United States District Court, N.D. California, San Jose Division
ORDER GRANTING DEFENDANT'S MOTION TO TRANSFER
[Re: ECF 34]
LABSON FREEMAN UNITED STATES DISTRICT JUDGE
National Fire Insurance Company of Hartford (“National
Fire”) brings this action for cargo damage against
Defendant UPS Ground Freight, Inc. (“UPS
Freight”) under the Carmack Amendment to the Interstate
Commerce Act, 49 U.S.C. § 14706. First Am. Compl.
(“FAC”), ECF 13. National Fire alleges that on or
about August 5, 2014, in Bear, Delaware, UPS Freight received
a consignment of video equipment (the “cargo”),
in good order and condition, from Campus Televideo, the owner
and shipper of the cargo. Id. ¶¶ 5, 7.
National Fire insured Campus Televideo for the cargo's
loss or. Id. ¶ 6. National Fire claims that UPS
Freight issued a clean, straight bill of lading (No.
747422371), and thereby undertook to transport the cargo by
truck from Bear, Delaware to Seaside, California, and to
deliver the cargo there in the same good order and condition
as when received. Id. ¶ 8. Plaintiff further
alleges that on or about August 11, 2014, UPS Freight
delivered the cargo in Seaside, California in a
“severely damaged condition, ” which caused
Campus Televideo to suffer a constructive total loss in the
amount of $64, 832.97. Id. ¶¶ 9, 10.
Pursuant to the insurance policy, National Fire indemnified
Campus Televideo for its loss and now seeks to recover its
loss from UPS Freight by subrogation and assignment.
Id. ¶ 11.
before the Court is UPS Freight's motion to transfer
venue pursuant to 28 U.S.C. § 1404(a). Mot., ECF 34.
Defendant asks the Court to transfer the action from this
district to the District of Delaware. Id. at 1. The
Court finds this matter suitable for resolution without oral
argument and thus VACATES the hearing scheduled for this
motion. See Civ. L.R. 7-1(b). For the reasons set
forth below, the Court GRANTS Defendant's motion to
transfer this action.
may transfer an action to another district: (1) for the
convenience of the parties; (2) for the convenience of the
witnesses; and (3) in the interest of justice. 28 U.S.C.
§ 1404(a). To determine if a transfer of venue is
appropriate under § 1404(a), courts apply a two-part
test. Ctr. For Biological Diversity v. McCarthy, No.
14-cv-5138, 2015 WL 1535594, at *1 (N.D. Cal. Apr. 6, 2015)
(citing Hatch v. Reliance Ins. Co., 758 F.2d 409
(9th Cir. 1985)). First, courts consider whether the case
could have been brought in the proposed transferee district.
Id. Second, if the case could have been brought in
the transferee district, courts determine if the case should
be moved to that forum “for convenience of parties and
witnesses [and] in the interest of justice.”
McCarthy, 2015 WL 1535594, at *1; 28 U.S.C. §
1404(a). As the Ninth Circuit explained in Jones v. GNC
Franchising, Inc., 211 F.3d 495 (9th Cir. 2000), a court
may also consider:
(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
Jones, 211 F.3d at 498.
single factor is dispositive, and a district court has broad
discretion to adjudicate motions for transfer on a
case-by-case basis.” Ctr. for Biological Diversity
v. Kempthorne, No. 08-1339, 2008 WL 4543043 (N.D. Cal.
Oct. 10, 2008) (citation omitted). The burden is on the party
seeking transfer to show that when these factors are applied,
the balance of convenience clearly favors transfer.
Commodity Futures Trading Comm'n v. Savage, 611
F.2d 270, 279 (9th Cir. 1979). It is not enough for the
defendant to merely show that it prefers another forum, and
transfer will not be allowed if the result is merely to shift
the inconvenience from one party to another. Van Dusen v.
Barrack, 376 U.S. 612, 645-46 (1964).
asks the Court to transfer this action to the District of
Delaware pursuant to 28 U.S.C. § 1404(a). Plaintiff
opposes the transfer.
preliminary matter, National Fire suggests that UPS
Freight's motion should be denied as untimely.
See Opp'n 2 (“Now, over 9 months after
this action was initiated, UPS has moved to transfer the case
to the District of Delaware.”). However,
“[s]ection 1404(a) sets no limit on the time when a
motion to transfer may be made.” 15 Charles Alan Wright
& Arthur R. Miller, Federal Practice and
Procedure § 3844 (4th ed. 2017). Thus, courts have
found that an action may be transferred under § 1404(a)
at any time during the pendency of the case, even after
judgment has been entered. Id. Defendant has also
provided an adequate explanation for any delay in filing this
motion-it contends that it could not have known that Delaware
was a more convenient venue until Plaintiff served its
discovery responses in December 2016, four months before
Defendant filed the instant motion. Reply 4, ECF 37.
“[T]he Ninth Circuit has never held that a five month
delay necessitates the denial of a motion to transfer,
” and the Court declines to find otherwise here,
particularly where Plaintiff does not claim that it would be
prejudiced by the transfer. See Saleh v. Titan
Corp., 361 F.Supp.2d 1152, 1168 (S.D. Cal. 2005).
the Court now determines whether venue would be proper in the
District of Delaware, assesses the convenience factors as
dictated by section 1404(a), and determines whether it would
be in the interest of justice to transfer the action.
Venue Would Be Proper in the District of Delaware
the first prong of the § 1404(a) inquiry, this action
could have been ...