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United States District Court, S.D. California

September 7, 2005.

CONTINENTAL INDUSTRIAL CAPITAL, L.L.C., a Delaware limited liability company, through its manager, COHEN ASSET MANAGEMENT, INC., a corporation, Plaintiffs,
THE DAVEY TREE EXPERT COMPANY, an Ohio corporation, Defendant.

The opinion of the court was delivered by: THOMAS WHELAN, District Judge

On May 18, 2005 Continental Industrial Capital, L.L.C. ("Plaintiff") commenced this action against The Davey Tree Expert Company, Inc. ("Defendant") seeking damages for breach of contract, breach of implied covenant of good faith and fair dealing, negligence and wrongful interference. On July 19, 2005 Defendant moved to transfer venue from the Southern District of California ("SDCal") to the Western District of New York ("WDNY"). For the reasons outlined below, the Court transfers this action to the WDNY. I. BACKGROUND

Defendant is a national landscaping company that was hired to landscape Plaintiff's business park located in Rochester, New York. Defendant maintains offices in New York and at least 40 other states, while Plaintiff is apparently a California corporation whose sole employee is Bradley S. Cohen. Between March and September 2003, the parties entered into various contracts for landscaping services. Though there is a dispute as to the cause, there is no dispute that some of the trees planted in the business park died. Plaintiff thus brought suit in this district for breach of contract, negligence, and various other causes of action. Defendant now moves to transfer venue to the WDNY.


  Finding that venue for an action is proper, a Court may still, at its discretion, transfer the action pursuant to 28 U.S.C. § 1404(a). 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." In order for the motion to be granted, both the transferor and transferee district must be ones where the original action "might have been brought." Goodyear Tire & Rubber Co. v. McDonnell Douglas Corp., 820 F.Supp. 503, 505 (C.D. Cal. 1992).

  When ruling on a § 1404(a) motion, the district court must consider: (1) the relative convenience of the selected forum and the proposed forum; (2) the possible hardship to the plaintiff if the court grants the motion; (3) the interests of justice; and (4) the deference to be accorded the plaintiff's choice of forum. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). It is the party moving for transfer that bears the burden of demonstrating that the existing forum is inconvenient and that the interest of justice requires transfer to another district. See Lockman Found. v. Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir. 1991). III. DISCUSSION

  A. Convenience of the Parties and the Interests of Justice

  In determining whether the case should be transferred, a Court must balance the convenience of the parties and witnesses and the interests of justice. See generally, Hatch v. Reliance Ins. Co., 758 F.2d 409 (9th Cir. 1985). This balancing allows the district court broad discretion to consider the particular circumstances of each case. "Section 1404(a) is intended to place discretion in the district court to adjudicate motions for transfer according to an individualized, case-by-case consideration of convenience and fairness." Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (citing Van Dusen v. Barrack, 376 U.S. 612, 622 (1964)). To make this determination, the court should consider a variety of private and public interest factors including but not limited to: the plaintiff's choice of forum; the extent to which there is a connection between the plaintiff's causes of action and this forum; the parties' contacts with this forum; the convenience of witnesses and the availability of a compulsory process to compel attendance of unwilling non-party witnesses. Saleh v. Titan Corp., 361 F.Supp 2d 1152, 1156 (S.D. Cal. 2005) (citing Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000), cert. den. 531 U.S. 298 (2000)); See also, Decker Coal, 805 F. 2d at 843.

  It is clear that this action could have been brought either in this district or the WDNY.*fn1 See Goodyear Tire, 820 F.Supp. at 505. Because both venues are potentially proper, the Court must determine whether convenience and the interests of justice justify transferring this case to the WDNY.

  The Court finds that this matter is best adjudicated in the WDNY. Although Plaintiff filed suit in the SDCal, virtually no significant events regarding this controversy have taken place here. All of the disputed contracts were negotiated in New York, entered into in New York, and would be governed by the laws of New York. (Pl.'s Compl., Add. A to Service Agreement at ¶ 16). Additionally, because most of the events underlying this lawsuit took place in New York most (if not all) of the witnesses and evidence are located there. (Decl. of Jacob Young at ¶¶ 12, 19, 29). For example, Defendant expects to call several New York-based witnesses that are vital to its defense and will establish that the trees' deaths were not Defendant's fault. (Decl. of Jacob Young at ¶ 28).

  Litigation in the WDNY will also allow easier access to physical evidence related to the disputed contracts and the work performed, including inspections at the Rochester site if necessary. Further, at least some of these witnesses will need to be subpoenaed; if the trial is held in the SDCal, these witnesses would be beyond the Court's subpoena power. See Fed.R.Civ.P. 45(c). For these witnesses and parties, litigation in the SDCal would be more costly and time consuming than litigation in the WDNY. Thus, the convenience of witnesses and access to evidence also weighs in favor of transfer.

  In light of these factors, a transfer to the WDNY will be substantially more convenient for nearly all parties and better promote the interests of justice.

  B. Plaintiff's Choice of Forum and Potential Hardship

  The Court also finds that this lawsuit's nexus to the WDNY substantially outweighs any deference that might typically be afforded to Plaintiff's original forum choice. See Piper Aircraft v. Reyno, 454 U.S. 235, 255-56, 102 S. Ct. 252, 70 L.Ed.2d 419 (1981). Plaintiff contends that the Court should give great deference to his initial choice of forum. Relying on Cochran v. NYP Holdings, Inc. 58 F. Supp. 2d 1113 (C.D. Cal. 1998), aff'd 210 F.3d 1036 (9th Cir. 2000), Plaintiff argues that a transfer to WDNY would merely shift the inconvenience of from one party to the other, and thus that the inconvenience to Defendant is not sufficient to overcome the presumptive weight of Plaintiff's forum choice. (Pl.'s Resp. at 7).

  The Court respectfully disagrees. Cochran involved approximately equal numbers of witnesses on each side who would be equally inconvenienced by a transfer. Thus the court held that where the decision is simply between inconveniencing numerous plaintiff's witnesses and inconveniencing numerous defendant's witnesses, a transfer would simply "shift" the inconvenience from one party to another and fail to clearly demonstrate that the balance of inconvenience favored the defendant. Cochran, 58 F.Supp. 2d at 1119-1120. In contrast, here Plaintiff appears to be suggesting that the inconvenience to a single plaintiff's witness is sufficient to offset the potential inconvenience to numerous defense witnesses. It is not. The Court must consider not just the existence of inconvenience for each side but also its potential magnitude. Weighing those factors, it is clear that this aspect favors Defendant. Defendant has identified numerous potentially key witnesses that reside in NY. (Def.'s Resp. at 5). These witnesses would be significantly inconvenienced if they were forced to travel to SDCal for this lawsuit. In contrast, Plaintiff identifies only a single witness-himself-who would be inconvenienced if the case were transferred to New York.*fn2 In light of this great disparity, it is clear that the choice of venue favors New York. IV. CONCLUSION AND ORDER

  In light of the foregoing, the Court GRANTS Defendant's motion to transfer venue [Doc. No. 8] and TRANSFERS this action, in its entirety, to the United States District Court, Western District of New York. Upon transfer, the Clerk of Court shall close the district court case file.



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