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