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Westby v. Lincoln Property Co.

United States District Court, N.D. California, San Jose Division

June 18, 2014

CELESTE WESTBY, individually; THOR WESTBY, individually; TALON WESTBY, a minor by and through his Guardian Ad Litem CELESTE WESTBY, Plaintiffs,
LINCOLN PROPERTY COMPANY, a corporation dba LINCOLN MILITARY HOUSING; JARSCO UTILITIES, INC., a corporation; BI-STATE PROPANE, a corporation; GENERAL ELECTRIC COMPANY, a corporation; ABC FIRE EXTINGUISHER COMPANY, INC., a corporation; CAMP PENDLETON & QUANTICO HOUSING, LLC, a corporation; and DOES 3 through 50, inclusive, Defendants.



Plaintiffs Thor Westby, Celeste Westby, and Talon Westby filed this action following an explosion at their home caused by a build-up of propane gas. Plaintiffs sue six companies alleged to have performed negligent construction, manufacture, repair, and/or maintenance that contributed to the explosion. Four of the six defendants move to dismiss the action under Federal Rule of Civil Procedure 12(b)(3) for improper venue or, in the alternative, for change of venue pursuant to 28 U.S.C. § 1404(a). The Court has considered the briefing submitted by the parties.[1] For the reasons discussed below, the motion is DENIED.


At the time of the explosion, Thor, Celeste, and Talon Westby resided in a duplex home located in the Department of the Navy's Coleville Military Family Housing Complex in Coleville, California. (Compl. ¶ 1, ECF 1-1) Plaintiffs allege that at approximately 9:00 p.m. on the night of February 3, 2012, a large build-up of propane gas in their residence ignited upon meeting an "ignition source." ( Id. ) The resulting explosion destroyed Plaintiffs' half of the duplex, killed the occupant of the other half of the duplex, and damaged approximately thirty surrounding homes. ( Id. ¶¶ 1, 21) Emergency responders found thirty-six year old Thor Westby in the living room after the explosion; he suffered "severe physical and emotional injuries" resulting from the explosion and subsequent fire. ( Id. ¶ 23) Thirty-nine year old Celeste Westby was found in the utility room; she suffered "serious and life threatening injuries, including but not limited to extensive and permanent burn and inhalation injuries with physical scarring and disfigurement." ( Id. ¶ 22) Talon Westby, age ten, was visiting a neighbor at the time of the explosion, but he arrived at the scene in time to witness rescue efforts; he is suffering "serious and ongoing psychological and emotional distress." ( Id. ¶ 24)

Plaintiffs filed this action in the Santa Cruz County Superior Court on January 30, 2014, asserting eleven state law claims: (1) premises liability; (2) negligence; (3) res ipsa loquitur; (4) product liability - negligence; (5) product liability - strict liability; (6) breach of express warranty; (7) breach of implied warranty - particular purpose; (8) breach of implied warranty - merchantability; (9) private nuisance; (10) trespass; and (11) loss of consortium. (Compl., ECF 1-1)

The complaint alleges liability on the part of four named defendants and Does 1-50. According to Plaintiffs, Defendant Lincoln Property Company, which operated the housing complex, "failed to properly inspect, maintain and safeguard the property from foreseeable dangers." (Compl. ¶¶ 1, 3(A)) Defendant Bi-State Propane "possessed, sold and distributed the propane gas, and filled and inspected the propane tanks that supplied the propane gas that fueled the explosion." ( Id. ¶ 3(B)) Defendant Jarsco Utilities, Inc. "negligently designed, installed, financed, repaired, upgraded, maintained, and/or inspected the propane distribution system so as to create a dangerous condition." ( Id. ¶ 3(C)) Finally, General Electric Company "negligently designed, manufactured, tested, installed, repaired, maintained, inspected, and/or introduced into the stream of commerce the gas-powered stove so as to create a dangerous condition." ( Id. ¶ 3(D)) While the action was pending in the Superior Court, ABC Fire Extinguisher Company, Inc. and Camp Pendleton & Quantico Housing, LLC, were substituted for Doe 1 and Doe 2, respectively. (Jabagchourian Decl. ¶ 3, ECF 25-1)[2]

On April 18, 2014, Defendant Camp Pendleton & Quantico Housing, LLC removed the action to the United States District Court for the Northern District of California based upon federal enclave jurisdiction. (Not. of Removal, ECF 1) Lincoln Property Company joined in the removal. ( Id. ¶ 2) The removal was not contested by Plaintiffs. Shortly thereafter, Camp Pendleton & Quantico Housing, LLC and Lincoln Property Company (collectively, "Moving Parties") filed the present Motion to Dismiss or, in the Alternative, for Change of Venue. (Mot., ECF 20) Moving Parties contend that venue is proper in the Eastern District of California, where the Coleville Military Family Housing Complex is located. A statement of non-opposition to the motion was filed by General Electric Company and joinders in the motion were filed by Amerigas Propane, L.P. (the successor-in-interest to Bi-State Propane) and ABC Fire Extinguisher Company, Inc.[3] (Statement of Non-Opp., ECF 21; Joinder, ECF 23; Joinder, ECF 24) Plaintiffs' opposition to the motion was filed on May 28, 2014, and a reply was filed on June 4, 2014.


A. Rule 12(b)(3)

A defense of improper venue may be raised by motion under Federal Rule of Civil Procedure 12(b)(3). When a district court evaluates a Rule 12(b)(3) motion, "pleadings need not be accepted as true, and facts outside the pleadings may be considered." Doe 1 v. AOL LLC, 552 F.3d 1077, 1081 (9th Cir. 2009). If a district court determines that venue is improper, the court may dismiss the action or, in the interests of justice, transfer the case to any district in which it could have been brought. 28 U.S.C. § 1406(a).

B. Section 1404(a)

"For 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 or to any district or division to which all parties have consented." 28 U.S.C. § 1404(a).


A. Dismissal for ...

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