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WILLIAMS v. BOWMAN

July 26, 2001

LISA WILLIAMS, PLAINTIFF,
v.
ROBERT BOWMAN; CAL A TERHUNE, FORMER DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS; SUSANN J. STEINBERG, MD, DEPUTY DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS HEALTH CARE DIVISION; RAYMOND L. MIDDLETON, FORMER WARDEN OF VALLEY STATE PRISON FOR WOMEN; AND JEAN HOWARD, MD, CHIEF MEDICAL OFFICER AT VALLEY STATE PRISON FOR WOMEN, IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Walker, U.S. District Judge.

ORDER

Defendants move to transfer this case to the Fresno Division of the Eastern District of California pursuant to 28 U.S.C. § 1404 (a), which provides for convenience transfers. For the reasons that follow, defendants' motion (Doc # 7-1) is GRANTED.

I

The following factual summary is taken from plaintiffs complaint. Plaintiff is and was at all relevant times an inmate of the California Department of Corrections (CDC). This suit arises out of sexual abuse she allegedly suffered at the hands of Dr. Robert Bowman while she resided at the Valley State Prison for Women (VSPW) in Madera County, California. Bowman was employed as a medical doctor at VSPW.

Plaintiff alleges that from October 1999 to March 23, 2000, she was sexually assaulted, abused, harassed and intimidated by Bowman. The abuse occurred during four separate medical appointments with Bowman. Over the course of these four visits, Bowman allegedly made inappropriate sexual remarks, manipulated plaintiffs genitalia during pelvic exams, fondled plaintiffs breasts, exposed his erect penis, forced plaintiff to touch his penis and attempted to force plaintiff to perform oral sex on him. The final appointment was on March 23, 2000. After the appointment, a female officer named Bennett saw plaintiff crying and contacted the Investigative Services Unit. Bowman was subsequently placed on administrative leave.

Plaintiff alleges that defendants Terhune, Steinberg, Middleton and Howard were aware that doctors at VSPW were performing unwanted pelvic examinations on women prisoners. Specifically, they had received complaints from women prisoners and they knew that Anthony Didomenico, the Chief Medical Officer at VSPW at the time had "stated his belief on national television that female inmates deliberately sought out unnecessary pelvic examinations by the medical staff because it was the only male contact they received." Complaint at 48, 49. Plaintiff also alleges that Bowman had sexually abused two other women, Joanne Noel and Shanna Chase, in May and July 1999.

On the basis of these actions, plaintiff filed this suit on March 21, 2001. She alleges claims under 42 U.S.C. § 1983, California statutory law and the California Constitution. She also alleges state common law claims for assault, battery, sexual battery, intentional infliction of emotional distress and negligent hiring, training and supervision.

On May 2, 2001, defendants moved to transfer venue to the Fresno Division of the Eastern District of California. On June 21, 2001, plaintiff submitted an opposition. Defendants Terhune, Steinberg, Middleton and Howard replied on June 28, 2001. Defendant Bowman submitted a separate reply brief the same day. Bowman submitted a separate brief because he retained individual counsel after the motion to transfer was filed. Bowman joins the original motion but submits new arguments and evidence in his reply brief that were not mentioned in the moving brief. He asks that if the court denies the motion to transfer the denial be without prejudice with respect to him.

Plaintiff moved to strike Bowman's reply brief on the grounds that it raised new arguments and facts not contained in the moving brief. The Ninth Circuit has held: "[w]here new evidence is presented in a reply to a motion for summary judgment, the district court should not consider the new evidence without giving the [non-]movant an opportunity to respond." Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (quoting Black v. TIC Inv. Corp., 900 F.2d 112, 116 (7th Cir. 1990)). Applying that rule to this motion to dismiss, the court at oral argument offered plaintiff the opportunity to submit to the court a supplemental written opposition responding to Bowman's reply. Plaintiff declined this invitation, arguing that it is too early in the case (not enough discovery has yet taken place) for her to be able meaningfully to respond to the reply. Since the court gave plaintiff the opportunity to respond to it, the court will consider Bowman's reply. Plaintiff's motion to strike (Doc # 29-1) is DENIED.

II

Defendants do not contend that venue is improper in the Northern District of California. It is likely that venue is proper in this district since defendant Robert Bowman appears to reside in Saratoga, California, which is in this district, and all defendants appear to reside in California.*fn1 See 28 U.S.C. § 1391 (b)(1); see Bien Decl. ¶ 18(A) and Exh. C, Bien Decl. ¶ 18(B), (C), (D) and (E). Rather than contend that venue is improper in the Northern District, defendants ask the court to transfer the case pursuant to 28 U.S.C. § 1404 (a).

Section 1404(a) states: "For 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." 28 U.S.C. § 1404 (a). There is no dispute that this action "might have been brought" in the Eastern District of California. A court in the Eastern District plainly would have had subject matter jurisdiction over this suit arising under 42 U.S.C. § 1983. See 28 U.S.C. § 1331. An Eastern District court would also have had personal jurisdiction over all the California resident defendants, as well as over Howard, even if she does not reside in California, due to her undisputed and substantial contacts with the state of California. Venue in the Eastern District would have been proper because a "substantial part of the events or omissions giving rise to the claim occurred" in that district. 28 U.S.C. § 1391 (b)(2).

Because the case could have been filed in the Eastern District, the court considers the factors relevant to the transfer decision. The statute sets forth two specific factors to consider: the convenience of the parties and the convenience of the witnesses. The statute also asks the court to consider broadly "the interests of justice." Courts have developed lists of factors to consider in deciding whether to transfer venue. Presumably, these factors, to the extent they go beyond the convenience of the parties and witnesses, are relevant to the pursuit of the "interests of justice."

A judge in this district has recently put forward the following list of factors: (1) plaintiffs choice of forum, (2) convenience of the parties, (3) convenience of the witnesses, (4) ease of access to the evidence, (5) familiarity of each forum with the applicable law, (6) feasibility of consolidation of other claims, (7) any local interest in the controversy, and (8) the relative court congestion and time of trial in each forum. See Royal Queentex Enterprises Inc v. Sara Lee Corp., 2000 WL 246599 at *2 (citing Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986)). But this list does not exhaust the possibilities. Compare Decker Coal Co., 805 F.2d at 843 to Jones v. GNC Franchising Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). Some courts do not even list the statutorily prescribed factors: the convenience ...


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