Odenton Development Company v. Lamy

CHASANOW, Judge. In February of 1986, Bernice E. Lamy (Lamy) went grocery shopping with her sister and a friend. They went ³⁶ to the A & P 1 grocery store in the Odenton Shopping Center in Anne Arundel County, Maryland. There had been a snowstorm two days earlier, and as they drove into the shopping center parking lot, Lamy observed that various sections of the parking area in front of the A & P had not been completely cleared of accumulated snow, ice, and slush.

After parking the car, Lamy and her companions noticed a foot or more of packed snow abutting the curb in front of their car. They chose to enter the A & P by walking across the parking lot, encountering some snow, ice, and slush on the way. They remained in the store for about 45 to 60 minutes. Exiting the store, Lamy elected not to cross the parking lot as she had when entering.

Instead, she pushed her grocery cart down a sidewalk bordering the A & P, and up a covered walkway which extended from the A & P to the rest of the shopping center. The walkway was clear of ice and snow, but as she approached her friend’s parked car, she encountered the snow packed against the curb between the covered walkway and her friend’s car. Lamy then took two grocery bags and stepped over the packed snow. Stepping on what she thought was a clear spot, she proceeded to hand her two grocery bags to her sister.

She testified that at this point, she slipped a little. Despite having slipped, Lamy then returned to her grocery cart, once again stepping over the snow and ice packed against the curb. On this next effort, she took three grocery bags, two in one hand, and one in the other. Again she attempted to step over the accumulation of packed snow and ice.

On this second attempt, she slipped and fell. Lamy filed suit in the Circuit Court for Baltimore City, the forum she preferred, against A & P, lessee of the store, and Odenton Development Company (Odenton), owner and operator of the shopping center and lessor of the store A & ³⁷ P occupied. Lamy was able to effectuate service of process on A & P. Odenton, however, was a different matter. According to counsel for Lamy, Odenton was listed with the Maryland Department of Assessments and Taxation as a corporation, and had a resident agent in Baltimore City.

Lamy tried to serve her complaint on the resident agent for the “Odenton Development Corporation.” Twice, she was unable to do so. Although Odenton was named in the complaint filed in the Circuit Court for Baltimore City, it had not yet been served when A & P moved to have the case dismissed for improper venue 2 pursuant to Maryland Rule 2-322, and Maryland Code (1974, 1989 RepLVol.) Courts and Judicial Proceedings Article, § 6-201(b), which states: (b) Multiple Defendants. — If there is more than one defendant, and there is no single venue applicable to all defendants, under subsection (a), all may be sued in a county in which any one of them could be sued, or in the county where the cause of action arose. A & P claimed, without any supporting affidavits, that under Courts Article § 6-201(b), the single venue applicable to both the A & P, who does business throughout the state, and Odenton, who maintains its principal business offices and regularly conducts its business in Anne Arundel County, was Anne Arundel County. Lamy filed an answer to this motion contending that venue was proper in Baltimore City because both Odenton and A & P could be sued in Baltimore City.

A & P filed a reply requesting transfer of venue from Baltimore City to Anne Arundel County for the convenience of the parties and witnesses pursuant to Maryland Rule 2-327(c), which states: ³⁸ (c) Convenience of the Parties and Witnesses. — On motion of any party, the court may transfer any action to any other circuit court where the action might have been brought if the transfer is for the convenience of the parties and witnesses and serves the interests of justice. In that pleading, A & P requested a hearing and alleged that its reasons for seeking a transfer were that plaintiff was a resident of Anne Arundel County; Odenton maintained its principal offices in Anne Arundel County; the cause of action arose in Anne Arundel County; and that “all witnesses in this matter would be from Anne Arundel County.” Lamy responded to this pleading stating that “the Plaintiff contends that it is premature to state with any definitiveness the location of all witnesses involved.” (Emphasis in original.) In her response, Lamy also alleged that Odenton “may never become a party in this law suit.” The Circuit Court for Baltimore City granted A & P’s motion to transfer the action to the Circuit Court for Anne Arundel County. After the action was transferred, Lamy effectuated service on Odenton, which ultimately was discovered to be a partnership. A trial was held in the Circuit Court for Anne Arundel County, and the jury returned a verdict in favor of both defendants.

Lamy moved for a Judgment Not Withstanding the Verdict and/or For a New Trial. The court denied both motions and Lamy appealed to the Court of Special Appeals. In an unreported per curiam opinion, the Court of Special Appeals held that A & P had not met its burden of demonstrating that venue was improperly laid in Baltimore City, and that the Circuit Court for Baltimore City had abused its discretion in transferring the action to Anne Arundel County for the convenience of the parties and witnesses. Both A & P and Odenton petitioned this Court, claiming that the Court of Special Appeals incorrectly interpreted the various venue provisions. ³⁹ Lamy cross-petitioned this Court conditionally.

She maintains that the Court of Special Appeals was correct in its holding, but also argues that when instructing the jury, the trial court failed to properly define a “voluntary assumption” restriction on the defense of assumption of the risk. We granted certiorari on all three petitions. We begin with the intermediate appellate court’s interpretation of the various venue provisions. The Court of Special Appeals noted that A & P had not met its burden of demonstrating that venue had been improperly laid in Baltimore City.

Under Maryland law, improper venue is a defense with the duty of averment and the burden of proof falling on the defendant. Gambrill v. Schooley, 95 Md. 260, 271 , 52 A. 500, 501 (1902). A & P’s motion to dismiss for improper venue was no more than a bare allegation that venue was improper, unsupported by affidavit or evidence. The Court of Special Appeals correctly held that A & P had failed to sustain its burden of proving that venue was improper in Baltimore City.

Venue would, therefore, have been proper in Baltimore City as well as in Anne Arundel County. 3 This left as the only basis for the transfer, the convenience of the parties and witnesses. The Court of Special Appeals, however, then erroneously concluded that the Circuit Court for Baltimore City had abused its discretion when it transferred the case to Anne Arundel County for the convenience of the parties and witnesses. Recognizing that a hearing on a motion to transfer venue is not mandated by the rules, the intermediate appellate court nevertheless concluded that “in light of the bare allegations in the pleadings,” failure to hold a hearing was an abuse of discretion. We do not find that ⁴⁰ the allegations in the pleadings are quite so bare or that a hearing was required.

Section (c) of Md.Rule 2-327 was derived from 28 U.S.C. § 1404 (a). See Md.Rule 2-327. Consequently the federal law construing § 1404(a) is highly persuasive in our analysis of the trial court’s ruling, which was based on Md.Rule 2-327(c). When determining whether a transfer of the action for the convenience of the parties and witnesses is in the interest of justice, a court is vested with wide discretion.

Norwood v. Kirkpatrick, 349 U.S. 29, 32 , 75 S.Ct. 544, 546 , 99 L.Ed. 789, 793 (1955); King v. Johnson Wax Associates, Inc., 565 F.Supp. 711, 719 (D.Md.1983). “Section 1404(a) is intended to place discretion in the District Court to adjudicate motions for transfer according to an ‘individualized, case-by-case consideration of convenience and fairness.’ ” Stewart Organization, Inc. v. Ricoh Corp., 487 U.S. 22, 29 , 108 S.Ct. 2239, 2244 , 101 L.Ed.2d 22, 31 (1988) (citing Van Dusen v. Barrack, 376 U.S. 612, 622 , 84 S.Ct. 805, 812 , 11 L.Ed.2d 945, 953 (1964)). It is the moving party who has the burden of proving that the interests of justice would be best served by transferring the action, Texas Gulf Sulphur Company v. Ritter, 371 F.2d 145 , 147 (10th Cir.1967); Equitable Bank v. Finn, 671 F.Supp. 374, 380 (D.Md.1987); King, 565 F.Supp. at 719 , and a motion to transfer should be granted only when the balance weighs strongly in favor of the moving party. Akers v. Norfolk and Western Railway Company, 378 F.2d 78, 80 (4th Cir.1967); King at 719 . To reach this decision, a court “must weigh in the balance the convenience of the witnesses and those public-interest factors of systemic integrity and fairness that, in addition to private concerns, come under the heading of ‘the interest of justice.’ ” Stewart 487 U.S. at 30 , 108 S.Ct. at 2244 , 101 L.Ed.2d at 32 .

In support of its motion to transfer, A & P alleged that all witnesses would be from Anne Arundel County, but this allegation was not supported