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Kravas v. Private Adoption Services

December 22, 2009


The opinion of the court was delivered by: Chief Magistrate Judge Amy Reynolds Hay


On October 11, 2008, the Plaintiffs, Michael and Kathy Kravas ("Plaintiffs"), prospective adoptive parents and Pennsylvania residents, filed suit in the Court of Common Pleas of Allegheny County, Pennsylvania against the Defendants, Private Adoption Services, Inc. ("PAS"), an Ohio corporation, its Executive Director, Carolyn Mussio, and a Social Worker employed by PAS, Terry Mussio (collectively, the "Defendants"). Asserting diversity of citizenship, the Defendants removed the matter to this Court where it has been pending for more than a year. The deadline for the close of discovery, originally set at October 30, 2009, was rescheduled to January 31, 2010 at the parties' joint request. The Court now considers the Defendant's Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a).*fn1 Having engaged in the weighing process mandated by the Court of Appeals for the Third Circuit in cases where transfer pursuant to section 1404(a) is requested, the Court will grant the Motion and order that this matter be transferred to the District Court for the Southern District of Ohio.


The Complaint in this matter (Doc.1) alleges defamation, fraud, negligent infliction of emotional distress, and breach of fiduciary duty in connection with a failed prospective adoption. The Plaintiffs, Allegheny County residents, allege that they learned from a friend that a pregnant woman residing in Ohio wished to place her baby for adoption. (Id. at ¶ 8). The Plaintiffs contacted and allegedly formed a relationship with this woman, receiving her commitment to place her baby with them. In order to effectuate the prospective adoption, the Plaintiffs engaged and paid money to the Defendants with the understanding that they would work on the Plaintiffs' behalf to arrange for and complete adoption proceedings. (Id. at ¶¶ 18, 19, 21). According to the Plaintiffs, immediately prior to the time set for transfer of the infant, the Defendants persuaded the birth mother that the Plaintiffs were not appropriate parents. (Id. at ¶¶ 42-44, 49,50). The Plaintiffs allege that as a result of the Defendants' actions, the infant was placed with another couple which paid PAS a fee in excess of that agreed to by the Plaintiffs. (Id. at ¶ 55).

In the pending Motion, the Defendants argue that considerations of convenience and justice favor transferring this matter to the District Court for the Southern District of Ohio.

The Defendants bear the burden of establishing that transfer of venue is appropriate. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). In order for Section 1404(a) to apply, venue must be proper in the both the original and requested venues. Id. at 878. In the typical case, therefore, a Court evaluating a request for transfer of venue must determine whether venue lies in the district where suit was filed. Here, however, the Defendants do not contend that venue in the Western District of Pennsylvania is improper. Had this been their position, the motion for transfer would have been based the provisions of 28 U.S.C.§1406(a)*fn2 rather than 28 U.S.C. §1404(a). The Court turns, therefore, to the other factors relevant to the section 1404(a) determination and the Defendant's analysis of those factors in the context of this case.

The Analytical Framework

The purpose underlying section 1404(a) is "to prevent the waste of time, energy and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). Though courts have broad discretion with respect to motions for transfer of venue, they are not to be granted liberally. Shutte v. ARMCO Steel Corp., 431 F.2d 22, 25 (3d Cir. 1970); Superior Precast Ins. v. Safeco Ins. Co. Of Am., 71 F. Supp.2d 438, 445 (E.D. Pa. 1999).

The Court of Appeals for the Third Circuit has identified a series of public and private considerations to be balanced in evaluating requests for transfer. Jumara, 55 F.3d at 879. The relevant private interests include: 1) the plaintiff's choice of forum; 2) the defendant's choice of forum; 3) where the claim arose; 4) the convenience of the parties as indicated by their relative physical and financial conditions; 5) the convenience of the witnesses, but only to the extent that they may actually be unavailable at trial; and 6) the location of relevant books and records insofar as these could not be produced in the alternative forum. Id. The public interests to be examined include: 1) enforceability of the judgment; 2) practical considerations that could make the trial easy, expeditious, or inexpensive; 3) the relative administrative difficulty in the two fora resulting from court congestion; 4) the public policies of the fora; and 5) the judge's familiarity with the applicable state law. Id. at 879-80.

The weight given to the factors set out in Jumara is not equal. A plaintiff's choice of forum is paramount. "[U]nless the balance of convenience of the parties is strongly in favor of the defendant, the plaintiff's choice of forum should prevail." Owatonna Mfg. Co. v. Melroe Co., 301 F. Supp.1296, 1307 (D. Minn.1969). According to the Defendants, the private interests identified in Jumara justify overriding the Plaintiffs' forum choice.

The Defendants address first the private considerations cited in Jumara, stating that although the Plaintiffs reside in, suffered damages in, received communications in and planned to bring the baby to Pennsylvania, virtually every other aspect of this case supports transferring this matter to Ohio. Each of the tortious acts alleged occurred exclusively in Ohio. The Plaintiffs made contact with the birth mother and the Defendants in Ohio, and, through an Ohio agency, pursued an adoption, the terms of which were governed by Ohio law. The birth parents reside and the baby was born in Ohio. Aside from the Plaintiffs, the relevant individuals - including the birth parents, the adoption agency employees, and the hospital social worker with whom the birth mother allegedly discussed her reservations regarding the Plaintiffs - live in Ohio. (Doc. 30 at ¶ 14). According to the Defendants - and not disputed by the Plaintiffs - depositions of at least seven witnesses are scheduled to take place in or near Cincinnati. (Doc. 28 at ¶ 9).

The Defendants also contend, albeit without evidentiary support, that the birth parents, whose testimony is at the center of the Plaintiffs' claims, are unwilling to participate voluntarily in this matter, and are beyond this Court's subpoena power. Further, in a Motion for Protective Order (Doc. 31) filed concurrently with the Motion to Transfer, the Defendants explain that it will be extremely difficult to have both of the Mussios appear for depositions in Pittsburgh because the adoption agency is small, and one of the Mussios must be available at all times due to the ongoing and unpredictable demands of the adoption process. (Id. at ¶¶ 6-8). This issue would be at least equally problematic should any trial take place in this district. In addition, the Defendants allege - again without evidentiary support - that the hospital social worker whose testimony is also critical to the resolution of this case would be unduly burdened by having to travel to Pittsburgh for trial, as she has a small child. Finally, the Defendants note that all relevant records are located in Ohio.

With respect to the public factors articulated in Jumara, the Defendants argue that Ohio's interest in the integrity of its adoption process trumps Pennsylvania's interest in the outcome of this case, and that the federal court in Ohio will be "better able to interpret the laws of the state in which it sits." (Doc. 30 at ΒΆ 19). They also contend that "[b]ecause all relevant acts occurred in the Southern District of Ohio, it is clear that the trial ...

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