TOVAR v. INDIANA

Filing 20

ORDER ON DEFENDANTS MOTION TO TRANSFER VENUE- granting 9 Motion to Change Venue By JUDGE D. BROCK HORNBY. (cef)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JOAO TOVAR,
PLAINTIFF
v.
ROBERT INDIANA,
DEFENDANT

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CIVIL NO. 2:12-CV-175-DBH

ORDER ON DEFENDANT’S MOTION TO TRANSFER VENUE
In this lawsuit, Monaco resident and art dealer Joao Tovar sues
Vinalhaven resident and artist Robert Indiana for damages. Tovar claims that
Indiana severely diminished the value of Tovar’s “PREM” sculptures, by
allegedly reneging on a 2007 licensing agreement between Indiana and John
Gilbert, by which Gilbert, according to Tovar, was authorized to produce the
sculptures as Indiana works. Indiana has moved both to dismiss the lawsuit
and to transfer the lawsuit to the Southern District of New York. I GRANT the
motion to transfer venue1 and do not rule on the motion to dismiss, leaving it
for the transferee court.
BACKGROUND
Indiana is famous for his “LOVE” works of art, where the letters “LO” are
stacked over “VE” and the “O” leans to the right. “PREM” uses Latin letters for

The motion requests assignment to a particular judge in the Southern District of New York,
but the applicable statute authorizes me only to designate the District, not the judge. Case
assignment is up to the Southern District of New York.
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the Hindi Sanskrit word for “love.”

John Gilbert has created sculptures of

those stacked letters and attributed them to Indiana.

According to the

Complaint, Tovar bought some of those sculptures from John Gilbert for
substantial sums, believing that Indiana had licensed Gilbert to create them on
his behalf, and that he had a certificate of authenticity from Indiana. Then in
2009, Indiana disavowed the PREM works as Indiana works.

As a result,

Tovar’s sculptures became worthless.
Gilbert himself filed a lawsuit against Indiana in the Southern District of
New York.

Judge Forrest of that District granted summary judgment to

Indiana in a written opinion in March of this year. Gilbert v. Indiana, No. 09
CV 6352(KBF), 2012 WL 688811, at *1 (S.D.N.Y. Mar. 2, 2012). She is thus
familiar with the underlying dispute, and maintains continuing jurisdiction
over a later settlement agreement.

Tovar filed this lawsuit in the Maine

Superior Court (Knox County) on May 2, 2012. He has a number of claims,
some of them arising out of the underlying 2007 licensing agreement between
Gilbert and Indiana. (Tovar previously filed a lawsuit against Indiana in the
Southern District of New York, but there he based jurisdiction on diversity of
citizenship and named another defendant who, like Tovar, was an alien. The
court dismissed the lawsuit without prejudice for lack of jurisdiction, because
aliens were on both sides of the controversy. Tovar v. Indiana, No. 11 Civ. 776
(DAB), 2011 WL 5423161, at *2 (S.D.N.Y. Nov. 8, 2011) (Batts, J.). Indiana
removed the Knox County lawsuit to this federal court, then filed a motion to
dismiss and a motion to transfer venue to the Southern District of New York.
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TRANSFER
Congress has provided that “[f]or 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.” 28
U.S.C. § 1404(a). As I said in Edens Technologies, LLC v. Kile, Goekjian, Reed
& McManus, PLLC, 671 F. Supp. 2d 170, 173 (D. Me. 2009):
Factors to be considered in transferring a case include not
only the convenience of the parties and witnesses but also
“the availability of documents.” There is additionally, in the
First Circuit, “a strong presumption in favor of the
plaintiff’s choice of forum.” Nonetheless, that presumption
is not determinative and may be outweighed by the interest
of justice or by the convenience of the parties and witnesses
....

(internal citations omitted.) Here, it is undisputed that this lawsuit could have
been brought against Indiana in federal court in New York.

(Federal

jurisdiction now is premised on federal law questions raised in the Complaint.
In addition, because Tovar has dropped the alien defendant, the lawsuit could
have been filed in federal court based on diversity of citizenship.) There is no
assertion that Maine is somehow more convenient to Tovar, a Monaco resident,
than is New York. The only witness from Maine is Indiana himself, and he is
the one who seeks to have the lawsuit heard in New York. In today’s digital
world, the location of documents is hardly relevant any longer.

Most

importantly, the judges of the Southern District of New York are already
familiar with the Gilbert/Indiana agreement and relationship. Indeed, Judge
Forrest’s opinion refers several times to the transactions with Tovar.

The

Southern District of New York has recognized in a previous case that, although
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a plaintiff’s choice of forum is important, the existence of a related lawsuit in
the transferee forum “weights heavily toward transfer.”

CCM Pathfinder

Pompano Bay, LLC v. Compass Fin. Partners LLC, 396 B.R. 602, 608 (S.D.N.Y.
2008) (Rakoff, J.); accord United States v. Burns, No. 5:08CV3, 2008 WL
5263743, at *3 (N.D.W.Va. Dec. 18, 2008).
I conclude that here the interest of justice—the Southern District of New
York’s familiarity with the dispute—outweighs the plaintiff’s choice of forum
and calls for transfer to the Southern District of New York. The other factors,
convenience of parties and witnesses, are neutral.
The motion to transfer is GRANTED.2 I take no action on the motion to
dismiss.
SO ORDERED.
DATED THIS 9TH DAY OF AUGUST, 2012
/s/D. Brock Hornby
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE

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I do not rely on 28 U.S.C. § 1406 or on the forum selection clause in the licensing agreement.
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