves to Dismiss Plaintiff's Complaint for Failure to State a
Cause of Action as Defendant is improperly named in Plaintiff's Complaint.
CONCLUSION
Based upon Plaintiffs’ own allegations in the Complaint, there is no question the convenience
of the parties and interests of justice demand this action be litigated in Duval County. The alleged
exposure accrued in Duval County, the Plaintiffs reside in Duval County, Plaintiff receives medical
treatment in Duval County, witness reside in Duval County, and corporate defendants transact
business in Duval County. To maintain this action in Broward County would be an unnecessary
expense and burden on this Court, the parties, and witnesses.
WHEREFORE, Defendant, W.W. Gay Mechanical Construction, Co., respectfully
request this Honorable Court to enter an order:
i. Dismissing this case and transferring it to Duval County, Florida;
ii. Transferring this case to Duval County, Florida;
iii, | Dismissing the Complaint for incorrectly named Defendant;
iv. Any other relief this Court deems appropriate.
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that on this 17 day of February 2020, we electronically filed
the foregoing with the Clerk of Court by using the Florida Courts E-Filing Portal who will send
notice of this electronic filing to all parties identified on the attached Service List.
7
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
100 SOUTHEAST SECOND STREET - SUITE 2100 MIAMI, FLORIDA 33131
‘TELEPHONE (305) 374-4400 + FACSIMILE (305) 579-0261WILSON, ELSER, MOSKOWITZ,
EDELMAN & DICKER LLP
Counsel for Defendant
W.W. GAY MECHANICAL
CONSTRUCTION, CO.
100 SE 2"4 Street, Suite 2100
Miami, Florida 33131
Tel: (305) 374-4400
Fax: (306) 579-0261
BY: /s/Steven Jones
ANTHONY P. STRASIUS
Florida Bar No: 988715
anthony.strasius@wilsonelser.com
STEVEN C. JONES
Florida Bar No: 107516
steven.jones@wilsonelser.com
SERVICE LI.
Counsel for Plaintiffs
Rebecca S. Vinocur, Esq.
REBECCA S. VINOCUR, P.A.
5915 Ponce de Leon Blvd., Ste. 14
Coral Gables, FL 33146
(786) 691-1282
rvinocur@rsv-law.com
J. Andrew Sealey, Esq.
SIMMONS HANLY CONROY
One Court Street
Alton, IL 62002
(618) 259-2222
8
WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP
100 SOUTHEAST SECOND STREET - SUITE 2100 MIAMI, FLORIDA 33131
‘TELEPHONE (305) 374-4400 + FACSIMILE (305) 579-0261
Preview
Filing # 103437706 E-Filed 02/17/2020 06:40:54 PM IN THE CIRCUIT COURT OF THE 17™ JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA GENERAL JURISDICTION DIVISION JOE CARL ROGERS and HILDA ROGERS, his wife, CASE NO.: 19-025692 CA 27 Plaintiffs, vs. ACOUSTI ENGINEERING COMPANY OF FLORIDA; CERTAINTEED CORPORATION; HONEYWELL INTERNATIONAL, INC. (sued individually and as successor in interest to Allied-Signal, Inc., and The Bendix Corporation); J-M MANUFACTURING COMPANY, INC.; KAISER GYPSUM COMPANY, INC.; MCKESSON CHEMICAL COMPANY; PFEISER, INC.; PREMIX-MARBLETTE MANUFACTURING CO.; SUPRO CORPORATION; UNION CARBIDE CORPORATION; VANDERBILT MINERALS, LLC., f/k/a VANDERBILT COMPANY, INC., individually and as successor-in-interest to GOUVERNEUR TALC COMPANY, INC.; W.W. GAY MECHANICAL CONSTRUCTION, CO., Defendants. ey MOTION TO DISMISS AND TRANSFER FOR IMPROPER VENUE COMES NOW, Defendant, W.W. Gay Mechanical Construction, Co.' (“W.W. Gay”), by and through undersigned counsel, hereby files this Motion to Dismiss and Transfer for Improper Venue (F.S. 47.051) or in the Alternative Motion to Transfer Venue for the ) Defendant is improperly named in Plaintiffs’ Complaint. This Defendant is W.W. Gay Mechanical Contractor, Inc. For purposed of this motion, Defendant will refer to itself as W.W. Gay. W.W. Gay expressly reserves and does not waive any defense based on Plaintiffs identifying and suing the incorrect Defendant. WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET + SUITE 2100 + MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 » FACSIMILE (305) 579-0261 *** FILED: BROWARD COUNTY, FL BRENDA D. FORMAN, CLERK 02/17/2020 06:40:53 PM.****Convenience of the Parties and in the Interest of Justice (F.S. 47.122). INTRODUCTION Plaintiffs brings this action alleging defendants’ negligence and strict liability regarding Plaintiff's alleged personal injury from asbestos exposure between the 1960’s and 1980’s. Plaintiffs allege the exposure occurred exclusively in Duval County, Florida. The incident accrued in Duval County, Plaintiffs resided in Duval County at the time of alleged exposure, and Plaintiffs reside in Duval County now. Defendant W.W. Gay is a domestic corporation with its office for transaction of business in Duval County. While Plaintiff filed this action in Broward County, venue is proper in Duval County, where the incident occurred, Plaintiffs reside, W.W. Gay’s office is, corporate defendants conduct business, where Plaintiff receives his associated medical treatment, and where all or the majority of witnesses are located. The sole nexus to Broward County is Plaintiffs allegation three (3) of the foreign corporate defendants have registered agents at CT Corporation System in Plantation, Florida. 1. Plaintiffs bring this two (2) count action: (1) Count I Negligence; (2) Count II strict liability regarding Plaintiff’s alleged exposure to asbestos while working in Duval County from the 1960’s to 1980’s.2 2. Plaintiffs are a married couple and reside in Duval County.> 3. Plaintiffs allege 100% of asbestos exposure accrued in Duval County. 4 4. Plaintiff, Joe Carl Rogers, was diagnosed with malignant mesothelioma, which Plaintiffs allege is causally related to asbestos exposure, in Duval County and receives medical treatment in Duval County. > 2 See Complaint at §11. 3 See page 1 of 4 of Plaintiff's Affirmation and Section I of Forum Non Conveniens Fact Sheet. 4 See Section 2 of Forum Non Conveniens Facts Sheet. 2 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET - SUITE 2100» MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FACSIMILE (205) 579-02615. W.W. Gay is a domestic corporation with its office in Duval County. 6. W.W. Gay did not have any office for transaction of customary business in Broward County at the time frame of the alleged exposure and does not now. 7. The applicable statute for venue states: Actions against domestic corporations shall be brought only in the county where such corporation has, or usually keeps, an office for transaction of its customary business, where the cause of action accrued, or where the property in litigation is located. Actions against foreign corporations doing business in this state shall be brought in a county where such corporation has an agent or other representative, where the cause of action accrued, or where the property in litigation is located. F.S. 47.051 8. There is no property at issue in this matter. Accordingly, because W.W. Gay does not have an office of its customary business in Broward County, this action must be brought where the action accrued, which is Duval County, Florida. Venue for a negligence claim accrues in the county where the accident occurs. See Gulfstream Park Racing Ass‘n.. Inc. _v. Cournoyer, 505 So.2d 629 (Fla. 3d DCA 1987). (Venue for a negligence claim accrues in the county where the accident occurs). 9. Plaintiffs sue twelve (12) corporate defendants in this action; alleging three (3) are domestic corporations while the other nine (9) are alleged to be foreign corporations. Of the three (3) alleged domestic corporations, one has its principal place in Orlando, one in Palm Beach Gardens, and W.W. Gay in Duval County, Florida. Of the nine (9) alleged foreign corporations, Plaintiffs allege three (3) of them, CertainTeed Corporation, Pfizer, Inc. and Supro Corporation, maintain registered agents at CT Corporation System, 1200 Pine Island Road, Plantation, Florida.° Having a registered agent for purpose of service of process at CT 5 See Exhibit A to Plaintiff's Complaint. 6 See Complaint at 43. 3 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET - SUITE 2100» MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FACSIMILE (205) 579-0261Corporation System in Plantation appears to be the sole nexus to Broward County. 10. In addition to and in the alternative, the action should be transferred to Duval County for the convenience of the parties or witnesses and in the interest of justice. 11. For the convenience of the parties or witnesses or in the interest of justice, any court of record may transfer any civil action to any other court of record in which it might have been brought. F.S. 47.122. There are three statutory factors a court considers in determining whether to grant a motion pursuant to section 47.122; (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interest of justice. Pep Boys v. Montilla, 62 So. 3d 1162, 1165 (Fla. 4 DCA 2011). Of these, the convenience of the witnesses is the most important consideration of the three statutory factors. Id. Plaintiffs’ choice of venue is not a paramount consideration, but is merely a meaningful one in assessing the convenience of the parties. Universal Property & Cas. Ions. Co. v. Long, 157 So. 3d 383 (Fla. 2"! DCA 2015). 12. In addition to the incident accruing in Duval County and Plaintiffs residing in Duval County, most or all of the witnesses will be in Duval County. Plaintiff alleges he was employed by Duval County Public School System during the entirety of the alleged exposure.’ The locations of alleged exposure are solely within Duval County. W.W. Gay is located in Duval County and any employees or witness therein will be located in Duval County. Further, Plaintiff's medical providers are in Duval County. Plaintiffs make no allegation that any witnesses are located in Broward County and there is no reasonable inference that there would be any witnesses to the Duval County exposure several hundred miles away at the opposite end of the state. 7 See Complaint at 49. 4 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET - SUITE 2100» MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FACSIMILE (205) 579-026113. 14. Venue statutes have often been characterized as statutes of convenience. Their primary purpose is to require that litigation be instituted in that forum which will cause the least amount of inconvenience and expense to those parties required to answer and defend the action. Gaboury v. Flagler Hosp., Inc., 316 So. 2d 642, 645 (Fla. 4th DCA 1975) See also. Allen vy. Summers, 273 So.2d 13 (3rd DCA Fla.1973); England v. Cook, 256 So.2d 403 (3rd DCA Fla.1972); Goodyear Tire and Rubber Company v. Mann, 285 So.2d 681 (3rd DCA Fla.1973), rev'd. 300 So.2d 666 (Fla.1974). Florida courts have consistently held it is error to deny a transfer of venue where an accident occurs in a Florida county other than the forum county and the witnesses are located outside of the forum county and many or most of the witnesses are located in the county in which the accident occurred. Morrill v. Lytle, 893 So. 2d 671, 673 (Fla. Ist DCA 2005). See. e.g.. Sullivan v. Klein, 691 So.2d 21, 22 (Fla. 3d DCA 1997) (trial court abused its discretion in denying transfer from Dade County to Pinellas County where accident occurred in Pinellas and there were potential Pinellas witnesses "albeit nominal," whereas plaintiff's attorney was only Dade connection); Avis Rent_A Car System. Inc. v. Broughton, 672 So.2d 656 (Fla. 4th DCA 1996)(trial court abused its discretion in denying transfer of venue from Broward to Brevard County where only connection to Broward County was the fact that corporate defendant maintained resident agent in the county and investigating officers and other witnesses were located in Brevard County where accident occurred); Prudential Property and Casualty Ins. Co. v. Palma, 622 So.2d 594, 595 (Fla. 3d DCA 1993)(trial court abused discretion in denying transfer from Dade County to Volusia County where defendant insurance carrier did business statewide but record was devoid of “any connection between Dade County and any of the factual occurrences in this case or WILSON, ELSER, MOSKOWI 7, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET - SUITE 2100 MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 » FACSIMILE (305) 579-0261any of the witnesses ...."); Hertz Corp. v. Rentz, 326 So.2d 216, 217 (Fla. 4th DCA 1976)(trial court abused its discretion in denying transfer from Orange County to Jackson County where only contact with Orange County was agent or representative of nonresident corporate defendant); Kelly—Springfield Tire Co. v. Moore, 355 So.2d 451, 452 (Fla. 3d DCA 1978) (the court found venue should have been transferred to the county where the accident occurred, the allegedly defective tire was sold and mounted, all plaintiffs resided, and the material witnesses to the accident resided.) In Inter—American Sunbelt Corp. v. Borozny, 512 So.2d 287, 288 (Fla. 3d DCA 1987), the court found the trial court abused its discretion in denying the transfer where the only connection to the forum county was the convenience of counsel and certain unnamed expert witnesses. In another case, the Third District Court of Appeal held the trial court abused its discretion in denying a motion to transfer where the only connections to the forum venue were the plaintiff's attorney and one defendant which maintained its principal office there. Cooper Tire & Rubber Co. v._ Estate of Chavez ex rel. Hernandez, 8 So.3d 1157, 1159 (Fla. 3d DCA 2009). 15. The third factor, that of the interests of justice, is a catch-all consideration including many considerations, and in some close cases this factor may be determinative. One consideration is the convenience of the attorneys® which is usually accorded very little, if any, weight.... Other considerations include but are not limited to the avoidance of a crowded court docket and the imposition of jury duty on an uninvolved community. Pep Boys v. Montilla, 62 So. 3d 1162, 1165 (Fla. 4th DCA 2011. The imposition of jury duty on an uninvolved community would certainly be present here as a Broward County jury would be deciding a case from Duval County. To maintain a case from Duval County in an already overcrowded Broward County Court docket is certainly not in the interests of justice. 8 Plaintiffs’ counsel is located in Coral Gables, Florida and Alton, Illinois. 6 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET - SUITE 2100» MIAMI, FLORIDA 33131 TELEPHONE (305) 374-4400 + FACSIMILE (205) 579-026116. In the alternative, W.W. Gay moves to Dismiss Plaintiff's Complaint for Failure to State a Cause of Action as Defendant is improperly named in Plaintiff's Complaint. CONCLUSION Based upon Plaintiffs’ own allegations in the Complaint, there is no question the convenience of the parties and interests of justice demand this action be litigated in Duval County. The alleged exposure accrued in Duval County, the Plaintiffs reside in Duval County, Plaintiff receives medical treatment in Duval County, witness reside in Duval County, and corporate defendants transact business in Duval County. To maintain this action in Broward County would be an unnecessary expense and burden on this Court, the parties, and witnesses. WHEREFORE, Defendant, W.W. Gay Mechanical Construction, Co., respectfully request this Honorable Court to enter an order: i. Dismissing this case and transferring it to Duval County, Florida; ii. Transferring this case to Duval County, Florida; iii, | Dismissing the Complaint for incorrectly named Defendant; iv. Any other relief this Court deems appropriate. CERTIFICATE OF SERVICE WE HEREBY CERTIFY that on this 17 day of February 2020, we electronically filed the foregoing with the Clerk of Court by using the Florida Courts E-Filing Portal who will send notice of this electronic filing to all parties identified on the attached Service List. 7 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET - SUITE 2100 MIAMI, FLORIDA 33131 ‘TELEPHONE (305) 374-4400 + FACSIMILE (305) 579-0261WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP Counsel for Defendant W.W. GAY MECHANICAL CONSTRUCTION, CO. 100 SE 2"4 Street, Suite 2100 Miami, Florida 33131 Tel: (305) 374-4400 Fax: (306) 579-0261 BY: /s/Steven Jones ANTHONY P. STRASIUS Florida Bar No: 988715 anthony.strasius@wilsonelser.com STEVEN C. JONES Florida Bar No: 107516 steven.jones@wilsonelser.com SERVICE LI. Counsel for Plaintiffs Rebecca S. Vinocur, Esq. REBECCA S. VINOCUR, P.A. 5915 Ponce de Leon Blvd., Ste. 14 Coral Gables, FL 33146 (786) 691-1282 rvinocur@rsv-law.com J. Andrew Sealey, Esq. SIMMONS HANLY CONROY One Court Street Alton, IL 62002 (618) 259-2222 8 WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER LLP 100 SOUTHEAST SECOND STREET - SUITE 2100 MIAMI, FLORIDA 33131 ‘TELEPHONE (305) 374-4400 + FACSIMILE (305) 579-0261