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IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
SHAMAD SPENCE, individually as )
surviving spouse of VERSALIUS )
JOHNSON, deceased, )
) CIVIL ACTION FILE NO.
Plaintiff, )
) 22-C-02753-S1
v. )
)
PGS USA, LLC; PGS USA HOLDING, )
LLC; MICHAEL JOHNSON; )
KENNETH JACKSON; BCDK, LLC; )
and EXPRESS SERVICES, INC., )
)
Defendants. )
PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTS PGS USA, LLC, PGS USA
HOLDING, LLC AND KENNETH JACKSON’S MOTION TO TRANSFER VENUE
Plaintiff hereby files her Brief in Opposition to the above-named Defendants’ Motion to
Transfer Venue. For the reasons set forth below, Defendants’ motion should be denied.
INTRODUCTION
Plaintiff Shamad Spence filed this wrongful death action arising out of the death of her
40 year-old husband, Versalius Johnson, from blunt force injuries he sustained when heavy cargo
being unloaded by the Defendants fell off of a flatbed truck, striking and pinning him to the
ground. Mr. Spence was pronounced dead within hours. It is undisputed that venue is proper in
this Court because three of the six Defendants, including two of the moving Defendants,
voluntarily chose Gwinnett County as their Georgia residence. Despite their choice to reside in
Gwinnett County for the entire time they have operated in Georgia, Defendants PGS USA, LLC
and PGS USA Holding, LLC, as well as their employee Kenneth Jackson (“the PGS
Defendants”), have moved to transfer this case from Gwinnett County to Chatham County under
Georgia’s forum non conveniens statute, O.C.G.A. § 9-10-31.1(a), unpersuasively arguing that
litigating this action in Gwinnett County is so inconvenient and unjust as to warrant the Court
rejecting Plaintiff’s choice of forum and transferring this action to another venue.
The forum non conveniens statute does not permit a defendant to demand transfer to
another venue whenever it believes the change would be advantageous or even more convenient.
Instead, the statute is intended to address only those rare situations where venue is legally proper,
but its location would impose such a heavy burden upon the parties, witnesses and the Court that
the interests of justice demand or warrant transfer to another county. O.C.G.A. § 9-10-31.1; R.J.
Taylor Memorial Hospital v. Beck, 280 Ga. 660, 662 (2006). This is not one of those rare
situations.
Georgia law imposes a “heavy burden” of proof on Defendants to introduce evidence that
the factors listed in O.C.G.A. § 9-10-31.1(a) support transfer. In this case, Defendants have
failed to meet their burden, or present any proof at all, in almost every respect. There is no
showing that litigating in Gwinnett County poses difficulties with accessing witnesses and
evidence or that relocating to Chatham County will allow easier access. There is no
demonstration that resort to compulsory process will be necessary, that there is a need to view
the premises, or that the PGS Defendants will be so inconvenienced by litigating in their county
of residence that the interests of justice warrant transfer. Finally but significantly, and as
expressly set forth in O.C.G.A. § 9-10-31.1, the traditional deference given to Plaintiff’s choice
of forum in Gwinnett County supports keeping the case in this Court. Defendants’ motion should
be denied.
2
STATEMENT OF FACTS
A. Background and Allegations
On February 14, 2022, Plaintiff’s decedent, Versalius Johnson, drove a flatbed truck to
deliver cargo from a warehouse in Port Wentworth, Chatham County, Georgia to a company in
Winder, Barrow County, Georgia. The cargo, 48 bundles of hollow aluminum profiles, was
loaded onto Mr. Johnson’s truck at a Port Wentworth warehouse that was owned and/or operated
by Defendants PGS USA, LLC and PGS USA Holding, LLC (collectively referred to as “PGS”).
(Complaint, ¶¶ 5, 6, 24).
The cargo was loaded onto Mr. Johnson’s truck by agents, employees and borrowed
servants of PGS and/or a temporary staffing company doing business as Express Employment
Professionals Savannah. (Id., ¶¶ 14, 24). Express Employment Professionals Savannah was
owned and/or operated by Defendants Express Services, Inc. and BCDK, LLC (collectively
referred to as “Express Employment”). (Id., ¶¶ 12-15, 24).
When Mr. Johnson reached Winder, the recipient company rejected the cargo and
instructed Mr. Johnson to return the shipment to PGS. (Id., ¶ 27). Mr. Johnson arrived back at the
PGS warehouse in Port Wentworth on the morning of February 16, 2022. (Id., ¶ 28).
Defendants Michael Johnson and Kenneth Jackson, who were agents, employees, and/or
borrowed servants of PGS and/or Express Employment, were forklift operators at the warehouse.
(Id., ¶ 9, 14-16, 29). On February 16, 2022, Michael Johnson and Mr. Jackson used their forklifts
to unload the cargo from Versalius Johnson’s truck. (Id., ¶ 29). During that process, four bundles
of cargo fell off of the flatbed truck, with one striking Versalius Johnson and pinning him to the
ground. (Id., ¶ 34). Mr. Johnson was taken to the hospital and pronounced dead within hours due
to blunt force trauma. (Death Certificate, attached as Exhibit 2). There is no credible dispute
3
regarding the medical cause of his death.
Versalius Johnson’s spouse, Shamad Spence, filed suit against PGS, Express
Employment, Michael Johnson, and Kenneth Jackson on May 18, 2022 in Gwinnett County State
Court. Ms. Spence contends that agents, employees, and servants of PGS and Express
Employment, including Michael Johnson and Kenneth Jackson, failed to exercise ordinary care
in the packaging, loading and unloading of the cargo on Mr. Johnson’s truck, thereby causing the
bundle to fatally strike Mr. Johnson. (Complaint, ¶¶ 26, 31-35). She also contends that PGS and
Express Employment are vicariously liable for the negligence of their agents, employees and
borrowed servants. (Id., ¶ 11, 18).
Ms. Spence filed her action in this Court under Georgia law and the Georgia Constitution
because Defendants PGS USA, LLC, PGS USA Holding, LLC and Express Services, Inc.
voluntarily chose Gwinnett County as their county of residence by appointing their registered
agents and offices here, and those appointments were in effect at the time suit was filed.
(Complaint, ¶¶ 3, 4, 13). The PGS Defendants do not dispute that these facts provide a proper
basis for venue in this Court. (Defs’ Brief, p. 3).
B. Procedural Posture
On June 23, 2022, the PGS Defendants filed their collective Answer, admitting that
venue is proper in Gwinnett County. (Answer of PGS Defendants, ¶ 21). The Answer does not
provide Defendant Kenneth Jackson’s address or county of residence. (Id., ¶ 8). The PGS
Defendants also filed a cross-claim against Defendant Express Services, Inc., (Id., ¶¶ 39-51),
alleging in part that Express Services was the entity responsible for training Defendant Michael
Johnson in the proper operation of forklifts. (Id., ¶ 44).
The Express Employment Defendants- Express Services, Inc., BCDK, LLC, and Michael
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Johnson- filed their collective Answer on June 30, 2022, admitting that venue is proper in this
Court. (Answer of Express Employment Defendants, ¶ 21). They have not joined the motion to
transfer, and they did not provide Michael Johnson’s address or county of residence.1 (Id., ¶ 13).
The PGS Defendants filed their motion to transfer on June 23, 2022. Plaintiff is timely
filing this response within ten (10) days as required by this Court’s Transfer Rule T-9.
C. The Parties
Plaintiff: Ms. Spence lives in Yemassee, South Carolina. The PGS Defendants
improperly use her residence, which they say is closer to Chatham County than Gwinnett
County, in support of their motion. (Eg., Defs’ Brief, pp. 2-3, 5, 7-8). Ms. Spence chose to bring
this case in Gwinnett County, as she has the right to do, and she opposes a transfer to Chatham
County. As argued more fully at pp. 11-12, Plaintiff’s location and convenience are not
legitimate factors for Defendants to argue in support of their motion.
PGS Defendants: PGS USA, LLC and PGS USA Holding, LLC are Louisiana limited
liability companies (LLCs) with a principal place of business in Louisiana.2 (Complaint, ¶¶ 3, 4).
According to the PGS USA website, PGS is a “multinational logistics operator” and a
“benchmark operator in handling, warehousing, processing and [transporting] soft and hard
commodities.”3 PGS says it has no physical location in Georgia outside of Chatham County,
1
The PGS Defendants baldly aver that Mr. Johnson “resides in or near Chatham County”
but provide the Court with no evidence to support that assertion. (Defs’ Brief, p. 2).
2
True and accurate copies of PGS’s filings with the Georgia Secretary of State covering
2018-2023 are attached as Exhibit 3. (See Affidavit of David Krugler, attached as Exhibit 1, ¶
11).
3
A true and accurate copy of PGS’s description of its business obtained from its website
is attached as Exhibit 4. (Exh. 1, ¶ 12).
5
(Defs’ Brief, p. 2), and attempts to downplay its connection to Gwinnett. However, it is
undisputed that both PGS entities voluntary choose to be residents of Gwinnett County under the
Georgia Constitution and Georgia law.
This is not a technicality and itis not minimized by PGS’s decision to acknowledge
service. As shown below, LLCs define their own residence through the appointment of a
registered office and agent with the Secretary of State. Between 2018 and the present, PGS
repeatedly chose to have Gwinnett County registered agents in Gwinnett County registered
offices. (Exh. 3).
Express Employment Entities: Defendant Express Services, Inc. is a Colorado
corporation with a principal place of business in Oklahoma. 4 (Complaint, ¶ 13; Exh. 5).
Although Express Services, Inc. d/b/a Express Employment Professionals operates out of one
location in Chatham County, it also operates out of 26 other Georgia locations, including
Gwinnett County. 5 Additionally, like PGS, Express Services, Inc. for years has voluntarily
chosen to reside in Gwinnett County by appointing its registered agent and office here. (Exh. 5).
The other Express Employment entity, BCDK, LLC, is a Tennessee company that does
not have a registered agent in Georgia. (Complaint, ¶ 12). In sum, all of the Defendant entities
that maintain a registered agent in Georgia reside in Gwinnett County.
Kenneth Jackson and Michael Johnson: Defendants repeatedly state that the two
individual Defendants, Mr. Jackson and Mr. Johnson, reside in or near Chatham County. (Eg.,
4
True and accurate copies of Express Services, Inc.’s filings with the Georgia Secretary
of State from 2018 to the present are attached as Exhibit 5. (Exh. 1, ¶ 13).
5
A true and accurate copy of Express Services, Inc.’s Locations page from its Express
Employment Professionals website is attached as Exhibit 6. (Exh. 1, ¶ 14).
6
Defs’ Brief, pp. 2, 4, 5). There is no evidence before the Court that this is true. Similarly,
Defendants’ repeatedly state that numerous witnesses reside or are located in or near Chatham
County without providing any evidence regarding the identity or current addresses of these
witnesses. (Eg., Defs’ Brief, pp. 2, 3, 5, 6-7).
The record, when considered on the whole, refutes Defendants’ position that trying this
case in Gwinnett County would be so unjust and unfairly inconvenient to the PGS Defendants as
to warrant transfer. Plaintiff’s choice of forum is, by statute, entitled to deference and should
stand.
ARGUMENT AND CITATION OF AUTHORITY
A. Venue is Proper in Gwinnett County Because the Moving Defendant Entities
Have Chosen to Reside Here
In Georgia wrongful death actions, venue is controlled by the conduct of the defendant.
The Georgia Constitution provides that in civil cases generally, venue lies “in the county where
the defendant resides; venue as to corporations, foreign and domestic, shall be as provided by
law.” Ga. Const. Art. VI, Sec. II, Par. VI. The PGS entities are foreign LLCs, and Georgia law
provides that to determine venue, the residence of a foreign LLC is determined under O.C.G.A. §
14-2-510 as though it was a corporation. O.C.G.A. § 14-11-1108(b).
In turn, O.C.G.A. § 14-2-510(b) determines where corporations and LLCs are “deemed to
reside and be subject to venue” in this state. Absent special circumstances, corporations are
deemed to reside “in civil proceedings generally, in the county of this state where the corporation
maintains its registered office; ….” O.C.G.A. § 14-2-510(b)(1). As a result, absent special
circumstances, Georgia citizens injured by the negligence of a foreign LLC are required to file
suit in the county where the LLC decides to maintain its registered office.
Under O.C.G.A. § 14-11-209, a LLC shall maintain a registered agent and office, “which
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may, but need not be, a place of its business in this state.” O.C.G.A. § 14-11-209(a). Moreover, a
LLC may change its registered agent and office, and therefore its residence, by filing an
amendment to its annual registration. O.C.G.A. § 14-11-209(c). Pursuant to these laws, foreign
LLCs have the ability to choose and to change their residence and the county where they are
deemed to reside and be subject to venue in Georgia.
In this case, the PGS Defendants chose to designate registered agents and registered
offices in Gwinnett County and have maintained those designations since obtaining Certificates
of Authority to transact business in Georgia in 2018. Despite this, PGS now insists that this
Court should refuse to adjudicate this case because Gwinnett County is an inconvenient and
unjust venue.
If the PGS entities operate only out of Chatham County, they could have maintained
registered offices in that county. However, based on whatever benefit the PGS entities perceive
in a Gwinnett County residency (and by all appearances, PGS is a sophisticated business), they
have repeatedly chosen to maintain residency in Gwinnett County. The fact that the PGS entities
are subject to suit in Gwinnett County is the result of their own decisions. They had complete
control over their selection of a Gwinnett County registered agent, office and residence - Plaintiff
had none.
Defendants correctly point out that Plaintiff could have, but certainly was not required to,
file suit in Chatham County pursuant to O.C.G.A. § 14-2-510(b)(3) because the underlying torts
occurred in Chatham County and PGS has an office there. However, that fact is not a valid basis
for transferring this case under the forum non conveniens statute. After considering the necessary
factors identified in O.C.G.A. § 9-10-31.1, this Court should decline to transfer this action.
8
B. Defendants Fail to Prove That The Factors Identified in O.C.G.A. § 9-10-31.1(a)
Support Transferring This Action to Chatham County
Under O.C.G.A. § 9-10-31.1, Defendants carry the burden of proof “to show that the
factors set forth in O.C.G.A. § 9-10-31.1(a) support the transfer,” i.e., that transfer is required in
“the interest of justice” and “for the convenience of the parties and witnesses.” R.J. Taylor
Memorial Hospital v. Beck, 280 Ga. 660, 662 (2006). “A defendant seeking to change venue by
reason of forum non conveniens has a heavy burden.” Park Ave. Bank v. Steamboat City Dev.
Co., L.P., 317 Ga. App. 289 (2012) (emphasis added), overruled on other grounds by Wang v.
Liu, 292 Ga. 568 (2013). In their brief, Defendants do not acknowledge their burden of proof at
all.
The PGS Defendants can satisfy their “heavy burden” by introducing evidence
establishing that the following seven factors warrant transferring this case out of Gwinnett
County:
(1) Relative ease of access to sources of proof;
(2) Availability and cost of compulsory process for attendance of unwilling
witnesses;
(3) Possibility of viewing of the premises, if viewing would be appropriate to
the action;
(4) Unnecessary expense or trouble to the defendant not necessary to the
plaintiff's own right to pursue his or her remedy;
(5) Administrative difficulties for the forum courts;
(6) Existence of local interests in deciding the case locally; and
(7) The traditional deference given to a plaintiff's choice of forum.
O.C.G.A. § 9-10-31.1(a).
Whether to transfer a case under this statute is a matter within the trial court’s discretion
9
and, absent abuse, the trial court’s decision will be affirmed. Beck, 280 Ga. at 662; McInerney v.
McInerney, 313 Ga. 462, 469 (2022). When a court considers motions under O.C.G.A. § 9-10-
31.1(a), the Georgia Supreme Court has held that the “better practice” for trial courts is to make
specific findings on each of the enumerated factors. Wang v. Liu, 292 Ga. 568, 570 (2013).
Defendants have presented this Court with essentially no evidence in support of their motion.
1. Relative Ease Of Access To Sources Of Proof
The first factor is whether the parties’ “ease of access” to sources of proof is more
difficult with venue in Gwinnett County than it would be in Chatham County. This factor does
not weigh in favor of transfer to Chatham County and Defendants have not met their burden of
proof on this factor.
In their Motion and Brief, Defendants fundamentally misinterpret this first factor by
focusing solely on the location of unidentified potential witnesses and their own business
operations (Defs’ Brief, p. 5), rather than on the statutory factor: whether the parties’ access to
evidence is restricted due to venue in Gwinnett. Defendants make no showing and offer no
argument in this regard.
The reason for this is simple: the parties have equal access to all sources of proof –
documentary and testimonial – in both Gwinnett County and Chatham County. As the Court is
well aware, exchanging documentary evidence is done electronically in nearly all cases these
days, and the location of the courthouse has no impact on the parties’ “ease of access” to such
evidence. Before the case was filed, Plaintiff and PGS voluntarily exchanged documents
electronically and the parties will certainly continue to exchange discovery and additional
documents electronically. (Exh. 1, ¶ 6). Similarly, the parties “ease of access” to documentary
evidence from firstresponders, medical providers or other non-parties is the same in Gwinnett
10
County as it is in Chatham County through requests for production of documents or Open
Records Act requests. See O.C.G.A. § 9-11-34(c); O.C.G.A. § 50-18-70.
Similarly, fact witness depositions in this case will be done in various parts of Georgia
and, as has been the practice over the last several years, often done remotely by Zoom or other
services. (Exh. 1, ¶ 9). As alleged in Plaintiff’s Complaint, fact witnesses in this case will not
only be in Chatham County, but also next door to Gwinnett in Barrow County, where Plaintiff’s
decedent attempted to deliver the cargo at issue and which was rejected by a company in Winder.
(Complaint ¶¶ 24, 27).6 Expert witnesses, of course, will be made available as required under
the Civil Practice Act and the parties “ease of access” to such evidence will be unaffected by the
Gwinnett County venue. (Exh. 1, ¶ 8).
As the State Court of Cobb County held in rejecting a similar motion to transfer:
Discovery in this day and age is largely electronic. Any paper discovery is
typically produced via mail. The location of depositions would vary witness by
witness, regardless of the location of trial. There is no evidence or argument
adduced that there are unique discovery issues that impact either sides ’ability to
access evidence in this case. Accordingly, Defendants failed to show that this
factor warrants the transfer of this matter.
See Smith v. Wellstar Health System, Inc., et al., State Court of Cobb County, Civil Action File
No. 18-A-3460-2 (May 5, 2020), attached as Exhibit 7, p. 4; Exh. 1, ¶ 15.
Defendants’ argument that Chatham County would be more convenient for the Plaintiff is
also without merit. Plaintiff chose Gwinnett County to file this suit because half of the
Defendants – including two of the movants – reside here. Defendants cannot use Chatham
County’s distance to Plaintiff’s residence to support their motion. Plaintiff has exercised her right
6
Plaintiff’s counsel has identified all currently known witnesses who are believed to have
relevant knowledge or evidence regarding Plaintiff’s claims and who do not reside in Chatham
County in paragraph 7 of his Affidavit, attached as Exhibit 1.
11
to file this case in Gwinnett County and will appear at her own expense at trial.As this Court
observed in denying a defendants’ motion to transfer from Gwinnett County some 240 miles
away to Bulloch County:
Defendants also point out that the Plaintiff also lives in Bulloch County which
would be less costly and troublesome to Plaintiff. (However, the Court notes that
the Plaintiff chose to file this case in Gwinnett County which would indicate that
Plaintiff voluntarily chose to undertake any such trouble and expense.)
Wood v. Munger, et al., State Court of Gwinnett County, Civil Action File No. 18-C-02747-3
(Aug. 10, 2018), attached as Exhibit 8, at p. 2; Exh. 1, ¶ 16.
Finally, Defendants’ focus on the location of the tort in this case is also legally
inadequate and irrelevant, as the location of the tort is not listed as a factor in weighing a motion
to transfer under O.C.G.A. § 9-10-31.1(a). Georgia’s statute stands in stark contrast to its federal
counterpart which uses the “locus of the operative facts” as a factor federal courts must weigh on
a forum non conveniens motion. See Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n. 1 (11th
Cir. 2005) (the “locus of the operative facts” is a factor to be considered under the federal forum
non conveniens statute, 28 U.S.C. § 1404). The Georgia General Assembly’s decision not to
include the location of the tort as a factor in the forum non conveniens statute is a significant
indication of legislative intent. Despite this, Defendants repeatedly rely on the fact that the
alleged torts occurred in Chatham County with respect to almost every factor in O.C.G.A. § 9-
10-31.1(a),7 and they cite almost exclusively federal authority in support of their motion. The
7
See, eg., Defs’ Brief at p. 5 (“all the acts/omissions alleged to be negligent took place in
Chatham County…”); p. 5 (“…Chatham County, as this is where the alleged incident took
place…”); p. 6 (“…all the alleged negligent acts and omissions occurred in Chatham County
…”); p. 8 (“…no doubt Chatham County would have the greatest interest in deciding this
controversy because the cause of action arose there,…”); p. 9 (“…the Plaintiff’s choice of forum
is entitled to less weight where, as here, … the underlying events did not arise there.”
12
law in Georgia simply does not list the tort’s location as a factor influencing a decision on
transfer.8
Defendants have presented no evidence or argument that their
ease of access” to proof will be impeded by the Gwinnett County venue or that it would be easier
if this case were transferred to Chatham County.
2. Availability And Cost Of Compulsory Process For Attendance Of
Unwilling Witnesses
In considering this factor, the Georgia Supreme Court recently held that trial courts
should determine “whether any witnesses are unwilling to voluntarily travel to [Gwinnett
County] for trial (as opposed to merely being inconvenienced by the prospect) and the cost of
securing compulsory process for securing any such witnesses’ attendance.” McInerney, supra,
313 Ga. at 470. The PGS Defendants have failed to meet their burden of proof on this factor:
they have not identified a single witness who would be unwilling to travel to Gwinnett County.
(Defs’ Brief, pp. 5-6). The fact that some witnesses may reside in or close to Chatham County
does not make them unwilling.
Even if Defendants had identified an unwilling witness, any witness in Georgia can be
compelled to attend trial in Gwinnett County just as he or she could in Chatham County.
O.C.G.A. § 24-13-22 (a “subpoena requiring the attendance of a witness at … trial may be served
at any place within the state”). While additional costs in mileage fees may be incurred to secure
8
The forum non conveniens law, as originally enacted, did identify the location of the tort
in one subsection, O.C.G.A. § 9-10-31.1(c), and allowed nonresident defendants in medical
malpractice actions to require that the case be transferred to a county of that defendant’s
residence if the tortious act occurred in the county of that defendant's residence. The Georgia
Supreme Court declared that subsection unconstitutional in EHCA Cartersville, LLC v. Turner,
280 Ga. 333 (2006). Here, of course, two of the three moving Defendants are residents of
Gwinnett County.
13
the attendance of a hypothetical unwilling Chatham County witness at trial in Gwinnett, the costs
related to securing witnesses who are Defendants’ employees/agents/servants will be borne by
Plaintiff, who willingly accepts this burden.
Defendants also ignore the fact that there are witnesses who will be located in or around
Winder, Georgia, where Plaintiff’s decedent attempted to deliver the cargo loaded by
Defendants. (Exh. 1, ¶ 7). Those witnesses are no less or more important than ones in Chatham
County, and the cost of compulsory attendance for them, if any, would be less should this case
remain in Gwinnett County. While Chatham County may be more convenient for some
witnesses, other witnesses from the intended recipient company in Winder, Georgia likely reside
closer to Gwinnett County.
In addition, Plaintiff anticipates uses out-of-state experts in this case and they have
already retained consulting experts outside of Georgia. (Exh. 1, ¶ 8). Due to the accessibility of
Atlanta’s airport, Gwinnett County will be significantly more convenient for any experts flying
into Georgia to testify. (Id.).
As this Court previously held in denying a motion to transfer venue from Gwinnett to
Bibb County, “Defendant fails to show that Court process will be better available and/or cheaper
in Bibb County, or that any witnesses are ‘unwilling’ (as explicitly required by this Code
Section). Therefore, this factor does not weigh in Defendant’s favor.” Kiefer v. Heart of Georgia
Cardiology, State Court of Gwinnett County, Civil Action File No. 18-C-02928-3 (Jan. 23,
2019), attached as Exhibit 9, at p. 3; Exh. 1, ¶ 17.
Under the second factor, Defendants also broadly claim hypothetical concerns about costs
and inconvenience that could be incurred by unidentified witnesses for things like additional
costs for food, fuel and overnight arrangements. Defendants baldly assert that a “prolonged
14
absence” for “a lengthy wrongful death trial would almost certainly impact childcare, school, and
other family-related obligations of the witnesses.” (Defs’ Brief, p. 6). In McInerney, supra, the
Georgia Supreme Court held that such witness inconveniences are not properly included under
this factor. McInerney, 313 Ga. at 470. And even if such considerations were appropriate,
Defendants have not identified a single trial witness who would suffer undue inconvenience
because they have children requiring childcare, school obligations, or “family-related
obligations.” This is pure speculation. Similarly, there is no evidence that a “prolonged absence”
for a lengthy trial would be required for any witness. As observed by the State Court of Cobb
County in rejecting a similar argument to transfer a case to Spalding County:
The only potential expense or trouble regarding witnesses would be for the day
that the witness(es) would be needed for trial, and even then, only for those
witnesses who appear live. Defendants’ argument assumes that all witnesses will
appear live when, in reality, many trial witnesses appear via video deposition.
Smith v. Wellstar, supra, attached as Exhibit 7, p. 5.
Finally, Plaintiff does not intend to unnecessarily inconvenience fact witnesses. Counsel
will carefully consider her order and timing of proof to eliminate or lessen the need for overnight
accommodations, as well as food or fuel expenses not already covered by the per diem and
mileage fees. Taken as a whole, Defendants have not proven that concerns regarding witness
convenience weigh in favor of transferring this case to Chatham County.
3. Possibility Of Viewing Of The Premises, If Viewing Would Be
Appropriate To The Action
Viewing the premises in this case is a non-issue. The factor regarding the possibility of
viewing the premises, by the express terms of the statute, applies only "if viewing would be
appropriate to the action." O.C.G.A. § 9-10-31.l(a)(3). Nothing here suggests that viewing the
accident premises would be appropriate. The parties have dozens – if not hundreds - of photographs
of the subject scene taken by police, other first responders, OSHA and experts who have already
15
visited the scene of the incident. This is a standard negligence action and it is inconceivable that
there would be any need to view any premises during the trial of this case. Even Defendants do
not go so far as to suggest that there will be a need to view the premises in this case. (Defs’
Brief, p. 6 [“If the need arose to view the premises or any equipment …”]) (emphasis added).
This factor does not support overriding the Plaintiff’s choice of forum.
4. Unnecessary Expense Or Trouble To The Defendant Not
Necessary To The Plaintiff's Own Right To Pursue His Or Her
Remedy
All litigation involves some expense and inconvenience for parties and witnesses,
regardless of the location of the courthouse. All non-party witnesses will likely experience delays
and wait times before testifying at trial, regardless of whether this case is tried in Gwinnett
County or Chatham County. While trying this case in Gwinnett County may result in more
inconvenience for some parties or witnesses, this venue will be more convenient than Chatham
County for other witnesses. Defendants’ selective focus on unidentified potential witnesses
residing in Chatham County -- over witnesses in Barrow County and out-of-state expert
witnesses – is legally insufficient and improper.
As it relates to the parties’ attorneys, two of the three sets of counsel have offices in
Fulton County, which abuts Gwinnett County but not Chatham County.9
9
Citing federal law, Defendants claim that the location of counsel is not a relevant factor.
(Defs’ Brief, p. 9). However, Gwinnett County courts routinely consider the location of counsel
on motions based on forum non conveniens. See, eg., this Court’s Order in Hill v. Indiana Mills
& Mfr., Inc., et al., State Court of Gwinnett County, Civil Action File No. 17-C-07188-S1 (Jan.
17, 2020), attached as Exhibit 10, at p. 10, Exh. 1,¶ 18; Kiefer v. Heart of Georgia Cardiology,
attached as Exhibit 9, at p. 3. Moreover, counsel for the PGS Defendants has an impressively
broad reach, representing “companies and individuals in Georgia, across the Southeast, and
throughout the United States.” (www.huntermaclean.com). They are undoubtedly capable of
traveling to Gwinnett County for a trial without significant inconvenience.
16
The question is not whether there will be some additional costs in one venue versus
another. The question is whether Defendants have met their burden to demonstrate that
Gwinnett County somehow has imposed unnecessary expense or trouble on them. Defendants
have not presented the Court with any evidence that unnecessary expense or inconvenience to the
parties warrants transfer.10 And significantly, Defendants misstate the burden of proof on this
factor. (Defs’ Brief, p. 7 (“Plaintiff cannot show that her right or ability to fully pursue all of her
claims in this action are any greater in Gwinnett County….”) (emphasis added). In McInerney,
313 Ga. at 470-471, the Supreme Court held that a trial court failed to properly consider this
fourth factor because “the burden never leaves the moving party.” Accordingly, Defendants must
prove that unnecessary trouble or expense warrant transferring this case out of Gwinnett. They
have not meet their burden.
Finally, the sole case cited by Defendants, Gulf Oil Corp. v. Gilbert, 330 U.S. 501
(1946), is readily distinguishable. Gulf Oil was decided in 1946 before the federal or Georgia
forum non conveniens statutes were even enacted and determined whether a federal district court
had inherent powers under the forum non conveniens doctrine. Gulf Oil, 330 U.S. at 502.
Additionally, there is absolutely no evidence that the concerns mentioned in the opinion- the
vexation, harassment and oppression of defendants- are happening here. See Id. at 508.
Moreover, Gulf Oil’s language supports Plaintiff’s position- “… unless the balance is strongly in
favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.” Id. at 508
10
Again, Defendants cannot meet their burden of proof by simply making general,
hypothetical assertions unsupported by any evidence in the record. See eg. Defs’ Brief at p. 7
(witnesses may include former employees or contractors over whom the parties have no control;
witnesses would be required to “spend days away from their lives,” “it is well recognized” that
video depositions are “a poor substitute” for live testimony at trial).
17
(emphasis added).
5. Administrative Difficulties For The Forum Courts
Defendants present no evidence about any alleged administrative difficulties for this
Court. They cite Gulf Oil, supra, for the proposition that administrative difficulties are created
when litigation is “piled up in congested centers” instead of handled “at its origin.” (Defs’ Brief,
p. 8). There is no evidence that litigation is piled up in Gwinnett County or that it is a congested
center. Moreover, O.C.G.A. § 9-10-31.1(a) does not include a factor favoring venue at a case’s
“origin.” Finally, it is difficult to understand how this matter has no relationship to Gwinnett
County when three of the six Defendants have chosen to reside here.
There is no doubt that the Gwinnett County court system is large enough and sufficiently
equipped to handle this civil matt
Preview
IN THE STATE COURT OF GWINNETT COUNTY STATE OF GEORGIA SHAMAD SPENCE, individually as ) surviving spouse of VERSALIUS ) JOHNSON, deceased, ) ) CIVIL ACTION FILE NO. Plaintiff, ) ) 22-C-02753-S1 v. ) ) PGS USA, LLC; PGS USA HOLDING, ) LLC; MICHAEL JOHNSON; ) KENNETH JACKSON; BCDK, LLC; ) and EXPRESS SERVICES, INC., ) ) Defendants. ) PLAINTIFF’S BRIEF IN OPPOSITION TO DEFENDANTS PGS USA, LLC, PGS USA HOLDING, LLC AND KENNETH JACKSON’S MOTION TO TRANSFER VENUE Plaintiff hereby files her Brief in Opposition to the above-named Defendants’ Motion to Transfer Venue. For the reasons set forth below, Defendants’ motion should be denied. INTRODUCTION Plaintiff Shamad Spence filed this wrongful death action arising out of the death of her 40 year-old husband, Versalius Johnson, from blunt force injuries he sustained when heavy cargo being unloaded by the Defendants fell off of a flatbed truck, striking and pinning him to the ground. Mr. Spence was pronounced dead within hours. It is undisputed that venue is proper in this Court because three of the six Defendants, including two of the moving Defendants, voluntarily chose Gwinnett County as their Georgia residence. Despite their choice to reside in Gwinnett County for the entire time they have operated in Georgia, Defendants PGS USA, LLC and PGS USA Holding, LLC, as well as their employee Kenneth Jackson (“the PGS Defendants”), have moved to transfer this case from Gwinnett County to Chatham County under Georgia’s forum non conveniens statute, O.C.G.A. § 9-10-31.1(a), unpersuasively arguing that litigating this action in Gwinnett County is so inconvenient and unjust as to warrant the Court rejecting Plaintiff’s choice of forum and transferring this action to another venue. The forum non conveniens statute does not permit a defendant to demand transfer to another venue whenever it believes the change would be advantageous or even more convenient. Instead, the statute is intended to address only those rare situations where venue is legally proper, but its location would impose such a heavy burden upon the parties, witnesses and the Court that the interests of justice demand or warrant transfer to another county. O.C.G.A. § 9-10-31.1; R.J. Taylor Memorial Hospital v. Beck, 280 Ga. 660, 662 (2006). This is not one of those rare situations. Georgia law imposes a “heavy burden” of proof on Defendants to introduce evidence that the factors listed in O.C.G.A. § 9-10-31.1(a) support transfer. In this case, Defendants have failed to meet their burden, or present any proof at all, in almost every respect. There is no showing that litigating in Gwinnett County poses difficulties with accessing witnesses and evidence or that relocating to Chatham County will allow easier access. There is no demonstration that resort to compulsory process will be necessary, that there is a need to view the premises, or that the PGS Defendants will be so inconvenienced by litigating in their county of residence that the interests of justice warrant transfer. Finally but significantly, and as expressly set forth in O.C.G.A. § 9-10-31.1, the traditional deference given to Plaintiff’s choice of forum in Gwinnett County supports keeping the case in this Court. Defendants’ motion should be denied. 2 STATEMENT OF FACTS A. Background and Allegations On February 14, 2022, Plaintiff’s decedent, Versalius Johnson, drove a flatbed truck to deliver cargo from a warehouse in Port Wentworth, Chatham County, Georgia to a company in Winder, Barrow County, Georgia. The cargo, 48 bundles of hollow aluminum profiles, was loaded onto Mr. Johnson’s truck at a Port Wentworth warehouse that was owned and/or operated by Defendants PGS USA, LLC and PGS USA Holding, LLC (collectively referred to as “PGS”). (Complaint, ¶¶ 5, 6, 24). The cargo was loaded onto Mr. Johnson’s truck by agents, employees and borrowed servants of PGS and/or a temporary staffing company doing business as Express Employment Professionals Savannah. (Id., ¶¶ 14, 24). Express Employment Professionals Savannah was owned and/or operated by Defendants Express Services, Inc. and BCDK, LLC (collectively referred to as “Express Employment”). (Id., ¶¶ 12-15, 24). When Mr. Johnson reached Winder, the recipient company rejected the cargo and instructed Mr. Johnson to return the shipment to PGS. (Id., ¶ 27). Mr. Johnson arrived back at the PGS warehouse in Port Wentworth on the morning of February 16, 2022. (Id., ¶ 28). Defendants Michael Johnson and Kenneth Jackson, who were agents, employees, and/or borrowed servants of PGS and/or Express Employment, were forklift operators at the warehouse. (Id., ¶ 9, 14-16, 29). On February 16, 2022, Michael Johnson and Mr. Jackson used their forklifts to unload the cargo from Versalius Johnson’s truck. (Id., ¶ 29). During that process, four bundles of cargo fell off of the flatbed truck, with one striking Versalius Johnson and pinning him to the ground. (Id., ¶ 34). Mr. Johnson was taken to the hospital and pronounced dead within hours due to blunt force trauma. (Death Certificate, attached as Exhibit 2). There is no credible dispute 3 regarding the medical cause of his death. Versalius Johnson’s spouse, Shamad Spence, filed suit against PGS, Express Employment, Michael Johnson, and Kenneth Jackson on May 18, 2022 in Gwinnett County State Court. Ms. Spence contends that agents, employees, and servants of PGS and Express Employment, including Michael Johnson and Kenneth Jackson, failed to exercise ordinary care in the packaging, loading and unloading of the cargo on Mr. Johnson’s truck, thereby causing the bundle to fatally strike Mr. Johnson. (Complaint, ¶¶ 26, 31-35). She also contends that PGS and Express Employment are vicariously liable for the negligence of their agents, employees and borrowed servants. (Id., ¶ 11, 18). Ms. Spence filed her action in this Court under Georgia law and the Georgia Constitution because Defendants PGS USA, LLC, PGS USA Holding, LLC and Express Services, Inc. voluntarily chose Gwinnett County as their county of residence by appointing their registered agents and offices here, and those appointments were in effect at the time suit was filed. (Complaint, ¶¶ 3, 4, 13). The PGS Defendants do not dispute that these facts provide a proper basis for venue in this Court. (Defs’ Brief, p. 3). B. Procedural Posture On June 23, 2022, the PGS Defendants filed their collective Answer, admitting that venue is proper in Gwinnett County. (Answer of PGS Defendants, ¶ 21). The Answer does not provide Defendant Kenneth Jackson’s address or county of residence. (Id., ¶ 8). The PGS Defendants also filed a cross-claim against Defendant Express Services, Inc., (Id., ¶¶ 39-51), alleging in part that Express Services was the entity responsible for training Defendant Michael Johnson in the proper operation of forklifts. (Id., ¶ 44). The Express Employment Defendants- Express Services, Inc., BCDK, LLC, and Michael 4 Johnson- filed their collective Answer on June 30, 2022, admitting that venue is proper in this Court. (Answer of Express Employment Defendants, ¶ 21). They have not joined the motion to transfer, and they did not provide Michael Johnson’s address or county of residence.1 (Id., ¶ 13). The PGS Defendants filed their motion to transfer on June 23, 2022. Plaintiff is timely filing this response within ten (10) days as required by this Court’s Transfer Rule T-9. C. The Parties Plaintiff: Ms. Spence lives in Yemassee, South Carolina. The PGS Defendants improperly use her residence, which they say is closer to Chatham County than Gwinnett County, in support of their motion. (Eg., Defs’ Brief, pp. 2-3, 5, 7-8). Ms. Spence chose to bring this case in Gwinnett County, as she has the right to do, and she opposes a transfer to Chatham County. As argued more fully at pp. 11-12, Plaintiff’s location and convenience are not legitimate factors for Defendants to argue in support of their motion. PGS Defendants: PGS USA, LLC and PGS USA Holding, LLC are Louisiana limited liability companies (LLCs) with a principal place of business in Louisiana.2 (Complaint, ¶¶ 3, 4). According to the PGS USA website, PGS is a “multinational logistics operator” and a “benchmark operator in handling, warehousing, processing and [transporting] soft and hard commodities.”3 PGS says it has no physical location in Georgia outside of Chatham County, 1 The PGS Defendants baldly aver that Mr. Johnson “resides in or near Chatham County” but provide the Court with no evidence to support that assertion. (Defs’ Brief, p. 2). 2 True and accurate copies of PGS’s filings with the Georgia Secretary of State covering 2018-2023 are attached as Exhibit 3. (See Affidavit of David Krugler, attached as Exhibit 1, ¶ 11). 3 A true and accurate copy of PGS’s description of its business obtained from its website is attached as Exhibit 4. (Exh. 1, ¶ 12). 5 (Defs’ Brief, p. 2), and attempts to downplay its connection to Gwinnett. However, it is undisputed that both PGS entities voluntary choose to be residents of Gwinnett County under the Georgia Constitution and Georgia law. This is not a technicality and itis not minimized by PGS’s decision to acknowledge service. As shown below, LLCs define their own residence through the appointment of a registered office and agent with the Secretary of State. Between 2018 and the present, PGS repeatedly chose to have Gwinnett County registered agents in Gwinnett County registered offices. (Exh. 3). Express Employment Entities: Defendant Express Services, Inc. is a Colorado corporation with a principal place of business in Oklahoma. 4 (Complaint, ¶ 13; Exh. 5). Although Express Services, Inc. d/b/a Express Employment Professionals operates out of one location in Chatham County, it also operates out of 26 other Georgia locations, including Gwinnett County. 5 Additionally, like PGS, Express Services, Inc. for years has voluntarily chosen to reside in Gwinnett County by appointing its registered agent and office here. (Exh. 5). The other Express Employment entity, BCDK, LLC, is a Tennessee company that does not have a registered agent in Georgia. (Complaint, ¶ 12). In sum, all of the Defendant entities that maintain a registered agent in Georgia reside in Gwinnett County. Kenneth Jackson and Michael Johnson: Defendants repeatedly state that the two individual Defendants, Mr. Jackson and Mr. Johnson, reside in or near Chatham County. (Eg., 4 True and accurate copies of Express Services, Inc.’s filings with the Georgia Secretary of State from 2018 to the present are attached as Exhibit 5. (Exh. 1, ¶ 13). 5 A true and accurate copy of Express Services, Inc.’s Locations page from its Express Employment Professionals website is attached as Exhibit 6. (Exh. 1, ¶ 14). 6 Defs’ Brief, pp. 2, 4, 5). There is no evidence before the Court that this is true. Similarly, Defendants’ repeatedly state that numerous witnesses reside or are located in or near Chatham County without providing any evidence regarding the identity or current addresses of these witnesses. (Eg., Defs’ Brief, pp. 2, 3, 5, 6-7). The record, when considered on the whole, refutes Defendants’ position that trying this case in Gwinnett County would be so unjust and unfairly inconvenient to the PGS Defendants as to warrant transfer. Plaintiff’s choice of forum is, by statute, entitled to deference and should stand. ARGUMENT AND CITATION OF AUTHORITY A. Venue is Proper in Gwinnett County Because the Moving Defendant Entities Have Chosen to Reside Here In Georgia wrongful death actions, venue is controlled by the conduct of the defendant. The Georgia Constitution provides that in civil cases generally, venue lies “in the county where the defendant resides; venue as to corporations, foreign and domestic, shall be as provided by law.” Ga. Const. Art. VI, Sec. II, Par. VI. The PGS entities are foreign LLCs, and Georgia law provides that to determine venue, the residence of a foreign LLC is determined under O.C.G.A. § 14-2-510 as though it was a corporation. O.C.G.A. § 14-11-1108(b). In turn, O.C.G.A. § 14-2-510(b) determines where corporations and LLCs are “deemed to reside and be subject to venue” in this state. Absent special circumstances, corporations are deemed to reside “in civil proceedings generally, in the county of this state where the corporation maintains its registered office; ….” O.C.G.A. § 14-2-510(b)(1). As a result, absent special circumstances, Georgia citizens injured by the negligence of a foreign LLC are required to file suit in the county where the LLC decides to maintain its registered office. Under O.C.G.A. § 14-11-209, a LLC shall maintain a registered agent and office, “which 7 may, but need not be, a place of its business in this state.” O.C.G.A. § 14-11-209(a). Moreover, a LLC may change its registered agent and office, and therefore its residence, by filing an amendment to its annual registration. O.C.G.A. § 14-11-209(c). Pursuant to these laws, foreign LLCs have the ability to choose and to change their residence and the county where they are deemed to reside and be subject to venue in Georgia. In this case, the PGS Defendants chose to designate registered agents and registered offices in Gwinnett County and have maintained those designations since obtaining Certificates of Authority to transact business in Georgia in 2018. Despite this, PGS now insists that this Court should refuse to adjudicate this case because Gwinnett County is an inconvenient and unjust venue. If the PGS entities operate only out of Chatham County, they could have maintained registered offices in that county. However, based on whatever benefit the PGS entities perceive in a Gwinnett County residency (and by all appearances, PGS is a sophisticated business), they have repeatedly chosen to maintain residency in Gwinnett County. The fact that the PGS entities are subject to suit in Gwinnett County is the result of their own decisions. They had complete control over their selection of a Gwinnett County registered agent, office and residence - Plaintiff had none. Defendants correctly point out that Plaintiff could have, but certainly was not required to, file suit in Chatham County pursuant to O.C.G.A. § 14-2-510(b)(3) because the underlying torts occurred in Chatham County and PGS has an office there. However, that fact is not a valid basis for transferring this case under the forum non conveniens statute. After considering the necessary factors identified in O.C.G.A. § 9-10-31.1, this Court should decline to transfer this action. 8 B. Defendants Fail to Prove That The Factors Identified in O.C.G.A. § 9-10-31.1(a) Support Transferring This Action to Chatham County Under O.C.G.A. § 9-10-31.1, Defendants carry the burden of proof “to show that the factors set forth in O.C.G.A. § 9-10-31.1(a) support the transfer,” i.e., that transfer is required in “the interest of justice” and “for the convenience of the parties and witnesses.” R.J. Taylor Memorial Hospital v. Beck, 280 Ga. 660, 662 (2006). “A defendant seeking to change venue by reason of forum non conveniens has a heavy burden.” Park Ave. Bank v. Steamboat City Dev. Co., L.P., 317 Ga. App. 289 (2012) (emphasis added), overruled on other grounds by Wang v. Liu, 292 Ga. 568 (2013). In their brief, Defendants do not acknowledge their burden of proof at all. The PGS Defendants can satisfy their “heavy burden” by introducing evidence establishing that the following seven factors warrant transferring this case out of Gwinnett County: (1) Relative ease of access to sources of proof; (2) Availability and cost of compulsory process for attendance of unwilling witnesses; (3) Possibility of viewing of the premises, if viewing would be appropriate to the action; (4) Unnecessary expense or trouble to the defendant not necessary to the plaintiff's own right to pursue his or her remedy; (5) Administrative difficulties for the forum courts; (6) Existence of local interests in deciding the case locally; and (7) The traditional deference given to a plaintiff's choice of forum. O.C.G.A. § 9-10-31.1(a). Whether to transfer a case under this statute is a matter within the trial court’s discretion 9 and, absent abuse, the trial court’s decision will be affirmed. Beck, 280 Ga. at 662; McInerney v. McInerney, 313 Ga. 462, 469 (2022). When a court considers motions under O.C.G.A. § 9-10- 31.1(a), the Georgia Supreme Court has held that the “better practice” for trial courts is to make specific findings on each of the enumerated factors. Wang v. Liu, 292 Ga. 568, 570 (2013). Defendants have presented this Court with essentially no evidence in support of their motion. 1. Relative Ease Of Access To Sources Of Proof The first factor is whether the parties’ “ease of access” to sources of proof is more difficult with venue in Gwinnett County than it would be in Chatham County. This factor does not weigh in favor of transfer to Chatham County and Defendants have not met their burden of proof on this factor. In their Motion and Brief, Defendants fundamentally misinterpret this first factor by focusing solely on the location of unidentified potential witnesses and their own business operations (Defs’ Brief, p. 5), rather than on the statutory factor: whether the parties’ access to evidence is restricted due to venue in Gwinnett. Defendants make no showing and offer no argument in this regard. The reason for this is simple: the parties have equal access to all sources of proof – documentary and testimonial – in both Gwinnett County and Chatham County. As the Court is well aware, exchanging documentary evidence is done electronically in nearly all cases these days, and the location of the courthouse has no impact on the parties’ “ease of access” to such evidence. Before the case was filed, Plaintiff and PGS voluntarily exchanged documents electronically and the parties will certainly continue to exchange discovery and additional documents electronically. (Exh. 1, ¶ 6). Similarly, the parties “ease of access” to documentary evidence from firstresponders, medical providers or other non-parties is the same in Gwinnett 10 County as it is in Chatham County through requests for production of documents or Open Records Act requests. See O.C.G.A. § 9-11-34(c); O.C.G.A. § 50-18-70. Similarly, fact witness depositions in this case will be done in various parts of Georgia and, as has been the practice over the last several years, often done remotely by Zoom or other services. (Exh. 1, ¶ 9). As alleged in Plaintiff’s Complaint, fact witnesses in this case will not only be in Chatham County, but also next door to Gwinnett in Barrow County, where Plaintiff’s decedent attempted to deliver the cargo at issue and which was rejected by a company in Winder. (Complaint ¶¶ 24, 27).6 Expert witnesses, of course, will be made available as required under the Civil Practice Act and the parties “ease of access” to such evidence will be unaffected by the Gwinnett County venue. (Exh. 1, ¶ 8). As the State Court of Cobb County held in rejecting a similar motion to transfer: Discovery in this day and age is largely electronic. Any paper discovery is typically produced via mail. The location of depositions would vary witness by witness, regardless of the location of trial. There is no evidence or argument adduced that there are unique discovery issues that impact either sides ’ability to access evidence in this case. Accordingly, Defendants failed to show that this factor warrants the transfer of this matter. See Smith v. Wellstar Health System, Inc., et al., State Court of Cobb County, Civil Action File No. 18-A-3460-2 (May 5, 2020), attached as Exhibit 7, p. 4; Exh. 1, ¶ 15. Defendants’ argument that Chatham County would be more convenient for the Plaintiff is also without merit. Plaintiff chose Gwinnett County to file this suit because half of the Defendants – including two of the movants – reside here. Defendants cannot use Chatham County’s distance to Plaintiff’s residence to support their motion. Plaintiff has exercised her right 6 Plaintiff’s counsel has identified all currently known witnesses who are believed to have relevant knowledge or evidence regarding Plaintiff’s claims and who do not reside in Chatham County in paragraph 7 of his Affidavit, attached as Exhibit 1. 11 to file this case in Gwinnett County and will appear at her own expense at trial.As this Court observed in denying a defendants’ motion to transfer from Gwinnett County some 240 miles away to Bulloch County: Defendants also point out that the Plaintiff also lives in Bulloch County which would be less costly and troublesome to Plaintiff. (However, the Court notes that the Plaintiff chose to file this case in Gwinnett County which would indicate that Plaintiff voluntarily chose to undertake any such trouble and expense.) Wood v. Munger, et al., State Court of Gwinnett County, Civil Action File No. 18-C-02747-3 (Aug. 10, 2018), attached as Exhibit 8, at p. 2; Exh. 1, ¶ 16. Finally, Defendants’ focus on the location of the tort in this case is also legally inadequate and irrelevant, as the location of the tort is not listed as a factor in weighing a motion to transfer under O.C.G.A. § 9-10-31.1(a). Georgia’s statute stands in stark contrast to its federal counterpart which uses the “locus of the operative facts” as a factor federal courts must weigh on a forum non conveniens motion. See Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n. 1 (11th Cir. 2005) (the “locus of the operative facts” is a factor to be considered under the federal forum non conveniens statute, 28 U.S.C. § 1404). The Georgia General Assembly’s decision not to include the location of the tort as a factor in the forum non conveniens statute is a significant indication of legislative intent. Despite this, Defendants repeatedly rely on the fact that the alleged torts occurred in Chatham County with respect to almost every factor in O.C.G.A. § 9- 10-31.1(a),7 and they cite almost exclusively federal authority in support of their motion. The 7 See, eg., Defs’ Brief at p. 5 (“all the acts/omissions alleged to be negligent took place in Chatham County…”); p. 5 (“…Chatham County, as this is where the alleged incident took place…”); p. 6 (“…all the alleged negligent acts and omissions occurred in Chatham County …”); p. 8 (“…no doubt Chatham County would have the greatest interest in deciding this controversy because the cause of action arose there,…”); p. 9 (“…the Plaintiff’s choice of forum is entitled to less weight where, as here, … the underlying events did not arise there.” 12 law in Georgia simply does not list the tort’s location as a factor influencing a decision on transfer.8 Defendants have presented no evidence or argument that their ease of access” to proof will be impeded by the Gwinnett County venue or that it would be easier if this case were transferred to Chatham County. 2. Availability And Cost Of Compulsory Process For Attendance Of Unwilling Witnesses In considering this factor, the Georgia Supreme Court recently held that trial courts should determine “whether any witnesses are unwilling to voluntarily travel to [Gwinnett County] for trial (as opposed to merely being inconvenienced by the prospect) and the cost of securing compulsory process for securing any such witnesses’ attendance.” McInerney, supra, 313 Ga. at 470. The PGS Defendants have failed to meet their burden of proof on this factor: they have not identified a single witness who would be unwilling to travel to Gwinnett County. (Defs’ Brief, pp. 5-6). The fact that some witnesses may reside in or close to Chatham County does not make them unwilling. Even if Defendants had identified an unwilling witness, any witness in Georgia can be compelled to attend trial in Gwinnett County just as he or she could in Chatham County. O.C.G.A. § 24-13-22 (a “subpoena requiring the attendance of a witness at … trial may be served at any place within the state”). While additional costs in mileage fees may be incurred to secure 8 The forum non conveniens law, as originally enacted, did identify the location of the tort in one subsection, O.C.G.A. § 9-10-31.1(c), and allowed nonresident defendants in medical malpractice actions to require that the case be transferred to a county of that defendant’s residence if the tortious act occurred in the county of that defendant's residence. The Georgia Supreme Court declared that subsection unconstitutional in EHCA Cartersville, LLC v. Turner, 280 Ga. 333 (2006). Here, of course, two of the three moving Defendants are residents of Gwinnett County. 13 the attendance of a hypothetical unwilling Chatham County witness at trial in Gwinnett, the costs related to securing witnesses who are Defendants’ employees/agents/servants will be borne by Plaintiff, who willingly accepts this burden. Defendants also ignore the fact that there are witnesses who will be located in or around Winder, Georgia, where Plaintiff’s decedent attempted to deliver the cargo loaded by Defendants. (Exh. 1, ¶ 7). Those witnesses are no less or more important than ones in Chatham County, and the cost of compulsory attendance for them, if any, would be less should this case remain in Gwinnett County. While Chatham County may be more convenient for some witnesses, other witnesses from the intended recipient company in Winder, Georgia likely reside closer to Gwinnett County. In addition, Plaintiff anticipates uses out-of-state experts in this case and they have already retained consulting experts outside of Georgia. (Exh. 1, ¶ 8). Due to the accessibility of Atlanta’s airport, Gwinnett County will be significantly more convenient for any experts flying into Georgia to testify. (Id.). As this Court previously held in denying a motion to transfer venue from Gwinnett to Bibb County, “Defendant fails to show that Court process will be better available and/or cheaper in Bibb County, or that any witnesses are ‘unwilling’ (as explicitly required by this Code Section). Therefore, this factor does not weigh in Defendant’s favor.” Kiefer v. Heart of Georgia Cardiology, State Court of Gwinnett County, Civil Action File No. 18-C-02928-3 (Jan. 23, 2019), attached as Exhibit 9, at p. 3; Exh. 1, ¶ 17. Under the second factor, Defendants also broadly claim hypothetical concerns about costs and inconvenience that could be incurred by unidentified witnesses for things like additional costs for food, fuel and overnight arrangements. Defendants baldly assert that a “prolonged 14 absence” for “a lengthy wrongful death trial would almost certainly impact childcare, school, and other family-related obligations of the witnesses.” (Defs’ Brief, p. 6). In McInerney, supra, the Georgia Supreme Court held that such witness inconveniences are not properly included under this factor. McInerney, 313 Ga. at 470. And even if such considerations were appropriate, Defendants have not identified a single trial witness who would suffer undue inconvenience because they have children requiring childcare, school obligations, or “family-related obligations.” This is pure speculation. Similarly, there is no evidence that a “prolonged absence” for a lengthy trial would be required for any witness. As observed by the State Court of Cobb County in rejecting a similar argument to transfer a case to Spalding County: The only potential expense or trouble regarding witnesses would be for the day that the witness(es) would be needed for trial, and even then, only for those witnesses who appear live. Defendants’ argument assumes that all witnesses will appear live when, in reality, many trial witnesses appear via video deposition. Smith v. Wellstar, supra, attached as Exhibit 7, p. 5. Finally, Plaintiff does not intend to unnecessarily inconvenience fact witnesses. Counsel will carefully consider her order and timing of proof to eliminate or lessen the need for overnight accommodations, as well as food or fuel expenses not already covered by the per diem and mileage fees. Taken as a whole, Defendants have not proven that concerns regarding witness convenience weigh in favor of transferring this case to Chatham County. 3. Possibility Of Viewing Of The Premises, If Viewing Would Be Appropriate To The Action Viewing the premises in this case is a non-issue. The factor regarding the possibility of viewing the premises, by the express terms of the statute, applies only "if viewing would be appropriate to the action." O.C.G.A. § 9-10-31.l(a)(3). Nothing here suggests that viewing the accident premises would be appropriate. The parties have dozens – if not hundreds - of photographs of the subject scene taken by police, other first responders, OSHA and experts who have already 15 visited the scene of the incident. This is a standard negligence action and it is inconceivable that there would be any need to view any premises during the trial of this case. Even Defendants do not go so far as to suggest that there will be a need to view the premises in this case. (Defs’ Brief, p. 6 [“If the need arose to view the premises or any equipment …”]) (emphasis added). This factor does not support overriding the Plaintiff’s choice of forum. 4. Unnecessary Expense Or Trouble To The Defendant Not Necessary To The Plaintiff's Own Right To Pursue His Or Her Remedy All litigation involves some expense and inconvenience for parties and witnesses, regardless of the location of the courthouse. All non-party witnesses will likely experience delays and wait times before testifying at trial, regardless of whether this case is tried in Gwinnett County or Chatham County. While trying this case in Gwinnett County may result in more inconvenience for some parties or witnesses, this venue will be more convenient than Chatham County for other witnesses. Defendants’ selective focus on unidentified potential witnesses residing in Chatham County -- over witnesses in Barrow County and out-of-state expert witnesses – is legally insufficient and improper. As it relates to the parties’ attorneys, two of the three sets of counsel have offices in Fulton County, which abuts Gwinnett County but not Chatham County.9 9 Citing federal law, Defendants claim that the location of counsel is not a relevant factor. (Defs’ Brief, p. 9). However, Gwinnett County courts routinely consider the location of counsel on motions based on forum non conveniens. See, eg., this Court’s Order in Hill v. Indiana Mills & Mfr., Inc., et al., State Court of Gwinnett County, Civil Action File No. 17-C-07188-S1 (Jan. 17, 2020), attached as Exhibit 10, at p. 10, Exh. 1,¶ 18; Kiefer v. Heart of Georgia Cardiology, attached as Exhibit 9, at p. 3. Moreover, counsel for the PGS Defendants has an impressively broad reach, representing “companies and individuals in Georgia, across the Southeast, and throughout the United States.” (www.huntermaclean.com). They are undoubtedly capable of traveling to Gwinnett County for a trial without significant inconvenience. 16 The question is not whether there will be some additional costs in one venue versus another. The question is whether Defendants have met their burden to demonstrate that Gwinnett County somehow has imposed unnecessary expense or trouble on them. Defendants have not presented the Court with any evidence that unnecessary expense or inconvenience to the parties warrants transfer.10 And significantly, Defendants misstate the burden of proof on this factor. (Defs’ Brief, p. 7 (“Plaintiff cannot show that her right or ability to fully pursue all of her claims in this action are any greater in Gwinnett County….”) (emphasis added). In McInerney, 313 Ga. at 470-471, the Supreme Court held that a trial court failed to properly consider this fourth factor because “the burden never leaves the moving party.” Accordingly, Defendants must prove that unnecessary trouble or expense warrant transferring this case out of Gwinnett. They have not meet their burden. Finally, the sole case cited by Defendants, Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1946), is readily distinguishable. Gulf Oil was decided in 1946 before the federal or Georgia forum non conveniens statutes were even enacted and determined whether a federal district court had inherent powers under the forum non conveniens doctrine. Gulf Oil, 330 U.S. at 502. Additionally, there is absolutely no evidence that the concerns mentioned in the opinion- the vexation, harassment and oppression of defendants- are happening here. See Id. at 508. Moreover, Gulf Oil’s language supports Plaintiff’s position- “… unless the balance is strongly in favor of the defendant, the plaintiffs choice of forum should rarely be disturbed.” Id. at 508 10 Again, Defendants cannot meet their burden of proof by simply making general, hypothetical assertions unsupported by any evidence in the record. See eg. Defs’ Brief at p. 7 (witnesses may include former employees or contractors over whom the parties have no control; witnesses would be required to “spend days away from their lives,” “it is well recognized” that video depositions are “a poor substitute” for live testimony at trial). 17 (emphasis added). 5. Administrative Difficulties For The Forum Courts Defendants present no evidence about any alleged administrative difficulties for this Court. They cite Gulf Oil, supra, for the proposition that administrative difficulties are created when litigation is “piled up in congested centers” instead of handled “at its origin.” (Defs’ Brief, p. 8). There is no evidence that litigation is piled up in Gwinnett County or that it is a congested center. Moreover, O.C.G.A. § 9-10-31.1(a) does not include a factor favoring venue at a case’s “origin.” Finally, it is difficult to understand how this matter has no relationship to Gwinnett County when three of the six Defendants have chosen to reside here. There is no doubt that the Gwinnett County court system is large enough and sufficiently equipped to handle this civil matt