The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION GRANTING DEFENDANT'S MOTION TO TRANSFER VENUE
On September 10, 2009, Plaintiff Bobby Malloy, represented by David Washington, filed a Complaint for Damages. Plaintiff, alleged to be a California resident, alleges that he was injured by a fall on September 10, 2008 at a McDonald's Restaurant in Holbrook, Arizona; that Plaintiff suffered a torn rotary cuff, torn supraspinatus and infraspinatus tendons; required surgery; and that the surgery resulted in loss of mobility and an increase in pain. Defendants are McDonald's Corporation, a Delaware corporation, with its principle place of business in Oak Brook, Illinois, and which conducts business by operating fast food restaurants in all the states of the United States, and Martinez Management, Inc. dba McDonald's, a "business entity of unknown form with its principle place of business in Holbrook, Arizona." The Complaint alleges that jurisdiction is based on diversity of citizenship and that venue is proper in the Eastern District of California pursuant to 28 U.S.C. § 1391(a). On March 10, 2009, Defendants filed a motion to transfer for improper venue pursuant to 28 U.S.C. § 1406(a) or, in the alternative, to transfer venue for convenience pursuant to 28 U.S.C. § 1404(a).
Plaintiff did not file a response to the motion. Court staff spoke with Mr. Washington on Monday, April 29, 2009. Mr. Washington advised he had recently moved his office and did not receive a copy of the motion. Because Mr. Washington is registered for electronic filing, the motion was electronically filed, and Mr. Washington has been receiving email notifications of filings in this action, his excuse rings hollow. Mr. Washington advised that he had spoken with Defendants' counsel, who agreed to allow Plaintiff to file an opposition in a "day or two." Defendants' counsel stated at the hearing that he had told Mr. Washington that Defendants would not object to a late filed opposition. Court staff, however, told Mr. Washington that Court had a sizeable calendar on May 4, that the late filing would preclude the filing of a reply brief and delay the Court's preparation for the hearing, and that Mr. Washington should obtain a stipulation from Defendants' counsel to continue the motion. On 11:00 a.m. Friday, May 1, 2009, Mr. Washington advised Court staff that he had not been able to reach Defendants' counsel. Mr. Washington was told that he should appear at the hearing on May 4, 2009. No appearance was made at the hearing by Plaintiff or on behalf of Plaintiff.
A. MOTION TO TRANSFER FOR IMPROPER VENUE
28 U.S.C. § 1406(a) provides that "[t]he district courts of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." 28 U.S.C. § 1391 provides:
(a) a civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant is subject to personal jurisdiction at the time the action is commenced, if there is no district in which the action may otherwise be brought.
(c) For purposes of venue under this chapter, a defendant that is a corporation shall be deemed to reside in any judicial district in which it is subject to personal jurisdiction at the time the action is commenced.
Defendants present declarations averring that Martinez Management, Inc. is an Arizona corporation with its principle place of business if Pinetop, Arizona; that Martinez Management, Inc. owns and operates multiple McDonald's franchise restaurants in Arizona, including the restaurant in Holbrook, Arizona, where Plaintiff was allegedly injured; that the franchisee of the subject restaurant is Abelardo Martinez, Jr. Family Trust; that McDonald's Corporation does not own, operate or control the restaurant business where the incident is alleged to have occurred; and that Martinez Management, Inc. is not incorporated in California, has not qualified to do business in California, and has no subsidiary incorporated or qualified to do business in California.
Defendants argue that, although McDonald's Corporation has been named as a defendant, the only potentially culpable defendant is Martinez Management, Inc. Whether or not McDonald's Corporation remains a defendant in this action, the only state in which all defendants reside in this matter is Arizona. Defendants contend, using the "residence" test in Section 1391(a)(1) to determine venue, the proper venue is the United States District Court for the District of Arizona.
With regard to Section 1391(a)(2), all of the events or omissions giving rise to Plaintiff's claim occurred in Holbrook, Arizona. Therefore, Defendants argue, pursuant to the test set forth in Section 1392(a)(2), venue is proper in the United States District Court for the District of Arizona.
Defendants' motion to transfer venue to the United States District Court for the ...