Dvoinik v. Rolff
- Laura Swain
- 1:23-cv-04216
- U.S. District Court · Southern District of New York
- 5
In Dvoinik v. Rolff, Judge Swain transferred the RICO case from New York to Florida for convenience and justice.
The action brought by Elena Dvoinik and Boris Zavadovsky against Elke U. Rolff and Dale F. Webner was transferred from the Southern District of New York to the Southern District of Florida. The merits of the plaintiffs’ claims were not decided.
What happened
In Dvoinik v. Rolff, Elena Dvoinik and Boris Zavadovsky sued Florida attorneys Elke U. Rolff and Dale F. Webner under the Racketeer Influenced and Corrupt Organizations Act. They were representing themselves and alleged that the defendants were involved in wrongdoing connected to earlier Florida litigation.
The court concluded that the Southern District of Florida was the proper and more convenient location because both defendants allegedly lived there, the parties were located in Florida, the underlying events occurred there, and related litigation was pending there. The court also found that the plaintiffs’ allegations did not appear sufficient to establish that New York was a proper location under the Act’s venue rules.
Judge Laura Taylor Swain ordered the case transferred to the Southern District of Florida under a federal convenience-and-justice statute. She did not decide the case’s merits, left the filing-fee issue to the Florida court, directed that no summons issue from her court, and denied fee-free status for any appeal.
The detailed version
- Dvoinik v. Rolff · No. 1:23-cv-04216
- Laura Swain
- May 22, 2023
Background
Elena Dvoinik and Boris Zavadovsky sued Elke U. Rolff and Dale F. Webner under the Racketeer Influenced and Corrupt Organizations Act, commonly called RICO. The plaintiffs were representing themselves and alleged that the defendants, who were Florida attorneys, were involved in a scheme connected to earlier litigation in Florida. The earlier litigation arose from a search of the plaintiffs’ property in Austria related to criminal proceedings there.
The plaintiffs had already brought several related suits, including an earlier case against the defendants in this action. The court referred to that earlier related proceeding without deciding the merits of the current RICO claims.
Venue and transfer analysis
The court explained that federal venue generally may be proper where a defendant resides, where a substantial part of the events or omissions occurred, or, in some circumstances, where a defendant is subject to the court’s personal jurisdiction. RICO also has a specific venue provision allowing a claim to be brought where a defendant resides, is found, has an agent, or transacts affairs.
The plaintiffs alleged that Rolff resided in Miami-Dade County and Webner resided in Broward County, both within the Southern District of Florida. They argued that New York was also a proper venue because a nonparty allegedly involved in the conspiracy had a business office in Manhattan and because Rolff allegedly conducted unspecified business in New York City and advertised her services through a website associated with the Austrian Consulate General in New York City. The court stated that these allegations appeared insufficient to show that the defendants regularly conducted business of a substantial and continuous character in New York, as required for RICO venue under the circumstances described.
Even if venue was proper in New York, the court could transfer the case under 28 U.S.C. § 1404(a) for the convenience of the parties and witnesses and in the interest of justice. The court considered the relevant convenience factors and concluded that transfer was appropriate. It stated that all parties were located in Florida, the underlying events occurred there, and related litigation was pending there. It also gave the plaintiffs’ choice of New York less weight because they did not reside in that district and the claims did not arise there.
Disposition
The court ordered the Clerk of Court to transfer the action to the United States District Court for the Southern District of Florida under 28 U.S.C. § 1404(a). The order closed the case in the Southern District of New York. The court left the unpaid filing-fee issue to the transferee court and directed that no summons issue from the New York court.
The court expressly stated that it was not deciding the merits of the action, including whether claim preclusion might bar the plaintiffs’ claims. It also certified that any appeal would not be taken in good faith and denied fee-free status for purposes of an appeal.
Read the full 5-page opinion on CourtListener, the free public archive maintained by the Free Law Project.