Hi folks - It's been a while since I've posted but I've opened my own practice in Virginia and am now practicing consumer law (to include FDCPA/FCRA cases). I am in the middle of a federal case right now and am scheduled for oral argument tomorrow morning on the defendant's motion to transfer the case from Virginia to Kansas based on 28 USC 1404(a) which deals with forum non conveniens. The case was filed in state court (VA), removed by the defendant to federal court (VA) and now they want to transfer the case out to Kansas which is where the defendant CA does business. When considering a motion to transfer based on 1404(a), a court must consider: 1) plaintiff's choice of where to bring the case (and give his decision great deference) 2) convenience of the parties and witnesses, and 3) the "interests of justice" which itself has 4 subparts 3a) pendency of related actions (not applicable) 3b) judicial economy (not applicable) 3c) ***where the operative events occurred**** 3d) congestion of the VA and KS dockets I can obviously hammer (1) all day but the defendant is making the argument that since they trampled my client's right in KS, that the case should be transferred to KS because that's where all of the "witnesses" (CA employees) are and that's where the "operative events occurred" (3c) My argument is, of course, that if you allow any CA to force plaintiffs to travel across the country to enforce their rights, you've undermined the entire purpose of the FDCPA/FCRA which is designed to protect consumers. I don't know that this argument will win on its own and I've been searching for CASELAW (strong preference for FEDERAL CASELAW) which would indicate that the "place where the injury occurred" (important for choice of law in tort cases) is where the consumer resides and NOT where the CA does business. I think that if I can win at oral argument tomorrow, the other side will settle, because I've run their attorney fees through the roof since I took over this case. If there are any attorneys or people who have litigated this point before who can point me in the right direction, I'd greatly appreciate it. These 1404(a) motions really come down to the judge's discretion and I already have one strike against me in that VA federal courts are swamped and KS courts have a low caseload (see 3d above). Thanks in advance! Matt
bumping any luck? I think you may be over most of our heads here. But please come tell us how it plays out!
Hi Matt, Welcome back. It seems to me, a NON-lawyer, that so much of this stuff hasn't even been litigated before. I do have a source which is reserved for atty's only, and has provided excellent info. in the past. It requires a membership fee but is worth it for an FCRA/FDCPA atty. Let me know if you want that. I'm sure there's info. out there available but trying to find this kind of stuff on a short notice would be tricky. We have a lot more to learn from YOU, rather than the other way around. Hope you'll stick around. Good luck tomorrow. .
patent, I don't know of any caselaw off hand addressing that issues specifically but personally, I feel you have enough to convince the judge to make things stay in VA. In addition you might want to point out the clause in the FCRA or FDCPA (whichever is applicable) where it states ANY US District Court. That is currently where the case is since it's been moved to Federal. Also, you can also bring up the 'minimum contacts' issue if the CA tries to play the jurisdiction game. They send their dunning letters to VA therefore VA can have jurisdiction over them. Please keep us all informed of your proceedings.
I think a case filed ab initio (from the get-go) in federal court would still face a potential forum non conveniens issue regardless of the FDCPA, unless Congress were to write in a specific provision to say, nail cases down to the forum where the plaintiff resides. I'm not sure that's in there. If it isn't it would be worth taking a look at the legislative history to see if the question came up. Congress might have assumed that cases wouldn't be yanked to distant forums.
Matt- Just a thought from a non-lawyer: Maybe you could argue that the defendants constructively crossed the KS line into Virginia in their acts that caused hurt to your client in Virginia since your client has never been in Kansas to be harmed there. This is the presumption behind many states' Long Arm statutes - you did something to harm one of my citizens, so you had to come into my state, figurative or constructively, to do it. I liken the concept to a letter bomb - is the crime committed where the bomb was mailed, in Kansas, or where it exploded and killed three people - in Virginia? And which state has jurisdiction? A similar argument could be made in that the Defendant had the option in violating the Plaintiff's rights - whether to do it or not - and thus could choose the jurisdiction while the Plaintiff could not choose. Once again - the kidnapper has the power to decide in which state to murder the victim, the victim has no such right. It would be iniquitous to allow the Defendant to forum shop, so that a perpetrator could choose which state to launch a crime spree from. As an example - Ted Kasinsky is the Unabomber. Let's say, after the OJ trial, California became a very murder-friendly state. That would encourage Kasinsky to relocate to California and mail his letter bombs crom there, knowing that California's friendliness to murderers would protect him from prosecution in states where the letter bombs exploded and killed.
