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IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
CORA LEE HUGHES JOHNSON, as the Surviving
Spouse of JIMMY LEE JOHNSON, SR., and
CORA LEE HUGHES JOHNSON, as Anticipated
Administratrix of the Estate of JIMMY LEE
JOHNSON, SR., Deceased,
CIVIL ACTION FILE
Plaintiff, NO. 22-C-03597-S4
v.
BEACON SALES ACQUISITION, INC.,
TRAVELERS PROPERTY CASUALTY
COMPANY OF AMERICA, and GARY
DENNELL FOUNTAIN
Defendants.
PLAINTIFF’S RESPONSE TO DEFENDANTS’ COLLECTIVE MOTION TO
TRANSFER VENUE
COMES NOW, Cora Lee Hughes Johnson, as the Surviving Spouse of Jimmy Lee
Johnson, Sr. and as Anticipated Administratrix of the Estate of Jimmy Lee Johnson, Sr., Deceased,
Plaintiff in the above-styled action, and files her Response to Defendants’ Collective Motion to
Transfer Venue, showing as follows:
INTRODUCTION
Defendants do not come close to meeting their lofty burden for transferring the present
action to Tift County and have failed to demonstrate that there are any factors that cut in their favor
and overcome Georgia’s strong deference to a Plaintiff’s choice of venue. It is undisputed that
Gwinnett County is a proper venue. Defendants’ own Motion acknowledges that two of the three
Defendants, Beacon Sales Acquisition, Inc. (“Beacons Sales”) and Travelers Property Casualty
Company of America (“Travelers”), have registered agents in Gwinnett County. The
extraordinary relief sought by Defendants in the present Motion is not supported by the long
history of Georgia cases that have analyzed the issue. While Defendants’ Motion references a
recent order from Fulton County,1 Defendants do not cite to any other Georgia authority where a
court has transferred a case from one proper venue within the state to another proper venue in
Georgia under circumstances remotely similar to the facts at present.
Beacon Sales and Travelers both elected to place their respective registered agents in
Gwinnett County. In so doing, both of these sophisticated parties understood that they could be
properly sued in Gwinnett County pursuant to the venue statutes of the state of Georgia.
Rather than defend this case in an admittedly proper forum, in the county where their registered
agents are located, Defendants seek to transfer this case based on forum non conveniens, a
move that would deprive Plaintiff of her chosen forum. The mountain of Georgia cases that
have interpreted Georgia’s seven statutory factors for transferring a case within Georgia
dramatically cut in favor of Plaintiff’s choice of venue and against Defendants’ Motion. For all
of the reasons stated herein, Plaintiff respectfully requests that the Court deny Defendants’ Motion
and permit Plaintiff’s claims to move forward in the forum of her choice.
BACKGROUND
On September 4, 2020, Jimmy Johnson was killed when a tractor-trailer, owned by
Defendant Beacon Sales and being driven by Defendant Gary Fountain, unlawfully crossed into
Jimmy’s path of travel, resulting in a violent and fatal collision. At the time of the incident,
Defendant Fountain was operating the Beacon Sales’ tractor-trailer with the permission of Beacon
Sales and under Beacon Sales’ trucking authority while in furtherance of Beacon Sales’ business.
As Jimmy was traveling northbound on State Road 7/U.S. Highway 41 as it neared the intersection
1
Defendants’ Motion does not attach the full order, so it is difficult for Plaintiff to comment on the reasoning or
conclusions from that order.
2
with Tifton Eldorado Road, it is undisputed that Jimmy had the right of way. (Complaint, ¶¶ 20,
23). It is likewise undisputed that Defendant Fountain, who was traveling westbound on Tifton
Eldorado Road approaching the intersection with State Route 7/U.S. Highway 41, would have
passed multiple warning signs indicating a stop ahead before entering the intersection. (Complaint,
¶¶ 22, 24). Defendant Fountain ignored the multiple warning signs, ignored two stop signs which
controlled westbound traffic approaching the subject intersection, and crossed into Jimmy’s path
of travel without even applying his brakes. (Complaint, ¶¶ 24, 25). As the Beacon Sales tractor-
trailer unlawfully entered the intersection, effectively blocking Jimmy’s path of travel, Jimmy’s
vehicle violently collided with the tractor-trailer. Defendant Fountain was cited for failing to stop
at a stop sign and failing to yield the right of way, and he is currently awaiting his criminal trial
for the offense of homicide by vehicle in the second degree. (Complaint, ¶¶ 37, 42).
The tragic incident which took the life of Jimmy Johnson occurred in Tift County, Georgia.
Likewise, the negligent and reckless conduct of Defendant Fountain transpired in Tift County.
However, this case is not merely about the inexplicable conduct of Defendant Fountain on
September 4, 2020. Plaintiff submits that the failures which enabled, led, and otherwise
contributed to Defendant Fountain’s inexcusable conduct on the day of the incident were failures
committed by Beacon Sales. While that national company may be headquartered in Virginia,
pursuant to Georgia law, Beacon Sales cannot operate, and profit from operating, on the roads of
the state of Georgia without having a registered agent within Georgia’s borders. In order to benefit
from operating in Georgia, Beacon Sales selected Gwinnett County as the location for its registered
agent. Likewise, Travelers, a Defendant in this action pursuant to Georgia’s Direct Action Statute,
also chose Gwinnett County as the location for its registered agent for service of process. As such,
venue for the subject litigation is, without question, proper in this Court. As Defendants’ Motion
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provides no legal basis to deprive Plaintiff of her choice of venue, and given the great deference
which Georgia courts provide to a plaintiff’s selection of forum, this Motion should be DENIED.
ARGUMENT AND CITATION OF AUTHORITY
Georgia courts have long recognized that deference is given to the plaintiff's choice of
forum. See, e.g., R.J Taylor Mem 'l Hosp., Inc. v. Beck, 280 Ga. 660, 663 (2006). When Georgia
codified the doctrine of forum non conveniens, it specifically referenced "traditional deference" to
Plaintiffs’ choice of forum. O.C.G.A. § 9-10-31.1(a) states in its entirety:
(a) If a court of this state, on written motion of a party, finds that in the interest of
justice and for the convenience of the parties and witnesses a claim or action
would be more properly heard in a forum outside this state or in a different county
of proper venue within this state, the court shall decline to adjudicate the matter
under the doctrine of forum non conveniens. As to a claim or action that would be
more properly heard in a forum outside this state, the court shall dismiss the claim
or action. As to a claim or action that would be more properly heard in a different
county of proper venue within this state, the venue shall be transferred to the
appropriate county. In determining whether to grant a motion to dismiss an action
or to transfer venue under the doctrine of forum non conveniens, the court shall
give consideration to the following factors:
(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.
(emphasis added). While the doctrine of forum non conveniens does provide courts the
ability to decline to decide cases under certain circumstances, itis important to note that "this
power should not be exercised lightly ... because it effectively deprives the plaintiff of his
favored forum." Kolawole v. Sellers, 863 F.3d 1361, 1369 (11th Cir. 2017) (emphasis added);
see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) ("[U]nless the balance is strongly
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in favor of the defendant, the choice of forum should rarely be disturbed.”). The relevant statutory
factors, which weigh decidedly in favor of denying Defendants’ Motion, are addressed below.
1. Relative Ease of Access to Sources of Proof Are Accessible in Gwinnett and Tift
The sources of proof in this case are easily accessible in Gwinnett County. Discovery,
nowadays, and particularly given the global pandemic, is largely if not wholly electronic. The
location of depositions varies witness by witness in every case, regardless of where the case will
be tried, and this case is no different. Defendants certainly cannot argue that they (or Plaintiff)
cannot access evidence simply because the case is pending in Gwinnett County. Similarly, Plaintiff
and Defendants alike have equal and easy access to documents, if any, from law enforcement,
doctors, and other third-parties 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. It is hard to think of a situation
where every piece of evidence is located in the single county that a suit is pending in – this case is
no different.
Defendants also, strangely, rely on the location of Plaintiff’s family as a rationale for
support to transfer this case out of Plaintiff’s chosen venue. These are the same family members
that determined that Gwinnett County was the appropriate venue to bring this case. Defendants
also point to various individuals whose names are unknown or undisclosed at this point (including
unnamed defense experts at an unknown location) and argues that they will be located close to Tift
County. This is mere speculation and is not the kind of proof that supports transferring venue.
Defendants even note that many of these witnesses may have moved or relocated to unknown
places. Additionally, Defendants point to potentially unknown medical providers that treated Mr.
Johnson at Tallahassee Memorial Hospital as a reason that Tift County is appropriate. Tift County
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is still considerably far from Tallahassee, and in fact, it may be easier for those witnesses to travel
to Atlanta because of the numerous flights between Tallahassee at Atlanta every day.
Even if many of these witnesses are closer to Tift that to Gwinnett, many will still have to
travel regardless of where this case continues, and many may prefer to be deposed or testify using
technology such as Zoom.2 While very little good came from the COVID-19 Pandemic, the access
to witnesses and remote depositions making witnesses accessible from various places across the
country has certainly been one positive development for the legal system.
Additionally, and as will be pointed out in numerous places herein, Defendants vastly
overstate the inconvenience and burden associated with Tift County witnesses and resources being
needed in Gwinnett County. As Defendants note, Gwinnett County is a reasonable three-hour
drive from Tifton, Georgia. Counsel for Defendants Beacon Sales and Gary Fountain is Hall Booth
Smith, P.C. While Hall Booth has firms all across the state of Georgia (and offices in at least 11
other states), Hall Booth’s headquarters office is located in Atlanta – meaning there will be a
seamless and immediate coordination of evidence between Hall Booth’s Tifton office and its
headquarters as this case proceeds in litigation in this Court. In short, Defendants’ arguments seem
more appropriate for a different case with a greater distance between potential forums.
2. Defendants Make No Showing that Witnesses are Unwilling to Testify
Defendants have speculated that it may be difficult for witnesses to appear. However, the
correct test is whether witnesses are unwilling to testify, and if so, whether compulsory process is
available and expensive. However, there is no reason to believe that witnesses will not appear,
willingly. Additionally, it cannot be overstated that Defendants entire argument is that they
2
To this point, the parties have scheduled a limited Rule 30b6 deposition of a Beacon Sales’ representative for August
25, 2022. While the witness is located in Florida, counsel for Travelers and for Plaintiff will be participating by Zoom.
This process can and will be followed for many witnesses throughout this litigation.
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presume witnesses will be located closer to Tift County – yet there is no proof of this. Nearly two
years have passed since this tragic incident – it is likely numerous witnesses have long since
disbursed the Tift County area, even if that is where they initially resided.
In fact, the only witnesses that Defendants credibly believe may be located in and around
Tifton and who may object to appearing in Gwinnett County are the first responders and law
enforcement officers who responded to the subject incident. As to these categories of witnesses,
they routinely testify at trial via pre-recorded videotaped depositions as opposed to appearing live
due to their important schedules – even when the officers and first responders are located within
the subpoena power of the court. See, e.g., O.C.G.A. § 9-11-32(a)(3)(E) (allowing use of a
deposition at trial where "because of the nature of the business or occupation of the witness it is
not possible to secure his personal attendance without manifest inconvenience to the public or third
persons").
In summary, there is no credible evidence that either party will be unduly burdened with
respect to witness testimony if the case remains in Gwinnett County. To the contrary, given that
many of Beacon Sales’ corporate witnesses will be traveling from out of state, and as both parties
will retain numerous expert witnesses, there is even an insufficient basis to conclude that the
burden of litigating this case in Gwinnett County (which is near the world’s busiest airport) would
be greater than the burdens associated with moving the case to Tift County. Stated differently, for
every single witness who will be participating in this litigation from out of state and traveling to
the proper forum via air travel (e.g., Beacon Sales’ corporate witnesses and representatives,
Travelers’ corporate witnesses and representatives, expert witnesses, etc.), Gwinnett County is a
more convenient forum that Tift County.
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3. Viewing the Premises is Not Appropriate in This Action
Defendants make a halfhearted attempt to argue that viewing the premises may need to
occur in this case. However, there is no reason why the jury would need to view the premises, a
point that Defendants surely recognize. This case arises out of a trucking accident where the
underlying allegations relate to negligence of the Defendants, not related to the road itself. There
have been numerous photographs taken of the accident scene. Drawings, photographs, expert
witnesses, and other types of proof and evidence will be more than adequate. This factor does not
weigh in favor of a transfer.
4. Defendants Would Not Incur Unnecessary Expense or Trouble
Defendants have not demonstrated they will experience any unnecessary expense or trouble
if this case continues in this Court. Again, Defendants’ main argument is that fact witnesses may
be located in Tift County or surrounding areas, but this is largely based on speculation. In fact, if
this factor is truly and impartially analyzed, even Defendants would have to acknowledge that
more unnecessary expense and trouble will be incurred should the case be transferred to Tift
County.
As noted above, this case is not merely about the negligence and gross negligence of
Defendant Fountain in Tift County, it is about the policies, procedures, and guidelines created and
enforced by Beacon Sales. Plaintiff’s theory very much involves a systematic failure on behalf of
Beacon Sales to implement and follow policies and guidelines that are intended to ensure its
tractor-trailers will be operated safely on the roads of this state. The witnesses that must explain
these policies and answer to how and why they failed do not reside in Tift County – they
presumably are located in and around Beacon Sales’ headquarters in Virginia. For those witnesses,
it is far more convenient to take a direct flight to metro Atlanta than it would be to fly to the nearest
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airport to Tifton. The same would hold true for Travelers’ witnesses and representatives and for
any expert witness who is not otherwise within driving distance of Tift County. Viewed in this
light, this factor weighs heavily in favor of keeping this litigation in this Court.
5. This Court Will Not Encounter Administrative Difficulties
This Court will not have any administrative difficulties in handling this case. In fact, for
the very same reasons that Defendants argue Gwinnett is a difficult county (more populous, less
familiarity with the players involved) is exactly why Gwinnett is an ideal venue. Gwinnett County
will have more judges, more courtrooms, more resources, and more trial calendars than Tift
County. It will also be easier to strike a jury because it is less likely that a Gwinnett County juror
will have any relationship or bias towards the parties or witnesses in this case. Because of this, this
factor does not support a transfer.
6. Gwinnett County has a Local Interest in Deciding this Case
Because both Gwinnett and Tift are Georgia counties, jurors from each county will have
some interest in this case. However, a Gwinnett jury may be less biased because they do not have
personal relationships with the parties or witnesses – which would inevitably happen in Tift
County.
Furthermore, Gwinnett County is the chosen location for the registered agents of both
Beacon Sales and Travelers. Beacon Sales could not operate as a motor carrier in Georgia without
selecting a county for its registered agent. This Court absolutely has an interest in deterring
negligent and grossly negligent behavior by motor carriers who utilize and profit from the
operation of tractor-trailers on the roads and highways of this state. Defendants chose Gwinnett
County, and a Gwinnett County court has an interest in either protecting these corporate
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Defendants or deterring negligent and otherwise reprehensible conduct by these same corporate
Defendants. As such, this factor does not weigh in favor of a transfer.
7. Traditional Deference Given to Plaintiff’s Choice of Forum
This factor cannot be overstated – and in fact, is of paramount importance. Plaintiffs’
choice of forum should be undisturbed absent a “heavy burden” which Defendants cannot reach.
Park Ave. Bank v. Steamboat City Dev. Co., L.P., 317 Ga. App. 289, 294 (2012), overruled on
other grounds by Wang v. Liu, 292 Ga. 568 (2013). In fact, should this case be transferred to Tift
County, this will encourage forum shopping for corporate defendants in every case filed in the
state of Georgia. It would essentially eviscerate Georgia’s long-standing venue statutes and would
completely ignore the deference that is to be paid to plaintiff’s choice of venue. Defendants have
not come close to giving this Court a reason to refuse the “traditional deference” to Plaintiff’s
forum choice.
8. This Court and Other Courts Routinely Reject Motions to Transfer Venue
Although Defendants point to one singular partial order, there are far more instances
wherein a Motion to Transfer for Forum Non Conveniens is denied – even across various types of
cases. A brief sampling is discussed below.
On August 3, 2022, Judge Ronda Colvin Leary denied a Motion to Transfer Venue for
Forum Non Conveniens where Defendants attempted to move venue from Gwinnett County to
Camden County because the incident occurred in Camden. (Ronardo Reeves et al. vs. Childtime
Childcare et. al Order attached hereto as Exhibit “A”). On July 25, 2022, Judge Emily Brantley
denied a Motion to Transfer Venue for Forum Non Convenines where Defendants argued venue
should be transferred out of Gwinnett County where two of the registered agents were located.
(Lanier Parkway Associates, LLC et al., vs. Hercules, LLC, Ashland, LLC, and Pinova, (DE)Inc.,
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Order attached hereto as Exhibit “B”). On June 7, 2022, Judge Veronica Cope denied Defendant’s
Motion to Dismiss for Forum Non Conveniens where the incident occurred in Texas but Defendant
was headquartered in Atlanta with a registered agent in Gwinnett. (Lee Fogg vs. Intown Suites
Management, Inc. Order attached hereto as Exhibit “C”). On March 8, 2021, Judge Emily Brantley
denied a Motion to Transfer Venue for Forum Non Conveniens where Defendants sought transfer
to Bulloch County despite Defendants’ registered agents being located, at least in part, in Gwinnett.
(Virginia Wade Hart, et al., vs. Summit Healthcare Management, LLC, et al. Order attached hereto
as Exhibit “D”). On February 11, 2021, Judge Ronda Colvin Leary denied Defendants’ Motion to
Transfer where the Defendants tried to move venue from Gwinnett to Bulloch County. (Jody
Graham vs. East Georgia Regional Medical Center, LLC et al., Order attached hereto as Exhibit
“E”). On October 17, 2016, a Cobb County State Court denied a Motion to Transfer Venue on
the basis of forum non conveniens when Defendant sought to move venue to the county where the
incident occurred. (Sandra Hewitt v. Bi-Lo, LLC Order attached hereto as Exhibit “F”).
These are by no means reflective of all orders denying similar motions. However, this
selection does demonstrate the deference given to a plaintiff’s choice of forum in instances similar
to the present case. As such, Defendants’ Motion should be denied.
CONCLUSION
The forum non conveniens factors here are either neutral or favor the Plaintiff. Defendants
have therefore failed to meet their heavy burden to show that the factors favor transfer. Plaintiff
respectfully submits that Defendants’ Motion should be DENIED.
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Respectfully submitted this 24th day of August.
SINTON SCOTT MINOCK & KEREW
/s/ Mark R. Johnson
Mark R. Johnson
Georgia Bar No. 395042
Michael Smith
Georgia Bar No. 183081
Daniel C. Beer
Georgia Bar No. 200758
Nicole M. Bigman
Georgia Bar No. 711066
Attorneys for Plaintiff
SINTON SCOTT MINOCK & KEREW
3438 Peachtree Road, Suite 925
Atlanta, Georgia 30326
mjohnson@ssmklaw.com
msmith@ssmklaw.com
dbeer@ssmklaw.com
nbigman@ssmklaw.com
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CERTIFICATE OF SERVICE
I hereby certify that I have this day served a copy of the foregoing Plaintiff’s Response to
Defendants’ Collective Motion to Transfer Venue and Brief in Support upon all parties to this
matter by Statutory Electronic Service via email pursuant to O.C.G.A. § 9-11-5, addressed to the
parties and counsel of record as follows:
W. Brent Hyde
Stephen D. Delk
Hall Booth Smith, P.C.
1564 King Road
Tifton, GA 31793
Attorneys for Defendants Beacon Sales and Fountain
Stephanie F. Brown
Dodson & Associates
P.O. Box 2903
Hartford, CT 06104-2903
Attorney for Travelers
Respectfully submitted this 24th day of August.
SINTON SCOTT MINOCK & KEREW
/s/ Mark R. Johnson
Mark R. Johnson
Georgia Bar No. 395042
Michael Smith
Georgia Bar No. 183081
Daniel C. Beer
Georgia Bar No. 200758
Nicole M. Bigman
Georgia Bar No. 711066
Attorneys for Plaintiff
SINTON SCOTT MINOCK & KEREW
3438 Peachtree Road, Suite 925
Atlanta, Georgia 30326
mjohnson@ssmklaw.com
msmith@ssmklaw.com
dbeer@ssmklaw.com
nbigman@ssmklaw.com
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EXHIBIT A
E-FILED IN OFFICE - JM
CLERK OF STATE COURT
GWINNETT COUNTY, GEORGIA
22-C-02623-S4
8/3/2022 11:18 AM
TIANA P. GARNER, CLERK
IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
RONARDO REEVES and DAISHA )
REEVES, Individually and As Parents )
and Natural Guardians of )
LAYLA REEVES, a Minor, )
)
Plaintiffs, )
)
) Case number:
)
vs. ) 22C-2623-4
)
)
CHILDTIME CHILDCARE d/b/a )
CHILDTIME OF KINGSLAND and )
OLIVIA LYNN JONES, )
)
Defendants. )
)
ORDER DENYING MOTION TO TRANSFER UNDER THE DOCTRINE OF FORUM NON
CONVENIENS
Plaintiffs Ronardo Reeves and Daisha Reeves, Individually and As Parents and Natural
Guardians of Layla Reeves, a Minor ("Reeves") filed this action against Defendants Childtime
Childcare d/b/a Childtime of Kingsland ("Childtime") and Olivia Lynn Jones ("Jones") seeking
compensation for iajuries sustained by their daughter Layla Reeves while she was being cared for
at Childtime. Defendants filed a Motion to Transfer based upon the forum non conveniens
doctrine as set forth in O.C.G.A. §9-10-31.1.
After consideration of the motion, Plaintiffs response thereto, all other matters of record
and the applicable and controlling law, this Court finds as follows.
Under the forum non conveniens doctrine as set forth in O.C.G.A. §9-10-31.1, the Court
must determine whether " ... in the interest of justice and for the convenience of the parties and
EXHIBIT B
E-FILED IN OFFICE - MB
CLERK OF STATE COURT
GWINNETT COUNTY, GEORGIA
22-C-01681-S1
7/26/2022 2:21 PM
TIANA P. GARNER, CLERK
IN THE STATE COURT OF GWINNETT COUNTY
STATE OF GEORGIA
LANIER PARKWAY ASSOCIATES, LLC, )
et al., )
Plaintiffs, )
)
v. ) CIVIL ACTION FILE
) NO. 22-C-01681-S1
HERCULES, LLC, ASHLAND, LLC )
and PINOVA, (DE) INC., )
Defendants. )
_________________________________________ )
ORDER DENYING MOTION TO TRANSFER VENUE
The above-styled action came before this Court on Defendants’ Motion to Transfer Venue
for Forum Non Conveniens, pursuant to O.C.G.A. 9-10-31.1. After reviewing the entire record,
pleadings, exhibits, attachments thereto and applicable Georgia law, the Court hereby FINDS and
ORDERS as follows:
FACTUAL OVERVIEW
Plaintiffs filed this toxic tort lawsuit (renewal) in Gwinnett County, where two of the
named Defendants voluntarily designated their registered agent with the Georgia Secretary of State
nd which represents a central location for all Parties and all known out-of-state witnesses. It is
without dispute that venue is constitutional in Gwinnett County. Defendants, nevertheless, urge
the Court to transfer this case to Glynn County under Georgia’s forum non conveniens statute,
O.C.G.A. § 9-10-31.1. As movants, Defendants carry “the burden to show that the factors set
forth in O.C.G.A. § 9-10-31.1(a) support the transfer,” i.e. that the 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). The Court agrees that Defendants have not met their
1
burden.
LEGAL ANALYSIS
O.C.G.A. § 9-10-31.1(a) states in its entirety:
(a) If a court of this state, on written motion of a party, finds that in the interest of
justice and for the convenience of the parties and witnesses a claim or action
would be more properly heard in a forum outside this state or in a different county
of proper venue within this state, the court shall decline to adjudicate the matter
under the doctrine of forum non conveniens. As to a claim or action that would be
more properly heard in a forum outside this state, the court shall dismiss the claim
or action. As to a claim or action that would be more properly heard in a different
county of proper venue within this state, the venue shall be transferred to the
appropriate county. In determining whether to grant a motion to dismiss an action
or to transfer venue under the doctrine of forum non conveniens, the court shall
give consideration to the following factors:
(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.
(emphasis added).
After reviewing all of the relevant factors in the analysis of whether the current forum
would be inconvenient for the parties, the Court is persuaded by Plaintiffs’ arguments, to wit:
(1) Relative Ease of Access to Sources of Proof
The sources of proof in this case are easily accessible in Gwinnett County. Discovery in
modern litigation is largely electronic in nature. Paper discovery is typically produced via mail or
scanned and sent through electronic mail. The location of depositions varies witness by witness,
regardless of location of the trial. Defendants certainly cannot argue that Plaintiffs do not have
2
the ability to “access” evidence in Defendants’ possession simply because this case is pending in
Gwinnett County. Defendants also have access to any evidence in Plaintiffs’ possession through
the same procedures, regardless of where this case is pending. Similarly, all parties have easy and
equal access to documents, if any, from law enforcement or other non-parties through properly
served 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. Defendants have made no showing that Gwinnett County venue poses
any impediment to Defendants’ “accessing sources of proof” as virtually all of the evidence in this
case is electronic and based on expert reports, sampling data, and other information that can be
accessed with the click of a button. The Court finds that Defendants cannot show the first factor
supports transferring venue.
(2) Availability & Cost of Compulsory Process for Attendance of Unwilling Witnesses
The compulsory powers of both Glynn County and Gwinnett County are equal in this
matter. Likewise, the cost for the attorneys and the expert witnesses to travel to a foreign venue
is likely to be vastly more than the cost for a few witnesses to travel from Glynn County. Atlanta’s
Hartsfield-Jackson International Airport is one of the busiest and most accessible airports in the
world, and makes Gwinnett County a much more convenient and efficient forum for attendance of
out-of-state witnesses than Glynn County, Georgia, where flight options will likely be
comparatively limited. Last, most of the cost for these Defendants’ witnesses to appear will be
borne by Plaintiffs and there has been no showing of any unwilling witnesses thus far. Defendants
even concede that the attendance of witnesses is not expected to be a significant issue. The Court
is not persuaded that availability and costs would be a concern in this regard.
3
(3) Possibility of Viewing of the Premises
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. § 9-10-31.1(a)(3).
Here, there is no compelling reason to transfer venue due to the possibility of viewing the premises.
This is a toxic contamination action where the hazard almost exclusively exists below the surface
of the properties and is undetectable based on a basic inspection of the surface level of the property.
The maps, drawings, data samples, expert analyses, and all other technical proof that will be
offered at the trial of this case does not require the trial to occur anywhere near the subject
premises. It is inconceivable that there would be any need to view any premises during the trial
of this case. Thus, this factor heavily favors venue in Gwinnett County.
(4) Unnecessary Expense or Trouble to the Defendant
Nothing suggests that Defendants would suffer prejudice or unnecessary trouble and
expense to continue to litigate this case in Gwinnett County rather than Glynn Cou
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IN THE STATE COURT OF GWINNETT COUNTY STATE OF GEORGIA CORA LEE HUGHES JOHNSON, as the Surviving Spouse of JIMMY LEE JOHNSON, SR., and CORA LEE HUGHES JOHNSON, as Anticipated Administratrix of the Estate of JIMMY LEE JOHNSON, SR., Deceased, CIVIL ACTION FILE Plaintiff, NO. 22-C-03597-S4 v. BEACON SALES ACQUISITION, INC., TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, and GARY DENNELL FOUNTAIN Defendants. PLAINTIFF’S RESPONSE TO DEFENDANTS’ COLLECTIVE MOTION TO TRANSFER VENUE COMES NOW, Cora Lee Hughes Johnson, as the Surviving Spouse of Jimmy Lee Johnson, Sr. and as Anticipated Administratrix of the Estate of Jimmy Lee Johnson, Sr., Deceased, Plaintiff in the above-styled action, and files her Response to Defendants’ Collective Motion to Transfer Venue, showing as follows: INTRODUCTION Defendants do not come close to meeting their lofty burden for transferring the present action to Tift County and have failed to demonstrate that there are any factors that cut in their favor and overcome Georgia’s strong deference to a Plaintiff’s choice of venue. It is undisputed that Gwinnett County is a proper venue. Defendants’ own Motion acknowledges that two of the three Defendants, Beacon Sales Acquisition, Inc. (“Beacons Sales”) and Travelers Property Casualty Company of America (“Travelers”), have registered agents in Gwinnett County. The extraordinary relief sought by Defendants in the present Motion is not supported by the long history of Georgia cases that have analyzed the issue. While Defendants’ Motion references a recent order from Fulton County,1 Defendants do not cite to any other Georgia authority where a court has transferred a case from one proper venue within the state to another proper venue in Georgia under circumstances remotely similar to the facts at present. Beacon Sales and Travelers both elected to place their respective registered agents in Gwinnett County. In so doing, both of these sophisticated parties understood that they could be properly sued in Gwinnett County pursuant to the venue statutes of the state of Georgia. Rather than defend this case in an admittedly proper forum, in the county where their registered agents are located, Defendants seek to transfer this case based on forum non conveniens, a move that would deprive Plaintiff of her chosen forum. The mountain of Georgia cases that have interpreted Georgia’s seven statutory factors for transferring a case within Georgia dramatically cut in favor of Plaintiff’s choice of venue and against Defendants’ Motion. For all of the reasons stated herein, Plaintiff respectfully requests that the Court deny Defendants’ Motion and permit Plaintiff’s claims to move forward in the forum of her choice. BACKGROUND On September 4, 2020, Jimmy Johnson was killed when a tractor-trailer, owned by Defendant Beacon Sales and being driven by Defendant Gary Fountain, unlawfully crossed into Jimmy’s path of travel, resulting in a violent and fatal collision. At the time of the incident, Defendant Fountain was operating the Beacon Sales’ tractor-trailer with the permission of Beacon Sales and under Beacon Sales’ trucking authority while in furtherance of Beacon Sales’ business. As Jimmy was traveling northbound on State Road 7/U.S. Highway 41 as it neared the intersection 1 Defendants’ Motion does not attach the full order, so it is difficult for Plaintiff to comment on the reasoning or conclusions from that order. 2 with Tifton Eldorado Road, it is undisputed that Jimmy had the right of way. (Complaint, ¶¶ 20, 23). It is likewise undisputed that Defendant Fountain, who was traveling westbound on Tifton Eldorado Road approaching the intersection with State Route 7/U.S. Highway 41, would have passed multiple warning signs indicating a stop ahead before entering the intersection. (Complaint, ¶¶ 22, 24). Defendant Fountain ignored the multiple warning signs, ignored two stop signs which controlled westbound traffic approaching the subject intersection, and crossed into Jimmy’s path of travel without even applying his brakes. (Complaint, ¶¶ 24, 25). As the Beacon Sales tractor- trailer unlawfully entered the intersection, effectively blocking Jimmy’s path of travel, Jimmy’s vehicle violently collided with the tractor-trailer. Defendant Fountain was cited for failing to stop at a stop sign and failing to yield the right of way, and he is currently awaiting his criminal trial for the offense of homicide by vehicle in the second degree. (Complaint, ¶¶ 37, 42). The tragic incident which took the life of Jimmy Johnson occurred in Tift County, Georgia. Likewise, the negligent and reckless conduct of Defendant Fountain transpired in Tift County. However, this case is not merely about the inexplicable conduct of Defendant Fountain on September 4, 2020. Plaintiff submits that the failures which enabled, led, and otherwise contributed to Defendant Fountain’s inexcusable conduct on the day of the incident were failures committed by Beacon Sales. While that national company may be headquartered in Virginia, pursuant to Georgia law, Beacon Sales cannot operate, and profit from operating, on the roads of the state of Georgia without having a registered agent within Georgia’s borders. In order to benefit from operating in Georgia, Beacon Sales selected Gwinnett County as the location for its registered agent. Likewise, Travelers, a Defendant in this action pursuant to Georgia’s Direct Action Statute, also chose Gwinnett County as the location for its registered agent for service of process. As such, venue for the subject litigation is, without question, proper in this Court. As Defendants’ Motion 3 provides no legal basis to deprive Plaintiff of her choice of venue, and given the great deference which Georgia courts provide to a plaintiff’s selection of forum, this Motion should be DENIED. ARGUMENT AND CITATION OF AUTHORITY Georgia courts have long recognized that deference is given to the plaintiff's choice of forum. See, e.g., R.J Taylor Mem 'l Hosp., Inc. v. Beck, 280 Ga. 660, 663 (2006). When Georgia codified the doctrine of forum non conveniens, it specifically referenced "traditional deference" to Plaintiffs’ choice of forum. O.C.G.A. § 9-10-31.1(a) states in its entirety: (a) If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action. As to a claim or action that would be more properly heard in a different county of proper venue within this state, the venue shall be transferred to the appropriate county. In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors: (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. (emphasis added). While the doctrine of forum non conveniens does provide courts the ability to decline to decide cases under certain circumstances, itis important to note that "this power should not be exercised lightly ... because it effectively deprives the plaintiff of his favored forum." Kolawole v. Sellers, 863 F.3d 1361, 1369 (11th Cir. 2017) (emphasis added); see also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947) ("[U]nless the balance is strongly 4 in favor of the defendant, the choice of forum should rarely be disturbed.”). The relevant statutory factors, which weigh decidedly in favor of denying Defendants’ Motion, are addressed below. 1. Relative Ease of Access to Sources of Proof Are Accessible in Gwinnett and Tift The sources of proof in this case are easily accessible in Gwinnett County. Discovery, nowadays, and particularly given the global pandemic, is largely if not wholly electronic. The location of depositions varies witness by witness in every case, regardless of where the case will be tried, and this case is no different. Defendants certainly cannot argue that they (or Plaintiff) cannot access evidence simply because the case is pending in Gwinnett County. Similarly, Plaintiff and Defendants alike have equal and easy access to documents, if any, from law enforcement, doctors, and other third-parties 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. It is hard to think of a situation where every piece of evidence is located in the single county that a suit is pending in – this case is no different. Defendants also, strangely, rely on the location of Plaintiff’s family as a rationale for support to transfer this case out of Plaintiff’s chosen venue. These are the same family members that determined that Gwinnett County was the appropriate venue to bring this case. Defendants also point to various individuals whose names are unknown or undisclosed at this point (including unnamed defense experts at an unknown location) and argues that they will be located close to Tift County. This is mere speculation and is not the kind of proof that supports transferring venue. Defendants even note that many of these witnesses may have moved or relocated to unknown places. Additionally, Defendants point to potentially unknown medical providers that treated Mr. Johnson at Tallahassee Memorial Hospital as a reason that Tift County is appropriate. Tift County 5 is still considerably far from Tallahassee, and in fact, it may be easier for those witnesses to travel to Atlanta because of the numerous flights between Tallahassee at Atlanta every day. Even if many of these witnesses are closer to Tift that to Gwinnett, many will still have to travel regardless of where this case continues, and many may prefer to be deposed or testify using technology such as Zoom.2 While very little good came from the COVID-19 Pandemic, the access to witnesses and remote depositions making witnesses accessible from various places across the country has certainly been one positive development for the legal system. Additionally, and as will be pointed out in numerous places herein, Defendants vastly overstate the inconvenience and burden associated with Tift County witnesses and resources being needed in Gwinnett County. As Defendants note, Gwinnett County is a reasonable three-hour drive from Tifton, Georgia. Counsel for Defendants Beacon Sales and Gary Fountain is Hall Booth Smith, P.C. While Hall Booth has firms all across the state of Georgia (and offices in at least 11 other states), Hall Booth’s headquarters office is located in Atlanta – meaning there will be a seamless and immediate coordination of evidence between Hall Booth’s Tifton office and its headquarters as this case proceeds in litigation in this Court. In short, Defendants’ arguments seem more appropriate for a different case with a greater distance between potential forums. 2. Defendants Make No Showing that Witnesses are Unwilling to Testify Defendants have speculated that it may be difficult for witnesses to appear. However, the correct test is whether witnesses are unwilling to testify, and if so, whether compulsory process is available and expensive. However, there is no reason to believe that witnesses will not appear, willingly. Additionally, it cannot be overstated that Defendants entire argument is that they 2 To this point, the parties have scheduled a limited Rule 30b6 deposition of a Beacon Sales’ representative for August 25, 2022. While the witness is located in Florida, counsel for Travelers and for Plaintiff will be participating by Zoom. This process can and will be followed for many witnesses throughout this litigation. 6 presume witnesses will be located closer to Tift County – yet there is no proof of this. Nearly two years have passed since this tragic incident – it is likely numerous witnesses have long since disbursed the Tift County area, even if that is where they initially resided. In fact, the only witnesses that Defendants credibly believe may be located in and around Tifton and who may object to appearing in Gwinnett County are the first responders and law enforcement officers who responded to the subject incident. As to these categories of witnesses, they routinely testify at trial via pre-recorded videotaped depositions as opposed to appearing live due to their important schedules – even when the officers and first responders are located within the subpoena power of the court. See, e.g., O.C.G.A. § 9-11-32(a)(3)(E) (allowing use of a deposition at trial where "because of the nature of the business or occupation of the witness it is not possible to secure his personal attendance without manifest inconvenience to the public or third persons"). In summary, there is no credible evidence that either party will be unduly burdened with respect to witness testimony if the case remains in Gwinnett County. To the contrary, given that many of Beacon Sales’ corporate witnesses will be traveling from out of state, and as both parties will retain numerous expert witnesses, there is even an insufficient basis to conclude that the burden of litigating this case in Gwinnett County (which is near the world’s busiest airport) would be greater than the burdens associated with moving the case to Tift County. Stated differently, for every single witness who will be participating in this litigation from out of state and traveling to the proper forum via air travel (e.g., Beacon Sales’ corporate witnesses and representatives, Travelers’ corporate witnesses and representatives, expert witnesses, etc.), Gwinnett County is a more convenient forum that Tift County. 7 3. Viewing the Premises is Not Appropriate in This Action Defendants make a halfhearted attempt to argue that viewing the premises may need to occur in this case. However, there is no reason why the jury would need to view the premises, a point that Defendants surely recognize. This case arises out of a trucking accident where the underlying allegations relate to negligence of the Defendants, not related to the road itself. There have been numerous photographs taken of the accident scene. Drawings, photographs, expert witnesses, and other types of proof and evidence will be more than adequate. This factor does not weigh in favor of a transfer. 4. Defendants Would Not Incur Unnecessary Expense or Trouble Defendants have not demonstrated they will experience any unnecessary expense or trouble if this case continues in this Court. Again, Defendants’ main argument is that fact witnesses may be located in Tift County or surrounding areas, but this is largely based on speculation. In fact, if this factor is truly and impartially analyzed, even Defendants would have to acknowledge that more unnecessary expense and trouble will be incurred should the case be transferred to Tift County. As noted above, this case is not merely about the negligence and gross negligence of Defendant Fountain in Tift County, it is about the policies, procedures, and guidelines created and enforced by Beacon Sales. Plaintiff’s theory very much involves a systematic failure on behalf of Beacon Sales to implement and follow policies and guidelines that are intended to ensure its tractor-trailers will be operated safely on the roads of this state. The witnesses that must explain these policies and answer to how and why they failed do not reside in Tift County – they presumably are located in and around Beacon Sales’ headquarters in Virginia. For those witnesses, it is far more convenient to take a direct flight to metro Atlanta than it would be to fly to the nearest 8 airport to Tifton. The same would hold true for Travelers’ witnesses and representatives and for any expert witness who is not otherwise within driving distance of Tift County. Viewed in this light, this factor weighs heavily in favor of keeping this litigation in this Court. 5. This Court Will Not Encounter Administrative Difficulties This Court will not have any administrative difficulties in handling this case. In fact, for the very same reasons that Defendants argue Gwinnett is a difficult county (more populous, less familiarity with the players involved) is exactly why Gwinnett is an ideal venue. Gwinnett County will have more judges, more courtrooms, more resources, and more trial calendars than Tift County. It will also be easier to strike a jury because it is less likely that a Gwinnett County juror will have any relationship or bias towards the parties or witnesses in this case. Because of this, this factor does not support a transfer. 6. Gwinnett County has a Local Interest in Deciding this Case Because both Gwinnett and Tift are Georgia counties, jurors from each county will have some interest in this case. However, a Gwinnett jury may be less biased because they do not have personal relationships with the parties or witnesses – which would inevitably happen in Tift County. Furthermore, Gwinnett County is the chosen location for the registered agents of both Beacon Sales and Travelers. Beacon Sales could not operate as a motor carrier in Georgia without selecting a county for its registered agent. This Court absolutely has an interest in deterring negligent and grossly negligent behavior by motor carriers who utilize and profit from the operation of tractor-trailers on the roads and highways of this state. Defendants chose Gwinnett County, and a Gwinnett County court has an interest in either protecting these corporate 9 Defendants or deterring negligent and otherwise reprehensible conduct by these same corporate Defendants. As such, this factor does not weigh in favor of a transfer. 7. Traditional Deference Given to Plaintiff’s Choice of Forum This factor cannot be overstated – and in fact, is of paramount importance. Plaintiffs’ choice of forum should be undisturbed absent a “heavy burden” which Defendants cannot reach. Park Ave. Bank v. Steamboat City Dev. Co., L.P., 317 Ga. App. 289, 294 (2012), overruled on other grounds by Wang v. Liu, 292 Ga. 568 (2013). In fact, should this case be transferred to Tift County, this will encourage forum shopping for corporate defendants in every case filed in the state of Georgia. It would essentially eviscerate Georgia’s long-standing venue statutes and would completely ignore the deference that is to be paid to plaintiff’s choice of venue. Defendants have not come close to giving this Court a reason to refuse the “traditional deference” to Plaintiff’s forum choice. 8. This Court and Other Courts Routinely Reject Motions to Transfer Venue Although Defendants point to one singular partial order, there are far more instances wherein a Motion to Transfer for Forum Non Conveniens is denied – even across various types of cases. A brief sampling is discussed below. On August 3, 2022, Judge Ronda Colvin Leary denied a Motion to Transfer Venue for Forum Non Conveniens where Defendants attempted to move venue from Gwinnett County to Camden County because the incident occurred in Camden. (Ronardo Reeves et al. vs. Childtime Childcare et. al Order attached hereto as Exhibit “A”). On July 25, 2022, Judge Emily Brantley denied a Motion to Transfer Venue for Forum Non Convenines where Defendants argued venue should be transferred out of Gwinnett County where two of the registered agents were located. (Lanier Parkway Associates, LLC et al., vs. Hercules, LLC, Ashland, LLC, and Pinova, (DE)Inc., 10 Order attached hereto as Exhibit “B”). On June 7, 2022, Judge Veronica Cope denied Defendant’s Motion to Dismiss for Forum Non Conveniens where the incident occurred in Texas but Defendant was headquartered in Atlanta with a registered agent in Gwinnett. (Lee Fogg vs. Intown Suites Management, Inc. Order attached hereto as Exhibit “C”). On March 8, 2021, Judge Emily Brantley denied a Motion to Transfer Venue for Forum Non Conveniens where Defendants sought transfer to Bulloch County despite Defendants’ registered agents being located, at least in part, in Gwinnett. (Virginia Wade Hart, et al., vs. Summit Healthcare Management, LLC, et al. Order attached hereto as Exhibit “D”). On February 11, 2021, Judge Ronda Colvin Leary denied Defendants’ Motion to Transfer where the Defendants tried to move venue from Gwinnett to Bulloch County. (Jody Graham vs. East Georgia Regional Medical Center, LLC et al., Order attached hereto as Exhibit “E”). On October 17, 2016, a Cobb County State Court denied a Motion to Transfer Venue on the basis of forum non conveniens when Defendant sought to move venue to the county where the incident occurred. (Sandra Hewitt v. Bi-Lo, LLC Order attached hereto as Exhibit “F”). These are by no means reflective of all orders denying similar motions. However, this selection does demonstrate the deference given to a plaintiff’s choice of forum in instances similar to the present case. As such, Defendants’ Motion should be denied. CONCLUSION The forum non conveniens factors here are either neutral or favor the Plaintiff. Defendants have therefore failed to meet their heavy burden to show that the factors favor transfer. Plaintiff respectfully submits that Defendants’ Motion should be DENIED. 11 Respectfully submitted this 24th day of August. SINTON SCOTT MINOCK & KEREW /s/ Mark R. Johnson Mark R. Johnson Georgia Bar No. 395042 Michael Smith Georgia Bar No. 183081 Daniel C. Beer Georgia Bar No. 200758 Nicole M. Bigman Georgia Bar No. 711066 Attorneys for Plaintiff SINTON SCOTT MINOCK & KEREW 3438 Peachtree Road, Suite 925 Atlanta, Georgia 30326 mjohnson@ssmklaw.com msmith@ssmklaw.com dbeer@ssmklaw.com nbigman@ssmklaw.com 12 CERTIFICATE OF SERVICE I hereby certify that I have this day served a copy of the foregoing Plaintiff’s Response to Defendants’ Collective Motion to Transfer Venue and Brief in Support upon all parties to this matter by Statutory Electronic Service via email pursuant to O.C.G.A. § 9-11-5, addressed to the parties and counsel of record as follows: W. Brent Hyde Stephen D. Delk Hall Booth Smith, P.C. 1564 King Road Tifton, GA 31793 Attorneys for Defendants Beacon Sales and Fountain Stephanie F. Brown Dodson & Associates P.O. Box 2903 Hartford, CT 06104-2903 Attorney for Travelers Respectfully submitted this 24th day of August. SINTON SCOTT MINOCK & KEREW /s/ Mark R. Johnson Mark R. Johnson Georgia Bar No. 395042 Michael Smith Georgia Bar No. 183081 Daniel C. Beer Georgia Bar No. 200758 Nicole M. Bigman Georgia Bar No. 711066 Attorneys for Plaintiff SINTON SCOTT MINOCK & KEREW 3438 Peachtree Road, Suite 925 Atlanta, Georgia 30326 mjohnson@ssmklaw.com msmith@ssmklaw.com dbeer@ssmklaw.com nbigman@ssmklaw.com 13 EXHIBIT A E-FILED IN OFFICE - JM CLERK OF STATE COURT GWINNETT COUNTY, GEORGIA 22-C-02623-S4 8/3/2022 11:18 AM TIANA P. GARNER, CLERK IN THE STATE COURT OF GWINNETT COUNTY STATE OF GEORGIA RONARDO REEVES and DAISHA ) REEVES, Individually and As Parents ) and Natural Guardians of ) LAYLA REEVES, a Minor, ) ) Plaintiffs, ) ) ) Case number: ) vs. ) 22C-2623-4 ) ) CHILDTIME CHILDCARE d/b/a ) CHILDTIME OF KINGSLAND and ) OLIVIA LYNN JONES, ) ) Defendants. ) ) ORDER DENYING MOTION TO TRANSFER UNDER THE DOCTRINE OF FORUM NON CONVENIENS Plaintiffs Ronardo Reeves and Daisha Reeves, Individually and As Parents and Natural Guardians of Layla Reeves, a Minor ("Reeves") filed this action against Defendants Childtime Childcare d/b/a Childtime of Kingsland ("Childtime") and Olivia Lynn Jones ("Jones") seeking compensation for iajuries sustained by their daughter Layla Reeves while she was being cared for at Childtime. Defendants filed a Motion to Transfer based upon the forum non conveniens doctrine as set forth in O.C.G.A. §9-10-31.1. After consideration of the motion, Plaintiffs response thereto, all other matters of record and the applicable and controlling law, this Court finds as follows. Under the forum non conveniens doctrine as set forth in O.C.G.A. §9-10-31.1, the Court must determine whether " ... in the interest of justice and for the convenience of the parties and EXHIBIT B E-FILED IN OFFICE - MB CLERK OF STATE COURT GWINNETT COUNTY, GEORGIA 22-C-01681-S1 7/26/2022 2:21 PM TIANA P. GARNER, CLERK IN THE STATE COURT OF GWINNETT COUNTY STATE OF GEORGIA LANIER PARKWAY ASSOCIATES, LLC, ) et al., ) Plaintiffs, ) ) v. ) CIVIL ACTION FILE ) NO. 22-C-01681-S1 HERCULES, LLC, ASHLAND, LLC ) and PINOVA, (DE) INC., ) Defendants. ) _________________________________________ ) ORDER DENYING MOTION TO TRANSFER VENUE The above-styled action came before this Court on Defendants’ Motion to Transfer Venue for Forum Non Conveniens, pursuant to O.C.G.A. 9-10-31.1. After reviewing the entire record, pleadings, exhibits, attachments thereto and applicable Georgia law, the Court hereby FINDS and ORDERS as follows: FACTUAL OVERVIEW Plaintiffs filed this toxic tort lawsuit (renewal) in Gwinnett County, where two of the named Defendants voluntarily designated their registered agent with the Georgia Secretary of State nd which represents a central location for all Parties and all known out-of-state witnesses. It is without dispute that venue is constitutional in Gwinnett County. Defendants, nevertheless, urge the Court to transfer this case to Glynn County under Georgia’s forum non conveniens statute, O.C.G.A. § 9-10-31.1. As movants, Defendants carry “the burden to show that the factors set forth in O.C.G.A. § 9-10-31.1(a) support the transfer,” i.e. that the 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). The Court agrees that Defendants have not met their 1 burden. LEGAL ANALYSIS O.C.G.A. § 9-10-31.1(a) states in its entirety: (a) If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties and witnesses a claim or action would be more properly heard in a forum outside this state or in a different county of proper venue within this state, the court shall decline to adjudicate the matter under the doctrine of forum non conveniens. As to a claim or action that would be more properly heard in a forum outside this state, the court shall dismiss the claim or action. As to a claim or action that would be more properly heard in a different county of proper venue within this state, the venue shall be transferred to the appropriate county. In determining whether to grant a motion to dismiss an action or to transfer venue under the doctrine of forum non conveniens, the court shall give consideration to the following factors: (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. (emphasis added). After reviewing all of the relevant factors in the analysis of whether the current forum would be inconvenient for the parties, the Court is persuaded by Plaintiffs’ arguments, to wit: (1) Relative Ease of Access to Sources of Proof The sources of proof in this case are easily accessible in Gwinnett County. Discovery in modern litigation is largely electronic in nature. Paper discovery is typically produced via mail or scanned and sent through electronic mail. The location of depositions varies witness by witness, regardless of location of the trial. Defendants certainly cannot argue that Plaintiffs do not have 2 the ability to “access” evidence in Defendants’ possession simply because this case is pending in Gwinnett County. Defendants also have access to any evidence in Plaintiffs’ possession through the same procedures, regardless of where this case is pending. Similarly, all parties have easy and equal access to documents, if any, from law enforcement or other non-parties through properly served 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. Defendants have made no showing that Gwinnett County venue poses any impediment to Defendants’ “accessing sources of proof” as virtually all of the evidence in this case is electronic and based on expert reports, sampling data, and other information that can be accessed with the click of a button. The Court finds that Defendants cannot show the first factor supports transferring venue. (2) Availability & Cost of Compulsory Process for Attendance of Unwilling Witnesses The compulsory powers of both Glynn County and Gwinnett County are equal in this matter. Likewise, the cost for the attorneys and the expert witnesses to travel to a foreign venue is likely to be vastly more than the cost for a few witnesses to travel from Glynn County. Atlanta’s Hartsfield-Jackson International Airport is one of the busiest and most accessible airports in the world, and makes Gwinnett County a much more convenient and efficient forum for attendance of out-of-state witnesses than Glynn County, Georgia, where flight options will likely be comparatively limited. Last, most of the cost for these Defendants’ witnesses to appear will be borne by Plaintiffs and there has been no showing of any unwilling witnesses thus far. Defendants even concede that the attendance of witnesses is not expected to be a significant issue. The Court is not persuaded that availability and costs would be a concern in this regard. 3 (3) Possibility of Viewing of the Premises 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. § 9-10-31.1(a)(3). Here, there is no compelling reason to transfer venue due to the possibility of viewing the premises. This is a toxic contamination action where the hazard almost exclusively exists below the surface of the properties and is undetectable based on a basic inspection of the surface level of the property. The maps, drawings, data samples, expert analyses, and all other technical proof that will be offered at the trial of this case does not require the trial to occur anywhere near the subject premises. It is inconceivable that there would be any need to view any premises during the trial of this case. Thus, this factor heavily favors venue in Gwinnett County. (4) Unnecessary Expense or Trouble to the Defendant Nothing suggests that Defendants would suffer prejudice or unnecessary trouble and expense to continue to litigate this case in Gwinnett County rather than Glynn Cou