Bell et al v. Rosen et al
Filing
50
ORDER granting in part and denying in part, and remains pending in part re: 26 Motion to Dismiss, or in the Alternative, Motion to Transfer Venue. It is granted as to Defendants' request to transfer this case to the United States District Co urt for the Middle District of Georgia, Valdosta Division; it is denied to the extent that Defendants urge a dismissal of this case based on improper venue; and it remains pending insofar as Defendants move for dismissal for failure to state a claim. Accordingly, this cause of action is hereby TRANSFERRED to the United States District Court for the Middle District of Georgia, Valdosta Division. The Clerk of Court is DIRECTED to transmit a complete record of this case, including all pending motions, to the clerk's office of the Middle District of Georgia for filing. Signed by Chief Judge Lisa G. Wood on 9/22/2015. (csr)
1n the Wniteb Statto flitritt Court
for the boutbern flitritt Of Otorgia
3runtuitk 1Dthtton
RICHARD E. BELL, JR.; KAREN K. BELL;
and BRANDEN R. BELL,
Plaintiffs,
V.
FREDERIC A. ROSEN; and JOHNSON
PUBLISHING COMPANY, LLC,
Defendants.
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CIVIL ACTION NO.: CV214-127
[sJI
FBI 41
Plaintiffs Richard and Karen Bell, individually and as
guardians of the property of their sons Brian and Branden Bell,
filed this defamation action based on online articles written by
Defendant Frederic A. Rosen ("Rosen") and published by Defendant
Johnson Publishing Company, LLC ("Johnson Publishing"), as well
as online interviews of Defendant Rosen. Presently before the
Court is Defendants' fully briefed Motion to Dismiss, or in the
Alternative, Motion to Transfer Venue. See Dkt. Nos. 26, 32,
34. The Court held a hearing on this Motion on February 24,
2015, see dkt. no. 38, and, at the Court's request, the parties
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have filed supplemental briefs on the issue of venue, see dkt.
nos. 40-41.
For the reasons set forth below, Defendants' Motion to
Dismiss, or in the Alternative, Motion to Transfer Venue (dkt.
no. 26) is GRANTED in part, DENIED in part,
and REMAINS PENDING
in part: it is granted as to Defendants' request to transfer
this case to the United States District Court for the Middle
District of Georgia, Valdosta Division; it is denied to the
extent that Defendants urge a dismissal of this case based on
improper venue; and it remains pending insofar as Defendants
move for dismissal for failure to state a claim. Accordingly,
this cause of action is hereby TRANSFERRED to the United States
District Court for the Middle District of Georgia, Valdosta
Division.
FACTUAL BACKGROUND
When Plaintiffs filed this action on August 27, 2014, they
were residents of Valdosta, Lowndes County, Georgia. Dkt.
No. 1, ¶ 1; Dkt. No. 23, ¶ 1. Plaintiffs' sons, Brian and
Branden Bell, attended Lowndes County High School ("LCHS") in
Valdosta. See Dkt. No. 23, ¶ 13. In January 2013, Brian Bell
was a sophomore and star football player at LCHS, and Branden
Bell was a senior and member of the school's wrestling team.
See id. at 191 10, 13, 23; see also Dkt. No. 32, p. 3. Plaintiff
Richard Bell was employed as an FBI agent, a position that he
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holds to this day. See Dkt. No. 23, ¶ 13; Dkt. No. 32, P. 6
n. 1.
Defendant Johnson Publishing is a Delaware limited
liability company, with its principal place of business in
Delaware. Dkt. No. 23, ¶ 2. Defendant Johnson Publishing sells
Ebony Magazine and other publications nationwide, including in
the Southern District of Georgia, and runs the Web site
www.ebony.com ("Ebony Web site"), which is accessible in the
Southern District of Georgia. Id. at 191 5-7. Defendant Rosen
is a resident of New York and works as a journalist. Id. at 191
3, 5, 7.
Between August 12, 2013, and April 9, 2014, Defendant
Johnson Publishing published a series of fifteen articles on the
Ebony Web site, twelve of which were written by Defendant Rosen.
Id. at ¶ 7. The articles chronicled the events surrounding the
death of LCHS student Kendrick Johnson ("KJ"), who was found
dead inside of a rolled-up gym mat in the school's old gym on
January 10, 2013. Id. at ¶91 7 - 8; see also Dkt. No. 40-1 (copies
of the KJ articles) . Specifically, the articles suggest that KJ
was "murdered" or "killed" and outline various "suspicious
circumstances" that surrounded his death and the subsequent
investigations. Dkt. No. 23, 191 8-9. Employing pseudonyms, two
of the articles refer to a family called the "Martins," which
Plaintiffs contend is an obvious reference to their own family.
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Id. at ¶91 10, 13. Though the KJ articles suggest several
possible courses of events and motives, the overall implication
is that one or both of the "Martin" Sons was suspected of
murdering KJ. See, e.g., Id. at ¶91 10-12, 15. In addition, the
articles generally suggest a mishandling of the subsequent
investigation and a possible conspiracy between public officials
and the "Martins" to cover up the alleged murder of KJ. See,
e.g., id. at 9191 15, 18-20. The articles mention that one of the
"Martin" boys was a white football star, and the "Martin" father
was an FBI agent. Id. at 191 10, 13.
Around the time that the KJ articles were published,
Defendant Rosen made a number of media appearances to discuss
and comment on the content of the articles. Id. at ¶91 26-27.
In one such instance, occurring on January 30, 2014, Defendant
Rosen was interviewed on the Dan Zupanzky Blog Radio show. Id.
at 91 26. During the interview, Defendant Rosen discussed the
"Martin" brothers being a football player and wrestler at LCHS;
insinuated that one or both of the brothers had a motive and
opportunity to kill KJ; and represented that the "Martin"
brothers, as well as their father, an FBI agent, were
interviewed in the investigation of KJ's death. Id. Defendant
Rosen's interview is available on the Internet. See id. at
¶91 40-41.
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On August 27, 2014, Plaintiffs filed suit against
Defendants in this Court on the basis of diversity, claiming
libel and slander in violation of Georgia state law. Dkt.
No. 1; Dkt. No. 23, IT 4, 30-45 (citing O.C.G.A. §§ 51-5-1, -4).
Plaintiffs contend that the details in the KJ articles and the
Dan Zupanzky Blog Radio show interview were sufficient to reveal
their identities to those in the Valdosta area. Dkt. No. 23,
IT 36, 40. Plaintiffs further maintain that there is no basis
in fact for many of Defendants' suggestions regarding their
sons' involvement in KJ's death, the family's participation in
the investigation, and the conduct of the investigation itself.
See id. at IT 30-45. In particular, Plaintiffs allege that at
the time of KJ's death, Branden Bell was on a bus traveling to a
wrestling match in Macon, Georgia, and Brian Bell was either in
class, or walking to class, at LCHS; however, Plaintiffs assert
that Defendants never made any effort to verify the alibis of
the brothers. Id. at IT 22-23. As a result of Defendants'
allegedly untrue statements, Plaintiffs claim that their
personal reputations, as well as Plaintiff Richard Bell's
professional reputation as an FBI agent, have been permanently
damaged. Id. at IT 38, 45.
DISCUSSION
Defendants now move pursuant to Federal Rule of Civil
Procedure 12(b) (3) ("Rule 12(b) (3)") for an order dismissing
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Plaintiffs' Amended Complaint for improper venue. Dkt. No. 26,
pp. 5-6. Alternatively, if the Court determines that venue in
this District is proper, Defendants request that the Court
nevertheless transfer this case to the United States District
Court for the Middle District of Georgia, Valdosta Division,
"[f]or the convenience of the parties and witnesses [and] in the
interest of justice." Id. at pp. 6-8 (alterations in original)
(quoting 28 U.S.C. § 1404(a)). Finally, Defendants submit that
if the Court retains jurisdiction over this case, Plaintiffs
Richard and Karen Bell's claims of defamation per se should be
dismissed with prejudice for failure to state a claim under
Federal Rule of Civil Procedure 12(b) (6). Id. at pp. 8-13.
I. Defendants' Motion to Dismiss for Improper Venue
Under Rule 12 (b) (3), a party may assert improper venue as a
defense to a claim for relief. Fed. R. Civ. P. 12(b) (3) . When
a defendant objects to venue,
"[t]he plaintiff has the burden of
showing that venue in the forum is proper." Pinson v. Rumsfeld,
192 F. App'x 811, 817 (11th Cir. 2006) . In considering a motion
filed pursuant to Rule 12 (b) (3), a court accepts the facts in
the plaintiff's complaint as true. Simbaqueba v. U.S. Dep't of
Def., No. CV 309-066, 2010 WL 2990042, at *2 (S.D. Ga. May 28,
2010). "However, when a Rule 12(b) (3) motion is predicated upon
key issues of fact, the court may consider matters outside the
pleadings." Id. (citing Curry v. Gonzales, No. 105-2710, 2006
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WL 3191178, at *2 (N.D. Ga. Oct. 31, 2006)). Where conflicts
exist between the allegations in the complaint and the evidence
outside of the pleadings, the court "must draw all reasonable
inferences and resolve all factual conflicts in favor of the
plaintiff." Wai v. Rainbow Holdings, 315 F. Supp. 2d 1261, 1268
(S.D. Fla. 2004); see also Simbaqueba, 2010 WL 2990042, at *2.
In diversity cases such as this one, venue is determined in
accordance with the requirements of 28 U.S.C. § 1391(b)
("Section 1391(b)"), which provides that a civil action may be
brought in
(1)
a judicial district in which any defendant
resides, if all defendants are residents of the
State in which the district is located;
(2) a judicial district in which a substantial part
of the events or omissions giving rise to the
claim occurred, or a substantial part of the
property that is the subject of the action is
situated; or
(3)
if there is no district in which an action may
otherwise be brought as provided in this section,
any judicial district in which any defendant is
subject to the court's personal jurisdiction with
respect to such action.
A court presiding over a case "laying venue in the wrong
division or district" must "dismiss, or if it be in the interest
of justice, transfer such case to any district or division in
which it could have been brought." 28 U.S.C. § 1406(a)
Plaintiffs' Amended Complaint states that "[v]enue is
proper in this Court pursuant to 28 U.S.C. § 1391 in that
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[Defendant] Johnson [Publishing] sells Ebony Magazine and other
publications in the Southern District of Georgia, including the
Brunswick Division." Dkt. No. 23, ¶ 6 (emphasis added).
Further, the Amended Complaint avers that venue is proper as to
Defendant Rosen, because "he also published the defamatory
statements in this matter for profit in the Southern District
of Georgia, and this Court may exercise pendent venue over
him." Id.
Defendants contend that none of the venue criteria in
Section 1391(b) are met for this case in the Southern District
of Georgia, and that Section 1391(b) (2) applies to this case
only to show that venue would be proper in the Middle District
of Georgia. Dkt. No. 26, p. 5. Plaintiffs initially attempted
to show that venue is proper under all three subsections of
Section 1391(b). See Dkt. No. 24,
pp. 16-20; Dkt. No. 32, pp.
4-6. However, they represented at the February 24, 2015,
hearing that they intend to proceed only under Section
1391(b) (2). See Dkt. No. 38. Indeed, it appears that Section
1391(b) (1) does not apply, because Defendant Rosen is a resident
of New York, not Georgia. See 28 U.S.C. § 1391(b) (1) (providing
for venue in "a judicial district in which any defendant
resides, if all defendants are residents of the State in which
the district is located"). Nor does Section 1391(b) (3) apply,
because the parties agree that this action could be brought, in
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the very least, in the Middle District of Georgia, Valdosta
Division. See Id. § 1391(b) (3) (applying only "if there is no
district in which an action may otherwise be brought as provided
in this section"); see also Dkt. No. 26, p. 5; Dkt. No. 32, p.
6. As a result, only Section 1391(b) (2) remains at issue.
Pursuant to Section 1391(b) (2), venue lies in "a judicial
district in which a substantial part of the events or omissions
giving rise to the claim occurred." 28 U.S.C. § 1391(b) (2). In
determining where "a substantial part of the events or omissions
giving rise to the claim occurred," "[o]nly the events that
directly give rise to a claim are relevant." Jenkins Brick Co.
v. Bremer, 321 F.3d 1366, 1371 (11th Cir. 2003) . Thus, this
Court must "focus on relevant activities of the defendant[s],
not of the plaintiff [s]," and consider "only those acts and
omissions that have a close nexus to the wrong." Id. at 137172. Of the places where those acts and omissions have occurred,
"only those locations hosting a 'substantial part' of th[ose]
[activities] are to be considered." Id. at 1371.
As such, the language of Section 1391(b) (2) "contemplates
some cases in which venue will be proper in two or more
districts." Id. Plaintiffs are not required to select the
venue with the most substantial nexus to the dispute; rather,
they must simply choose a venue where a substantial part of the
events occurred, even if a greater part of the events occurred
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elsewhere. Morgan v. N. MS Med. Ctr., Inc., 403 F. Supp. 2d
1115, 1122 (S.D. Ala. 2005) (citing Country Home Prods., Inc. v.
Schiller-Pfeiffer, Inc., 350 F. Supp. 2d 561, 568 (D. Vt.
2004)); see also TruServ Corp. v. Neff, 6 F. Supp. 2d 790, 792
(N.D. Ill. 1998) ("The test is not whether a majority of the
activities pertaining to the case were performed in a particular
district, but whether a substantial portion of the activities
giving rise to the claim occurred in the particular district."
(citing Pfeiffer v. Insty Prints, No. 93 C 2937, 1993 WL 443403,
at *2 (N.D. Ill. Oct. 29, 1993))). Nevertheless, the venue
analysis under Section 1391(b) (2) generally requires a greater
level of relevant activities by the defendants than the "minimum
contacts" analysis for personal jurisdiction. See Jenkins Brick
Co., 321 F.3d at 1372 (disapproving of cases evaluating "events
or omissions giving rise to the claim" under Section 1391(b) (2)
in a manner similar to determining the sufficiency of contacts
for personal jurisdiction)
Relevant here, libel involves the "false and malicious
defamation of another, expressed in print, . . . tending to
injure the reputation of the person and exposing him to public
hatred, contempt or ridicule." O.C.G.A. § 51-5-1(a).
Similarly, slander per se, or oral defamation, includes
"[i]mputing to another a crime punishable by law" or "[m]aking
charges against another in reference to his trade, office, or
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profession, calculated to injure him therein." Id. § 51-5-4.
In both cases, the publication of the libelous or slanderous
statement is essential to recovery. See id. § 51-5-1(b)
(libel); Scouten v. Amerisave Mortg. Corp., 656 S.E. 2d 820, 822
(Ga. 2008) (citing Kurtz v. Williams, 371 S.E. 2d 878 (Ga. Ct.
App. 1988)) (slander) . Publication occurs when the libel or
slander is communicated to any person other than the person
libeled or slandered. See O.C.G.A. § 51-5-3; Scouten, 656 S.F.
2d at 822.
In support of their argument that Section 1391(b) (2) does
not allow for venue to lie in this District, Defendants maintain
that a substantial part of the events leading up to this cause
of action took place in Valdosta, Georgia. Dkt. No. 26, p. 5.
Defendants emphasize that (1) Plaintiffs resided in Valdosta at
the time of filing this action; (2) the relevant witnesses are
located in Valdosta; (3) Plaintiffs allegedly suffered harm in
Valdosta; (4) KJ's death occurred in Valdosta; and (5) the
investigation into KJ's death took place, and continues to take
place, in Valdosta. Id. Plaintiffs counter that while "most of
the harm due to the defamation in this case was arguably
suffered in the Middle District where [they] resided when the
Complaint was filed," their reputations were harmed in the
Southern District as well, given the close proximity of Valdosta
and Brunswick. Dkt. No. 32, p. 6. Furthermore, Plaintiffs
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assert that publication, a crucial element of a defamation
claim, occurred nationwide, including in this District. See id.
at pp. 5-6. Defendants respond to these arguments by urging the
Court to employ the "weight of the contacts" test set forth in
DeLong Equipment Co. v. Washington Mills Abrasive, 840 F.2d 843,
855 (11th Cir. 1988), and to find that venue is proper in the
district where the defamatory statements were published and
Plaintiffs resided. Dkt. No. 34,
p. 7; Dkt. No. 41, pp. 2-3.
The Court agrees with Plaintiffs, and finds that venue is
proper in the Southern District of Georgia, Brunswick Division
because a "substantial part of the events or omissions giving
rise" to Plaintiffs' libel and slander claims occurred in this
District. See 28 U.S.C. § 1391(b) (2).
First, Plaintiffs claim that Defendants published libelous
articles on the Ebony Web site, which can be accessed in the
Southern District of Georgia and is advertised in the print
editions of Ebony Maqazine sold in the Southern District of
Georgia.
See Dkt. No. 23, 191 5-7, 36; Dkt. No. 24,
p. 19 & n.5.
In support, Plaintiffs have submitted evidence showing that the
total sales of Ebony Magazine subscriptions in Georgia for 2013
and 2014 were $821,788 and $795,718, respectively, as well as
evidence that the print editions encouraged these subscribers to
visit the Ebony Web site, where the KJ articles were published.
See Dkt. No. 24, p. 19 & n.5; Dkt. No. 24-1; Dkt. No. 24-2.
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Plaintiffs also allege that Defendant Rosen made slanderous
statements in radio and television interviews, including on the
Dan Zupanzky Blog Radio show, which were broadcast on the
Internet and available in this District. See Dkt. No. 23, IT
26, 40-41. While Plaintiffs do not specifically allege that any
particular person in the Southern District of Georgia actually
accessed the online articles or interviews, the Court can
reasonably infer from Plaintiffs' submissions that Defendants'
allegedly defamatory statements were communicated, and thus
published, to at least one person in the Southern District of
Georgia. See Simbaqueba, 2010 WL 2990042, at
*2 (stating that a
court ruling on a Rule 12(b) (3) motion must accept the facts in
the plaintiff's complaint as true and may consider matters
outside of the pleadings, drawing all reasonable inferences in
favor of the plaintiff) .' Because publication is an essential
element to both libel and slander claims, Defendants'
publication in the Southern District of Georgia constitutes an
activity having "a close nexus to the wrong." See Jenkins Brick
Co., 321 F.3d at 1372.
While the Court draws factual inferences in Plaintiffs' favor at
this stage, it does so only for the purpose of expeditiously
determining whether venue is appropriate in this District. The Court
makes no representation as to the legal sufficiency or merits of
Plaintiffs' claims, because, as discussed in Part II of this Order,
such determinations are best left for resolution in the Middle
District of Georgia.
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Second, Plaintiffs claim that Defendants' allegedly
defamatory statements harmed their personal reputations, as well
as Plaintiff Richard Bell's professional reputation as an FBI
agent, in the Southern District of Georgia. See Dkt. No. 23,
191 38, 45; Dkt. No. 32,
p. 6. Plaintiffs show that Valdosta and
Brunswick are roughly 108 miles apart "as the crow flies," dkt.
no. 40-1, and submit that this close proximity supports a
finding that the harm to their reputations was not confined to
the Middle District of Georgia but rather extended to this
District as well, dkt. no. 32, p. 6. The harm to Plaintiffs'
reputations in this District, by itself, would likely not be a
sufficiently substantial event to establish venue, because the
inquiry into relevant events focuses on the actions of
Defendants. However, this harm, coupled with Defendants'
publication, make this District a proper venue for Plaintiffs'
claims. See Kravitz v. Niezgoda, No. CIV.A. 12-487, 2012 WL
4321985, at *4 (S.D. Pa. Sept. 21, 2012) ("In defamation cases,
it is not enough that the plaintiff may have suffered harm in a
particular district . . . . 'Injury in conjunction with another
event, however, may make a district a proper venue.'" (quoting
DaimlerChrysler Corp. v. Askinazi, No. CIV.A. 99-5581, 2000 WL
822449, at *6 (S.D. Pa. June 26, 2000)))
Defendants' argument based on DeLong's "weight of the
contacts" test is unavailing. See Dkt. No. 34, p. 7 (citing
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DeLong Equip. Co., 840 F.2d at 855); Dkt. No. 41, pp. 2-3
(same) . In DeLong, the Court of Appeals for the Eleventh
Circuit adopted the "weight of the contacts" test, according to
which venue is proper in the district where the contacts
underlying the claim weigh most heavily. DeLong Equip. Co., 840
F.2d at 855. However, DeLong was decided under an old version
of Section 1391(b) requiring that a civil action be brought
"only in the judicial district . . . in which the claim arose."
Id. (emphasis added) (quoting 28 U.S.C. § 1391(b) (1976)
(amended 1990)) . Significantly, the venue statute was amended
two years after DeLong, such that it now authorizes venue in "a
judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred." See 28 U.S.C. §
1391(b) (2) (emphasis added) . In applying the amended version of
Section 1391(b) (2) in Jenkins Brick, the Eleventh Circuit
determined that the new language contemplates venue not only in
"the place where the wrong has been committed" but also in
"those locations hosting a "substantial part' of the events"
giving rise to the claim. Jenkins Brick Co., 321 F.3d at 1371.
Thus, while Jenkins Brick did not foreclose the use of DeLong's
"weight of the contacts" test, it appears that this test is, at
most, instructive, but is no longer determinative, of the venue
issue. See Buckley v. Robertson, No. CIV.A. 1:96-CV-996-V, 1997
WL 33642373, at *3 (S.D. Ala. Apr. 18, 1997) (finding that preAO 72A
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amendment decisions applying the "weight of the contacts" test
"remain important sources of guidance"); see also Turner v.
Sedgwick Claims Mgmt. Servs., Inc., No. 7:14-CV-1244-LSC, 2015
WL 225495, at *11 (N.D. Ala. Jan. 16, 2015) (stating that the
amendment "clarif[ied] that venue is authorized in any district
in which a substantial part of the events or omissions"
occurred, "not only in 'the' single district in which the weight
of the contacts underlying the claim was deemed to preponderate"
(citations omitted) (internal quotation marks omitted) (quoting
28 U.S.C. § 1391(b) (2)); cf. Mitrano v. Hawes, 377 F.3d 402, 405
(4th Cir. 2004) ("We therefore no longer apply the 'weight of
the contacts' test.").
Defendants advocate applying the "weight of the contacts"
test to pigeonhole this case to the Middle District of Georgia.
Dkt. No. 34, p. 7; Dkt. No. 41, pp. 2-3. Indeed, the contacts
underlying Plaintiffs' claims likely weigh most heavily in the
Middle District, and Plaintiffs do not appear to dispute that
this action could have been brought in that forum. See Dkt. No.
32, pp. 5-6. Even so, under the current version of Section
1392(b) (2) and Jenkins Brick, the venue inquiry does not end
here; rather, the Court also must consider "locations hosting a
'substantial part' of the events" giving rise to Plaintiffs'
claims. See Jenkins Brick Co., 321 F.3d at 1371. Because the
Court finds, for the reasons discussed above, that a substantial
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part of the relevant events occurred in the Southern District of
Georgia, this District is an equally eligible venue for
Plaintiffs' claims. See Capital Corp. Merch. Banking, Inc. v.
Corp. Colocation, Inc., No. 6:07-cv-1626-Orl-19KRS, 2008 WL
4058014, at *3 (M.D. Fla. Aug. 27, 2008) ("Nevertheless, the
Court must conduct the venue analysis with an eye to the
difficulties posed by applying [S]ection 1391[(b)] (2) to a case
in which the 'wrong' does not center on physical acts or
omissions. Moreover, because the harm from an online defamatory
statement can occur in any place where the website or forum is
viewed, no one forum should be expected to stand out as a
particularly strong candidate for venue.")
Nor is the Court persuaded by Defendants' argument that
venue should lie in the district in which publication occurred
and Plaintiffs resided. See Dkt. No. 41, p. 3. Defendants are
correct in that, "in the context of defamation and other nonphysical torts, courts generally hold that venue under
[S]ection 1391[(b)1(2) is proper in the district where the
injured party resides and the defamatory statements were
published." Capital Corp. Merch. Banking, 2008 WL 4058014, at
*3 (collecting cases); see also Morton Grove Pharm., Inc. v.
Nat'l Pediculosis Ass'n, 525 F. Supp. 2d 1039, 1043-44 (N.D.
Ill. 2007) (explaining that "[e]conomic and reputational injury,
in conjunction with other activities such as the dissemination
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of allegedly defamatory newsletters within the district qualify
as substantial parts of the events giving rise to [the
plaintiff's] claim") . However, these cases do not address, much
less rule out, the possibility of venue lying in another
judicial district where the plaintiff does not reside, but
nevertheless has suffered economic or reputational injury, and
where publication has occurred. Indeed, these holdings appear
to be consistent with the prevailing approach in the defamation
context that "venue is proper in a district in which the
allegedly defamatory statement was published, particularly if
injury was suffered in the same district." Kravitz, 2012 WL
4321985, at *4 (citing DaimlLerChrysler Corp., 2000 WL 822449, at
*6) ; see, e.g., Santa's Best Craft, LLC v. Janning, No. 02 C
9529, 2003 WL 21504522, at *2 (N.D. Ill. June 30, 2003) (finding
that "a substantial part of the events" giving rise to the
plaintiff's defamation claim occurred in the district "where the
allegedly defamatory statement [was] published" and where "the
injury (if any) from the defamation was incurred") . Thus,
Defendants again demonstrate only that Plaintiffs could have
filed this action in the Middle District of Georgia, which is
insufficient to overcome Plaintiffs' showing that a substantial
part of the events occurred in the Southern District of Georgia
as well.
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In sum, Plaintiffs have sustained their burden of
establishing that venue is proper in this District. Therefore,
the portion of Defendants' Notion seeking to dismiss this action
for improper venue under Rule 12(b) (3) is DENIED.
II. Defendants' Motion to Transfer Venue
28 U.S.C. § 1404(a) ("Section 1404(a)") provides that a
district court may transfer a civil action "to any other
district or division where it might have been brought," when it
is "for the convenience of parties and witnesses" and "in the
interest of justice." District courts are vested with broad
discretion in weighing conflicting arguments regarding a venue
transfer. See England v. ITT Thompson Indus. Inc., 856 F.2d
1518, 1520 (11th cir. 1988) . courts traditionally afford
considerable deference to a plaintiff's choice of forum,
disturbing it only where it is "clearly outweighed by other
considerations." Robinson v. Giamarco & Bill, P.c., 74 F.3d
253, 260 (11th cir. 1996) (quoting Howell v. Tanner, 650 F.2d
610, 616 (5th dr. 1981)) . Thus, a party who moves to transfer
venue pursuant to Section 1404(a) bears the burden of
establishing "that the balance of convenience and justice
'weighs heavily in favor of the transfer.'" Duckworth v. Ned.
Electro-Therapeutics, Inc., 768 F. Supp. 822, 831 (S.D. Ga.
1991) (quoting Elec. Transaction Network v. Katz, 734 F. Supp.
492, 501 (N.D. Ga. 1989))
AO 72A
(Rev. 8/82)
19
"The question of whether a transfer is appropriate depends
upon two inquires: (1) whether the action might have been
brought in the proposed transferee court, and (2) whether
[certain] convenience factors are present to justify the
transfer." Greely v. Lazer Spot, Inc., No. CV 411-096, 2012 WL
170154, at *2 (S.D. Ga. Jan. 19, 2012) (citing Mason
V.
Smithkline Beecham Clinical Labs., 146 F. Supp. 2d 1355, 1359
(S.D. Fla. 2001)). The convenience factors include the
following:
(1) the convenience of the witnesses; (2) the location
of relevant documents and the relative ease of access
to sources of proof; (3) the convenience of the
parties; (4) the locus of operative facts; (5) the
availability of process to compel the attendance of
unwilling witnesses; (6) the relative means of the
parties; (7) a forum's familiarity with the governing
law; (8) the weight accorded a plaintiff's choice of
forum; and (9) trial efficiency and the interests of
justice, based on the totality of the circumstances.
Manuel v. Convergys Corp., 430 F.3d 1132, 1135 n.1 (11th Cir.
2005)
Here, it appears to be relatively undisputed that the
present action could have been brought in the Middle District of
Georgia. See Dkt. No. 26, p. 7; Dkt. No. 32, pp. 5-6. Indeed,
Plaintiffs claim that Defendants published defamatory statements
nationwide, including in the Middle District of Georgia, and
that they suffered harm while residing in that district. Dkt.
No. 23, ¶I 1, 36-38, 42, 45; see also Kravitz, 2012 WL 4321985,
AU 72A
(Rev. 8/82)
20
at *4 ("[V]enue is proper in a district in which the allegedly
defamatory statement was published, particularly if injury was
suffered in the same district." (citing DaimlerChrysler Corp.,
2000 WL 822449, at *6)) . Thus, at issue is whether the nine
convenience factors justify transferring this case to the Middle
District of Georgia for resolution.
A. The Convenience of the Witnesses
Convenience of the witnesses is the most important factor
to consider under Section 1404 (a) . Duckworth, 768 F. Supp. at
831 (citing Elec. Transaction Network, 734 F. Supp. at 501); see
also Ramsey v. Fox News Network, LLC, 323 F. Supp. 2d 1352, 1356
(N.D. Ga. 2004) (citing McNair v. Monsanto Co., 279 F. Supp. 2d
1290, 1311 (M.D. Ga. 2003), and State Street Capital Corp. v.
Dente, 855 F. Supp. 192, 197 (S.D. Tex. 1994)) . Nevertheless,
courts afford less weight to witnesses who closely align with
either party, as it is presumed that these witnesses are more
willing to testify in a different forum. See Ramsey, 323 F.
Supp. 2d at 1356 (citing Gundle Lining Constr. Corp. v.
Fireman's Fund Ins. Co., 844 F. Supp. 1163, 1166 (S.D. Tex.
1994)) . Instead, "the focus of the Court should be on the
convenience of 'key witnesses'"—witnesses "which have
information regarding the liability of Defendant[s] ." Id. at
1356-57 (citing McNair, 279 F. Supp. 2d at 1311, and Matt v.
Baxter Healthcare Corp., 74 F. Supp. 2d 467, 470 (S.D. Pa.
AO 72A
(Rev. 8/82)
21
1999)) . "The witnesses which will determine liability are those
that can shed light on the issues of falsity of the
[publication], and the negligence or malice of the Defendant[s]
in making the allegedly defamatory statement. Id. at 1357
(citing Lake Park Post, Inc. v. Farmer, 590 S.E.2d 254 (Ga. Ct.
App. 2003)) . Because "live testimony is preferred over other
means of presenting evidence," the convenience of key witnesses
"weighs most heavily on the Court in deciding on a motion to
transfer venue." Id. at 1356 (citing State Street Capital
Corp., 855 F. Supp. at 197).
In support of their Motion to Transfer Venue, Defendants
have submitted a declaration of their counsel, made under
penalty of perjury, identifying several nonparty witnesses who
were involved in the events or investigation following KJ's
death: Lowndes County school officials, law enforcement
personnel, investigators, and coroners; paramedics serving the
Valdosta area; KJ's parents; and the attorney for KJ's family.
Dkt. No. 35. Defendants' counsel avers that these witnesses,
"who are expected to present testimony and documentary evidence
regarding the truth or falsity of the facts reported in the
Ebony.com articles, are located in the Middle District of
Georgia" and may not be willing to travel to this District to
testify. See id. at p. 2. Defendants contend that a transfer
of this action to the Middle District of Georgia, Valdosta
AU 72A
(Rev. 8/82)
22
Division will "result in less travel and expense" and "decrease
the burden" on witnesses who are required to attend trial,
particularly those who will need to take time off of work to do
SO.
Dkt. No. 34, pp. 9 - 10; Dkt. No. 41, p. S.
Plaintiffs challenge the sufficiency of Defendants'
counsel's declaration on the grounds that it identifies certain
witnesses by category, such as "school officials," rather than
by name. Dkt. No. 40, p. 3 (citing Se. Equip. Co. v. Union Camp
Corp., 498 F. Supp. 164, 166 (S.D. Ga. 1980)).
In addition,
Plaintiffs emphasize that the list includes witnesses who "can
only offer testimony on whether KJ was murdered," while the
liability issues in this case involve "defamatory statements in
the KJ [a]rticles that Brian and Branden Bell are suspects in
the alleged murder, not only that KJ was murdered." Id. As
such, Plaintiffs maintain that most of the key witnesses living
in Valdosta are those testifying on their behalf, not
Defendants', regarding the falsity of Defendants' statements and
the resulting damage to Plaintiffs. Dkt. No. 32, p. 9.
Plaintiffs further assert that they "do not anticipate that
there will be many witnesses providing important testimony that
will be unwilling to drive the 122 miles to the courthouse in
Brunswick." Id. In any event, Plaintiffs contend that they
"are willing to accept any inconvenience caused by the inability
to subpoena reluctant witnesses" and that "[s]uch witnesses can
AO 72A
(Rev. 8/82)
23
certainly be compelled to provide testimony by deposition at
their places of residence," which "may be used instead of live
testimony." Id. (citing Fed. R. Civ. P. 32(a) (4) (B)).
Based on these submissions, the parties agree that most of
the witnesses whom they intend to call at trial live in the
Valdosta area. See id.; Dkt. No. 34,
p. 7. While Plaintiffs
criticize the lack of specificity in Defendants' counsel's
declaration, see dkt. no. 40, p. 3, the declaration sufficiently
describes Defendants' anticipated witnesses at this stage of
litigation and for the present purposes. Moreover, these
witnesses are not closely aligned with Defendants and can fairly
be considered "key witness," because their testimonies regarding
the events and investigation following KJ's death may be
relevant in determining Defendants' liability for defamation.
See Dkt. No. 35. That is, Plaintiffs' defamation claims hinge,
in part, on Defendants having made "false and malicious"
statements concerning Plaintiffs' suspected involvement in KJ's
death. See Dkt. No. 23, 191 30-45. Information as to the
circumstances surrounding KJ's death may shed light on the truth
or falsity of Defendants' statements as well as Defendants'
knowledge in making these statements. See Ramsey, 323 F. Supp.
2d at 1356-57 (finding that the defendant's witnesses, including
law enforcement personnel and others involved in the
investigation of a murder, were "key witnesses" whose testimony
AO 72A
(Rev. 8/82)
24
at trial could shed light on the falsity and malice of the
defendant's statements suggesting that the plaintiffs were
involved in said murder)
While it appears that this Court could compel these
witnesses to provide live testimony at a trial in this District,
as discussed in Subpart II.E, it would not be without causing a
great inconvenience to them. Indeed, the evidence shows that
the witnesses would be required to travel 108 miles "as the crow
flies"—which amounts to 122 miles by land transport—each way
between Valdosta and Brunswick, for each day on which their
testimonies might be needed at trial. See Dkt. No. 40-1.
Plaintiffs submit that their key witnesses will likely be
willing to travel this distance, see dkt. no. 32, p. 9; however,
Plaintiffs' closely aligned witnesses are presumed to be more
willing to travel and, as such, carry less weight in evaluating
the convenience of the witnesses, see Ramsey, 323 F. Supp. 2d at
1356 (citing Gundle Lining Constr. Corp., 844 F. Supp. at 1166).
Moreover, Plaintiffs' willingness to accept any inconvenience of
their own witnesses, see dkt. no. 32,
p. 9, fails to account for
the inconvenience of Defendants' witnesses and, in any event, is
not part of the inquiry under this factor. Rather, relevant
here is that the majority of key nonparty witnesses are
residents of Valdosta, and these witnesses will be greatly
inconvenienced if they must travel to the Southern District of
AO 72A
(Rev. 8/82)
1
25
Georgia, Brunswick Division for trial. Transferring this action
to the Middle District of Georgia, Valdosta Division would
alleviate the burden and expense for these witnesses.
Based on these facts, Defendants have sustained their
burden of proving that the Middle District of Georgia, Valdosta
Division will be a more convenient forum for the key witnesses
than the Southern District of Georgia, Brunswick Division.
Accordingly, the convenience of key witnesses—the most important
factor under Section 1404(a)—substantially weighs in favor of
transferring this case to the Middle District of Georgia,
Valdosta Division for resolution.
B. The Location of Relevant Documents and the Relative Ease of
Access to Sources of Proof
In a defamation case, relevant documentary evidence
includes "that which was used in preparation of the allegedly
defamatory report and pertinent documents maintained by nonparties." Ramsey, 323 F. Supp. 2d at 1357. Other sources of
proof may include "the possibility of a jury view [of relevant
premises]." Id. (alterations in original) (quoting Moore v.
McKibbon Bros., Inc., 41 F. Supp. 2d 1350, 1,357 (N.D. Ga.
1998)) . "In evaluating access to sources of proof, the Court
looks to the location of documents and other tangible materials
and the ease with which the parties can transport the materials
to trial." Spanx, Inc. v. Times Three Clothier, LLC, No. 1:13-
A() 72A
I
26
CV- 10-WSD, 2013 WL 5636684, at *2 (N.D. Ga. Oct. 15, 2013)
(citing Trinity Christian Ctr. of Santa Ana, Inc. v. New
Frontier Media, Inc., 761 F. Supp. 2d 1322, 1327 (M.D. Fla.
2010)) . Oftentimes, "trial will be facilitated by having the
forum in close proximity to such evidence." Id. (citing
Haworth, Inc. v. Herman Miller, Inc., 821 F. Supp. 1476, 1479
n.2 (N.D. Ga. 1992)).
Defendants contend that "[s]ignificant documentary
evidence, including that which was used in preparation of the
allegedly defamatory report and pertinent documents maintained
by non-parties[,] is maintained in the Middle District of
Georgia," dkt. no. 34, p. 10, and submit the declaration of
their counsel in support of this fact, see dkt. no. 35, p. 2
("Upon information and belief, the documentary evidence is also
located in the Middle District of Georgia."). Defendants also
state that their evidentiary proof extends beyond these
documents to other "tangible evidence" and "the location where
[KJ's] body was found," which are "highly relevant to
Defendants' defenses" and only "located in the Middle District."
OFt. No. 41, p. 6. Plaintiffs counter that much of the
evidence—including their own video evidence, the online
articles, and Defendants Rosen's documents used while preparing
the KJ articles in New York—is equally available in both
districts, and that the location of certain documents in the
AO 70\
27
I
I
Middle District should be afforded little weight, given that
documents are now widely available electronically. Dkt. No. 32,
pp. 10-11. Defendants respond that not all of the relevant
evidence 15 available in electronic format and that even with
evidence that may be filed electronically, a need to refer to
the original document or evidence may arise at trial. Dkt. No.
41, p. 6.
The parties are in apparent disagreement over the location
of the documentary evidence most relevant to Plaintiffs'
defamation claims—namely, the documents used by Defendants in
preparing the KJ articles and any documents maintained by
nonparties—yet neither party offers any evidence, or at least
anything beyond an "information and belief," to substantiate its
position. See Dkt. No. 35,
p. 2. Nevertheless, Defendants
assert that they intend to use the premises where KJ's body was
found as another source of proof, and it is undisputed that this
physical evidence is only located in Valdosta. See Dkt. No. 23,
i 8; Dkt. No. 41, p. 6. While perhaps Plaintiffs could dispute
the value of having these premises available for a jury view,
"the fact that a jury view is impossible if the trial is held in
[this District] weighs in favor of transferring the case." See
Ramsey, 323 F. Supp. 2d at 1358 (citing Intergraph Corp. v.
Stottler, Stagg & Assocs., 595 F. Supp. 976, 979 (N.D. Ala.
1984) ) . Furthermore, neither party suggests that there is any
AO ) 72A
(Rev. SiS2)
28
evidence that is only located in the Southern District of
Georgia or that is more accessible here than in the Middle
District.
Thus, on balance, this factor weighs, slightly, in favor of
transferring this case to the Middle District of Georgia,
Valdosta Division.
C. The Convenience of the Parties
While courts afford a considerable amount of deference to a
plaintiff's choice of forum, Robinson, 74 F.3d at 260, the
plaintiff's choice of forum "is entitled to less weight when
none of the parties resides there," Ramsey, 323 F. Supp. 2d at
1355 (citing Haworth, Inc., 821 F. Supp. at 1479). In addition,
it is assumed that the party moving for a venue transfer has
determined that the transferee court will be a more convenient
forum for it. See Pergo, Inc. v. Shaw Indus., Inc., No. 1:03CV-1709-BBM, 2003 WL 24129779, at *2 (N.D. Ga. Sept. 16, 2003)
However, to justify transfer, the "inconvenience of the present
forum to the moving party [must] substantially outweigh[] the
inconvenience of the proposed alternative forum to the nonmoving party." Spanx, Inc., 2013 WL 5636684, at *2. "The Court
may not simply shift inconvenience from one party to the other."
Id.
Defendants emphasize that Plaintiffs' choice of forum is
diminished in this case, because none of the parties resides in
\() 72\
(Rev. 8,82)
29
the Southern District of Georgia. Dkt. No. 26,
P. 8. Further,
Defendants argue that the Middle District of Georgia is more
convenient to Plaintiffs, as it is their home forum; more
convenient to Defendants, because it will provide greater "ease
of access to witnesses and evidence"; and more convenient to
both parties, who will incur less travel costs and expenses for
their witnesses. See Dkt. No. 34, p. 11; Dkt. No. 41, p. 6; see
also Dkr. No. 35 (attesting that Defendants' witnesses live in
Valdosta and that,
"[u]pon information and belief," relevant
documentary evidence is also located there) . In response,
Plaintiffs point out that they have since relocated to
Jacksonville, Florida, which is fifty-seven miles "as the crow
flies," and seventy miles by land transport, from Brunswick.
Dkr. No. 40, p. 3 n.1 (citing Dkt. No. 40-1) . In addition,
Plaintiffs assert that Defendants "fail[
I to articulate why
this [D]istrict is not equally convenient to [D]efendants from
Illinos and New York," id. at p. 3, and submit that Defendants
would have "nearly identical travel time" to either district,
dkt. no. 32, p. 11.
Notably, Defendants overlook that Plaintiffs no longer
reside in the Middle District of Georgia, undermining their
argument that a transfer to that district would necessarily be
more convenient to Plaintiffs as their "home forum." Rather, it
appears that Plaintiffs would suffer some inconvenience from the
AO 72A
(Re. 8/82)
30
proposed transfer, though marginally so, because Plaintiffs' new
residence in Jacksonville is roughly 120 miles' driving distance
from Valdosta, as compared to the seventy-mile drive from
Jacksonville to Brunswick. See Mapquest,
http://www.mapquest.com (last visited Sept. 22, 2015); see also
Fed. R. Evid. 201(b) (2) ("The court may judicially notice a fact
that is not subject to reasonable dispute because it . . . can
be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.") . On the other hand, it is
assumed that the Middle District of Georgia would be more
convenient to Defendants, and Defendants show that they would
benefit from a transfer placing trial closer to their witnesses
and evidence. See Dkt. No. 34, p. 11; Dkt. No. 41, p. 6.
Thus, it appears that the inconvenience of litigating in
either this District or the Middle District does not
substantially outweigh the inconvenience of litigating in the
other venue. Under such circumstances, the "convenience of the
parties" factor is neutral and does not favor either party.
See, e.g., Spanx, Inc., 2013 WL 5636684, at *2.
D. The Locus of Operative Facts
"The locus of operative facts' has been interpreted as the
place where events and actors material to proving liability are
located." See Seltzer v. Omni Hotels, No. 09 Civ.
9115(3SJ (JEfF), 2010 WL 3910597, at *4 (S.D.N.Y. Sept. 30,
A() 72A
(Re. 4,82)
31
I
2010). "[C]ourts routinely transfer cases when the principal
events occurred and the principal witnesses are located in
another district." Id. (quoting In re Nematron Corp. Sec.
Litiq., 30 F. Supp. 2d 397, 404 (S.D.N.Y. 1998)).
However,
where there is no single locus of the operative facts, this
factor is neutral and does not support a transfer. See Smith v.
Dollar Tree Stores, Inc., No. 1:11-CV-02299-SCJ, 2012 U.S. Dist.
LEXIS 76944, at *10 (N.D. Ga. May 10, 2012)
Defendants assert that the locus of operative facts lies in
the Middle District of Georgia, because the witnesses and
evidence needed to prove liability are located in that district.
Cdt. No. 34, pp. 11-12. In addition, Defendants emphasize that
a substantial portion of the events giving rise to Plaintiffs'
defamation claims occurred in the Middle District: the
investigation of KJ's death, the events reported in the KJ
arricles, Defendant Rosen's investigation prior to drafting
those articles, id. at p. 12, and Plaintiffs' activities on the
day of KJ's death, see dkt. no. 38 (arguing that Plaintiffs'
alibis depend on events taking place in the Middle District)
In response, Plaintiffs aver that there is no single locus of
operative facts, and, consequently, this factor is neutral and
does not support a venue transfer. Dkt. No. 32,
pp. 11-12.
Plaintiffs explain that the locus of operative facts "is as much
where the Defendants investigated the facts (except for
\072\
(Rev. '82
)
32
I
I
Defendant Rosen's one known trip to Valdosta and his
collaboration with [KJ's] family's private investigator, Beau
Webster) and wrote the KJ [a]rticles outside Georgia, as it is
where KJ died and Plaintiffs were injured" in Georgia. Dkt.
No. 40, p. 4.
It seems that a single locus of operative facts does exist
in this case. As discussed in Subpart II.A, most of the key
witnesses to testify in this case reside in Valdosta, Georgia.
In addition, it is undisputed that the allegedly defamatory
articles concern a death that occurred in Valdosta and was
investigated by Valdosta officials. See Dkt. No. 23, 191 7-10;
Dkt. No. 34, p. 12. The parties also agree that Defendant Rosen
traveled to Valdosta on at least one occasion, and sought the
help of a private investigator in Valdosta, in order to gather
information for the articles. See Dkt. No. 34,
p. 12; Dkt.
No. 40, p. 4. Moreover, Plaintiffs lived in Valdosta when these
events took place. Dkt. No. 23, ¶ 1.
The only event not occurring in Valdosta was Defendant
Rosen's drafting of the articles, which apparently took place in
New York, see dkt. no. 40, p. 4; however, it is the publication,
not the writing, of these articles that is a principal event
underlying Plaintiffs' defamation claims, see O.C.G.A. § 51-51 (a) - The only ties to the Southern District of Georgia are the
publication of the articles and harm to Plaintiffs' reputations,
AO ) 72A
Rc. 8/2)
33
yet Plaintiffs acknowledge that publication occurred nationwide
and that "most of the harm due to the defamation in this case
was arguably suffered in the Middle District where the
Plaintiffs resided." See Dkt. No. 32, pp. 5-6. Thus, it
appears that the principal witnesses and events are located in
Valdosta, and thus in the Middle District of Georgia, with only
tenuous ties to this District. For these reasons, the locus of
operative facts lies in Valdosta, and this factor heavily weighs
in favor of transferring this case to that venue.
E. The Availability of Process to Compel the Attendance of
Unwilling Witnesses
Pursuant to Federal Rule of Civil Procedure 45(c) (1) ("Rule
4o (c) (1)"),
"[a] subpoena may command a person to attend a
trial" only if the trial is either "within 100 miles of where
the person resides, is employed, or regularly transacts business
in person"; or "within the state where the person resides, is
employed is employed, or regularly transacts business in
person," only if such person "is a party or a party's officer"
or "would not incur substantial expense."
Defendants contend that "because this Court is located more
than 100 miles from Valdosta, it may be more difficult to compel
the attendance of any nonparty witnesses if the subpoena
requires the nonparty witness to incur substantial expense."
Dkt. No. 41, p. 5. Defendants further state that the deposition
i\() 72A
(Re. 8 82)
34
I
testimony of these witnesses would not suffice as a substitute
for five testimony, and, therefore, the inability to compel the
attendance of unwilling witnesses warrants transfer under this
factor. Dkt. No. 34, p. 10. By contrast, Plaintiffs assert
that the plain language of Rule 45(c) (1) authorizes this Court
"to compel [these] witnesses to attend the trial upon payment of
costs by the party demanding their testimony." Dkt. No. 40, p.
2 (citing Fed. R. Civ. P. 45(c) (1) (B) (ii)). As Plaintiffs
expounded at the February 24, 2015, hearing, it is typical for
parties to pay for the expenses of their witnesses, and the
parties in this case could minimize any burden on the witnesses
by taking depositions in the Middle District of Georgia. See
IDkt. No. 38.
Defendants miss the mark on this factor, as Rule 45(c) (1)
grants this Court the power to subpoena witnesses living in
Valdosta to attend a trial in Brunswick. See Fed. R. Civ. P.
45 (c) (1) (B) (ii) . While the 122-mile drive from Valdosta to
Brunswick would be inconvenient for these witnesses, as
discussed in Subpart II.A, it would not result in a "substantial
expense" so as to place them outside the Court's broadly defined
subpoena power. Moreover, as Plaintiffs point out, Defendants
could mitigate this expense by not requiring their witnesses to
travel for depositions. As such, Defendants have not sustained
their burden of establishing that the availability of process to
\072\
(Rev. 8/82)
35
compel unwilling witnesses to attend trial favors transferring
this case to another venue. Thus, this factor does not support
a venue transfer.
F. The Relative Means of the Parties
Defendants maintain that because the key witnesses and
evidence are located in the Middle District of Georgia, "trying
the case in the Middle District would be less strenuous on the
relative means necessary to adjudicate this case." Dkt. No. 34,
p. 11.
Plaintiffs counter that there is no difference in the
relative means necessary to litigate this action in either the
Middle District or Southern District. Dkt. No. 32, p. ii.
Thus, Plaintiffs submit that this factor does not weigh in favor
of transfer, but rather favors Plaintiffs' choice of forum. See
Dkt. No. 40, p. 4.
Defendants' reiteration of the same facts used to support
the "convenience of the parties" factor is insufficient, as the
"relative means of the parties" factor calls for a distinct
inquiry into the parties' financial means. Based on the
information before the Court, the Court cannot conclude that
either party is financially better able to litigate in this
District or in the Middle District. Thus, it appears that the
relative means of the parties has no effect on this evaluation,
and this factor favors neither party.
AO 72
(Rc. 8 0)
36
G. A Forum's Familiarity with the Governing Law
The parties concede that this Court and the court in the
Middle District are equally familiar with Georgia defamation
law.
See Dkt. No. 26, p. 8; Dkt. No. 32, p. 11. The parties,
therefore, agree that this factor is neutral and does not weigh
in favor of either party. See Dkt. No. 34, p. 11 n.4; Dkt. No.
38.
H. The Weight Accorded a Plaintiff's Choice of Forum
A court "must not disturb the plaintiff's choice of forum
unless that choice is clearly outweighed by other
considerations." Duckworth, 768 F. Supp. at 831 (citing Howell
v. Tanner, 650 F.2d 610, 616 (5th Cir. 1981)) . Nevertheless,
the significance of a plaintiff's choice of forum is diminished
when the forum selected is not the home district of any parties
to the action. Ramsey, 323 F. Supp. 2d at 1355 (citing Haworth,
Inc., 821 F. Supp. at 1479). In addition, the choice of forum
is afforded little weight if the majority of the operative
events occurred elsewhere." AGSouth Genetics LLC v. Terrell
Peanut Co., No. 3:09-CV-93 (CDL), 2009 WL 4893588, at *4 (M.D.
Ga. Dec. 9, 2009) (quoting Escobedo v. Wal-Mart Stores, Inc.,
No. 3:08-CIT-105 (CDL), 2008 WL 5263709, at *3 (M.D. Ga. Dec. 17,
2008)) . "In those instances, no party is particularly
inconvenienced by a transfer. Aeroquip Corp. v. Deutsch Co.,
887 F. Supp. 293, 294 (S.D. Ga. 1995).
V) 72A
Rev. Sib2)
I
3'
According to Defendants, the significance of Plaintiffs'
choice of forum is diminished here, so this factor is neutral.
Dkt. No. 34, p. 12. Plaintiffs insist that their choice of
forum still should receive some deference, particularly given
the publication and harm suffered in this District and this
District's close proximity to their home forum at the time of
filing this action. Dkt. No. 40, pp. 4-5.
Here, Plaintiffs' choice of forum is entitled to some
weight, though minimal because the Southern District of Georgia
is not the home forum of any party. While this District is in
close proximity to Plaintiffs' home forum at the time of filing,
close proximity does not render this District their home forum
and is not part of the deference inquiry. Moreover, although
some events underlying Plaintiffs' claims occurred in this
District, it is significant that the locus of operative facts
lies elsewhere. Under these circumstances, Plaintiffs' choice
of this forum carries little weight, such that a transfer of
this case to the Middle District of Georgia would not
inconvenience either party in particular. Thus, this factor is
neutral and does not weigh in either party's favor.
I. Trial Efficiency and the Interests of Justice, Based on the
Totality of the Circumstances
In evaluating this factor, ''the Court looks at whether the
case may be resolved more expeditiously in the alternative
\072A
ReOO2)
I
I
38
forum." Spanx, Inc., 2013 WL 5636684, at *5
Several factors
may be relevant to this inquiry: "access to evidence,
availability of witnesses, the cost of obtaining witnesses, the
possibility of a jury view [of relevant premises], and all other
practical problems that make trial of a case easy, expeditious
and inexpensive."
Ramsey, 323 F. Supp. 2d at 1357 (alterations
in original) (quoting Moore, 41 F. Supp. 2d at 1357) .
Courts
also consider "the inherent interest . . . 'in having localized
controversies decided at home.'" Pergo, Inc., 2003 WL 24129779,
at *3 (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 509
(1947
Defendants assert that this case would be more efficiently
tried in the Middle District of Georgia, based on the
convenience and costs to the witnesses and parties, dkt. no. 34,
p. 14, and that a transfer to that venue would be in the
interests of justice because the case will suffer little or no
delay, dkt. no. 26, p. 8. Plaintiffs, who devote much of their
argument to this factor, argue that transfer would not be in the
interests of justice because a substantial percentage of
prospective jurors in Valdosta would be unable to set aside
their strong personal beliefs regarding KJ's death in order to
judge this case impartially. See Dkt. No. 32, pp. 12-27; Dkt.
No. 40, pp. 5-21. Plaintiffs maintain that the Valdosta
community is polarized regarding the cause of KJ's death,
AU 72A
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Plaintiffs' responsibility, and the allegations that Plaintiffs
were involved in a "cover-up." Dkt. No. 40, pp. 6-10. In
support, Plaintiffs submit evidence of extensive local and
rational publicity surrounding the investigations into KJ's
death, public demonstrations in Valdosta, threats against
Plaintiffs, and a social media campaign launched by NJ's family
labeling Plaintiffs as murderers. See Dkt. No. 32,
pp. 12-27;
Dkt. No. 40, pp. 10-21; see also Dkt. Nos. 40-2 to 40-5
(attaching an affidavit, 2 news report S3 and other public
announcements, and social media pages)
Defendants object to the attached affidavit on reliability and
hearsay grounds. Dkt. No. 41, pp. 8-10. The affidavit contains the
sworn statements of Leigh Touchton ("Touchton"), an NAACP leader who
investigated NJ's death, attesting to the truth of an article
published in the Atlanta Journal Constitution, the polarization of the
Valdosta community, and the inability to obtain an impartial jury in
that location. Dkt. No. 40-2. Touchton has no personal knowledge of
the statements in the newspapers article, given that she did not write
it, and has no specialized knowledge of the jury selection process.
See Fed. R. Evid. 602 ("A witness may testify to a matter only if
evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter."); Fed. R. Evid. 701
("If a witness is not testifying as an expert, testimony in the form
of an opinion is limited to one that is: (a) rationally based on the
witness's perception; (b) helpful to clearly understanding the
witness's testimony or to determining a fact in issue; and (c) not
based on scientific, technical, or other specialized knowledge.");
see, e.g., Anderson v. Dallas Cty., No. 3:05-CV-1248--G, 2007 WL
1148994, at *5 (N.D. Tex. Apr. 18, 2007) (excluding statements in
newspaper articles, on the basis that "the blanket statement in a form
affidavit sworn by someone other than the authors of the articles
presented" was insufficient to establish "that the reporters actually
had personal knowledge of each and every fact reported in the
articles" so as to take the statements outside the definition of
hearsay) . While Touchton's affidavit is, therefore, largely
inadmissible as evidence in opposition to the instant Motion, the
Court considers those statements briefly touching on Touchton's own
personal observations of the Valdosta community. See Dkt. No. 40-2,
3.
pp.
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R\. 582)
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I
I
Defendants highlight Plaintiffs' failure to address the
first part of this factor, that this case would be tried more
efficiently in the Middle District. Dkt. No. 34, p. 14. In
addition, Defendants contend that Plaintiffs lack any credible
evidence of jury impartiality and, at best, demonstrate only
that jurors may be aware of the events underlying Plaintiffs'
claims. Id. at p. 12; Dkt. No. 41,
p. 7. Noting that these
events have garnered national, not just local, media attention,
Defendants speculate that the alleged prejudice is equally
likely with a jury in the Southern District of Georgia. Dkt.
No. 34, p. 13; Dkt. No. 41,
p. 7. Nevertheless, Defendants
submit that any prejudice can be cured, and Plaintiffs can
receive a fair trial, by a "judicious use of measures commonly
employed in sensational cases," such as voir dire in jury
selection to disqualify jurors biased by the media. Dkt. No.
34, pp. 13-14 (quoting Ramsey, 323 F. Supp. 2d at 1358)
First, considering the totality of the circumstances, it
appears that this case would be resolved more expeditiously in
Defendants also object to the attached news reports as inadmissible
hearsay, to the extent that Plaintiffs seek to rely upon them to
esahlish the truth of the statements therein. Dkt. No. 41, p. 7 n.1.
Because it appears that Plaintiffs offer these reports not for their
truth but rather for the fact of their publication, this evidence is
relevant to Plaintiffs' publicity argument and does not fall within
the definition of hearsay. See Fed. R. Evid. 801(c) (defining
"hearsay" as a statement not made in court and offered in evidence "to
prove the truth of the matter asserted in the statement") . Thus, the
Court considers the reports only for this limited purpose in ruling on
the instant Motion.
AO '2A
(Rc. 8/82)
41
the Middle District of Georgia, Valdosta Division. It is well
established that the majority of the witnesses live in Valdosta
and that a jury view of the premises of KJ's death is only
possible there. See supra Subparts II.A-B. Thus, trying this
case in the Middle District would prevent unnecessary travel and
expense for the witnesses, thus decreasing the litigation costs
of the parties, and would permit the jurors an opportunity to
view the physical evidence that might aid in ascertaining the
truth or falsity of Defendants' allegedly defamatory statements.
As a result, trial efficiency weighs in favor of transferring
this case to the Middle District.
Second, it appears that transfer would be in the interests
of justice. Because the locus of operative facts lies in
Valdosta, as discussed in Subpart II.D, the Middle District of
Georgia has an inherent interest in having this localized
controversy decided in that forum. See Pergo, Inc., 2003 WL
24129779, at *3 (quoting Gulf Oil Corp., 330 U.S. at 509).
Additionally, a transfer to the Middle District, particularly at
this stage in litigation, would not impede or otherwise delay
the progress of this case. Furthermore, the Court has no reason
to believe that Plaintiffs would not receive a fair trial in the
transferee court.
Plaintiffs' concern over potential jury prejudice in the
Middle District does not change this result. Jury prejudice is
AC 72A
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presumed from pretrial publicity that is "sufficiently
prejudicial and inflammatory" and has "saturated the community
where the trial[ ] [will be] held." Coleman v. Kemp, 778 F.2d
1487, 1490 (11th Cir. 1985) (citing Murphy v. Florida, 421 U.S.
794, 798-99 (1975), Rideau v. Louisiana, 373 U.S. 723, 726-27
(1963), and Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.
1980)). However, "[t]he presumed prejudice principle is
'rare[ly]' applicable and is reserved for an 'extreme
situation.'" Id. (second alteration in original) (citations
omitted) (quoting Neb. Press Ass'n v. Stuart, 427 U.S. 539, 554
1976), and Mayola, 623 F.2d at 997) . This principle applies
only where "prejudicial pretrial publicity . . . so pervades or
saturates the community as to render virtually impossible a fair
trial by an impartial jury drawn from that community." Id.
quoting Mayola, 623 F.2d at 997)
Thus, "the relevant question
is not whether the community is aware of the case, but whether
the prospective jurors have such fixed opinions that they are
unable to judge impartially and resolve the dispute between the
parties." McRae v. Perry, No. CV 211-193, 2012 WL 3886094, at
*1 (S.D. Ga. Sept. 6, 2012) (quoting Haworth, Inc., 821 F. Supp.
at 1480) .
Plaintiffs' evidence of pretrial publicity indicates that
prospective jurors in Valdosta may be familiar with Plaintiffs
and the circumstances giving rise to this case. However,
\() 72A
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43
Plaintiffs fail to demonstrate that this publicity has saturated
the entire Middle District of Georgia to the point where any
jury pool drawn therefrom would necessarily have such fixed
opinions so as to preclude jury impartiality and a fair trial.
Moreover, Plaintiffs focus on a perceived prejudice from the
jury pool in Valdosta, overlooking that jurors could be selected
from the entire Middle District of Georgia, which extends from
Valdosta to Athens. Furthermore, as Defendants point out,
adequate procedural measures exist for screening out any
potentially biased jurors at the jury selection stage, even in
cases that have become the subject of national headlines. Thus,
at this stage, this case does not present the "extreme
situation" where it is "virtually impossible" for Plaintiffs to
obtain an impartial jury in the transferee court. See Coleman,
773 P.2d at 1490 (quoting Mayola, 623 F.2d at 997)4
Rather, it appears that transferring this case to the
Middle District would promote both trial efficiency and the
interests of justice. Thus, this factor weighs heavily in favor
of transferring this case for resolution in that venue.
J. Conclusion
This Court's resolution of this factor at this stage does not
preclude Plaintiffs from arguing at a later stage of this case that an
impartial jury cannot be selected from the jury pool in the Middle
District of Georgia. However, that ultimate determination should be
made by the Middle District of Georgia on a more developed record than
that currently before the Court.
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Defendants have carried their burden of demonstrating that
the balance of the foregoing factors substantially weighs in
favor of transferring this case. Section 1404(a) contemplates
transfer for the "convenience of the parties and witnesses" and
"in the interest of justice." 28 U.S.C. § 1404(a). As
discussed above, the Middle District of Georgia, Valdosta
Division is a much more convenient forum for the witnesses,
which is the most important factor bearing on a proposed
transfer. In addition, the Middle District houses physical
evidence that cannot be transferred for a jury view; hosted the
pertinent events and investigations following KJ's death; and
would allow for a more expeditious resolution of this case.
While Plaintiffs chose to file this action in the Southern
District of Georgia, and the publication and alleged harm
occurred in part in this District, these considerations are
strongly, and convincingly, outweighed by the other factors.
Because the relevant factors under Section 1404(a) favor a
transfer of venue, this portion of Defendants' Motion is
GRANTED.
This case is due to be TRANSFERRED to the Middle
District of Georgia, Valdosta Division.
III. Defendants' Motion to Dismiss for Failure to State a Claim
Based on the Court's decision to transfer this case to
another venue, the Court declines to consider the portion of
Defendants' Motion calling for an evaluation of Plaintiffs'
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45
claims on the merits. Rather, this portion of Defendants'
Motion REMAINS PENDING for resolution in the Middle District of
Georgia.
CONCLUSION
Based on the foregoing, Defendants' Motion to Dismiss, or
in the Alternative, Motion to Transfer Venue (dkt. no. 26) is
GRANTED in part, DENIED in part, and REMAINS PENDING in part as
follows: the portion urging a dismissal of this case based on
improper venue is DENIED; the portion requesting a transfer of
this case to the United States District Court for the Middle
District of Georgia, Valdosta Division is GRANTED; and the
portion seeking a dismissal for failure to state a claim REMAINS
PENDING
for resolution in the transferee court. This case is
hereby TRANSFERRED to the United States District Court for the
Middle District of Georgia, Valdosta Division. The Clerk of
Court is DIRECTED to transmit a complete record of this case,
including all pending motions, to the clerk's office of the
Middle District of Georgia for filing.
SO ORDERED,
this 22 day of September, 2015.
LISA GODSEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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R. 0)
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