United States of America v. State of California et al

Filing 25

OPPOSITION by United States of America to 18 Motion to Transfer Venue. (Attachments: # 1 Exhibit A)(Press, Joshua)

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1 2 3 4 CHAD A. READLER Acting Assistant Attorney General MCGREGOR SCOTT United States Attorney AUGUST FLENTJE Special Counsel 5 6 7 8 9 10 11 12 13 14 15 16 WILLIAM C. PEACHEY Director EREZ REUVENI Assistant Director DAVID SHELLEDY Civil Chief, Assistant United States Attorney LAUREN C. BINGHAM JOSEPH A. DARROW JOSHUA S. PRESS Trial Attorneys United States Department of Justice Civil Division P.O. Box 868, Ben Franklin Station Washington, DC 20044 Telephone: (202) 305-0106 Facsimile: (202) 305-7000 e-Mail: joshua.press@usdoj.gov 17 Attorneys for the United States of America 18 UNITED STATES DISTRICT COURT 19 FOR THE EASTERN DISTRICT OF CALIFORNIA 20 NO. 2:18–CV–00490-JAM-KJN 21 22 23 24 25 UNITED STATES OF AMERICA, Plaintiff, v. STATE OF CALIFORNIA, et al., Defendants. PLAINTIFF’S OPPOSITION TO DEFENDANTS’ MOTION TO TRANSFER VENUE TO THE NORTHERN DISTRICT OF CALIFORNIA Judge: Hon. John A. Mendez 26 NO HEARING NOTICED 27 28 Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 1 TABLE OF CONTENTS 2 INTRODUCTION......................................................................................................................... 1 3 BACKGROUND ........................................................................................................................... 2 4 I. The Procedural Background Of Becerra................................................................. 2 5 II. The Procedural Posture Of This Case. .................................................................... 3 6 LEGAL STANDARDS ................................................................................................................. 4 7 ARGUMENT ................................................................................................................................. 5 8 I. There Is No Reason Why This Case Should Be Transferred Under 28 U.S.C. 9 §1404(a) ...................................................................................................................... 5 10 A. The Relevant Events Giving Rise To This Suit Occurred In This District .... 6 11 B. The United States’ Choice Of Forum Is Entitled To “Great Weight” .......... 6 12 C. This Case’s Contacts Are Strongest In This District .................................... 7 13 D. The Other Jones Factors Weigh In Favor Of This District ......................... 8 14 E. The Interests Of Justice Favor Venue In This District ............................................ 9 15 II. The First-To-File Rule Also Does Not Support Transfer... ................................... 13 16 A. The Issues In Becerra Are Distinct ............................................................. 13 17 B. Principles Of Equity Counsel Against Defendants’ Forum Shopping ....... 14 18 CONCLUSION ........................................................................................................................... 15 19 20 21 22 23 24 25 26 27 28 Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue i 1 TABLE OF AUTHORITIES 2 CASES 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 Adoma v. Univ. of Phoenix, Inc., 711 F. Supp. 2d 1142 (E.D. Cal. 2010) ............................................................................... 4, 5, 9 Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622 (9th Cir. 1991) ..................................................................................................... 13 Apple Inc. v. Psystar Corp., 658 F.3d 1150 (9th Cir. 2011) ............................................................................................... 5, 14 Cal. Writer’s Club v. Sonders, No. 11-cv-02566, 2011 WL 4595020 (N.D. Cal. Oct. 3, 2011)................................................................................ 9 Cedars-Sinai Medical Ctr. v. Shalala, 125 F. 3d 765 (9th Cir. 1997) .............................................................................................. 13, 14 CFTC v. Savage, 611 F.2d 270 (9th Cir. 1979) ....................................................................................................... 5 Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017) ....................................................................................... 15 Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834 (9th Cir. 1986) ....................................................................................................... 5 DeFazio v. Hollister Emp. Share Ownership, 406 F. Supp. 2d 1085 (E.D. Cal. 2005).................................................................................... 6, 8 E & J Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465 (E.D. Cal. 1994)............................................................................................... 8 Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ............................................................................................................... 5, 13 Hendricks v. Starkist Co., No. 13-cv-0729, 2014 WL 1245880 (N.D. Cal. Mar. 25, 2014) ........................................................................... 13 Huddleston v. John Christner Trucking, LLC, No. 17-cv-00925, 2017 WL 4310348 (E.D. Cal. Sept. 27, 2017)........................................................................... 13 Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue ii 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 Johnson v. Experian Info. Sols., Inc., No. 12-cv-0230, 2012 WL 5292955 (C.D. Cal. Sept. 5, 2012) .............................................................................. 9 Jones v. GNC Franchising, Inc., 211 F.3d 495 (9th Cir. 2000) ............................................................................................... 5, 6, 8 Knapp v. Depuy Synthes Sales, Inc., 983 F. Supp. 2d 1171 (E.D. Cal. 2013)...................................................................................... 14 Lighting Sci. Grp. Corp. v. U.S. Philips Corp., No. 08-cv-2238, 2009 WL 10694995 (E.D. Cal. Feb. 3, 2009) ............................................................................ 14 Lou v. Belzberg, 834 F.2d 730 (9th Cir. 1987) ....................................................................................................... 6 Luchini v. Carmax, Inc., No. 12-cv-0417, 2012 WL 2401530 (E.D. Cal. June 25, 2012) ............................................................................. 5 McCormack v. Medcor, Inc., No. 13-cv-02011, 2014 WL 1934193 (E.D. Cal. May 14, 2014) ............................................................................. 6 Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93 (9th Cir. 1982) ................................................................................................... 5, 14 Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981) ..................................................................................................................... 8 Roling v. E*Trade Secs., LLC, 756 F. Supp. 2d 1179 (N.D. Cal. 2010) ..................................................................................... 13 Safarian v. Maserati N.A, Inc., 559 F. Supp. 2d 1068 (C.D. Cal. 2008) ....................................................................................... 9 NFIB v. Sebelius, 567 U.S. 519 (2012) ................................................................................................................... 11 South Dakota v. Dole, 483 U.S. 203 (1987) ................................................................................................................... 11 Stay-Dri Continence Mgmt. Sys., LLC v. Haire, No. 08-cv-1386, 2008 WL 4304604 (E.D. Cal. Sept. 10, 2008) ....................................................................... 7, 13 Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue iii 1 2 3 4 5 6 7 8 9 10 Summers v. Earth Island Inst., 555 U.S. 488 (2009) ................................................................................................................... 12 Tittl v. Hilton Worldwide, Inc., No. 12-cv-2040, 2013 WL 1087730 (E.D. Cal. Mar. 14, 2013) ............................................................................. 9 Van Dusen v. Barrack, 376 U.S. 612 (1964) ................................................................................................................... 12 Wordtech Sys., Inc. v. Integrated Network Sols., Corp., No. 04-cv-1971, 2014 WL 2987662 (E.D. Cal. July 1, 2014) ............................................................................ 7, 9 Xoxide, Inc. v. Ford Motor Co., 448 F. Supp. 2d 1188 (C.D. Cal. 2006) ............................................................................... 13, 15 11 STATUTES 12 8 U.S.C. § 1373 ................................................................................................................... 2, 11, 12 13 28 U.S.C. § 1404(a) ............................................................................................................... 1, 4, 5 14 Cal. Gov’t Code § 450 .................................................................................................................... 6 15 Cal. Gov’t Code § 1060 .................................................................................................................. 6 16 Cal. Gov’t Code § 7282 .................................................................................................................. 3 17 Cal. Gov’t Code § 7283 .................................................................................................................. 3 18 Cal. Gov’t Code § 7284 .................................................................................................................. 3 19 OTHER AUTHORITIES 20 California Code of Civil Procedure § 155 ...................................................................................... 3 21 California Penal Code § 422.93 ...................................................................................................... 3 22 California Penal Code § 679.10 ...................................................................................................... 3 23 California Penal Code § 679.11 ...................................................................................................... 3 24 California Welfare and Institutions Code § 827 ............................................................................. 3 25 California Welfare and Institutions Code § 831 ............................................................................. 3 26 27 28 Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue iv 1 INTRODUCTION 2 The United States of America hereby opposes the Motion to Transfer Venue filed by 3 California and the other State Defendants (ECF No. 18) (hereinafter, “Defendants’ Motion” or 4 “Defs.’ Mot.”). Remarkably, California seeks to transfer consideration of this matter away from 5 this district, where the state laws at issue were enacted and where the government officials 6 charged with enforcing them—the Governor and the Attorney General—reside. Venue is plainly 7 appropriate here, and transfer under 28 U.S.C. § 1404(a) is inappropriate given that this is the 8 district with by far the strongest ties to all of the Defendants. Given that, the United States’ choice 9 to file suit challenging California’s laws in its own state capital is entitled to not only great weight, 10 but overwhelming weight. California’s motivation seems to be to select a forum that it believes 11 will be more favorable. But that will only delay consideration of the United States’ preliminary 12 injunction motion—where the United States has identified the legal flaws in, and the ongoing 13 harm caused by, the three challenged California laws, including the provisions that require local 14 California law enforcement agencies to release, with no notice to the Department of Homeland 15 Security (“DHS”), removable aliens arrested for criminal violations. The laws result in the need 16 for DHS to conduct dangerous at-large apprehensions and increase the risk of criminal recidivism 17 by aliens who are not in the country lawfully. Defendants’ Motion should thus be denied. 18 Tethering this case to a narrow lawsuit regarding federal law enforcement grants, 19 Defendants’ Motion contends that the purportedly related litigation in San Francisco “turn[s] on 20 the interplay between the federal government’s power over immigration and the states’ police 21 powers under the Tenth Amendment.” Defs.’ Mot. at 1. That is simply not correct. Instead, the 22 San Francisco litigation, which involves claims from both California and San Francisco, concerns 23 the scope of the Attorney General’s authority to impose conditions on two federal law 24 enforcement grants, as measured by federal grant statutes and the Spending Clause. See California 25 ex rel. Becerra v. Sessions, No. 17-cv-04701 (N.D. Cal.). This case, on the other hand, asks 26 whether three unusual and newly enacted state immigration laws violate the Supremacy Clause. 27 It is very well established that under the Spending Clause, Congress can, with certain limitations, 28 offer funding to the States to carry out duties set forth in federal law; making inapplicable the Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 1 1 types of limits the Tenth Amendment might impose on direct regulation of the States. The 2 Supremacy Clause issues, on the other hand, have nothing to do with federal grants or Congress’ 3 Spending Clause power. Rather, this case will address whether the three California laws stand as 4 an obstacle to the accomplishment of Congress’ objectives. It is entirely unrelated to limits on 5 federal enactments. The legal questions in the two cases are entirely distinct, and the premise of 6 California’s motion is incorrect. 7 Furthermore, the only potential legal issue in common—whether two provisions of Senate 8 Bill 54 (“SB 54”) that bar information-sharing are in conflict with 8 U.S.C. § 1373—are discrete 9 aspects of each case and will not necessarily be resolved in either case. The two suits cannot result 10 in conflicting obligations imposed on the parties as the San Francisco cases will at most address 11 the conditions imposed on the specific grants at issue there, which are not at issue here. Relief in 12 this Court would be entirely different, and the United States does not read California’s motion to 13 suggest otherwise. As Judge Orrick recognized in rejecting the effort of another plaintiff to 14 intervene, venue “rules result in different lower courts deciding similar legal issues, sometimes 15 with divergent results. Such differences are appropriately reconciled by higher courts.” City & 16 Cty. of San Francisco v. Sessions, No. 17-cv-4642 (N.D. Cal.), ECF No. 39, at 2. 17 18 BACKGROUND I. The Procedural Background Of Becerra. 19 In 2016, the United States Department of Justice began requiring applicants for Edward 20 Byrne Memorial Justice Assistance Grants to certify compliance with the immigration- 21 information sharing requirements of 8 U.S.C. § 1373. See Becerra, No. 17-cv-4701 (N.D. Cal.), 22 ECF Nos. 27-2 and 27-3. California certified compliance in 2016 for the upcoming grant year. In 23 Summer 2017, the Department of Justice indicated that it would add two additional conditions to 24 those grants, requiring grant recipients to permit DHS access to prison facilities to interview aliens 25 and to provide “as much advance notice as practicable” before detained aliens were released. 26 On August 11, 2017, the City of San Francisco filed a complaint for declaratory and 27 injunctive relief challenging these three conditions, San Francisco, No. 17-cv-4642 (N.D. Cal.), 28 ECF No. 1, and Defendant Becerra filed a similar lawsuit the very next day challenging the Byrne Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 2 1 JAG conditions as well as a similar condition imposed on the Justice Department Community 2 Oriented Policing Services grant, see Becerra, No. 17-cv-4701 (N.D. Cal.), ECF No. 1. In the 3 introduction to its complaint, California explained that the “Administration has threatened to 4 withhold congressional appropriated federal funds” and “faces the immediate prospect of losing 5 $31.1 million between two federal grants.” Id. ¶ 1. Three days after filing suit, Defendant Becerra 6 moved to relate his case to San Francisco’s. See San Francisco, No. 17-cv-4642 (N.D. Cal.), ECF 7 No. 17. In that motion, Becerra explained that “both [cases are] challenging the federal 8 government’s ongoing attempts to use access to federal funds as a method of forcing states and 9 local law enforcement into adopting federal immigration enforcement priorities.” Id. at 2. The 10 United States agreed that the two cases were related, and the district court issued an order to that 11 effect. Id. at ECF No. 32. 12 On October 31, 2017, Defendant Becerra moved for a preliminary injunction, arguing that 13 the State’s potential loss of JAG and COPS grants violates the Spending Clause and the 14 Administrative Procedure Act (“APA”). Alternatively, he sought an order enjoining the 15 Department of Justice from finding that any of several state laws violate grant conditions relating 16 to Section 1373 in either the Byrne JAG or COPS programs.1 The Department of Justice opposed 17 the motion for a preliminary injunction and moved to dismiss both complaints in mid-January 18 2018. See Becerra, No. 17-cv-4701 (N.D. Cal.), ECF Nos. 42 & 77; San Francisco, No. 17-cv- 19 4642 (N.D. Cal.), ECF No. 66. The district court denied all three motions on March 5, 2018. See 20 San Francisco, No. 17-cv-4642 (N.D. Cal.), ECF No. 78; Becerra, No. 17-cv-4701 (N.D. Cal.), 21 ECF Nos. 88 & 89. Both cases are still at the pleadings stage. 22 II. The Procedural Posture Of This Case. 23 On March 6, 2018, the United States filed the instant lawsuit and accompanying motion 24 for a preliminary injunction. The United States’ motion and Complaint focus on three California 25 statutes that are invalid under the Supremacy Clause: specifically, the “Immigrant Worker 26 27 28 1 That is, California’s “TRUST Act,” Cal. Gov’t Code §§ 7282-7282.5; the “TRUTH Act,” Cal. Gov’t Code §§ 7283–7283.2; the “California Values Act,” Cal. Gov’t Code §§ 7284– 7284.12; California Penal Code §§ 422.93, 679.10, or 679.11; California Code of Civil Procedure § 155; or California Welfare and Institutions Code §§ 827 or 831. Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 3 1 Protection Act,” Assembly Bill 450 (“AB 450”); Assembly Bill 103 (“AB 103”); and SB 54, 2 which includes the “California Values Act.” The United States has sought a judgment that these 3 laws violate the Supremacy Clause, and a preliminary injunction against their enforcement due 4 to the irreparable harm they have had upon the United States’ ability to enforce immigration laws. 5 The United States’ lawsuit has nothing to do with grants, the Spending Clause, the APA, 6 or any of the other non-immigration related laws at issue in Becerra. And unlike that case, where 7 the district court specifically ruled that further factual development of the record should proceed, 8 factual development is not required to evaluate the three laws challenged in this litigation under 9 the Supremacy Clause—instead, those are purely legal issues. Simply put, Becerra is about 10 federal grant conditions, whether they may be imposed under specific federal grant programs and 11 the Spending Clause, and whether California is complying with those conditions. This case is 12 about California laws enacted to “protect[] immigrants from … federal immigration 13 enforcement[.]” California Committee on the Judiciary Report (Assembly), Apr. 22, 2017, at 1. 14 LEGAL STANDARDS 15 Section 1404(a) states: “For the convenience of parties and witnesses, in the interest of 16 justice, a district court may transfer any civil action to any other district or division where it might 17 have been brought.” 28 U.S.C. § 1404(a). Courts consider two prongs when ruling on a motion 18 to transfer: (1) the district where transfer is sought must be one where the case might have been 19 brought, and (2) transfer must be convenient for the parties and witnesses, as well as in the 20 interests of justice. Adoma v. Univ. of Phoenix, Inc., 711 F. Supp. 2d 1142, 1151 (E.D. Cal. 2010). 21 Since Jones v. GNC Franchising, Inc., courts consider the following convenience factors: 22 (1) the location where the relevant agreements were negotiated and executed, (2) 23 the state that is most familiar with the governing law, (3) the plaintiff’s choice of 24 forum, (4) the respective parties’ contacts with the forum, (5) the contacts relating 25 to the plaintiff’s cause of action in the chosen forum, (6) the differences in the costs 26 of litigation in the two forums, (7) the availability of compulsory process to compel 27 attendance of unwilling non-party witnesses, and (8) the ease of access to sources 28 of proof. Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 4 1 211 F.3d 495, 498–99 (9th Cir. 2000). The burden is on the moving party to demonstrate that the 2 balance of conveniences favors the transfer. CFTC v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). 3 “A plaintiff’s choice of forum is rarely disturbed, unless the balance is strongly in favor of the 4 defendant.” Adoma, 711 F. Supp. 2d at 1151 (emphasis added) (citing Gulf Oil Corp. v. Gilbert, 5 330 U.S. 501, 508 (1947)); Luchini v. Carmax, Inc., No. 12-cv-0417, 2012 WL 2401530, at *3 6 (E.D. Cal. June 25, 2012) (same). Boiled down, a defendant “must make a strong showing of 7 inconvenience to warrant upsetting the plaintiff’s choice of forum.” Decker Coal Co. v. 8 Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986)). 9 Under the separate first-to-file rule, a court may “decline jurisdiction over an action when 10 a complaint involving the same parties and issues has already been filed in another district.” Apple 11 Inc. v. Psystar Corp., 658 F.3d 1150, 1161 (9th Cir. 2011) (quotation and citation omitted). This 12 normally happens “when two identical actions are filed in courts of concurrent jurisdiction.” 13 Pacesetter Sys., Inc. v. Medtronic, Inc., 678 F.2d 93, 95 (9th Cir. 1982) (emphasis added). In 14 Pacesetter, “[e]xamination of the complaints filed in the[] two actions indicate[d] that the issues 15 raised [we]re identical” because “[t]he central questions in each [we]re the validity and 16 enforceability of three specific patents” and “permitting multiple litigation of these identical 17 claims could serve no purpose of judicial administration.” Id. 18 ARGUMENT 19 I. There Is No Reason Why This Case Should Be Transferred Under 28 U.S.C. § 1404(a). 20 The United States does not dispute that this action “might have been brought,” 28 U.S.C. 21 § 1404(a), in the Northern (or, for that matter, any other) District of California. But here the 22 United States followed the normal, appropriate, and, indeed, predictable practice of filing suit 23 against California in the State’s seat of its government: Sacramento, in the Eastern District of 24 California. That determination should be honored absent compelling circumstances. First, the 25 events giving rise to this suit all took place in this District. Second, the choice of forum should be 26 given great weight and, in these circumstances, that weight should be dispositive. Third, all of the 27 Defendants reside in this district. Fourth, the various cost factors militate strongly toward 28 retaining the case. And finally, the interests of justice call for maintaining the case here, as nothing Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 5 1 about the San Francisco litigations—which were combined before a single judge to address issues 2 pertaining to federal grant law and the Spending Clause—justifies a transfer of this case, which 3 concerns a Supremacy Clause challenge to California state laws which have nothing to do with 4 federal grant law or the Spending Clause. 5 A. The Relevant Events Giving Rise To This Suit Occurred In This District. 6 The first venue factor weighs overwhelmingly in favor of retaining jurisdiction in this 7 District, as all of the Defendants reside here and the events—the enactment and execution of the 8 State laws at issue—also occurred here. Indeed, it is curious that Defendants would seek to 9 transfer venue away from this State’s capital given that “venue is proper inasmuch as Sacramento 10 is the seat of government for the State of California, Cal. Gov’t Code § 450 … [when] the named 11 defendants are being sued in their official capacities as constitutional officers of the State of 12 California, Cal. Gov’t Code § 1060.” H.J. Justin & Sons, Inc. v. Brown, 519 F. Supp. 1383, 1385 13 (E.D. Cal. 1981), aff’d in part, rev’d in part, 702 F.2d 758 (9th Cir. 1983). The laws were debated 14 in Sacramento, enacted in Sacramento, and enforced in Sacramento for the express purpose of 15 frustrating and obstructing federal immigration enforcement. This is directly related to the first of 16 the Jones convenience factors—“the location where the relevant [statute] w[as] negotiated and 17 executed.” 211 F.3d at 498. As the United States explained in its Complaint, “a substantial part 18 of the acts or omissions giving rise to this Complaint arose from events occurring within this 19 judicial district.” ECF No. 1 ¶ 9. That is undeniable, and Defendants’ Motion makes no argument 20 against this critical first factor weighing in favor of the United States. 21 B. The United States’ Choice Of Forum Is Entitled To “Great Weight.” 22 The next relevant (third) Jones factor concerns a plaintiff’s choice of forum. “In this 23 circuit, a plaintiff’s choice of forum is generally granted great weight[.]” DeFazio v. Hollister 24 Emp. Share Ownership, 406 F. Supp. 2d 1085, 1089 (E.D. Cal. 2005) (citing Lou v. Belzberg, 834 25 F.2d 730, 739 (9th Cir. 1987)); accord McCormack v. Medcor, Inc., No. 13-cv-02011, 2014 WL 26 1934193, at *4 (E.D. Cal. May 14, 2014) (Mendez, J.) (“As is always the case, Plaintiff’s choice 27 of forum is entitled to consideration.”). California argues that the United States’ Complaint 28 “contains no allegations indicating a particularized interest of either the parties or subject matter Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 6 1 in the Eastern District.” Defs.’ Mot. at 10. Not so. In reality, the United States sued California in 2 its state capital, where the challenged laws were enacted, where the state official Defendants— 3 the Governor and the Attorney General—reside, and where state officials have spoken on the 4 laws, described their purpose, and discussed how they would be enforced. The choice of venue 5 here—the Defendants’ home jurisdiction, is indisputably the jurisdiction where the challenged 6 acts occurred and that is most closely tied to every Defendant—is a choice that shows the utmost 7 of intergovernmental comity. Moreover, the U.S. Attorney in this District and his staff have 8 expended significant resources in this matter; the Northern District, on the other hand, has had no 9 involvement. This factor weighs strongly in favor of retaining jurisdiction in the Eastern District. 10 In arguing to the contrary, California appears to misunderstand this Court’s decision in 11 Stay-Dri Continence Mgmt. Sys., LLC v. Haire. No. 08-cv-1386, 2008 WL 4304604, at *2 (E.D. 12 Cal. Sept. 10, 2008) (Mendez, J.). In Stay-Dri, this Court discounted the plaintiffs’ choice of 13 forum because “only one of the Plaintiffs resides permanently in the Eastern District … and 14 because Plaintiffs have not demonstrated that significant [contract] negotiations took place in the 15 District[.]” Id. Neither of these concerns are present here because (1) the United States has had a 16 permanent presence in Sacramento since 1850, and (2) the three challenged laws were each 17 conceived, enacted, and are enforced by state government officials within this very district. These 18 are exceptionally strong ties to the Eastern District—and no discounting of the choice of forum 19 as occurred in Stay-Dri is therefore justified. And even there, this Court ruled that “Plaintiffs’ 20 choice of forum weighs against transfer.” Id. Defendants have thus failed “to present strong 21 grounds” on this factor and the United States’ choice of forum is entitled to deference. Wordtech 22 Sys., Inc. v. Integrated Network Sols., Corp., No. 04-cv-1971, 2014 WL 2987662, at *5 (E.D. Cal. 23 July 1, 2014) (internal quotations omitted). 24 C. This Case’s Contacts Are Strongest In This District. 25 The fourth and fifth Jones factors concern the contacts of the respective parties and the 26 plaintiff’s cause of action in the chosen forum. As previously explained, the parties’ strongest 27 contacts are in this District, given that it contains the seat of California’s government. Moreover, 28 the cause of action arose within this district because it is undisputed that California legislators Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 7 1 wrote, debated, voted upon, and eventually passed AB 450, AB 103, and SB 54 within 2 Sacramento—not San Francisco. And the state officials charged with putting these laws into 3 execution—the Governor and Attorney General—reside here. In other words, “the operative facts 4 have … occurred within the forum and the forum has [a strong] interest in the parties or subject 5 matter.” DeFazio, 406 F. Supp. 2d at 1088. That is clearly the case here, in particular, given that 6 the United States challenges the constitutionality of three California laws enforced from this 7 District in buildings blocks from this courthouse. It is therefore most appropriate that the 8 constitutionality of California’s laws be decided in their own “home forum.” Piper Aircraft Co. 9 v. Reyno, 454 U.S. 235, 256 (1981). Defendants’ Motion completely ignores these factors—both 10 of which weigh in favor retaining jurisdiction. 11 D. The Other Jones Factors Weigh In Favor Of This District. 12 The final three Jones factors, “(6) the differences in the costs of litigation in the two 13 forums, (7) the availability of compulsory process to compel attendance of unwilling non-party 14 witnesses, and (8) the ease of access to sources of proof,” 211 F.3d at 498–99, also weigh in favor 15 of retaining jurisdiction. Although Defendants’ Motion states that these convenience factors 16 “weigh in favor of transfer,” they fail to identify a single party or witness to support that assertion. 17 That “does not bear [Defendants’] heavy burden of showing a strong balance of convenience” to 18 justify a transfer. E & J Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465, 467 (E.D. Cal. 1994). 19 These convenience and cost factors strongly suggest retaining jurisdiction. The named 20 Defendants, Governor Brown and Attorney General Becerra, can hardly argue that it is more 21 convenient or less costly for them and their employees to travel some 90 miles to San Francisco 22 rather than walk a few city blocks to this courthouse for proceedings. It is likewise inexplicable 23 for Defendants to claim that “[t]he federal government is located in the District of Columbia and 24 has alleged no significant contacts with the Eastern District[.]” Defs.’ Mot. at 10. It is true that 25 the seat of the federal government is located in the District of Columbia, and this might be of 26 importance if this suit had been filed in Washington, D.C., rather than in the Defendants’ seat of 27 government. The federal government, of course, is also located within the Eastern District— 28 evidenced, for example, by the presence of the U.S. Attorney, the work his office has already Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 8 1 done on this case, and the work of other federal officers. 2 Additionally, Defendants’ Motion completely fails to identify which witnesses, if any, 3 would be inconvenienced by the United States’ choice of the Eastern District. See, e.g., Wordtech, 4 2014 WL 2987662, at *6; Adoma, 711 F. Supp. 2d at 1151 (“The party moving for transfer must 5 demonstrate, through affidavits or declarations containing admissible evidence, who the key 6 witnesses will be and what their testimony will generally include.”); see also Johnson v. Experian 7 Info. Sols., Inc., No. 12-cv-0230, 2012 WL 5292955, at *3 (C.D. Cal. Sept. 5, 2012) (same); Cal. 8 Writer’s Club v. Sonders, No. 11-cv-02566, 2011 WL 4595020, at *14 (N.D. Cal. Oct. 3, 2011) 9 (denying a defendant’s transfer motion when it provided only “vague and conclusory assertions 10 regarding the inconvenience of participating in litigation”). The same point is true regarding 11 Defendants’ assertion that “the documentary evidence in both cases will likely be located in the 12 District of Columbia and in various locations throughout California.” Defs.’ Mot. at 11. 13 Defendants do not propose a transfer to the District of Columbia, and the fact that there is 14 documentary evidence “throughout California” supports keeping the case here. If anything, venue 15 in this Court is the most convenient for all parties. The documents concerning the creation and 16 enforcement of AB 450, AB 103, and SB 54 are controlled by offices within this district and many 17 of the Defendants’ witnesses are already here for governmental business. See Safarian v. Maserati 18 N.A, Inc., 559 F. Supp. 2d 1068, 1072 (C.D. Cal. 2008); Adoma, 711 F. Supp. 2d at 1151. The 19 Jones convenience factors weigh in favor of this district. 20 E. The Interests Of Justice Favor Venue In This District. 21 Defendants’ assertion that transfer is “in the interests of justice … because it involves the 22 same parties and overlapping issues” as the cases filed in San Francisco is similarly meritless. 23 Defs.’ Mot. at 8. In evaluating the interests of justice, courts consider factors such as the existence 24 of a pending related action in the forum to which transfer has been proposed and the differences 25 in litigation in each forum, including court congestion and time to trial. See Tittl v. Hilton 26 Worldwide, Inc., No. 12-cv-2040, 2013 WL 1087730, at *5–6 (E.D. Cal. Mar. 14, 2013). 27 Defendants argue that there would be cost savings if this lawsuit were consolidated with Becerra 28 because it involves “the same fundamental legal issue.” Defs.’ Mot. at 9. But as California itself Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 9 1 explained just a few weeks ago to Judge Orrick, Becerra is about the Spending Clause and Byrne 2 JAG grants: “This case is fundamentally about [the Attorney General of the United States’] 3 attempt to legislate from the Executive Branch. These are not conditions that were imposed by 4 Congress. And here—and in three different respects—[he] ha[s] attempted to insert [his] own 5 immigration-enforcement preferences into [a] federal [grant] statute.” Plaintiff’s Exhibit A at 20. 6 Likewise, when California sought to relate Becerra to San Francisco, the State explained: 7 Both San Francisco and California are challenging the constitutionality of the 8 access and notification conditions [included in Byrne JAG grants] on substantially 9 similar grounds. ... California alleges the same causes of actions, and makes 10 substantially similar constitutional arguments that Defendants exceeded the 11 statutory authority given to the executive branch in imposing the access and 12 notification conditions. ... Both cases name as defendants United States Attorney 13 General Jefferson B. Sessions, Acting Assistant Attorney General Alan R. Hanson, 14 and USDOJ. Both San Francisco and California are asking the Court to declare the 15 access and notification conditions unconstitutional and to enjoin the Defendants 16 from using the conditions as a funding restriction for JAG awards. 17 San Francisco, No. 17-cv-4642 (N.D. Cal.), ECF No. 17 at 3. Critically, none of the factors 18 California itself identified as justifying related case treatment in that case is present here: this case 19 does not “challenge ... the ... conditions” on Byrne JAG grants. Id. This case does not include 20 “similar ... arguments that [the Department of Justice] exceeded ... statutory authority given to the 21 executive branch in imposing” the conditions. Id. This case does not involve the “Attorney 22 General[.] ... Acting Assistant Attorney General, and USDOJ” as parties. And this case does not 23 involve a request that the Court “declare the ... [grant] conditions unconstitutional.” Id. 24 Unlike Becerra’s central focus, this case has nothing to do with Byrne JAG grants or the 25 Spending Clause; it is exclusively focused on whether three California laws are invalid under the 26 Supremacy Clause. The legal questions are not the same. In the Byrne JAG case, the court must 27 decide whether (1) Congress authorized the Attorney General to impose immigration-related 28 conditions on the Byrne JAG grants, (2) the Attorney General acted arbitrarily and capriciously Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 10 1 under the APA in imposing those conditions, and (3) the Spending Clause permits imposition of 2 the conditions under its four-part test. Under that test, the court will ask whether the conditions 3 (a) are “in pursuit of ‘the general welfare,’” (b) are “unambiguous[] ... enabl[ing] the States to 4 exercise their choice knowingly,” (c) are “[]related ‘to the federal interest’” furthered by the 5 program, and (d) do not violate a separate constitutional provision. South Dakota v. Dole, 483 6 U.S. 203, 207–08 (1987). The financial inducement also cannot be “so coercive as to pass the 7 point as which ‘pressure turns into compulsion.’” NFIB v. Sebelius, 567 U.S. 519, 580 (2012) 8 (quoting Dole, 483 U.S. at 211). These questions are entirely distinct from those asked when 9 applying the Supremacy Clause—which asks whether state laws stand as an obstacle to the 10 accomplishment of Congress’ objectives—or the defenses that California might raise under the 11 Tenth Amendment, which are not implicated in Spending Clause cases. See Dole, 483 U.S. at 210 12 (“conditions legitimately placed on federal grants” do not implicate “Tenth Amendment 13 limitation[s] on … regulation of state affairs” because “the State could … adopt the simple 14 expedient of not” accepting the grant (internal quotation marks omitted)). 15 Judge Orrick’s recent preliminary injunction ruling underscores these differences. In that 16 ruling, the Court concluded that it had jurisdiction over the case based solely on the potential loss 17 of grant funds under the Byrne JAG and COPS programs. See Order at 17 (the “State claims that 18 the federal government threatens to penalize it ... by withholding the COPS grant and the Byrne 19 JAG Program grant” and this potential “‘loss of funds ... satisfies Article III’s standing 20 requirement’”). And in declining to grant relief, Judge Orrick further explained that “the question 21 I decide is narrow: is the State entitled to a preliminary injunction to require the federal 22 government to fund a $1 million law enforcement grant that it has held up because it appears 23 likely to decide that the State is not complying with 8 U.S.C. § 1373.” Thus, while California 24 seeks to expand the scope of that litigation through the instant motion, it has up to now been 25 focused on the lawfulness of, and compliance with, Department of Justice grant conditions. 26 Even disregarding these overarching differences in the two cases, only one of the three 27 California laws being challenged here overlaps with any of the laws at issue in Becerra—SB 54— 28 and even there, the question is whether the law precludes California from qualifying for a Justice Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 11 1 Department grant that has been conditioned on compliance with 8 U.S.C. § 1373. Moreover, in 2 Becerra, California asks the Court to hold that it qualifies for a Justice Department grant even 3 though it enacted seven laws addressing law enforcement information-sharing—among them SB 4 54. The United States has not challenged six of those laws here, but is challenging two other 5 California laws—AB 450 and AB 103—that have no relevance to Becerra. With so little overlap 6 in the underlying legal issues, Section 1404(a)’s purpose of “prevent[ing] the waste of time, 7 energy and money” and “protect[ing] litigants, witnesses and the public against unnecessary 8 inconvenience and expense” will not be served. Van Dusen v. Barrack, 376 U.S. 612, 616 (1964). 9 The only potential legal issue in common—how to square two provisions of SB 54 that 10 bar information-sharing with Section 1373, which bars policies limiting information-sharing— 11 are discrete aspects of each case and will not necessarily be resolved in either case. And even if 12 the Courts reach different answers to that question, there will be no conflicting obligations 13 imposed upon the parties and the parties will not face anything different than is commonly faced 14 by large institutional litigants like the State and the United States where policies are regularly 15 tested and evaluated by multiple courts. Importantly, a ruling cannot impose conflicting 16 obligations on either party. At most, given the basis for their Article III injury, the San Francisco 17 litigation will result in an order that either dismisses the case or precludes the Department of 18 Justice from imposing certain immigration-related conditions on Byrne JAG or COPS grants. See 19 Summers v. Earth Island Inst., 555 U.S. 488, 494 (2009) (a court order that went beyond 20 remedying party’s “injury in fact” would “fly in the face of Article III’s injury-in-fact 21 requirement”). This case, on the other hand, will either be dismissed or result in a judgment that 22 one or more of the three newly-enacted California laws violate the Supremacy Clause. As Judge 23 Orrick recognized, if venue rules call for a case to be litigated elsewhere, as they do here, those 24 “rules result in different lower courts deciding similar legal issues, sometimes with divergent 25 results. Such differences are appropriately reconciled by higher courts.” San Francisco, No. 17- 26 cv-4642 (N.D. Cal.), ECF No. 39, at 2. 27 Finally, adding an entirely distinct set of constitutional issues to the litigation in San 28 Francisco will not promote judicial economy, but will be hitching a new set of issues onto cases Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 12 1 that are far down the road toward addressing the scope of the Justice Department’s grant-making 2 authority. If anything, it will only further serve to bog down cases where a plaintiff other than 3 California—San Francisco—is seeking judicial resolution. This district court recently reaffirmed 4 that “‘[a]dministrative difficulties follow for courts when litigation is piled up in congested 5 centers instead of being handled at its origin.’” Huddleston v. John Christner Trucking, LLC, No. 6 17-cv-00925, 2017 WL 4310348, at *11 (E.D. Cal. Sept. 27, 2017) (emphasis added) (quoting 7 Gulf Oil, 330 U.S. at 508). Defendants contest this maxim by pointing to the “average pending 8 actions per judgeship” between the two districts. Defs.’ Mot. at 9 n.3. That consideration is 9 relevant, of course, but is only part of the analysis. It is not merely the “average pending actions 10 per judgeship” that should be assessed, but, as this Court has stated, “[t]he interest of ensuring … 11 this matter proceeds speedily to trial[.]” Stay-Dri, 2008 WL 4304604, at *4 (emphasis added).2 12 II. The First-To-File Rule Also Does Not Support Transfer. 13 As an alternative, Defendants raise the first-to-file rule as another reason favoring transfer. 14 “Under that rule, when cases involving the same parties and issues have been filed in two different 15 districts, the second district court has discretion to transfer … the second case in the interest of 16 efficiency and judicial economy.” Cedars-Sinai Medical Ctr. v. Shalala, 125 F. 3d 765, 769 (9th 17 Cir. 1997). This is a rule of equity that requires two matters to exhibit chronology, identity of 18 parties, and similarity of issues. See Alltrade, Inc. v. Uniweld Prods., Inc., 946 F.2d 622, 625–27 19 (9th Cir. 1991). Factors such as bad faith, anticipatory suits, and forum shopping are also weighed. 20 Id. at 628; Xoxide, Inc. v. Ford Motor Co., 448 F. Supp. 2d 1188, 1992 (C.D. Cal. 2006). 21 A. The Issues In Becerra Are Distinct 22 The issues in the two cases are not similar enough for the first-to-file rule. Critically, the 23 cases where the Ninth Circuit has approved application of that rule to override a plaintiff’s choice 24 25 26 27 28 2 Where congestion statistics differ only marginally, this interest will not favor transfer. Roling v. E*Trade Secs., LLC, 756 F. Supp. 2d 1179, 1187 (N.D. Cal. 2010). Reviewing the statistics cited by Defendants bears this out—as the median time from filing to disposition for civil cases differs by only three months. See ECF No. 19-1 at 175 & 177. And when other factors do not favor transfer, court congestion is not a reason to transfer. See Hendricks v. Starkist Co., No. 13-cv-0729, 2014 WL 1245880, at *6 (N.D. Cal. Mar. 25, 2014). Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 13 1 of forum have involved identical issues. See Pacesetter, 678 F.2d at 95 (applying “when two 2 identical actions are filed in courts of concurrent jurisdiction”); Apple Inc., 658 F.3d at 1161 3 (courts may “decline jurisdiction over an action when a complaint involving the same parties and 4 issues has already been filed in another district”); Cedars-Sinai, 125 F. 3d at 768. California 5 makes no such claim here, and the United States has described above why the issues are distinct. 6 Defendants want to have this Supremacy Clause case transferred to the Northern District to relate 7 it to their case regarding the Spending Clause. But even if Becerra fully resolves all legal issues 8 surrounding SB 54 with respect to the grant condition, it will not address the Supremacy Clause 9 issues or the two other California laws that the United States is challenging. See Cedars-Sinai, 10 125 F.3d at 769 (first-to-file rule does not apply when some of the issues are different). 11 B. Principles Of Equity Counsel Against Defendants’ Forum Shopping. 12 Principles of equity are also relevant to a first-to-file inquiry. See Pacesetter, 678 F.2d at 13 95. Two aspects are relevant to Defendants’ Motion: anticipatory suits and forum-shopping. 14 Regarding the former, this district court has explained how “[a]nticipatory suits are generally not 15 entitled to deference under the ‘first to file’ rule and are disfavored[.]” Lighting Sci. Grp. Corp. 16 v. U.S. Philips Corp., No. 08-cv-2238, 2009 WL 10694995, at *3 (E.D. Cal. Feb. 3, 2009). When 17 a litigant files an action almost instantly after a predicate event, such a filing “smack[s] of forum 18 shopping.” Knapp v. Depuy Synthes Sales, Inc., 983 F. Supp. 2d 1171, 1178 (E.D. Cal. 2013). In 19 Knapp, for example, Judge Nunley was confronted with a litigant who filed for a declaratory 20 judgment action against his former employer regarding a non-compete clause. Id. This use of the 21 first-to-file rule “as a sword” was therefore rejected. Id. The same should hold true here in relation 22 to Becerra. California filed suit in Becerra before the United States took any action with respect 23 to California’s grant compliance, and now seeks to expand that suit beyond the grant context as a 24 “sword” to override the United States’ choice to sue California in its own state capital over three 25 state laws. Indeed, California’s qualification for specific grants was the only basis for the district 26 court’s jurisdiction in Becerra, and any effort to describe the case as having a broader sweep 27 should not be credited in applying the rule. “[W]here a declaratory judgment action has been 28 triggered by a[n action that] notifies the party of the possibility of litigation upon collapse of Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 14 1 negotiations, equity militates in favor of allowing the second-filed action to proceed to judgment 2 rather than the first.” Xoxide, 448 F. Supp. 2d at 1193 (internal citations and quotation marks 3 omitted). That principle rings true here—the United States should not be penalized for prudently 4 waiting until California’s laws became effective in 2018. The United States was compelled to file 5 this suit only after seeing the concrete impediments AB 450, AB 103, and SB 54 wrought upon 6 immigration enforcement. This is evidenced by the multiple declarations filed alongside the 7 United States’ Motion for a Preliminary Injunction (ECF No. 2). 8 The same principle is true where a movant requests transfer to a court that “just issued a 9 favorable ruling.” Miller v. Cal. Dep’t of Corr. & Rehab., No. 12-cv-0353, 2016 U.S. Dist. LEXIS 10 145072, at *9 (E.D. Cal. Oct. 19, 2016). When that occurs, this district court has noted how 11 “motion[s] to transfer [can be viewed a]s an attempt to forum shop and have … claims in this 12 case transferred to a judge … believe[d] [to be] more inclined to support the [movant], rather than 13 a genuine concern for the convenience of the witnesses and judicial economy.” Id. at *10. That is 14 evidenced here by two points: (1) this case, as previously described, is focused on the Supremacy 15 Clause and whether three California laws are preempted—not the Spending Clause that is at issue 16 in Becerra; and (2) two of the laws challenged by the United States (including SB 54) came into 17 effect just this year—months after Defendants filed their Amended Complaint in front of Judge 18 Orrick. See Becerra, 17-cv-04701 (N.D. Cal.), ECF No. 11 (Oct. 13, 2017). 19 Two weeks ago, Judge Orrick denied the Becerra defendants’ motion to dismiss. See id., 20 ECF No. 88. Judge Orrick has previously held that the Executive Order issued by the President 21 concerning funding for sanctuary cities was unlawful and issued a nationwide injunction. See Cty. 22 of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017). But judicial selection based on 23 rulings in other cases is not a proper reason to transfer under the first-to-file rule. See Miller, 2016 24 U.S. Dist. LEXIS, at *10. “[W]hile it would have been possible … to file one complaint in one 25 forum covering all claims and time periods, there is no overwhelming reason to combine them 26 [all] now, nor to prefer one jurisdiction over another.” Id. at *11. 27 28 CONCLUSION For the foregoing reasons, this Court should deny Defendants’ Motion to Transfer Venue. Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 15 1 DATED: March 20, 2018 CHAD A. READLER Acting Assistant Attorney General 2 3 MCGREGOR SCOTT United States Attorney 4 AUGUST FLENTJE Special Counsel 5 6 WILLIAM C. PEACHEY Director 7 8 EREZ REUVENI Assistant Director 9 10 DAVID SHELLEDY Civil Chief, Asst. United States Attorney 11 12 LAUREN C. BINGHAM JOSEPH A. DARROW Trial Attorneys 13 14 /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 305-0106 joshua.press@usdoj.gov 15 16 17 18 19 20 21 Attorneys for the United States of America 22 23 24 25 26 27 28 Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 16 CERTIFICATE OF SERVICE 1 2 I hereby certify that on March 20, 2018, I electronically transmitted the foregoing 3 document to the Clerk’s Office using the U.S. District Court for the Eastern District of 4 California’s Electronic Document Filing System (ECF), which will serve a copy of this document 5 6 upon all counsel of record. 7 By: /s/ Joshua S. Press JOSHUA S. PRESS Trial Attorney United States Department of Justice Civil Division 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff’s Opposition to Defendants’ Motion to Transfer Venue 17

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