Opinion
CASE NO.: CV 05-6740 ABC (CTx).
November 19, 2007
ORDER GRANTING PLAINTIFF'S MOTION TO TRANSFER
Pending before the Court is Plaintiff's Motion to Transfer Venue ("Motion"), filed on July 2, 2007. Defendants Leonard Silverstein ("Silverstein") and Buchanan Ingersoll Rooney PC ("BIPC") filed an Opposition on July 9, 2007. Plaintiff filed a Reply on July 16, 2007. Hearing on the Motion was continued several times at the parties' request and due to Court congestion. The Court found the Motion appropriate for determination without oral argument, and took it under submission. See Fed.R.Civ.P. 78; Local Rule 7.11. Upon consideration of the parties' submissions and the case file, the Court hereby GRANTS Plaintiff's Motion to Transfer.
I. BACKGROUND
Plaintiff Patricia Davis Raynes filed this action in the Central District of California against fourteen individual and corporate defendants in September 2005. Ten of those fourteen defendants were residents of California. Plaintiff has since settled with all of the California defendants, leaving only herself, Silverstein, and BIPC as parties. Plaintiff is a resident of New York; Silverstein is a resident of Maryland; and BIPC is a Pennsylvania defendant.
In December 2006, Plaintiff filed a separate action against Silverstein and BIPC in the Southern District of New York. Plaintiff contends that she filed the New York action because of the state of her settlement negotiations with certain California defendants in this action, and because of certain other defendants' challenges to this Court's jurisdiction. The parties in the New York case — who are the same as the parties remaining in this case — agreed that there would be no further proceedings in New York until this Court decides in which forum the action should proceed.
Now that Plaintiff and the California parties in this case have settled, Plaintiff contends that the case should be transferred to the Southern District of New York for the convenience of the remaining parties, who are all residents of the East Coast. Furthermore, Plaintiff contends that none of the non-party witnesses resides in California; that 17 of the 81 potential witnesses live in New York, Washington, D.C., and Pennsylvania; and that all of the depositions that have been noticed to date will occur in New York City, Pittsburgh, and Washington, D.C. Plaintiff also argues that this district's docket congestion counsels in favor of transfer to the Southern District of New York.
Defendants oppose the transfer on several grounds. Defendants argue that Plaintiff's request for transfer amounts to forum shopping and should be denied. Defendants also argue that the trust agreements relevant to this action were executed in California, that the governing law is California law, that "the factual center of gravity underlying Plaintiff's litigation is California," and that this Court's compulsory process will ensure the attendance of non-party witnesses at trial. (Defs' Opp'n. 1:8-16.)
II. LEGAL STANDARD
"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil matter to any other district or division where it might have been brought." 28 U.S.C. § 1404(a). A motion for transfer lies within the broad discretion of the district court, and must be determined on an individualized basis. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). In order to succeed on a motion to transfer venue, the moving party must show that the forum to which they seek transfer is a forum in which the action originally might have been brought. See Hoffman v. Blaski, 363 U.S. 335, 344 (1960).
In resolving a motion to transfer, courts consider three main factors: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3) the interests of justice. See Guthy-Renker Fitness, L.L.C. v. Icon Health Fitness, Inc., 179 F.R.D. 264, 269 (C.D. Cal. 1998) (citing Arley v. United Pac. Ins. Co., 379 F.2d 183, 185 (9th Cir. 1969)). Under these three main factors, courts also consider the following sub-factors: (1) the plaintiff's choice of forum; (2) the location where the events at issue took place; (3) the differences in the costs of litigation in the two forums; (4) the respective parties' contacts with the forum; (5) the contacts relating to the plaintiffs cause of action in the chosen forum; (6) any local interest in the controversy; (7) the ease of access to sources of proof; (8) the availability of compulsory process to compel attendance of unwilling non-party witnesses; and (9) the state that is most familiar with the governing law.See Jones, 211 F.3d at 498-99; see also Geo. F. Martin Company v. Royal Insurance Company of America, No. C03-5859 SI., 2004 WL 1125048, at *2 (N.D. Cal. May. 14, 2004). The moving party bears the burden of demonstrating that transfer is appropriate.Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979).
III. DISCUSSION
Plaintiff has shown — and Defendants do not disagree — that the Southern District of New York is a proper venue for this action. See Mot. 7:6-8:1. This threshold element is therefore satisfied. Having considered the factors relevant to the Court's exercise of discretion, the Court finds that, on balance, the convenience of the parties and witnesses and the interest of justice weigh in favor of transferring this case to the Southern District of New York.
A. Convenience of Parties
The first factor the court considers is the convenience of the parties. While a plaintiff's choice of forum is generally accorded substantial weight in proceedings under § 1404(a), that choice is not dispositive. Pacific Car and Foundry Co. V. Pence, 403 F.2d 949, 954 (9th Cir. 1968). Likewise, the plaintiff's residence is not determinative where all other operative facts giving rise to the litigation occurred elsewhere. Schmidt v. American Institute of Physics, 322 F. Supp.2d 28, 33 (D.C. Cir. 2004). Indeed, if the operative facts did not occur within the forum of original selection and that forum has no particular interest in the parties or the subject matter, the plaintiff's choice of forum will be given considerably less weight. Geo. F. Martin Company, 2004 WL 1125048, at *2. In assessing the convenience of the parties, courts also consider the relative means of the parties.Dwyer v. General Motors Corp., 853 F. Supp. 690, 693 (S.D.N.Y. 1994).
Here, although Plaintiff initially chose the Central District of California as her preferred forum, she now prefers the Southern District of New York. Thus, Plaintiff's choice of forum counsels in favor of transfer. In addition, none of the remaining parties is a California resident; in fact, as residents of New York, Maryland, and Pennsylvania, they are all in far greater proximity to the Southern District of New York than they are to the Central District of California. Furthermore, the Complaint recites specific claims based on events that occurred in New York. For example, the Complaint alleges that Defendant Silverstein made false representations to Plaintiff while they were in New York. (Compl. ¶¶ 103-106, 110.) In addition, for a period of approximately 15 years of the alleged misconduct, Plaintiff was a resident of New York and thus suffered harm there. Although some of the alleged misconduct took place in California, there are significant allegations of misconduct and damage in New York. In addition, the Defendants have not filed responsive pleadings in either the California or New York action, and would, therefore, suffer no loss or prejudice should the action be transferred to New York. Because no party has taken a position on the comparative costs of litigation in each forum, the Court concludes that that subfactor is neutral. Defendants does not dispute Plaintiff's argument that a change of venue would have no impact on the parties' abilities to access documentary evidence. Accordingly, the convenience of the parties militates strongly in favor of transfer.
Under the facts of this case, the Court will not give Plaintiff's current choice of forum any less weight simply because her initial choice of forum differed. In addition, the Court has considered, but is not persuaded by, Defendants' charge that Plaintiff is merely forum shopping. As discussed in this Order, there are a number of factors showing that transfer to New York would serve the parties' convenience for reasons unrelated to this Court's previous decisions.
B. Convenience of Witnesses
Convenience of witnesses is an important factor in determining whether or not to transfer a given case. The court considers not only the number of witnesses located in the respective districts, but also the nature and quality of their testimony, as it relates to the issues in the case. Brandon Apparel Group, Inc. v. Quitman Mfg. Co., Inc., 42 F. Supp. 2d 628, 639-640 (N.D. Miss. 1999).
In balancing the convenience of the witnesses, courts give primary consideration to non-party witnesses, as opposed to witnesses who are employees of a party to the litigation.Queentex Enterprises, Inc. v. Sara Lee Corp., 2000 WL 246599, at *5 (N.D. Cal. Mar. 1, 2000). Though not weighted as heavily as non-party witnesses, party witnesses are nevertheless accorded consideration in the court's balancing of the convenience of witnesses. See Queentex Enterprises, Inc., 2000 WL 246599, at *5. Additionally, in assessing the convenience of the witnesses, the court considers not just the witnesses involved in the original complaint, but all the witnesses. See In re Volkswagen AG, 371 F.3d 201, 204 (5th Cir. 2004) (holding that the term "parties" in § 1404(a) covers parties in all claims properly joined in a proceeding and considering the third party defendants' convenience in assessing the convenience of the parties).
Here, the convenience of witnesses is equivocal. Defendants argue that many third-party witnesses reside in California. Indeed, by Plaintiff's own count, 33 of the 62 third-party witnesses reside in California, and 11 of them reside in New York. (Norton Decl. Exh. E.) However, the relative significance of these potential witness' testimony is not at all clear from the parties' papers. Indeed, by Plaintiff's count, Defendant's Rule 26 disclosure identifies approximately 8 non-party witnesses who reside in New York, and approximately 9 non-party witnesses who reside in California. (Norton Decl. Exh. G.) Although approximately half of the Davis family resides in California, Defendant has not sufficiently explained how these witnesses are more important than the other non-party witnesses residing elsewhere such that their residence should be accorded great weight. Indeed, all of the Davis family defendants have already settled with Plaintiff. The extent to which those persons who were once Defendants, but with whom Plaintiff has settled, would be material witnesses with respect to Plaintiff's case against Silverstein and BIPC has not been explained with any clarity. Furthermore, as stated above, the Complaint recites specific claims based on events that occurred in New York. (See Compl. ¶¶ 103-106, 110.) Indeed, the New York Complaint, which consists solely of Plaintiff's claims against Silverstein and BIPC and is therefore not cluttered by now-extraneous allegations against persons who are no longer Defendants, claims that Silverstein and BIPC breached duties owed to Plaintiff, committed fraud, and aided and abetted and conspired with Marvin Davis. (New York Compl. ¶¶ 74-78, 96-95.) These claims do not necessarily implicate as witnesses all of the now-settled California defendants. By contrast, none of the party witnesses resides in California, and two of them reside in New York. Given this showing, neither forum is substantially more convenient than the other for witnesses.
C. Interest of Justice
The final factor courts consider is whether transfer will serve the interest of justice. A section 1404(a) transfer serves to "`prevent the waste of time, energy, and money' and `to protect litigants, witnesses and the public against unnecessary inconvenience and expense.'" Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (citing Continental Grain Co. v. The FBL-585, 364 U.S. 19, 26-27 (1960)).
Although Defendants argue that California has a far greater interest in the controversy than New York does, that argument is belied by the allegations of misconduct and harm occurring in New York. In addition, a number of agreements relating to the relevant trust were allegedly signed in New York, and certain of Defendants' duties to Plaintiff arose out of New York contacts. Furthermore, all California defendants have been dismissed from this case. Thus, the relative interests of each forum does not greatly favor either one.
Second, the extent to which either New York law or California law would govern the claims is unsettled. Although the 1990 trust agreement contains a choice-of-law clause stating that the trust would be governed by California law, that does not absolutely decide the question. Because some of the alleged misconduct took place in New York, it is possible that New York law may apply. However, California choice-of-law rules would govern the case should it be transferred to New York. Thus, this factor weighs slightly against transfer.
As discussed above, ease of access to documentary proof is a neutral factor.
Ease of access to testimony and the availability of compulsory process weigh slightly against transfer. Under Federal Rules of Procedure 45(c)(3)(A)(ii), a non-party witness may not be compelled to testify at trial if he or she lives more than 100 miles from the trial court. Although alternatives to live testimony, such as videotaped depositions, are available, live testimony is nevertheless preferable. Indeed, one of the aims of section 1404(a) is to avoid "trial by deposition." SEC v. Kasirer, 2005 WL 645246, at *3 (N.D. Ill. Mar. 21, 2005). As stated above, there are 62 non-party witnesses, and of these, 33 are California residents and 11 are New York residents. However, also as stated above, the relative importance of these persons' potential testimony is not apparent, especially because the scope of Plaintiff's Complaint is narrowed to only the two remaining named Defendants. Furthermore, there has been no showing that important non-party witnesses would be "unwilling" to testify at trial wherever it is held. Accordingly, although this factor weighs against transfer, the Court will not accord it great weight.
"Relative court congestion is, at best, a minor factor in the section 1404 calculus." Queentex, 2000 WL 246599, at *8. The evidence presented by both sides is not persuasive that one forum is substantially more congested than the other. This factor is therefore neutral.
In sum, while some of the sub-factors for the motion to transfer are neutral or weigh slightly against transfer, and the convenience of the witnesses is neutral, the convenience of the parties weighs heavily in favor of transfer.
IV. CONCLUSION
For the reasons stated above, the Court finds that transfer of venue to the Southern District of New York is appropriate in this case. The Court therefore GRANTS Defendants' Motion to Transfer pursuant to 28 U.S.C. § 1404(a), and ORDERS the clerk to transfer the case from the Central District of California to the Southern District of New York.