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Defendant's medical condition won't overcome choice of venue.

Byline: Virginia Lawyers Weekly

Although a medical condition made it difficult for the defendant to travel to the plaintiff's chosen venue, she was not entitled to transfer the action because the plaintiff had a strong interest in keeping the action in the venue of his choice and the chosen venue was not shown to be inconvenient for a majority of the witnesses.


Plaintiff Trevor Fitzgibbon brought this action against defendant Jesselyn A. Radack, claiming that she maliciously prosecuted and defamed him by falsely accusing him of sexual assault. Radack subsequently filed for Chapter 11 bankruptcy in the U.S. Bankruptcy Court for the District of Columbia. She then filed a notice of removal to remove this action to the U.S. Bankruptcy Court for the Eastern District of Virginia. The bankruptcy judge held that removal was improper, and the action was remanded back to this court.

Radack now moves to transfer the action to the U.S. District Court for the District of Columbia.


The first question is whether 28 U.S.C. 1404(a) or 28 U.S.C. 1412 governs the motion to transfer in this case. The plain language of 1412 says that a district court may transfer a case or proceeding arising under title 11 to a district court for another district. While courts have split on this issue, we hold that 1412 only governs bankruptcy cases and proceedings because those are the only cases or proceedings that are filed under title 11. Because this is not a bankruptcy case or proceeding, the motion to transfer is governed by 1404(a).

To be entitled to transfer under 1404(a), Radack must demonstrate that the balance of convenience among the parties and witnesses strongly favors the transfer sought.

Fitzgibbon's choice of venue does not carry its usual strong weight because Fitzgibbon no longer lives here, and the underlying facts did not occur here. Nevertheless, his choice is still entitled to significant weight because Fitzgibbon did reside here during the relevant events, most of his witnesses live here and the effects of the alleged defamatory remarks were felt in this forum.

The next factor to be considered is the convenience to the parties. This factor weighs slightly in favor of transfer because Radack's medical condition makes it difficult for her to travel to Richmond and Fitzgibbon has not provided any reason why it would be significantly more difficult for him to travel to the District of Columbia instead of Richmond.

Aside from providing information as to the location of the witnesses involved in this case, neither Radack nor Fitzgibbon has explained about what information each witness will provide, how important they are to the case, or why the witnesses would be inconvenienced by having to travel to one forum over the other. However, the burden is not on Fitzgibbon to show that the current forum is convenient or that transfer would be inconvenient. It is Radack who bears the burden of proving that the current choice of forum is inconvenient for the witnesses, and she has failed to carry this burden.

Radack has likewise failed to carry her burden of proving that the transfer would promote the interests of justice. It appears that the substantive law that would apply to the claims asserted in this case is the same in both D.C. and Virginia, and, even if the substantive law is different, Radack fails to offer any reason why it would be difficult for this court to apply D.C. law to the facts of this case should that be required. In addition, while the underlying events did not occur in this forum, we cannot foresee of any circumstances that would necessitate a visit to the locations of the underlying events.

In sum, even though Radack may have some difficulty getting to Richmond due to her health condition, that factor does not outweigh Fitzgibbon's choice of forum, the convenience of the witnesses, or the interests of justice.

Motion denied.

Fitzgibbon v. Radack, Case No. 3:18-cv-247, Feb. 6, 2019. EDVA at Richmond (Payne). VLW 019-3-062. 14 pp.

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Title Annotation:Fitzgibbon v. Radack, U.S. District Court for the Eastern District of Virginia
Publication:Virginia Lawyers Weekly
Date:Mar 8, 2019
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