Virginia Lawyers Weekly VA Lawyers Weekly
A woman’s suit against defendants, law enforcement officials and Taser International, for the death of her husband who was struck in the chest by a Taser in an incident in Appottomax County, will not be transferred from Charlottesville U.S. District Court to another division in the Western District, on defendants’ motions.
Plaintiff’s choice of venue demands less deference when the suit is not filed in the district and division in which he resides. Although the degree of deference due to the plaintiff may vary, defendant still shoulders the burden to show the balance of equities in its favor and that judicial economy and convenience to all parties favors suit in another forum. Federal courts in Virginia often assess the following factors transferring a case to a different venue: the convenience of the witnesses; the convenience of the parties; systematic integrity; fairness; the availability of compulsory process; the cost of obtaining witnesses’ attendance; ease of access to sources of proof; and the interest in having local controversies decided at home.
The fact that this case could have been filed in the Lynchburg Division does not inevitably result in the conclusion that it should be transferred.
Because the only claim that permitted venue in state court (a claim under the Virginia Tort Claims Act) has since been nonsuited – and further, nonsuited before the defendants removed the case to federal court – defendants appear to argue the subsequent removal to federal court in the Charlottesville Division is somehow tainted by the fact that the reason or the case originally being in state court is now moot. Defendants also argue this case could not properly have been brought originally in Charlottesville federal court under 28 U.S.C. § 1391(b) because all the relevant events occurred in the Lynchburg Division.
Local venue rules for this district would allow for venue in the Charlottesville Division because Taser International is subject to personal jurisdiction in this division. Taser is subject to personal jurisdiction in this division. In any event, such an argument is properly made under 28 U.S.C. § 1406(a); defendants’’ motions were filed under § 1404(a), not § 1406(a).
Defendants have failed to show the balance of equities tilts in their favor and that judicial economy and convenience to all parties favor suit in the Lynchburg Division.
The court will deny defendants’ motions to transfer venue.
Russell v. Wright (Conrad) No. 3:11cv00075, March 12, 2012; USDC at Charlottesville, Va. VLW 012-3-333, 15 pp.
