Hanning v. New England Mut. Life Ins. Co.

• Decision Date: 18 April 1989
• Docket Number: No. C2-88-871.,C2-88-871.
• Citation: 710 F. Supp. 213
• Parties: William H. HANNING, et al., Plaintiffs, v. NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

710 F. Supp. 213

William H. HANNING, et al., Plaintiffs, v.NEW ENGLAND MUTUAL LIFE INSURANCE COMPANY, et al., Defendants.

No. C2-88-871.

United States District Court, S.D. Ohio, E.D.

April 18, 1989.

Means, Bichimer, Burkholder & Baker Co., and Richard W. Ross, Columbus, Ohio, for plaintiffs.

Calfee, Halter & Griswold, and Brian M. Eisenberg, Mitchell G. Blair and Thomas R. Coerdt, Cleveland, Ohio, for defendants.

OPINION AND ORDER

GRAHAM, District Judge.

This matter is before the Court on the motion of defendantsMutual Benefit Financial Service Company and Mutual Benefit Life Insurance Company("the Mutual Benefit defendants") for change of venue pursuant to 28 U.S.C. § 1404(a), (b).The Mutual Benefit defendants seek an order transferring this action to the Western Division of this District.

Title 28, U.S.C. § 1404 provides in pertinent part as follows:

(a) 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.

(b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district.

Under 28 U.S.C. § 1404(a), an action in a district court where both personal jurisdiction and venue are proper may be transferred to another "district or division where it might have been brought."Id.;Martin v. Stokes,623 F.2d 469, 474(6th Cir.1980).The parties do not contest this Court's personal jurisdiction or that venue has been properly laid in this Division.Therefore, this action may be transferred to the Western Division of this District "if (1) that court has jurisdiction over the subject matter of the action, (2) venue is proper there, and (3)the defendant is amenable to process issuing out of the transferee court."Neff Athletic Lettering Co. v. Walters,524 F.Supp. 268, 271(S.D.Ohio1981).The facts in the record indicate that this action could have been brought in the Western Division.

The Court's analysis does not end here, however.The Court must now determine whether a transfer would serve "the convenience of parties and witnesses" and "the interest of justice."28 U.S.C. § 1404(a).The factors to be considered in making this determination are similar to those weighed by the courts in determining forum non conveniens motions; however, transfers pursuant to § 1404(a) may be granted "upon a lesser showing of inconvenience."Norwood v. Kirkpatrick,349 U.S. 29, 32, 75 S.Ct. 544, 546, 99 L.Ed. 789(1955).The plaintiff's choice of forum is to be given considerable weight and the balance of convenience, considering all of the relevant factors, should be strongly in favor of a transfer before such will be granted.Nicol v. Koscinski,188 F.2d 537(6th Cir.1951).Although the Mutual Benefit defendants have attempted to downplay this factor, citing Neff Athletic Lettering Co.,524 F.Supp. at 272andDeMoss v. First Artists Production Co.,571 F.Supp. 409, 413(N.D.Ohio1983), appeal dismissed,734 F.2d 14(6th Cir.1984), Nicol remains the controlling Sixth Circuit decision on this issue and has been followed, either expressly or impliedly, by Gdovin v. Catawba Rental Co.,596 F.Supp. 1325, 1327(N.D.Ohio1984);Cincinnati Milacron Industries, Inc. v. Aqua Dyne, Inc.,592 F.Supp. 1113, 1118(S.D.Ohio1984);Priess v. Fisherfolk,535 F.Supp. 1271, 1279(S.D.Ohio1982);Artisan Development, Division of Kaiser Aetna v. Mountain States Development Corp.,402 F.Supp. 1312, 1314(S.D.Ohio1975); and the instant Court in Gold Circle Stores v. Body Maven, Inc., No. C2-87-1433 at 8(Mar. 2, 1988)1988 WL 156251andFirst Bank of Marietta v. Bright Banc Savings Association, No. C2-86-759 at 8(Jan. 26, 1988)1988 WL 156252.

In addition to plaintiff's choice of forum, courts are to consider both the private interest of the litigants and the public's interest in the administration of justice.Gulf Oil Corp. v. Gilbert,330 U.S. 501, 508-09, 67 S.Ct. 839, 843-43, 91 L.Ed. 1055(1947)(discussing doctrine of forum non conveniens).The litigants' interests include:

the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive.

Gulf Oil,330 U.S. at 508, 67 S.Ct. at 843.Public interests include docket congestion; the burden of trial to a jurisdiction with no relation to the cause of action; value of holding trial in a community where the public affected live; and the familiarity of the court with the controlling law.Id.

The Mutual Benefit defendants do not contend that any of these factors militate in favor of transfer.In fact, they concede that a transfer would be less convenient for them.Memorandum in Support of Motion for Transfer of Venueat 8;Reply Memorandum in Support of Motion for Transfer of Venueat 4-5.The Court also finds that the instant forum is as or more convenient for all other parties involved.Although the Mutual Benefit defendants need not demonstrate that a transfer would work to their convenience, their failure to make this demonstration does not militate in favor of transfer and places the weight of justifying a transfer on any other factors which the Mutual Benefit defendants can bring to bear.

Even if the greater convenience of the transferee court cannot be established, a change of venue may be justified "where `the interest of justice' is paramount."Donald v. Seamans,427 F.Supp. 32, 33(E.D.Tenn.1976).The interest of justice includes many factors and, in fact, may encompass to some degree the convenience of the forum.Lank v. Federal Insurance Co.,309 F.Supp. 349, 353(D.Del.1970).The possibility of prejudice in the transferor court is certainly another factor included within the interest of justice.Cincinnati Milacron Industries, Inc.,592 F.Supp. at 1118;Priess,535 F.Supp. at 1279.In particular, adverse pretrial publicity is relevant to the decision whether to transfer venue.City of Cleveland v. Cleveland Electric Illuminating Co.,538 F.Supp. 1240, 1254-55(N.D.Ohio1980);City of New York v. General Motors Corp.,357 F.Supp. 327, 328(S.D.N.Y.1973).In this regard, however, a court may properly defer ruling on the motion for change of venue until the effect of any adverse publicity can be determined at voir dire of the potential jurors.Cleveland Electric Illuminating Co.,538 F.Supp. at 1254.

The burden of proof is on the moving party to demonstrate why a change of venue should be granted.SeeNicol v. Koscinski,188 F.2d 537(6th Cir.1951);Los Angeles Memorial Coliseum Commission v. National Football League,89 F.R.D. 497, 499(C.D.Cal.1981).Furthermore, the decision whether to grant the change of venue is vested in the sound discretion of the district court.Artisan Development, Division of Kaiser Aetna,402 F.Supp. at 1314.Intradivisional transfers pursuant to 28 U.S.C. § 1404(b) are discretionary transfers subject to the same analysis as under § 1404(a) but apparently judged by a less rigorous standard.Johnson v. Burlington-Northern, Inc.,480 F.Supp. 259, 260(W.D.Mo.1979).

The only factor in support of transfer which the Mutual Benefit defendants implicate is adverse pretrial publicity.They contend that the instant action and other actions relating to the subject matter of this action have been publicized in a manner which implies their liability.The Mutual Benefit defendants have submitted thirteen newspaper articles in support of their contention.One of these was published in the Columbus Dispatch on March 3, 1988 at page 1C.This article reported that...