OKLAHOMA CITY (FNS) -- Fleming Cos. here has asked a Texas state judge to change the venue for the January retrial of the fraud and breach-of-contract case brought by David's Supermarkets, Grandview, Texas.
The wholesaler claimed it would not be able to find an impartial jury in Cleburne, Texas, the location of the original trial. Retired senior district judge C.W. Duncan Jr. is scheduled to hear Fleming's request for a venue change, along with the plaintiff's response on Sept. 10 and 11 in the 18th Judicial Circuit Court in Cleburne. He also will preside over the retrial, which was granted June 24 and is scheduled for Jan. 13.
In its motion filed in 18th Judicial Circuit Court, Fleming suggested the retrial be held in Dallas County, which it said is convenient to the plaintiffs and defendants and has a large enough population to find a jury not affected by what it calls prejudicial media coverage of the case.
Fleming said potential jurors in rural Cleburne and the rest of Johnson County likely would have read or heard about the case, which has received extensive publicity since a $211 million verdict was handed down against the wholesaler in March. That verdict subsequently was thrown out, and a new trial was ordered after the original presiding judge removed himself because past financial ties with David's owner, David Waldrip, gave the appearance of impropriety.
"It is impossible for defendants to obtain a fair and impartial trial in an environment where they have been tried and found guilty by the press," Fleming said in its Aug. 1 motion. "There exists an extreme risk for a potential jury to be biased+ as long as this case is in Johnson County." Fleming said the case could be transferred to any county where a fair trial could be obtained, although the company said it preferred Dallas.
Bill Sims, a Dallas attorney representing David's, disputed Fleming's claim that a venue change is needed for a fair trial.
"We think their position is absurd and ridiculous," he said. "You could find hundreds and thousands of impartial jurors out of the 70,000 eligible in Johnson County." David's currently is getting affidavits from people to counter Fleming's claims and is gathering its own set of expert testimony, Sims added.
Fleming was found guilty in mid-March by a Cleburne jury of fraud and breach of contract in allegedly overcharging David's for groceries under a cost-plus contract. The jury verdict precipitated other lawsuits, including several stockholder and bondholder class-action suits, claiming Fleming failed to adequately disclose the litigation. Those suits are pending.
