US Sprint Communications Co. v. Boran

• Decision Date: 19 February 1988
• Docket Number: Civ. A. No. 87-2572.
• Citation: 716 F. Supp. 505
• Parties: US SPRINT COMMUNICATIONS COMPANY, a partnership; and US Telecom, Inc., a Kansas corporation, as a partner in US Sprint Communications Company; and GTE Communications Services Incorporated, a Delaware corporation, as a partner in US Sprint Communications Company, Plaintiffs, v. John BORAN, Defendant.
• Court: U.S. District Court — District of Kansas

716 F. Supp. 505

US SPRINT COMMUNICATIONS COMPANY, a partnership; and US Telecom, Inc., a Kansas corporation, as a partner in US Sprint Communications Company; and GTE Communications Services Incorporated, a Delaware corporation, as a partner in US Sprint Communications Company, Plaintiffs, v. John BORAN, Defendant.

Civ. A. No. 87-2572.

United States District Court, D. Kansas.

February 8, 1988.

Opinion on Motion to Amend Judgment February 19, 1988.

J. Nick Badgerow and Josephine A. Mayer, Spencer, Fane, Britt & Browne, Overland Park, Kan., Donald W. Giffin, A.K. Wnorowski and B.A. Bianchino, US Sprint Communications Co., Kansas City, Mo., for plaintiffs.

Howard E. Bodney, Overland Park, Kan., for defendant.

MEMORANDUM AND ORDER

EARL E. O'CONNOR, Chief Judge.

This matter is before the court on the motion of defendant John Boran (hereinafter "Boran") to dismiss for lack of personal jurisdiction or improper venue, or, in the alternative, to transfer because of an inconvenient forum. Plaintiffs US Sprint Communications Company (hereinafter "Sprint"), a general partnership, US Telecom, Inc. (hereinafter "US Telecom"), a partner in Sprint, and GTE Communications Services, Inc. (hereinafter "GTE Communications"), another partner in Sprint, initiated an action against Boran in connection with his alleged improper use of Sprint's long-distance telephone calling services.

The pertinent facts are as follows: Boran is an Arizona resident. Sprint is a New York general partnership with its principal place of business in Missouri (when this cause of action arose, Sprint's principal business location was Kansas). US Telecom is a Kansas corporation with its principal place of business in Kansas. GTE Communications is a Delaware corporation with its principal place of business in Connecticut.

Boran allegedly agreed to purchase illegally obtained Sprint authorization codes in a telephone conversation with Andrew Maisel (hereinafter "Maisel"), a Kansas resident. Under the agreement, Boran sent payment from Arizona to Kansas, and Maisel sent the codes from Kansas to Arizona. Boran then used the codes to make long-distance telephone calls from his Arizona residence without paying Sprint.

Sprint, US Telecom, and GTE Communications brought an action against Boran in connection with the alleged scheme, seeking damages and injunctive relief under claims of fraud and illegal use of communications devices, quantum meruit, and conversion. Boran moves the court to dismiss for lack of personal jurisdiction or improper venue, or to transfer the action because the forum is inconvenient. For the reasons set forth below, we deny his motion.

I. Venue.

Initially, we consider the issue of whether venue properly lies in this court. 28 U.S.C. § 1391(b) provides as follows:

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.

28 U.S.C. § 1391(b). This section is relevant because the plaintiffs' claims are founded in part on federal statutory violations.

A claim arises in any district where a substantial number of the acts giving rise to the claim occurred. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir.1986); Sharp Electronics Corp. v. Hayman Cash Register Co., 655 F.2d 1228, 1229 (D.C.Cir. 1981). Here, the claim arose in the District of Kansas. Boran's cohort in the scheme, Maisel, operated from his Kansas residence. Boran sent cash to Maisel in Kansas, and Maisel sent the codes from Kansas. Further, the plaintiffs assert that the principal place of their injury is Kansas. See Quinn v. Bowmar Publishing Co., 445 F.Supp. 780, 783 (D.Md.1978) ("a claim generally arises where the injury occurs"). This assertion is plausible given the facts that when the cause of action arose, Sprint's principal place of business was Kansas, and currently, US Telecom's principal place of business is Kansas. In sum, venue in this district is proper because the injury and substantial acts occurred here.

II. Transfer of Venue.

Boran moves the court to dismiss the plaintiffs' action under the doctrine of forum non conveniens. We assume that he intended that we treat his motion as one for transfer under 28 U.S.C. § 1404(a). See Chicago, Rock Island and Pacific Railroad v. Hugh Breeding, Inc., 232 F.2d 584, 587 (10th Cir.1956) (Congress intended that section 1404(a) encompass the doctrine of forum non conveniens and allow a court to transfer or dismiss an action because of venue). This section allows a district court in which venue properly lies to transfer an action, in the interests of justice, to another district where it could have been brought. Combs v. Adkins & Adkins Coal Co., 597 F.Supp. 122, 125 n. 1 (D.D.C.1984). As discussed above, venue properly lies in this court.

To transfer an action under section 1404(a), a district court must have subject matter jurisdiction. Association de Pescadores de Vieques, Inc. v. United States, 497 F.Supp. 54, 55 (D.P.R.1979) (citing 15 Wright and Miller, Federal Practice and Procedure § 3844); Viaggio v. Field, 177 F.Supp. 643, 647 (C.D.Md.1959) (citing cases). Subject matter jurisdiction is not contested in this action. However, the court need not have personal jurisdiction to transfer under section 1404(a). See United States v. Berkowitz, 328 F.2d 358, 361 (3d Cir.), cert. denied, 379 U.S. 821, 85 S.Ct. 42, 13 L.Ed.2d 32 (1964); Koehring Co. v. Hyde Construction Co., 324 F.2d 295, 297-98 (5th Cir.1963). Thus, if transfer is proper, we need not address whether the court has personal jurisdiction over Boran.

Boran asserts that transfer is proper because (1) he lives in Arizona and is elderly and in poor health, (2) the alleged telephone calls occurred in Arizona, and thus Boran's evidence and witnesses are in Arizona, and (3) the plaintiffs are wealthy corporations with adequate resources to try the action in Arizona.

Under section 1404(a), Boran bears the considerable burden of establishing that transfer is proper. See Dow Chemical Co. v. Weevil-Cide Co., 630 F.Supp. 125, 130 (D.Kan.1986). The Dow decision states:

It is hornbook law that the burden is on the moving party to establish that a suit should be transferred under Section 1404(a). Unless the balance of the consideration is strongly in favor of the moving party, the plaintiff's choice of forum should not be disturbed. A plaintiff's choice of forum is entitled to great weight and may not lightly be set aside. Additional consideration is properly given when the plaintiff has chosen the forum in which he resides. This court further notes that the exercise of the power to transfer under Section 1404(a) is committed to the sound discretion of the trial court after consideration of all the relevant interests.

Id. (quoting Ammon v. Kaplow, 468 F.Supp. 1304, 1313 (D.Kan.1979) (citations omitted)).

The factors which may be considered when determining whether transfer is proper include convenience to the parties, convenience to the witnesses and interests of justice. 28 U.S.C. § 1404(a).

Boran has failed to meet his burden of proving that the convenience of the parties and witnesses will be furthered by transferring this action to the District of Arizona. Although he resides in Arizona, US Telecom's principal place of business is Kansas. Additionally, Sprint's principal place of business is Kansas City, Missouri, near this court. Thus the plaintiffs' convenience is furthered by trial in this court. Transfer is not warranted where it results merely in shifting the inconvenience from one party to another. Ammon, 468 F.Supp. at 1314. Further, Boran has not provided the court with sufficient information to indicate that transfer is warranted based on the convenience of key witnesses. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 258-59, 102 S.Ct. 252, 267, 70 L.Ed.2d 419 (1981) (the party seeking transfer must provide the court with sufficient information to allow it to balance the parties' interest, although here, specificity of individual witnesses is not needed); Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215 (2d Cir.1978) (the party seeking transfer must clearly specify key witnesses who will benefit; otherwise, transfer is unwarranted), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979); Paul Allison, Inc. v. Minikin Storage of Omaha, Inc., 436 F.Supp. 444, 446 (W.D.Okla.1976) (transfer based on the convenience of witnesses is only warranted if the inconvenience of the defendant's witnesses far outweighs that which the plaintiff's witnesses would experience upon transfer). Finally, transfer is unwarranted based upon the unsubstantiated statements in Boran's memorandum asserting that Boran is elderly and in poor health.

III. Personal Jurisdiction.

Because transfer is not warranted, we must determine whether this court has personal jurisdiction over Boran. The personal jurisdiction requirement "recognizes and protects an individual liberty interest. It represents a restriction on judicial power not as a matter of sovereignty, but as a matter of individual liberty." Insurance Corporation of Ireland v. Compagnie Des Bauxites De Guinne, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982) (footnote omitted).

The plaintiffs bear the burden of proof regarding personal jurisdiction. Hoffman v. United Telecommunications, Inc., 575 F.Supp. 1463, 1469 (D.Kan.1983). However, they need only make a prima facie case that the constitutional and statutory requirements for the assumption of personal jurisdiction are met. Id. (citing cases). In considering personal jurisdiction questions in diversity actions, a two-step analysis is applied:

First, it must be determined whether the defendant's contacts with the forum are sufficient to satisfy the minimum contact tests of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1

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