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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jason Roth, an Arizona resident, 10 Plaintiff, 11 ORDER vs. 12 No. CV13-1735-PHX DGC Adtran, Inc., an Alabama corporation, 13 Defendant. 14 15 16 Defendant has filed a motion to transfer venue. Doc. 10. The motion has been 17 fully briefed. Docs.11, 12, 13. No party has requested oral argument. For reasons stated 18 below, the Court will deny the motion. 19 I. Background. 20 Between 2004 and 2011, Plaintiff Jason Roth was a technical writer for employer 21 Defendant Adtran, Inc., a Delaware corporation with its principal place of business in 22 Hunstville, Alabama. Doc. 1 at 2; Doc. 11 at 2. Plaintiff lived and worked in Arizona 23 during the relevant time period, and was the only Technical Writer employed by 24 Defendant who lived and worked outside of Huntsville. Doc. 11 at 2. In or around June 25 2009, Plaintiff asserts he was diagnosed with fibromyalgia, a condition that he contends 26 substantially limits his ability to work. Doc. 1 at 2. 27 accommodations for his condition from Defendant in 2009, but that his requests were 28 ignored. Id. at 5. Plaintiff alleges he requested 1 In the summer of 2010, Plaintiff initiated charges against Defendant with the 2 Equal Employment Opportunity Commission (“EEOC”) on the basis of failure to 3 accommodate under the Americans with Disabilities Act (“ADA”). 4 subsequently filed a second EEOC complaint on January 3, 2011, and a third on April 8, 5 2011, after his position with Defendant in Phoenix was eliminated and his employment 6 terminated. Id. at 8-9. On October 12, 2012 the EEOC issued a Letter of Determination 7 with respect to all three complaints, and on June 20, 2013, the EEOC issued Plaintiff a 8 Notice of Right to Sue with respect to each of Plaintiff’s charges. Id. at 9. Plaintiff filed 9 his complaint against Defendant on August 22, 2013. Doc. 1. The complaint asserts 10 claims for discrimination under the ADA, 42 U.S.C. § 12112, and retaliation in violation 11 of the ADA, 42 U.S.C. § 12203. Doc. 1 at 10-12. 12 II. Id. Plaintiff Analysis. 13 Defendant asks the Court to transfer this case to the Northern District of Alabama, 14 Northeast Division. 28 U.S.C. § 1404(a) authorizes such a transfer if the action could 15 have been brought in the Northern District of Alabama and “transfer is warranted by the 16 convenience of parties and witnesses and promotes the interests of justice.” Van Dusen v. 17 Barrack, 376 U.S. 612, 616 (1964), superseded by statute on other grounds. “[T]he 18 purpose of [section 1404(a)] is to prevent the waste of time, energy and money and to 19 protect litigants and the public against unnecessary inconvenience and expense.” Id. 20 (citation omitted). 21 The parties do not dispute that this action could have been brought in the Northern 22 District of Alabama. The Court must determine whether Defendant has made “a strong 23 showing of inconvenience to warrant upsetting [Plaintiff's] choice of forum.” Decker 24 Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). 25 determination requires the weighing of several factors: (1) Plaintiffs’ choice of forum, 26 (2) the convenience of the parties and witnesses, (3) the ease of access to sources of 27 proof, (4) the presence of a forum selection clause, (5) the state that is most familiar with 28 -2- This 1 the governing law, (6) the location where the relevant agreements were negotiated and 2 executed, (7) the respective parties’ contacts with the forum, (8) the availability of 3 compulsory process to compel attendance of unwilling non-party witnesses, (9) the 4 relevant public policy of the forum state, and (10) the differences in the costs of litigation 5 in the two forums. See 28 U.S.C. § 1404(a); Jones v. GNC Franchising, Inc., 211 F.3d 6 495, 498-99 (9th Cir. 2000); Sparling v. Hoffman Constr. Co., 864 F.2d 635, 639 (9th 7 Cir. 1988); Decker Coal, 805 F.2d at 843. 8 A. Plaintiff’s choice of forum. 9 Plaintiff elected to file his claim in the District of Arizona. There is ordinarily “a 10 strong presumption in favor of the plaintiff’s choice of forum,” such that great weight and 11 substantial deference is generally afforded to a plaintiff’s choice. Piper Aircraft Co. v. 12 Reyno, 454 U.S. 235, 265 (1981); see also Sinochem Intern. Co., Ltd. v. Malaysia Intern. 13 Shipping Corp., 549 U.S. 422, 423 (2007); Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 14 1987); Decker Coal, 805 F.2d at 843. This factor weighs strongly against transfer. 15 B. Convenience of the parties and witnesses. 16 Convenience of parties and witnesses are critical factors for a court considering a 17 motion to transfer, but a transfer which “merely shifts the inconvenience from one party 18 to another” is not appropriate. Warfield v. Gardner, 346 F. Supp. 2d 1033, 1044 (D. Ariz. 19 2004). 20 Plaintiff is an Arizona resident. Doc. 12 at 4. Defendant is incorporated in 21 Delaware and headquartered in Alabama. Doc. 11 at 2. Between the two parties, transfer 22 of venue from Arizona to Alabama would inconvenience Plaintiff, while increasing 23 convenience only for Defendant. 24 continues to do business in Arizona, including hiring new employees for its Arizona 25 office. Doc. 12 at 8, Ex. 5. Given this connection with Arizona, any inconvenience 26 caused by litigating in this Court would be less than that suffered by Plaintiff if the case 27 were transferred to the Northern District of Alabama. Further, Defendant had an office in Phoenix and 28 -3- 1 Defendant’s key witnesses all reside in Alabama. Doc. 11 at 5. Plaintiff claims, 2 however, that at least four of his witnesses are in Arizona. Doc. 12 at 4. The 3 inconvenience to witnesses, therefore, appears to be equal in both venues. Given that 4 Plaintiff would be disadvantaged more than Defendant by litigating outside of his forum 5 of choice, and that both sides have witnesses who would be inconvenienced by the other 6 party’s choice, this factor weighs against transfer. 7 C. Ease of access to sources of proof. 8 Personnel files, policies, performance evaluations, pay records and other work- 9 related documents are located in Alabama. Doc. 11 at 6. Plaintiff’s medical records, 10 related to his condition, are located in Arizona. Doc. 12 at 6. This factor weighs neither 11 for nor against transfer, particularly in light of the fact that “documentary evidence is 12 substantially less costly to produce than witness testimony.” 13 2922 PHX RCB, 2006 WL 335841 (D. Ariz. Feb. 10, 2006). Berry v. Potter, CIV 04- 14 D. 15 There is no forum selection clause. This factor is neutral. 16 E. 17 Plaintiff asserts claims under the ADA, a federal law. Either state is adequately 18 Existence of a forum selection clause. The state most familiar with the governing law. situated to rule on these claims. This factor is neutral. 19 F. Where relevant agreements were negotiated and executed. 20 Communications between Plaintiff and Defendant were all telephonic or 21 electronic, and could thus be said to have taken place in either Arizona or Alabama. 22 Hisun Motors Corp., U.S.A. v. Auto. Testing & Dev. Servs., Inc., CV11-1918-PHX DGC, 23 2011 WL 5290149 (D. Ariz. Nov. 1, 2011). All accommodation and personnel decisions, 24 however, occurred in Alabama because that is where Defendant’s headquarters and 25 management are located. Doc. 11 at 5. This factor weighs slightly in favor of transfer. 26 G. The parties’ contacts with the chosen forum. 27 Plaintiff is an Arizona resident. Defendant is registered to do business in Arizona 28 -4- 1 and, during the relevant time period, employed an Arizona resident in an Arizona office. 2 Doc. 12 at 7, ex. 3. Additionally, Defendant communicated extensively with Plaintiff in 3 Arizona regarding the subject at issue in the complaint, Doc. 12 at 8, and received 4 communications from the EEOC regarding the same at its Phoenix office, Doc. 12 at 8, 5 ex. 2, 4, 5. This factor weighs against transfer. 6 H. The availability of compulsory process. 7 Defendant asserts that Arizona is an inconvenient forum for relevant management 8 and other employees who live and work in Alabama. But any inconvenience to witnesses 9 still employed by the company carries little weight, as this court presumes Defendant can 10 compel their attendance at trial. Berry, No. CIV 04-2922 PHX RCB, 2006 WL 335841, at 11 *5. 12 Two non-party witnesses – both former employees of Defendant – are located 13 outside the subpoena power of this Court for trial purposes. See Doc. 11 at 4; FRCP 14 45(b)(2). One is Defendant’s former Director of Human Resources and the other is a 15 former Human Resources Manager. Doc. 11 at 4. Defendant alleges that both were 16 involved in communications with Plaintiff regarding his claims and are key to the issues 17 raised by Plaintiff. Id. This factor favors transfer, but only slightly. Although live 18 testimony is preferable, the Court’s lack of subpoena power may be solved through the 19 use of deposition or video testimony. Hisun, CV11-1918-PHX DGC, 2011 WL 5290149. 20 I. Relevant public policy of the forum state. 21 Arizona has a strong interest in ensuring that its citizens are compensated for their 22 injuries. Ochoa v. J.B. Martin & Sons Farms, Inc., 287 F.3d 1182, 1193 (9th Cir. 2002). 23 This factor weighs against transfer. 24 J. Differences in the costs of litigation in the two forums. 25 Given the recent advances in electronic communication and document production, 26 discovery costs should be about the same in either forum. See Television Events & Mktg., 27 Inc. v. Amcon Distrib. Co., 416 F. Supp. 2d 948, 971 (D. Haw. 2006). At this stage, the 28 -5- 1 Court cannot conclude that travel and transportation costs will be greater if the case is 2 tried in Alabama or Arizona. This factor is neutral. 3 K. 4 The Court concludes that this case should not be transferred. Plaintiff's choice of 5 forum should not be disturbed unless Defendant has made “a strong showing of 6 inconvenience.” Decker Coal, 805 F.2d at 843. Defendant has not met this burden. 7 8 9 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. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -6-

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