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William John Frost v. Evergreen Helicopters

September 28, 2012


The opinion of the court was delivered by: Hon. Michael M. Anello United States District Judge



Defendants Evergreen Helicopters, Inc., Evergreen Helicopters of Alaska, Inc., Evergreen International Aviation, Inc., and Evergreen Aviation Ground Logistics Enterprises, Inc. (collectively "Evergreen" or "Defendants") move pursuant to 28 U.S.C. section 1404(a) for a transfer of venue to the United States District Court for the District of Oregon. Plaintiff opposes and Defendants filed a reply. The Court finds the motion suitable for determination on the papers submitted and without oral argument. S.D. Cal. Civ. L.R. 7.1.d.1. For the reasons stated below, the Court GRANTS Defendants' motion.


Plaintiff William John Frost ("Plaintiff") is a resident of San Diego, California and resided here during all of the operative events in this matter. (Decl. of Pl. William John Frost in Supp. of Pl.'s Opp'n to Mot. for Change of Venue ["Frost Decl."] ¶ 2.) Defendants provide global aviation services, including cargo transport services for United States military operations in Afghanistan, on a contract basis. (Decl. of Dan Klump in Supp. of Defs.' Mot. to Transfer Venue ["Klump Decl."] ¶ 4.) In September 2000, Plaintiff submitted an employment application to Evergreen at its headquarters in McMinnville, Oregon. (Klump Decl. ¶ 3, Ex. 1.) After receiving Plaintiff's application, Defendants directed Plaintiff to execute releases for a background check and for drug testing. (Frost Decl. ¶ 3; Klump Decl. ¶ 2.) The background check and drug testing were conducted in California. (Frost Decl. ¶ 3.) November 17, 2010, Plaintiff flew to McMinnville to interview for a position with Defendants. (Frost Decl. ¶ 3; Klump Decl. ¶ 2.) The two days that followed were the only time period during his employment with Defendants that Plaintiff was present in Oregon. (FrostDecl. ¶ 6; Klump Decl. ¶ 3, Ex. 1.) On November 22, 2010, Defendants offered Plaintiff employment for the position of Cargo Engineer in Afghanistan to support Defendants' Low Cost Low Altitude ("LCLA") contract with the United States Government. (Frost Decl. ¶ 4; Klump Decl. ¶¶ 2, 4, Ex. 2.) On November 23, 2010, Plaintiff signed and accepted the offer. (Frost. Decl. ¶ 4.)

In February 2011, Plaintiff was deployed to Bagram, Afghanistan as a LCLA team member. (Klump Decl. ¶ 4.) During his deployment, Plaintiff allegedly reported several safety compliance concerns to Defendants. (Notice of Removal ["NOR"], Ex. A, ¶¶ 21-27.) At the end of August 2011, Plaintiff's rotation ended and he returned to his home in San Diego. (Frost Decl.

¶ 9.) In September 2011, Defendants learned that the United States was not going to renew the LCLA contract. (Id. ¶ 12; Klump Decl. ¶ 5.) Subsequently, Defendants sent a letter to LCLA team members advising them of their intent to try to find new assignments for those affected by the non-renewal. (Klump Decl ¶ 5.) In October 2011, Defendants terminated Plaintiff's employment contract. (Frost Decl. ¶ 13; Klump Decl. ¶ 6.) On June 20, 2012, Plaintiff filed this action against Defendants alleging breach of employment contract, wrongful termination in retaliation for reporting compliance issues, and intentional infliction of emotional distress. (NOR ¶ 1.) On July 20, 2012, Defendants removed the action to this Court.


"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil matter to any other district or division where it might have been brought."

28 U.S.C. § 1404(a). The purpose of section 1404(a) is to "prevent the waste of time, energy, and money and to protect litigants, witnesses and the public against unnecessary inconvenience and expense." Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal citations and quotation marks omitted). A motion for transfer lies within the broad discretion of the district court and must be determined on an individualized basis. See Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000).

To support a motion for transfer of venue, the moving party must establish "that venue is proper in the transferor district; that the transferee district is one where the action might have originally been brought; and that transfer will serve the convenience of the parties and witnesses and will promote the interests of justice." Vu v. Ortho-McNeil Pharm., Inc., 602 F. Supp. 2d 1151, 1155-56 (N.D. Cal. 2009) (quoting Goodyear Tire & Rubber Co. v. McDonnell Douglas Corp., 820 F. Supp. 503, 506 (C.D. Cal. 1992)).

Once venue is determined to be proper in both districts, courts use the following factors to evaluate whether a transfer of venue would be more convenient to the parties and witnesses and would promote the interests of justice: (1) plaintiff's choice of forum; (2) convenience of the parties; (3) convenience of the witnesses; (4) ease of access to the evidence; (5) familiarity of each forum with an applicable law; (6) feasibility of consolidation with other claims; (7) any local interest in the controversy; and (8) the relative court congestion and time of trial in each forum. Vu, 602 F. Supp. 2d at 1155-56. In general, "[t]he defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum." Id.; Decker Coal Co. v. Commonw. Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).


Defendants move to transfer this action the District of Oregon on the grounds that it would be more convenient for the witnesses and parties and in the interest of ...

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