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Fitzgibbon v. Radack

United States District Court, E.D. Virginia, Richmond Division

February 6, 2019



          Robert E. Payne, Senior United States District Judge.

         This matter is before the Court on Jesselyn A. Radack's RENEWED MOTION TO TRANSFER VENUE (ECF No. 76). For the following reasons, the motion will be denied.


         Trevor Fitzgibbon instituted this action against Radack, claiming that she maliciously prosecuted and defamed him by falsely accusing him of sexual assault. See generally ECF No. 12.

         After the pre-trial conference and after she had filed various other motions, Radack instituted a bankruptcy action under Chapter 11 of the United States Bankruptcy Code in the United States Bankruptcy Court for the District of Columbia. She then filed a notice of removal to remove this case to the United States Bankruptcy Court for the Eastern District of Virginia, but the bankruptcy judge held that this removal was improper. Fitzgibbon v. Radack, No. 18-3096 (Bankr. E.D. Va. October 25, 2018). Thus, the action was remanded back to this Court.

         Pursuant to 11 U.S.C. § 362, this action was stayed with respect to Radack because she instituted the bankruptcy action. ECF No. 75. Further, Radack filed a motion to transfer the case. ECF No. 76. Fitzgibbon responded, ECF No. 77, and Radack replied. ECF No. 79.


         I. Section 1404 Governs Transfer of Venue When the Action Is Not Under Title 11.

         The first issue to be determined is whether 28 U.S.C. § 1404(a)[1] or 28 U.S.C. § 1412[2] should be the basis for determining whether a transfer is proper.

         The Fourth Circuit has not spoken on this issue, but the leading case by a district court in this circuit is from the Southern District of West Virginia. In Dunlap v. Friedman's, Inc., 331 B.R. 674 (S.D. W.Va. 2005), the court held that, when a party requests a transfer to a pending related-to bankruptcy proceeding in another district court, Section 1412 governs whether a transfer is appropriate. Id. at 680. The court did so because (1) the leading commentator on the issue said that Section 1412 should govern, id. at 677; (2) Section 1404 would thwart transfer in many cases, which would "dilute the well-settled presumption that 'related to' proceedings should be litigated in the 'home court, '" id. at 678 (quoting Hohl v. Bastian, 279 B.R. 165, 177-78 (W.D. Pa. 2002)); and (3) the legislative history of Sections 1404 and 1412 confirmed the court's view. Id. at 679-80. Other courts have followed Dunlap. See, e.g., Brown v. Wells Fargo, N/A, 463 B.R. 332, 338 (M.D. N.C. 2011); Creekridge Capital, LLC v. Louisiana Hosp. Ctr., LLC, 410 B.R. 623, 628 (D. Minn. 2009).

         But a recent decision by the United States Bankruptcy Court for the Southern District of New York challenges the Dunlap view. In Multibank, Inc. v. Access Global Capital LLC, 594 B.R. 618 (Bankr. S.D.N.Y. 2018), the bankruptcy court held that Section 1412 applies only to proceedings that arise "under" the Bankruptcy Code. Id. at 621. That was so, said the bankruptcy court, based on the plain language of Section 1412, because the phrases "related to" and "arises in" were left out of Section 1412. Id. at 622-23. So, a case "under title 11" must be one that asserts a bankruptcy claim. Id. at 623. The bankruptcy court in Multibank thought that the Dunlap court was incorrect because it had equated the language of Section 1475-which included the "arises in" and "related to" language-with that of Section 1412. Id. Therefore, Section 1412 could not apply to a transfer of a non-bankruptcy action, necessarily meaning that Section 1404 is the appropriate mechanism. See id. at 624. Other courts have also maintained that Section 1404(a) controls. See, e.g., Rumore v. Wamstad, No. 01-2997, 2001 WL 1426680, at *2 (E.D. La. Nov. 13, 2001) ("Since section 1412 does not contain the phrase, 'or related to,' most courts have found that motions to transfer actions 'related to' title 11 cases should be governed by section 1404, the general change of venue provision."); Tultex Corp. v. Freeze Kids, L.L.C., 252 B.R. 32, 36 n.4 (S.D.N.Y. 2000) (same).

         The Court finds the reasoning of Multibank more persuasive: the plain language of Section 1412 says: "A district court may transfer a case or proceeding under title 11 to a district court for another district." 28 U.S.C. § 1412 (emphasis added). This language teaches that the statute applies only to bankruptcy cases and proceedings because those are the only cases or proceedings filed "under title 11." Thus, the Court will examine the case under Section 1404 rather than Section 1412.[3]

         II. The Section 1404 Factors Weigh Against a Transfer

         Section 1404(a) says, "For 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 or to any district or division to which all parties have consented." The first inquiry is whether the claims "might have been brought" in the transferee forum. See id.; Byerson v. Equifax Info. Servs., LLC, 467 F.Supp.2d 627, 631 (E.D. Va. 2006). After that, the Court must ...

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