The Virginia Business Litigation Blog
Upon a showing of a change in circumstances since the suit was originally filed, a plaintiff can successfully move for a change of venue to a district where the case might have originally been brought if such a transfer would be convenient to parties and witnesses and would serve the interests of justice. A federal court in Hawaii engaged in a balancing test to determine whether a plaintiff could successfully transfer venue in Reyes v. Schuttenberg.
Lidinila Reyes sued her cousin, sister and niece for libel and slander in Hawaii. Reyes’ cousin lives in New York, and her sister and niece live in Hawaii. Reyes lived with her sister in Hawaii from 2007 until 2012, when Reyes moved to Nevada. During the years Reyes lived in Hawaii, defendants allegedly made defamatory statements to relatives and acquaintances outside of Hawaii which Reyes contends injured her relationships with her children and other relatives and harmed her professional reputation, livelihood, and health. Reyes asserts that defendants delivered much of the defamatory matter to her daughter in Nevada via telephone, Facebook, email and in person. Comments also were allegedly communicated to other parties in Nevada as well as to parties in California and North Carolina.
Reyes asserts that when she learned of defendants’ actions, she moved out of her sister’s house and suffered emotional and physical setbacks to her already fragile health. Due to health concerns, Reyes could not travel to her home in Nevada, so she filed the lawsuit in Hawaii. Three months after filing in Hawaii, the court denied Reyes’ Motion to Transfer Venue to Nevada but did so without prejudice and granted Reyes leave to re-file a Motion to Transfer Venue should facts change. Two months later, Reyes renewed her Motion to Transfer Venue.
A federal district court may transfer an action to any other district where it might have been brought if such a transfer is convenient to parties and witnesses and is in the interests of justice. To determine whether the convenience of parties and the interests of justice are served, a court balances several factors: (1) the location where agreements were negotiated and executed; (2) the state that is most familiar with the governing law; (3) the plaintiff’s choice of forum; (4) the parties’ contacts 
with the forum; (5) the contacts relating to plaintiff’s cause of action in the chosen forum; (6) the cost of litigation in the competing forums; (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses; and (8) the ease of access to sources of proof. The forum state’s public policy is also a significant factor. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). Plaintiffs and defendants who move to transfer venue are held to different standards–where a plaintiff seeks a change in venue, she must show a change of circumstances.
Here, Reyes argued that circumstances changed when her health improved and she was able to leave Hawaii and move to her home in Nevada. Reyes submitted medical certifications and evidence of her fragile condition and risk of relapse in support of her argument. Additionally, Reyes’ health coverage was cancelled such that she no longer had access to medical treatment in Hawaii. The court held that Reyes’ personal circumstances had changed such that a venue transfer depended on whether she could have originally brought the action in Nevada and a balancing of the Jones factors.
Venue is proper in a judicial district in which a substantial part of the events giving rise to the claim occurred. “Substantial” does not mean “majority,” and Reyes need only show that significant events occurred in Nevada. Reyes contended that defendants made a significant number of the statements giving rise to her claim to her daughter while her daughter resided in Nevada. She also asserted that defendants made some of the statements while physically present in Nevada. Given these facts, the court held that Reyes could have brought the action in Nevada.
The court went on to examine whether transfer would be convenient to the parties and witnesses and whether the interests of justice favored transfer by applying the Jones balancing test. The court held that the first factor favored a transfer because the majority of events giving rise to Reyes’ claim occurred in Hawaii and Nevada and were received in Nevada. Both Hawaii and Nevada apply the law of the state with the most significant relationship to the parties and subject matter, so the second factor was neutral. The deference usually given to a plaintiff’s choice of forum does not apply with as much force where the plaintiff is the one seeking to transfer venue. However, here, Reyes did not chose an improper forum and did not appear to be forum shopping. Rather, she filed in Hawaii to preserve her claims until she was well enough to travel home to Nevada. Accordingly, the court granted deference to her choice of venue. The court found the fourth factor, parties’ contacts with Nevada, to be neutral as a transfer would be more convenient for Reyes and her cousin but less so for her sister and niece. Cost of litigation in the different venues was also a neutral factor because some parties would incur airfare costs regardless of venue. The court found that neither district had a distinct advantage to compel unwilling witnesses but that Nevada was a more convenient venue for Reyes’ daughter, the sole witness the parties identified. Access to sources of proof was equal in both venues and thus the court found this factor to be neutral. Finally, the court held that the interests of justice favored transfer because risks to Reyes’ health if required to litigate in Hawaii outweighed any inconvenience to defendants litigating in Nevada.
Based on its examination of the Jones factors and a consideration of the interests of justice, the court held that a transfer to Nevada was appropriate and it granted Reyes’ Motion to Transfer.