Hernandez v. East Coast Barge & Boat Co.
2012 WL 9321552
Norfolk Cir. Ct.2012Background
- ECBBC moved to transfer venue, contending Norfolk is improper under Va. Code § 8.01-262(3).
- Hearing occurred on June 6, 2012; court denied the motion after review of evidence and authorities.
- Focal time for venue analysis is the date the action was filed; substantial business activity is evaluated at that time.
- There is a presumption that the plaintiff’s choice of forum is correct; the defendant bears the burden to show improper venue.
- ECBBC claimed defendants’ Norfolk activities were 6% of total revenue, but provided only bare assertions without detailed totals.
- Plaintiff’s internet printout offered at hearing suggested higher Norfolk activity, but did not specify exhaustiveness or dates; no definitive ratio was established.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ECBBC met its burden to prove lack of substantial Norfolk activity | ECBBC asserts 6% Norfolk activity; argues evidence insufficiently demonstrates substantial activity in Norfolk is lacking. | Plaintiff’s venue choice should stand unless ECBBC proves improper venue with adequate evidence; 6% alone is insufficient but defendant emphasizes need for complete data. | Denied; ECBBC failed to rebut presumption in favor of plaintiff's chosen forum. |
Key Cases Cited
- Norfolk Southern Ry. v. Williams, 239 Va. 309 (1990) (presumption in favor of plaintiff's forum; burden on defendant to show improper venue)
- Hawthorne v. VanMarter, 279 Va. 566 (2010) (defendant bears burden to show venue improper; can rely on plaintiff’s facts)
- Meyer v. Brown, 256 Va. 53 (1998) (burden-shifting framework for proving improper venue)