Resolution Trust Corp v. Cumberland Development Corp. of Mississippi, Inc.

776 F. Supp. 1146, 1990 WL 312773
CourtDistrict Court, S.D. Mississippi
DecidedOctober 23, 1990
DocketCiv. A. No. J90-0253(W)
StatusPublished

This text of 776 F. Supp. 1146 (Resolution Trust Corp v. Cumberland Development Corp. of Mississippi, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Resolution Trust Corp v. Cumberland Development Corp. of Mississippi, Inc., 776 F. Supp. 1146, 1990 WL 312773 (S.D. Miss. 1990).

Opinion

[1148]*1148MEMORANDUM OPINION AND ORDER

WINGATE, District Judge.

Before the court is a question of venue raised by defendants who have been sued pursuant to 12 U.S.C. § 1441a(b)(l).1 Championing section 1391(b) of 28 U.S.C.,2 the defendants argue that venue is proper only in the Eastern Division of the Northern District of Mississippi where allegedly the claim arose. Plaintiff disagrees, contending that the claim arose in the Jackson Division of the Southern District of Mississippi, and, thus, is properly here under § 1391(b), and, moreover, that pursuant to § 1392(a), 28 U.S.C.,3 venue is proper in the Southern District of Mississippi because one of the defendants resides in this district.

Defendants alternatively argue that even if venue is proper in the Southern District of Mississippi, Jackson Division, that this case should be transferred to the Eastern Division of the Northern District of Mississippi because it is the most convenient forum pursuant to 28 U.S.C. § 1404(a).4 Plaintiff also disagrees with this assertion.

The lawsuit here concerns two promissory notes negotiated between the defendants and Unifirst Bank for Savings. Cumberland Development Corporation of Mississippi, Inc., (hereinafter Cumberland) executed its note in 1986 in Nashville, Tennessee. In 1990, Cumberland filed for bankruptcy under Chapter 7 of the Bankruptcy Code. Defendant Heritage Village, a joint venture, executed its note in 1985, also in Nashville, Tennessee. Mark Her-rington, one of the individual defendants, avers in his affidavit that Teresa A. Provi-as and Frankie J. Provias signed the Cumberland note and Heritage note in Aberdeen, Mississippi, and that all the other defendants signed the notes in Nashville, Tennessee. Herrington and the other defendants also claim that virtually all negotiations leading up to the execution of the notes took place in Aberdeen. Further, says the defendants, the real estate developments underlying both the Heritage note and the Cumberland note were managed, overseen, and directed from the headquarters of the operations located in Aberdeen, Mississippi. Resolution Trust disputes certain of these assertions, namely, that the notes were negotiated outside of Jackson, Mississippi. However, all parties agree that the lender, Unifirst Bank for Savings, was at all times pertinent located in Jackson, Mississippi. As receiver for Unifirst Bank for Savings, Resolution Trust is now attempting to collect on the notes and has filed this lawsuit.

All of the individual defendants, except one, Mark H. Herrington, live in the Northern District of Mississippi, Eastern Divi[1149]*1149sion, at or near Aberdeen, Mississippi. Herrington lives in Jones County, Mississippi, near the community of Moselle, which is in the Southern District of Mississippi. Cumberland’s principal place of business is in Aberdeen, Mississippi. Heritage Village, a real estate joint venture, is located also in Aberdeen, Mississippi.

Relying upon the dictates of 28 U.S.C. § 1391(b), the defendants contend that venue is improper in the Jackson Division of the Southern District of Mississippi because the claim neither arose here, nor are all defendants found here. Then, the defendants contend that venue in the Southern District would pose hardship for them and their non-party witnesses. They point to Amos Thompson, the personal accountant of George A. Provias and Chris A. Provias. Defendants contend that Thompson lives and works in Aberdeen, Mississippi, that he has all of the business records of the two above named individual defendants, as well as all the business records of Cumberland Development and Heritage Village. According to defendants, if Thompson is required to come to Jackson for trial, he would have to close his business for at least one week and suffer great expense and burden if he has to transport all of the records in question to Jackson. Hence, defendants alternatively argue that should the court find venue proper in the Southern District, that this case under Section 1404(a) still should be transferred to the Northern District for the convenience of the parties and witnesses.

The court is not persuaded. The court agrees with the plaintiff that § 1392(a) applies here. It is undisputed that one of the defendants resides in the Southern District. Herrington lives in Jones County, Mississippi, which is in the Southern District of Mississippi. Section 1392 governs actions which are not of a local nature against defendants residing in different districts in the same state. This lawsuit, filed pursuant to 12 U.S.C. § 1441a(b)(l) by the plaintiff, Resolution Trust, as receiver, where Resolution Trust is an instrumentality of the United States, is “not of a local nature.”5 Section 1392(a) provides that in this eventuality the civil action may be brought in any of the districts where the defendants reside. Hence, since Herrington resides in the Southern District of Mississippi, venue is proper here. See, 1 Moore’s Federal Practice ¶ 0.343[1] at 4189.

In Al-Muhaymin v. Jones, 895 F.2d 1147 (6th Cir.1990), the Court addressed the case with facts congruent to that sub judice. In Al-Muhaymin, the defendants attacked venue under § 1391(b) where 13 defendants resided in the Eastern District of Tennessee where all of the claims arose, while one defendant resided in the Middle District of Tennessee where the action was brought. The district court dismissed the case under 28 U.S.C. § 1391(b). However, the Sixth Circuit reversed the ruling, finding that the district court had erred in failing to consider § 1392(a). The Court stated that while the language of § 1391(b) might appear to be applicable, the language of the statute should be read in conjunction with § 1392(a), since the case was not of a local nature. The Court explained that § 1392(a) is an exception to § 1391. The Court concluded its analysis by noting that in multiple defendant cases the district court could deal with any problems of convenience under 28 U.S.C. § 1404(a).

[1150]*1150This court has not found, nor have the parties submitted, any cases in the Fifth Circuit which deal directly with this issue. Recently, the Fifth Circuit decided the case of Gogolin and Stelter v. Karn's Auto Imports, Inc., 886 F.2d 100, 104 (5th Cir. 1989). In this case, the Fifth Circuit held that § 1392(a) does not apply when the defendants all reside in the same district, but one of them happens additionally to reside in another district. This factual circumstance is not the factual circumstance presented sub judice. Furthermore, in Go-golin and Stelter,

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Bluebook (online)
776 F. Supp. 1146, 1990 WL 312773, Counsel Stack Legal Research, https://law.counselstack.com/opinion/resolution-trust-corp-v-cumberland-development-corp-of-mississippi-inc-mssd-1990.