Case No. 4:06CV30.
March 9, 2006
This matter is before the Court upon the "Joint Motion of All Defendants for Change of Venue and Transfer of the Case to the Southern District of Ohio, Eastern Division at Columbus Ohio". (Dkt. #6). Also before the Court are Plaintiff's Memorandum in Opposition (Dkt. #7) and Defendants' Reply Memorandum (Dkt. #9).
For the reasons discussed below, this Court DENIES Defendants' motion.
On October 27, 2005, Plaintiff filed a Complaint in the Mahoning County Court of Common Pleas against Defendants Sherman Acquisition, II, LP; Kemp, Schaeffer, Rowe Lardiere, Co., L.P.A.; and Nita Jones ("Defendants"). The Complaint alleges, inter alia, violations of the Fair Debt Collections Act, 15 U.S.C. § 1692 et seq., and the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (Compl. ¶¶ 26-27, 34-35). On January 5, 2006, Defendants jointly removed the action to this Court pursuant to 28 U.S.C. § 1441(a) and (b) on the basis of this Court's federal question jurisdiction under 28 U.S.C. § 1331. (Dkt. #1). The instant matter ensued.
Title 28 of the United States Code, Section 1331, provides that "[t]he district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331 (2003). As Plaintiff's complaint asserts claims arising under the title 15 U.S.C. § 1692, et seq., and 15 U.S.C. § 1681, et seq., this Court has original jurisdiction over Plaintiff's action.
Defendants contend that proper venue in this action lies in the United States District Court for the Southern District of Ohio. Defendants base this assertion on the fact that two of the three Defendants are located in Columbus, Franklin County, Ohio. (Dkt. # 6). The Southern District encompasses Franklin County.
II. STANDARD OF REVIEW AND ANALYSIS
The proper venue for actions removed from state court to federal is governed by title 28 U.S.C. § 1441(a) and not the general venue provisions of 28 U.S.C. § 1391. See Polizzi v. Cowles Magazines, 345 U.S. 663, 665-66 (1953); see also Jeffrey Mining Products v. Left Fork Mining Co., 992 F. Supp. 937, 938 (N.D. Ohio 1997). Section 1441(a) provides:
Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending . . .28 U.S.C. § 1441(a) (emphasis added). Furthermore, "a defendant's voluntary application for removal confers venue over him." See Seaboard Rice Milling Co. v. Chicago, R.I. P. Ry. Co., 270 U.S. 363 (1926).
Defendants cite Rule 3(B) of the Ohio Rules of Civil Procedure in arguing that the proper venue for Plaintiff's complaint was initially Franklin County, Ohio. (Dkt. #6). As referenced above, the proper statutory authority on venue for removed actions is found in § 1441(a) and not the underlying state rules. Defendants also refer to Hollis v. Florida State University, 259 F.3d 1295 (11th Cir. 2001), in support of their contention that "[t]he fact that the case was removed to this District and Division is irrelevant to the transfer issue since removal to this District was specifically required." (Dkt. #9). However, removal pursuant to § 1441(a) effectively limits Defendants' statutory method of transferring venue. "A defendant who removes an action from state to federal court cannot then turn around and request a venue transfer pursuant to § 1406(a), the applicable statute where venue in the transferring court is improper, because that party implicitly sanctioned venue in the federal district where he sought to move the state lawsuit."Jeffrey Mining, 992 F. Supp. at 938, (citation omitted).
Rule 3(B) of the Ohio Rules of Civil Procedure provides: Proper venue lies in any one or more of the following counties: (1) The county in which the defendant resides . . . (2) The county in which the defendant has his or her principal place of business . . . (12) If there is no available forum in divisions (B)(1) to (B)(10) of this rule, in the county in which plaintiff resides, has his or her principal place of business, or regularly and systematically conducts business activity.
Furthermore, a careful analysis of the court's decision inHollis reveals that the holding in that case actually undermines Defendants' argument. There, the court found that "[u]pon removal the question of venue is governed by federal law, not state law, and under § 1441(a) a properly removed action necessarily fixes venue in the district where the state court action was pending." Hollis, 259 F.3d at 1296. Furthermore, even assuming, arguendo, that venue was not proper in the Mahoning County Court of Common Pleas, "[f]or our purposes it is sufficient to recognize that, as a matter of law, § 1441(a) establishes federal venue in the district where the state action was pending, and it is immaterial that venue was improper under state law when the action was originally filed." Hollis, 259 F.3d at 1300. See also Bacik v. Peek, 888 F.Supp. 1405, 1413 (N.D.Ohio 1993).
Defendants removed this action from the Mahoning County Court of Common Pleas to "the district court of the United States for the district and division embracing the place where such action is pending;" the United States District Court for the Northern District of Ohio. 28 U.S.C. § 1441(a). Accordingly, venue is proper in this Court pursuant to § 1441(a).
Even when venue is proper, however, a district court may, in the interests of justice, transfer any civil action to any other district where the action might have been brought. Title 28 of United States Code Section 1404(a) states:
(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.
A decision to transfer under section 1404(a) lies within the discretion of the district court. See Norwood v. Kirkpatrick, 349 U.S. 29, 31-33 (1955) (holding that the district court's discretion under § 1404(a) is broad). Because Defendants are requesting the transfer, they "bear the burden of proof to show the factors weigh `strongly' in favor of transfer." See Picker Int'l, Inc. v. Travelers Indemnity Co., 35 F. Supp. 2d 570, 573 (N.D. Ohio 1998) (citing Bacik, 888 F.Supp. at 1414; see also Jeffrey Mining, 992 F. Supp. at 938 (For a proper transfer in the Sixth Circuit, the balance of all relevant factors must weigh `strongly in favor of transfer').
In considering a motion to change venue under § 1404(a), "a district court should consider the private interests of the parties, including their convenience and the convenience of potential witnesses, as well as other public-interest concerns, such as systemic integrity and fairness, which come under the rubric of `interests of justice'." Moses v. Bus. Card Express, Inc., 929 F.2d 1131, 1137 (6th Cir. 1991). In examining such interests, the Court generally affords substantial weight to the plaintiff's choice of forum, particularly when the plaintiff chooses his home forum. United States v. Cinemark USA, Inc., 66 F.Supp. 2d 881, 888.
Defendants contend that "unless the case is transferred, the Plaintiff would `benefit from having brought the action in an impermissible forum'". (Dkt. #9). The Court finds that Plaintiff's choice to litigate in the county of his residence should be given substantial weight. See Picker Int'l, Inc., 35 F. Supp. 2d at 573.
Moreover, a review of the record reveals that litigating this matter in the Southern District of Ohio affords little convenience to the parties and the witnesses. For example, the inconvenience to South Carolina based Defendant Sherman Acquisition, II, L.P. is essentially the same. As to Defendants Kemp Schaeffer, Rowe Lardiere, Co., L.P.A. and Nita Jones, Defendants cite the three hour travel time from Columbus to the federal courthouse in this district as being "unduly inconvenient." However, transfer to the Southern District would require Plaintiff to incur a similar inconvenience. A § 1404(a) venue transfer is not meant to "merely shift the inconvenience to the plaintiff." Id. (citing Van Dusen v. Barrack, 376 U.S. 612, 645-46 (1964). Further, Plaintiff indicates that he has "fact witnesses and damage witnesses located in the Mahoning County that would be extremely inconvenienced in having to travel to the Southern District." (Dkt. #7). The Defendants in this matter argue "not for the convenience of `the parties', but for the convenience of the defendant[s]." Bacik v. Peek, 888 F.Supp. 1405, 1415 (6th Cir. 1993). Consequently, convenience of the parties and witnesses weighs against transfer to the Southern District.
The Court's inquiry under Section 1404(a) extends beyond the interests and convenience of the parties and witnesses. Section 1404 (a) explicitly requires the Court to consider other public interest concerns, such as systemic integrity and fairness, which come under the rubric of "interests of justice." Moses, 929 F.2d at 1137.
A transfer of this action to the Southern District of Ohio would not serve the interests of justice. Plaintiff's action is based upon the debt collection attempts of Defendants. Plaintiff received these communications at his Mahoning County residence by way of telephone and mail. (Dkt. #1, #7). Furthermore, the debt in question was the result of a judgment entered in the Youngstown Municipal Court. (Dkt. #7). Any loss as a result of Defendants' actions would have been felt by Plaintiff in the Northern District of Ohio. Lachman v. Bank of Louisiana in New Orleans, 510 F. Supp. 753, 761 (N.D. Ohio 1981). The public interest in litigating this claim in the Northern District of Ohio greatly outweighs the public interest in litigating Plaintiff's claims in the Southern District of Ohio.
Therefore, transfer to the United States District Court for the Southern District of Ohio is not warranted under section 1404(a) in the instant case.
Accordingly, the Joint Motion of All Defendants for Change of Venue and Transfer of the Case to the Southern District of Ohio, Eastern Division at Columbus, Ohio (Dkt. #6) is DENIED.