Malvino v. Delluniversita

Filing 20

ORDER denying 9 Motion to Transfer Case.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(amireles, )

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ALBERT P. MALVINO,
Plaintiff,
VS.
PAUL A. DELLUNIVERSITA, et al,
Defendants.

§
§
§
§ CIVIL ACTION NO. 2:12-CV-401
§
§
§
§

ORDER ON MOTION TO TRANSFER VENUE
Before the Court is Defendants’ Motion to Transfer Venue (D.E. 9). Plaintiff, as
Representative of the Estate of Bonnie Pereida, Deceased, has filed suit against
Defendants Paul A. Delluniversita and PCA Collectibles, Inc. alleging mail fraud and
wire fraud under the Racketeer Influenced and Corrupt Organizations Act (RICO),
common law fraud, and violations of the Texas Deceptive Trade Practices Act (DTPA),
along with numerous other causes of action, with respect to multiple telephone sales of
collectible coins to Plaintiff’s Decedent. Defendants seek a transfer of venue to the
Eastern District of New York under forum non conveniens principles. 28 U.S.C. §
1404(a). For the reasons set out below, the Motion is DENIED.
“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 statute indicates, and the case law is well-established, that there
are private and public factors to consider. Each will be considered in turn, with the
1/6

burden of proof to show good cause for the transfer resting on the Defendants as
movants. In re Volksagen of America, Inc., 545 F.3d 304, 315 (5th Cir. 2008).
The private interest factors are: “(1) the relative ease of access to 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.” In re Volkswagen AG, 371 F.3d 201,
203 (5th Cir.2004) (per curiam; citing Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.
6, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981)).
Defendants discount the convenience of the Plaintiff and his sources of proof,
alleging that the only witness to the transactions from the Plaintiff’s perspective is
deceased and that the Dead Man’s Rule will preclude Plaintiff’s evidence. At this time,
the application of the Dead Man’s Rule is speculative. It is apparent that there will be
contested issues and thus witness testimony regarding Decedent’s alleged infirmity,
investment experience, and capacity to make investment decisions.
Plaintiff has explained the identity and necessity of his appraisers as “key”
witnesses, that they are not retained or controlled by him, and thus compulsory process
available in Texas is important to his case. In their Motion, Defendants did not name any
particular witnesses they intend to call, but did mention their appraisal experts from New
York in their Reply. This argument simply trades the inconvenience of Defendants for
the equivalent inconvenience to Plaintiff, which is not an appropriate basis for a transfer
of venue. Scheidt v. Klein, 956 F.2d 963, 966 (10th Cir. 1992); Dupre v. Spanier Marine
Corp., 810 F.Supp. 823, 826 (S.D. Tex. 1993).
2/6

Plaintiff has also demonstrated that he intends to offer the coins for the jury’s
view. In the event that such evidence is permitted, there are logistical issues regarding
the safekeeping of the evidence that favor this Court’s venue. In sum, the private factors
weigh against the requested transfer of venue.
Defendants claim to have a mandatory forum selection clause appearing in notes
titled “Terms of Sale,” placed at the bottom of their invoices for the coins sold. That
clause reads, “5. All transactions are deemed to take place in New York, as a place of
venue, under the Suffolk County and New York State Law.” D.E. 9-2 (emphasis added).
Questions have been raised as to whether this provision is a contractual term, is
ambiguous, and should be construed against Defendants as drafters. There are also
questions whether, if enforceable at all, it states a mandatory or permissive venue.
The Court declines to apply this “term of sale” as a contractual determination of
mandatory venue. It is obscure boilerplate, added by Defendants for the convenience of
Defendants, bears no indication of being a negotiated term, and does not unequivocally
treat New York as exclusive venue. Tenneco, Inc. v. Greater LaFourche Port Comm’n,
427 F.2d 1061, 1065 (5th Cir. 1970) (construing ambiguous terms against the drafter);
Keaty v. Freeport Indonesia, Inc., 503 F.2d 955, 956 (5th Cir. 1974) (per curiam; forum
selection clause is only permissive when it does not prohibit litigation elsewhere); Excell,
Inc. v. Sterling Boiler & Mechanical, Inc., 106 F.3d 318, 321 (10th Cir. 1997) (describing
the difference between mandatory and permissive venue provisions); Couch v. First
Guaranty Limited, 578 F.Supp. 331, 333 (N.D. Tex. 1984) (refusing to enforce forum

3/6

selection clause where obscure, boilerplate, for convenience of drafter, and not freely
bargained for); Cutter v. Scott & Fetzer Co., 510 F.Supp. 905 (E.D. Wis. 1981) (same).
The cases upon which Defendants rely for their proposition that this clause was a
mandatory forum selection clause are distinguishable on the language of the respective
terms. E.g., In re Fireman’s Fund Ins. Co., 588 F.2d 93, 94 (5th Cir. 1979) (“the venue of
such suit or action shall be laid in the County of Essex and State of New Jersey”
(emphasis added)); Sterling Forest Associates v. Barnett-Range Corp., 840 F.2d 249, 250
(4th Cir. 1988) (“the parties agree that in any dispute jurisdiction and venue shall be in
California” (emphasis added)), abrogated on other grounds, Lauro Lines S.R.L. v.
Chasser, 490 U.S. 495, 109 S.Ct. 1976 (1989) (denying interlocutory appeal of venue
decision); Nascone v. Spudnuts, Inc., 735 F.2d 763, 765 (3rd Cir. 1984) (“venue for any
proceeding relating to the provisions hereof shall be Salt Lake County, State of Utah”
(emphasis added)). The language of the subject clause merely states that New York is
“a” place of venue.

Even if the Court were inclined to disregard the other issues

surrounding the negotiation and placement of the clause, it is at best permissive and does
not eliminate a Texas action.
The public interest factors to be considered 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.” Volkswagon AG, supra.

4/6

The Federal Court Management Statistics maintained by the Administrative Office
of the United States Courts reflect a disadvantage in trying this case in the Eastern
District of New York, as the per-judgeship civil filings and dispositions indicate heavier
caseloads and longer time frames for completion of cases. Although there is a judicial
vacancy in the Corpus Christi Division, given the other factors to be weighed and
balanced, this Court’s current workload is not a sufficient basis for transfer of venue.
There are no arguments in favor of transfer that are related to the “local interest in
having localized interests decided at home.” The effects of the alleged wrongdoing are
felt in Corpus Christi, Texas. Defendants have not raised any issue that there are local
interests in New York that must be addressed.
With respect to the governing law, the Court has rejected application of the “terms
of sale” as a forum selection clause. The Court has not been presented with, and has not
decided, any question of choice of law that makes any law other than Texas law the law
governing this case. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 (1938) (where
federal jurisdiction is based on diversity, the law of the forum state generally governs).
Thus, this Court’s familiarity with Texas law weighs against transfer as do the public
factors, generally.
As the Fifth Circuit observed, these factors “are not necessarily exhaustive or
exclusive. Moreover, we have noted that ‘none . . . can be said to be of dispositive
weight.’ ” Volkswagen of America, 545 F.3d at 315 (quoting Action Indus., Inc. v. U.S.
Fid. & Guar. Corp., 358 F.3d 337, 340 (5th Cir. 2004)). With the burden of showing
good cause for the transfer of this case under the doctrine of forum non conveniens placed
5/6

on Defendants, and having weighed the factors that the parties have briefed as relevant,
the Court holds that transfer of venue is not warranted in this case. The Motion to
Transfer Venue (D.E. 9) is DENIED.
ORDERED this 1st day of May, 2013.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

6/6