Grant v. Kamehameha Schools/Bernice Pauahi Bishop Estate et al

Filing 90

OPPOSITION by Eric Grant to 77 Motion to Transfer. (Attachments: # 1 Appendix of Non-Standard Authorities, # 2 Declaration of Eric Grant, # 3 Declaration of James J. Banks)(Grant, Eric)

1 Eric Grant (Bar No. 151064) Attorney at Law 2 8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 3 Telephone: [phone] Facsimile: [phone] 4 E-Mail: [e-mail] 5 James J. Banks (Bar No. 119525) Banks & Watson 6 Hall of Justice Building 813 6th Street, Suite 400 7 Sacramento, California 95814 Telephone: [phone] Facsimile: [phone] E-Mail: [e-mail] 9 Counsel for Plaintiff and 10 Counter-Defendant ERIC GRANT

ERIC GRANT, ATTORNEY AT LAW

11 12 13 14 ERIC GRANT, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA No. 2:08-cv-00672-FCD-KJM
APPENDIX OF NON-STANDARD AUTHORITIES IN SUPPORT OF PLAINTIFF AND COUNTER-DEFENDANT ERIC GRANT'S OPPOSITION TO KSBE DEFENDANTS' MOTION TO TRANSFER TO DISTRICT OF HAWAII PURSUANT TO 28 U.S.C. § 1404 [L.R. 5-133(i)]

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

) ) 15 Plaintiff, ) ) 16 v. ) ) 17 KAMEHAMEHA SCHOOLS/BERNICE ) PAUAHI BISHOP ESTATE; J. DOUGLAS ) 18 ING, NAINOA THOMPSON, DIANE J. ) PLOTTS, ROBERT K.U. KIHUNE, and ) 19 CORBETT A.K KALAMA, in their ) capacities as Trustees of the Kamehameha ) 20 Schools/Bernice Pauahi Bishop Estate; ) JOHN DOE; and JANE DOE, ) 21 ) Defendants. ) 22 ) ) 23 JOHN DOE and JANE DOE, ) ) 24 Counter-Claimants, ) ) 25 v. ) ) 26 KAMEHAMEHA SCHOOLS/BERNICE ) PAUAHI BISHOP ESTATE, et al., ) 27 ) Counter-Defendants. ) 28 )

Hearing Date: Time: Courtroom: Judge:

Oct. 31, 2008 10:00 a.m. 2 Hon. Frank C. Damrell, Jr.

Appendix of Non-Standard Authorities in Support of Plaintiff Grant's Opposition to KSBE's Motion to Transfer

1 2 1.

TABLE OF CONTENTS

United States v. Approximately $15,630.00 in U.S. Currency, No. CIV. 07-0452

3 FCD KJM (E.D. Cal. June 25, 2007). 4 2. Young v. Coastal Island Charters, No. CIV. S-05-1639 FCD GGH (E.D. Cal.

5 Dec. 12, 2005). 6 7 8 9 10 Dated: October 17, 2008. Respectfully submitted, /s/ Eric Grant ERIC GRANT Counsel for Plaintiff and Counter-Defendant ERIC GRANT

ERIC GRANT, ATTORNEY AT LAW

11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1 Appendix of Non-Standard Authorities in Support of Plaintiff Grant's Opposition to KSBE's Motion to Transfer

8001 Folsom Boulevard, Suite 100 Sacramento, California 95826 Telephone: [phone]

Exhibit 1

1 2 3 4 5 6 7 8 9 10 11 UNITED STATES OF AMERICA, 12 13
v. U.S. CURRENCY, APPROXIMATELY APPROXIMATELY $12,639.97 IN $60,517.00 IN U.S. CURRENCY, U.S. CURRENCY, APPROXIMATELY APPROXIMATELY $1,820.50 IN MISCELLANEOUS SMOKELESS Defendants. ----oo0oo---This matter is before the court on claimants1 Jawid Wahidi Plaintiff, UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ----oo0oo---NO. CIV. 07-0452 FCD KJM MEMORANDUM AND ORDER

14 APPROXIMATELY $15,630.00 IN 15 $8,000.00 IN U.S. CURRENCY, 16 MONEY ORDERS, APPROXIMATELY 17 APPROXIMATELY $14,271.00 IN 19 MONEY ORDERS, AND 20 TOBACCO PRODUCTS, 21 22 23 25 26 27 28

18 $90,000.00 IN U.S. CURRENCY,

24 ("Jawid"), LMS International, Inc. ("LMS"), Sadiq Wahidi

Defendants in this case are the currency and miscellaneous smokeless tobacco products seized by the government at claimants' residences. (Compl., filed Mar. 7, 2007, ¶ 4.) By this action, the government seeks forfeiture of the currency on the ground it is the proceeds of, or traceable to, mail fraud; it seeks forfeiture of the tobacco products as contraband not legally possessed by anyone. (Opp'n, filed May 24, 2007, at 1.)

1

1 ("Sadiq"), and LA International, Inc.'s ("LA Int'l") motion to 2 transfer venue pursuant to 28 U.S.C. § 1404(a).
Claimants do not

3 challenge the propriety of venue in the Eastern District of 4 California, but argue that the Central District of California is 5 the more appropriate forum.2 7 9 10
Plaintiff United States of America

6 (the "government") opposes the motion.
For the reasons set forth below, claimants' motion is

8 DENIED.3
BACKGROUND Claimant Jawid owns LMS, a wholesale store located at 101 (Notice of Mot. and Claimant

11 East 3rd Street in Los Angeles, California.

12 Mot. to Dismiss, filed Apr. 29, 2007 ["Mot'n"], at 3.) 14 340 East 3rd Street in Los Angeles, California. 15

13 Sadiq was the president of LA Int'l, a wholesale store located at
(Mot'n at 3-4) The complaint alleges that claimants are involved in an

16 extensive illegal network of trafficking "other tobacco products" 17 ("OTP"), i.e. chewing tobacco, from Arizona to California. 18 (Frederick Aff., filed Mar. 3, 2007, at ¶ 6.)
Akrum Alrahib

19 ("Alrahib") owns Sunrise Tobacco, Save a Buck Distribution, and 20 Da Bomb Products, which are all located at 7600 North 71st Avenue 21 in Glendale, Arizona.
(Id. at ¶ 9.) Alrahib orders large

22 quantities of OTP from manufacturers and national suppliers that 23 he then distributes throughout California. 24 25 26 27 28
Claimants originally contested venue in the Eastern District but then conceded venue is proper in their reply to plaintiff's opposition. (Reply, filed June 4, 2007, at 3.) Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h). 2
3 2

(Id. at ¶ 23.)

Ali

1 Tavaf Langroudi ("Tavaf")--the owner of Smart Buy Wholesale 2 located at 213 East 3rd Street in Los Angeles, California-3 receives much of Alrahib's OTP. 5 and LA Int'l.
(Id.) (Id. at ¶ 25.) Tavaf then

4 distributes the OTP to numerous companies including claimants LMS
The government alleges this entire

6 distribution process circumvents California's and Arizona's 7 excise tax on OTP, resulting in a nearly fifty percent profit for 8 the participants, and conversely, a substantial loss to the 9 government. 10
California law requires sellers and purchasers of OTP to

11 submit monthly tax returns to the California Board of 12 Equalization ("BOE") and pay excise taxes on the sales.
The

13 government contends that claimants significantly under-reported 14 its OTP purchases and thus underpaid the corresponding excise 15 taxes due.
(Frederick decl., filed May 24, 2007, at ¶ 3.) From

16 January 2004 through October 2006, claimants LA Int'l and LMS 17 filed fifty tobacco returns to the BOE in Sacramento. 18 3-4.) 19
Defendants in this case are property seized at LMS, LA (Opp'n at

20 Int'l, Jawid's residence, and Sadiq's residence during a 21 comprehensive federal investigatory raid on October 17, 2006.4 22 United States Magistrate Judge Jennifer T. Lum of the Central 23 District of California signed the search warrant authorizing the 24 search of claimants' premises and the seizure of the subject 25 property. 27 28
4

(Mot'n at 7.)

All of the defendant property was (Id. at 3.) In addition to the

26 seized in the Central District.

See supra note 1. 3

1 defendant property, other property was seized including numerous 2 financial and business records of claimants.
(Opp'n at 4-5.)

3 These records were later transferred to the Bureau of Alcohol, 4 Tobacco, Firearms, and Explosives ("ATF") for the Eastern 5 District of California for analysis for use in this action as 6 well as for possible use in a related criminal mail fraud 7 investigation. 8
(Frederick decl. at ¶¶ 5-10.) Claimants contend venue should be transferred to the Central

9 District because the search and seizure occurred in the Central 10 District and claimants reside there.
Claimants assert they will

11 be substantially burdened by litigating this case in the Eastern 12 District and that any burden to the government is outweighed by 13 the harm to them. 14
The government asserts to the contrary that venue should

15 remain in the Eastern District because its choice of forum must 16 be given substantial weight; claimants mailed their tax returns 17 to the BOE in Sacramento; the numerous documents seized at LMS, 18 LA Int'l, Jawid's residence, and Sadiq's residence are being held 19 by the ATF in Sacramento; the government's witnesses are based in 20 the Eastern District and would be severely burdened by a transfer 21 to the Central District. 22 23
STANDARD Under 28 U.S.C. § 1404(a), a district court may "for the

24 convenience of parties and witnesses, in the interest of justice 25 . . . transfer any civil action to any other district where it 26 might have been brought."
28 U.S.C. § 1404(a). A court has

27 broad discretion in deciding whether or not to transfer venue 28 pursuant to 28 U.S.C. § 1404(a).
4 E. & J. Gallo Winery v. F. & P.

1 S.p.A., 899 F. Supp. 465, 466 (E.D. Cal. 1994).

A defendant

2 moving to transfer venue under Section 1404(a) must satisfy both 3 of the following requirements: (1) the transferee district is one 4 in which the action might have been brought originally; and (2) 5 transfer will enhance the convenience of the parties and 6 witnesses, and is in the interests of justice. 7 Barrack, 376 U.S. 612, 616 (1964). 9 10 11 8 requirement, the court evaluates the following:
(1) the plaintiff's choice of forum, (2) the convenience of the parties, (3) the convenience of the witnesses, and (4) the interest of justice. See Van Dusen v. In considering the second

12 L.A. Memorial Coliseum Comm'n v. Nat'l Football League, 89 F.R.D. 13 497, 499 (C.D. Cal. 1981). 14 15
ANALYSIS Venue is proper in the Central Disctrit of California 28

16 because a substantial part of the events took place there. 17 U.S.C. § 1391(b)(2). 18 whether transfer to the Central District will enhance the

Thus, the only question before the court is

19 "convenience of parties and witnesses" and will promote "the 20 interests of justice." 21
28 U.S.C. § 1404(a). The moving party has the burden of establishing that an Commodity Futures Trading Comm'n Unless the balance

22 action should be transferred.

23 v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). 25 forum should rarely be disturbed. 26 U.S. 501, 508 (1947). 27

24 is strongly in favor of the defendant, the plaintiff's choice of
Gulf Oil Corp. v. Gilbert, 330

Here, claimants have not satisfied their burden.

The

28 government did not arbitrarily choose to litigate this case in
5

1 the Eastern District of California. 3 9-10.)

All of the law enforcement (Opp'n at

2 officers working on this case are based in Sacramento. 4 Sacramento.
(Id. at 10.)

The seized records are located and being analyzed in Also, the government's attorneys, who

5 are based in the Eastern District, represent that they would 6 continue to litigate this case even if it was transferred to the 7 Central District because they have been involved in the case from 8 the outset of the investigation and are litigating other related 9 cases.
(Id. at 11.) Under these circumstances, the court finds

10 that transferring this action to the Central District of 11 California would cause a significant burden to the government. 12
Moreover, while it is true that all of the property was

13 seized in the Central District and brought here by the government 14 for its own reasons, it is not true, as claimants contend, that 15 claimants have no connection to the Eastern District. 16 3.) 18 17 the BOE office in Sacramento.
(Opp'n at 10.) (Mot'n at Claimants allegedly filed fifty fraudulent tax returns to

Additionally, eleven other cases which have been spawned by

19 this federal investigation involving the OTP trafficking scheme 20 are pending in the Eastern District. 22 undersigned.
These cases, while not

21 consolidated, have been ruled related and are pending before the
(Related Case Order, filed May 3, 2007.) The

23 government asserts that the documents presently held in 24 Sacramento for this case may be necessary for the related 25 matters.5 26 27 28
In addition, the government represents that an indictment in the ongoing criminal investigation involving claimants and the (continued...) 6
5

(Frederick decl. at ¶ 7, 10.)

These circumstances

1 further persuade the court that venue should not be transferred. 2 3
Despite these facts, claimants contend that the convenience The

4 of the parties warrants transfer to the Central District.

5 court acknowledges that Jawid works in Los Angeles and perhaps 6 may be unable to operate his store during trial in the Eastern 7 District; however, the court finds no authority supporting 8 transfer on this basis alone. 10 distinguishable. 11 states.
Indeed, the cases claimants cite

9 in support of transfer based on Jawid's business disruption are
Those cases dealt with transfer between distant See United States v. Russell, 582 F. Supp. 660 (S.D.N.Y.

12 1984) (transfer from New York to Tennessee); United States v. 13 Olen, 183 F. Supp. 212 (S.D.N.Y. 1960) (transfer from New York to 14 Alabama); United States v. Cashen, 281 F.2d 669 (2d Cir. 1960) 15 (transfer from New York to Alabama). 17 difficulties.
Trial in Sacramento, as

16 opposed to Los Angeles, should not present Jawid with similar
As to Sadiq, his burden is minimal. He is retired

18 from work and his wife's generalized "poor health" is not 19 sufficient to warrant transfer. 20
(Mot'n at 9.) As to the convenience of the witnesses, this factor is often

21 regarded as the most important in determining whether transfer of 22 venue is proper.
United States v. One Oil Painting, 362 F. Supp. A clear balance of

23 2d 1175, 1185 (C.D. Cal. 2005).

24 inconvenience, however, must be shown; a court will not transfer 25 venue to shift the inconvenience of one party and witnesses to 26 27 28
(...continued) related cases is likely and would be litigated in the Eastern District. (Frederick decl. at ¶¶ 7, 10.) 7
5

1 the other. 3 (2006). 4

See Van Dusen v. Barrack, 376 U.S. 612, 645-46

2 (1964); Schwarzer, et al., Cal. Practice Guide, 4:786 at 91
Claimants argue that their witnesses will be burdened if the The government contends

5 trial is held in the Eastern District.

6 that claimants' witnesses will be largely irrelevant because it 7 will base its case primarily on the business records held in 8 Sacramento. (Opp'n at 9.)
Additionally, the government asserts

9 that some of claimants' proposed witnesses would likely not 10 testify as they too are subjects of the same criminal 11 investigation.
(Id.) On the other hand, the government's These

12 witnesses are Sacramento-based government employees. 14 they do not live and work. 16 do not reside and work.

13 witnesses also would be burdened by litigation in a forum where
Thus, it appears that both sides'

15 witnesses may be burdened by litigation in a forum in which they
When the inconvenience of the

17 alternative venues is comparable "the tie is awarded to the 18 plaintiff" and there is no basis for a change of venue. 20
In Re

19 National Presto Indus., Inc., 347 F.3d 662, 665 (7th Cir. 2003).
However, claimants nevertheless contend that inconvenience

21 to government witnesses is not significant, but they cite no 22 authority for their argument.
(Mot'n at 15.) In fact, there is

23 authority supporting the contrary position. 25 same deference as a private party.

Courts have held

24 that a government agency's choice of forum is entitled to the
Id. at 665 ("When government

26 lawyers and investigators incur time and travel costs to litigate 27 in a remote forum, the burden falls on the taxpayer, who finances 28 the federal government and who is not less worthy of the
8

1 protections of the law than corporate officers, shareholders, and 2 employees."); see Schwarzer, et al., Cal. Practice Guide, 4:760 3 at 88 (2003).
In National Presto, the Securities and Exchange

4 Commission ("SEC") sued National Presto Industries ("Presto") in 5 the Northern District of Illinois. 6 663.
National Presto, 347 F.3d at Presto moved to transfer the case to the Western District

7 of Wisconsin, arguing that multiple factors supported a transfer 8 of venue.
Id. at 664. These factors included that its potential

9 witnesses resided in the Western District, the original documents 10 in the case were located in the Western District, and the Northen 11 District of Illinois had a heavier docket than the Western 12 District.
Id. The court refused to transfer venue to the

13 Western District despite acknowledging that the only factors in 14 favor of venue remaining in Illinois were the convenience to the 15 SEC and the SEC's choice of forum. 16
Id. Claimants attempt to distinguish National Presto,

17 emphasizing that there, the SEC did not have an office in the 18 transferee district. 20 District.
Here, claimants stress that the government

19 could litigate this case from its offices in the Central
While this fact is true, it does not compel the court As recognized by the court in SEC v. Savory

21 to transfer venue.

22 Indus., Inc., 587 F.2d 1149, 1155 (D.C. Cir. 1978), an office in 23 the transferee district is more relevant to the question of 24 whether the choice of that district is convenient to the 25 plaintiff, as opposed to the weight given to a plaintiff's choice 26 of forum.
In Savory, the SEC sued Savory Industries, Inc., S. Savory,

27 Mort Zimmerman, and others in the District of Columbia. 28 587 F.2d at 1152.

Zimmerman moved to transfer venue to the 9

1 Northern District of Texas.

Id. at 1153. Id.

The district court On appeal, one of

2 denied the motion without comment.

3 Zimmerman's arguments was that the SEC's choice of forum should 4 be accorded little, if any, significance because the SEC had an 5 office in the Northern District of Texas. 6 appellate court disagreed.
Id. at 1155. The It ruled that an office in the Id. at 1156.

7 transferee district was not a compelling factor.

8 The court finds similarly here, particularly given the extensive 9 nature of this federal investigation, which has been performed by 10 law enforcement officers in this district and which has 11 generated, to date, twelve related cases pending in this 12 district. 13 14
CONCLUSION Claimants have not met their burden to show that the

15 convenience of the parties and witnesses and the interests of 16 justice warrant transfer of this case. 17 motion for transfer of venue is DENIED. 18 20 21 22 23 24 25 26 27 28
10 IT IS SO ORDERED. Therefore, claimants'

19 DATED: June 25, 2007.

_______________________________________ FRANK C. DAMRELL, JR. UNITED STATES DISTRICT JUDGE

Exhibit 2

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. See E.D. Cal. Local Rule 78-230(h). 1
1

JANET YOUNG and EDWARD YOUNG, NO. CIV. S-05-1639 FCD GGH Plaintiffs, v. COASTAL ISLAND CHARTERS, MICHAEL BAUER, and LORI BAUER, Defendants. ----oo0oo---This matter is before the court on defendants Coastal Island Charters, Michael Bauer and Lori Bauer's (collectively, "defendants") motion for transfer of venue pursuant to 28 U.S.C. § 1404(a).1 Defendants do not challenge the propriety of venue MEMORANDUM AND ORDER

in the Eastern District of California, but argue that the United States District Court of Alaska is the more convenient forum. Plaintiffs Janet Young and Edward Young ("plaintiffs") oppose the

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

motion arguing that the balance of factors weigh heavily in their favor, meriting retention of the case in this district. For the reasons set forth below, the court DENIES defendants' motion. While the operative facts of the incident

occurred in Alaska, plaintiffs' choice of forum should be afforded substantial deference since defendants personally solicited plaintiffs' business in this district on numerous occasions and the contract forming the basis of the parties' relationship was entered into here. BACKGROUND This is an action for negligence by common carrier, negligence and loss of consortium filed by plaintiffs against defendant Coastal Island Charters ("Coastal") and its owners defendants Michael and Lori Bauer (the "Bauers"). Aug. 16, 2005.) (Compl., filed

The premise of Coastal's business is to share

the Bauers' love of fishing and exploring the beautiful Southeast Alaska. (L. Bauer Decl., filed Oct. 25, 2005, ¶ 3.)

In January 1998, plaintiffs first met the Bauers at the Sportsman's Expo in San Mateo, California. The Bauers were Plaintiffs

soliciting for fishing trips they ran in Alaska.

agreed to purchase a trip and went on the trip with the Bauers in the summer of 1998. (J. Young Decl., filed Nov. 15, 2005, ¶ 2.) Thereafter, on a number of occasions between 1998 and 2004, plaintiffs personally met with the Bauers at the Sportsman's Expo in either San Mateo or Sacramento, California. Again, on these

occasions, the Bauers were soliciting business for their fishing trips. Plaintiffs attest that at least once every year between

1998 and 2004, and probably more, the Bauers solicited business 2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

at a Sportsman's Expo in Northern California. (Id. at ¶ 3.) On January 18, 2004, plaintiffs again met the Bauers at the Sportsman's Expo in Sacramento and contracted for a five-day fishing trip for the summer. That day, plaintiffs wrote a (Id. at

$2,000.00 check to the Bauers as a deposit for the trip. ¶ 4.)

While on the trip, on June 18, 2004, plaintiff Janet Young was in the dining/main room of the Bauers' boat.2 At that time,

the only other person in the room was the Bauers' employee, Ms. Kelly. Ms. Kelly opened a hatch in the floor while plaintiff's Plaintiff alleges Ms. Kelley did not say or do When plaintiff turned back

back was turned.

anything to warn her of the hazard.

around, she fell through the open hatch and shattered her ankle. (Id. at ¶ 5.) According to defendants, Ms. Kelly was preparing to store the morning catch in a freezer below the main salon deck. Bauer Decl., ¶ 18.) As is the crew's custom and practice, (L.

alleges defendants, Ms. Kelly announced aloud, "I'm opening the hatch," then opened the hatch while plaintiff was standing a short distance away. (Id. at ¶ 19.) Plaintiff walked into the (Id. at ¶ 20.)

open hatch and injured her right ankle.

The boat returned to Sitka, Alaska, approximately 5 hours away, in order to seek medical treatment for plaintiff's ankle. (Id. at ¶ 21.) Once at the dock, while the paramedics and EMTs

from Sitka were seeing to plaintiff, defendants allege plaintiff

The other passengers onboard included Eddie Young, plaintiffs' son, and Dennis Meeno, a business associate of plaintiffs. 3

2

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

stated to the medical personnel that the incident was "nobody's fault" and it was clearly an accident. filed Oct. 25, 2005, ¶ 3.) Plaintiff was then transported to the Sitka Medical Center by ambulance where she was seen by Dr. John Totten, the on-call surgeon. (L. Bauer Decl., ¶ 24.) Dr. Totten informed plaintiff (Defs.' Counsel's Decl.,

that he was capable of performing the surgery on plaintiff's foot. (Id. at ¶ 25.) He also discussed with plaintiff whether

he believed it was advisable and necessary to have plaintiff transported by Medivac to a hospital in California. (Id.) At

plaintiff Edward Young's request, a Medivac plane was summoned, and Janet Young was air-lifted to a medical facility in Sacramento. (Id. at ¶ 27.)

The Bauers have lived full-time in Alaska since 1976. Besides the Bauers, Coastal's only other crew member at the time of the incident was Ms. Kelly, a twenty-eight year old deckhand. (Id. at ¶ 5.) Ms. Kelly lives in Alaska from June through

September and in Eatonville, Washington from October through May where she serves as a care provider for disabled individuals. (Id. at ¶ 6.) Coastal is a business organized under the laws of the State of Alaska with its principal executive office, located for the last eleven years, in Wrangell, Alaska. (Id. at ¶s 7-8.)

Coastal has never had any operations, office or telephone number in California. (Id. at ¶ 9.) The boat at issue, the MV

Huntress, is a 60-foot vessel owned by the Bauers and regularly used during the months of May through September to charter fishing trips in the waters off of the coast of Alaska. 4 (Id. at

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

¶ 10.)

Since the Bauers purchase of the MV Huntress, it has only (Id. at ¶

been registered and documented in the State of Alaska. 11.)

The money earned from fishing charters during the months of (Id. at ¶

May to September is the Bauers' only source of income. 13.) STANDARD

Under 28 U.S.C. § 1404(a), a district court may "for the convenience of parties and witnesses, in the interest of justice . . . transfer any civil action to any other district where it might have been brought." 28 U.S.C. § 1404(a). A defendant

moving to transfer venue under section 1404(a) must therefore satisfy both of the following requirements: (1) the transferee district is one in which the action might have been brought originally; and (2) transfer will enhance the convenience of the parties and witnesses, and is in the interests of justice. Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). In considering the second requirement, the court evaluates the following: (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 costs of litigation in the two forums, (7) the availability of complusory process to compel attendance of unwilling non-party witnesses, and (8) ease of access to sources of proof. Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000). See

5

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ANALYSIS Plaintiffs do not dispute that this action properly could have been brought in the United States District Court of Alaska since defendants reside there. 28 U.S.C. § 1391(a). Thus, the

only question before the court is whether transfer to Alaska will serve "the convenience of [the] parties and witnesses" and will promote the interest[s] of justice." 28 U.S.C. § 1404(a).

Considering the above facts in light of the factors described in Jones, the court finds defendants have failed to demonstrate that transfer is warranted: First, the location of the relevant agreement favors litigation in this court. Plaintiffs entered a contact with the

Bauers for the June 2004 fishing trip in Sacramento, California. The contract was made as a result of the Bauers' solicitation of business in this district, through their personal appearance at the Sportsman's Expo in Sacramento. Moreover, the Bauers do not

dispute plaintiffs' testimony that they met the Bauers on numerous occasions between 1998 and 2004 in Northern California, when the Bauers were soliciting business through various Sportsman's Expos. Indeed, despite plaintiffs' testimony, the

Bauers have not provided the court with any specific information regarding their solicitation of business in California, including locations and frequency. Second, this court is the most familiar with the governing law--California negligence law. (Compl. at ¶ 12 [regrading

negligence by a common carrier as defined by Cal. Civ. Code § 2186 et seq.].) Moreover, were the case to be transferred to

Alaska, the Alaska court would be bound to apply California law. 6

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Van Dusen, 376 U.S. at 637-39 (when transfer is granted under § 1404(a), the transferee court in a diversity action must apply the law of the state in which the action was originally filed). Third, where a plaintiff's choice of forum is his place of residence, as in this case, a defendant must make a "strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum." Decker Coal Co. v. Commonwealth Edison Co., Here, defendants have not

805 F.2d 834, 843 (9th Cir. 1986). done so.

While they maintain that participating in litigation in

this district would be detrimental to their "small" business, plaintiffs' unrebutted testimony of the Bauers' personal presence in this district, and within Northern California generally, to solicit business belies defendants' contentions. Because it

appears that defendants regularly conduct business in this district to recruit clients, they cannot persuasively argue that it would be a detriment to their business to be a party to litigation in this district. Indeed, a Northern California venue

would seem expected given the extent and frequency of defendants' contacts with Northern California. Additionally, defendants have not shown that the convenience of the relevant non-party witnesses favors Alaska. Defendants

concede that plaintiffs' son and business associate (both present on the trip) and plaintiff's surgeon, treating physician and other healthcare providers reside in California. Yet, defendants

argue that, more importantly, Ms. Kelly, the central person involved in the incident, the two Sitka EMTs, whom defendants allege overheard plaintiff state the incident was "nobody's fault," Dr. Trotten, and the "Medivac pilot" live in Alaska. 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendants' argument, however, is unavailing because it misstates the facts and/or emphasizes witnesses who are not central to this case. Regarding Ms. Kelly, by defendants' own admission, she

lives only part-time in Alaska; outside of the fishing season (May to September), she lives in the State of Washington. Thus,

her residence is of limited importance in resolving the dispute over convenience between California and Alaska. As to plaintiff

Janet Young's alleged statement to the Sitka EMTs, defendants have not provided admissible testimony on this issue, and therefore the court does not consider it in ruling on the motion. Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1119 (C.D. Cal. 1998) ("the moving party must demonstrate, through affidavits or declarations containing admissible evidence, who the key witnesses will be and what their testimony will generally include") (emphasis added.)3 Finally, regarding Dr. Totten and

the unnamed "Medivac pilot," their involvement in this case is minimal, and as such, the convenience of these witnesses does not weigh heavily in the analysis. In sum, on balance, the majority of the critical non-party witnesses reside in California, rendering this factor in favor of plaintiffs. Taken in combination with plaintiffs' choice of this

forum and defendants' contacts with the forum, particularly in this district, the court finds that this factor weighs considerably in favor of retention of this case in this district. Fourth, regarding the relevant costs, because of the location of the majority of witnesses, and considering the

The court considers herein plaintiffs' objections only as they pertain to facts relevant to the court's decision. 8

3

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Bauers' frequent business travels to California, it would likely be more costly to litigate this case in Alaska. The court is

mindful of the fact that the subject boat is located in Alaska and that part of the discovery in this matter may require travel to Alaska to view and inspect the boat. However, that fact

alone, when considered on balance with the other issues discussed herein, does not merit transfer of venue. Finally, for similar reasons, defendants' showing with regard to access to sources of proof is also unavailing. Initially, the court notes that defendants concede that the location of the documentary evidence in this case does not significantly favor either forum; some of the relevant documentary evidence is in Alaska, including documents regarding the MV Huntress itself and Coastal's business, while other documentary evidence is in California, including plaintiff's medical records. Thus, there is no basis to assume that it would

be any more convenient or less burdensome to transport the relevant documents to Alaska rather than to California. Setting aside the documentary evidence, defendants solely base their argument on the need for access to the MV Huntress itself, both during the course of discovery and at trial (for review by the jury). As stated above, while inspection of the

boat may be necessary by the parties, their attorneys, and experts during discovery, this fact alone does not warrant a transfer of venue. As to any inspection by the jury at trial,

defendants have not demonstrated why diagrams, pictures, models, reports, and records could not provide ample evidence for the trier of fact; moreover, absent extraordinary circumstances, such 9

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a request for an actual inspection of the boat by the jury would likely be denied by a court, be it in Alaska or California. Therefore, for all of the above reasons, the court DENIES defendants' motion to transfer venue because defendants have not met their burden to show that the convenience of witnesses and interests of justice warrant transfer of this case. IT IS SO ORDERED. DATED: December 12, 2005

/s/ Frank C. Damrell Jr. FRANK C. DAMRELL, Jr. UNITED STATES DISTRICT JUDGE

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