The Bright Star Restaurant has been located in Bessemer, Alabama, since 1907. It is within sight of the courthouse for the Bessemer Division of the Jefferson County Circuit Court. When it was sued in the Birmingham Division of that court by a party that had contracted to provide cleaning services for the Bright Star, the restaurant filed a motion to transfer the action to the Bessemer Division, alleging that the restaurant is located in Bessemer and that the substantial part of the events or omissions giving rise to the action occurred in Bessemer. The motion to transfer was granted, and the other party petitioned the Court of Civil Appeals for mandamus relief.

The Court of Civil Appeals held that the Bright Star had not met the evidentiary burden necessary to support its motion to transfer. Gentile Co., LLC v. The Bright Star Restaurant, Inc., (Ms. 2150901, October 14, 2016) __ So.3d __ (Ala. Civ. App. 2016). In fact, the Bright Star had offered no evidence in support of the motion. Its failure to present evidence doomed the motion to transfer even “though there [was] a logical inference from the allegations of the parties that most of the performance of the contract occurred in Bessemer.” Id.

A motion to transfer must be based on evidentiary material. The Gentile decision contains a clear reminder of what is not evidence: “The unsworn statements, factual assertions, and arguments of counsel are not evidence. . . . Similarly, the statements made by counsel in an unsworn pleading or motion are not evidence.” (Internal quotation marks and citations omitted). No matter how obvious facts may seem, they must be based on sworn evidence.