United States District Court, E.D. Virginia, Richmond Division
E. Payne, Senior United States District Judge.
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.
Fitzgibbon instituted this action against Radack, claiming
that she maliciously prosecuted and defamed him by falsely
accusing him of sexual assault. See generally ECF
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.
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.
Section 1404 Governs Transfer of Venue When the Action Is Not
Under Title 11.
first issue to be determined is whether 28 U.S.C. §
1404(a) or 28 U.S.C. § 1412 should be the
basis for determining whether a transfer is proper.
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).
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).
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
The Section 1404 Factors Weigh Against a Transfer
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 ...