Dole v. Adams et al

Filing 69

RULING denying 59 Motion to Change Venue. Signed by District Judge J. Garvan Murtha on 2/10/2015. (esb)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
C. MINOT DOLE,

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Plaintiff,
v.
WILLIAM ADAMS,

Case No. 1:12-cv-24-jgm

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Defendant.
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RULING ON MOTION TO TRANSFER VENUE
(Doc. 59)
I.

Introduction
Plaintiff C. Minot Dole commenced this diversity action in February 2012. He alleges

Defendant William Adams has committed fraud under common law and the Vermont Consumer
Fraud Act, 9 Vt. Stat. Ann. §§ 2451-2480g, causing Plaintiff damages exceeding $4,000,000. See
generally Doc. 2 (Am. Compl.). Defendant moves to change venue to the United States District
Court for the Southern District of California. (Doc. 59). Plaintiff opposes the transfer. (Doc. 63.)
For the reasons stated below, Defendant’s motion is denied.
28 U.S.C. § 1404(a) provides “[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.” Venue is proper in a diversity case in any district where a substantial part of
the events giving rise to the claim occurred, a substantial part of the property that is the subject of
the action is situated, or where a defendant corporation is subject to personal jurisdiction. 28 U.S.C.
§§ 1391(a)(2), (c).
Defendant does not dispute that venue is proper in this district, and therefore bears the
burden of showing why transfer is appropriate. See Country Home Prods., Inc. v. Schiller-Pfeiffer,
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Inc., 350 F. Supp. 2d 561, 569 (D. Vt. 2004) (citing Ford Motor Co. v. Ryan, 182 F.2d 329, 330
(2d Cir. 1950)). Defendant must present clear and convincing evidence that the balance of
convenience favors transfer to the Southern District of California. See Anichini v. Campbell,
2005 WL 2464191 *6 (D. Vt. 2005) (citing Tom and Sally’s Handmade Chocolates, Inc. v.
Gasworks, Inc., 977 F. Supp. 297, 302 (D. Vt. 1997) and Factors, Etc., Inc. v. Pro Arts, Inc.,
579 F.2d 215, 218 (2d Cir. 1978), abrogated on other grounds by Pirone v. MacMillan, Inc., 894 F.2d
579 (2d Cir. 1990)). “Absent a clear and convincing showing that the balance of convenience
strongly favors an alternate forum, discretionary transfers are not favored.” See Tom and Sally’s
Handmade Chocolates, 977 F. Supp. at 302. A mere shifting of inconveniences is not grounds for
transfer. Finkielstain v. Seidel, 692 F. Supp. 1497, 1509-10 (S.D.N.Y. 1988), aff’d in part, rev’d in
part, 857 F.2d 893 (2d Cir. 1988).
Defendant asserts Plaintiff could have brought this case in the Southern District of
California because he resides in San Diego, California, and the alleged fraudulent statements were
made during a meeting in San Diego. (Doc. 59 at 3-4.) He argues the convenience of the parties
and witnesses would be “promoted” by a transfer because all his witnesses are located in San Diego
and he cannot compel them to attend trial in Vermont. Id. at 5.
When considering a motion to transfer, the Court must consider a variety of factors,
including: (1) convenience of the parties; (2) convenience of witnesses; (3) relative means of the
parties; (4) locus of operative facts and relative ease of access to sources of proof; (5) attendance of
witnesses; (6) weight accorded the plaintiff’s choice of forum; (7) calendar congestion; (8) desirability
of having the case tried by a forum familiar with the substantive law to be applied; (9) practical
difficulties; and (10) how best to serve the interest of justice, based on assessment of the totality of

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material circumstances.” Country Homes Prods., Inc., 350 F. Supp. 2d at 570 (internal quotation
marks and citation omitted).
Based on an evaluation of these factors, the Court concludes Defendant has not met his
considerable burden of demonstrating the propriety of transferring this matter. Although it is true
the employees and documents of DIS Partners, LLC, and the one in-person meeting between the
parties occurred in California, Plaintiff and his business advisors are in the Northeast. Significant
communication also occurred electronically. Plaintiff’s choice of forum is deserving of some
deference and the complaint raises Vermont statutory and state common law claims that this Court
is likely to be more familiar with than a court in the Southern District of California. Here, a transfer
would simply shift the inconvenience from one party to the other. Accordingly, the Court declines
to exercise its discretion to transfer a three-year old case with a current trial ready date of March 15,
2015.
Defendant William Adams’ motion to transfer venue (Doc. 59) is DENIED.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 10th day of February, 2015.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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