Webster v. Freedom Debt Relief, LLC et al

Filing 9

ORDER GRANTING 4 Motion to Change Venue. Accordingly, the Court DIRECTS the Clerk to transfer this matter to the Northern District of Ohio. Signed by Judge S Arthur Spiegel on 6/26/12. (mtw) [Transferred from ohsd on 6/26/2012.]

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
DONALD WEBSTER,
Petitioner,
v.
FREEDOM DEBT RELIEF, LLC,
et al.,
Respondents.

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NO. 1:12-cv-288
OPINION & ORDER

This matter is before the Court on Respondents’ Joint
Motion to Transfer Venue Pursuant to 28 U.S.C. §1404(a) and 1406
(doc. 4) and the responsive memoranda (docs. 7, 8).

For the

reasons that follow, the Court GRANTS the motion.
On April 10, 2012, Petitioner filed a complaint with the
Court in which he seeks, for himself and all others similarly
situated, to have a partial final arbitration award vacated (doc.
1).

Petitioner is domiciled in the Northern District of Ohio but

filed his action in the Southern District of Ohio, asserting that
venue is proper here because the arbitration award “was made in
Cincinnati, Ohio,” making venue proper pursuant to 9 U.S.C. § 10(a)
(Id.).
Respondents filed the instant motion on May 11, 2012,
asserting that venue in the Southern District of Ohio is improper
and that the matter must be transferred to the Northern District of
Ohio (doc. 4).

Respondents note that Petitioner lives in the

Northern District; Petitioner filed his original claim against

Respondents in the Northern District; and the parties agreed that
arbitration would occur in the Northern District (Id.).

Thus,

Respondents argue, the Northern District is the proper venue for
the

instant

action

(Id.).

Respondents

further

argue

that

Petitioner’s reliance on 9 U.S.C. § 10(a) is misplaced because the
arbitration award was not made in Cincinnati, noting that the only
connection between this case and Cincinnati is that the appointed
arbitrator practices law in Cincinnati (Id.).
Section 1406 of Title 28 of the federal code provides
that “[t]he district court of a district in which is filed a case
laying venue in the wrong division or district shall 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.”

To

transfer a case pursuant to this section of the code, the Court
must first determine whether the case was filed in the wrong
district.

As noted above, Petitioner, relying on section 10 of

Title 9 of the federal code, contends that venue here is proper
because, he alleges, the arbitration award was made in Cincinnati.
Section 10 of Title 9 provides in relevant part that a court, “in
and for the district wherein the [arbitration] award was made” may
make an order vacating the award.

Thus, if the award was made in

this district, then this Court may properly hear Petitioner’s claim
for vacating the award, notwithstanding all of the other facts in
the complaint that demonstrate that the Northern District is the

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proper venue.
On the question of whether the award was made here in the
Southern District, Respondents are correct: Petitioner has not
shown that it was. Specifically, apart from Petitioner’s assertion
in the complaint that the award was made in Cincinnati, no evidence
in the record supports a conclusion that it actually was made here.
On the contrary, the record shows that the parties agreed that any
arbitration hearing would happen in Cleveland, Ohio and that the
parties never appeared at any hearing or other proceeding in
Cincinnati. Instead, it appears that no hearing occurred anywhere,
and the arbitrator made his decision on the basis of the paper
filings.
Petitioner asks the Court to make an inferential leap,
that because the arbitrator practices law in Cincinnati, the award
must have been “made” here.

The Court declines to make that leap,

especially since it is based solely on speculation and not on
evidence in the record.

But even if there were record evidence to

show that, for example, the arbitrator wrote his decision in
Cincinnati, as Respondents observe, “an arbitration award is ‘made’
in the district where the hearing is held, not the place from which
the award was written or mailed.” Warnaco, Inc. v. Sincere Garment
& Sporting Goods, Mfg., Co., 1990 U.S. Dist. LEXIS 8603, at *6–8
(S.D.N.Y. July 12, 1990).
Faced with a motion to transfer pursuant to 28 U.S.C. §

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1406, Petitioner bears the burden of showing that venue here is
proper.

See, e.g., Centerville ALF, Inc. v. Balanced Care Corp.,

197 F.Supp.2d 1039, 1046 (S.D. Ohio 2002).

As discussed above, he

has not carried that burden. Respondents have not moved to dismiss
but to transfer, and the Court finds that the interests of justice
would be best served by the latter course.1

Consequently, for the

foregoing reasons, the Court GRANTS Respondents’ Motion (doc. 4).
Accordingly, the Court DIRECTS the Clerk to transfer this matter to
the Northern District of Ohio.

SO ORDERED.

Dated: June 26, 2012

/s/ S. Arthur Spiegel
S. Arthur Spiegel
United States Senior District Judge

1

Because the Court finds that transfer is warranted under
28 U.S.C. § 1406, the Court need not reach the parties’ § 1404
arguments regarding the convenience of the parties and witnesses,
etc.
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