United States District Court, E.D. Wisconsin
Stadtmueller. U.S. District Judge
November 9, 2018, this case was removed from Wisconsin state
court on the basis of federal question and diversity
jurisdiction pursuant to 28 U.S.C. §§ 1331, 1332,
1441, 1446. (Docket #1). Plaintiff brings claims under
Wisconsin state law for legal malpractice and breach of
fiduciary duty that arose during a case brought under the
federal False Claims Act, 31 U.S.C. § 3730(d)(1).
Id. On December 10, 2018, Defendants Brian Mahany
(“Mahany”) and Mahany & Ertl, LLC
(“M&E”) moved to transfer the case to the
Southern District of New York. (Docket #15). Defendant Joseph
Bird (“Bird”) filed a notice of concurrence to
the motion to change venue on December 20, 2018. (Docket
#20). On January 16, 2018, Plaintiff's attorney filed a
motion to withdraw in light of his imminent retirement, and
requested to stay the case for sixty days in order to allow
Plaintiff to find new counsel. (Docket #24 and #25). Both
motions are now fully briefed and, for the reasons stated
below, will be granted.
venue is appropriate either in the judicial district where
“any defendant resides, if all defendants are residents
of the State in which the district is located, ” or in
the district where “a substantial part of the events or
omissions giving rise to the claim occurred.” 28 U.S.C.
§ 1391(b). “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 or to any district or
division to which all parties have consented.” 28
U.S.C. § 1404(a). A district court may exercise
discretion in transferring an action to another venue.
Coffey v. Van Dorn Iron Works, 796 F.2d 217, 219
(7th Cir. 1986). Courts evaluating whether to transfer an
action pursuant to Section 1404(a) consider the private
interests of the parties as well as the public interest.
Mueller v. Apple Leisure Corp., 880 F.3d 890, 894
(7th Cir. 2018) (citations and quotations omitted). Private
interest factors include the parties' ease of access to
evidence, the availability of witnesses, and various other
administrative and logistical details involved in litigation.
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241 n.6
(1981) (quoting Gulf Oil Corp. v. Gilbert, 330 U.S.
501, 508-09 (1947)). Public interest factors include the
local interest of the controversy, the law applied to the
case, and the relative fairness of “burdening citizens
in an unrelated forum with jury duty.” Id. A
plaintiff's choice in venue, while ordinarily afforded
weight, will give way if the private and public interest
factors clearly show that another forum is more appropriate.
Id. at 255.
case deals with Plaintiff's claim that the legal fees for
an underlying action-which amounted to approximately
one-third of Plaintiff's total award-were unreasonable,
unconscionable, or ill-gotten. (Docket #1-1 at 6). The
underlying case was a qui tam action under the False
Claims Act (“FCA”) and the Financial Institutions
Reform, Recovery, and Enforcement Act (“FIRREA”),
which was ultimately settled by the United States
Attorney's Office for the Southern District of New York.
(Docket #16 at 2). Plaintiff received approximately $48
million in settlement, resulting in fees for his former
attorneys of approximately $15.7 million. He now brings suit
to try to regain that fee.
argues that the Eastern District of Wisconsin is the
appropriate venue because M&E, the original law firm,
identified Milwaukee as its lead office. Additionally, the
retainer agreement that Plaintiff signed with Defendants was
governed by Wisconsin state law.Plaintiff also argues that
his selection of Wisconsin should be afforded substantial
weight, and it is not particularly inconvenient for the
parties to litigate in Wisconsin.
argue that venue is most appropriate in the Southern District
of New York because most of the FCA and FIRREA cases in the
underlying qui tam action were tried there, it was
that forum that allowed many of the fee awards in the
underlying action, and it is no more burdensome for any party
to litigate in New York as compared to Wisconsin. Moreover,
Defendants argue that the weight afforded to Plaintiff's
preference for Wisconsin is diminished by the fact that no
parties or witnesses actually live in Wisconsin. Plaintiff
lives in California, and the non-entity defendants live in
Michigan and Texas. (Defendants inform the Court that M&E
no longer exists). Defendants further argue that the chief
non-party witnesses, such as the U.S. Attorneys from the
Southern District of New York, as well as Defendants'
local counsel in the underlying matter, all reside in New
light of these factors, it is abundantly clear that the
Southern District of New York is the more appropriate venue
for this case. That court will be better suited to evaluate a
fee dispute arising from the underlying FCA and FIRREA case,
and any relevant witnesses and evidence will be readily
available. Indeed, the only reason to retain jurisdiction
would be that the parties' original agreement provides
for application of Wisconsin law. But there is no reason why
this provision would not be equally honored in the Southern
District of New York.
attorney also moves to withdraw in light of his retirement
after nearly fifty years of practice, and requests a sixty
day stay in order to allow Plaintiff time to obtain
replacement counsel. (Docket #24). The Defendants object to
the motion to withdraw and stay proceedings to the extent
that it affects the motion for change in venue, which it does
not. (Docket #26 and #27). Therefore, the Court will grant
the motion to withdraw and stay the case for sixty days.
IT IS ORDERED that Defendants' motion to
transfer case to the Southern District of New York (Docket
#15) be and the same is hereby GRANTED;
IS FURTHER ORDERED that Plaintiff's
attorney's motion to withdraw and stay proceedings for
sixty days (Docket #24) be and the same is hereby
IS FURTHER ORDERED that the action be and the same
is hereby TRANSFERRED to the United States
District Court for the Southern District of New York for all
Clerk of the Court is directed to take all appropriate steps
to effectuate the transfer of this action to the United
States District Court for the Southern District of New York.