Fitzgibbon v. Radack, Civil Action No. 3:18-cv-247

Citation597 B.R. 836
Decision Date06 February 2019
Docket NumberCivil Action No. 3:18-cv-247
Parties Trevor FITZGIBBON, Plaintiff, v. Jesselyn A. RADACK, Defendant.
CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

Steven Scott Biss, Charlottesville, VA, for Plaintiff.

D. Margeaux Thomas, The Thomas Law Office PLC, Tysons Corner, VA, Jeffrey Louis Light, Law Office of Jeffrey L. Light, Washington, DC, Andrew Omar Clarke, Andrew Clarke Law PLLC, Fairfax, VA, Jeffrey Marc Sherman, Law Offices of Jeffrey M. Sherman, Arlington, VA, for Defendant.


Robert E. Payne, Senior United States District Judge

This matter is before the Court on Jesselyn A. Radack's RENEWED MOTION TO TRANSFER VENUE (ECF No. 76). For the following reasons, the motion will be denied.


Trevor Fitzgibbon instituted this action against Radack, claiming that she maliciously prosecuted and defamed him by falsely accusing him of sexual assault. See generally ECF No. 12.

After the pre-trial conference and after she had filed various other motions, Radack instituted a bankruptcy action under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Columbia. She then filed a notice of removal to remove this case to the United States Bankruptcy Court for the Eastern District of Virginia, but the bankruptcy judge held that this removal was improper. Fitzgibbon v. Radack, No. 18-3096 (Bankr. E.D. Va. October 25, 2018). Thus, the action was remanded back to this Court.

Pursuant to 11 U.S.C. § 362, this action was stayed with respect to Radack because she instituted the bankruptcy action. ECF No. 75. Further, Radack filed a motion to transfer the case. ECF No. 76. Fitzgibbon responded, ECF No. 77, and Radack replied. ECF No. 79.

I. Section 1404 Governs Transfer of Venue When the Action Is Not Under Title 11.

The first issue to be determined is whether 28 U.S.C. § 1404(a)1 or 28 U.S.C. § 14122 should be the basis for determining whether a transfer is proper.

The Fourth Circuit has not spoken on this issue, but the leading case by a district court in this circuit is from the Southern District of West Virginia. In Dunlap v. Friedman's, Inc., 331 B.R. 674 (S.D. W.Va. 2005), the court held that, when a party requests a transfer to a pending related-to bankruptcy proceeding in another district court, Section 1412 governs whether a transfer is appropriate. Id. at 680. The court did so because (1) the leading commentator on the issue said that Section 1412 should govern, id. at 677 ; (2) Section 1404 would thwart transfer in many cases, which would "dilute the well-settled presumption that ‘related to’ proceedings should be litigated in the ‘home court,’ " id. at 678 (quoting Hohl v. Bastian, 279 B.R. 165, 177-78 (W.D. Pa. 2002) ); and (3) the legislative history of Sections 1404 and 1412 confirmed the court's view. Id. at 679-80. Other courts have followed Dunlap. See, e.g., Brown v. Wells Fargo, N/A, 463 B.R. 332, 338 (M.D.N.C. 2011) ; Creekridge Capital, LLC v. Louisiana Hosp. Ctr., LLC, 410 B.R. 623, 628 (D. Minn. 2009).

But a recent decision by the United States Bankruptcy Court for the Southern District of New York challenges the Dunlap view. In Multibank, Inc. v. Access Global Capital LLC, 594 B.R. 618 (Bankr. S.D.N.Y. 2018), the bankruptcy court held that Section 1412 applies only to proceedings that arise "under" the Bankruptcy Code. Id. at 621. That was so, said the bankruptcy court, based on the plain language of Section 1412, because the phrases "related to" and "arises in" were left out of Section 1412. Id. at 622-23. So, a case "under title 11" must be one that asserts a bankruptcy claim. Id. at 623. The bankruptcy court in Multibank thought that the Dunlap court was incorrect because it had equated the language of Section 1475–which included the "arises in" and "related to" language–with that of Section 1412. Id. Therefore, Section 1412 could not apply to a transfer of a non-bankruptcy action, necessarily meaning that Section 1404 is the appropriate mechanism. See id. at 624.

Other courts have also maintained that Section 1404(a) controls. See, e.g., Rumore v. Wamstad, No. 01-2997, 2001 WL 1426680, at *2 (E.D. La. Nov. 13, 2001) ("Since section 1412 does not contain the phrase, ‘or related to,’ most courts have found that motions to transfer actions ‘related to’ title 11 cases should be governed by section 1404, the general change of venue provision."); Tultex Corp. v. Freeze Kids, L.L.C., 252 B.R. 32, 36 n.4 (S.D.N.Y. 2000) (same).

The Court finds the reasoning of Multibank more persuasive: the plain language of Section 1412 says: "A district court may transfer a case or proceeding under title 11 to a district court for another district." 28 U.S.C. § 1412 (emphasis added). This language teaches that the statute applies only to bankruptcy cases and proceedings because those are the only cases or proceedings filed "under title 11." Thus, the Court will examine the case under Section 1404 rather than Section 1412.3

II. The Section 1404 Factors Weigh Against a Transfer

Section 1404 (a) says, "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." The first inquiry is whether the claims "might have been brought" in the transferee forum. See id.; Byerson v. Equifax Info. Servs., LLC, 467 F.Supp.2d 627, 631 (E.D. Va. 2006). After that, the Court must consider and balance various factors to determine whether a transfer is warranted. Byerson, 467 F.Supp.2d at 631.

A district court has discretion to decide motions to transfer according to an "individualized, case-by-case consideration of convenience and fairness." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 101 L.Ed.2d 22 (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) ). Radack, as the movant, has the burden of showing that a transfer is proper. Byerson, 467 F.Supp.2d at 631. In fact, Radack must show that the balance of convenience among the parties and witnesses "is beyond dead center, and strongly favors the transfer sought." Medicenters of America, Inc. v. T & V Realty & Equip. Corp., 371 F.Supp. 1180, 1184 (E.D. Va. 1974).

A. Might an Action Against Radack Have Been Brought in the District of Columbia?

There is no dispute that the action could have been brought against Radack in her home district of the District of Columbia. Under 28 U.S.C. § 1391(b) (1), an action can be brought in any district in which a defendant resides, and under § 1391(b) (2), an action may be brought in a district "in which a substantial part of the events or omissions giving rise to the claim occurred." Here, Radack lives in the District of Columbia, and much of the disputed events happened in the District of Columbia. Thus, the action could have been brought there.

B. The § 1404(a) Factors Weigh Against Transfer

The factors to be considered for a § 1404 (a) motion are: "(1) the weight accorded to plaintiff's choice of venue; (2) witness convenience and access; (3) convenience of the parties; and (4) the interest of justice." Trs. of the Plumbers & Pipefitters Nat. Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 444 (4th Cir. 2015). Each of these factors are addressed below.

1. Fitzgibbon's Choice of Forum

"As a general rule, a plaintiff's ‘choice of venue is entitled to substantial weight in determining whether transfer is appropriate.’ " Id. (quoting Bd. of Trs. v. Sullivant Ave. Props., LLC, 508 F.Supp.2d 473, 477 (E.D. Va. 2007) ). But, if the plaintiff's choice of forum is neither the nucleus of operative facts nor the plaintiff's home forum, the plaintiff's choice is accorded less weight. Intranexus, Inc. v. Siemens Med. Sols. Health Servs. Corp., 227 F.Supp.2d 581, 583 (E.D. Va. 2002). Even then, the choice of forum is relevant if there is a connection between the forum and the plaintiff's claim that logically supports the plaintiff's decision to bring the case in the chosen forum. Mullins v. Equifax Info. Servs., LLC, No. 3:05-cv-888, 2006 WL 1214024, at *5 (E.D. Va. April 28, 2006).

As Radack notes, Fitzgibbon is no longer a citizen of Virginia, although he was at the time of the underlying events. He is now, and was when this action was filed, a citizen of North Carolina. Further, the underlying events happened in the District of Columbia. So, in her view, this factor favors a transfer.

The Court finds that Fitzgibbon's choice of forum does not carry its usual strong weight here, because Fitzgibbon does not live in Virginia and because the underlying facts did not occur here. However, Fitzgibbon's choice of forum is nonetheless entitled to significant weight because Fitzgibbon resided in Richmond, Virginia during the relevant events and most of his witnesses live in and around the Richmond. And, the effects of the allegedly defamatory remarks were felt in this forum. Thus, there is a substantial connection to the forum that logically supports Fitzgibbon's decision to bring the case here.

2. Convenience of the Parties

The second factor to be weighed is the convenience to the parties in litigating in either venue. Koh v. Microtek Intern., Inc., 250 F.Supp.2d 627, 636 (E.D. Va. 2003). The first consideration when weighing the convenience of the parties is their residency. But "residence is not a controlling factor and may be outweighed in the context of a particular case by countervailing considerations relevant to the convenience of the witnesses and the interest of justice." 15 Fed. Prac. & Proc. Juris. § 3849 (4th ed.). Radack, as the movant, must show (1) that the original forum is inconvenient for her and (2) that Fitzgibbon will not be substantially inconvenienced by the transfer. Koh, 250 F.Supp.2d at 636.

Radack resides in the District of Columbia, so transferring the case to her home district will...

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