Lincoln case was being shopped, WV CALA says

CHARLESTON -- A case filed by Lincoln County school board member against a Lincoln County newspaper publisher has drawn the attention of some in the legal community.

Mostly because of where it was filed: Wyoming County.

Carol Ann Smith, who is a former president of the Lincoln County school board, claims Daniel N. Butcher, individually, and Drummer Inc. dba The Lincoln Standard, published defamatory statements about her in 2008. The paper no longer is in operation.

A Branchland resident, Smith says the Standard newspaper alleged "fanciful and imaginary claims of conduct" on her part. "Butcher then began publishing cartoons ..." Smith contends, "depicting the plaintiff in bizarre circumstances," according to a complaint transferred on July 8 to Lincoln Circuit Court.

The complaint originally was filed in Wyoming Circuit Court in May 2009. Judge Warren R. McGraw transferred it to Lincoln County after the defendants had filed a motion for change of venue.

"The basis for venue is stated in the complaint," said Sean McGinley, an attorney with the Charleston law firm of DiTrapano Barrett & DiPiero who -- along with Rudolph L. DiTrapano -- are listed as the plaintiff attorneys on the case.

According to the original complaint, the suit was filed in Wyoming County because the article was "widely published" and "distributed" in Wyoming County.

In a later filing, the defendants argued that none of the parties reside in Wyoming County and that the Lincoln Standard did not solicit business in Wyoming County and was not distributed in Wyoming County.

Richie Heath, executive director of West Virginia Citizens Against Lawsuit Abuse, says the fact that the case originally was filed in Wyoming County is a clear example of venue shopping.

"Judge-shopping should not be tolerated in any West Virginia courts," Heath said. "Lawsuits should be filed in the courthouse where a substantial portion of the case is alleged to have occurred, and not where the lawyer filing the suit thinks he'll get the most favorable judge.

"When lawyers look for home-cooking from judges whose campaigns they've contributed to, it gives our state a black eye for litigation fairness and denies local residents access to the judges they elect."

McGraw is the only circuit judge in Wyoming County.

Members of DiTrapano's firm and his family members contributed more than $25,000 to McGraw's 2004 Supreme Court race when the incumbent McGraw lost to current Justice Brent Benjamin.

As defined by Nolo's Plain-English Law Dictionary, venue shopping is the process by which a plaintiff chooses among two or more courts that have the power -- technically, the correct jurisdiction and venue -- to consider the plaintiff's case.

This decision is based on which court is likely to consider the case most favorably.

In some instances, a case can properly be filed in two or more federal district courts as well as in the trial courts of several states. It often involves weighing a number of factors, including proximity to the court, the reputation of the judge in the particular legal area, the likely type of available jurors, and subtle differences in governing law and procedure.

Hamlin, the county seat of Lincoln County, is about 85 miles from Pineville, the county seat of Wyoming County.

Mapquest.com says it takes more than two hours to travel between the two courthouses.

Smith presents five counts in her complaint, each seeking jury judgment for both compensatory and punitive damages, as well as other relief.

Huntington attorneys Thomas E. Scarr, Gary A. Matthews and Matthew L. Williams defend Butcher and The Standard.

Lincoln Circuit Court case number: 10-C-81