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Lewis Lipnick and Lynn-Jane Foreman Lipnick v. United Air Lines


September 9, 2011


The opinion of the court was delivered by: Claudia Wilken United States District Judge



Defendants United Air Lines, Inc. and Deutsche Lufthansa Aktiengesellschaft move to transfer this action to the Eastern 14 District of Virginia or, alternatively, to the District of 15 Columbia. Plaintiffs oppose the motion.

Having considered the 16 papers submitted by the parties, the Court finds it in the 17 interest of justice to GRANT Defendants' motion to transfer the 18 action to the Eastern District of Virginia. 19


Plaintiff Lewis Lipnick filed his initial action in the Superior Court of California. He asserted claims under the 22 Convention for the Unification of Certain Rules for International 23 Carriage by Air (the Montreal Convention) and alleged negligence 24 against Defendants for injuries he sustained in Munich, Germany, 25 while embarking on United Air Lines Flight 903 destined for Dulles 26 International Airport in Chantilly, Virginia. Defendants removed 27 the case to district court on the basis of diversity and federal 28 question jurisdiction. Plaintiff Lewis Lipnick's wife, Lynn-Jane 2 Foreman Lipnick, joined the action in the First Amended Complaint, 3 alleging damages for loss of consortium. Plaintiffs are residents 4 of Falls Church, Virginia. Defendants now move under 28 U.S.C. 5 § 1404(a) to transfer the case. 6


"For the convenience of parties and witnesses, in the 8 interest of justice, a district court may transfer any civil 9 action to any other district or division where it might have been 10 brought." 28 U.S.C. § 1404(a). Section 1404(a) accords a district court broad discretion with respect to transferring a case. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988) 13 (citing Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955)). In 14 assessing whether to exercise its discretion to do so, a district 15 court considers the following:

(1) convenience of the parties; 16 (2) convenience of the witnesses; and (3) the interest of justice. 17 Id. The Ninth Circuit has identified numerous additional factors 18 a court may consider in determining whether a change of venue 19 should be granted pursuant to § 1404(a): 20 (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. 27 2000).

The burden is on the defendant to show that the convenience 2 of parties and witnesses and the interests of justice require 3 transfer to another district. Commodity Futures Trading Comm'n v. 4 Savage, 611 F.2d 270, 279 (9th Cir. 1979). The Supreme Court has 5 ruled that a Section 1404(a) analysis should be an 6 "individualized, case-by-case consideration of convenience and 7 fairness." Van Dusen v. Barrack, 376 U.S. 612, 622 (1964).

Defendants have met their burden to show that the relevant 10 factors weigh in favor of transferring this case to the Eastern District of Virginia.


The convenience of the parties does not merit much consideration here. Plaintiffs have chosen to sue in California, 14 and Defendants are corporations with extensive operations in each 15 forum.

The convenience of the witnesses, however, weighs heavily in favor of transfer. Courts in this district have called "the 18 convenience of witnesses often the most important factor in 19 deciding whether to transfer an action." Getz v. Boeing Co., 547 20 F. Supp. 2d 1080, 1083 (N.D. Cal. 2008); see also Kina v. United 21 Air Lines, Inc., 2008 WL 5071045, at *6 (N.D. Cal.). All of 22 Plaintiffs' identified witnesses reside in and around the Eastern 23 District of Virginia, and all but one member of the flight crew on 24 United Air Lines Flight 903 are domiciled in the Eastern District 25 of Virginia.

The interest of justice relates to the use of judicial 27 resources, delay to the parties and the interests of the local 28 court. See Pratt v. Rowland, 769 F. Supp. 1128, 1133 (N.D. Cal. 1991). Transferring the case to the Eastern District of Virginia, 2 where cases are resolved more quickly than in the Northern 3 District of California, will reduce delay to the parties. Because 4 Plaintiffs are Virginia residents, a Virginia court has a greater 5 interest in resolving this dispute than a California court does. 6 Moreover, it is consistent with the interest of justice to 7 transfer a case when the litigation has not progressed very far, 8 as is the case here. See Unisys Corp. v. Access Co., Ltd., 2005 9 WL 3157457, at *6 (N.D. Cal.). 10 The additional Ninth Circuit considerations also favor 11 transfer.

There is no evidence that one forum is more, or less, familiar with the Montreal Convention; and California law does not 14 apply to this case except in a choice-of-law analysis. See Piper 15 Aircraft Co. v. Reyno, 454 U.S. 235, 244 n.8 (1981). Although 16 Plaintiffs cite Kruger v. United Air Lines, Inc., 481 F. Supp. 2d 17 1005 (N.D. Cal. 2007), to support the contention that substantive 18 California law should apply here, it only applied in Kruger 19 because the incident giving rise to that cause of action occurred 20 during a flight between San Francisco, California, and Seattle, 21 Washington.

The plaintiffs' choice of forum, which is normally accorded significant weight, is diminished in importance where the chosen 24 venue neither is the plaintiffs' residence nor has a significant 25 connection to the activities alleged. Pacific Car & Foundry Co. 26 v. Pence, 403 F.2d 949, 954 (9th Cir. 1968). The parties' 27 contacts with the respective forums, both generally and in 28 connection with the cause of action, are more closely tied to Virginia than to California. Plaintiffs are residents of 2 Virginia, and the operative facts occurred while one of them 3 embarked on a flight from Munich, Germany to Chantilly, Virginia. 4 The availability of compulsory process to compel the 5 attendance of unwilling witnesses favors moving the case to the 6 Eastern District of Virginia. With rare exception, the Court's 7 subpoena power only extends outside of its district if the place 8 of service is "within 100 miles of the place specified for the 9 depositions, hearing, trial, production or inspection." Fed. R. Civ. P. 45(b)(2)(B). All identified witnesses lie outside of this Court's reach but within the subpoena power of the Eastern District of Virginia.

While ease of access to documentary information may be the same between the two forums, moving the case to the Eastern 15 District of Virginia allows for easier access to witness 16 testimony.


For the foregoing reasons, Defendants' motion to transfer the case to the Eastern District of Virginia is GRANTED. 20




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