De Amaral et al v. Goldsmith & Hull et al

Filing 45

ORDER by Judge Hamilton denying 39 Motion to Dismiss (pjhlc2, COURT STAFF) (Filed on 2/21/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MERVYN L. DE AMARAL, et al.,
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Plaintiff(s),

No. C 12-3580 PJH

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v.

ORDER DENYING MOTION TO DISMISS
OR TRANSFER

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GOLDSMITH & HULL, et al.,
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Defendant(s).
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Defendants’ motion to dismiss or transfer came on for hearing before this court on

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February 20, 2013. Plaintiffs Mervyn De Amaral and Jody Lin De Amaral (“plaintiffs”)

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appeared through their counsel, Fred Schwinn. Defendants Goldsmith & Hull and Eric

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Scott Mintz (“defendants”) appeared through their counsel, Jack Hull. Having read the

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papers filed in conjunction with the motions and carefully considered the arguments and

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relevant legal authority, and good cause appearing, the court hereby DENIES defendants’

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motion to dismiss or transfer for the reasons stated at the hearing, and as follows.

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First, defendants move to dismiss the complaint for improper venue under Federal

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Rule of Civil Procedure 12(b)(3). However, defendants have already moved to dismiss the

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complaint under Rule 12(b)(6), and because defendants did not raise the improper venue

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defense at that time, it is waived. See Fed. R. Civ. P. 12(h). Thus, defendants’ motion to

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dismiss is DENIED.

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In the alternative, defendants move for transfer of venue under 28 U.S.C. § 1406 or

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under 28 U.S.C. § 1404. Section 1406 applies only when a case is filed “in the wrong

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division or district.” Because the complaint in this case is based on defendants’ filing of a

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state court case in Contra Costa County, the court finds that venue is proper in this district,

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and thus, transfer under section 1406 is unwarranted.

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For a transfer of venue under section 1404, the moving party has the burden of

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showing a “clear balance of inconveniences” against it if the action remains in the original

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venue. Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). If transfer

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would merely shift the inconveniences from one party to another, transfer should be denied.

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Van Dusen v. Barrack, 376 U.S. 612, 645-46 (1964). In this case, the court finds that

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defendants have not met their burden here, and instead, seek only to shift the

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inconvenience from themselves to plaintiffs.

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Defendants’ motion to transfer is DENIED.

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IT IS SO ORDERED.

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Dated: February 21, 2013
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______________________________
PHYLLIS J. HAMILTON
United States District Judge

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