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
ORDER (1) GRANTING DEFENDANT'S MOTION TO TRANSFER VENUE [Doc. No.
8]; (2) TRANSFERRING ACTION TO THE WESTERN DISTRICT OF NEW YORK
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
II. LEGAL STANDARD
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.
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.
IT IS SO ORDERED.
© 1992-2005 VersusLaw Inc.