Hustler Magazine, Inc. v. United States District Court for District of Wyoming

Tenth Circuit

Hustler Magazine, Inc. v. United States District Court for District of Wyoming

790 F.2d 69

CourtCourt of Appeals for the Tenth Circuit

DecidedMay 7, 1986

DocketNo. 86-1418

StatusPublished

Cited by5 cases

This text of 790 F.2d 69 (Hustler Magazine, Inc. v. United States District Court for District of Wyoming) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hustler Magazine, Inc. v. United States District Court for District of Wyoming, 790 F.2d 69 (10th Cir. 1986).

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JAMES P. MOORE, Circuit Judge.

Petitioners seek a writ of mandamus compelling the district court to transfer this case from the District of Wyoming to the Central District of California on grounds that the latter locus would be more convenient to the witnesses. Since the district court refused to consider this motion, we direct that it do so.

The underlying diversity action was brought by Ms. Andrea Dworkin against Hustler Magazine, Inc., Flynt Distributing Co., Inc., and Larry Flynt seeking damages on theories of libel, invasion of privacy, intentional infliction of emotional distress, outrage, and interference with her First Amendment rights. The suit was commenced in Wyoming state court and removed by petitioners to the United States District Court. Diversity jurisdiction lies because plaintiff is a resident of the state of New York and petitioners are domiciled in California.

Petitioners have moved to transfer the case pursuant to 28 U.S.C. § 1404(a), claiming none of the parties had contacts with Wyoming and the convenience of the defendants and their witnesses would be better served by transferring the case to Los Angeles. The motion was called for hearing in conjunction with other motions. While setting out the time to be accorded to the arguments, the district court stated:

The motion for change of venue, I think it is silly to even argue. I’m going to deny it. I don’t believe — I read your pleadings and considered it and I don’t believe in passing our problems on to other districts. You’ve all indicated that you agree that we have jurisdiction. That being the case, we will handle our own problems and you shouldn’t waste your time on it.

With this conclusion, the motion was denied.

The first question we must address is whether mandamus will even lie in this situation. In the past, we have said that the writ would issue only on “a clear showing of abuse of discretion.” Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 146 (10th Cir.1967). Yet, we have also said: “Mandamus is an appropriate remedy to test the validity of the transfer order.” Cessna Aircraft Co. v. Brown, 348 F.2d 689, 691 (10th Cir.1965). Cognizant that a thorny thicket abounds in this area,¹ we are reluctant to compound the tangle. Suffice it to say, the petitioners have properly brought before us for relief a case in which the trial court’s refusal to consider the issue of transfer must be addressed. At the same time, we do not suggest that every ruling on a motion to transfer under § 1404(a) is fertile ground for extraordinary relief.

[71]*71We grant the petition here because the trial judge did not give the petitioners a fair opportunity to establish that the interests of justice and the convenience of the parties and the witnesses mandated a change of venue. We commend the trial court for its interest in not foisting its burdens onto others, but that is not the test prescribed by 28 U.S.C. § 1404(a). Unfortunately, it appears the court failed to give air to those facts which the petitioners assert entitle them to a transfer of the place of trial. After hearing those facts, the trial court can, in the exercise of its discretion, more properly decide whether the motion is to be granted. See Texas Eastern Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561 (10th Cir.1978).

When the court refused to even hear the petitioners’ case for transfer, it abused its discretion. When a motion for change of venue is filed pursuant to § 1404(a), the trial court is called upon to carefully weigh the competing equities relied upon by the parties for changing the place of trial. Under the peculiar circumstances of this case, in which none of the parties and only one witness has any connection with or residence in Wyoming, the necessity for a hearing cannot be gainsaid.

Although we do not suggest to the district court how its discretion should be exercised, we do mandate that it proceed to grant the parties a full and adequate hearing on the subject. The petition for writ of mandamus is granted.

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JAMES P. MOORE, Circuit Judge.

Petitioners seek a writ of mandamus compelling the district court to transfer this case from the District of Wyoming to the Central District of California on grounds that the latter locus would be more convenient to the witnesses. Since the district court refused to consider this motion, we direct that it do so.

The underlying diversity action was brought by Ms. Andrea Dworkin against Hustler Magazine, Inc., Flynt Distributing Co., Inc., and Larry Flynt seeking damages on theories of libel, invasion of privacy, intentional infliction of emotional distress, outrage, and interference with her First Amendment rights. The suit was commenced in Wyoming state court and removed by petitioners to the United States District Court. Diversity jurisdiction lies because plaintiff is a resident of the state of New York and petitioners are domiciled in California.

Petitioners have moved to transfer the case pursuant to 28 U.S.C. § 1404(a), claiming none of the parties had contacts with Wyoming and the convenience of the defendants and their witnesses would be better served by transferring the case to Los Angeles. The motion was called for hearing in conjunction with other motions. While setting out the time to be accorded to the arguments, the district court stated:

The motion for change of venue, I think it is silly to even argue. I’m going to deny it. I don’t believe — I read your pleadings and considered it and I don’t believe in passing our problems on to other districts. You’ve all indicated that you agree that we have jurisdiction. That being the case, we will handle our own problems and you shouldn’t waste your time on it.

With this conclusion, the motion was denied.

The first question we must address is whether mandamus will even lie in this situation. In the past, we have said that the writ would issue only on “a clear showing of abuse of discretion.” Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 146 (10th Cir.1967). Yet, we have also said: “Mandamus is an appropriate remedy to test the validity of the transfer order.” Cessna Aircraft Co. v. Brown, 348 F.2d 689, 691 (10th Cir.1965). Cognizant that a thorny thicket abounds in this area,¹ we are reluctant to compound the tangle. Suffice it to say, the petitioners have properly brought before us for relief a case in which the trial court’s refusal to consider the issue of transfer must be addressed. At the same time, we do not suggest that every ruling on a motion to transfer under § 1404(a) is fertile ground for extraordinary relief.

[71]*71We grant the petition here because the trial judge did not give the petitioners a fair opportunity to establish that the interests of justice and the convenience of the parties and the witnesses mandated a change of venue. We commend the trial court for its interest in not foisting its burdens onto others, but that is not the test prescribed by 28 U.S.C. § 1404(a). Unfortunately, it appears the court failed to give air to those facts which the petitioners assert entitle them to a transfer of the place of trial. After hearing those facts, the trial court can, in the exercise of its discretion, more properly decide whether the motion is to be granted. See Texas Eastern Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561 (10th Cir.1978).

When the court refused to even hear the petitioners’ case for transfer, it abused its discretion. When a motion for change of venue is filed pursuant to § 1404(a), the trial court is called upon to carefully weigh the competing equities relied upon by the parties for changing the place of trial. Under the peculiar circumstances of this case, in which none of the parties and only one witness has any connection with or residence in Wyoming, the necessity for a hearing cannot be gainsaid.

Although we do not suggest to the district court how its discretion should be exercised, we do mandate that it proceed to grant the parties a full and adequate hearing on the subject. The petition for writ of mandamus is granted.

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790 F.2d 69, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hustler-magazine-inc-v-united-states-district-court-for-district-of-ca10-1986.

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