United States District Court, C.D. California
ORDER re: DEFENDANTS' MOTION TO DISMISS PURSUANT TO FED. R. CIV. P. 12(b)(1), 12(b)(3), AND (12)(b)(6); OR IN THE ALTERNATIVE TO TRANSFER .
RONALD S.W. LEW, Senior District Judge.
Before the Court is Defendants' Motion for to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(1), 12(b)(3), and 12(b)6, or in the Alternative, to Transfer Pursuant to 28 U.S.C. § 1404. The Court, having considered all arguments presented to the Court, NOW FINDS AND RULES AS FOLLOWS:
The Court GRANTS Defendant's Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(3). Defendant's other grounds and Request for Judicial Notice are thus rendered MOOT.
Plaintiff Royal Macadamia Orchards, L.P. is a Delaware limited partnership that is licenced to do business in Hawaii. Compl. ¶ 3. Plaintiff is of the belief that Defendant Edmund C. Olson, the sole trustee of the Edmund C. Olson Trust No. 2 ("the Trust"), is a resident of Los Angeles, California; however, Defendant contests this assertion. Id . ¶ 4; Def's Mot. to Dismiss at 15. Both Plaintiff and Defendant grow, process, and market macadamia nuts and macadamia nut products in Hawaii. Compl. ¶¶ 7-8. Plaintiff and Defendant are direct competitors in the United States marketplace. Id . ¶ 8. Plaintiff Royal Macadamia Orchards initiated this Action against Defendant Edmund C. Olson, in his official capacity as trustee of the Edmund C. Olson Trust No. 2, for alleged violations of the Sherman Anti-Trust Act, breach of contract, breach of implied covenant of good faith and fair dealing, unfair and deceptive competition, and intentional interference with prospective economic advantage.
A. Legal Standard
Motion to Dismiss Pursuant to Fed R. Civ. P. 12(b)(3)
Federal Rule of Civil Procedure 12(b)(3) allows a party to file a motion to dismiss on the basis of improper venue. Fed.R.Civ.P. 12(b)(3). Plaintiff bears the burden of establishing proper venue. Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979) (citing Hayashi v. Sunshine Garden Prods., Inc., 285 F.Supp. 632, 633 (W.D. Wash. 1967)). The plaintiff is required to establish that venue is proper as to each defendant and as to each claim. Allstar Mktg. Grp., LLC v. Your Store Online, LLC, 666 F.Supp.2d 1109, 1126 (C.D. Cal. 2009) (quoting Kelly v. Echols, No. Civ. F05118 AWI SMS, 2005 WL 2105309, at *11 (E.D. Cal. Aug. 30, 2005)). However, "where venue exists for the principal cause of action, courts have agreed to adjudicate closely related claims even if they lacked an independent source of venue." Id. at 1127.
In considering a motion to dismiss for improper venue, a court is not required to accept the pleadings as true and may consider facts outside the pleadings. Doe 1 v. AOL, LLC, 552 F.3d 1077, 1081 (9th Cir. 2009) (citing Argueta v. Banco Mexicano, S.A., 87 F.3d 320, 323 (9th Cir. 1996)). "If the court finds that the case has been filed in the wrong division or district, ' it must dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.'" Allstar Mktg. Grp., 666 F.Supp.2d at 1126 (quoting 28 U.S.C. § 1406(a)).
A plaintiff has the burden of showing by a preponderance of the evidence that venue is proper. See United States v. Chi Tong Kuok, 671 F.3d 931, 937 (9th Cir.2012) (citing United States v. Gonzalez, 683 F.3d 1221, 1224 (9th Cir. 2012)). Under 28 U.S.C. §1391(b), a case may be brought in:
(1) a judicial district in which any defendant resides if all defendants are residents of the State in which the district is located; (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated; or (3) if not (1) or (2), any judicial district in which any defendant is subject to the court's personal jurisdiction with respect to such action.
Residency for proper venue purposes is determined based on the domicile of the defendant. 28 U.S.C. §1391(c). Domicile is established by (1) physical presence in the location and (ii) the intent to remain indefinitely. Lew v. Moss, 797 F.3d 747, 750 (9th Cir. 1986). The domicile question must be evaluated at the time of the filing of the complaint. See Bosman v. United States, No. 12-CV-1320 YGR, 2012 WL 1747972, at *2 (N.D. Cal. May 15, 2012). Plaintiff's Complaint was ...