Gaffney v. Shelton et al
Filing
36
MEMORANDUM OPINION AND ORDER denying 26 Motion to Dismiss; denying 26 Motion to Change Venue. Signed by Judge William K. Sessions III on 4/26/2012. (jam)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
PATRICK GAFFNEY,
:
Plaintiff,
v.
NEAL SHELTON, Individually
and d/b/a NEAL’S VINTAGE
GUITARS, NEAL’S MUSIC, and
NICHOLAS PANICCI
Defendants.
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Case No. 2:11-CV-00189
MEMORANDUM OPINION and ORDER
This claim involves the sale of a vintage guitar.
Patrick
Gaffney brought suit against Neal Shelton, individually and
doing business as Neal’s Vintage Guitars and Neal’s Music, and
Nicholas Panicci (“Defendants”).
Earlier in this case,
Defendants moved to dismiss the case due to improper venue.
That motion was denied.
Based on a declaration filed subsequent
to the original motion, Defendants renew their motion to dismiss
due to improper venue, and in the alternative, request that
venue be transferred to the Central District of California.
For
the reasons that follow, both motions are DENIED.
FACTUAL BACKGROUND
During July and August of 2007 Gaffney negotiated and
executed the purchase of a 1959 Fender Stratocaster guitar in
original “blue sparkle” finish from Panicci, with Shelton acting
as Panicci’s agent.
Panicci and Shelton live in California,
Gaffney lives in Vermont.
Gaffney and Shelton agreed on a
purchase price of $150,000 for the guitar, its case, and
assorted memorabilia.
On August 8th and 9th of 2007, Gaffney
wired Panicci $130,000 cash, and paid the remaining balance by
shipping Panicci three guitars.
59 Stratocaster on August 10th.
In turn, Gaffney received the
Upon receipt, Gaffney determined
that the guitar was not in fact a 59 Stratocaster with blue
sparkle finish.
Gaffney attempted to return the guitar pursuant
to an agreed upon 24 hour return period, but Panicci’s attorney
advised Gaffney that the guitar was original as advertised and
that a return would not be accepted.
Gaffney then brought the
present suit in July 2011.
Defendants have already challenged venue once, and this
Court found venue to be proper in Vermont.
Defendants renew
their challenge here on the basis of a declaration filed by Dan
Duehren.
Duehren is a guitar seller who was involved in the
early stages of the transaction at issue, and who was previously
named as a defendant in this matter.
Duehren’s declaration
describes previous business transactions he has conducted with
Gaffney, as well as his discussions with Gaffney about the
Stratocaster.
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DISCUSSION
I. Dismissal Pursuant to 28 U.S.C. § 1406(a)
Defendants renew their motion dismiss for improper venue on
the basis of “newly discovered” facts.
Defendants claim that
the Declaration of Dan Duehren (“Duehren Declaration” ECF No.
26, Exhibit A) provides support for their contention that “well
before [Gaffney] had direct contact with Defendants related to
the Guitar, he was engaged in business in California involving
the investigation and due diligence of the very same Guitar.”
Def.’s Mot. 7.
Additionally, Defendants argue that “these facts
were not available to [them] prior to the filing” of the
original motion to dismiss due to improper venue.
Def.’s Mot.
3.
The Defendants filed their original motion to dismiss on
September 12, 2011.
The Duehren Declaration was filed with this
Court four days later, on September 16.
Gaffney responded to
the motion on October 12, and Defendants replied on October 26.
Thus, Defendants were able to weigh in on the original motion
some six weeks after the filing of the Duehren Declaration, and
in fact, cited to the Duehren declaration multiple times in its
reply of October 26.
It is clear then, that the facts contained
in the Duehren declaration are not “new,” and should not change
the Court’s prior ruling.
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Regardless, Defendants ask that the Court “include the
negotiations between [Gaffney] and [Duehren] in the balancing of
factors to determine where a substantial part of the transaction
occurred,” and Defendants argue that this prior contact with
Duehren “significantly tip[s] [the] balance” of events involving
the sale of the guitar “in favor of California.”
Id. at 7-8.
Defendant’s fail, however, to cite to any authority to suggest
that a “balancing test” is involved in determining “where a
substantial part of [a] transaction occurred.”
As the Court pointed out in its prior opinion, “[v]enue may
be proper in more than one district, and a plaintiff need only
establish that a substantial part of the event occurred here
even if a great part of the event occurred elsewhere.”
ECF No.
20 at 13 (emphasis added) (citing Country Home Products, Inc. v.
Schiller-Pfeiffer, Inc., 350 F. Supp. 2d 561, 568 (D. Vt. 2004).
The Court then held that because “negotiations for and
performance of the contract took place in both California and
Vermont . . . venue is proper in Vermont as well as in
California.”
Id. at 14.
The suggestion that a “greater” part
of the event than previously thought occurred in California does
not change the Court’s previous finding that a substantial part
of the event occurred in Vermont.
Accordingly, venue remains
proper in Vermont, and Defendants’ motion to dismiss is DENIED.
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II. Transfer Pursuant to 28 U.S.C. § 1406(a)
In the alternative, Defendants request that the Court
transfer venue to the Central District of California pursuant to
28 U.S.C. § 1404(a), which provides that “[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.”
1404(a).
28 U.S.C. §
In deciding whether to grant a transfer a District
Court must consider several factors, such as:
(1) the plaintiff's choice of forum, (2) the
convenience of witnesses, (3) the location of relevant
documents and relative ease of access to sources of
proof, (4) the convenience of parties, (5) the locus
of operative facts, (6) the availability of process to
compel the attendance of unwilling witnesses, [and]
(7) the relative means of the parties.
D.H. Blair & Co., Inc. v. Gottdiener, 462 F.3d 95, 106-07 (2d
Cir. 2006) (quoting Albert Fadem Trust v. Duke Energy Corp., 214
F.Supp.2d 341, 343 (S.D.N.Y.2002)) (internal quotation marks
omitted).
Defendants have “the burden of establishing that this
action should be transferred,” and “[a]bsent a clear and
convincing showing that the balance of convenience strongly
favors an alternate forum, discretionary transfers are not
favored.”
Tom and Sally’s Handmade Chocolates, Inc. v.
Gasworks, Inc., 977 F. Supp. 297, 302 (D. Vt. 1997) (internal
citations omitted).
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The plaintiff’s choice of forum “is entitled to substantial
weight.”
James Maroney, Inc. v. Flury & Co., Ltd., No. 5:09-cv-
252-cr, 2010 WL 3322920, *9 (D. Vt. May 28, 2010) (citing
Bridgeport Machines, Inc. v. Alamo Iron Works, Inc., 76
F.Supp.2d 214, 217 (D.Conn. 1999)).
Moreover, “[w]here the
balance of convenience is in equipoise, plaintiff's choice of
forum should not be disturbed.”
Sollinger v. NASCO Intern.,
Inc., 655 F.Supp. 1385, 1390 (D. Vt. 1987) (quoting Ayers v.
Arabian American Oil Co., 571 F.Supp. 707, 709 (S.D.N.Y. 1983))
(internal quotation marks omitted).
Defendants’ argument for transfer focuses largely on the
availability of two witnesses, the Duehrens, who Defendants
expect will be able to testify to the authenticity of the
guitar.
The Defendants also raise concerns about the
convenience of three other California witnesses.
However,
Defendants proffer only that those witness would be able to
testify to Gaffney’s business contacts in California, and it is
unclear why those witnesses would be necessary or relevant at
trial.
Additionally, Defendants express concern about the
availability and convenience of the Fender Musical Instrument
Corporation, which is located in California.
As a major
corporation, Fender should be able to reasonably tolerate the
inconvenience of litigation in Vermont.
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On the other hand, transferring this case to California
would raise issues of availability and convenience for a number
of Plaintiff’s witnesses.
Gaffney argues that there are nine
witnesses located in the contiguous states of New York, Vermont,
and New Hampshire who would be required to travel to California
should this case be transferred there.
Moreover, this Court has
already found that “litigation in California would be an equal
burden on Gaffney as litigating in Vermont would be on
Defendants.”
ECF No. 20 at 12.
With respect to the other factors in the analysis, none
weigh strongly in favor of the Defendants.
The transaction took
place in both California and Vermont and sources of proof are
located in both states.
Because Defendants have failed to make an adequate showing
that the balance of convenience strongly favors an alternate
forum, their motion to transfer venue is DENIED.
CONCLUSION
For the reasons set forth above, Defendants’ motion to
dismiss due to improper venue, or in the alternative, to
transfer venue, is DENIED.
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Dated at Burlington, Vermont this 26th day of April, 2012.
/s/ William K. Sessions III
William K. Sessions III
District Judge
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