Greve v. Gibraltar Enterprises, Civ. A. No. 1460.

• Decision Date: 11 August 1949
• Docket Number: Civ. A. No. 1460.
• Citation: 85 F. Supp. 410
• Parties: GREVE v. GIBRALTAR ENTERPRISES, Inc.
• Court: U.S. District Court — District of New Mexico

85 F. Supp. 410

GREVE v. GIBRALTAR ENTERPRISES, Inc.

Civ. A. No. 1460.

United States District Court D. New Mexico.

August 11, 1949.

Norman N. Neel, Santa Fe, N. M., Bryan R. White and Lewis Grant, Newton, Davis & Henry, Denver, Colo., for the plaintiff.

H. A. Kiker, Santa Fe, N. M., Max D. Melville and Edward E. Pringle, Denver, Colo., for the defendant.

HATCH, District Judge.

Questions hereinafter discussed arise on defendant's motion for change of venue.

Plaintiff, John A. Greve, brought this action in the United States Court for the District of New Mexico. He alleges a violation of the anti-trust statutes and prays judgment for three-fold recovery as provided in those laws. Plaintiff is a resident of Eagle, Colorado, and owns and operates moving picture theatres in various towns in Colorado. At one time he owned and operated the West Theatre at Craig, Colorado.

All the facts and circumstances which plaintiff claims give rise to his cause of action occurred in the State of Colorado.

The defendant, Gibraltar Enterprises, Inc., is a corporation organized under the laws of Colorado. Its principal place of business is in Denver, Colorado. All books and documents of both parties are probably located in Colorado. The witnesses who will be called will doubtless be residents of Colorado. Time, expense and travel will all be saved by a trial in the District of Colorado. Jurors of that district should have a far better understanding of conditions, circumstances and parties than would a New Mexico jury.

The defendant does own and operate at least one theatre in New Mexico. The transactions complained of are alleged to have been in interstate commerce. Defendant was found and served with process in New Mexico. There is no question but that the district court in New Mexico has jurisdiction and the venue is properly laid in this district. Motion is made under 28 U.S.C.A. § 1404(a).

Before discussing defendant's right to change the venue from the New Mexico court to the District Court for Colorado, plaintiff's reason for bringing his suit in New Mexico should be stated. Colorado has a two-year statute of limitations for actions of this nature. New Mexico has a four-year statute. Under the Colorado law, if it is valid, plaintiff's action would be barred. Under the New Mexico law, plaintiff contends it is not. Plaintiff's desire to avail himself of the more liberal New Mexico statute of limitations is not difficult to comprehend.

Notwithstanding the difference in the statutes of limitations in the two states, the defendant insists upon its motion to change the venue to the District of Colorado. The propriety of granting such motion is the sole question involved at this time.

Section 1404(a), Title 28, under which the motion is filed, provides: "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." In light of the residence of the parties, the acts charged to have been in violation of the anti-trust laws and all circumstances alleged in the complaint, and the affidavit filed with the motion, it appears almost beyond dispute that it would be for the convenience of the parties and witnesses to transfer this cause to the District of Colorado. More than that, the Court is firmly of the opinion that with but one possible exception the case is one which should be tried in Colorado and it would be in the interest of justice to try the case in that district. That possible exception is, of course, the difference in the statutes of limitations of the two states. If there were no conflict in these laws, the Court would have ordered the change without any doubt whatever.

Before discussing the effect of a change of venue on the statutes of limitations of the two states, one preliminary question should be disposed of, as it also is important. In resisting the motion to change the venue, the plaintiff stoutly contends this court cannot change the venue to Colorado because plaintiff could not have brought his action in that district in the first instance. True, as plaintiff correctly argues, the statute permitting a change of venue only allows a change to a district "where it (the action) might have been brought." Because the statute of limitations under the Colorado law had run, plaintiff says he could not have brought his action in that state or district originally. Therefore, he argues, the venue cannot now be changed to the District of Colorado.

With plaintiff's contention in this regard the Court cannot agree. First, the Court believes the language of the statute, "where it might have been brought", relates primarily to venue and in a proper case would include jurisdiction. It concerns plaintiff's right to institute the suit originally. It does not include problematical or possible defenses which might or might not be interposed by a defendant. To hold the Court must take into account any and all possible defenses which may or may not be pleaded and may or may not preclude recovery in determining where an action "might have been brought" would open such a Pandora's box of evils and difficulties, the wise purposes of the law would be well-nigh destroyed. The rule authorizing a change of venue would be rendered most difficult, if not impossible, of application.

The statute of limitations is a privilege which a defendant is not required to assert. He may interpose it or not at his own, and at no one else's pleasure. It may be waived or the defendant may be estopped by his acts or conduct to claim the privilege as a defense to plaintiff's cause. Not only can plaintiff bring an action on a cause barred by the statute of limitations, but under appropriate circumstances a plaintiff may recover and enforce a judgment on a claim so barred. That the defense must be asserted and may be waived or the defendant be estopped to claim the benefit of the statute hardly needs citation of authority. Such is the holding of the Colorado, New Mexico and federal courts. Among many opinions are: Wilkerson v. Badaracco, 21 N.M. 517, 157 P. 141; Adams v. Tucker, 6 Colo.App. 393, 40 P. 783; Burnet v. Desmornes y Alverez, 226 U.S. 145, 33 S.Ct. 63, 57 L.Ed. 159.

Indeed, during the oral argument defendant's counsel stated they were prepared to argue the Colorado statute of limitations is unconstitutional. While that question was not considered, it further indicates strong reason for confining the application of the words, "might have been brought" to plaintiff's right of action, rather than to enter into the wide field of speculation as to possible defenses which might have no legal basis whatever.

On this point, the Court holds an anticipated defense of the statute of limitations did not bar the plaintiff from instituting his suit in the District of Colorado. The instant case being one which might have been brought in Colorado, it may now be...