Home Depot landlord not serious about change in venue request, federal judge says

By Karen Kidd | Jul 22, 2018

MIAMI — A federal judge in Miami has declined a landlord's request to move the venue of a case asking for a Home Depot to be rebuilt, after it was destroyed by fire, to New York, saying the plaintiff in the case isn't serious about the change in venue request.

"The Court is not persuaded," U.S. District Court Judge Robert N. Scola Jr. of Florida's Southern District, said in his eight-page omnibus order issued July 12 in Julian Depot Miami's change of venue request. "Transferring this case, at this point in the litigation - over a year since it was initiated - would not promote its efficient resolution. Further, and more importantly, the parties here incorporated a forum-selection clause into their lease agreement. Julian Depot does not dispute that this clause, by its terms, requires the parties to litigate this case in Miami-Dade County."

Scola denied Julian Depot's motion to transfer venue from South Florida to New York and also denied the landlord's motion for leave to amend its complaint, according to the order.

Julian Depot, landlord to Home Depot U.S.A., is suing over Home Depot's refusal to rebuild after the home-improvement store location was damaged by fire and subsequently demolished. Julian Depot is asking for a declaratory judgment to force Home Depot to rebuild the store.

In October, Julian Depot filed a voluntary Chapter 11 petition for bankruptcy in New York's Southern District and then requested that its case against Home Depot be transferred to the district court in New York. At the time of its Chapter 11 filing, Julian Depot's case against Home Depot had been pending for several months.

The case could not be removed under the federal law cited in Julian Depot's request, Scola said in his order. "Julian Depot ultimately concedes as much," the order said.

Had "Julian Depot seriously intended to attempt removal" under another federal law, "it would have simply removed this case by filing a notice as provided for in Federal Rule of Bankruptcy Procedure 9027 rather than filing its motion to transfer," the order said.

That isn't what Julian Depot did. 

"But as Julian Depot itself notes, allowing removal of a case already in district court 'would lead to the illogical result of a district court removing a case to itself and then referring the case to the bankruptcy court.' Since Julian Depot does not take its attempted removal seriously, neither does the court."

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