Securities and Exchange Commission v. OVO Wealth Management, LLC et al

Filing 50

ENTRY AND ORDER denying 39 Defendant William Apostelo's Motion to Change Venue. Signed by Judge Thomas M. Rose on 8-16-2018. (de)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
UNITED STATES SECURITIES
AND EXCHANGE COMMISSION,
Plaintiff,
v.
WILLIAM M. APOSTELOS, et al.,
Defendants.

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Case No. 1:15-cv-699
Judge Thomas M. Rose

ENTRY AND ORDER DENYING DEFENDANT WILLIAM M. APOSTELOS’S
MOTION FOR CHANGE OF VENUE (DOC. 39)
This case is before the Court on the Motion for Change of Venue (Doc. 39) filed by
Defendant William M. Apostelos. Mr. Apostelos seeks to move this matter from this District to
the Northern District of Ohio, the same district where he is currently incarcerated. Plaintiff
United States Securities and Exchange Commission (the “Commission”) filed an Opposition (Doc.
42) to the Motion for Change of Venue, in response to which Mr. Apostelos has filed a Reply
(Doc. 49). This matter is therefore ripe for review.
Under 28 U.S.C. § 1404(a), the Court may “[f]or the convenience of parties and witnesses,
in the interest of justice . . . transfer any civil action to any other district or division where it might
have been brought or to any district to which all parties have consented.” This statute “is intended
to place discretion in the district court to adjudicate motions for transfer according to an
individualized, case-by-case consideration of convenience and fairness.” Stewart Org., Inc. v.
Ricoh Corp., 487 U.S. 22, 29 (1988) (internal quotation marks and citation omitted).
When considering a transfer request under Section 1404(a), the first question is whether

the action “might have been brought” in the transferee court. Jamhour v. Scottsdale Ins. Co., 211
F. Supp. 2d 941, 945 (S.D. Ohio 2002). If the answer is “yes,” the Court then considers “the
private interests of the parties, including their convenience and the convenience of potential
witnesses, as well as other public-interest concerns, such as systemic integrity and fairness, which
come under the rubric of ‘interests of justice.’” Moses v. Bus. Card Exp., Inc., 929 F.2d 1131,
1137 (6th Cir. 1991) (quoting Stewart, 487 U.S. at 30). The party seeking transfer has the burden
of showing that transfer is warranted. Copeland Corp. v. Choice Fabricators, Inc., 492 F. Supp.
2d 783, 789 (S.D. Ohio 2005).
As to the first question, Mr. Apostelos asserts that his business partner in OVO LLC and
Midwestern L.L.C. lived in the Northern District of Ohio and solicited and brokered many clients
from his home there. The Court therefore accepts, for purposes of the Motion before it, that this
action might have been brought in the Northern District.
Under the second part of the analysis, the Motion for Change of Venue fails.

Mr.

Apostelos argues that transfer is appropriate because (1) “no party currently lives or otherwise
resides or does business in the Southern District of Ohio,” which makes litigating in this District
inconvenient, and (2) “due to the publicity associated with [his] criminal charges and subsequent
conviction . . . it would be impossible to obtain a fair trial on the S.E.C.’s allegations should the
case go to trial.” (Doc. 39 at 2.) These arguments do not support transfer of this action.
Transfer to the Northern District of Ohio may be more convenient for Mr. Apostelos, but
it would be less convenient for numerous other individuals involved in this case. Defendant
Connie Apostelos is incarcerated in Kentucky, closer to the Southern District. She has not
responded to the Motion for Change of Venue, but it cannot be disputed that any court in the

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Northern District is farther away from her current place of incarceration. In addition, the majority
of the investors who were victims of the alleged fraudulent scheme in this case reside in the
Southern District. (See Doc. 42-1 at ¶ 8 (stating 250 investors reside in the Southern District,
whereas only 2 reside in the Northern District).) That the alleged fraud was perpetrated primarily
in the Southern District, and more specifically the Dayton area, is another reason why retaining
jurisdiction in this District is appropriate. See Jamhour, 211 F. Supp. 2d at 945 (factors relevant
to consideration of the public interest under § 1404(a) include “[d]ocket congestion, the burden of
trial to a jurisdiction with no relation to the cause of action, the value of holding trial in a
community where the public affected live, and the familiarity of the court with controlling law”).
Retaining this case in the Southern District also advances the interests of judicial economy.
As noted by the Commission, this Court presided over four related criminal cases, including the
criminal case that led to Mr. Apostelos’s imprisonment, and four other related civil cases. (Doc.
42 at 8-9 (citing cases).) This Court’s familiarity with the underlying facts weighs heavily against
transferring this case to a new judge in another district. See Proctor & Gamble Co. v. Team
Technologies, Inc., Case No. 1:12-cv-552, 2012 WL 5903126, at *7 (S.D. Ohio Nov. 26, 2012).
Finally, Mr. Apostelos’s argument that he cannot obtain a fair trial in this District due to
the publicity given his case is not well-founded. The standard for transferring a case due to
prejudice resulting from pretrial publicity is high and must “be sustained not as a matter of speculation
but as a demonstrable reality.” United States v. Angelus, 258 Fed. Appx. 840, 844 (6th Cir. 2007)
(quoting United States ex rel. Darcy v. Handy, 351 U.S. 454, 462 (1956)). Under Fed. R. Crim. P.
21(a), a change of venue is proper only if “the court is satisfied that so great a prejudice against the
defendant exists in the transferring district that the defendant cannot obtain a fair and impartial trial
there.” Fed. R. Crim. Proc. 21(a). In Angelus, the Sixth Circuit affirmed the denial of a request to

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transfer venue because the limited media coverage of the alleged crime “did not create an
inflammatory, circus-like atmosphere which pervaded both the courthouse and surrounding
community.” 258 F. App’x at 844. Similarly, there is no evidence of an inflammatory, circus-like
atmosphere pervading the community in this case. The Sixth Circuit continued, however, that even if
there had been extensive media coverage in Angelus, it still would have been inadequate to create a
presumption of prejudice. Id. “[E]xtensive knowledge in the community of either the crimes or the
putative criminal is not sufficient by itself to render a trial constitutionally unfair.” Id. at 845 (quoting
Dobbert v. Florida, 432 U.S. 282, 303 (1977)). “Rather, a defendant must show a ‘trial atmosphere .
. . utterly corrupted by press coverage.’” Id. (quoting Murphy, 432 U.S. at 303). As Mr. Apostelos
has not met this high standard, transfer on the grounds that he cannot obtain a fair trial in this District
is not warranted.
For the above reasons, the Court DENIES the Motion for Change of Venue (Doc.
39). DONE and ORDERED in Dayton, Ohio, this Thursday, August 16, 2018.

s/Thomas M. Rose
________________________________
THOMAS M. ROSE
UNITED STATES DISTRICT JUDGE

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