United States District Court, W.D. Virginia, Roanoke Division
MICHAEL F. URBANSKI JUDGE
matter comes before the court on defendants Energy
Development Corporation ("EDC") and William D.
Evans' motion to dismiss for improper venue, or in the
alternative, transfer venue. ECF No. 5. The parties have
briefed the issues and the court addressed the motion during
a telephonic hearing held on April 17, 2017. For the reasons
set forth below, the court will DENY the
defendant's request to dismiss or transfer for improper
venue, and GRANT the defendant's request
to transfer this case in the interests of justice to the
Abingdon Division of court.
Gentry Locke Rakes & Moore, LLP ("Gentry
Locke") filed this case in the City of Roanoke Circuit
Court on December 9, 2016. Gentry Locke is a law firm based
in Roanoke, Virginia and seeks to collect unpaid fees in the
amount of $117, 573.92 from former clients EDC and William
Evans. The complaint asserts one count for oral breach of
contract and one count of quantum meruit under Virginia law.
On March 18, 2017, the defendants removed this case to
federal court pursuant to 28 U.S.C. 1441(a). The notice of
removal asserted diversity jurisdiction, stating that both
defendants are citizens of Florida while Gentry Locke is a
citizen of Virginia. The amount in controversy exceeds $75,
000, and therefore, the court has proper jurisdiction over
this case. 28 U.S.C. § 1332. On March 20, 2017,
defendants filed the instant venue motion simultaneously with
their answer to the complaint. ECF No. 5.
Flippin, a Gentry Locke partner, represented defendants
William Evans and EDC over a period of twenty-plus years in
various legal matters pursuant to oral contracts. Gentry
Locke brings this lawsuit because William Evans, who is the
president of EDC, and EDC have refused to pay for
Flippin's legal work in two matters. The first involved a
dispute between William Evans and his two brothers over
ownership of their deceased parents' home in Tazewell
County, Virginia. The dispute lead to litigation originating
in Tazewell County Circuit Court, which was eventually
resolved by the Virginia Supreme Court in Evans v.
Evans. 290 Va. 176, 772 S.E.2d 576 (2015).
second matter for which Gentry Locke has not received payment
involved another dispute between William Evans and his
brother Wayne Evans. William Evans' company, EDC, was
party to a joint venture agreement with Bandy Minerals
Corporation, which held interests in certain gas wells
located in Tazewell County. Bandy Minerals Corporation was
owned by William and Wayne's father, Douglas Evans, who
passed away in recent years. Wayne, as the executor of
Douglas' estate, controls Bandy Minerals Corporation.
Under the joint venture agreement, EDC had
"buy-out" rights to purchase the gas wells, which
EDC attempted to exercise. However, Wayne refused, resulting
in litigation in Tazewell County that is currently pending.
challenge venue in the Roanoke Division of the Western
District of Virginia on the basis that "all of the
operative legal services Were performed [by Gentry Locke] in
and necessitated by problems arising and existing in Tazewell
County for Tazewell County parties." ECF No. 14, at
Defendants assert that this case should be resolved in the
Abingdon Division of court, which includes Tazewell County,
because the underlying legal disputes involve property
located in that division. Defendants make two arguments.
First, that venue in Roanoke is improper under 28 U.S.C.
§ 1391, and therefore, the court should either dismiss
the case pursuant to Rule 12(b)(3) of the Federal Rules of
Civil Procedure or transfer the case to Abingdon pursuant to
28 U.S.C. 1406(a). Second, defendants argue that the court
should transfer the case to Abingdon "[f]or the
convenience of parties and witnesses, in the interest of
justice." 28 U.S.C. § 1404(a). Gentry Locke opposes
transfer, arguing that this case should be resolved in
Roanoke because the legal work giving rise to the unpaid
bills was largely performed in Gentry Locke's Roanoke
the repeal of the divisional venue statute in 1988, federal
litigants no longer have statutory rights to venue in a
particular division within a district. See 28 U.S.C.
§ 1393 (repealed 1988); In re Gibson. 423
F.App'x 385, 388 (5th Cir. 2011). However, Western
District of Virginia Local Rule 2(b) provides:
Civil actions for which venue is proper in this district must
be brought in the proper division as well. The venue rules
for United States district courts contained in the United
States Code also apply in determining the proper division in
which an action must be filed, so that such venue rules are
construed as if the terms "judicial district" and
"district" were replaced with the word
Va. R. 2(b). As such, the court treats statutes and case law
governing inter-district venue as equally applicable to
issues of divisional venue.
first argue that venue in Roanoke is improper under §
1391, which, in relevant part, defines proper venue as the
division "in which a substantial part of the events or
omissions giving rise to the claim occurred." 28 U.S.C.
§ 1391(b)(2). Defendants rely heavily on the Fourth
Circuit's decision in Mitrano v. Hawes. 377 F.3d
402 (4th Cir. 2004), where there court addressed proper venue
in a dispute over legal fees.
however, have missed the mark. Venue is proper in Roanoke
because defendants removed this case from Roanoke City
Circuit Court under § 1441(a). The general venue
statute, § 1391, "has no application to this case
because this is a removed action. The venue of removed
actions is governed by [§ 1441], and under that section
venue was property laid in" the district where the state
court was located. Polizzi v. Cowles Magazines,Inc., 345 U.S. 663, 665 (1953). "Section
1441(a) expressly provides that the proper venue of a removed
action is 'the district court of the United States for
the district and division embracing the place where such
action is pending.'" Polizzi, 345 U.S. at
666. As such, neither § 1391 nor the Fourth
Circuit's discussion of § 1391 in Mitrano.