Naki v. Hawaii, State of, et al
ORDER GRANTING DEFENDANT'S MOTION TO CHANGE VENUE, DOC. NO. 20 re 20 . Signed by JUDGE J. MICHAEL SEABRIGHT on 10/25/13. "This action is TRANSFERRED to the United States District Court for the District of Arizona. The Clerk of Court is D IRECTED to close the file and send any pending motions or further documents received from Naki to the United States District Court for the District of Arizona." (gls, )CERTIFICATE OF SERVICEParticipants register ed to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry [Transferred from hid on 10/29/2013.]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PETER K. NAKI,
STATE OF HAWAII, HAWAII
DEPARTMENT OF PUBLIC
CORPORATION OF AMERICA,
a Maryland Corporation; and DOE
CIV. NO. 13-00292 JMS-RLP
DEFENDANTS’ MOTION TO
CHANGE VENUE, DOC. NO. 20
ORDER GRANTING DEFENDANTS’ MOTION TO CHANGE VENUE,
DOC. NO. 20
Plaintiff Peter K. Naki (“Naki”) is a Hawaii Department of Public
Safety (“DPS”) prisoner, and filed this action on December 27, 2012 in the Circuit
Court of the First Circuit, State of Hawaii, asserting violations of his Eighth
Amendment rights under 42 U.S.C. § 1983, Article 1 § 12 of the Hawaii
Constitution, and various state law claims based on injuries he sustained when he
fell from his assigned bunk while incarcerated at Saguaro Correctional Center
(“SCC”) located in Eloy, Arizona. Naki names as Defendants the State of Hawaii;
DPS; Corrections Corporation of America (“CCA”), which owns and operates
SCC under a correctional services agreement between DPS and CCA; and
unnamed DOE Defendants 1-100 (collectively “Defendants”). Naki presumably
filed this action in Hawaii because he is currently housed at the Halawa
Correctional Facility in Hawaii. On June 10, 2013, Defendants timely removed the
action to this court pursuant to 28 U.S.C. § 1441(c). Doc. No. 1.
Before the court is Defendants’ Motion to Change Venue pursuant to
28 U.S.C. § 1404(a). Doc. No. 20. For the following reasons, the court GRANTS
Defendants’ Motion to Change Venue and TRANSFERS this action to the United
States District Court for the District of Arizona.
The Complaint alleges that on December 30, 2010, Naki fell while
descending from the top level of his assigned bunk bed in his cell at SCC. Doc.
No. 1-1, Compl. at 4. Naki asserts that Defendants breached their duty to insure
his safety by failing to provide adequate safety measures, such as a ladder, and that
their negligence caused him severe and permanent injuries. Id. at 4-6. He seeks
general damages, special damages (including medical expenses, lost wages, and
lost earning capacity), punitive damages, and attorney’s fees.1 Id. at 8.
On December 27, 2012, Naki filed a Complaint in the Circuit Court of
the First Circuit. Defendants timely removed the action to this court on June 10,
2013, see Doc. No. 1, and filed a Motion to Transfer Venue to Arizona on
September 17, 2013 pursuant to 28 U.S.C. § 1404(a). Doc. No. 20. Naki filed an
Opposition on October 4, 2013, Doc. No. 22, and Defendants filed a Reply on
October 11, 2013. Doc. No. 23. The court elects to decide this matter without a
hearing pursuant to Local Rule 7.2(d) and Federal Rule of Civil Procedure 78(b).
III. LEGAL STANDARD
The removal statute, rather than the general venue statute, governs
venue in cases removed from state court. Polizzi v. Cowles Magazines, Inc., 345
U.S. 663, 665-66 (1953); Davis v. Abercrombie, 2011 WL 2118276, at *4 (D.
Haw. May 27, 2011). Venue of a properly removed action lies in the “district court
of the United States for the district and division embracing the place where such
Naki was transferred to Hawaii in November 2011. Doc. No. 22, Pl.’s Opp’n at 2. On
May 8, 2012, Naki was released on parole from Oahu Community Correctional Center
(“OCCC”). Naki was re-admitted to OCCC as a parole violator on September 12, 2012, and his
parole was revoked for the balance of the maximum sentence on November 15, 2012. Naki’s
scheduled release date is August 7, 2016. Doc. No. 23-2, April Luria Decl. ¶ 5.
action is pending.” 28 U.S.C. § 1441(a). And although venue in Hawaii is proper,2
this action may still be transferred to the District of Arizona pursuant to 28 U.S.C.
§ 1404(a). See 14C Charles Alan Wright et al., Federal Practice and Procedure §
3732 (4th ed. 2013) (“Even when venue is proper in the federal court, a removed
action may be transferred to another federal district court in accordance with
various federal transfer provisions, most notably Section 1404(a)[.]”).
Under § 1404(a), “the district court has discretion to adjudicate
motions for transfer according to an individualized, case-by-case consideration of
convenience and fairness.” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498
(9th Cir. 2000) (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988))
(quotation marks omitted). The purpose of transfer under § 1404(a) is “‘to prevent
the waste of time, energy, and money,’ and ‘to protect litigants, witnesses, and the
public against unnecessary inconvenience and expense.’” See Ah Sing v. Kimoto,
In their Reply, Defendants argue that venue is improper. In their initial Motion,
however, Defendants did not make this argument, and merely sought transfer pursuant to 28
U.S.C. § 1404(a). By failing to raise improper venue in their initial answer or motion,
Defendants have waived this argument. See Berry v. Deutsche Bank Trust Co. Am., 2007 WL
2363366, at *5 (D. Haw. Aug. 13, 2007) (stating that “a defendant must object to improper
venue by a Rule 12(b) motion prior to a responsive pleading or in the answer to the complaint or
the objection is waived”) (citing Basargin v. Corr. Corp. of Am. Inc., 2005 WL 2705002, at *2
(D. Alaska Oct. 17, 2005)). And in any event, the court does not address arguments raised for
the first time in reply. See, e.g., Hi-Tech Rockfall Const., Inc. v. Cnty. of Maui, 2009 WL
529096, at *18 n.9 (D. Haw. Feb. 26, 2009) (“Local Rule 7.4 provides that ‘[a]ny arguments
raised for the first time in the reply shall be disregarded.’”); Coos Cnty. v. Kempthorne, 531 F.3d
792, 812 n.16 (9th Cir. 2008) (declining to consider an argument raised for the first time in a
2012 WL 1366600, at *2 (D. Haw. Apr. 18, 2012) (quoting Kawamoto v. CB
Richard Ellis, Inc., 225 F. Supp. 2d 1209, 1213 (D. Haw. 2002)) (further citation
omitted). Thus, to transfer a case, Defendants must first show that the transferee
court is one in which the action could have been commenced originally. Second,
Defendants must show that transfer would result in greater convenience to the
parties and witnesses, as well as advance the interest of justice. 28 U.S.C.
§ 1404(a); see Ah Sing, 2012 WL 1366600, at *2.
Assuming that the first prong of the § 1404(a) analysis is met, the
court weighs several factors to determine whether to transfer a case pursuant to
§ 1404(a) under the second prong, including:
(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
Jones, 211 F.3d at 498-99. “Ultimately, the moving party has the burden of
showing that an alternative forum is the more appropriate forum for the action.”
Tamashiro v. Harvey, 487 F. Supp. 2d 1162, 1168 (D. Haw. 2006) (citation
Defendants contend that transfer to Arizona is proper because all the
events giving rise to Naki’s claims occurred in Arizona, and Arizona is a more
convenient forum. As an initial matter, this case could have been filed in the
District of Arizona because all the operative facts took place there. See 28 U.S.C.
§ 1391(b)(2); Schotz v. Koch, 2009 WL 1505676, at *2 (D. Haw. May 28, 2009)
(“Substantiality is measured by considering the nexus between the events and the
nature of the claims[.]”). The court therefore addresses each of the Jones factors
under the second prong of the § 1404(a) analysis, and concludes that the District of
Arizona is the more appropriate forum for this action.
The Location Where the Relevant Agreements Were Negotiated and
The parties agree that this factor is neutral. Indeed, because Naki does
not allege a breach of contract claim, the location of the contractual agreement
between CCA and the State of Hawaii to house and incarcerate Hawaii prisoners in
Arizona is irrelevant.3 This factor therefore does not weigh in the court’s analysis.
Even if Naki alleged a breach of contract claim and had standing to enforce it (which is
doubtful), venue inquiries in contract claims are determined by the “place of intended
performance rather than the place of repudiation.” Decker Coal Co. v. Commonwealth Edison
Co., 805 F.2d 834, 842 (9th Cir. 1986) (citations omitted). The place of intended performance of
the contract between CCA and the State of Hawaii is Arizona, not Hawaii.
The State That Is Most Familiar with the Governing Law
Arizona is most familiar with the governing law. Although both
districts are equally able to address Naki’s federal claims, see Ah Sing, 2012 WL
1366600, at *4, Naki also asserts state law claims to which Arizona law applies.
Because the injury, the conduct causing the injury, and the relationship between
Naki and the Defendants all took place in Arizona, Arizona law applies to these
claims. See Unity House, Inc. v. N. Pac. Inv., Inc., 918 F. Supp. 1384, 1392 (D.
Haw. 1996) (citing Restatement (Second) of Conflict of Laws § 145 (1971)); see
also Winsor v. Glasswerks PHX, L.L.C., 63 P.3d 1040, 1044 (Ariz. App. 2003)
(“Cases sounding in tort should be resolved under the law of the state having the
most significant relationship to both the occurrence and the parties with respect to
the particular issue.”) (citing Restatement (Second) of Conflict of Laws § 145(1)
(1971)). And although Naki also alleges a claim under Article 1 § 12 of the
Hawaii Constitution, he does not explain how the Hawaii Constitution governs the
conduct of personnel, as well as the overall operations, at an Arizona prison. Thus,
this factor weighs in favor of transfer.
Plaintiff’s Choice of Forum
In general, there is a strong presumption in favor of honoring a
plaintiff’s choice of forum, see Creative Tech., Ltd. v. Aztech Sys., 61 F.3d 696,
703 (9th Cir. 1995), especially where the plaintiff resides in that chosen forum.
See Tamashiro, 487 F. Supp. 2d at 1169. Although Naki was incarcerated in
Arizona when the alleged incident occurred, he is currently located in Hawaii, and
incarcerated at Halawa Correctional Facility.4 The significance of Naki’s choice is
diminished, however, because the operative facts underlying his claims
undoubtedly occured in Arizona. See Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir.
1987) (“If the operative facts have not occurred within the forum and the forum has
no interest in the parties or subject matter, [the plaintiff’s] choice is entitled to only
minimal consideration.”). Still, the court concludes that this factor favors keeping
the case in Hawaii.
The Respective Parties’ Contacts with the Forum
The fourth Jones factor -- the parties’ contacts with the forum --
favors transfer to Arizona. Although Naki was convicted in Hawaii, he was
incarcerated in Arizona when the events at issue took place. As to Defendants, the
court recognizes that both DPS and the State are located in this district. Naki’s
claims against these Defendants, however, fail -- the Eleventh Amendment bars
In their Motion to Transfer Venue, Defendants mistakenly asserted that Naki is
presently incarcerated in Arizona. In their Reply, Defendants recognized this error and argued
instead that Naki currently resides in Hawaii only because he violated his parole shortly before
filing the Complaint. See Doc. No. 23-2, Luria Decl. ¶ 5. Though this information explains why
Naki is currently incarcerated in Hawaii, it has no bearing on the court’s analysis of this factor.
suits for damages against the DPS and the State. Howlett v. Rose, 496 U.S. 356,
365 (1990); Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989). As a
result, that Naki has (improperly) named the DPS and the State as Defendants does
not suggest that this factor weighs in favor of this action remaining in Hawaii.
Further, although the CCA is located in Maryland with its principal place of
business in Tennessee, the events at issue and its employees involved are located in
Arizona. Finally, Naki names unnamed “Doe Defendants,” which presumably
include individuals located in Arizona given that all of the operable events alleged
in the Complaint occurred there.5 Indeed, Naki does not suggest otherwise. Given
these considerations, the court finds that this factor weighs in favor of transfer to
The Contacts Relating to Plaintiff’s Cause of Action in the Chosen
The events giving rise to Naki’s claims indisputably occurred at SCC
in Arizona, not Hawaii. He fell off his bunk bed at SCC in Arizona and complains
Because Federal Rule of Civil Procedure 10(a) requires the plaintiff to include the
names of the parties in the action, the use of Doe Defendants is generally disfavored in the
federal court. See Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980). If the names of
individual defendants are unknown at the time a complaint is filed, however, a plaintiff may refer
to the unknown defendants as Defendant John Doe 1, John Doe 2, John Doe 3, and so on, but
must allege facts to support how each particular Doe Defendant violated the plaintiff’s
constitutional rights. Although the Complaint does not include any particular facts regarding
Doe Defendants 1-100, the facts alleged all focus on events that occurred at SCC.
that unnamed SCC employees in Arizona consciously disregarded his rights and
In opposition, Naki asserts that Hawaii Defendants “acted or failed to
act in Hawaii” to ensure his reasonable safety. See Doc. No. 22, Pl.’s Opp’n at 6.
To the extent Naki can assert a claim against a Hawaii Defendant, he has failed to
allege any independent wrongdoing by any Defendant in Hawaii. Naki does not
claim that any Hawaii Defendant designed, manufactured, or supplied the bunk to
CCA, or was on notice that the bed was unsafe for Naki and failed to act. Indeed,
absent the alleged injury in Arizona, Naki has no claims against the Hawaii
Defendants. And although Naki also argues that this factor favors Hawaii because
he received the majority of his medical treatment in Hawaii, id. at 6, his aftercare
has no bearing on the question of Defendants’ liability for his injuries.
In sum, because there are no significant contacts between Naki’s
claims and Hawaii, other than the fact that Naki was convicted and sentenced
under Hawaii law, the court concludes that this factor weighs in favor of transfer.
The Differences in the Costs of Litigation in the Two Forums
Jones’ sixth factor, weighing the costs of litigation between the two
forums, also strongly favors transferring this action to the District of Arizona. It
would be far less burdensome and expensive for Naki to travel to Arizona than to
require potentially dozens of witnesses located in Arizona to travel to Hawaii. In
fact, Naki’s Initial Disclosure Statement identifies 27 potential witnesses, 25 of
whom are not located in Hawaii, and 23 of whom live in Arizona. Doc. No. 23,
Defs.’ Reply, Ex. 2.
And while large corporations, in general, can more easily travel for
litigation than individuals who are parties to the action, see Core-Vent Corp. v.
Nobel Indus. AB, 11 F.3d 1482, 1489 (9th Cir. 1993), the court recognizes that
CCA would incur substantial costs for transportation, lodging, and lost wages for
the numerous SCC and CCA officials Naki asserts have relevant information
bearing on his claims. See Ah Sing, 2012 WL 1366600, at *3. By contrast, the
Hawaii Defendants have consented to transfer and the attendant costs for traveling
to Arizona for trial. Doc. No. 23, Defs.’ Reply at 12-13.
In opposition, Naki’s attorneys assert that they are not admitted to
practice in Arizona and would likely withdraw as counsel if the case were
transferred. See Doc. No. 22-1, David Ahuna Decl. ¶ 4. This argument does not
sway the court -- Naki’s counsel may seek pro hac vice admission in Arizona, or
Naki may seek new representation or represent himself. See Dean v. Corr. Corp.
of Am., 2013 WL 361768, at *2-3 (D. Haw. Jan. 29, 2013) (“The mere fact that
counsel reside and practice in Hawaii does not compel a finding that the case
should remain here.”). And in any event, “courts have not considered the location
of the parties’ counsel as a factor for transfer.” Berry v. Deutsche Bank Trust Co.
Am., 2007 WL 2363366, at *8 (D. Haw. Aug. 13, 2007) (citing DeFazio v.
Hollister Emp. Share Ownership Trust, 406 F. Supp. 2d 1085, 1090 (E.D. Cal.
2005)). This factor weighs heavily in favor of transfer.
The Availability of Compulsory Process to Compel Attendance of
Unwilling Non-Party Witnesses
Analysis of the seventh factor also favors transfer to Arizona. The
court lacks subpoena power over a person who is neither a party nor a party’s
officer to travel more than 100 miles to attend trial. See Fed. R. Civ. P.
45(c)(3)(B)(iii); see also Ah Sing, 2012 WL 1366600, at *3. Although Defendants
can compel their own employees to testify, see Tamashiro, 487 F. Supp. 2d at
1171, the CCA claims this may impose a significant burden on prison operations
where Naki calls much of the SCC medical staff as witnesses. Further, the Arizona
non-party witness may include inmates and medical professionals who may have
knowledge of Naki’s claim and are unwilling to travel to Hawaii. See Davis, 2011
WL 2118276, at *8. If this case goes to trial in Hawaii, many witnesses may be
unavailable and the parties may have to incur significant expense to preserve
witness testimony. See Paoa v. Marati, 2007 WL 4191997, at *3 (D. Haw. Nov.
27, 2007). Because the majority of witnesses are outside the subpoena power of
the court and attending trial in Arizona would be far more convenient than
traveling to Hawaii, this factor favors transfer.
The Ease of Access to Sources of Proof
Defendants argue that all the evidence supporting Naki’s claims,
including “Plaintiff’s SCC institutional records, SCC operational records and
Plaintiff’s medical records are located at SCC in Arizona -- not in Hawaii.” Doc.
No. 20, Defs.’ Mot. at 7-8. Naki, on the other hand, contends that his institutional
file and medical records are located in Hawaii. Doc. No. 22, Pl.’s Opp’n at 8.
Either way, most, if not all, documents can be easily produced and at a reasonable
cost. See Davis, 2011 WL 2118276, at *9. Thus, the court concludes that this
factor bears little consideration.
Weighing of the Factors
In sum, the evidence before the court strongly favors the District of
Arizona over Hawaii given that the injury incurred in Arizona, the majority of
witnesses are located in Arizona, and any connection to Hawaii is attenuated at
best.6 The only factor that arguably weighs in Naki’s favor is his choice of forum.
Naki asks this court to consider statistics showing that there is less congestion in the
District of Hawaii than in the District of Arizona, and therefore that it takes less time to go to
trial in Hawaii. See Doc. No. 22, Pl.’s Opp’n at 8-9; see also Davis, 2011 WL 2118276, at *10
(citing Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1337 (9th Cir. 1984) (noting that a court
should consider “whether a trial may be speedier in another court because of its less crowded
Balancing these factors, the court finds that Defendants have made “a strong
showing of inconvenience to warrant upsetting the plaintiff’s choice of forum.”
E.E.O.C. v. Lockheed Martin, 2007 WL 2746800, at *6 (D. Haw. Sept. 19, 2007)
(citing Resnick v. Rowe, 283 F. Supp. 2d 1128, 1144 (D. Haw. 2003)). The court
therefore GRANTS Defendants’ Motion to Change Venue.
Based on the above, the court GRANTS Defendants’ Motion to
Change Venue. This action is TRANSFERRED to the United States District Court
for the District of Arizona. The Clerk of Court is DIRECTED to close the file and
docket”)). Although relative docket conditions are accorded some weight in transfer motions,
Foster v. Litton Indus., Inc., 431 F. Supp. 86, 88 (S.D.N.Y. 1977); MacMunn Eli Lilly Co., 559
F. Supp. 2d 58, 63 (D.D.C. 2008), the statistics do not suggest that Arizona is unable to handle
this action and in any event does not outweigh the bulk of the Jones factors weighing in favor of
send any pending motions or further documents received from Naki to the United
States District Court for the District of Arizona.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 25, 2013.
/s/ J. Michael Seabright
J. Michael Seabright
United States District Judge
Peter K. Naki v. State of Hawaii et al., Civ. No. 13-00292 JMS-RLP, Order Granting
Defendants’ Motion to Change Venue, Doc. No. 20
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