Certain Underwriters at Lloyds of London v. Musket Corporation

NOTICE OF MOTION AND MOTION to Dismiss Case for Improper Venue [F.R.C.P. 12

C.D. Cal.December 14, 2016

1 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG TRAURIG, LLP Robert J. Herrington (SBN 234417) 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 TEL: 310-586-7700; FAX: 310-586-7800 Email: HerringtonR@gtlaw.com GREENBERG TRAURIG, LLP Peter S. Wahby (pro hac vice forthcoming) Peter K. Lacina (pro hac vice forthcoming) 2200 Ross Avenue, Suite 5200 Dallas, TX 75201 TEL: 214-665-3600; FAX: 214-665-3601 Email: wahbyp@gtlaw.com; lacinap@gtlaw.com Attorneys for Defendant Musket Corporation UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Certain Underwriters at Lloyd’s of London, Plaintiffs, v. Musket Corporation, Defendant. CASE NO. 2:16-cv-05726 SVW (JPRx) DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS FOR IMPROPER VENUE, OR, IN THE ALTERNATIVE, TO TRANSFER VENUE; MEMORANDUM OF POINTS AND AUTHORITIES [F.R.C.P.12 (b)(3); 28 U.S.C. § 1404] [Filed concurrently with Declaration of Jon P. Fjeld-Hansen] Date: Feb. 27, 2017 Time: 1:30 p.m. Courtroom: 10A, 350 W. 1st Street Los Angeles, CA 90012 Judge: Hon. Stephen V. Wilson Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 1 of 23 Page ID #:92 2 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO PLAINTIFFS CERTAIN UNDERWRITERS AT LLOYD’S OF LONDON AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT on February 27, 2017 at 1:30 p.m. or as soon thereafter this matter may be heard in Courtroom 10A of the United States District Court for the Central District of California, 350 W. 1st Street, Los Angeles, CA 90012, the Honorable Stephen V. Wilson presiding, and Defendant Musket Corporation (“Musket”) will and hereby moves to dismiss Plaintiff Certain Underwriters at Lloyd’s of London’s (“Underwriters”) Complaint for Declaratory Relief (“Complaint”) pursuant to Federal Rules of Civil Procedure 12(b)(3) on the grounds that, (1) venue is not proper in this Court as Underwriter’s claim is based on events with no significant ties to the Central District of California. Alternatively, Musket will move to transfer this action to the United States District Court for the Western District of Oklahoma or the Southern District of Texas pursuant to 28 U.S.C. §1404(a). This Motion will be based on this Notice of Motion, the attached Memorandum of Law, the Declaration of Jon P. Fjeld-Hansen, as well as the pleadings on file herein, arguments of counsel, if any, and upon such other and further matters adduced at a hearing or of which the Court takes judicial notice. This Motion is made following the conference of counsel which took place on December 12, 2016 after an attempt to confer on December 9, 2016. By so moving, Musket does not waive its objections to personal jurisdiction or improper venue. DATED: December 14, 2016 GREENBERG TRAURIG, LLP By /s/ Robert J. Herrington Robert J. Herrington Attorney for Defendant Musket Corporation Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 2 of 23 Page ID #:93 i DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF CONTENTS I. INTRODUCTION ..................................................................................................... 1 II. FACTUAL BACKGROUND .................................................................................... 1 III. ARGUMENT ............................................................................................................. 3 A. The Action Should Be Dismissed For Improper Venue ................................. 3 1. The Court Does Not Have Admiralty Jurisdiction Over This Case ....................................................................................................... 3 2. Venue Is Improper in this District ........................................................ 6 a. Venue Is Not Proper on the Grounds That Alleged Events and Omissions Giving Rise to the Claim Occurred in this District. ............................................................ 7 b. Plaintiff Does Not Allege in Its Complaint That Musket Resides in the Central District, and Musket Does Not Reside in this District. ................................................................ 9 B. Alternatively, the Action Should Be Transferred to a More Convenient Venue ......................................................................................... 11 1. This Action “might have been brought” in the Western District of Oklahoma or the Southern District of Texas .................................. 12 2. The Convenience of the Parties, the Convenience of the Witnesses, and the Interests of Justice Support Transfer. .................. 12 a. The Convenience of the Witnesses and the Parties Strongly Favors a Transfer ....................................................... 13 b. The Location Where the Agreement Was Negotiated and Executed Is Less Meaningful Than the Other Factors. ............ 14 c. Underwriters’ Choice of Forum Is Entitled to No Deference .................................................................................. 15 d. Contacts With the Forum. ......................................................... 15 e. The Cost of Litigation. .............................................................. 16 f. The Ease of Access to Evidence Favors a Transfer ................. 16 IV. CONCLUSION ........................................................................................................ 17 Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 3 of 23 Page ID #:94 ii DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Allstar Marketing Group, LLC v. Your Store Online, LLC, 666 F.Supp.2d 1109 (C.D. Cal. 2009) ............................................................................ 6 Alltrade. Inc., v. Uniweld Products, Inc., 946 F.2d 622 (9th Cir. 1991) ........................................................................................ 15 Aqua–Marine Constructors, Inc. v. Banks, 110 F.3d 663 (9th Cir. 1997) .......................................................................................... 4 Askew v. American Waterways Operators, Inc., 411 U.S. 325 (1973) ........................................................................................................ 4 Brewer Envtl. Indus., LLC v. Matson Terminals, Inc., No. CIV. 10-00221 LEK-KS, 2011 WL 1637323 (D. Haw. Apr. 28, 2011) ................................................................................................. 5 Carolina Cas. Co. v. Data Broad. Corp., 158 F. Supp. 2d 1044 (N.D. Cal. 2001) .................................................................... 9, 15 Commercial Lighting Products, Inc. v. U.S. Dist. Ct., 537 F.2d 1078 (9th Cir. 1976) ........................................................................................ 8 Commercial Union Ins. Co. v. Flagship Marine Servs., Inc., 190 F.3d 26 (2d Cir. 1999) ............................................................................................. 4 Cottman Transmission Systems, Inc. v. Martino, 36 F.3d 291 (3rd Cir. 1994) ............................................................................................ 8 Daimler AG v. Bauman, 134 S. Ct. 746 (2014) .................................................................................................... 10 DVI, Inc. v. Superior Court, 104 Cal. App. 4th 1080 (2002) ..................................................................................... 10 E. & J. Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465 (N.D. Cal. 1994) ............................................................................... 15 Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153 (10th Cir. 2010) ...................................................................................... 7 Firstar Bank v. Faul, 253 F.3d 982 (7th Cir. 2001) .......................................................................................... 6 FTC v. Cephalon, Inc., 551 F. Supp. 2d 21 (D.D.C. 2008) ................................................................................ 15 Goodyear Tire & Rubber Co. v. McDonnell Douglas Corp., 820 F. Supp. 503 (C.D. Cal. 1992) ............................................................................... 12 Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 4 of 23 Page ID #:95 iii DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Gray Line Tours v. Reynolds Electrical & Engineering Co., 193 Cal. App. 3d 190 (1987) ........................................................................................ 10 Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353 (2nd Cir. 2005) ......................................................................................... 8 Hoover Grp. v. Custom Metalcraft, Inc., 84 F.3d 1408 (Fed. Cir. 1996) ........................................................................................ 6 Ingersoll Milling Mach. Co. v. M/V Bodena, 829 F.2d 293 (2d Cir. 1987) ........................................................................................... 4 Jenkins Brick Co. v. Bremer, 321 F.3d 1366 (11th Cir. 2003) .................................................................................. 7, 8 Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000) .................................................................................. 12, 13 Kalmbach, Inc. v. Ins. Co. of the State of Penn., 529 F.2d 552 (9th Cir. 1976) .......................................................................................... 5 La Reunion Francaise SA v. Barnes, 247 F.3d 1022 (9th Cir. 2001) ........................................................................................ 3 Lueck v. Sundstrand Corp., 236 F.3d 1137 (9th Cir. 2001) ...................................................................................... 15 Martin v. D-Wave Sys. Inc., No. C-09-03602 RMW, 2009 WL 4572742 (N.D. Cal. Dec. 1, 2009) ........................ 10 Martinez v. Aero Caribbean, 764 F.3d 1062 (9th Cir. 2014) ...................................................................................... 10 Myers v. Bennett Law Offices, 238 F.3d 1068 (9th Cir. 2001) ........................................................................................ 8 Norfolk S. Ry. Co. v. Kirby, 543 U.S. 14 (2004) ...................................................................................................... 4, 5 Overhill Farms Inc. v. W. Liberty Foods LLC, No. CV 14-03533-RSWL, 2014 WL 4180920 (C.D. Cal. Aug. 21, 2014) .................. 11 Picot v. Weston, 780 F.3d 1206 (9th Cir. 2015) ...................................................................................... 10 Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491 (9th Cir. 1979) .......................................................................................... 6 Ranza v. Nike, Inc., 793 F.3d 1059 (9th Cir. 2015) ...................................................................................... 10 Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 5 of 23 Page ID #:96 iv DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sentry Select Ins. Co. v. Royal Ins. Co. of Am., 481 F.3d 1208 (9th Cir. 2007) ........................................................................................ 5 Those Certain Underwriters at Lloyd's of London v. Eugene Horton, LLC, No. C11-2111RSM, 2012 WL 1642208 (W.D. Wash. May 10, 2012) .......................... 4 Uffner v. LaReunion Francaise, S.A., 244 F.3d 38 (1st Cir. 2001) ............................................................................................. 8 Van Dusen v. Barrack, 376 U.S. 612 (1964) ...................................................................................................... 12 Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310 (1955) ........................................................................................................ 4 Zurich Am. Ins. v. Guam Indus. Servs., No. C 11-01874 MEJ, 2011 WL 3809804 (N.D. Cal. Aug. 29, 2011) ........................ 14 Statutes 28 U.S.C. § 1333(1) ............................................................................................................. 3 28 U.S.C. § 1390(b) ........................................................................................................... 11 28 U.S.C. § 1391(b) ................................................................................................... 6, 7, 10 28 U.S.C. § 1391(b)(1)......................................................................................................... 7 28 U.S.C. § 1391(b)(2)........................................................................................... 6, 7, 9, 12 28 U.S.C. § 1391(c)(2) ....................................................................................................... 10 28 U.S.C. § 1391(d) ........................................................................................................... 10 28 U.S.C. §§ 1404-07 ........................................................................................................ 11 28 U.S.C. § 1404(a) ................................................................................................. 1, 11, 12 28 U.S.C. § 1406(a) ................................................................................................... 1, 6, 10 Rules FED. R. CIV. P. 12(b)(3) .................................................................................................... 1, 6 Other Authorities Schwarzer, Tashima and Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial ................................................................................................................................. 7 Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 6 of 23 Page ID #:97 1 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Underwriters initiated this action for declaratory judgment to determine the parties’ respective rights and obligations under certain policies of insurance issued by Underwriters. This action is now before the Court on Musket’s motion to dismiss or transfer pursuant to FED. R. CIV. P. 12(b)(3) and 28 U.S.C. §1406(a) (improper venue) and, alternatively, 28 U.S.C. §1404(a) (change of venue). This action should be dismissed for improper venue as the material events and omissions giving rise to the coverage questions did not occur in the Central District of California. Musket is not a resident of this District and all events related to the damage or loss to Musket’s rolling stock occurred outside of the District. In this case, the issue of improper venue should not be based on federal maritime law as its application is inappropriate for this case. Alternatively, this action should be transferred to a more appropriate jurisdiction of the Western District of Oklahoma or the Southern District of Texas. Musket is an Oklahoma corporation with its principal place of business in Houston, Texas. Importantly, the key activities related to the railcars occurred in Texas and Oklahoma, and thus the vast majority of witnesses are in or near these two states. Accordingly, Musket requests dismissal of this lawsuit for improper venue or a transfer to venues that are clearly more appropriate for this action. II. FACTUAL BACKGROUND Musket operates a fleet of leased rolling stock (i.e., tankcars or “railcars”) which it uses to transport crude oil to various locations in the United States. (See Compl. ¶ 8.) During the process of returning certain railcars at the end of the railcars’ respective lease terms, inspections revealed corrosion in certain railcars that carried crude oil. Musket initiated a claim to Underwriters and other parties under several insurance policies covering these railcars (the “Claim”), including Policy No. 11RU15013 and two renewals Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 7 of 23 Page ID #:98 2 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 to this policy (collectively, the “Policy”) that Underwriters made the basis of the Complaint’s request for declaratory relief. Underwriters assert that the policy is subject to the federal admiralty jurisdiction because the “policies provide insurance coverage for goods at sea, in inland marine transportation and storage as those terms are customarily used in the marine insurance industry.” (See Compl. ¶¶ 4-5.) The railcars, however, carried commodities entirely on land. (See Fjeld-Hansen Decl. ¶ 4; see also Compl. ¶ 8 (“Musket operates a fleet of leased railcars which it uses to transport crude oil and various petroleum products throughout the United States”); Compl. ¶ 10 (Musket’s fleet of leased railcars . . . delivers the crude oil to various refineries and storage facilities located throughout the United States”).) The railcars were not loaded onto ships or barges. (See Fjeld-Hansen Decl. ¶ 4.) Musket did not hold title to any crude oil moved on a barge or ship. (See id.) Musket did not charter any barges or ships to transport crude oil. (See id.) To the extent any fraction of crude oil that Musket shipped in by rail was ultimately shipped over water or stored on barges, Musket was not a party to any such shipping or storage arrangements. (See id.) In sum, Musket’s rail activities were separate from marine activities. Moreover, only a fraction of the coverage under the Policy included ocean transport. (See Compl., Ex. A, pp. 51, 56, 59 (showing minor values for ocean transport relative to non-maritime coverage).) Underwriters initiated suit in the Central District of California, but Musket does not own any real estate in the District. (See Fjeld-Hansen Decl. ¶ 5.) Musket did not send its railcars into the Central District of California. (See Fjeld-Hansen Decl. ¶ 5.) The sole basis alleged by Underwriters to connect Musket with this jurisdiction is apparently that the insurance policies “were executed, issued and delivered to the Insured in Los Angeles, California” in a paragraph titled “Signature of this Assurer” added to the Policy immediately above the signature of Underwriters’ representative. (See Compl. ¶ 7; Compl., Ex. A, p. 33.) Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 8 of 23 Page ID #:99 3 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The vast majority of activities related to Musket’s Claim and this lawsuit occurred in Oklahoma, Texas, and nearby states. Musket is an Oklahoma corporation with its primary place of business in Texas, but with substantial activities in Oklahoma City, including coordination of rail activities. (See Fjeld-Hansen Decl. ¶¶ 6-7.) Underwriters also acknowledge that significant rail-related activity occurred in Texas and Oklahoma, stating that, “[a]fter an extensive investigation conducted by a multi-discipline team of expert consultants which included site visits in Georgia, Oklahoma, Texas and Kansas . . . .” (Compl. ¶ 15.) Musket’s railcars have been cleaned, maintained, inspected, and/or repaired in locations including shops in: Saginaw, Texas; Channelview, Texas; Elmendorf, Texas; Cleveland, Texas; Orange, Texas, and Hugo, Oklahoma. (See Fjeld- Hansen Decl. ¶ 10.) Significant repair-related work on the interior of the railcars was conducted in Saginaw, Texas, Channelview, Texas, and Hugo, Oklahoma. (See Fjeld- Hansen Decl. ¶ 10.) Nonetheless, in order to avoid a more suitable jurisdiction, and despite the lack of witnesses, documents or activities in California, Underwriters initiated suit in California. III. ARGUMENT A. The Action Should Be Dismissed For Improper Venue An analysis of the underlying facts and allegations of this case shows the Underwriters’ selection of an improper venue. An analysis of venue should not be conducted using federal maritime law as such admiralty jurisdiction does not apply to this action. 1. The Court Does Not Have Admiralty Jurisdiction Over This Case Underwriters’ cause of action does not invoke maritime jurisdiction. Underwriters assert that maritime jurisdiction applies “pursuant to 28 U.S.C. § 1333(1) in that all asserted claims derive from policies of marine insurance, each of which are maritime contracts subject to the federal admiralty jurisdiction.” (See Compl. ¶ 4, see also ¶ 5.) Admiralty jurisdiction, however, does not attach simply because a contract is labeled as a “marine insurance policy.” La Reunion Francaise SA v. Barnes, 247 F.3d 1022, 1025 Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 9 of 23 Page ID #:100 4 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (9th Cir. 2001); Those Certain Underwriters at Lloyd’s of London v. Eugene Horton, LLC, No. C11-2111RSM, 2012 WL 1642208, at *3 (W.D. Wash. May 10, 2012). Even where a court finds that a contract is a maritime one, the court must then determine whether the parties’ dispute is inherently local. As explained by the Supreme Court in Norfolk S. Ry. Co. v. Kirby, a “maritime contract’s interpretation may so implicate local interests as to beckon interpretation by state law. . . . [W]hen state interests cannot be accommodated without defeating a federal interest . . . then federal substantive law should govern.” 543 U.S. 14, 27 (2004) (explaining that “[w]hen a contract is a maritime one, and the dispute is not inherently local, federal law controls the contract interpretation”); Wilburn Boat Co. v. Fireman’s Fund Ins. Co., 348 U.S. 310, 313 (1955) (applying state law to maritime contract for marine insurance because of state regulatory power over insurance industry). As the Ninth Circuit explained in Aqua– Marine Constructors, Inc. v. Banks, “disputes over maritime insurance contracts may be governed by state law, in the same manner as non-maritime insurance contracts, as long as the state law does not clearly conflict with federal maritime law.” 110 F.3d 663, 667- 68 (9th Cir. 1997) (citing Askew v. American Waterways Operators, Inc., 411 U.S. 325, 341 (1973)). To determine whether application of state law is appropriate under federal maritime law, courts inquire whether any federal statute governs the interpretation of the policy provisions at issue in this case, and here there are apparently none. See Wilburn Boat Co., 348 U.S. 310, 314, 321 (“Since Congress has not taken over regulation of marine insurance contracts . . . there is no possible question here of conflict between a state law and any federal statute.”). Next, as to whether there is a specific, federal, judicially-created rule governing the interpretation of this policy, and there are apparently none. See, e.g., Commercial Union Ins. Co. v. Flagship Marine Servs., Inc., 190 F.3d 26, 30 (2d Cir. 1999) (finding “no specific federal rule governing construction of maritime insurance contracts”). Instead, general principles of contract law are used to interpret marine insurance policies. See id.; see, e.g., Ingersoll Milling Mach. Co. v. M/V Bodena, Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 10 of 23 Page ID #:101 5 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 829 F.2d 293, 306 (2d Cir. 1987) (noting the principle that an ambiguous insurance contract “will generally be construed against the insurer who drafted it in order to promote coverage for losses to which the policy relates . . . applies to all types of insurance policies[,] including maritime policies”) (citations omitted); Kalmbach, Inc. v. Ins. Co. of the State of Penn., 529 F.2d 552, 555 (9th Cir. 1976) (“[W]e can see no significant difference between construction of an ordinary insurance policy and one with marine insurance overtones. In general, each is to be construed against the insurance company”). Federal substantive law governs when state interests cannot be accommodated without defeating a federal interest. See Kirby, 543 U.S. 14, 23. But, that is not a concern here. The relevant Policy provisions, and all underlying facts in this lawsuit (see Fjeld-Hansen Decl. ¶ 4), are unrelated or not unique to maritime law. Beyond coverage under a policy titled “Marine Cargo Policy”, no other facts or activities related to the Declaratory Judgment relate to maritime activities. Therefore, as there is apparently no federal statute or judicially-created rule governing the interpretation of the relevant provisions of these maritime insurance policies, in this matter, state law should apply. See Brewer Envtl. Indus., LLC v. Matson Terminals, Inc., No. CIV. 10-00221 LEK-KS, 2011 WL 1637323, at *4 (D. Haw. Apr. 28, 2011) (court could not discern any direct conflict between Hawai’i contract law and federal maritime law thus finding that Hawai’i state law applies to claims arising from an insurance policy). Further, under an inquiry of whether the “principle objective of a contract is maritime commerce,” as discussed in Sentry Select Ins. Co. v. Royal Ins. Co. of Am., 481 F.3d 1208, 1218 (9th Cir. 2007), the contract reveals that only a fraction of the policy relates to ocean transport. (See Compl., Ex. A, pp. 51, 56, 59.) The Policy shows that the vast majority of the coverage applies to inland storage and transport that have no apparent tie to the ocean movements. (See id.) Using maritime jurisdiction to the matter under these facts does not “protect[] the uniformity of federal maritime law.” Kirby, 543 U.S. 14, 23. Nothing in this lawsuit relates to maritime commerce; application of Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 11 of 23 Page ID #:102 6 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 maritime jurisdiction does not protect uniformity of federal maritime law but merely expands it. As such, maritime jurisdiction is inapplicable. 2. Venue Is Improper in this District Musket moves the court to dismiss this action under Federal Rules of Civil Procedure 12(b)(3) on the ground that it is brought in the wrong district, in that it appears on the face of the complaint that: (1) jurisdiction of this action is founded only on diversity of citizenship as maritime jurisdiction is inapplicable; and (2) the judicial district in which this action was brought does not satisfy any of the three alternative requirements for proper venue in civil actions, as such requirements are set forth in Title 28, United States Code, Section 1391(a). See 28 U.S.C. § 1406(a); FED. R. CIV. P. 12(b)(3). “The plaintiff has the burden of showing that venue is proper in this district.” Allstar Marketing Group, LLC v. Your Store Online, LLC, 666 F. Supp. 2d 1109, 1126 (C.D. Cal. 2009), citing Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). Venue requirements are for the benefit of defendants. Hoover Grp. v. Custom Metalcraft, Inc., 84 F.3d 1408 (Fed. Cir. 1996). The concept of venue is designed to protect the defendant and the witnesses against a plaintiff’s choice of an unfair or inconvenient venue. Firstar Bank v. Faul, 253 F.3d 982, 989-90 (7th Cir. 2001) (acknowledging that the primary purpose of venue statutes is to limit inconvenience to the parties). Underwriters assert that venue would be proper under 28 U.S.C. § 1391(b)(2) in that the subject insurance policies “were executed by Underwriters’ authorized representative, issued and delivered to the Insured in Los Angeles, California.” (See Compl. ¶ 7.) Pursuant to 28 U.S.C. § 1391(b), a lawsuit may be brought in: (1) a judicial district in which any defendant resides, if all defendants are residents of the State in which the district is located; Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 12 of 23 Page ID #:103 7 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if there is no district in which an action may otherwise be brought as provided in this section, any judicial district in which any defendant is subject to the court’s personal jurisdiction with respect to such action. 28 U.S.C. § 1391(b). The Central District of California does not fit into these categories. a. Venue Is Not Proper on the Grounds That Alleged Events and Omissions Giving Rise to the Claim Occurred in this District. The Complaint does not allege facts to suggest that Musket resides in this district pursuant to § 1391(b)(1). Instead, the Complaint only attempts to satisfy § 1391(b)(2), alleging that venue is proper here because the insurance policies “were executed by Underwriters’ authorized representative, issued and delivered to the Insured in Los Angeles, California,” and, as a result, “a substantial part of the events giving rise to the claim at issue in this dispute occurred within this District.” (See Compl. ¶ 7.) This contention is insufficient. In determining whether venue is proper under § 1391(b)(2), only those events and omissions that directly give rise to the claim are relevant (“only those acts and omissions that have a close nexus to the wrong”). Schwarzer, Tashima and Wagstaffe, Cal. Prac. Guide: Fed. Civ. Pro. Before Trial, ¶ 4:315 (emphasis in original) (citing Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1372 (11th Cir. 2003)). Courts therefore engage in a two part analysis to determine where “a substantial part of the events or omissions” took place. First, courts examine the nature of plaintiff’s claims and the acts or omissions underlying those claims. Second, courts determine whether substantial events material to those claims occurred in the forum district. Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1166 (10th Cir. 2010). (1) The Nature of Underwriters’ Claims. Underwriters assert a request for declaratory relief as to whether the loss or damage comprising the Claim is subject to coverage under the Policy. Underwriters, Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 13 of 23 Page ID #:104 8 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 however, do not assert that any acts or omissions underlying the Claim or request for declaratory relief occurred in this District. Further, Underwriters are not requesting a declaration as to whether the Policy or any provision is valid or has been breached, but only whether facts relating to the loss or damage is covered by the Policy. (2) Whether a “Substantial Part” of the Events Giving Rise to Underwriters’ Claims Occurred in this District. What constitutes a “substantial part” of the events or omissions giving rise to the claim is a question of federal law. Commercial Lighting Products, Inc. v. U.S. Dist. Ct., 537 F.2d 1078, 1079 (9th Cir. 1976). Courts are “. . . required to construe the venue statute strictly.” Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 357 (2nd Cir. 2005). “That means for venue to be proper, significant events or omissions material to the plaintiff’s claim must have occurred in the district in question, even if other material events occurred elsewhere. It would be error, for instance, to treat the venue statute’s ‘substantial part’ test as mirroring the minimum contacts test employed in personal jurisdiction inquiries.” Id. (emphasis in original). The “substantiality” requirement is “. . . intended to preserve the element of fairness so that a defendant is not haled into a remote district having no real relationship to the dispute.” Cottman Transmission Systems, Inc. v. Martino, 36 F.3d 291, 294 (3rd Cir. 1994). In determining where a “substantial part” of the “events or omissions” occurred, most courts look “not to a single ‘triggering event’ prompting the action, but to the entire sequence of events underlying the claim.” See Uffner v. LaReunion Francaise, S.A., 244 F.3d 38, 42 (1st Cir. 2001). What constitutes a “substantial part” is to be determined in light of the purpose of the venue statute: “(T)he substantiality of the operative events is determined by assessment of their ramifications for efficient conduct of the suit.” Myers v. Bennett Law Offices, 238 F.3d 1068, 1076 (9th Cir. 2001). “Only the events that directly give rise to a claim are relevant. And of the places where the events have taken place, only those locations hosting a ‘substantial part’ of the events are to be considered.” Jenkins Brick, 321 F.3d at 1371. Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 14 of 23 Page ID #:105 9 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In “an insurance coverage action, a court looks to the underlying events for which coverage is sought.” Carolina Cas. Co. v. Data Broad. Corp., 158 F. Supp. 2d 1044, 1047 (N.D. Cal. 2001). This approach makes eminent sense when, as here, the action is a dispute over whether an event qualifies for coverage under a particular insurance policy. See Compl. ¶ 22 (Underwriters assert that an “actual controversy now exists between Underwriters and Musket concerning whether or not Musket has carried its burden of establishing that the alleged loss or damage comprising the Claim is subject to coverage under the Policies.”) In this scenario, the facts surrounding Musket’s loss are integral to a determination of coverage. No events causing or relating to damages to Musket’s railcars occurred in the Central District of California. Underwriters initiated suit in the Central District of California, but Musket does not own any facilities in California and did not send its railcars into the Central District of California. (See Fjeld-Hansen Decl. ¶ 5.) The sole basis alleged by Underwriters to connect Musket with this District is a recitation that the “Assurer has executed, issued and delivered this policy in Los Angeles, California” in a paragraph titled “Signature of this Assurer” placed immediately above the signature of Underwriters’ representative. (See Compl. ¶ 7; Compl., Ex. A, p. 33.) Neither party is incorporated or has its principal place of business in the District, however, and nothing else in the Policy references California. Further, the location of execution, issuance, and delivery is not material to the nature of Underwriters’ lawsuit and is not one of the underlying events for which coverage is sought. Accordingly, a substantial part of the events or omissions giving rise to the claim did not occur in the Central District of California. 28 U.S.C. §1391(b)(2). b. Plaintiff Does Not Allege in Its Complaint That Musket Resides in the Central District, and Musket Does Not Reside in this District. Underwriters did not assert that Musket resides in the Central District of California, instead, merely stating for jurisdictional purposes that Musket is “incorporated under the laws of the State of Oklahoma with a principal place of business in the State of Oklahoma.” (See Compl. ¶ 3.) For residency of an entity, it “shall be Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 15 of 23 Page ID #:106 10 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deemed to reside, if a defendant, in any judicial district in which such defendant is subject to the court’s personal jurisdiction with respect to the civil action in question.” 28 U.S.C. §1391(c)(2). As for the residency of a corporation in a state with multiple districts, such as California, “such corporation shall be deemed to reside in any district in that State within which its contacts would be sufficient to subject it to personal jurisdiction if that district were a separate State . . . .” 28 U.S.C. §1391(d). General Jurisdiction does not exist, however, because Musket’s affiliations with the forum must be “so ‘continuous and systematic’ as to render them essentially at home in the forum[.]” Daimler AG v. Bauman, 134 S. Ct. 746, 751 (2014). In the case of a corporation, “[t]he paradigmatic locations where general jurisdiction is appropriate . . . are its place of incorporation and its principal place of business” which, for Musket, are not in California. Ranza v. Nike, Inc., 793 F.3d 1059, 1069 (9th Cir. 2015). “Only in an ‘exceptional case’ will general jurisdiction be available anywhere else.” Martinez v. Aero Caribbean, 764 F.3d 1062, 1070 (9th Cir. 2014). As for specific jurisdiction, the cause of action “must be one which arises out of or relates to the defendant’s forum- related activities” and “must be reasonable.” Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015). Here, this is not such an exceptional case to allow general jurisdiction, and the underlying events leading to the dispute did not occur in the District as Musket does not bring its railcars to deliver commodities to the District to conduct any rail-related activities. (Fjeld-Hansen Decl. ¶ 5.) To the extent Underwriters attempt to argue that appointing an agent for service of process within California constitutes consent to jurisdiction, California courts have declined to find consent jurisdiction based on mere appointment of a California agent for service of process. See, e.g., DVI, Inc. v. Superior Court, 104 Cal. App. 4th 1080, 1095 (2002) (finding no personal jurisdiction even though the defendant company registered to do business in California, maintained a California agent for service of process, and had two officers residing in California); Gray Line Tours v. Reynolds Electrical & Engineering Co., 193 Cal. App. 3d 190, 193-95 (1987) (holding that designation of an Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 16 of 23 Page ID #:107 11 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 agent for service of process and qualification to do business in California alone do not constitute grounds for general jurisdiction); see also Overhill Farms Inc. v. W. Liberty Foods LLC, No. CV 14-03533-RSWL, 2014 WL 4180920, at *4 (C.D. Cal. Aug. 21, 2014) (acknowledging that, “while it is relevant that Defendant may be registered to do business and has designated an agent for service of process in California, these acts alone are insufficient to support a finding of general jurisdiction over Defendant”); Martin v. D-Wave Sys. Inc., No. C-09-03602 RMW, 2009 WL 4572742, at *2 (N.D. Cal. Dec. 1, 2009).1 Underwriters do not assert Musket resides in the Central District of California, and, regardless, musket does not. Accordingly, venue is improper in the Central District of California. 28 U.S.C. §1391(b). Musket requests that the Court dismiss, or alternatively, transfer this case to a more appropriate district. 28 U.S.C. §1406(a). B. Alternatively, the Action Should Be Transferred to a More Convenient Venue If the Court declines to dismiss the action for improper venue, the Court may, and should, transfer the action to the U.S. District Court for the Southern District of Texas, or the Western District of Oklahoma, pursuant to 28 U.S.C. §1404(a). The Court can transfer this case to a more appropriate venue whether jurisdiction rests in admiralty or diversity. See 28 U.S.C. § 1390(b) (providing that admiralty disputes are subject to the general transfer provisions in 28 U.S.C. §§ 1404-07). Section 1404(a) provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” 28 U.S.C. § 1404(a). The purpose of §1404(a) “is to prevent the waste of 1 To the extent Underwriters argue that another district in California has personal jurisdiction over Musket sufficient to transfer to that district, or, instead, sufficient contacts to permit venue in this District under a federal maritime law analysis, Underwriters do not sufficiently assert such jurisdiction or venue. Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 17 of 23 Page ID #:108 12 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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). Section 1404(a) provides the court with broad discretion to transfer an action to a different venue according to an “individualized, case-by-case consideration of convenience and fairness.” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). In assessing a transfer request, the court engages in a two-step analysis. First, the defendant must establish that the matter “might have been brought” in the district to which transfer is sought. 28 U.S.C. § 1404(a). Second, the court must balance the convenience of the parties and witnesses and the interest of justice. See Goodyear Tire & Rubber Co. v. McDonnell Douglas Corp., 820 F. Supp. 503, 506 (C.D. Cal. 1992). 1. This Action “might have been brought” in the Western District of Oklahoma or the Southern District of Texas This action “might have been brought” in the Western District of Oklahoma and the Southern District of Texas because the requirements for subject matter jurisdiction, personal jurisdiction, and proper venue are met. 28 U.S.C. § 1404(a). Musket is an Oklahoma corporation with its principal place of business in Houston, Texas and with offices in Oklahoma City, Oklahoma. (Fjeld-Hansen Decl., ¶ 6.) As such, Musket is subject to personal jurisdiction in these states and resides in these districts. Finally, venue is proper in “a judicial district in which a substantial part of the events . . . giving rise to the claim occurred” under 28 U.S.C. § 1391(b)(2), thus venue is appropriate under this analysis or under a maritime jurisdiction analysis. 2. The Convenience of the Parties, the Convenience of the Witnesses, and the Interests of Justice Support Transfer. Next, a court must balance three general factors consisting of the convenience of the parties, the convenience of the witnesses, and the interests of justice. 28 U.S.C. § 1404(a). In determining this, courts often consider a number of factors including: (1) the location where the relevant agreements were negotiated and executed; (2) the state that is Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 18 of 23 Page ID #:109 13 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 most familiar with the governing law; (3) the plaintiff’s choice of forum; (4) the respective parties’ contacts with the forum; (5) the contacts relating to the plaintiff’s cause of action in the chosen forum; (6) the differences in the costs of litigation in the two forums; (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses; and (8) the ease of access to sources of proof. See, e.g., GNC Franchising, 211 F.3d at 498-99. These factors clearly favor a transfer. a. The Convenience of the Witnesses and the Parties Strongly Favors a Transfer The convenience of the party and non-party witnesses, and the parties, clearly favors a transfer. Musket personnel located in Oklahoma City, Oklahoma who coordinated the movement, maintenance, and the return of the railcars at the end of their respective leases and may provide important testimony, include, among others: (a) Doug Lumry, General Manager - Crude and Rail Operations for Musket, who manages rail transport and crude trucking and would testify on matters including the return of railcars to the railcar lessors, the cleaning and inspections of the railcars at the end of the lease, and the asserted damages to the railcars and resulting costs; (b) Thad Davis, senior logistics coordinator; (c) Shane Farmer, Rail Logistics Specialist, knowledgeable of rail movements and records thereto; and (d) Ron Harrison, Rail Analyst, knowledgeable of records including those relating to railcar history, inspections, and invoicing. (Fjeld- Hansen Decl., ¶ 7.) Musket’s personnel in Houston, Texas who may provide important testimony, include, among others: (a) Jon P. Fjeld-Hansen, Managing Director and Vice President for Musket Corporation, with knowledge of Musket’s operations and the logistics involving crude oil and multiple other commodities; and (b) Al Finn, Manager of Terminals and Equipment, who has facts and knowledge of the condition, maintenance and inspection of the railcars and the regulations and processes thereto. (Fjeld-Hansen Decl., ¶ 8.) The employees in these offices frequently travel between these two offices. (Fjeld-Hansen Decl., ¶ 6.) Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 19 of 23 Page ID #:110 14 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Further, nearly all activities and inspections relating to the use and return of the railcars to lessors at the end of the lease periods, including a determination of any damages, occurred primarily in or near Oklahoma and Texas. (Fjeld-Hansen Decl., ¶ 10); (Compl. ¶ 15 (“[a]fter an extensive investigation conducted by a multi-discipline team of expert consultants which included site visits in Georgia, Oklahoma, Texas and Kansas . . . .”).) Musket’s railcars have been cleaned, maintained, inspected, and/or repaired at locations including: Saginaw, Texas (Trinity Rail Maintenance Services); Channelview, Texas (Rescar Companies); Elmendorf, Texas (Strataflex Midstream); Cleveland, Texas (Union Tank Car Company); Orange, Texas (Rescar Companies); and Hugo, Oklahoma (Trinity Rail Maintenance Services). (Fjeld-Hansen Decl., ¶ 10). Significant repair-related work to the interior of the railcars was conducted in Saginaw, Texas, Channelview, Texas, and Hugo, Oklahoma. (See id.) One of the principal lessors of railcars to Musket, Trinity Industries, is headquartered in Dallas, Texas. (Fjeld- Hansen Decl., ¶ 11). Musket may call witnesses from each of these facilities or organizations. Thus, proceeding in Oklahoma or Texas would be far more convenient and less costly for the parties and non-parties. b. The Location Where the Agreement Was Negotiated and Executed Is Less Meaningful Than the Other Factors. Underwriters assert that the Policy was “executed, issued and delivered to the Insured in Los Angeles, California.” (See Compl. ¶ 7.) The events giving rise to the lawsuit, however, occurred primarily in Texas and Oklahoma, thus supporting transfer. See Zurich Am. Ins. v. Guam Indus. Servs., No. C 11-01874 MEJ, 2011 WL 3809804, at *4 (N.D. Cal. Aug. 29, 2011) (determining that, while plaintiffs argued that the facts giving rise to this lawsuit occurred in San Francisco—where plaintiffs argue the insurance policy at issue was negotiated and drafted—the events giving rise to the claims under the policy are “what actually triggered [p]laintiffs to deny liability and spawned this lawsuit” and thus “supports a finding that this action is more appropriately litigated in Guam, where the events giving rise to the insurance dispute occurred”). Accordingly, Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 20 of 23 Page ID #:111 15 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the alleged execution of the document in the Central District of California is of lesser importance in this analysis. c. Underwriters’ Choice of Forum Is Entitled to No Deference In many cases, a plaintiff’s choice of forum is entitled to some amount of deference. Here, however, the action involves a non-resident plaintiff and thus Underwriters’ choice of forum receives less deference. Lueck v. Sundstrand Corp., 236 F.3d 1137, 1143 (9th Cir. 2001); Carolina Cas. Co. v. Data Broadcasting Corp., 158 F. Supp. 2d 1044, 1048 (N.D. Cal. 2001). Indeed, Underwriters do not appear to have any particular connection to this forum except that its attorneys have their office here. (Compl. p. 1 and ¶ 2.) Accordingly, Underwriters’ choice of forum should get no deference, as attorney convenience plays no part in a § 1404(a) determination. FTC v. Cephalon, Inc., 551 F. Supp. 2d 21, 26-27 (D.D.C. 2008); E. & J. Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465, 466 (N.D. Cal. 1994). Furthermore, the Ninth Circuit has established that courts should disregard a plaintiff’s forum choice where the suit is a result of forum-shopping. See Alltrade. Inc., v. Uniweld Products, Inc., 946 F.2d 622, 628 (9th Cir. 1991); Carolina Cas. Co., 158 F. Supp. 2d at 1048 (stating that if “there is any indication that plaintiff’s choice of forum is the result of forum shopping, plaintiff’s choice will be accorded little deference”). One could rationally infer forum shopping here, in addition to a race to the courthouse to file an anticipatory suit, based on Underwriters’ filing of the Complaint on August 2, 2016, but holding off on service until October 21, 2016. (See Dkt. 9.) d. Contacts With the Forum. As set forth, above, Musket and Underwriters’ have minimal contacts with California. As for the Underwriters, the Complaint merely states that “Underwriters were doing business in London, England,” thus no allegations tie Underwriters to a particular district. (See Compl. ¶ 2.) Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 21 of 23 Page ID #:112 16 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 e. The Cost of Litigation. The costs of litigation would be greatly diminished by transfer to Texas or Oklahoma as Musket intends to call multiple employee and non-employee witnesses in these locations. Additionally, attorney rates are likely to be lower than in California. According to the United States Consumer Law Attorney Fee Survey Report for 2013- 2014, the average large firm attorney rate in the South (including Oklahoma) is $393 per hour and in Texas is $410 per hour, compared with $423 for a comparable California attorney. See, e.g., United States Consumer Law Attorney Fee Survey Report for 2013- 2014, Ronald L. Burge, https://www.nclc.org/images/pdf/litigation/fee-survey-report- 2013-2014.pdf. f. The Ease of Access to Evidence Favors a Transfer The ease of access to evidence favors a transfer, although modern conveniences have resulted in the easy transfer of documents across jurisdictions. Nevertheless, in this action, the Musket’s evidence is located in Oklahoma and Texas. (Fjeld-Hansen Decl., ¶ 9). Particularly, Musket’s records concerning the use, maintenance, and repair history of the railcars, its insurance records, and its financial records are all located in Oklahoma or Texas. Moreover, the most likely non-party lessors or repair facilities are located in these states and certainly much closer than California. (Fjeld-Hansen Decl., ¶¶ 10-11.) Weighing all relevant factors, this action should be transferred to Western District of Oklahoma or the Southern District of Texas. Most importantly, the facts underlying the dispute arose elsewhere, and few, if any, witnesses or evidence may be found in this District. Rather, the witnesses and evidence are primarily located in Oklahoma and Texas. /// /// Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 22 of 23 Page ID #:113 17 DEFENDANT’S MOTION TO DISMISS OR TO TRANSFER DAL 79808359v9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IV. CONCLUSION Based upon the facts and authorities set forth in this motion, this memorandum of law, the declaration and the exhibits thereto, Musket submits that this action should be dismissed or, alternatively, transferred to the United States District Courts for the Western District of Oklahoma or the Southern District of Texas. DATED: December 14, 2016 Respectfully submitted, By /s/ Robert J. Herrington Robert J. Herrington GREENBERG TRAURIG, LLP Attorney for Defendant Musket Corporation Case 2:16-cv-05726-SVW-JPR Document 17 Filed 12/14/16 Page 23 of 23 Page ID #:114 DECLARATION OF JON P. FJELD-HANSEN IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS DAL 79810173v5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GREENBERG TRAURIG, LLP Robert J. Herrington (SBN 234417) 1840 Century Park East, Suite 1900 Los Angeles, CA 90067 TEL: 310-586-7700; FAX: 310-586-7800 Email: HerringtonR@gtlaw.com GREENBERG TRAURIG, LLP Peter S. Wahby (pro hac vice forthcoming) Peter K. Lacina (pro hac vice forthcoming) 2200 Ross Avenue, Suite 5200 Dallas, TX 75201 TEL: 214-665-3600; FAX: 214-665-3601 Email: wahbyp@gtlaw.com; lacinap@gtlaw.com Attorneys for Defendant Musket Corporation UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Certain Underwriters at Lloyd’s of London, Plaintiffs, v. Musket Corporation, Defendant. CASE NO. 2:16-cv-05726 SVW (JPRx) DECLARATION OF JON P. FJELD- HANSEN IN SUPPORT OF DEFENDANT’S NOTICE OF MOTION AND MOTION TO DISMISS FOR IMPROPER VENUE, OR, IN THE ALTERNATIVE, TO TRANSFER VENUE; MEMORANDUM OF POINTS AND AUTHORITIES [F.R.C.P. 12(b)(3); 28 U.S.C. § 1404] Case 2:16-cv-05726-SVW-JPR Document 17-1 Filed 12/14/16 Page 1 of 4 Page ID #:115 2 DECLARATION OF JON P. FJELD-HANSEN IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS DAL 79810173v5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I, Jon P. Fjeld-Hansen, make this unsworn Declaration pursuant to 28 U.S.C. § 1746, and declare as follows: 1. My name is Jon P. Fjeld-Hansen. I am over twenty-one (21) years of age, I have never been convicted of a felony or crime of moral turpitude, and I am of sound mind and competent and capable of making this Declaration. I have personal knowledge of the facts herein, and if called upon to testify concerning these facts under oath, I could and would do so competently. 2. I am Managing Director and Vice President for Musket Corporation (“Musket”). In that capacity, I supervise and participate in handling the logistics and operations of Musket, including the purchasing, sale, storage, and transport of crude oil and other commodities, in addition to negotiations of contracts related to these functions. 3. I have 25 years of experience in the oil business, including marketing, trading, and logistics involving crude oil, plus multiple other commodities including refined products, natural gas, renewable fuels, alternative energy and natural gas liquids. 4. Musket operates a fleet of leased rolling stock, or railcars, which it uses to transport crude oil and other commodities to locations in the United States. Musket’s railcars carried commodities entirely on land and the railcars were not loaded unto ships or barges. Musket did not hold title to any crude oil moved on a barge or ship. Musket did not charter any barges or ships to transport crude oil. To the extent any fraction of crude oil that Musket shipped by rail was ultimately shipped over water or stored on barges, Musket was not a party to such shipping or storage arrangements. 5. Musket does not own any real estate within the counties within the United States District Court, Central District of California. Musket has not sent its railcars into the counties within the United States District Court, Central District of California to deliver crude oil. 6. Musket is an Oklahoma Corporation with its headquarters in Houston, Texas. Musket also has offices in Oklahoma City, Oklahoma. The employees in these offices frequently travel between these two offices. Case 2:16-cv-05726-SVW-JPR Document 17-1 Filed 12/14/16 Page 2 of 4 Page ID #:116 3 DECLARATION OF JON P. FJELD-HANSEN IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS DAL 79810173v5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7. Musket personnel located in Oklahoma City, Oklahoma who coordinated the movement, maintenance, and the return of the railcars at the end of their respective leases and may provide important testimony, include, among others: (a) Doug Lumry, General Manager - Crude and Rail Operations for Musket, who manages rail transport and crude trucking and would testify on matters including the return of railcars to the railcar lessors, the cleaning and inspections of the railcars at the end of the lease, and the asserted damages to the railcars and resulting costs; (b) Thad Davis, senior logistics coordinator; (c) Shane Farmer, Rail Logistics Specialist, knowledgeable of rail movements and records thereto; and (d) Ron Harrison, Rail Analyst, knowledgeable of records including those relating to railcar history, inspections, and invoicing. 8. Musket’s personnel in Houston, Texas who may provide important testimony, include, among others: (a) Jon P. Fjeld-Hansen, Managing Director and Vice President for Musket Corporation, with knowledge of Musket’s operations and the logistics involving crude oil and multiple other commodities; and (b) Al Finn, Manager of Terminals and Equipment, who has facts and knowledge of the condition, maintenance and inspection of the railcars and the regulations and processes thereto. 9. Any documents in Musket’s possession relating to its railcars and the dispute giving rise to this action, are maintained by Musket in the ordinary course of its business in Oklahoma and Texas. 10. Musket’s railcars have been cleaned, maintained, inspected, and/or repaired at locations including: Saginaw, Texas (Trinity Rail Maintenance Services); Channelview, Texas (Rescar Companies); Elmendorf, Texas (Strataflex Midstream); Cleveland, Texas (Union Tank Car Company); Orange, Texas (Rescar Companies); and Hugo, Oklahoma (Trinity Rail Maintenance Services). Significant repair-related work to the interior of the railcars was conducted in Saginaw, Texas, Channelview, Texas, and Hugo, Oklahoma. 11. One of the principal lessors of railcars to Musket, Trinity Industries, is headquartered in Dallas, Texas. Case 2:16-cv-05726-SVW-JPR Document 17-1 Filed 12/14/16 Page 3 of 4 Page ID #:117 Case 2:16-cv-05726-SVW-JPR Document 17-1 Filed 12/14/16 Page 4 of 4 Page ID #:118 [PROPOSED] ORDER DAL 79809844v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA Certain Underwriters at Lloyd’s of London, Plaintiffs, v. Musket Corporation, Defendant. CASE NO. 2:16-cv-05726 SVW (JPRx) [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION TO DISMISS FOR IMPROPER VENUE, OR, IN THE ALTERNATIVE, TO TRANSFER VENUE Case 2:16-cv-05726-SVW-JPR Document 17-2 Filed 12/14/16 Page 1 of 2 Page ID #:119 2 [PROPOSED] ORDER DAL 79809844v1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Motion by Defendant Musket Corporation for an Order Dismissing Plaintiff’s Complaint for Declaratory Relief came to be heard before this Court. The papers filed in support of and in opposition to that Motion and arguments of counsel having been reviewed and considered by this Court, and IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion is hereby granted. This action is dismissed on the grounds that venue is not proper in this District. Or, in the alternative, [IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the Motion to Dismiss is denied, but the Motion to Transfer pursuant to 28 U.S.C. §1404(a) is granted.] DATED: , 2017 HON. STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE Case 2:16-cv-05726-SVW-JPR Document 17-2 Filed 12/14/16 Page 2 of 2 Page ID #:120