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Davis v. Top Flight Academy

May 26, 2010

JAMES M. DAVIS; ANDREA E. DAVIS, PLAINTIFFS,
v.
TOP FLIGHT ACADEMY, LLC, DBA TOP FLIGHT ACADEMY, A UTAH LIMITED LIABILITY COMPANY; CLAYTON JUSTENSEN; CINDY JOHANSEN; DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER GRANTING EACH DEFENDANT'S MOTION TO TRANSFER VENUE*fn1

Defendants Top Flight Academy, LLC ("Top Flight") and Clayton Justensen filed a motion on April 1, 2010, seeking to transfer this case to the United States District Court for the Central Division of Utah under 28 U.S.C. § 1404(a). (Docket No. 9.) Defendant Cindy Johansen filed a separate motion to transfer in which she "joins and incorporates by reference" the arguments in Top Flight and Justensen's motion. (Johansen Mot. to Transfer 1: 26-28) (Docket No. 17.) Plaintiffs filed a single opposition brief opposing both transfer motions, primarily arguing that their son and main witness, Shawn Berwind, resides in the Eastern District of California. Plaintiffs' claims relate to their allegation that their son Shawn began a sexual relationship with his Top Flight instructor, Defendant Johansen, while enrolled at Top Flight.

I. BACKGROUND

Plaintiffs allege in their complaint that on or about October 31, 2007, Plaintiffs entered into a written and oral agreement, under which they enrolled their son Shawn at Top Flight. (Compl. ¶ 5.) Top Flight is a "Utah-licensed residential treatment center" located in Mount Pleasant, Utah. (Id. ¶¶ 5, 51.) Plaintiffs allege that while Shawn was enrolled at Top Flight, he met Defendant Johansen, an instructor at Top Flight, and began an inappropriate sexual relationship with her. (Id. ¶¶ 7, 12.)

Plaintiffs allege that Shawn left Top Flight and returned to his home in Sacramento in early July 2008. (Id. ¶ 17.) After Shawn's return, Plaintiffs allege they discovered a letter Johansen wrote Shawn, which "read like a love letter . . . ." (Id. ¶ 19.) Plaintiffs also allege they also discovered emails Johansen sent Shawn that were "overly familiar and flirtatious." (Id. ¶ 23.) Plaintiffs allege that in one e-mail, Johansen suggested that Shawn and his friends drive from Sacramento to Utah to receive tutoring. (Id.) In December 2008, Shawn allegedly ran away from home on several occasions. (Id. ¶25.) During one absence, Plaintiffs allege Shawn told them he was in Utah. (Id.)

Plaintiffs further allege they wrote Top Flight a letter dated December 5, 2008, in which they demanded reimbursement for the tuition and expenses they incurred to enroll Shawn at Top Flight. (Id. ¶ 29.) Defendant Justensen, the Executive Director and part owner of Top Flight, allegedly refused the reimbursement request. (Id. ¶¶ 6, 30.)

Thereafter, Plaintiffs filed their complaint in this action, in which they seek damages under Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq., and allege the following state claims: negligence, negligent supervision and hiring, breach of contract and breach of the covenant of good faith and fair dealing.

II. LEGAL STANDARD

Under 28 U.S.C. § 1404(a), "a district court may transfer any civil action to any other district or division where it might have been brought" "[f]or the convenience of [the] parties and witnesses, [or] in the interest of justice . . . ." "[A] two-step analysis [is used under section 1404(a)] to determine whether a transfer is proper." Gonsalves v. Infosys Techs., LTD, No. C 09-04112 MHP, 2010 WL 1854146, at *4 (N.D. Cal. May 6, 2010). "The threshold question under section 1404(a) requires the court to determine whether the case could have been brought in the forum to which the transfer is sought. If venue would be appropriate in the would-be transferee court, then the court must make an individualized, case-by-case consideration of convenience and fairness." Id. (quotations and citations omitted). In deciding whether transfer is convenient and fair, "multiple factors" are weighed, including "(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof." Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000) (citations omitted). Additionally, a contractual forum selection clause and any relevant public policy of the forum state are "significant" factors in this analysis. Id. at 499. However, "[n]o single factor is dispositive, and a district court has broad discretion to adjudicate motions for transfer on a case-by-case basis." Ctr. for Biological Diversity v. Kempthorne, No. C 08-1339 CW, 2008 WL 4543043, at *2 (N.D. Cal. Oct. 10, 2008) (citations omitted). "The party seeking transfer for convenience . . . generally bears the burden to show that another forum is more convenient and serves the interest of justice. The inquiry is not whether one venue or another would be the best venue; but rather whether there is a venue that is more convenient." F.T.C. v. Watson Pharms., Inc., 611 F. Supp. 2d 1081, 1086 (C.D. Cal. 2009) (citing GNC Franchising, 211 F.3d at 499).

III. DISCUSSION

A. This Action Could Have Been Filed Initially in the United States District Court for the Central Division of Utah

Defendants argue transfer to the United States District Court for the Central Division of Utah is permissible because Plaintiffs could have initially filed their complaint in that judicial district. (Top Flight Mot. to Transfer 5:21-6:5.) Plaintiffs do not dispute that this case could have initially been filed in the United States District Court for the Central Division of Utah.

B. Multiple Factors Weigh in Favor of Transferring this Action to the United States District Court for ...


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