GILMAN et al v. WALTERS et al
Filing
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CLOSED DISMISSED - Order Granting Defendants' Renewed Motion for Intra-District Transfer of Venue to the Evansville Division. The newly assigned cause number is 3:12-cv-114-RLY-WGH. Signed by Judge Sarah Evans Barker on 8/6/2012.(MAC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
LARRY GILMAN et al.,
Plaintiffs,
vs.
MANNON L. WALTERS et al.,
Defendants.
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1:12-cv-0128-SEB-TAB
ORDER GRANTING DEFENDANTS= RENEWED MOTION FOR
INTRA-DISTRICT TRANSFER OF VENUE
This cause is before the Court on the Renewed Motion of Mannon L. Walters, et
al.,1 Defendants, for Intra-District Transfer of Venue [Docket No. 42] to the United States
District Court for the Southern District of Indiana, Evansville Division, filed on June 28,
2012, pursuant to 28 U.S.C. ' 1404. Defendants allege that divisional venue is more
appropriate in Evansville, which is the situs for all acts and omissions alleged by Plaintiffs,
Larry Gilmore, et al., in their Amended Complaint [Docket No. 37]. Further, Defendants
allege that transfer of this lawsuit to the Evansville Division will serve the interests of
justice and facilitate the convenience to the witnesses and parties. Plaintiffs disagree;
thus, their decision to file this action in the Indianapolis Division. For the reasons detailed
in this entry, we GRANT Defendants= Renewed Motion for Intra-District Transfer; and
transfer the file to the Evansville Division.
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Excepted from this motion are Defendants MLW, Inc. and John and Jane Does I-X. To
our knowledge, they do not object to the requested transfer.
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Factual Background
Plaintiffs are citizens of various states, including Arizona, California, Colorado,
Florida, Idaho, Oregon, Minnesota, Virginia, Utah, and Washington. Am. Compl. ¶¶
3-35. Nominal Defendants are limited partnerships based in Delaware, Texas, and
Indiana. Id. ¶¶ 36-40. Defendants are citizens of Illinois and Indiana as well as
corporations based in Illinois, Indiana, Kentucky, Nevada, and Tennessee. All
Defendants which are corporations have their headquarters in Evansville, Indiana. Id. ¶¶
41-48.
Plaintiffs are investors in Nominal Defendants, which exist for the purpose of
selling investments in oil wells around the country. Am. Compl. ¶ 50. Defendant
Walters, in his individual capacity, managed Plaintiffs’ investments through his various
entities. Id. Presently, Plaintiffs allege that Defendants’ wrongful conduct in connection
with the sale and management of Nominal Defendant entities has caused both Plaintiffs
and Nominal Defendants to suffer damages. Plaintiffs have asserted numerous causes of
action against Defendants, including violations of federal securities laws, fraud, breach of
fiduciary duty, and breach of contract.
Legal Analysis
I. Standard of Review
The federal venue statute, 28 U.S.C. ' 1404(a), is designed “to prevent the waste ‘of
time, energy and money’ and ‘to protect litigants, witnesses and the public against
unnecessary inconvenience and expense.’” Van Dusen v. Barrack, 376 U.S. 612, 616
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(1964) (quoting Cont’l Grain Co. v. Barge F.B.L.-585, 364 U.S. 19, 26-27 (1960));
Wabash Valley Feed & Grain, LLC v. Hust, No. 3:11-cv-14-SEB-WGH, 2011 WL
3902780, at *8 (S.D. Ind. Sept 6, 2011). Significantly, it provides that, “[f]or the
convenience of parties and witnesses and 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.”
28 U.S.C. ' 1404(a). Under ' 1404(a), the moving party bears the burden of establishing
“that (1) venue is proper in the transferor [division], (2) venue and jurisdiction are proper in
the transferee [division], and (3) the transfer will serve the convenience of the parties, the
convenience of the witnesses, and the interest of justice.” State Farm Mut. Auto. Ins. Co.
v. Estate of Bussell, 939 F. Supp. 646, 651 (S.D. Ind. 1996). A district court “has wide
discretion to weigh factors for and against transfer when making this determination,”
Heckler & Koch, Inc. v. Precision Airsoft, LLC, No. 1:09-cv-485-SEB-JMS, 2010 WL
1257450, at *1 (S.D. Ind. Mar. 25, 2010), and can do so on a case-by-case basis. Stewart
Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988).
Because both parties have agreed that Southern District of Indiana is the proper
venue for adjudication in this lawsuit, the sole issue before the Court is whether the
Evansville Division is a more suitable venue when considering the convenience of the
parties, convenience of the witnesses, and the interests of justice.
II. Discussion
Our analysis begins by acknowledging Plaintiffs’ choice to file their lawsuit in the
Indianapolis Division of the Southern District of Indiana. Traditionally, district courts
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afford substantial deference to a plaintiff’s designated forum selection. Butterick Co. v.
Will, 316 F.2d 111, 112 (7th Cir. 1963); Wabash Valley, 2011 WL 3902780, at *9.
“[U]nless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum
should rarely be disturbed.” In re Nat=l Presto Indus., Inc., 347 F.3d 662, 664 (7th Cir.
2003) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)). However, the
Seventh Circuit has stated that this factor has “minimal value where none of the conduct . .
. occurred in the forum selected by the plaintiff.” Chi., R.I. & P.R. Co. v. Igoe, 220 F.2d
299, 304 (7th Cir. 1955) (citation omitted). District courts traditionally treat the plaintiff’s
chosen forum with less deference when the plaintiff opts to litigate outside his “home
forum.” Volkswagen Aktiengesellschaft v. Dee Eng’g, Inc., No. 1:02-cv-1669-LJM, 2003
WL 1089515, at *2 (S.D. Ind. Mar. 4, 2003) (citations omitted). In such situations, the
court considers the defendant’s place of residence and the relative ability of each party to
bear the expenses of trial in a particular forum. Id. (citing State Farm Mut. Auto Ins. Co.,
939 F. Supp. at 651). Here, nothing seems to justify more than a little weight to Plaintiffs=
choice of forum because Plaintiffs have made clear that the acts or omissions occurred in
Evansville, Indiana, where all Defendants reside. See Am. Compl. ¶¶ 2, 41-47; Defs.’ Br.
at 3.
A. Convenience of the Parties and Witnesses
Defendants argue that, because Evansville, Indiana is the locus of their respective
residences and all alleged acts and omissions asserted in the Amended Complaint, it clearly
is more convenient for the parties and witnesses to litigate this dispute in that division.
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Defendants further allege that Plaintiffs, all of whom will be required to travel to Indiana
from out of state, will be inconvenienced to that extent regardless of whether this case
proceeds in Evansville or Indianapolis. According to Defendants, maintaining venue in
Indianapolis will subject them to unnecessary inconvenience and travel expenses that
could be entirely avoided by transferring the lawsuit to the Evansville Division.
Plaintiffs rebut Defendants’ arguments regarding convenience, claiming that
Indianapolis is far more convenient for parties and witnesses expected to have to appear at
trial in terms of travel expenses because the Indianapolis International Airport is more
easily accessible and less costly for air travel than is the Evansville Regional Airport which
is serviced only by two regional carriers.2 Plaintiffs’ view is reinforced by the fact that
there are a total of thirty-four individual Plaintiffs as well as their representatives, all of
whom are located out of state; in contrast, there are only two individual Defendants, both of
whom are residents of Evansville. Plaintiffs also note that while Defendants have opted to
retain counsel from Evansville, Plaintiffs are represented by Indianapolis-based and out of
state counsel.
Although we suspect that transferring this lawsuit to Evansville would not cause
substantial hardship for Plaintiffs, we must ensure that the effect of this transfer is not “a
mere shift of inconveniences among parties.” Whitney v. Big Dog Holdings, Inc., No.
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Although we have refrained from conducting an extensive survey of current airfares, we
cannot definitively say that one airport is “cheaper” than the other. Further, Plaintiffs do not
consider the potential differences in other travel-associated costs, e.g., food, lodging, and ground
transportation; thus, there is nothing to suggest that the overall cost of litigating in Indianapolis
would not be higher.
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1:07-cv-1026-SEB-WTL, 2007 WL 3334503, at *3 (S.D. Ind. Nov. 7, 2007) (quoting
Moore v. AT & T Latin Am. Corp., 177 F. Supp. 2d 785, 879 (N.D. Ill. 2001)). The
evidence before us indicates that such a transfer would effect no shift of inconvenience.
Changing the forum to Evansville likely would lessen the inconvenience borne by
Defendants with respect to costs of travel and evidence production. Moreover, because
any expense incurred by Plaintiffs would arise in conjunction with their travel to Indiana,
journeying to a trial in Evansville would not be substantially more inconvenient to
Plaintiffs than would journeying to Indianapolis.
B. Interest of Justice
The next factor we consider, the interest of justice, shifts the focus to the efficient
administration of the court system, as opposed to litigants’ private concerns. See Coffey v.
Van Dorn Iron Works, 796 F.2d 217, 221 (7th Cir. 1986); Estate of Leon v. City of
Seymour, No. 1:08-cv-614-RLY-TAB, 2008 WL 4098978, at *2 (S.D. Ind. Aug. 27, 2008).
This factor is distinct “and may be determinative in a particular case, even if the
convenience of the parties and witnesses might call for a different result.@ Forecast Sales
v. Axxiom Mfg., Inc., No. 1:10-cv-2011 WL 3206967, at *5 (S.D. Ind. July 28, 2011)
(quoting Coffey, 796 F.2d at 220 (internal citations omitted)). In conducting this portion
of the § 1404(a) transfer analysis, we consider “such concerns as ensuring speedy trials,
trying related litigation together, and having a judge who is familiar with the applicable law
try the case.” Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1293 (7th. Cir.
1989) (citing Coffey, 796 F.2d at 221). Additional factors might include “the plaintiff=s
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choice of forum, the availability of evidence, and the district in which a jury could best
apply community standards.” Estate of Leon, 2008 WL 4098978, at *2 (citing Coffey, 796
F.2d at 221 n. 4; N. Ind. Pub. Serv. Co. v. Envirotech Corp., 566 F. Supp. 362, 364 (N.D.
Ind.1983)).
Because the requested transfer is intra- and not inter-district, we need not address
such issues as uniformity of the adjudicator. After the Clerk reassigns this case to the
Evansville division, the magistrate, district court judge, or both could remain the same,
regardless of venue; so, too, will the general pool from which the jury is selected.
Defendants also assert that the sources of proof, including all records relating to
Defendants= business entities, are located in Evansville where the limited partnerships’
principal offices are located. Our court has previously held that “[i]t is. . . not unusual that
venue will be transferred to the district where defendant has its principal office, and where
it transacts most of its business.@ Whitney, 2007 WL 3334503, at *4 (quoting Indianapolis
Motor Speedway Corp. v. Polaris Indus., Inc., No. IP99-1190-C-B/S, 2000 WL 777874, at
*5 (S.D. Ind. June 15, 2000) (internal citation omitted)). Plaintiffs fear that transfer to
Evansville would disrupt the ongoing litigation process in Indianapolis, where numerous
filings, motions, orders and exhibits have been entered on the docket. However, in light
of the District’s well-honed electronic docketing system, we find this argument entirely
unpersuasive. Indeed, our case management system permits identical access to all
documents in any given lawsuit regardless of the division; thus, transferring this lawsuit
from one division to another has no effect on docket accessibility or efficiency.
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Conclusion
Having carefully reviewed the arguments of each side, we conclude that transfer is
appropriate to the Evansville Division. Transferring this litigation will place it
significantly closer to the events alleged in the Amended Complaint without causing any
substantial offsetting inconvenience to Plaintiffs. Defendants= Renewed Motion for
Intra-District of Venue is therefore GRANTED. The Clerk is hereby directed to reassign
this lawsuit to the Evansville Division in accordance with the regular policies and
procedures of the Clerk’s Office.
IT IS SO ORDERED.
08/06/2012
Date: _____________________________
_______________________________
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
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Copies to:
Jean Marie Blanton
ZIEMER STAYMAN WEITZEL & SHOULDERS LLP
jblanton@zsws.com
Robert L. Burkart
ZIEMER STAYMAN WEITZEL & SHOULDERS
rburkart@zsws.com
Thomas K. Caldwell
MADDOX HARGETT & CARUSO, PC
tkcaldwell@mhclaw.com
Clay W. Havill
ZIEMER STAYMAN WEITZEL & SHOULDERS LLP
chavill@zsws.com
Timothy John Kirk
MADDOX HARGETT & CARUSO, PC
kirktjohn@mhclaw.com
Mark E. Maddox
MADDOX HARGETT & CARUSO, PC
mmaddox@mhclaw.com
Patrick A. Shoulders
ZIEMER STAYMAN WEITZEL & SHOULDERS
pshoulders@zsws.com
Edwin L. Sisam
SISAM & ASSOCIATES, LLP
ed@sisam.com
Joshua H. Sisam
SISAM & ASSOCIATES, LLP
josh@sisam.com
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