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WEINSTEIN v. FRIEDMAN

June 27, 1994

JOSHUA WEINSTEIN
v.
ROBERT I. FRIEDMAN, RANDOM HOUSE, INC. and VV PUBLISHING CORP. d/b/a THE VILLAGE VOICE



The opinion of the court was delivered by: J. CURTIS JOYNER

 JOYNER, J.

 This libel action has been brought before the Court by motion of the defendants to transfer this case to the Southern District of New York or, in the alternative, to dismiss as to defendant Robert Friedman for lack of personal jurisdiction and as to all defendants for failure to state a claim upon which relief can be granted. Inasmuch as the motion to transfer shall be granted, we leave to the New York court the question of the sufficiency of the plaintiff's complaint to state a claim for libel under New York law.

 I. HISTORY OF THE CASE.

 This lawsuit arises out of defendant Robert Friedman's book entitled "Zealots for Zion: Inside Israel's West Bank Settlement Movement," which was published by defendant Random House, Inc. in 1992. Chapter 7 of the book refers to a group of Princeton University graduates who had emigrated to Israel (including the plaintiff), several of whom now live in Eli, one of the settlements on the West Bank. According to the plaintiff's complaint, Chapter 7 was libelous, portrayed him in a false light and effectively invaded his privacy by publicizing certain private facts about him "which the defendants knew or should have known would be highly offensive to a reasonable person" and which were "unrelated to any legitimate issue." Because an excerpted portion of Chapter 7 was published in the December 1, 1992 edition of the Village Voice, Mr. Weinstein brought this suit against VV Publishing as well as Mr. Friedman and Random House Publishing.

 By way of the motion which is now before the court, the defendants primarily seek the transfer of this action to the Southern District of New York pursuant to 28 U.S.C. § 1404(a) on the grounds that that is a far more appropriate and convenient forum for all of the parties to this action. In support of their motion, the defendants additionally argue that since the plaintiff is in actuality a citizen and resident of Israel--not Pennsylvania, venue clearly does not lie in the Eastern District of Pennsylvania. After careful review of the affidavits and exhibits attached to the defendants' motion and the plaintiff's response thereto as well as the plaintiff's deposition, we must agree with the defendants and this case shall therefore be transferred to the U.S. District Court for the Southern District of New York.

 II. DISCUSSION.

 As is apparent from the laws which govern them, the concepts

 of venue and forum convenience are closely intertwined. Under 28 U.S.C. § 1391(a) [governing venue generally in cases premised upon diverse citizenship],

 
"A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same state, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which the defendants are subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.

 Similarly, 28 U.S.C. § 1404(a) provides the following with respect to change in venue:

 
"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."

 The decision whether or not to transfer an action rests within the discretion of the district court, which should analyze the issue according to an individualized, case-by-case consideration of convenience and fairness. O'Brien v. Goldstar Technology, Inc., 812 F. Supp. 383, 385 (W.D.N.Y. 1993), citing, inter alia, Van Dusen v. Barrack, 376 U.S. 612, 622, 84 S. Ct. 805, 812, 11 L. Ed. 2d 945 (1964). In assessing a transfer motion, a plaintiff's choice of forum is a paramount consideration which should not be lightly disturbed and thus the court should hold defendants to establishing a strong preponderance in favor of transfer. In Re ML-Lee Acquisition Fund, II, L.P., 816 F. Supp. 973, 975 (D.Del. 1993); U.S. v. Brown University, 772 F. Supp. 241, 242 (E.D.Pa. 1991), rev'd on other grounds, 5 F.3d 658 (3rd Cir. 1993).

 Many of the same factors relevant to determining a motion of forum non conveniens apply to a motion to transfer pursuant to 28 U.S.C. § 1404, although a district court has much broader discretion when deciding a motion to transfer. Leonardo Da Vinci's Horse, Inc. v. O'Brien, 761 F. Supp. 1222, 1229 (E.D.Pa. 1991). Thus, in addition to the plaintiff's choice of forum and the ...


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