Lipnick v. United Air Lines, Inc. et al

Filing 43

ORDER GRANTING 21 MOTION TO TRANSFER CASE TO THE EASTERN DISTRICT OF VIRGINIA. Signed by Judge Claudia Wilken on 9/9/2011. (ndr, COURT STAFF) (Filed on 9/9/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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LEWIS LIPNICK and LYNN-JANE
FOREMAN LIPNICK,

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v.
UNITED AIR LINES, INC. and
DEUTSCHE LUFTHANSA
AKTIENGESELLSCHAFT,
Defendants.

United States District Court
For the Northern District of California

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ORDER GRANTING
MOTION TO TRANSFER
CASE TO THE
EASTERN DISTRICT
OF VIRGINIA

Plaintiffs,

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No. C 11-2028 CW

________________________________/
INTRODUCTION
Defendants United Air Lines, Inc. and Deutsche Lufthansa
Aktiengesellschaft move to transfer this action to the Eastern
District of Virginia or, alternatively, to the District of
Columbia.

Plaintiffs oppose the motion.

Having considered the

papers submitted by the parties, the Court finds it in the
interest of justice to GRANT Defendants' motion to transfer the
action to the Eastern District of Virginia.
BACKGROUND
Plaintiff Lewis Lipnick filed his initial action in the
Superior Court of California.

He asserted claims under the

Convention for the Unification of Certain Rules for International
Carriage by Air (the Montreal Convention) and alleged negligence
against Defendants for injuries he sustained in Munich, Germany,
while embarking on United Air Lines Flight 903 destined for Dulles
International Airport in Chantilly, Virginia.

Defendants removed

the case to district court on the basis of diversity and federal

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question jurisdiction.

Plaintiff Lewis Lipnick's wife, Lynn-Jane

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Foreman Lipnick, joined the action in the First Amended Complaint,

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alleging damages for loss of consortium.

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of Falls Church, Virginia.

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§ 1404(a) to transfer the case.

Plaintiffs are residents

Defendants now move under 28 U.S.C.

LEGAL STANDARD

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“For the convenience of parties and witnesses, in the

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interest of justice, a district court may transfer any civil

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action to any other district or division where it might have been

United States District Court
For the Northern District of California

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brought.”

28 U.S.C. § 1404(a).

Section 1404(a) accords a

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district court broad discretion with respect to transferring a

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case.

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(citing Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955)).

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assessing whether to exercise its discretion to do so, a district

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court considers the following:

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(2) convenience of the witnesses; and (3) the interest of justice.

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Id.

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a court may consider in determining whether a change of venue

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should be granted pursuant to § 1404(a):

Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988)
In

(1) convenience of the parties;

The Ninth Circuit has identified numerous additional factors

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(1) the location where the relevant agreements were
negotiated and executed, (2) the state that is most
familiar with the governing law, (3) the plaintiff’s
choice of forum, (4) the respective parties’ contacts
with the forum, (5) the contacts relating to the
plaintiff’s cause of action in the chosen forum, (6) the
differences in the costs of litigation in the two
forums, (7) the availability of compulsory process to
compel attendance of unwilling non-party witnesses, and
(8) the ease of access to sources of proof.

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Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir.

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2000).
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The burden is on the defendant to show that the convenience

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of parties and witnesses and the interests of justice require

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transfer to another district.

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Savage, 611 F.2d 270, 279 (9th Cir. 1979).

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ruled that a Section 1404(a) analysis should be an

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“individualized, case-by-case consideration of convenience and

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fairness.”

Commodity Futures Trading Comm'n v.
The Supreme Court has

Van Dusen v. Barrack, 376 U.S. 612, 622 (1964).
DISCUSSION

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Defendants have met their burden to show that the relevant

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United States District Court
For the Northern District of California

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factors weigh in favor of transferring this case to the Eastern

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District of Virginia.

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The convenience of the parties does not merit much

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consideration here.

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and Defendants are corporations with extensive operations in each

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forum.

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Plaintiffs have chosen to sue in California,

The convenience of the witnesses, however, weighs heavily in

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favor of transfer.

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convenience of witnesses often the most important factor in

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deciding whether to transfer an action."

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F. Supp. 2d 1080, 1083 (N.D. Cal. 2008); see also Kina v. United

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Air Lines, Inc., 2008 WL 5071045, at *6 (N.D. Cal.).

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Plaintiffs' identified witnesses reside in and around the Eastern

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District of Virginia, and all but one member of the flight crew on

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United Air Lines Flight 903 are domiciled in the Eastern District

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of Virginia.

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Courts in this district have called "the

Getz v. Boeing Co., 547

All of

The interest of justice relates to the use of judicial

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resources, delay to the parties and the interests of the local

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court.

See Pratt v. Rowland, 769 F. Supp. 1128, 1133 (N.D. Cal.
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1991).

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where cases are resolved more quickly than in the Northern

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District of California, will reduce delay to the parties.

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Plaintiffs are Virginia residents, a Virginia court has a greater

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interest in resolving this dispute than a California court does.

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Moreover, it is consistent with the interest of justice to

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transfer a case when the litigation has not progressed very far,

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as is the case here.

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WL 3157457, at *6 (N.D. Cal.).

United States District Court
For the Northern District of California

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Transferring the case to the Eastern District of Virginia,

Because

See Unisys Corp. v. Access Co., Ltd., 2005

The additional Ninth Circuit considerations also favor
transfer.
There is no evidence that one forum is more, or less,

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familiar with the Montreal Convention; and California law does not

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apply to this case except in a choice-of-law analysis.

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Aircraft Co. v. Reyno, 454 U.S. 235, 244 n.8 (1981).

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Plaintiffs cite Kruger v. United Air Lines, Inc., 481 F. Supp. 2d

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1005 (N.D. Cal. 2007), to support the contention that substantive

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California law should apply here, it only applied in Kruger

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because the incident giving rise to that cause of action occurred

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during a flight between San Francisco, California, and Seattle,

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Washington.

See Piper
Although

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The plaintiffs' choice of forum, which is normally accorded

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significant weight, is diminished in importance where the chosen

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venue neither is the plaintiffs' residence nor has a significant

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connection to the activities alleged.

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v. Pence, 403 F.2d 949, 954 (9th Cir. 1968).

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contacts with the respective forums, both generally and in

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connection with the cause of action, are more closely tied to
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Pacific Car & Foundry Co.
The parties'

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Virginia than to California.

Plaintiffs are residents of

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Virginia, and the operative facts occurred while one of them

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embarked on a flight from Munich, Germany to Chantilly, Virginia.

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The availability of compulsory process to compel the

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attendance of unwilling witnesses favors moving the case to the

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Eastern District of Virginia.

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subpoena power only extends outside of its district if the place

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of service is "within 100 miles of the place specified for the

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depositions, hearing, trial, production or inspection."

With rare exception, the Court's

Fed. R.

United States District Court
For the Northern District of California

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Civ. P. 45(b)(2)(B).

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Court's reach but within the subpoena power of the Eastern

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District of Virginia.

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All identified witnesses lie outside of this

While ease of access to documentary information may be the

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same between the two forums, moving the case to the Eastern

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District of Virginia allows for easier access to witness

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testimony.
CONCLUSION

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For the foregoing reasons, Defendants' motion to transfer the
case to the Eastern District of Virginia is GRANTED.
IT IS SO ORDERED.

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Dated:

CLAUDIA WILKEN
United States District Judge

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