Dionicio Uribe Herrera et al v. Jesus Ramirez Sotelo et al

Filing 16

MINUTES OF Motion Hearing held before Judge Christina A. Snyder: The Court hereby GRANTS Defendants' Motion to Transfer this action to the District of Arizona 13 . Case electronically transferred. ( MD JS-6. Case Terminated. ) Court Reporter: Laura Elias. (Attachments: # 1 CV-22 Transmittal Letter) (gk)

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL

JS-6

Case No.

2:14-cv-01133-CAS(FFMx)

Title

DIONICIO URIBE HERRERA, ET AL. V. JESUS RAMIREZ SOTELO,
ET AL.

Present: The Honorable

Date

‘O’

CHRISTINA A. SNYDER

Catherine Jeang
Deputy Clerk
Attorneys Present for Plaintiff:

Laura Elias
Court Reporter / Recorder

I.

N/A
Tape No.

Attorneys Present for Defendants:

Anthony Lopez, Jr.
Proceedings:

July 7, 2014

Leslie Keidel

DEFENDANTS’ MOTION TO TRANSFER VENUE (Dkt. #13,
filed May 29, 2014)

INTRODUCTION AND BACKGROUND

On November 7, 2013, plaintiffs Dionicio Uribe Herrera and Moises Uribe Herrera
filed this personal injury lawsuit against defendants Jesus Ramirez Sotelo and JAS
Transport (“JAS”), alleging a claim of general negligence, arising out of a collision
between a tractor-trailor and an automobile on February 3, 2012 in Marana, Arizona.
Not. Removal ¶ 1; Opp’n Ex. C at 1.
Defendant removed this action to this Court on December 12, 2013, on the grounds
that this Court has jurisdiction based on diversity of citizenship, 28 U.S.C. § 1332. Not.
Removal ¶¶ 7-9. On May 29, 2014, defendants moved to transfer this action to the
District of Arizona pursuant to 28 U.S.C. § 1406(a), or alternatively pursuant to 28
U.S.C. § 1404(a). Dkt. #13. On June 12, 2014, plaintiffs filed their opposition. Dkt.
#14. Defendants replied on June 20, 2014. Dkt. #15. The Court held a hearing on July
7, 2014. After considering the parties’ arguments, the Court finds and concludes as
follows.
II.

LEGAL STANDARD

There are two statutes that govern a motion to dismiss or transfer a case on the
basis of venue: “(1) where venue is improper, a court must dismiss or transfer under 28
U.S.C. § 1406; (2) where venue is proper, the court may transfer to another district, for
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

JS-6

Case No.

2:14-cv-01133-CAS(FFMx)

July 7, 2014

Title

DIONICIO URIBE HERRERA, ET AL. V. JESUS RAMIREZ SOTELO,
ET AL.

convenience, pursuant to 28 U.S.C. § 1404.” Abrams Shell v. Shell Oil Co., 165 F. Supp.
2d 1096 (C.D. Cal. 2001).
A.

28 U.S.C. § 1406

In determining if the plaintiff’s preferred venue is improper for the purposes of 28
U.S.C. § 1406, the court looks to 28 U.S.C. § 1391(b), which provides that venue is
proper in
(1) a judicial district where any defendant resides, if all defendants are residents
of the State in which the district is located; (2) a judicial district in which a
substantial part of the events or omissions giving rise of the claim occurred; or
(3) a judicial district in which any defendant may be found, if there is no district
in which the action may otherwise be brought.
28 U.S.C. § 1391(b). Once a defendant has raised a timely objection to venue, the
plaintiff has the burden of showing that venue is proper. Bohara v. Backus Hosp. Med.
Benefit Plan, 390 F. Supp. 2d 957, 960 (C.D. Cal. 2005); see Piedmont Label Co. v. Sun
Garden Packing Co., 598 F.2d 491, 496 (9th Cir.1979).
B.

28 U.S.C. § 1404

Alternatively, if venue is found to be proper in this district, the Court may
nonetheless find that transfer is appropriate based on consideration of the following
factors: (1) the convenience of the parties; (2) the convenience of the witnesses; and (3)
the interests of justice. 28 U.S.C. § 1404(a); see also Los Angeles Mem’l Coliseum
Comm’n v. NFL, 89 F.R.D. 497, 499 (C.D. Cal. 1981).
In analyzing the “interests of justice,” a number of factors are relevant, including
the following: (1) the location where relevant agreements (if any) 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
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

JS-6

Case No.

2:14-cv-01133-CAS(FFMx)

July 7, 2014

Title

DIONICIO URIBE HERRERA, ET AL. V. JESUS RAMIREZ SOTELO,
ET AL.

proof. Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29-30 (1988); Jones v. GNC
Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). Other factors that can be
considered are: the enforceability of the judgment; the relative court congestion in the
two forums; and which forum would better serve judicial economy. 17 Moore’s Federal
Practice § 111.13[1] [c] (3d ed. 1997).
However, “[s]ubstantial weight is accorded to the plaintiff’s choice of forum, and a
court should not order a transfer unless the ‘convenience’ and ‘justice’ factors set forth
above weigh heavily in favor of venue elsewhere.” Catch Curve, Inc. v. Venali, Inc.,
2006 WL 4568799, at *1 (C.D. Cal. 2006). The party seeking to transfer venue bears the
burden of showing that convenience and justice require transfer. Commodity Futures
Trading Comm'n v. Savage, 611 F.2d 270, 278–79 (9th Cir. 1979); Decker Coal Co. v.
Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (“The defendant must
make a strong showing of inconvenience to warrant upsetting the plaintiff's choice of
forum.”). The decision to transfer lies within the sound discretion of the trial judge. See
Sparling v. Hoffman Constr. Co., 864 F.2d 635, 639 (9th Cir. 1988).
III.

ANALYSIS
A.

Motion to Transfer Pursuant to 28 U.S.C. § 1406

Plaintiffs’ complaint alleges that venue is proper in the Central District of
California because defendant Sotelo resides within this district, and defendant JAS is
subject to personal jurisdiction within this district. Not. Removal Ex. A at 3, ¶ 8(a).
Conversely, defendants contend that venue is improper in this district because defendant
Sotelo is domiciled in the State of Arizona and the accident at issue occurred there. Id.,
Ex. D ¶ 14. As set forth below, the Court concludes that venue is improper in this
district. Thus, this action should be dismissed or transferred to the District of Arizona.
1.

Venue Under 28 U.S.C. § 1391(b)(1)

Venue is proper under 28 U.S.C. § 1391(b)(1) if all of the defendants reside in
California and at least one of the defendants is deemed to reside in the Central District of
California. Accordingly, in order to establish that venue is proper under this subpart of
the general venue statute, plaintiffs must show that both defendant Sotelo and defendant
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

JS-6

Case No.

2:14-cv-01133-CAS(FFMx)

July 7, 2014

Title

DIONICIO URIBE HERRERA, ET AL. V. JESUS RAMIREZ SOTELO,
ET AL.

JAS Transport reside in California. Bohara, 390 F. Supp. 2d at 960. For residential
venue purposes, defendant Sotelo resides in the judicial district in which he is domiciled.
28 U.S.C. § 1391(c)(1).
Plaintiffs assert that defendant Sotelo is domiciled in Duarte, California, as
evidenced by the investigation of their process server, and the alleged personal service
upon him in Duarte, California. Opp’n, Diaz Decl. ¶¶ 3-6. Plaintiffs contend that: (1) a
United States Postal Service (“USPS”) form states that mail is “deliverable as addressed”
to Sotelo at the Duarte, California address; and (2) a “skip trace” search for defendant’s
name shows that Sotelo is domiciled in California. See Opp’n, Ex. A at 1, 3.1 Further,
plaintiffs contend that Sotelo resides at the Duarte, California address because he
allegedly identified himself as Mr. Sotelo when he was personally served there. Diaz
Decl. ¶¶ 5-6.
In response, defendant Sotelo provides evidence that he is domiciled in Arizona,
not California, including: (1) a declaration that states his mother resides at the Duarte,
California address, whereas he has resided at 4157 W. Columbine Drive in Phoenix,
Arizona for over nine years, (2) his driver’s license listing the Arizona address, (3) and
the Arizona Crash Report listing said address. Reply, Ex. A ¶¶ 2, 7; see Opp’n, Ex. C at
1. Additionally, Sotelo contends that he files his state taxes only in the State of Arizona
and owns no real property in the State of California. Id. ¶¶ 5-6.
Based on this evidence, plaintiffs have not met their burden showing that Sotelo is
domiciled in California. At most, plaintiffs’ evidence shows that Sotelo has at times,
been physically present in the Central District of California. However, Sotelo’s mere
physical presence alone does not satisfy venue requirements. Gaudin v. Remis, 379 F.3d
631, 636-37 (9th Cir. 2004) (stating that a person must have the intent to remain
indefinitely at a residence in order to be domiciled there). Moreover, Sotelo provides
persuasive evidence as set forth above, that he has been domiciled in Arizona for the past
nine years and intends to remain there indefinitely. Id. Therefore, plaintiffs fail to meet
their burden of proof showing that defendant Sotelo is domiciled in California. Bohara,
390 F. Supp. 2d at 960. Since the Court concludes that Sotelo is domiciled in Arizona,

1

Plaintiffs do not define or explain the term “skip trace.”

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

JS-6

Case No.

2:14-cv-01133-CAS(FFMx)

July 7, 2014

Title

DIONICIO URIBE HERRERA, ET AL. V. JESUS RAMIREZ SOTELO,
ET AL.

venue is improper under 28 U.S.C. 1391(b)(1) because at least one defendant, namely,
Sotelo, resides in a different state than the state in which this district is located.2
2.

Venue Under 28 U.S.C. § 1391(b)(2)

Venue is proper in this district under this subpart of the general venue statute if “a
substantial part of the events or omissions giving rise to the claim occurred” here. It is
plain that the February 3, 2012 tractor-trailor versus automobile collision occurred in
Marana, Arizona, in the District of Arizona. Opp’n, Ex. C at 1. Accordingly, 28 §
1391(b)(2) does not justify venue in this district.3
3.

Dismissal or Transfer Pursuant to 28 U.S.C. § 1406(a)

As set forth above, the Court concludes that venue is improper in this district.
Thus, under § 1406(a), where a district court determines an action has been brought in
“the wrong division or district,” the Court may either dismiss the case, or “if it be in the
interest of justice,” transfer the case. See Johnson v. Payless Drug Stores Northwest,
Inc., 950 F.2d 586, 588 (9th Cir. 1991) (per curiam). For the sake of avoiding the
unnecessary delay and expenses involved in re-filing this action and re-serving
defendants, as well as the risk that a re-filed action would be time-barred, the Court finds
that the interests of justice weigh in favor of transferring the case in lieu of dismissal.4
Section 1406(a) “instructs a court to transfer a case from the ‘wrong’ district to a
district ‘in which it could have been brought under § 1391.’” Atl. Marine Const. Co., Inc.
v. U.S. Dist. Court for W. Dist. of Texas, 134 S. Ct. 568, 578 (2013) (quoting Van Dusen
2

Accordingly, it is unnecessary to consider whether JAS is domiciled in California
because venue is improper in this district under 28 U.S.C. § 1391(b)(1) when at least one
defendant resides in a state other than California.
3

The parties provide no evidence or argument to suggest that a substantial part of
the events giving rise to this action occurred in this district and would justify venue here
under 28 U.S.C. § 1391(b)(3).
4

The Court also notes that defendants only seek transfer, and not dismissal.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

JS-6

Case No.

2:14-cv-01133-CAS(FFMx)

July 7, 2014

Title

DIONICIO URIBE HERRERA, ET AL. V. JESUS RAMIREZ SOTELO,
ET AL.

v. Barrack, 376 U.S. 612, 621, n.11 (1964)). The allegations in plaintiffs’ complaint
persuade this Court that this case should be transferred to the District of Arizona where
venue would be proper pursuant to § 1391(b)(2) because the accident at issue occurred
there. Accordingly, the Court finds that transfer to the District of Arizona is appropriate
under § 1406(a).
B.

Dismissal or Transfer Pursuant to 28 U.S.C. § 1404(a).

Alternatively, if venue is proper in this district, defendants argue that this case
should be transferred to the District of Arizona pursuant to 28 U.S.C. § 1404 for the
convenience of the parties and witnesses and in the interest of justice. Mot. at 5-6.
Defendants contend that this matter should be transferred to the District of Arizona
because both defendants, all of the witnesses, the accident at issue, and all of the relevant
documents and records are located or occurred in Arizona. Id. at 6-7. Further,
defendants argue that if this action is litigated here, this Court would be unable to
subpoena witnesses or reporting police officers who reside further than 100 miles away in
Arizona pursuant to Fed. R. Civ. P 45(c)(1)(A). Id. at 7. In response, plaintiffs contend
that this action should remain in this district because it is “much closer for Plaintiffs, who
reside in central California” and “their medical providers[,] who are primarily in
California.” Opp’n at 2.
As discussed above, venue is not proper in this district. Alternatively, even if
venue were proper in this district, the Court nonetheless concludes that this action should
be transferred to the District of Arizona pursuant to § 1404. First, venue is proper in the
District of Arizona. Furthermore, defendants assert, and plaintiffs do not refute, that with
the exception of plaintiffs, all of the witnesses and relevant evidence concerning the
accident at issue are located in Arizona. Mot. at 6-7; see Reply, Ex. A ¶¶ 2, 7; see also
Opp’n, Ex. C at 1. Transferring this case to a district court in Arizona also promotes the
interests of justice because this Court is unable to compel reporting police officers or
witnesses outside the 100-mile limit from appearing for trial testimony with relevant
evidence. Fed. R. Civ. P 45(c)(1)(A). Since these police officers or witnesses likely
reside or are employed in Arizona, they are within the subpoena power of the District of
Arizona. See Fed. R. Civ. P 45(c)(1)(B). Finally, although the District of Arizona might
be further from both plaintiffs and some of their medical providers than this district,
defendants have met their burden of showing that convenience and justice factors weigh
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES - GENERAL
Date

‘O’

JS-6

Case No.

2:14-cv-01133-CAS(FFMx)

July 7, 2014

Title

DIONICIO URIBE HERRERA, ET AL. V. JESUS RAMIREZ SOTELO,
ET AL.

heavily in favor of venue in the District of Arizona. Accordingly, the Court finds that
transfer to the District of Arizona is also appropriate under § 1404(a).
IV.

CONCLUSION

In accordance with the foregoing, the Court hereby GRANTS defendants’ motion
to transfer this action to the District of Arizona.
IT IS SO ORDERED.
00
Initials of Preparer

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CMJ

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