Plaintiff’s Opposition to Defendant’s Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a) - 1
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MICHELE M. BETTI, ESQ. (SBN 204939)
LAW OFFICES OF BETTI & ASSOCIATES
1732 Knoll Field Way
Encinitas, CA 92024
Telephone: (760) 500-5451
Facsimile: (760) 454-2204
Email: mbettilaw@gmail.com
Attorneys for Plaintiff
ERIC NORWOOD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
Western Division 312 N. Spring St., Rm.G-8, Los Angeles, CA 90012
Eric Norwood,
Plaintiff,
v.
Children And Youth Services Inc., West
Ridge Academy and DOES 1 through 100,
inclusive,
Defendants.
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Case No.: CV10 7944 GAF (MANx)
PLAINTIFF’S OPPOSITION TO
DEFENDANT’S MOTION TO TRANSFER
VENUE PURSUANT TO 28 U.S.C. §
1404(a); MEMORANDUM OF POINTS
AND AUTHORITIES; IN SUPPORT
THEREOF; AND DECLARATIONS IN
SUPPORT THEREOF.
Judge: Hon. Judge Gary A. Feess
Discovery Magistrate Judge: Hon. Margaret A.
Nagle
Hearing Date: April 25, 2011
Time: 9:30 a.m.
Place: Dept. 740
PLAINTIFF, ERIC NORWOOD’S OPPOSITION TO DEFENDANT’S MOTION TO
TRANSFER VENUE PURSUANT TO 28 U.S.C. § 1404(a).
Case 2:10-cv-07944-GAF-MAN Document 13 Filed 04/05/11 Page 1 of 22 Page ID #:138
Plaintiff’s Opposition to Defendant’s Motion to Transfer Pursuant to § 1404 (a) - i
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TABLE OF CONTENTS
ISSUE PRESENTED……………………………………………………………………………...2
STATEMENT OF THE CASE……………………………………………………………………2
LEGAL ARGUMENT…………………………………………………………………………….3
I. TRANSFER OF VENUE IS DISCRETIONARY….……………………………………..3
II. CALIFORNIA’S VENUE IS THE MOST CONVENIENT FOR PARTIES AND
WITNESSES…..…………………………………………………………………………..4
A. CONVENIENCE OF PARTIES………………………………………………......4
B. CONVENIENCE OF WITNESSES………………………………………………5
C. INTEREST OF JUSTICE……………………...………………………………….6
1. BASED UPON UTAH’S STATUTE OF LIMITATIONS IT IS NOT A
SUITABLE FORUM ……………………………………………………..7
III. VENUE IS PROPER IN CALIFORNIA BECAUSE A SUBSTANTIAL PART OF THE
EVENTS OCCURRED IN CALIFORNIA………………………………………….........7
IV. DEFENDANT REASONABLY SHOULD HAVE ANTICIPATED BEING SUED IN
CALIFORNIA BASED UPON IT DOING BUSINESS IN THIS STATE………………9
A. WHAT CONSTIUTES DOING BUSINESS………………………..………..…11
B. DEFENDANT HAS ENOUGH MINIMUM CONTACTS WITH CALIFORNIA
THAT IT SHOULD HAVE REASONABLY ANTICIPATED BEING HAILED
INTO COURT HERE……………………………………………………………12
V. THIS COURT MUST APPLY THE SUBSTANTIVE LAW OF CALIFORNIA………13
CONCLUSION…………………………………………………………………………………..15
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Plaintiff’s Opposition to Defendant’s Motion to Transfer Pursuant to § 1404 (a) - ii
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TABLE OF AUTHORITIES
FEDERAL CASES
Ferens v. John Deere Co., 494 U.S. 516, 519 (1990). …………………………………………3, 4
Commodity Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979)...………….3
Los Angeles Memorial Coliseum Comm’n v. NFL, 89 F.R.D. 497, 499 (C.D. Cal. 1981), aff’d
726 F.2d 1381 (9th Cir. 1984) ……………………………………………………………………3
Gregg Comm. Systems, Inc. v. AT & T Co., 575 F. Supp. 1269, 1270 (N.D. Ill. 1984)..………..3
In re Volkswagen of America, Inc., 506 F.3d 376, 385 (5th Cir. 2007) ……………….……3, 7, 8
Heller Fin’l, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir. 1989)…..………3
Lopez Perez v. Hufstedler, 505 F. Supp. 39 (D.D.C. 1980) ………………………………..……4
E. & J. Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465, 466 (E.D. Cal. 1994) ………….…….4
Lewis v. ACB Business Services, Inc., 135 F.3d 389, 413 (6th Cir. 1998). ………………...…4, 7
Reed Elsevier, Inc. v. Innovator Corp., 105 F. Supp. 2d 816, 821 (S.D. Ohio 2000) ……………4
Miracle v. NYP Holdings, Inc., 87 F. Supp. 2d 1060, 1073 (D. Haw. 2000). ……………………4
Filmline (Cross–Country) Productions, Inc. v. United Artists Corp., 865 F.2d 513, 520 (2nd Cir.
1989) …………………………………………………………………………………………...…5
Palace Exploration Co. v. Petroleum Develop. Co., 316 F.3d 1110, 1121–1122
(10th Cir. 2003)…………………………………………………………………………………....5
Los Angeles Memorial Coliseum Comm’n v. National Football League, 89 F.R.D 497, 501
(C.D. Cal. 1981).…………………………………………………………………………………. 5
Brandon Apparel Group, Inc. v. Quitman Mfg. Co. Inc. 42 F. Supp. 2d 821, 834
(N.D. Ill. 1999)……………………………………………………………………………………5
Reed v. Fine Oil & Chem. Co., 995 F. Supp. 705, 714 (E.D. Tex. 1998) ……………………..…5
Van Dusen v. Barrack, 376 U.S. 612, 637–639 (1964) …………………………………………..5
Ashmore v. Northeast Petroleum Div. of Cargill, Inc. 925 F. Supp. 36, 38 (D. Me. 1996).…...…5
Dwyer v. General Motors Corp., 853 F. Supp. 690, 693 (S.D.N.Y. 1994). …………………...…5
Froelich v. Petrelli, 472 F. Supp. 756, 761 (D. Haw. 1979).…………………………………...…6
Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309, 1317 (9th Cir. 1985).………….7
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Plaintiff’s Opposition to Defendant’s Motion to Transfer Pursuant to § 1404 (a) - iii
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International Shoe Co. v. Washington, Office of Unemp. Compensation & Placement, 326 U.S.
310, 316 (1945).… …………………………………………………………………………8, 9, 12
Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir. 2003).…………………….……8, 9
Gulf. Ins. Co. v. Glasbrenner, 417 F.3d 353, 356 (2d Cir.2005) …………………………..……..8
Pecoraro v. Sky Ranch for Boys, Inc., 340 F.3d 558, 563 (8th Cir. 2003) ………………….……8
First of Mich. Corp. v. Bramlet, 141 F.3d 260, 263 (6th Cir. 1998).…………………………..…8
Bates v. C & S Adjusters, Inc., 980 F.2d 865, 867 (2nd Cir. 1992) ……………………………...9
Myers v. Bennett Law Offices, 238 F.3d 1068, 1076 (9th Cir.2001). ……………………………9
Woodke v. Dahm, 70 F.3d 983, 985 (8th Cir. 1995). …………………………………………….9
Carekeeper Software Develop. Co., Inc., 46 F. Supp. 2d 1366, 1371–1372 (N.D. Ga. 1999)……9
Travelers Health Assn. v. Virginia, 339 U.S. 643 (1950).………………………………………...9
Hanson v. Denckla, 357 U.S. 235 (1958). ………………………………………………………11
Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78 (1938). …………………………………….…13
Van Dusen v. Barrack, 376 U.S. 612, 637–639 (1964)………………………………………….14
Muldoon v. Tropitone Furn. Co., 1 F.3d 964, 965 (9th Cir. 1993).……………………………...14
Strassberg v. New England Mut. Life Ins. Co., 575 F.2d 1262, 1264 (9th Cir. 1978) …………..14
CALIFORNIA CASES
A.I.U. Ins. Co. v. Superior Court, 177 Cal. App. 3d 281, 291 (Cal. Ct. App. 1986)……...3, 12, 13
Stangvik v. Shiley, Inc., 54 Cal.3d 744, 752 (1991) ………………………………………...……6
Guimei v. General Elec. Co., 172 Cal. App. 4th 689, 696 (2009)……………………………...…6
Chong v. Sup.Ct. (HBZ Fin. Ltd.), 58 Cal. App. 4th 1032, 1036–1037 (1997).………………….6
Delfosse v. C.A.C.I., Inc.-Federal, 218 Cal. App. 3d 683, 691 (1990)…………………………...7
Jeter v. Austin Trailer Equipment Co., 122 Cal. App. 2d 376, 381 (1953)……………………...11
Buckeye Boiler Co. v. Superior Court, 71 Cal.2d 893 (1969).………………………………10, 11
West Publishing Co. v. Superior Court, 20 Cal.2d 720, 728 (1942) .…………………….…11, 12
Proctor & Schwartz v. Superior Court, 99 Cal. App. 2d 376, 383 (1950) .…………………...…11
Jeter v. Austin Trailer Equipment Co., 122 Cal. App. 2d 376, 386 (1953) .…………...……10, 11
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Plaintiff’s Opposition to Defendant’s Motion to Transfer Pursuant to § 1404 (a) - iv
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Empire Steel Corp. of Texas v. Superior Court, 56 Cal.2d 823 (1961) .………………..….……11
Kneeland v. Ethicon Suture Laboratories, 118 Cal. App. 2d 211, 257 (1953) .…………………11
Rowe v. Dorrough, 150 Cal. App. 3d 901, 907, 908 (1984) .……………………………………11
Carl F. W. Borgward, G.M.B.H. v. Superior Court, 51 Cal.2d 72, 76 (1958) .…………………12
Koninklijke Luchtvaart Maatschappij v. Superior Court, 107 Cal. App. 2d 495, 500 (1951……12
Long v. Mischicot Modern Dairy, 252 Cal. App. 2d 425 (1967).. .……………………………..12
Hill v. Hill, 193 Cal. App. 3d 1118, 1121 (1987). ………………………………………………14
Travelers Ins. Co. v. Workmen’s Comp.App. Bd., 68 Cal. App. 2d 7 (1967) .…………………16
Kearney v. Salomon Smith Barney, Inc., 39 Cal. App. 4th 95, 107-108 (2006). .………………16
FEDERAL STATUTES
28 U.S.C.A. § 1404(a) West………………………………………………………………………1
28 U.S.C.A. § 1391(a) (West)……………………………………………………………….…….8
28 U.S.C.A. § 1391(a)(2) (West). …………………………………………………………...……8
28 U.S.C.A. § 1391(b)(2) (West). …………………………………………………………...……8
15 U.S.C.A. § 1692 (West). ………………………………………………………………………9
CALIFORNIA STATUTES
Cal. Civ. Proc. Code § 340.1 (West).…………………………………………………….……7, 15
Cal. Penal Code § 236 (West)………….…………………………………………………….…..13
OTHER STATE STATUTES
Utah Code Ann. § 78B-2-308 (West). ……………………………………………………………7
OTHER AUTHORITIES
Rest. 2d, Conflict of Laws § 47………………………………………………………….……9, 10
21 Hastings L. J. 1127……………………………………………………………………………10
28 U.C. Davis L. Rev. 513…………………………………………………………………….…10
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Plaintiff’s Opposition to Defendant’s Motion to Transfer Pursuant to § 1404 (a) - v
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McDougal, American Conflicts Law 5th, § 27………………………………………………..…10
Scoles & Hay 3d, § 5.11; 27 A.L.R. 3d 397…………………………………………………..…10
27 A.L.R. 3d 397…………………………………………………………………………………10
36 Am. Jur. 2d (2001 ed.), Foreign Corporations § 442. ……………………………………..…10
Rest. 2d, Conflict of Laws § 47, Comment a. …………………………………………………...11
Rest. 2d, Conflict of Laws § 47, Comment h…………………………………………………….12
36 Am.Jur.2d (2001 ed.), Foreign Corporations § 334. …………………………………………12
2 Witkin, Cal. Proc. 5th (2008) Jurisd, § 167, p. 770. ………………………………………..…12
2 Witkin, Cal. Proc. 5th (2008) Jurisd, § 168, p. 771. …………………………………………..12
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Plaintiff’s Opposition to Defendant’s Motion to Transfer Venue Pursuant to 28 U.S.C. § 1404(a) - 2
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Issue Presented
In deciding this motion, the court need address only the following three issues:
1. Transferring venue pursuant to 28 U.S.C.A. § 1404(a) is discretionary, and
done only for convenience of parties and witnesses.
2. Venue is proper in California because a substantial part of the events giving rise to the
causes of action occurred in California.
3. Defendant has substantial minimum contacts with California.
The Defendant kidnapped a California resident, beat, sexually abused, and held
him against his will while in the state of California and continually subjected him
to daily sadistic beatings and sexual abuse. Defendant conducted business with
California, advertised in California, engaged in economic activity with California,
and committed criminal acts in California. Defendant’s conduct and connection
with California are such that it should have reasonably anticipated being sued in
this State. For this reason, venue is proper in California.
Statement of the Case
Plaintiff, Eric Norwood (“Eric”), was sexually abused and beaten at Defendant Children
And Youth Services Inc., West Ridge Academy/Utah Boys Ranch (the “Ranch”) as a young boy
from 2000 to 2002. He was kidnapped from his Grandmother’s home in California by the Ranch,
held against his will for over two years, and subjected to daily sadistic beatings and sexual abuse
by guards and staff members of the Ranch. Eric was emotionally terrorized by employees of the
Ranch and lived for over two years with the helplessness of never leaving the Ranch alive.
Complaint ¶¶ 8-10.
In return for its sadistic and criminal beatings and sexual assaults of Eric, the Ranch
received over $3,600 per year. The Ranch would like this Court to believe that it has no ties to
California and should not be hailed into this Court. But, the Ranch has purposefully availed itself
from this Court’s jurisdiction. The Ranch committed egregious acts of violence in this State and
upon a resident of this State. The Ranch kidnapped Eric from his Grandma’s house in California,
handcuffed him and transported him across state lines violating State law. When Eric refused to
go with employees of the Ranch, they beat him into submission, and threatened his life if he
fought back or attempted to tell anyone. Complaint ¶¶ 8-10.
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The Ranch transacted business and continues to transact business in this State for the
purpose of realizing a pecuniary profit. It does this by engaging in economic activity with
California through advertising and taking money for its facility from California residents. In
addition to doing business with residents in the private sector a private, the Ranch also conducts
business with the State of California by taking wards of the State (children) to its facility and in
return receives a hefty sum of over $6,300 per month, per child. Because Defendant is “doing
business” in the State of California, this creates a relationship that makes it reasonable for this
State to require that Defendant defend actions brought against it here. The question is not
whether the Ranch anticipated being sued in California, “but what it reasonably should have
anticipated.”
Legal Argument
I. Transfer of Venue Is Discretionary.
Any party – plaintiff or defendant – may seek a discretionary transfer under 28 U.S.C.A.
§ 1404(a) for “convenience” and “in the interest of justice.” Ferens v. John Deere Co., 494 U.S.
516, 519 (1990). The decision to grant a § 1404(a) transfer is always discretionary with the trial
court. 28 U.S.C.A. § 1404 (West). Because plaintiff’s choice of forum is entitled to deference,
the moving party (defendant) has the burden of showing that “the convenience of parties and
witnesses” and “interest of justice” require transfer to another district. Commodity Futures
Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979); Los Angeles Memorial Coliseum
Comm’n v. NFL, 89 F.R.D. 497, 499 (C.D. Cal. 1981), aff’d 726 F.2d 1381 (9th Cir. 1984);
Gregg Comm. Systems, Inc. v. AT & T Co., 575 F. Supp. 1269, 1270 (N.D. Ill. 1984). A transfer
will not be ordered if the result is merely to shift the inconvenience from one party (defendant) to
another (plaintiff). In re Volkswagen of America, Inc., 506 F.3d 376, 385 (5th Cir. 2007)
(emphasis added); Heller Fin’l, Inc. v. Midwhey Powder Co., Inc., 883 F.2d 1286, 1293 (7th Cir.
1989). A party seeking a transfer cannot rely on vague generalizations as to convenience factors.
The party is obligated to identify the key witnesses to be called and to present a generalized
statement of what their testimony would include. Heller Fin’l, Inc., 883 F.2d at 1293.
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II. California’s Venue Is The Most Convenient For These Parties And Witnesses.
Transfers under § 1404(a) are based on considerations of convenience and the interests of
justice, rather than choice of law. The convenience of third-party witnesses and the interests of
justice must also be considered. Ferens, 494 U.S. 516 at 527–528. In determining Convenience
and Interest of Justice there are three general factors that are identified:
1. Convenience of parties;
2. Convenience of witnesses; and
3. Interest of justice.
These factors are addressed to the inherent discretion of the court. They are interpreted broadly
to allow the court to consider the particular facts of each case. 28 U.S.C.A. § 1404(a). Lopez
Perez v. Hufstedler, 505 F. Supp. 39 (D.D.C. 1980); E. & J. Gallo Winery v. F. & P. S.p.A., 899
F. Supp. 465, 466 (E.D. Cal. 1994) (citing text).
A. Convenience of parties.
Plaintiff’s choice of forum, while not dispositive, “should be given weight when deciding
whether to grant a motion to change venue.” Lewis v. ACB Business Services, Inc., 135 F.3d
389, 413 (6th Cir. 1998). A transfer will not be ordered simply to make it more convenient for
defendant: “The venue transfer provisions of Section 1404(a) are not meant to merely shift the
inconvenience to the plaintiff.” Reed Elsevier, Inc. v. Innovator Corp., 105 F. Supp. 2d 816, 821
(S.D. Ohio 2000) (internal quotes omitted). Where plaintiff is a private individual and defendant
is a large corporation, defendant’s assertions regarding monetary expense and difficulty in
litigating in a distant forum are likely to be disregarded. Miracle v. NYP Holdings, Inc., 87 F.
Supp. 2d 1060, 1073 (D. Haw. 2000).
Here, Plaintiff is an individual. Defendant is a Corporation. Defendant’s assertions that it
will be burdened attending hearings, depositions, and court appearances, are not persuasive. As
the Court indicates in Miracle, Defendant’s assertions regarding monetary expenses and
difficulty in litigating against an individual Plaintiff are likely to be disregarded. Transferring
venue would be much more inconvenient for Plaintiff (an individual) then this Corporate
Defendant.
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B. Convenience of witnesses.
The court will want to know who the witnesses are, where they are located, what their
testimony will be and why such testimony is relevant or necessary. Filmline (Cross–Country)
Productions, Inc. v. United Artists Corp., 865 F.2d 513, 520 (2nd Cir. 1989); see Palace
Exploration Co. v. Petroleum Develop. Co., 316 F.3d 1110, 1121–1122 (10th Cir. 2003); Los
Angeles Memorial Coliseum Comm’n v. National Football League, 89 F.R.D 497, 501 (C.D.
Cal. 1981). The court will consider not only the number of witnesses located in the respective
districts, but also the nature and quality of their testimony in relation to the issues in the case.
Brandon Apparel Group, Inc. v. Quitman Mfg. Co. Inc. 42 F. Supp. 2d 821, 834 (N.D. Ill. 1999).
The reach of subpoena power to secure witness attendance is a factor. But, this is not controlling
if witnesses are employees of defendant whose attendance can be compelled. Reed v. Fine Oil &
Chem. Co., 995 F. Supp. 705, 714 (E.D. Tex. 1998); Van Dusen v. Barrack, 376 U.S. 612, 637–
645 (1964); Ashmore v. Northeast Petroleum Div. of Cargill, Inc. 925 F. Supp. 36, 38 (D. Me.
1996). Familiarity with governing state law (in diversity cases) is also a factor. And, relative
means of the parties is important. Dwyer v. General Motors Corp., 853 F. Supp. 690, 693
(S.D.N.Y. 1994).
In the present case, to date, there are more percipient witnesses that exist in California
than in Utah:
Percipient Witnesses #1.
Dr. Leighton J. Reynolds - Plaintiff’s treating physician – resides in Valencia, California. Will
testify about Plaintiff’s injuries relating to the physical and sexual abuse by Defendant in
California and at Defendant’s facility in Utah, including, but not limited to an imprint of trauma,
and resulting depression and anxiety that come with Post Traumatic Stress Disorder (PTSD).
Percipient Witnesses #2, #3.
Dr. and Mr. Kathleen McVey – Percipient witnesses testifying as to Defendant’s contact with
California and doing business in California – the McVeys reside in Quartz Hill, California. Will
also testify as to Plaintiff’s damages.
Percipient Witnesses #4, #5.
Melissa Ann Norwood and Lewis Ara Jerome Norwood – Plaintiff’s parents – reside in Castaic,
California. Will testify to the abduction and kidnapping of Plaintiff from his grandmother’s
house in Agoura, California, being taken against his will, beaten into submission, physically and
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sexually abused, and held against his will for over two years by Defendant, and the continuing
effects the abuse has on Plaintiff.
Percipient Witnesses #6.
Plaintiff’s Grandmother, who is over 80 years old, resides in Agoura, California. Will testify as
to the abduction and kidnapping of Plaintiff from her home in Agoura, California, how Plaintiff
was taken against his will, beaten into submission, physically and sexually abused, and held
against his will for over two years by Defendant, and the effects the abuse continues to have on
Plaintiff.
Percipient Witnesses #7, #8, #9.
Adam Tunick, MSW;
Monica Biernat, SCSW; and
Bill Thomas, Assistant Division Chief
All three percipient witnesses work for the County of Los Angeles Department of Children and
Family Services – all reside in California and work in Santa Clarita, California. Will testify that
Defendant transacted business and continues to transact business in California for the purpose of
realizing a pecuniary profit. Defendant advertises in California through the internet, brochures,
pamphlets and other printed materials about its facility. Defendant engages in economic activity
with California. The Defendant transacts business with the State of California – specifically the
Los Angeles County’s Department of Children and Family Services, who pay $6,371 per month
for each child that is a ward of the State of California, and attends Defendant’s facility. All are
expected to also testify as to Defendant’s physical and sexual abuse of Dr. Kathleen McVey and
Mr. McVey’s daughter while at Defendant’s facility.
Documentary Evidence – Books and Records.
All records relating to the Defendant’s contacts with California and doing business in California
are located in California, not the district to which transfer is sought.
C. Interest of justice.
Statute of limitations. It would not be “in the interest of justice” to transfer a case under §
1404(a) that would be barred in the transferee court by the applicable statute of limitations.
Froelich v. Petrelli, 472 F. Supp. 756, 761 (D. Haw. 1979). There must be a “suitable” alternative
forum available, meaning one in which a valid judgment may be obtained against defendant. See
Stangvik v. Shiley, Inc., 54 Cal.3d 744, 752 (1991); An alternative forum is “suitable” if it has
jurisdiction and an action in that forum will not be barred by the statute of limitations. Guimei v.
General Elec. Co., 172 Cal. App. 4th 689, 696 (2009); Chong v. Sup.Ct. (HBZ Fin. Ltd.), 58 Cal.
App. 4th 1032, 1036–1037 (1997). The statute of limitations in the other forum must not have
run on plaintiff’s claim; or, alternatively, defendant must be willing to waive the statute as a
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condition of the court’s granting his or her motion. Stangvik, 54 Cal.3d at 752; Delfosse v.
C.A.C.I., Inc.-Federal, 218 Cal. App. 3d 683, 691 (1990).
1. Based Upon Utah’s Statute Of Limitations, It Is Not A Suitable Forum.
Utah law differs from California law in that under Utah law a plaintiff only has four years
from the age of majority (i.e., age 22) to bring a cause of action resulting from childhood sexual
abuse. Utah Code Ann. § 78B-2-308 (West). Plaintiff would not even be able to bring an action
in Utah for child sexual abuse because Utah law does not allow for victims to bring causes of
action after their 22nd birthday.
In contrast, under California law, a plaintiff has eight years from the age of majority (i.e.,
age 26) to bring a cause of action based on injuries resulting from childhood sexual abuse. Cal.
Civ. Proc. Code § 340.1 (West). California courts and the Legislature have made it very clear
that California has a strong interest in protecting its residents from child sexual abuse, and
affords them an opportunity to file claims resulting from such abuse against perpetrators and
entities that further this abuse under an extended statute of limitations.
Deference to Plaintiff’s Choice of Forum. A plaintiff’s choice of forum is accorded
substantial weight in proceedings under § 1404(a) (so-called “home turf” rule). Courts generally
will not order a transfer unless the “convenience” and “justice” factors enumerated above
strongly favor venue elsewhere. Securities Investor Protection Corp. v. Vigman, 764 F.2d 1309,
1317 (9th Cir. 1985); see Lewis v. ACB Business Services, Inc., 135 F.3d 389, 413 (6th Cir.
1998); Thus, when the transferee venue is not clearly more convenient than the venue chosen by
the plaintiff, the plaintiff's choice should be respected. In re Volkswagen of Am., Inc., 545 F.3d
at 315.
III. Venue Is Proper In California Because A Substantial Part Of The Events Occurred
In California.
The general federal venue statute is 28 USC § 1391. Section 1391(a) governs venue in
diversity cases. Where federal subject matter jurisdiction is based solely on diversity of
citizenship, venue is proper in a district in which a “substantial part of the events or omissions”
on which the claim is based occurred, or where is located a “substantial part of the property” that
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is the subject of the action. 28 U.S.C.A. § 1391(a)(2) (West).
In actions against a corporation (at least when it is the only defendant), venue is satisfied
by proof that the corporate defendant is subject to personal jurisdiction in the district. In re
Volkswagen of America, Inc., 545 F.3d 304 at 312–313. For venue purposes, a corporation
“resides” in all districts in which it is subject to personal jurisdiction; e.g., in every state in which
it has “minimum contacts.” See International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).
Sections 1391(a)(2) and (b)(2) do not require that a majority of the “events or omissions”
occur in the district where suit is filed; nor that the events there predominate. It is sufficient that
a “substantial part” occur there. Jenkins Brick Co. v. Bremer, 321 F.3d 1366, 1371 (11th Cir.
2003); Gulf. Ins. Co. v. Glasbrenner, 417 F.3d 353, 356 (2d Cir.2005). Courts do not ask which
district among two ... potential forums is the ‘best’ venue.” Pecoraro v. Sky Ranch for Boys, Inc.,
340 F.3d 558, 563 (8th Cir. 2003); [“The fact that substantial activities took place in district B
does not disqualify district A as proper venue as long as ‘substantial’ activities took place in A,
too. Indeed, district A should not be disqualified even if it is shown that the activities in district B
were more substantial, or even the most substantial.”] First of Mich. Corp. v. Bramlet, 141 F.3d
260, 263 (6th Cir. 1998).
The following factors are relevant in determining where a “substantial part” of the events
or omissions occurred:
- In tort actions, where the parties acted or where the injuries occurred;
- In contract actions, where the negotiations took place, where the contract was signed,
where performance or breach occurred;
- The place where parties acted or were engaged in business.
See Bates v. C & S Adjusters, Inc., 980 F.2d 865, 867 (2nd Cir. 1992); Myers v. Bennett Law
Offices, 238 F.3d 1068, 1076 (9th Cir.2001); Jenkins Brick Co. v. Bremer, 321 F.3d at 1371.
Congress’ reference to “events or omissions giving rise to the claim” requires courts to
focus on relevant activities of the defendant, not the plaintiff. Woodke v. Dahm, 70 F.3d 983,
985 (8th Cir. 1995). For example, Pennsylvania collection agency mailed demand for payment to
debtor who resided in New York but who had incurred the debt while living in Pennsylvania.
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Debtor sued for unfair collection practices (under 15 U.S.C.A. § 1692 (West)). Venue was
proper in New York because “a substantial part of the events giving rise to the claim” (i.e., where
dunning letter received) occurred in New York. Bates, 980 F.2d at 868.
Similarly, a Utah Defendant allegedly violated the Fair Credit Reporting Act in obtaining
credit reports on Nevada Plaintiffs. Venue was proper in Nevada because that is where the
invasion of their privacy occurred, which was a “substantial part of the events” giving rise to the
claim. Myers, 238 F.3d at 1076.
Likewise, Plaintiff, a Georgia corporation, sued Defendant, a Texas resident; seeking a
declaratory judgment that Defendant’s former employment was “at-will.” Venue was proper in
Georgia because a substantial part of the events or omissions giving rise to the claim occurred in
Georgia. Defendant traveled frequently to Georgia as part of his employment, was in daily
contact with the Georgia office (as a “telecommuter”) and listed the company’s Atlanta office as
his business address. Carekeeper Software Develop. Co., Inc., 46 F. Supp. 2d 1366, 1371–1372
(N.D. Ga. 1999).
IV. Defendant Reasonably Should Have Anticipated Being Sued In California Based
Upon It Doing Business In This State.
It was originally thought that a corporation doing business in the state had impliedly
consented to be sued. Later it was suggested that the corporation could be considered present in
the state. Both the implied consent and corporate presence fictions have today been rejected in
favor of the realistic view that doing business within the state creates a relationship that makes it
reasonable for the state to require that the corporation defend actions brought against it there.
International Shoe Co., 326 U.S. 310 (1945); Travelers Health Assn. v. Virginia, 339 U.S. 643
(1950); Rest. 2d, Conflict of Laws § 47; see 21 Hastings L. J. 1127; 28 U.C. Davis L. Rev. 513
[symposium on history of personal jurisdiction following International Shoe]; McDougal,
American Conflicts Law 5th, § 27; Scoles & Hay 3d, § 5.11; 27 A.L.R. 3d 397 [personal
jurisdiction on basis of doing act or transacting business]; 36 Am. Jur. 2d (2001 ed.), Foreign
Corporations § 442.
“The inquiry as to whether a corporation is ‘doing business’ has three significant aspects.
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It may determine (1) the power of the state to impose local taxation, (2) whether the corporation
falls within the state’s regulatory power, or (3) whether jurisdiction exists for service of process.
… The degree of activity or contact, which is required, varies according to the purpose for which
the foreign corporation is sought to be subjected to local laws. … Thus, a state may have
jurisdiction over a foreign corporation by virtue of its local activities for purposes of service of
process, whilst lacking the power to tax or regulate the same corporation.” Jeter v. Austin Trailer
Equipment Co., 122 Cal. App. 2d 376, 381 (1953).
The modern approach was defined and expanded in Buckeye Boiler Co. v. Superior
Court, 71 Cal.2d 893 (1969). Buckeye, an Ohio corporation, manufactured pressure vessels,
selling them through independent manufacturers’ representatives in a number of states. Plaintiff
was injured in the course of his employment in California by the explosion of a pressure tank,
identified by its label as a Buckeye product. He sued Buckeye on theories of negligence, breach
of warranty, and strict products liability. Service was constructive, and Buckeye moved to quash.
None of the typical acts amounting to doing business here was shown: Buckeye did not advertise
its products; it had no office, representative, merchandise, property, or bank account in
California; and it did not sell directly to anyone in California. The only contact was the sale of its
pressure tanks to C Co., another Ohio corporation, which maintained a plant in California for the
manufacture of hydraulic lifts using these tanks. Some tanks were ordered by C Co. from its
California plant, and all were shipped by Buckeye to the plant. Buckeye’s gross yearly sales to C
Co. amounted to between $25,000 and $30,000. Held, this showing was sufficient to permit
California to take jurisdiction.
To justify the court’s assumption of jurisdiction, the defendant’s activity must consist of
some act or transaction in the forum state “by which the defendant purposefully avails itself of
the privilege of conducting activities within the forum State, thus invoking the benefits and
protections of its laws.” Buckeye Boiler Co., 71 Cal.2d at 898, quoting Hanson v. Denckla, 357
U.S. 235 (1958). Once the requisite activity is shown, the propriety of an assumption of
jurisdiction depends upon “a balancing of the inconvenience to the defendant in having to defend
itself in the forum state against both the interest of the plaintiff in suing locally and the
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interrelated interest of the state in assuming jurisdiction.” Buckeye Boiler Co., 71 Cal.2d at 899.
The forum state has an interest in opening its courts to residents seeking redress, and in assuming
jurisdiction where the evidence is within its borders and the local law governs. Id. The
nonresident defendant, who derives economic benefit from activities in the forum state,
ordinarily has very little ground for complaining of inconvenience in being required to defend it
there. Id. at 900.
A. What Constitutes Doing Business.
For many years it was held that the corporation must do some substantial part of its
ordinary business within the state; a single, isolated act, not intended as the commencement of a
series of acts, was an insufficient basis for jurisdiction. See West Publishing Co. v. Superior
Court, 20 Cal.2d 720, 728 (1942); Proctor & Schwartz v. Superior Court, 99 Cal. App. 2d 376,
383 (1950) [interstate sale of machinery by Pennsylvania seller to California buyer; alleged
business consisted solely of sending employee to assist in installation].
But, today, the approach is quite different. “Doing business is doing a series of similar
acts for the purpose of thereby realizing pecuniary profit, or otherwise accomplishing an object,
or doing a single act for such purpose with the intention of thereby initiating a series of such
acts.” Rest. 2d, Conflict of Laws § 47, Comment a. California “stands with the vanguard of
jurisdictions committed to a liberal approach to this issue.” Jeter v. Austin Trailer Equipment
Co., 122 Cal. App. 2d 376, 386 (1953); See Empire Steel Corp. of Texas v. Superior Court, 56
Cal.2d 823 (1961); Buckeye Boiler Co. v. Superior Court, 71 Cal.2d 893 (1969); Kneeland v.
Ethicon Suture Laboratories, 118 Cal. App. 2d 211, 257 (1953); Rowe v. Dorrough, 150 Cal.
App. 3d 901, 907, 908 (1984) [Yamaha Japan, with no direct contacts in California, marketed
motorcycles in California through instrumentality of Yamaha USA, a California corporation;
jurisdiction over Yamaha Japan upheld];
The fact that a business is wholly interstate or foreign commerce is not an objection to
jurisdiction. International Shoe Co. v. Washington, Office of Unemp. Compensation &
Placement, 326 U.S. 310 (1945); West Publishing Co., 20 Cal.2d at 729; Carl F. W. Borgward,
G.M.B.H. v. Superior Court, 51 Cal.2d 72, 76 (1958); Koninklijke Luchtvaart Maatschappij v.
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Superior Court, 107 Cal. App. 2d 495, 500 (1951); Rest. 2d, Conflict of Laws § 47, Comment h;
36 Am.Jur.2d (2001 ed.), Foreign Corporations § 334. The fact, that the activity, giving rise to
the cause of action, is not part of the usual business of the corporation is likewise not controlling.
In Long v. Mischicot Modern Dairy, 252 Cal. App. 2d 425 (1967), defendant, a
Wisconsin corporation manufacturing and selling cheese in Wisconsin, did not do business in
California, and had no representative here. But it owned a parcel of California land, which it
listed for sale with California realtors and later agreed to sell to plaintiff California resident; it
also brought a quiet title action to clear the title and petitioned for rezoning. Plaintiff, alleging
breach of the agreement, sued in California. Held, order quashing summons reversed. Id. at 432;
2 Witkin, Cal. Proc. 5th (2008) Jurisd, § 167, p. 770. The question is not whether a company
anticipated being sued in California, “but what it reasonably should have anticipated.” A.I.U.
Ins. Co. v. Superior Court, 177 Cal. App. 3d 281, 291 (Cal. Ct. App. 1986). 2 Witkin, Cal. Proc.
5th (2008) Jurisd, § 168, p. 771.
B. Defendant Has Enough Minimum Contacts With California That It Should Have
Reasonably Anticipated Being Hailed Into Court Here.
In determining whether a nonresident defendant has “minimum contacts” with a forum
state sufficient to support the exercise of jurisdiction over the nonresident it is immaterial that
defendant did not anticipate being sued in the forum state; the question is not what the defendant
did anticipate, but what it reasonably should have anticipated, that is, was defendant’s conduct
and connection with the forum state such that he should have reasonably anticipated being haled
into court there. A.I.U. Ins. Co., 177 Cal. App. 3d at 291.
On February 14, 2000, employees of the Ranch, under direct orders from Defendant,
kidnapped Plaintiff from his Grandmother’s home in Agoura, California. Employees handcuffed
him, and beat him into submission in California. Against his will, Plaintiff was transported from
California across state lines. Employees threatened Plaintiff’s life in California if he attempted to
tell anyone. He was held against his will for over two years in violation of Cal. Penal Code § 236
(West), and subjected to sadistic beatings and sexual abuse daily by guards and staff members of
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the Ranch. Plaintiff was emotionally terrorized by employees of the Ranch for over two years
and taunted he would never leave there alive. Complaint ¶¶ 8-10.
In return for its sadistic and criminal beatings and sexual assaults of Plaintiff, the
Defendant received over $3,600 per year for kidnapping him from California, and holding him
against his will at the Ranch. Defendant would like this Court to believe that it has no ties to
California and should not be hailed into this Court. But, the Defendant has purposefully availed
itself from this Court’s jurisdiction. The Defendant committed egregious acts of violence against
Plaintiff, a California resident, in both California and Utah. Complaint ¶¶ 8-10.
The Defendant transacted business and continues to transact business in the State of
California for the purpose of realizing a pecuniary profit. It engages in economic activity with
California by advertising here, and takes money from California residents for its facility in Utah.
The Defendant even does business with the State of California – specifically the Los Angeles
County’s Department of Children and Family Services – who pay $6,371 per month for children
(wards of the state) attending the Ranch. Defendant is clearly “doing business” in California,
thus, creating a relationship that makes it reasonable for California to require that it defend
actions brought against it here.
V. This Court Must Apply The Substantive Law Of California.
In diversity cases, the federal court normally applies the substantive law of the forum
state, including its choice of law rules (Erie doctrine). Erie Railroad Co. v. Tompkins, 304 U.S.
64, 78 (1938). Merely because the court has been changed for “convenience” purposes should
not change the substantive law governing the action: “A change of venue under § 1404(a)
generally should be, with respect to state law, but a change of courtrooms.” Van Dusen v.
Barrack, 376 U.S. at 639. The transferee court in a diversity case must apply the law of the state
in which the action was originally filed: i.e., the same statutes of limitation, rules concerning
capacity to sue and other “substantive” rules the transferor court would have applied. Id. at 637–
639 (1964); Muldoon v. Tropitone Furn. Co., 1 F.3d 964, 965 (9th Cir. 1993).
California, as the forum state, has an interest in having its law applied to this case. See
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Hill v. Hill, 193 Cal. App. 3d 1118, 1121 (1987). “Generally, the preference is to apply
California law, rather than choose the foreign law as a rule of decision.” Strassberg v. New
England Mut. Life Ins. Co., 575 F.2d 1262, 1264 (9th Cir. 1978). Here, California presumably
has an interest in the enforcement of its statute of limitations relating to child sexual abuse
involving one of its domiciliaries. The Defendant argues the only connection this case has to
California is that Plaintiff is a California resident. But, quite the opposite is true.
A substantial part of the events or omissions giving rise to the claims in this complaint
occurred in California. Plaintiff was a California resident when he was abducted from California;
taken against his will across state lines; brutally beaten and sexually abused; and held at the
Ranch against his will for over two years until his 18th birthday. The origin of Plaintiff’s abuse
began on February 14, 2000 under the cover of darkness. Employees of the Ranch, operating
under direct orders from Defendant, kidnapped Plaintiff from his grandmother’s home in
California, and committed egregious acts of violence in this State upon a resident of this State.
Employees handcuffed Plaintiff and beat him into submission and threatened him with his life
when he refused to go. California is the origin of Defendant’s crimes of physical and sexual
abuse perpetrated against Plaintiff.
California has gone to great lengths to protect its citizens from child sexual abuse. As set
forth, the Legislature in Cal. Civ. Proc. Code § 340.1, furthered its policy of protecting children
by providing an extended statute of limitations for civil actions resulting from childhood sexual
abuse.
Section 340.1 sets forth special rules for establishing the limitations period for
damages caused by childhood sexual abuse. The Legislature specifically noted that
“This bill would extend the statute of limitations to eight years from the plaintiff’s
majority for the commencement of such suits [for recovery of damages resulting from
childhood sexual abuse],” and that the amendment extends the statute of limitation for
actions based on injuries resulting from ‘childhood sexual abuse’. . .” See Request for
Judicial Notice, Exhibit 6, Sen. Comm. Jud. Analysis of SB 108 (1990) at 1(3/28/89);
Request for Judicial Notice, Exhibit 7, Sen. Third Reading Analysis of SB 108 at 1
(1990) (4/30/1990). “As passed by the Assembly, this bill: . . . Expanded the statute of
limitations provision for recovery of damages for childhood sexual abuse to apply to
any such civil action brought against any person or entity under any theory of
liability.” See Request for Judicial Notice, Exhibit 14, Assem. Concurrence in Sen.
Amendments to AB 1651 (1998), at 2 (emphasis added).
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The Legislature’s directive that the 1990 amendment applied to “any civil action” is a
clear indication that the amendment was enacted to extend the statute of limitations applicable to
all civil actions resulting from childhood sexual abuse. An injured victim of childhood sexual
abuse is equally entitled to the extended statute of limitations whether the plaintiff is asserting a
cause of action for negligence, battery, fraud or any other cause of action, so long as the
underlying damages sought were caused by childhood sexual abuse.
Utah, on the other hand, wants to limit the statute of limitations for sexual abuse on its
residents. But, as stated, Plaintiff is not a Utah resident. He is a California resident and was at the
time of his abduction and sexual abuse. He was held against his will and made to endure repeated
sadistic physical and sexual beatings, humiliation and abuse for two long years. Plaintiff is the
child the Legislature sought to protect. The Legislature, over a course of years, has made it
abundantly clear that its intent was to ensure that adults who suffered during their childhood
from the acts of sexual predators are afforded a sufficient opportunity to pursue their claims.
Therefore, California is the only state that has a legitimate interest in the application of its law.
The present case is analogous to California Supreme Court cases. The California
Supreme Court has applied the governmental interest analysis in several cases involving
questions of tort and contract law. The Court has consistently held that California law would be
applied when California’s interest in protecting individuals in California would be more
significantly impaired than would the foreign state’s interest. See Travelers Ins. Co. v.
Workmen’s Comp.App. Bd., 68 Cal. App. 2d 7 (1967); Kearney v. Salomon Smith Barney, Inc.,
39 Cal. App. 4th 95, 107-108 (2006). California’s interest in protecting individuals in California
from childhood sexual abuse would be more significantly impaired than would Utah’s interest in
protecting the right of a business to physically and sexually abuse children for legitimate
business reasons and financial gains. The court should therefore hold that venue is proper in
California.
Conclusion
Plaintiff respectfully requests the Court deny the Motion to Transfer Venue pursuant to
28 U.S.C. § 1404(a), and hold that California is the proper venue to bring this suit.
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Dated: April 4, 2011 /s/Michele M. Betti .
Michele M. Betti, Esq.
Law Offices Of Betti & Associates
Attorneys for Plaintiff
Eric Norwood
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CERTIFICATE OF SERVICE
I, the undersigned whose address appears below, certify: that I am, and at all times
hereinafter mentioned was, more than 18 years of age; that on April 4, 2011, I served a true copy
of the within PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO
TRANSFER PURSUANT TO § 1404(a), by electronic service via U.S. District Court on the
following persons below and by U.S. Mail on the following persons below:
Vince M. Verde, Esq.
Carolyn Sieve, Esq.
Daniel A. Adlong, Esq.
OGLETREE, DEAKINS, NASH, SMOAK &STEWART, P.C.
695 Town Center Drive, Suite 1500
Costa Mesa, CA 92626
Attorneys for Defendant
Children And Youth Services Inc.,
West Ridge Academy/Utah Boys Ranch
I certify under penalty of perjury that the foregoing is true and correct. Executed on
April 4, 2011.
/s/ Michele M. Betti .
Law Office Of Betti & Associates
1732 Knoll Field Way
Encinitas, CA 92024
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