Lefoldt v. Rentfro et al

Filing 126

ORDER denying 94 Motion Transfer Venue to Another Division Signed by District Judge Keith Starrett on 3/3/2017 (dtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
H. KENNETH LEFOLDT, JR.
V.

PLAINTIFF
CIVIL ACTION NO. 5:15-CV-96-KS-MTP

DONALD RENTFRO, et al.

DEFENDANTS
ORDER

For the reasons below, the Court denies Defendant Horne, LLP’s Motion to
Transfer [97] this case to another division.
Defendant Horne, LLP argues that the Court should transfer this case to the
Eastern Division or Northern Division of this District pursuant to Rule 1404(a). This
Court has previously applied Section 1404(a) to determine the propriety of an intradistrict transfer. See, e.g. Green v. Nationwide Mut. Ins. Co., No. 2:11-CV-226-KS-MTP,
2012 U.S. Dist. LEXIS 193744, at *4 (S.D. Miss. Mar. 29, 2012); Parsons v. Pearl River
County, No. 2:09-CV-72-KS-MTP, 2009 U.S. Dist. LEXIS 51128, at *5 (S.D. Miss. June
9, 2009). District courts “have broad discretion in deciding whether to order a transfer”
pursuant to 28 U.S.C. § 1404(a). In re Volkswagen of Am., 545 F.3d 304, 311 (5th Cir.
2008). The statute provides: “For the convenience of the 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 or to any district or division to which all
parties have consented.” 28 U.S.C. § 1404(a).
The first question under Section 1404(a) is whether the case “might have been
brought in the destination venue.” In re Volkswagen of Am., 545 F.3d at 312. It appears

to be undisputed that this case “might have been brought” in either the Northern or
Eastern Division.
Next, the party seeking a transfer must show “good cause.” Id. at 315. Good
cause has been defined as follows:
When viewed in the context of § 1404(a), to show good cause means that
a moving party, in order to support its claim for a transfer, must satisfy
the statutory requirements and clearly demonstrate that a transfer is for
the convenience of parties and witnesses, in the interest of justice. Thus,
when the transferee venue is not clearly more convenient than the venue
chosen by the plaintiff, the plaintiff’s choice should be respected. When
the movant demonstrates that the transferee venue is clearly more
convenient, however, it has shown good cause and the district court
should therefore grant the transfer.
Id. To determine whether the transferee venue is clearly more convenient than the
plaintiff’s chosen venue, the Court considers various factors impacting the private and
public interests at play in the case. Id.
The private interest factors are: (1) the relative ease of access to the
sources of proof; (2) the availability of compulsory process to secure the
attendance of witnesses; (3) the cost of attendance for willing witnesses;
and (4) all other practical problems that make trial of a case easy,
expeditious and inexpensive. The public interest factors are (1) the
administrative difficulties flowing from court congestion; (2) the local
interest in having localized interests decided at home; (3) the familiarity
of the forum with the law that will govern the case; and (4) the avoidance
of unnecessary problems of conflict of laws or in the application of foreign
law.
Id. While these factors “are appropriate for most transfer cases, they are not
necessarily exhaustive or exclusive,” and none of them carry “dispositive weight.” Id.
A.

Prejudicial Communications & Publicity
Defendant focuses virtually all of its argument on the fourth private interest
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factor – practical problems that make the trial of a case easy, expeditious and
inexpensive. Defendant contends that “[m]any residents of the Western Division have
been exposed to prejudicial communications that will affect their ability to deliver a
verdict based solely on the evidence at trial.” First, Defendant cites the number of
persons employed by the Natchez Regional Medical Center, representing that it was
“likely the largest or one of the largest single non-education employer in Adams
County.” Next, Defendant speculates that NRMC’s Board of Trustees, the Trustees’
families, the Adams County Board of Supervisors, and the Supervisors’ friends and
families have commented to others about the litigation. Defendant also argues that the
NRMC had numerous creditors in Natchez, Mississippi, including Adams County.
Additionally, Defendant contends that newspaper publicity about issues related
to this case has prejudiced the Western Division jury pool. Defendant attached copies
of over seventy newspaper articles that it claims support this argument. It represents
that some of the articles contain inaccurate information, specifically noting articles
from July 2015 in which Plaintiff, NRMC’s Trustee, is quoted as considering potential
litigation against its Recovery Audit Contractor (“RAC”) for failing to appeal certain
Medicare/Medicaid payment determinations. In one opinion piece, the local newspaper
opined that the Trustee should “pull[] out all the stops in trying to get everyone who
was harmed by the hospital bankruptcy paid.” Defendant argues that Plaintiff
facilitated these reports by “inject[ing] this specific issue into the public discussion.”
Defendant also noted at least one article with a quotation from Plaintiff that
purportedly contains an inaccurate description of his duties. Likewise, Defendant
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complains of an opinion piece criticizing “professionals” who allegedly received
payments just before the hospital filed its bankruptcy petition, as well as a news article
that specifically discusses this lawsuit and describes the allegations against
Defendant.1
Defendant contends that all of the pretrial publicity discussed above can not be
easily addressed in voir dire, asserting that potential jurors will have to be questioned
in camera, to prevent tainting the remainder of the venire, and that hypothetical
prejudice caused by pretrial publicity can not be cured by potential jurors’ assurances
that they can be impartial in spite of reading or hearing such publicity. In summary,
Defendant argues that “almost everybody in and around Adams County and the
neighboring counties” has been and will continue to be incurably prejudiced by news
publicity, social media posts, connections to and communications with persons who
have an interest in this case, community gossip, and/or their own connection to the
hospital or its bankruptcy.
This Court gives certain jury instructions in every civil trial. Among these are
an instruction for the jury to base its verdict upon only the evidence presented during
the course of trial, and numerous instructions to avoid all news, social media,
discussions with friends and family, and/or any other potential source of information

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Although Defendant attached over seventy newspaper articles to its motion,
it only specifically discussed a fraction of them. The Court is not obligated to search
the record for evidence in support of a party’s argument. Willis v. Cleo Corp., 749
F.3d 314, 317 (5th Cir. 2014). Therefore, while the Court read each newspaper
article specifically discussed by Defendant in its motion, it did not search through
the remaining articles in search of evidence to support Defendant’s motion.
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about the trial. The Court presumes that jurors follow the Court’s instructions, see
United States v. Anderson, 755 F.3d 782, 798 (5th Cir. 2014), and the Court is inclined
to believe that thorough, careful voir dire and firm instructions are sufficient to avoid
empaneling jurors whose attitudes and opinions have been substantially prejudiced by
the publicity discussed above, and to cure whatever prejudice may nonetheless exist
in their minds. Indeed, pretrial publicity is a problem in many cases. Likewise, the
ubiquity of social media, the internet, and smartphones is an issue the Court must
address in every case.
The Court also notes that it is not required to draw this case’s jury pool from
only the Western Division. The statute provides, in relevant part: “It is the policy of the
United States that all litigants in Federal courts entitled to trial by jury shall have the
right to grand and petit juries selected at random from a fair cross section of the
community in the district or division wherein the court convenes.” 28 U.S.C. § 1861
(emphasis added). Therefore, if Defendant believes that it is impossible to draw a fair
jury from the Western Division alone, it is free to file a motion seeking a venire drawn
from the entire Southern District. The Court can also increase the size of the venire
regardless of the geographical area from which it is drawn.
In summary, “broad and intensive public awareness” of “notorious events” does
not create a presumption of juror prejudice. Broussard v. State Farm Fire & Cas. Co.,
523 F.3d 618, 631 (5th Cir. 2008). The Court employs numerous mechanisms to prevent
empaneling a jury that has been prejudiced by pretrial publicity, including voir dire,
a wide variety of instructions throughout trial, summoning a larger venire, and
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potentially expanding the geographical area from which the venire is drawn. The Court
believes these methods sufficient to ensure a fair trial. Indeed, Defendant admits in
briefing that it is possible to empanel an impartial jury from the Western Division;
Defendant simply contends that it will be costly to do so. The Court believes that
Defendant’s estimation of the difficulty is exaggerated, particularly in light of the
potential preventative measures discussed above.
B.

Remaining Factors
As for the public interest factors, there are no “administrative difficulties flowing

from court congestion.” In re Volkswagen, 545 F.3d at 315. The “local interest in having
localized interests decided at home” would point to the Western Division as the
appropriate venue. Id.2 Trying the case in the Northern or Eastern Division will not
increase the “familiarity of the forum with the law that will govern the case,” or avoid
any “unnecessary problems of conflict of laws or in the application of foreign law.” Id.
Therefore, the Court concludes that the public interest factors do not suggest that
moving the trial to the Northern or Eastern Division will make the trial more
convenient for the Court or parties.
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Defendant argues that the Western Division has no “local interest” in this
litigation because the Plaintiff is a Trustee representing a liquidation trust created
by the Bankruptcy Court, which has no location in the Western Division. This
argument is sophistic nonsense. The case arises from alleged professional
malpractice in auditing the finances of the Natchez Regional Medical Center – a
subject that is undoubtedly of particular interest to those in the Western Division.
As Defendant notes in briefing, the concept of “local interest” refers “especially in . .
. matters of local policy,” 15 Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 3854 (4th ed. 2017), and this case has local policy
implications.
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Defendant maintains that the parties would have greater “relative ease of access
to the sources of proof” if the case is transferred to the Northern Division. In re
Volkswagen, 545 F.3d at 631. Defendant argues that both parties – itself and the
Trustee – are based in Ridgeland, Mississippi, just north of Jackson, Mississippi, and
most of the relevant documents will be located there. In response, Plaintiff claims that
most of the relevant documents will be located in Natchez, Mississippi, in the Western
Division. But neither party has provided the Court with any reason to credit their
representations over the opposing party’s. Moreover, the Court anticipates that most
– if not all – of the documentary evidence produced in this case will be produced
electronically. That being the case, the “relative ease of access to the sources of proof”
will likely be the same regardless of venue.
The parties agree that “the availability of compulsory process to secure the
attendance of witnesses” is a neutral factor. Therefore, it does not suggest that
transferring the case will increase the convenience of the parties.
Finally, Defendant contends that few fact witnesses will be located in Natchez
insofar as any questions regarding its actions must be directed to witnesses from its
office in Ridgeland. Defendant also argues that most of the testimony will come from
retained experts, few of whom will come from Natchez. In the grand scheme of things,
Natchez, Hattiesburg, and Jackson are not significantly far from one another in
geographical terms. Indeed, parties and witnesses routinely travel far greater
distances to testify before the Court. Furthermore, Defendant has not provided the
Court with a list of witnesses, and its argument appears to be largely based on
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speculation.
C.

Conclusion
For all the reasons provided above, the Court concludes that Defendant has not

demonstrated that either the Eastern Division or the Northern Division would be
clearly more convenient venues than the Western Division, or that a transfer of venue
is necessary to serve the interests of justice. The Motion to Transfer Venue [94] is
presently denied. However, the trial of this matter is almost a year away, and the
parties may obtain additional information relevant to this issue, or the situation may
otherwise change between now and then. Accordingly, Defendant may re-urge this
motion later in the case, if it wishes to do so.
SO ORDERED AND ADJUDGED, on this, the

3rd

day of March, 2016.

s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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