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National Fire Insurance Co. of Hartford v. UPS Freight, Inc.

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

May 10, 2017

UPS FREIGHT, INC., Defendant.



         Plaintiff 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.

         Presently 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.


         A court 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 proof.

Jones, 211 F.3d at 498.

         “No 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).


         Defendant asks the Court to transfer this action to the District of Delaware pursuant to 28 U.S.C. § 1404(a). Plaintiff opposes the transfer.

         As a 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).

         Accordingly, 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.

         A. Venue Would Be Proper in the District of Delaware

         Applying the first prong of the § 1404(a) inquiry, this action could have been ...

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