United States District Court, S.D. California
MORRIS CERULLO WORLD EVANGELISM, INC., a California corporation, Plaintiff,
WORLD RELIGIOUS RELIEF, Inc. (dba
ORDER DENYING DEFENDANT'S MOTION TO TRANSFER VENUE
BARRY TED MOSKOWITZ, Chief District Judge.
Defendant World Religious Relief, Inc. has filed a Motion to Dismiss or Transfer Plaintiff's Complaint for Improper Venue (28 U.S.C. § 1406(a)); or in the Alternative to Transfer for Convenience (28 U.S.C. § 1404(a)). For the reasons discussed below, Defendant's motion is DENIED.
Plaintiff Morris Cerullo World Evangelism, Inc. is a California corporation based in San Diego, California, whose business involves the broadcast of religious programming over various media outlets. ¶ 1. Defendant is a Michigan corporation based in Southfield, Michigan, that broadcasts television programming prepared by third parties over a network of cable and satellite television providers. ¶ 2. In 2011, Plaintiff and Defendant entered into an agreement where Plaintiff broadcast pre-recorded programing over Defendant's network in exchange for payment by Plaintiff to Defendant ("2011 agreement"). ¶ 7. Later that year, a dispute occurred as to monies owed for the 2011 agreement. ¶ 8. Plaintiff alleges that it attempted to resolve the dispute and that Defendant was unresponsive. ¶ 8. Based on Defendant's silence, Plaintiff believed the dispute had been resolved or abandoned by Defendant. ¶ 9.
In 2013, Plaintiff's agent, The Cerullo Group, Inc., began negotiating a new contract with Defendant's agent and media broker, Word Media, for future television broadcasts. ¶ 10. Word Media is based in Arlington, Texas. Complaint Exhibit 1. Neither Defendant nor Word Media ever claimed that the 2011 dispute was outstanding during these negotiations. ¶ 11. When The Cerullo Group specifically asked Word Media about the standing of Plaintiff's account, Word Media's general manager assured the Cerullo Group that Plaintiff was in "good standing." ¶ 11.
On or about May 22, 2013, the parties' agents entered into a written contract where Defendant would broadcast Plaintiff's recordings for one year, five times per week, at a cost of $2, 000 per broadcast ("2013 agreement"). ¶ 14. Pursuant to the 2013 agreement, Plaintiff paid Defendant $17, 000 to begin broadcasting Plaintiff's programming in June 2013. ¶ 15.
Defendant subsequently informed Plaintiff that its $17, 000 payment would not be credited towards the 2013 agreement, but would rather apply to the balance allegedly owed under the 2011 agreement. ¶ 16. Defendant further indicated that no programming would be aired unless Plaintiff paid the full amount of the 2011 dispute balance as well as the $17, 000 advance required by the 2013 agreement. ¶ 16. Defendant was scheduled to begin broadcasting Plaintiff's programming under the 2013 agreement on June 17, 2013, but failed to do so. ¶ 18. Plaintiff alleges that Defendant negotiated the 2013 agreement with Plaintiff in bad faith, and used the false promise of future broadcasts to obtain monies allegedly due from the 2011 agreement. ¶ 13.
Plaintiff subsequently sued Defendant for breach of contract, deceit, negligent misrepresentation, conversion, and money had and received in California Superior Court for the County of San Diego. Defendant removed the case to the United States District Court for the Southern District of California on the basis of diversity jurisdiction. Defendant has now moved to dismiss or transfer Plaintiff's complaint on the basis of improper venue.
II. LEGAL STANDARD
A. Venue of Removed State Actions
28 U.S.C. § 1441(a) authorizes defendant to remove "to the district court... embracing the place where such action is pending." Thus, in actions removed from state court, venue is automatically proper in the federal district court located where the state action was pending. See Polizzi v. Cowles Magazines, Inc. , 345 U.S. 663, 665-66 (1953). Venue of removed actions is determined by the removal venue statute, 28 U.S.C. § 1441(a), not by the general venue statutes. 28 U.S.C. § 1390(c); Thermal Components Co. v. Griffith , 98 F.Supp.2d 1224, 1231 (D. Kan. 2000) ("§ 1441(a), not § 1391, controls venue in removal actions.")
B. Transfer of Venue
Even where venue is proper, a discretionary convenience transfer pursuant to § 1404(a) may be sought. See 28 U.S.C. § 1404 (1948 Revision Notes) (Section 1404(a) "was drafted in accordance with the doctrine of forum non conveniens, permitting transfer to a more convenient forum, even though the venue is proper."). Under this section, "[f]or 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." 28 U.S.C. § 1404(a). In determining whether transfer is appropriate in a particular case, courts consider factors such as
(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 ...