United States of America v. State of California et al

Filing 18

MOTION to Transfer Venue to the Northern District of California by Xavier Becerra, Edmund Gerald Brown, Jr, State of California. (Attachments: # 1 Proposed Order)(Chuang, Christine) Modified on 3/15/2018 (Reader, L).

1
2
3
4
5
6
7
8
9
10

XAVIER BECERRA
Attorney General of California
THOMAS PATTERSON
Senior Assistant Attorney General
MICHAEL NEWMAN
SATOSHI YANAI
Supervising Deputy Attorneys General
CHRISTINE CHUANG
ANTHONY HAKL
CHEROKEE MELTON
LEE I. SHERMAN
Deputy Attorneys General
State Bar No. 272271
300 S. Spring Street
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE EASTERN DISTRICT OF CALIFORNIA

13
14
15
16

THE UNITED STATES OF AMERICA,

17
18
19
20
21
22
23

Case No. 2:18-cv-00490-JAM-KJN

Plaintiff,
DEFENDANTS’ NOTICE OF MOTION
AND MOTION TO TRANSFER VENUE
TO THE NORTHERN DISTRICT OF
THE STATE OF CALIFORNIA; EDMUND CALIFORNIA
GERALD BROWN JR., Governor of
California, in his official capacity; and
Judge: Honorable John A. Mendez
XAVIER BECERRA, Attorney General of
Action Filed: March 6, 2018
California, in his official capacity,
v.

Defendants.

24
25
26
27
28
Defendants’ Notice of Motion and Motion to Transfer Venue to the Northern District of California
(18-cv-00490-JAM-KJN)

1
2

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE THAT Defendants the State of California, Edmund Gerald

3

Brown Jr., Governor of California, in his official capacity, and Xavier Becerra, Attorney General

4

of California, in his official capacity, move this Court to transfer Plaintiff the United States of

5

America’s action to the United States District Court for the Northern District of California,

6

pursuant to 28 U.S.C. § 1404(a) and the first-to-file rule. Pursuant to the Court’s Minute Order

7

(Dkt. No. 17), no hearing will be set on this matter.

8
9

This motion is based on this Notice of Motion, the accompanying Memorandum of Points
and Authorities, Request for Judicial Notice in Support of Defendants’ Motion to Transfer Venue

10

to the Northern District, the other papers and pleadings on file in this action, and upon such

11

matters as may be presented to the Court.

12
13

Dated: March 13, 2018

Respectfully Submitted,
XAVIER BECERRA
Attorney General of California

14
15
16

/s/Christine Chuang
Christine Chuang
Deputy Attorney General
Attorneys for Defendants

17
18
19
20
21
22
23
24
25
26
27
28

1
Defendants’ Notice of Motion and Motion to Transfer Venue to the Northern District of California
(18-cv-00490-JAM-KJN)

1
2
3
4
5
6
7
8
9
10

XAVIER BECERRA
Attorney General of California
THOMAS PATTERSON
Senior Assistant Attorney General
MICHAEL NEWMAN
SATOSHI YANAI
Supervising Deputy Attorneys General
CHRISTINE CHUANG
ANTHONY HAKL
CHEROKEE MELTON
LEE I. SHERMAN
Deputy Attorneys General
State Bar No. 272271
300 S. Spring Street
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
E-mail: [e-mail]
Attorneys for Defendants

11

IN THE UNITED STATES DISTRICT COURT

12

FOR THE EASTERN DISTRICT OF CALIFORNIA

13
14
15
16

THE UNITED STATES OF AMERICA,

17
18
19
20
21
22
23

Case No. 2:18-cv-00490-JAM-KJN

Plaintiff,
DEFENDANTS’ MOTION TO
TRANSFER VENUE TO THE
NORTHERN DISTRICT OF
THE STATE OF CALIFORNIA; EDMUND CALIFORNIA; MEMORANDUM OF
POINTS AND AUTHORITIES
GERALD BROWN JR., Governor of
California, in his official capacity; and
XAVIER BECERRA, Attorney General of
Judge: Honorable John A. Mendez
California, in his official capacity,
Action Filed: March 6, 2018
Defendants.
v.

24
25
26
27
28
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

INTRODUCTION

1
2

The central issue in this case concerns the boundary line between the federal government’s

3

immigration powers and the State of California’s powers under the Tenth Amendment to establish

4

and enforce laws protecting the welfare, safety, and health of the public. This issue is already

5

being litigated in a related case, filed by the State against the federal government, pending before

6

the Honorable William H. Orrick in the Northern District of California. See California v.

7

Sessions, et al., No. 17-cv-4701 (N.D.Cal.). In light of the substantial overlap between the issues

8

in these cases, and the identity of parties, the State respectfully moves to transfer this case to the

9

Northern District under 28 U.S.C. § 1404(a) and the first-to-file rule.

10

In a recent order in the Northern District case, Judge Orrick observed: “At some later date,

11

this case may help define the contours of the State’s broad constitutional police powers under the

12

Tenth Amendment and the federal government’s ‘broad, undoubted power over the subject of

13

immigration and the status of aliens.’ U.S. v Arizona, 567 U.S. 387, 394 (2012). The Trump

14

administration’s immigration enforcement policy is clearly at odds with the State’s determination

15

of the most effective methods to implement criminal law enforcement.’” See Request for Judicial

16

Notice in Support of Defendants’ Motion to Transfer Venue to the Northern District (“RJN”), Ex.

17

E (Order Denying Am. Mot. Prelim. Inj.) (“PI Order”) at 1. This Court could make the same

18

observation in this case. And the federal government has even framed the issue here as whether

19

“California is intentionally obstructing the enforcement of federal law in violation of the

20

Supremacy Clause.” Pl.’s Mot. Prelim. Inj. at 1.

21

Simply put, both this case and the prior-filed Northern District case turn on the interplay

22

between the federal government’s power over immigration and the states’ police powers under

23

the Tenth Amendment. To prevent the possibility of inconsistent judgments concerning the same

24

parties on the same issues, and to preserve judicial economy, this case should be transferred to the

25

Northern District of California.

26
27
28
1
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

FACTUAL BACKGROUND

1
2

I.

THE FIRST FILED CASE IN THE NORTHERN DISTRICT
Since last year, the State and some of its political subdivisions have been in litigation with

3
4

the federal government regarding the proper interpretation of 8 U.S.C. § 1373, in the context of

5

the U.S. Department of Justice’s (“US DOJ”) threat to withhold federal funds from the State

6

unless the State accedes to the federal government’s immigration-enforcement demands. On

7

January 25, 2017, President Trump signed an Executive Order directed at so-called “sanctuary

8

jurisdictions.” The Executive Order sought to withhold federal grants from those “jurisdictions

9

that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions),” and authorized the

10

Attorney General to initiate “enforcement action[s] against any entity that violates 8 U.S.C. 1373,

11

or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of

12

Federal law.” Exec. Order No. 13,768, 82 Fed. Reg. 8799 at 8801 (Jan. 25, 2017).
The City and County of San Francisco and the County of Santa Clara initially filed lawsuits

13
14

challenging the Executive Order in the Northern District of California before the Honorable

15

William H. Orrick. Judge Orrick granted both jurisdictions a preliminary, and later, a permanent,

16

injunction enjoining the Executive Order as unconstitutional, including under the Tenth

17

Amendment for seeking to conscript jurisdictions to assist in carrying out the immigration laws.

18

See Cty. of Santa Clara v. Trump, 275 F. Supp. 3d 1196, 1215-16 (N.D. Cal. 2017), appeal

19

docketed, Nos. 17-17478, 17-17480 (9th Cir. Dec. 14, 2017). Issues surrounding § 1373 were

20

briefed extensively before Judge Orrick, as San Francisco sought declaratory relief alleging that it

21

was in compliance with § 1373. See RJN, Ex. G (Pl. San Francisco’s Second Am. Compl.)

22

¶¶ 144-48. 1
The federal government specifically targeted the State regarding its compliance with

23
24

§ 1373, starting in April 2017. On August 14, 2017, the State filed a lawsuit challenging US

25

DOJ’s imposition of immigration-enforcement conditions on federal funding in the Northern

26

District of California. Because of the related cases that existed on these issues, the State’s case

27

1

28

Judge Orrick ultimately decided that he would consider San Francisco’s compliance with § 1373
in the related litigation with the State of California. Cty. of Santa Clara, 275 F. Supp. 3d at 121819.
2
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

1

was assigned to Judge Orrick on August 28, 2017. See RJN, Ex. A (California v. Sessions

2

Docket). On October 13, 2017, the State amended its complaint to challenge an additional

3

federal-funding condition seeking compliance with § 1373, after it became apparent that

4

California was in danger of being found non-compliant under US DOJ’s broad interpretation of

5

§ 1373.

6

In its First Amended Complaint, the State sought a declaration that several California

7

public-safety and confidentiality statutes, including Senate Bill (SB) 54, the California Values

8

Act (“SB 54”), which is the subject of the federal government’s third cause of action here,

9

comply with § 1373 as “properly interpreted and construed,” and that alternatively, the Tenth

10

Amendment of the U.S. Constitution prevents § 1373 from being “constitutionally enforced”

11

against these statutes. See RJN, Ex. A (California v. Sessions Docket), Ex. B (First Am. Compl.)

12

¶¶ 152-53. In fact, the same two provisions of SB 54 that are at issue in the Northern District

13

litigation—the provisions regulating the exchange of release dates and personal information—are

14

squarely presented in the federal government’s Complaint in this case. Compare RJN, Ex. C at

15

14 (Pl.’s Am. Mot. Prelim. Inj.) with Compl. ¶ 65. The central dispute in California v. Sessions is

16

whether the federal government may interpret § 1373 in such a manner as to impinge on the

17

State’s police power and commandeer the State’s law-enforcement resources for federal

18

immigration-enforcement purposes.

19

The State filed an amended motion for preliminary injunction on November 7, 2017, which

20

was fully briefed and argued on December 13, 2017. See RJN, Ex. A (California v. Sessions

21

Docket), Ex. C (Pl.’s Am. Mot. Prelim. Inj.). On January 16, 2018, the federal government

22

moved to dismiss the State’s Amended Complaint. See RJN, Ex. A (California v. Sessions

23

Docket). The motion was fully briefed and argued on February 28, 2018. See id. In the context

24

of these motions, the federal government has repeatedly represented to Judge Orrick that it had

25

yet to reach a final determination on whether SB 54 complies with § 1373, including at a recent

26

hearing on the federal government’s motion to dismiss. See RJN, Ex. F (Hr’g Tr.) 6:7-15 (“[T]his

27

case has really sort of gotten out in front of that administrative process, and . . . there is no final

28

agency determination yet on 1373 compliance.”); 41:8-12 (“[T]his dispute is actually not ripe.”).
3
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

1

As a result of the ongoing motion practice, Judge Orrick has become intimately familiar with

2

§ 1373, SB 54, and the constitutional arguments of both parties.

3

On March 5, 2018, Judge Orrick denied the federal government’s motion to dismiss and

4

denied the State’s amended motion for preliminary injunction. RJN, Ex. D (Order Denying Mot.

5

Dismiss), Ex. E (PI Order). Judge Orrick found that the record was insufficient to assess the

6

State’s likelihood of success on the merits and that the issues in the case would benefit from

7

further factual development. RJN, Ex. E (PI Order) at 26, 28. The court also found that the

8

controversy was rooted in a constitutional analysis of federal and state powers and whether the

9

federal government’s interpretation of § 1373 violates the Tenth Amendment, a core issue in this

10

case. To move the case toward resolution, Judge Orrick ordered the parties to file a joint case

11

management statement by March 20 regarding a schedule for discovery and cross-motions for

12

summary judgment in the upcoming months, and set a Case Management Conference for March

13

27. See RJN, Ex. D (Order Denying Mot. Dismiss) at 2.

14

II.

THE CURRENT LAWSUIT

15

On March 6, 2018, one day after Judge Orrick denied both motions in California v.

16

Sessions following the federal government’s argument that SB 54’s compliance with § 1373 was

17

unsettled and therefore unripe for judicial review, the federal government filed this lawsuit. The

18

complaint claimed that three recently-enacted California statutes, including SB 54, are invalid

19

because they are “preempted by federal law and impermissibly discriminate against the United

20

States, and therefore violate the Supremacy Clause of the United States Constitution.” Compl.

21

¶ 2. In addition to claiming that SB 54 violates the Supremacy Clause and § 1373, the Complaint

22

sets forth causes of action relating to the constitutionality of Assembly Bill (AB) 450 (Immigrant

23

Worker Protection Act) (“AB 450”) and section 12 of AB 103 (relating to review of detention

24

facilities) (“AB 103”). Id. ¶¶ 60-65. Like California v. Sessions, the dispute in this case focuses

25

on fundamental constitutional questions surrounding the federal government’s immigration

26

enforcement power and the State’s determination of how to best use its broad constitutional

27

police powers to implement policies to protect the safety and welfare of all those residing in the

28

State, regardless of immigration status.
4
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

1

SB 54, the subject of California v. Sessions, was enacted in accordance with the State’s

2

powers to determine how to best expend limited law enforcement resources. The statute defines

3

when California law enforcement agencies (“LEA”) have discretion to respond to “notification

4

requests,” which are requests by an immigration authority asking an LEA to inform it “of the

5

release date and time in advance of the public of an individual in its custody.” See Cal. Gov’t

6

Code §§ 7283(f), 7284.6(a)(1)(C). LEAs are also generally prohibited from using LEA funds or

7

personnel to “provid[e] personal information,” about an individual “for immigration enforcement

8

purposes,” unless that information is “available to the public.” Id. § 7284.6(a)(1)(D). Lastly,

9

section 7284.6(a)(4) defines when LEAs may transfer persons in their custody to immigration

10

authorities or when the LEA is authorized to do so by a judicial warrant or judicial probable cause

11

determination. Id. § 7284.6(a)(4). Although SB 54 explicitly authorizes compliance with all

12

aspects of § 1373, id. § 7284.6(e), the federal government in California v. Sessions argued that

13

the State’s claims were unripe because it had not yet determined if SB 54 was actually in conflict

14

with § 1373. See RJN, Ex. F (Hr’g Tr.) 6:7-15, 41:8-12. However, in this suit, filed the day after

15

Judge Orrick relied in part on that argument in denying the State’s request for a preliminary

16

injunction, the federal government is now claiming that the statutes do in fact conflict. Unless

17

this case is transferred, this new assertion will be litigated in both this court and in the Northern

18

District.

19

The federal government’s two other claims allege that AB 450 and AB 103 are targeted

20

against, and create an obstacle to, the federal government’s immigration laws. AB 450 was

21

signed into law on October 5, 2017, and became effective on January 1, 2018. AB 450 furthers

22

the State’s interest in ensuring that all protections, rights, and remedies available under state law

23

are available to all workers regardless of immigration status. See Cal. Gov’t Code § 7285. The

24

law generally prohibits an employer, except as otherwise required by federal law, from

25

“providing voluntary consent to an immigration enforcement agent to enter any nonpublic areas

26

of a place of labor.” This provision does not apply if the agent provides a judicial warrant. Id.

27

§ 7285.1. In addition, section 7285.2 of the Government Code generally prohibits an employer,

28

except as otherwise required by federal law, from providing voluntary consent to an immigration5
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

1

enforcement agent to access or obtain the employer’s employee records. This provision does not

2

apply if the agent presents a subpoena or judicial warrant, and also does not apply to requests for

3

certain documents for which a Notice of Inspection is provided to the employer. Id. § 7285.2.

4

AB 450 also amends California’s Labor Code to require that employers post notices to employees

5

regarding “any inspections of I-9 Employment Eligibility Verification forms or other employment

6

records conducted by an immigration agency” within 72 hours of receiving notice. Cal. Lab.

7

Code, § 90.2(a). The amended Labor Code now also prohibits a public or private employer from

8

“reverify[ing] the employment eligibility of a current employee at a time or in a manner not

9

required by Section 1324a(b) of Title 8 of the United States Code.” Id. § 1019.2.

10

AB 103, signed into law as part of an omnibus public-safety bill on June 27, 2017, requires

11

the Attorney General to review the conditions at “county, local, or private locked detention

12

facilities” housing non-citizens detained for purposes of civil immigration proceedings. Cal.

13

Gov’t Code § 12532(a), (b). Both AB 450 and AB 103 concern matters typically left to the states

14

and do not purport to regulate federal officials or immigration. Like the challenge to SB 54, the

15

challenge to these statutes turns on the extent of the federal government’s regulation of

16

immigration and the rights reserved to the states under the Tenth Amendment.

17

LEGAL STANDARD

18

“For the convenience of parties and witnesses, in the interest of justice, a district court may

19

transfer any civil action to any other district or division where it might have been brought[.]” 28

20

U.S.C. § 1404(a). The purpose of this provision is “to prevent the waste of time, energy and

21

money” and “to protect litigants, witnesses and the public against unnecessary inconvenience and

22

expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (quoting Continental Grain Co. v.

23

Barge FBL-585, 364 U.S. 19, 26, 27 (1960)) (internal quotations omitted). A district court has

24

broad discretion to “adjudicate motions for transfer according to an ‘individualized, case-by-case

25

consideration of convenience and fairness.’” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29

26

(1988) (quoting Van Dusen, 376 U.S. at 622); Jones v. GNC Franchising, Inc., 211 F.3d 495, 498

27

(9th Cir. 2000).

28

The district court must first determine whether the action is one that “might have been
6
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

1

brought” in the transferee forum. See 28 U.S.C. § 1404(a); Am. Canine Found. v. Ben Sun,

2

D.M.V., 2006 U.S.Dist.LEXIS 55787, *8 (E.D.Cal. July 27, 2006). Once the court finds venue

3

proper, the court “consider[s] public factors relating to the interest of justice and private factors

4

relating to the convenience of the parties and witnesses.” See Decker Coal Co. v. Commonwealth

5

Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). The “convenience” factors relevant here include:

6

(1) plaintiff’s choice of forum; (2) the contacts relating to the plaintiff’s cause of action in the

7

chosen forum; (3) the convenience of witnesses; and (4) ease of access to the evidence. See

8

Mussetter Distrib. v. DBI Bev. Inc., 2009 U.S. Dist.LEXIS 61013, *9-*10 (E.D.Cal. July 8,

9

2009); Jones, 211 F.3d at 498-99.

10

In addition, the first-to-file rule is a doctrine of federal comity that permits a district court to

11

decline jurisdiction over an action when a complaint involving the same parties and issues has

12

already been filed in another district. Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93,

13

94-95 (9th Cir. 1982).

14
15
16
17

LEGAL ARGUMENT
I.

THE NORTHERN DISTRICT OF CALIFORNIA IS A DISTRICT IN WHICH THE FEDERAL
GOVERNMENT’S LAWSUIT “MIGHT HAVE BEEN BROUGHT”
Venue would be proper in the Northern District of California. A civil action may be

18

brought in any district where “a substantial part of the events or omissions giving rise to the claim

19

occurred[.]” 28 U.S.C. § 1391(b)(2). Venue can therefore lie in the Northern District, since the

20

California statutes at issue apply statewide. See Am. Canine Found., 2006 U.S.Dist.LEXIS 55787

21

at * 9 (granting transfer “[s]ince . . . [the California statute] applies throughout the state, it applies

22

equally in the Northern District as it does in the Eastern District.”). Furthermore, the declaration

23

of Thomas Homan submitted by the federal government in support of its preliminary injunction

24

motion specifically lists three ICE field offices (Los Angeles, San Diego, and San Francisco) that

25

are impacted by the laws at issue, one of which is located in the Northern District. See

26

Declaration of Thomas D. Homan, Dkt. No. 2-2 (“Homan Decl.”) ¶ 21. Thus, the Court should

27

find that this action “might have been brought” in the Northern District. See 28 U.S.C. § 1404(a).

28
7
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

1
2

II.

THE FACTORS WEIGH HEAVILY IN FAVOR OF TRANSFERRING THIS CASE TO THE
NORTHERN DISTRICT

4

This Case Should Be Transferred in the Interests of Justice Because of the
Pendency of a Related Case and Because Consolidation Would Promote
Judicial Economy

5

This matter should be transferred to the Northern District in the interests of justice, to allow

6

the State to seek to consolidate it with California v. Sessions, because it involves the same parties

7

and overlapping issues. The “interest of justice” is a decisive factor, even if the other

8

“convenience” factors weigh against transfer. Am. Canine Found., 2006 U.S.Dist.LEXIS. 55787

9

at * 9; Gatdula v. CRST Int’l, Inc., 2011 U.S.Dist.LEXIS 13706, *8 (E.D.Cal. Feb. 8, 2011).

3

10

A.

“The feasibility of consolidation is a significant factor, although even the pendency of an

11

action in another district is important because of the positive effects it might have in possible

12

consolidation of discovery and convenience to witnesses and parties.” A.J. Industries, Inc. v. U.S.

13

Dist. Court for Cent. Dist., 503 F.2d 384, 389 (9th Cir. 1974) (internal citations omitted); see also

14

Am. Canine Found., 2006 U.S.Dist.LEXIS 55787 at *9-*10 (the pendency of a related case in the

15

transferee forum is an important consideration when determining the interests of justice). Indeed,

16

the Supreme Court has recognized that “[t]o permit a situation in which two cases involving

17

precisely the same issues are simultaneously pending in different District Courts leads to the

18

wastefulness of time, energy and money that [the federal transfer statute] was designed to

19

prevent.” Continental Grain Co., 364 U.S. at 26. Thus, centralizing the adjudication of two cases

20

with common issues allows the parties to conserve their resources and avoids inconsistent

21

judgments, especially where the claims can be consolidated. See Mussetter Distrib., 2009

22

U.S.Dist.LEXIS 61013 at *13; Kurtz v. Interlius, Inc., 2011 U.S.Dist.LEXIS 101922, *5

23

(E.D.Cal. Sept. 9, 2011) ( stating that “judicial resources are conserved when an action

24

adjudicated by a court that has already ‘committed judicial resources to the contested issues and is

25

familiar with the facts of the case.’”).

26

Differences in causes of action, named parties, or isolated facts do not preclude transfer.

27

See Am. Canine Found., 2006 U.S.Dist.LEXIS 55787 at * 10; Mussetter Distrib., 2009

28

U.S.Dist.LEXIS 61013 at *13. In American Canine Foundation, the district court transferred a
8
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

1

case challenging the constitutionality of a California statute from the Eastern District to the

2

Northern District, because a pending case in the Northern District challenged the same statute,

3

despite some differences in the causes of action pleaded and the named defendants. Am. Canine

4

Found., 2006 U.S.Dist.LEXIS 55787 at *10 (finding that “[i]t would save judicial resources, time

5

and money to have these similar cases tried in the same district”).

6

Here, the pendency of a related, earlier-filed action weighs heavily in favor of transfer and

7

should be decisive. Indeed, if this case is transferred, the State intends to seek consolidation of

8

the matters given the overlapping claims regarding SB 54 and § 1373. That this case also

9

involves a challenge to AB 450 and AB 103 should not preclude transfer because this matter, at

10

its core, involves the same fundamental legal issue as California v. Sessions: “the contours of the

11

State’s broad constitutional police powers under the Tenth Amendment and the federal

12

government’s ‘broad, undoubted power over the subject of immigration and the status of aliens.’”

13

RJN, Ex. E (PI Order) at 1 (quoting United States v. Arizona, 567 U.S. 387, 394 (2012)). 2
Transfer would therefore promote judicial economy. The parties and Judge Orrick in

14
15

California v. Sessions have already expended a substantial amount of time and resources

16

litigating the contested issues through a motion to dismiss and a motion for preliminary

17

injunction. After vigorous motion practice, the parties are ready to begin discovery and proceed

18

to the merits of the State’s claims—which can now be assessed in light of the federal

19

government’s plain contention that SB 54 violates § 1373. The court has already held two

20

hearings and devoted significant judicial resources to evaluating the very issues raised by the

21

federal government in this case. 3 In fact, Judge Orrick has presided over issues surrounding

22

2

23
24
25
26
27
28

The federal government implicitly concedes that the mere fact that one of the three laws at issue
in Brosnan v. Becerra was sufficient to at least raise the possibility of relatedness to the Court.
See Dkt. Nos. 9 (Pl.’s Notice Concerning Possibly Related Case), 12 (Related Case Order
[declining to relate or reassign case]). However, unlike Brosnan v. Becerra, which involves only
the potential enforcement of AB 450 against a sole business owner, this case and California v.
Sessions both involve the same parties, the same overarching constitutional questions, the exact
same legal issues regarding SB 54 and § 1373, and an extensive litigation that has already
transpired.
3
Furthermore, “docket congestion” is a relevant factor. Stay-Dri Continence Mgmt. Sys., LLC v.
Haire, 2008 WL 4304604, *4 (E.D.Cal. Sept. 10, 2008) (“The interest of ensuring that this matter
proceeds speedily to trial weighs in favor of transfer.”). The average pending actions per
judgeship in the Northern District as of December 31, 2017 is 657, compared to the Eastern
9
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

1

§ 1373 and the limits to the federal government’s ability to conscript state and local jurisdictions

2

in furtherance of the government’s federal immigration-enforcement demands since January 2017

3

in the County of Santa Clara v. Trump litigation, as discussed above. Transferring this case to the

4

Northern District would allow the court to adjudicate common legal issues at the same time,

5

avoiding the possibility of inconsistent judgments. Thus, “[t]he interests of justice ‘weigh

6

particularly heavily’ in favor of transfer.” See Am. Canine Found., 2006 U.S.Dist.LEXIS 55787

7

at *10.

8

B.

9

The federal government’s choice of forum should be afforded little deference. While a

10

plaintiff’s choice of forum may ordinarily weigh against transfer, “[i]f the operative facts have not

11

occurred within the forum of original selection and that forum has no particular interest in the

12

parties or subject matter, the plaintiff’s choice is only entitled to minimal consideration.” Stay-

13

Dri Continence Mgmt. Sys., 2008 WL 4304604 at *2 (quoting Pacific Car & Foundry Co. v.

14

Pence, 403 F.2d 949, 954 (9th Cir. 1968)) (internal quotations omitted). The Complaint contains

15

no allegations indicating a particularized interest of either the parties or subject matter in the

16

Eastern District. Indeed, one of the main field offices allegedly impacted by the California laws

17

at issue is in San Francisco, which is located in the Northern District. Homan Decl. ¶ 21.

18

Moreover, California statutes apply statewide and, as discussed infra, the parties and witnesses

19

are located throughout California and out-of-state. See Dkt. Nos. 2-2, 2-3, 2-4, 2-5. The federal

20

government’s choice of forum is therefore not controlling here.

21
22
23

C.

The Federal Government’s Choice of Forum Is Not Controlling Here

The Convenience of the Parties and Witnesses and the Ease of Access to
Evidence Further Weigh in Favor of Transfer

The convenience of the parties and witnesses also weigh in favor of transfer. The federal

24

government is located in the District of Columbia and has alleged no significant contacts with the

25

Eastern District in this case. In fact, the federal government’s witnesses and counsel are located

26

District’s average of 1,246 pending actions per judgeship. See RJN, Exs. H and I (U.S. District
Courts, National Judicial Caseload Profiles); Stay-Dri Continence Mgmt. Sys., LLC, 2008 WL
4304604 at *4 (finding relevant that the Eastern District has a “significantly larger caseload” than
transferee forum). This factor therefore also weighs in favor of transfer to the Northern District.

27
28

10
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

1

in the District of Columbia and San Diego. See generally Homan Decl., Dkt. No. 2-2;

2

Declaration of Todd Hoffman, Dkt. No. 2-3; Declaration of Chief Rodney S. Scott, Dkt. No. 2-4;

3

Declaration of Carl C. Risch, Dkt. No. 2-5. Thus, they will be required to travel a nearly identical

4

distance regardless of whether the case proceeds in the Eastern or Northern District. See Am.

5

Canine Found., 2006 U.S.Dist.LEXIS 55787 at *11-*12. Furthermore, the documentary

6

evidence in both cases will likely be located in the District of Columbia and in various locations

7

throughout California.

8
9
10

III. THE FIRST-TO-FILE RULE ADDITIONALLY SUPPORTS TRANSFERRING THIS CASE
TO THE NORTHERN DISTRICT
The “first-to-file” rule further supports transferring this case to the Northern District. A

11

district court may decline jurisdiction over an action when a complaint involving the same parties

12

and issues has already been filed in another district. Pacesetter Systems, Inc., 678 F.2d at 94-95

13

(“Normally sound judicial administration would indicate that when two identical actions are filed

14

in courts of concurrent jurisdiction, the court which first acquired jurisdiction should try the

15

lawsuit and no purpose would be served by proceeding with a second action.”). The rule is meant

16

to promote efficiency and sound judicial administration and “should not be disregarded lightly.”

17

Id. at 95 (quoting Church of Scientology v. U.S. Dep’t of the Army, 611 F.2d 738, 750 (9th Cir.

18

1979)). The court considers three factors when evaluating whether to apply the first-to-file rule:

19

“(1) the chronology of the two actions; (2) the similarity of the parties; and (3) the similarity of all

20

the issues.” Taylor v. AlliedBarton Sec. Serv. LP, 2014 WL 1329415, *7 (E.D.Cal. Apr. 1, 2014)

21

(citing Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 625-26 (9th Cir. 1991)). Strict

22

identity of the parties and identical issues in the cases are not required; rather, they must be

23

“substantially similar.” Id. at *7-*8.

24

All three factors are met here.

25

First, the chronology of the actions supports transfer of this action because California v.

26

Sessions was filed on August 14, 2017. See RJN, Ex. A (California v. Sessions Docket). The

27

State filed its amended complaint seeking a declaration that the State’s laws comply with § 1373

28

as properly interpreted and construed by its plain text and under the Tenth Amendment on
11
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

1

October 13, 2017. This action was filed nearly five months later on March 6, 2018. Thus, the

2

first factor weighs in favor of applying the first-to-file rule.

3

Second, the parties in both cases are the same: the State and the federal government.

4

Third, the issues are substantially similar and in the case of the federal government’s third

5
6

cause of action relating to SB 54, they are identical.
As discussed supra, the central issue in both cases concerns the limits of the federal

7

government’s immigration powers as they relate to the State’s constitutional police powers to

8

enact laws to protect public safety and the welfare of its residents. Transfer of this case will avoid

9

duplication of litigation and allow one court to adjudicate common legal issues. Thus, the Court

10

should apply the first-to-file rule, decline to exercise its jurisdiction over this action, and transfer

11

this case to the Northern District.
CONCLUSION

12
13
14

For the foregoing reasons, Defendants respectfully request that this Court grant their motion
to transfer this case to the Northern District of California.

15
16

Dated: March 13, 2018

Respectfully Submitted,

17

XAVIER BECERRA
Attorney General of California

18
19
20

/s/Christine Chuang
Christine Chuang
Deputy Attorney General
Attorneys for Defendants

21
22
23
24
25
26
27
28
12

Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)

CERTIFICATE OF SERVICE

1
2

I hereby certify that I electronically transmitted the foregoing document using the U.S.

3

District Court for the Eastern District of California’s Electronic Document Filing System (ECF)

4

on March 13, 2018 and that service on all counsel of record will be accomplished by the ECF

5

system.

6
7

/s/Christine Chuang
Christine Chuang
Deputy Attorney General

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Defs.’ Mot. Transfer Venue to N.D. Cal.; Mem. P.& A. (18-cv-00490-JAM-KJN)