Roth v. Adtran Incorporated

Filing 21

ORDER denying 10 Motion to Change Venue. Signed by Judge David G Campbell on 11/18/2013.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jason Roth, an Arizona resident,

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Plaintiff,

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ORDER

vs.

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No. CV13-1735-PHX DGC

Adtran, Inc., an Alabama corporation,

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Defendant.

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Defendant has filed a motion to transfer venue. Doc. 10. The motion has been

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fully briefed. Docs.11, 12, 13. No party has requested oral argument. For reasons stated

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below, the Court will deny the motion.

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I.

Background.

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Between 2004 and 2011, Plaintiff Jason Roth was a technical writer for employer

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Defendant Adtran, Inc., a Delaware corporation with its principal place of business in

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Hunstville, Alabama. Doc. 1 at 2; Doc. 11 at 2. Plaintiff lived and worked in Arizona

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during the relevant time period, and was the only Technical Writer employed by

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Defendant who lived and worked outside of Huntsville. Doc. 11 at 2. In or around June

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2009, Plaintiff asserts he was diagnosed with fibromyalgia, a condition that he contends

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substantially limits his ability to work. Doc. 1 at 2.

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accommodations for his condition from Defendant in 2009, but that his requests were

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ignored. Id. at 5.

Plaintiff alleges he requested

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In the summer of 2010, Plaintiff initiated charges against Defendant with the

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Equal Employment Opportunity Commission (“EEOC”) on the basis of failure to

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accommodate under the Americans with Disabilities Act (“ADA”).

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subsequently filed a second EEOC complaint on January 3, 2011, and a third on April 8,

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2011, after his position with Defendant in Phoenix was eliminated and his employment

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terminated. Id. at 8-9. On October 12, 2012 the EEOC issued a Letter of Determination

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with respect to all three complaints, and on June 20, 2013, the EEOC issued Plaintiff a

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Notice of Right to Sue with respect to each of Plaintiff’s charges. Id. at 9. Plaintiff filed

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his complaint against Defendant on August 22, 2013. Doc. 1. The complaint asserts

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claims for discrimination under the ADA, 42 U.S.C. § 12112, and retaliation in violation

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of the ADA, 42 U.S.C. § 12203. Doc. 1 at 10-12.

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II.

Id.

Plaintiff

Analysis.

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Defendant asks the Court to transfer this case to the Northern District of Alabama,

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Northeast Division. 28 U.S.C. § 1404(a) authorizes such a transfer if the action could

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have been brought in the Northern District of Alabama and “transfer is warranted by the

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convenience of parties and witnesses and promotes the interests of justice.” Van Dusen v.

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Barrack, 376 U.S. 612, 616 (1964), superseded by statute on other grounds. “[T]he

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purpose of [section 1404(a)] is to prevent the waste of time, energy and money and to

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protect litigants and the public against unnecessary inconvenience and expense.” Id.

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(citation omitted).

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The parties do not dispute that this action could have been brought in the Northern

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District of Alabama. The Court must determine whether Defendant has made “a strong

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showing of inconvenience to warrant upsetting [Plaintiff's] choice of forum.” Decker

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Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

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determination requires the weighing of several factors: (1) Plaintiffs’ choice of forum,

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(2) the convenience of the parties and witnesses, (3) the ease of access to sources of

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proof, (4) the presence of a forum selection clause, (5) the state that is most familiar with

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This

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the governing law, (6) the location where the relevant agreements were negotiated and

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executed, (7) the respective parties’ contacts with the forum, (8) the availability of

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compulsory process to compel attendance of unwilling non-party witnesses, (9) the

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relevant public policy of the forum state, and (10) the differences in the costs of litigation

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in the two forums. See 28 U.S.C. § 1404(a); Jones v. GNC Franchising, Inc., 211 F.3d

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495, 498-99 (9th Cir. 2000); Sparling v. Hoffman Constr. Co., 864 F.2d 635, 639 (9th

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Cir. 1988); Decker Coal, 805 F.2d at 843.

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A.

Plaintiff’s choice of forum.

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Plaintiff elected to file his claim in the District of Arizona. There is ordinarily “a

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strong presumption in favor of the plaintiff’s choice of forum,” such that great weight and

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substantial deference is generally afforded to a plaintiff’s choice. Piper Aircraft Co. v.

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Reyno, 454 U.S. 235, 265 (1981); see also Sinochem Intern. Co., Ltd. v. Malaysia Intern.

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Shipping Corp., 549 U.S. 422, 423 (2007); Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir.

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1987); Decker Coal, 805 F.2d at 843. This factor weighs strongly against transfer.

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B.

Convenience of the parties and witnesses.

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Convenience of parties and witnesses are critical factors for a court considering a

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motion to transfer, but a transfer which “merely shifts the inconvenience from one party

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to another” is not appropriate. Warfield v. Gardner, 346 F. Supp. 2d 1033, 1044 (D. Ariz.

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2004).

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Plaintiff is an Arizona resident. Doc. 12 at 4. Defendant is incorporated in

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Delaware and headquartered in Alabama. Doc. 11 at 2. Between the two parties, transfer

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of venue from Arizona to Alabama would inconvenience Plaintiff, while increasing

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convenience only for Defendant.

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continues to do business in Arizona, including hiring new employees for its Arizona

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office. Doc. 12 at 8, Ex. 5. Given this connection with Arizona, any inconvenience

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caused by litigating in this Court would be less than that suffered by Plaintiff if the case

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were transferred to the Northern District of Alabama.

Further, Defendant had an office in Phoenix and

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Defendant’s key witnesses all reside in Alabama. Doc. 11 at 5. Plaintiff claims,

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however, that at least four of his witnesses are in Arizona.

Doc. 12 at 4.

The

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inconvenience to witnesses, therefore, appears to be equal in both venues. Given that

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Plaintiff would be disadvantaged more than Defendant by litigating outside of his forum

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of choice, and that both sides have witnesses who would be inconvenienced by the other

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party’s choice, this factor weighs against transfer.

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C.

Ease of access to sources of proof.

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Personnel files, policies, performance evaluations, pay records and other work-

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related documents are located in Alabama. Doc. 11 at 6. Plaintiff’s medical records,

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related to his condition, are located in Arizona. Doc. 12 at 6. This factor weighs neither

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for nor against transfer, particularly in light of the fact that “documentary evidence is

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substantially less costly to produce than witness testimony.”

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2922 PHX RCB, 2006 WL 335841 (D. Ariz. Feb. 10, 2006).

Berry v. Potter, CIV 04-

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D.

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There is no forum selection clause. This factor is neutral.

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E.

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Plaintiff asserts claims under the ADA, a federal law. Either state is adequately

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Existence of a forum selection clause.

The state most familiar with the governing law.

situated to rule on these claims. This factor is neutral.

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F.

Where relevant agreements were negotiated and executed.

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Communications between Plaintiff and Defendant were all telephonic or

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electronic, and could thus be said to have taken place in either Arizona or Alabama.

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Hisun Motors Corp., U.S.A. v. Auto. Testing & Dev. Servs., Inc., CV11-1918-PHX DGC,

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2011 WL 5290149 (D. Ariz. Nov. 1, 2011). All accommodation and personnel decisions,

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however, occurred in Alabama because that is where Defendant’s headquarters and

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management are located. Doc. 11 at 5. This factor weighs slightly in favor of transfer.

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G.

The parties’ contacts with the chosen forum.

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Plaintiff is an Arizona resident. Defendant is registered to do business in Arizona

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and, during the relevant time period, employed an Arizona resident in an Arizona office.

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Doc. 12 at 7, ex. 3. Additionally, Defendant communicated extensively with Plaintiff in

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Arizona regarding the subject at issue in the complaint, Doc. 12 at 8, and received

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communications from the EEOC regarding the same at its Phoenix office, Doc. 12 at 8,

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ex. 2, 4, 5. This factor weighs against transfer.

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H.

The availability of compulsory process.

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Defendant asserts that Arizona is an inconvenient forum for relevant management

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and other employees who live and work in Alabama. But any inconvenience to witnesses

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still employed by the company carries little weight, as this court presumes Defendant can

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compel their attendance at trial. Berry, No. CIV 04-2922 PHX RCB, 2006 WL 335841, at

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*5.

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Two non-party witnesses – both former employees of Defendant – are located

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outside the subpoena power of this Court for trial purposes. See Doc. 11 at 4; FRCP

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45(b)(2). One is Defendant’s former Director of Human Resources and the other is a

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former Human Resources Manager. Doc. 11 at 4. Defendant alleges that both were

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involved in communications with Plaintiff regarding his claims and are key to the issues

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raised by Plaintiff. Id. This factor favors transfer, but only slightly. Although live

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testimony is preferable, the Court’s lack of subpoena power may be solved through the

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use of deposition or video testimony. Hisun, CV11-1918-PHX DGC, 2011 WL 5290149.

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I.

Relevant public policy of the forum state.

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Arizona has a strong interest in ensuring that its citizens are compensated for their

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injuries. Ochoa v. J.B. Martin & Sons Farms, Inc., 287 F.3d 1182, 1193 (9th Cir. 2002).

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This factor weighs against transfer.

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J.

Differences in the costs of litigation in the two forums.

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Given the recent advances in electronic communication and document production,

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discovery costs should be about the same in either forum. See Television Events & Mktg.,

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Inc. v. Amcon Distrib. Co., 416 F. Supp. 2d 948, 971 (D. Haw. 2006). At this stage, the

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Court cannot conclude that travel and transportation costs will be greater if the case is

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tried in Alabama or Arizona. This factor is neutral.

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K.

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The Court concludes that this case should not be transferred. Plaintiff's choice of

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forum should not be disturbed unless Defendant has made “a strong showing of

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inconvenience.” Decker Coal, 805 F.2d at 843. Defendant has not met this burden.

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Consideration of all the factors.

IT IS ORDERED that Defendant’s motion for change of venue (Doc. 10) is
denied.
Dated this 18th day of November, 2013.

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