Leidholdt v. LFP, INC., C86-0112-B.
| Decision Date | 18 November 1986 |
| Docket Number | No. C86-0112-B.,C86-0112-B. |
| Citation | 647 F. Supp. 1283 |
| Parties | Dorchen LEIDHOLDT, a citizen of New York, Plaintiff, v. L.F.P., INC., a California corporation, also sometimes designated as LFP, Inc.; L.F.P., Inc., d/b/a Larry Flynt Publications; Hustler Magazine, Inc., a California corporation; Larry Flynt, a citizen of California; Althea Flynt, a citizen of California; Flynt Subscription Company, Inc., a Nevada corporation, Island Distributing Company, Ltd., a B.W.I. Company; Larry Flynt Distributing Company, Inc., a California corporation, N. Morgen Hagen, David Kahn, and Jim Goode, Defendants. |
| Court | U.S. District Court — District of Wyoming |
Elizabeth Greenwood, Spence, Moriarity & Schuster, Jackson, Wyo., for plaintiff.
George E. Powers, Godfrey & Sundahl, Cheyenne, Wyo., David O. Carson, Kirk Sullivan, Cooper, Epstein & Hurewitz, Beverly Hills, Cal., for defendants.
ORDER GRANTING DEFENDANTS' MOTION TO TRANSFER DUE TO IMPROPER VENUE
This matter came before the Court on the defendants' motion to dismiss or transfer this action due to improper venue. The Court, having reviewed the pleadings and the arguments of counsel, and being fully advised in the premises, FINDS and ORDERS as follows:
The plaintiff brought this action for damages against the defendants, based on their alleged involvement with the creation and dissemination of a particular article in Hustler magazine. The plaintiff asserts claims for intentional infliction of emotional injury, libel, invasion of privacy, outrage, invasion of constitutional rights, violation of 18 U.S.C. § 1964(a) (RICO), conspiracy to violate her civil rights pursuant to 42 U.S.C. § 1985(3), and violations of Wyoming state statutes. The facts of this case, as set out in the plaintiff's complaint and the affidavits and exhibits submitted by both sides, are as follows:
During or near June of 1985, the defendants Hustler, Flynt and L.F.P., Inc., published and caused to be distributed throughout the United States and elsewhere, including Wyoming, the June, 1985 issue of Hustler magazine. The issue contained an article about the plaintiff, Dorchen Leidholdt. Ms. Leidholdt, a citizen of New York, retained a Wyoming law firm and filed this suit in this Court, alleging injuries as a result of the defendants' actions.
The defendants have filed numerous and varied motions objecting to jurisdiction and to venue. The Court finds that the objection to venue is common to all the defendants. Since the resolution of the venue issue is dispositive of this Court's authority to hear this case, the Court need not reach the objections to jurisdiction.
In their motion for dismissal or transfer due to improper venue, the defendants argue that venue is a condition independent from jurisdiction which must satisfy a different set of criteria. They note that proper venue is a statutory requirement not subject to judicial discretion, and that this case is governed by 28 U.S.C. § 1391(b). Under § 1391(b), "a civil action wherein jurisdiction is not founded solely on diversity of citizenship may be brought only in the judicial district where all defendants reside, or in which the claim arose, except as otherwise provided by law." They argue that Wyoming cannot be a proper venue because none of the defendants reside here and because the claim did not arise here.
In regard to the issue of "where the claims arose," the defendants contend that the proper test for determining this was set forth by the federal district court in Massachusetts in Johnson Creative Arts, Inc. v. Wool Masters, Inc., 573 F.Supp. 1106 (D.Mass.1983), aff'd, 743 F.2d 947 (1st Cir. 1984). They assert that under Johnson the test for venue under the "claim arising" provision of § 1391(b) is Johnson Creative Arts, Inc. v. Wool Masters, Inc., supra, 573 F.Supp. at 1112.
Applying this test, the defendants argue that venue is improper in Wyoming. They argue that a "substantial portion" of the plaintiff's claim arose either in New York, where the plaintiff lives and would suffer the harm, or in California, where the defendants resided at the time of the article's creation, publication and distribution. Although, the defendants concede, the plaintiff may have suffered some harm in all states in which the magazine was sold, more of the events relating to the claim occurred in either New York or California. Furthermore, witnesses are in New York and California, not Wyoming, evidence is in California and/or New York, and the convenience of defendants is definitely not in Wyoming.
The defendants additionally argue citing to Leroy v. Great Western United Corp., 443 U.S. 173, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1979), that proper venue lies in only one district, and very rarely in more than one. This principle is in conflict with finding venue in every district in which the magazine was sold. Therefore, taking this principle together with the above-stated test, venue does not properly lie in Wyoming.
The plaintiff cursorily responded, contending only that the defendants overlooked the principles of Keeton v. Hustler, 465 U.S. 770, 104 S.Ct. 1473, 79 L.Ed.2d 790 (1984), and Calder v. Jones, 465 U.S. 783, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), and concluding that venue is proper in Wyoming.
Based on the reasons articulated below, the Court finds that the plaintiff misunderstands the purpose and principles of venue and that venue is not proper in the district of Wyoming.
The defendants correctly contend that § 1391(b) governs this case, since federal jurisdiction is based on federal question, as well as diversity jurisdiction. They are also correct in stating that venue may be proper in Wyoming only if that is "where the claim arose" since none of the defendants reside in Wyoming. Therefore, the issue is, for purposes of venue, where did the claim arise?
First, the Court notes that the answer to this question can only be found in rules regulating venue. Rules regulating other procedural matters, especially jurisdiction, do not have authority over venue. It is well settled that venue is a separate requirement from jurisdiction and one which the plaintiff must establish independently from jurisdiction. Lindahl v. Office of Personnel Management, 470 U.S. 768, 105 S.Ct. 1620, 84 L.Ed.2d 674 (1985); Neirbo Co. v. Bethlehem Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167 (1939); Johnson Creative Arts, Inc., v. Wool Masters, Inc., supra, 743 F.2d 947; Noxell Corp. v. Firehouse No. 1 Bar-B-Que Rest., 760 F.2d 312 (D.C.Cir.1985); 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3801 (2nd ed. 1986). As the First Circuit has stated, "the two concepts are independent of each other and must be interpreted with their respective underlying objectives and rationales in mind." Johnson Creative Arts, Inc., v. Wool Masters, Inc., supra, 743 F.2d at 952.
The Supreme Court articulated the distinction between jurisdiction and venue in 1939 when it ruled that jurisdiction was essentially the power of the court to adjudicate an action, whereas venue was the place where that authority could be exercised, as determined by the convenience of the litigants. Neirbo Co. v. Bethlehem Corp., supra, 308 U.S. at 167-68, 60 S.Ct. at 154-55. Chief Justice Rugg of the Supreme Judicial Court of Massachusetts further elucidated this point:
Paige v. Sinclair, 237 Mass. 482, 130 N.E. 177, 178-79 (1921), (citations omitted).
In the struggle between the plaintiff who strives to bring a suit, and the defendant who strives to resist the suit, jurisdiction and venue serve as procedural devices to balance the power between the two sides. As the First Circuit has observed:
Venue is a privilege given to the defendant primarily as a matter of convenience and is not based on an inherent power of a particular court over the parties.... The purpose of statutorily specified venue is to protect the defendant against the risk that a plaintiff will select an unfair or inconvenient place for trial. Longarm statutes, and extraterritorial service through the concept of minimum contacts ... allow a defendant to be haled into a distant court to allow a state to protect its interests, and the interests of plaintiffs, to the extent that doing so is not so unfair as to deny a defendant due process of law.
Johnson Creative Arts, Inc., v. Wool Masters, Inc., supra, 743 F.2d at 951 (citations omitted). (Emphasis in original).
Thus, after the rules for jurisdiction render the defendant vulnerable to suits in a host of different forums, venue steps in to limit the choice of forum. Proper venue is guided by, for the most part, two principles: (1) the purpose of venue is to protect the defendant from being haled into inconvenient forums, and (2) usually venue is proper in only one place, though very rarely it may be proper in more than one. In the leading case on venue, and § 1391(b) in particular, Leroy v. Great Western United Corp., 443 U.S. 173, 99 S.Ct. 2710, 61 L.Ed.2d 464 (1978), the Supreme Court...
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