Hawksbill Sea Turtle v. FEDERAL EMERGENCY MGMT., Civil Action No. 96-650.

• Decision Date: 10 May 1996
• Docket Number: Civil Action No. 96-650.
• Citation: 939 F. Supp. 1
• Parties: The HAWKSBILL SEA TURTLE (ERETMOCHELYS IMBRICATA), et al., Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, an agency of the United States of America, et al., Defendants.
• Court: U.S. District Court — District of Columbia

939 F. Supp. 1

The HAWKSBILL SEA TURTLE (ERETMOCHELYS IMBRICATA), et al., Plaintiffs, v. FEDERAL EMERGENCY MANAGEMENT AGENCY, an agency of the United States of America, et al., Defendants.

Civil Action No. 96-650.

United States District Court, District of Columbia.

May 10, 1996.

Jeffrey Weiss, A.J. Weiss & Associates, St. Thomas, USVI, James Dougherty, Washington, DC, for Plaintiffs.

Mark Brown, Teri Thomsen, Environmental & Natural Resources Division, U.S. Department of Justice, Jordan Fried, David Trissell, Brenda Goranflo, Federal Emergency Management Agency, Office of General Counsel, Washington, DC, Michael McLemore, Department of Commerce, NOAA, Office of General Counsel, St. Petersburg, FL, Sean Skags, Department of the Interior, Office of the Regional Solicitor, Atlanta, GA, Julio Brady, Attorney General, K. Glenda Cameron, Counsel to the Attorney General, Virgin Islands Department of Justice, Christiansted, St. Croix, for Defendants.

MEMORANDUM OPINION

KESSLER, District Judge.

This matter is before the Court on Defendants' Motion to Transfer Venue pursuant to 28 U.S.C. § 1404(a).¹ The statute provides:

For the convenience of the 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.

The threshold consideration in a Section 1404(a) motion is that there must be an "other district ... where it the action might have been brought." Id.; See Northwest Forest Resource Council et al. v. Babbit, no. 93-cv-1579. slip. op. at 3, 1994 WL 908586 (D.D.C. April 13, 1994). Defendants argue that this action "might have been brought" in the District Court of the Virgin Islands because Plaintiffs' previous lawsuit in an admittedly similar action was filed in that Court.²

Plaintiffs argue that this action may not be transferred to the District Court of the Virgin Islands because it is not a judicial "district" to which Congress intended Section 1404(a) to apply.³ In support, Plaintiffs cite Section 1404(d) of the statute, which provides that:

As used in this section, "district court" includes the United States District Court for the District of the Panama Canal Zone; and "district" includes the territorial jurisdiction of that court.

28 U.S.C. 1404(d).

The specific inclusion of the District Court for the District of the Canal Zone, Plaintiffs argue, supports the inference that Congress intended to exclude the District Court of the Virgin Islands. Under the canon of statutory construction expressio unius est exlusio alterius, Plaintiffs argue that Congress' failure to include the District Court of the Virgin Islands in Section 1404(d) reflects a Congressional intent to prevent such transfers under 1404(a).

Defendants counter by citing to a number of cases where courts have concluded that Section 1404(a) does apply to the Virgin Islands District Court, notwithstanding the fact that the statute does not specifically include it. See Dickson v. Hertz Corp., 559 F.Supp. 1169, 1177 n. 8 (D.V.I.1983); Exporters Refinance Corp. v. Marden, 356 F.Supp. 859, 860-61 (S.D.Fla.1973); CAT Aircraft Leasing, Inc. v. Cessna Aircraft Co. et al., 650 F.Supp. 57, 60 n. 3 (D.V.I.1986); Ferguson v. Kwik-Chek, 308 F.Supp. 78, 80 (D.V.I.1970); Abdulghani v. Virgin Islands Seaplane Shuttle, Inc., 749 F.Supp. 113, 114 (D.V.I. 1990). But see Hendricks v. Alcoa Steamship Co., 206 F.Supp. 693, 696 (E.D.Pa.1962).

Recent authority strongly favors including the Virgin Islands District Court within Section 1404(a)'s ambit. Wright and Miller explain that "despite an early decision to the contrary Hendricks ... it now appears that the District Court of the Virgin Islands is to be regarded as a district for purposes of § 1404(a) so that cases may be transferred to it and by it." 15 Charles A. Wright, Arthur R. Miller & E. Cooper, Federal Practice and Procedure § 3845 n. 1 (2d ed.1986).⁴

This development in the case law is consistent with Congressional intent to integrate the District Court of the Virgin Islands into the federal judicial system "as nearly and as completely as possible." Exporters Refinance Corp., 356 F.Supp. at 861; see also CAT Aircraft Leasing, 650 F.Supp. at 60, n. 3 (discussing Revised Organic Act in relation to Section 1404(a)). In order to accomplish that purpose, Congress, in the 1984 amendments to the Organic Act of the Virgin Islands, provided that the "District Court of the Virgin Islands shall have the jurisdiction of a District Court of the United States, including, but not limited to, the diversity jurisdiction provided for in section 1332 of Title 28." 48 U.S.C. § 1612(a). This broad grant of diversity jurisdiction suggests that Congress expected the Virgin Islands District Court to have powers as broad as other district courts within the federal system. There is no sound reason why a court that may consider an action based on diversity may not also consider a motion to transfer pursuant to Section 1404(a). See Ferguson, 308 F.Supp. at 80. Finally, interpreting Section 1404(a) to include the District Court of the Virgin Islands is consistent with the principle that the doctrine of forum non conveniens, codified in Section 1404(a), should be liberally construed. See Exporters Refinance Corp., 356 F.Supp. at 860.

For these reasons, the Court concludes that the District Court of the Virgin Islands is a "district" under Section 1404(a) so that cases may be transferred to it and by it. Thus, because this action "might have been brought" in the District Court of the Virgin Islands, the issue now before the Court is whether this case should be transferred there.

Section 1404(a) places "discretion in the district court to adjudicate motions for transfer according to an `individualized, case-by-case consideration of convenience and fairness.'" Stewart Organization, Inc., v. Ricoh Corp., 487 U.S. 22, 29, 108 S.Ct. 2239, 2243, 101 L.Ed.2d 22 (1988) (quoting Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S.Ct. 805, 812, 11 L.Ed.2d 945 (1964)). A motion to transfer pursuant to Section 1404, therefore, requires a district court to "balance a number of case-specific factors." Id. The relevant factors include: the preference given to plaintiff's choice of forum; convenience of the parties, counsel and witnesses; the location of the record; and the interest of justice. 15 Charles A. Wright, Arthur R. Miller & E. Cooper, supra, §§ 3848-54.

While a Plaintiff's choice of forum is certainly entitled to some deference, that is less true where, as here, "there is an insubstantial factual nexus with the plaintiff's choice." Comptroller of Currency v. Calhoun Nat'l Bank, 626 F.Supp. 137, 140 n. 9 (D.D.C.1985); See also SEC v. Savoy Industries, Inc., 587 F.2d 1149, 1154 (D.C.Cir. 1978), cert. denied 440 U.S. 913, 99 S.Ct. 1227, 59 L.Ed.2d 462 (1979); SEC v. Page Airways, 464 F.Supp. 461, 464 n. 7 (D.D.C. 1978). But see Air Line Pilots Ass'n v. Eastern Air Lines, 672 F.Supp. 525, 527 (D.D.C.1987). The housing project, and the habitat of the sea turtle and tree boa are in the Virgin Islands, and the alleged violation of the environmental laws took place there. That is precisely the reason the Plaintiffs launched their first suit in the Virgin Islands District Court. Thus, although Plaintiffs' choice of forum merits serious consideration, that factor alone is not determinative when, as here, the case has virtually no connection to the District of Columbia and other factors militate in favor of transfer. See Frans G. Claasen, M.D. v. Jesse Brown, No. 94-1018, 1996 WL 79490 at * 6 (D.D.C. Feb. 16, 1996), citing Packer v. Kaiser Foundation Health Plan, 728 F.Supp. 8 (D.D.C.1989).

The convenience of the parties and witnesses strongly favors transfer to the District of the Virgin Islands. Every one of the Plaintiffs, and Plaintiffs' lead counsel in this matter, lives on St. Thomas, Virgin Islands, and, as they allege in their Complaint, they are "property owners, residents of St. Thomas ... and a condominium association made up of unit owners." Plt. Complaint at 6. All of Plaintiffs' witnesses in the earlier trial were located, if not in St. Thomas, at least much closer to the Virgin Islands than to the District of Columbia. And that will presumably be the situation in this case. While it may be true that the expert witnesses come from different parts of the country (e.g. the Virgin Islands, Florida, Virginia, Puerto Rico and California), the two districts seem equally convenient given the far-flung locations of the experts.⁵

As to the location of the record, this factor clearly favors transfer. The prior action in the District Court for the Virgin Islands created three volumes of trial transcript, and a large volume of documents, including exhibits. Moreover, the court heard three days of evidentiary testimony and oral argument on the TRO, and had an extensive evidentiary hearing regarding the preliminary injunction. Certainly no other court is more familiar with the factual background and legal issues of this case than the District Court for the Virgin Islands, and there is little doubt that transfer of this case will promote significant economy of judicial resources.

The final factor to consider is the "interest of justice," a somewhat amorphous term consisting of numerous considerations such as the desire to avoid multiple litigation from a single transaction, to try related litigation together, to conserve judicial resources, and to consider the regional nature of a dispute. See 15 Charles A. Wright, Arthur R. Miller & E. Cooper, supra, § 3854. Amorphous though it may be, the interest of justice "may be decisive in ruling on a transfer motion even though the convenience of the parties and witnesses point in a different direction." Id.

Plaintiffs make the very serious argument that the interest of justice is served by maintaining this action in the District of Columbia because they cannot receive a fair trial in the Virgin...