Dworkin v. Hustler Magazine, Inc.
| Decision Date | 18 November 1986 |
| Docket Number | No. C85-0111-B.,C85-0111-B. |
| Citation | 647 F. Supp. 1278 |
| Parties | Andrea DWORKIN, a citizen of New York, Plaintiff, v. HUSTLER MAGAZINE, INC., a California corporation; Larry Flynt, a citizen of California; and Flynt Distributing Company, Inc., a California corporation, Defendants. |
| Court | U.S. District Court — District of Wyoming |
Gary L. Shockey, Elizabeth Greenwood, Spence, Moriarity & Schuster, Jackson, Wyo., for plaintiff.
George E. Powers, Jr., Godfrey & Sundahl, Cheyenne, Wyo., David O. Carson, Cooper, Epstein & Hurewitz, Beverly Hills, Cal., for defendants.
ORDER GRANTING DEFENDANTS' MOTION FOR TRANSFER OF ACTION PURSUANT TO 28 U.S.C. § 1404(a)
This matter came before the Court on the defendants' motion for change of venue. The Court, having reviewed the pleadings and being fully advised in the premises, FINDS and ORDERS as follows:
The plaintiff originally filed this action in Wyoming state court. She, along with two Wyoming residents, brought a suit against the defendants herein in addition to a distributing company and a Wyoming convenience store, alleging violation of their constitutional rights under the first and fourteenth amendments to the United States Constitution, and violation of Wyoming obscenity statutes, as well as libel, intentional infliction of emotional harm, invasion of privacy and outrage. The case was subsequently removed to this court. In a previous order on a number of motions, this Court dismissed all of the Wyoming parties and the distributing company, in addition to the claims under the Constitution and the Wyoming statutes. This action now stands as a tort action by a resident of New York against residents of California. The acts at issue consist of three individual publications of Hustler magazine, a magazine which is distributed nationally, including in Wyoming, New York and California. The Court has already ruled that jurisdiction and venue are properly in this court. Dworkin v. Hustler Magazine, Inc., 611 F.Supp. 781 (D.C.Wyo.1985).
Pursuant to 28 U.S.C. § 1404(a), this Court may transfer a civil action to another district court where it might have been brought, for the convenience of parties and witnesses and in the interest of justice. This statute, admittedly, does not give specific guidance as to when transfer should be granted. As Wright, Miller & Cooper have observed:
The statute gives no hint about how these broad categories are to be weighed against each other. It seems that much necessarily must turn on the particular facts of each case and that the trial court must consider all relevant factors to determine whether or not on balance the litigation would more conveniently proceed and the interests of justice be better served by transfer to a different forum. 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3847, at 370 (2d ed. 1986).
The decision to transfer is, thus, a matter of discretion for the trial judge, but the Court must account for a number of factors developed by the Tenth Circuit and other federal courts. The Court notes that the factors which must be balanced vary depending on the facts of each case, but the following issues are considered in most cases:
In this case, the balance of these considerations tilts in favor of transferring the case to the Central District of California.
There are no longer any Wyoming parties. All of the defendants are residents of California. Defendants contend that Wyoming is an inconvenient forum in that it is a difficult place to which to travel, travel and lodging are expensive and time consuming, and in Wyoming, as opposed to Central California, the defendants must hire local counsel. The Court recognizes that Wyoming is not a convenient forum for the defendants.
The plaintiff is a resident of New York. She does not claim that Wyoming is necessarily a convenient forum, but that it is her preferred forum because that is where her chosen counsel resides. She contends that the firm of Spence, Moriarity and Schuster of Jackson, Wyoming is one of a very rare and special breed of law firm that is willing to represent her in this matter, and since Wyoming is the most convenient forum for her counsel, it is necessarily the most convenient forum for the plaintiff as well.
At the hearing on this motion, the plaintiff argued that she would have to go to the expense of retaining local California counsel if the case were transferred there. However, the Court notes that the plaintiff agreed to be deposed in the Central District of California, at which proceeding Mr. Spence represented the plaintiff. The plaintiff's arguments regarding her own convenience appear to be a combination of arguments concerning plaintiff's choice of forum and convenience of counsel, both of which are addressed below. As for the plaintiff's actual convenience, the Court doubts that the Central District of California is less convenient for the plaintiff than Wyoming. It is generally easier and less expensive to travel from New York to California than to Wyoming, and the Spence firm will continue to represent the plaintiff if the case is transferred. Consequently, the Court must find that the convenience of parties weighs in favor of transferring the case to California.
The vast majority of the defendants' witnesses reside in the Central District of California. There are also a number of defense witnesses who will testify only under a subpoena, which would not be obtainable in Wyoming. See affidavit of David O. Carson, October 16, 1985, at 2-3. As most, if not all, of these witnesses have jobs in the Central District of California, it would be quite expensive and inconvenient for them to come to Wyoming for the trial, since a Wyoming trial would require more time and expense in travel.
Neither the plaintiff1 nor the defendants intend to call any Wyoming witnesses. Although some New York or other non-California witnesses may be called, their convenience will not be increased by trying the case in Wyoming rather than California. The Court thus must find that the convenience of witnesses weighs in favor of transferring the case to the Central District of California.
The plaintiff has made it clear that her choice of forum is Wyoming. The question is how much weight this preference should carry when considered along with all of the other factors, for it is neither the sole nor decisive consideration for transferring venue under 28 U.S.C. § 1404(a); it is but one factor among many. See Wright, Miller & Cooper, supra, § 3848.
The circuit and district courts that have addressed this issue are not in agreement. The Tenth Circuit has held that the plaintiff's choice of forum should receive considerable weight, Texas Eastern Transmission Corp. v. Marine Office — Appleton & Cox Corp., 579 F.2d 561 (10th Cir. 1978), and that "unless evidence and the circumstances of the case are strongly in favor of the transfer the plaintiff's choice of forum should not be disturbed." Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir.1967). This Court notes, however, that in both of these cases the plaintiff had chosen the forum in which he resided, which is not the case here. The district court of Oklahoma, which is a part of this circuit, has held on numerous occasions that a plaintiff's choice of forum should receive less weight when the forum has no obvious connection with the case. National Sur. Corp. v. Robert M. Barton Corp., 484 F.Supp. 222 (W.D.Okla.1979); ROC, Inc. v. Progress Drillers, Inc., 481 F.Supp. 147 (W.D.Okla.1979); Pope v. Missouri Pac. R.R. Co., 446 F.Supp. 447 (W.D.Okla. 1978); Northwest Animal Hospital, Inc. v. Earnhardt, 452 F.Supp. 191 (W.D.Okla. 1977); Lowry v. Chicago, Rock Island and Pacific R.R. Co., 293 F.Supp. 867, 868 (W.D.Okla.1968).
The problem here is that there is some connection between Wyoming and the conduct alleged in that a very small percentage of the allegedly libelous material was distributed in Wyoming. Consequently, this case falls in between the Tenth Circuit cases and the Oklahoma cases. The Court finds, however, that this connection is tenuous, at best, and is therefore only slightly more significant than the absence of an obvious connection to the case. Nevertheless, in that the Court recognizes the value of the plaintiff's power to choose her forum, it finds that the plaintiff's choice of forum weighs against transferring the case. The Court further finds that while it respects the plaintiff's preference, it is not a significantly more weighty factor than any of the other factors considered here, particularly when the forum's connection to the case is obscure and the forum's connection to the plaintiff is even more so.
The Supreme Court has ruled that in diversity cases, courts must look to the forum state's conflict-of-laws rules to determine the applicable substantive law. Klaxon v. Stentor Electric Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Moreover, when a case has been transferred, the transferee court must apply the same law that the transferor court would apply. Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964).
The present case is a diversity action based on tort law. The Wyoming Supreme Court ruled in Duke v. Housen, 589 P.2d 334 (Wyo.1979), that in interstate tort cases, with elements in different jurisdictions, ...
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Dworkin v. Hustler Magazine, Inc.
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