Animal Legal Defense Fund et al v. United States Department of Agriculture et al

Filing 39

ORDER by Judge Samuel Conti Denying Motion to Dismiss and Granting Motion to Transfer 16 (sclc2, COURT STAFF) (Filed on 1/8/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANIMAL LEGAL DEFENSE FUND, et al., )
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Plaintiffs,
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v.
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UNITED STATES DEPARTMENT OF
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AGRICULTURE, et al.
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Defendants.
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)

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For the Northern District of California

United States District Court

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Case No. CV 12-4407-SC
ORDER DENYING MOTION TO
DISMISS AND
GRANTING MOTION TO TRANSFER

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I.

INTRODUCTION
Now before the Court is the above-captioned defendants' motion

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to dismiss or transfer this suit on the grounds that venue is

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improper in this district.

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fully briefed.1

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determined that the matter is appropriate for resolution without

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oral argument.

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Defendants' motion to dismiss and GRANTS Defendants' motion to

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TRANSFER this case to the Southern District of Florida.

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ECF No. 16 ("Mot.").

Pursuant to Civil Local Rule 7-1(b), the Court has

For the reasons set forth below, the Court DENIES

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The motion is

ECF No. 18 ("Opp'n"); ECF. No. 24 ("Reply").

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II.

BACKGROUND
Plaintiffs are three animal rights organizations, the Animal

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Legal Defense Fund, Orca Network, and People for the Ethical

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Treatment of Animals, Inc., and four individuals, Howard Garrett,

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Shelby Proie, Patricia Sykes, and Karen Munro, (collectively,

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"Plaintiff(s)").

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("ALDF") is located within the Northern District of California --

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the others are located in Washington, Virginia, and Colorado.

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No. 1 ("Compl.") ¶¶ 6-7, 12, 17, 21, 26, 29, 31.

Of the Plaintiffs, only Animal Legal Defense Fund

ECF

On August 22,

United States District Court

For the Northern District of California

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2012, Plaintiffs filed the instant action naming as defendants the

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United States Department of Agriculture ("USDA") and, in their

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official capacities, USDA Secretary Tom Vilsack and the USDA Animal

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and Plant Health Inspection Service's Eastern Regional Director

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Elizabeth Goldentyer (collectively, "Defendant(s)").

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This case arises from Plaintiffs' concern for an orca named

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"Lolita."

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("Seaquarium"), where Plaintiffs allege she is kept in inhumane

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conditions contrary to the requirements of the Animal Welfare Act

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("AWA"), 7 U.S.C. §§ 2131 et seq.

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requires anyone requesting a license to exhibit certain animals,

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including orcas, to abide by USDA requirements relating to minimum

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enclosure sizes, weather shelters, and so forth.

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claim that the Seaquarium's facilities do not meet USDA standards

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and that, by granting the Seaquarium a license to exhibit Lolita,

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Defendants violated the AWA and the Administrative Procedure Act

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("APA"), 5 U.S.C. § 706.

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Lolita is currently exhibited at the Miami Seaquarium

Compl. ¶¶ 64-81.

Id.

The AWA

Plaintiffs

Compl. ¶¶ 88-91.

Pursuant to Federal Rule of Civil Procedure 12(b)(3),
Defendants move to dismiss the complaint for improper venue.

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Mot.

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at 3-4.

Alternatively, per 28 U.S.C. § 1404(a), Defendants move to

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transfer this case to the Eastern District of North Carolina, the

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District of Columbia, or the Southern District of Florida.

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3-4.

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Intervenor, argues specifically in favor of transfer to the

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Southern District of Florida.

Mot. at

The Seaquarium, which joined the case as a Defendant-

ECF No. 24 ("Seaquarium Reply").

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III. DISCUSSION
A.

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Federal Rule of Civil Procedure 12(b)(3) allows a defendant to

United States District Court

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For the Northern District of California

Defendants' Motion to Dismiss

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move to dismiss an action for improper venue.

Fed. R. Civ. Proc.

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12(b)(3).

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accepted as true, and the court may consider facts outside of the

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pleadings," but the court must draw all reasonable inferences and

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resolve all factual conflicts in favor of the non-moving party.

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Murphy v. Schneider Nat'l, Inc., 362 F.3d 1133, 1137 (9th Cir.

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2004).

On a Rule 12(b)(3) motion, "the pleadings need not be

Venue is proper in an action against an agency of the United

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States or an officer or employee of the United States acting in his

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official capacity in any judicial district in which: (A) the

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defendant resides; (B) a substantial part of the events or

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omissions giving rise to the claim occurred or a substantial part

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of the property that is the subject of the action is situated; or

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(C) the plaintiff resides if no real property is involved in the

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action.

28 U.S.C. § 1391(e)(1).2

If venue is improper, district

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Both parties refer to this section as 28 U.S.C. § 1391(e)(3).
However, the section is now numbered § 1391(e)(1)(A)-(C) instead of
§ 1391(e)(1)-(3). This Order follows the current numbering

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courts have discretion either to dismiss the action, or in the

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interest of justice, to transfer it to a district where it could

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have been brought.

28 U.S.C. § 1406(a).

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Plaintiffs allege that venue is proper under 28 U.S.C. §

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1391(e)(1)(C), because ALDF has an office within the Northern

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District of California.

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whether real property is involved in this case.

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Opp'n at 3.

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venue is improper under § 1391(e)(1) and this Court must dismiss

United States District Court

For the Northern District of California

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Compl. ¶ 5.

However, the parties dispute
See Mot. at 3-4;

If this case does in fact involve real property, then

the suit.
Defendants argue that this case involves real property because

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the AWA license at issue in the Complaint "directly affects a

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substantial part of the real property on which the Seaquarium is

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located."

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Center for Biological Diversity v. U.S. Bureau of Land Management

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("CBD v. BLM"), a recent case from this Court finding that real

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property was involved in a case where the basis for venue was §

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1391(e) because the action had to do with a federal agency's

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management of lands under federal law and adoption of a land

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management plan for a large piece of property in California.

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at 3 (citing C 08-05646 JSW, 2009 WL 1025606, at *3 (N.D. Cal. Apr.

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14, 2009)).

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that the touchstone for applying § 1391(e) is not whether real

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property is peripherally affected by the case at issue, but instead

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whether the action centers directly on the real property.

Mot. at 3.

In support of this point, Defendants cite

Mot.

Plaintiffs respond that, in CBD v. BLM, the Court held

Opp'n at

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convention, but will often refer to § 1391(e) generally, for the
sake of space and brevity.

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3.

Defendants apparently abandoned this issue in their reply

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brief, writing only in support of the motion to transfer.

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Reply at 1.
In any event, Plaintiffs are right.

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See

CBD v. BLM distinguished

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several cases that "only peripherally" involved real property.

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2009 WL 1025606, at *2-3.3

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case only concerns real property peripherally, as when the cause of

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action does not directly arise out of real property (but rather,

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for example, an issue of regulatory interpretation), then the case

The Court held that if the nexus of a

United States District Court

For the Northern District of California

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does not "involve real property" per § 1391(e)(1)(C).

Id.

The

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distinction between direct and peripheral involvement with real

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property is, as Plaintiffs rightly argue, the touchstone that this

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Court uses in resolving disputes under § 1391(e)(1)(C).

See id.

In the instant action, real property is only peripherally

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involved.

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decision that happens to involve real property.

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interest, or possession of real property would be affected if this

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case were resolved on the merits, even though the case involves

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The core issue here concerns an administrative licensing
No title,

Specifically, the Court distinguished Santa Fe Int'l Corp. v.
Watt, 580 F. Supp. 27, 28 (D. Del. 1984) (holding that a challenge
to an administrative order concerning oil and gas leases in Kuwait
did not raise "questions of a peculiarly local nature or knowledge
of state or federal mineral rights law," despite the far-flung
locale of the underlying facts, and that the issue could be
resolved with administrative law expertise and minimal outside
knowledge); Ashley v. Andrus, 474 F. Supp. 495, 497 (E.D. Wis.
1979)(holding, in a dispute over whether the Department of Interior
had properly interpreted statutes and regulations controlling oil
and gas lotteries, that real estate was only peripherally involved
because the core of the matter concerned statutory interpretation,
not the resolution of title to or interest in real property
itself); Envtl. Defense Fund, Inc. v. Corps of Eng'rs of the U.S.
Army, 325 F. Supp. 728, 731-32 (E.D. Ark. 1971) (finding that an
action to enjoin the construction of a dam did not concern real
property because the action "[did] not put in issue the title to,
or possession of, such lands, or any interest therein.").

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facts derived from real property.

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The Court finds that since Plaintiff ALDF is based in the

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Northern District of California and no real property is involved in

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this matter, venue in the Northern District of California is

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proper, and Defendants' motion to dismiss for improper venue is

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DENIED.

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B.

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Alternatively, Defendants move to transfer this case to the

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Defendants' Motion to Transfer

District of Columbia, the Southern District of Florida, or the

United States District Court

For the Northern District of California

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Eastern District of North Carolina.

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1404(a), a district court may transfer any civil action for the

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convenience of the parties, witnesses, or in the interests of

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justice.

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discretion to transfer cases, though each transfer must be

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determined on an individualized basis.

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Inc., 211 F.3d 495, 498 (9th Cir. 2000).

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to demonstrate that an action should be transferred.

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Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir.

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1979).

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See 28 U.S.C. § 1404(a).

Pursuant to 28 U.S.C. §

District courts have broad

Jones v. GNC Franchising,
It is the movant's burden
Commodity

The Court's analysis under § 1404(a) has two steps.

First,

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the Court must decide whether the action "might have been brought"

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in a transferee court.

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414 (9th Cir. 1985).

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where it must consider whether transferring the case is best for

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convenience and fairness to the parties and the interests of

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justice.

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this second step, the Court may consider factors including (1) the

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plaintiff's choice of forum, (2) convenience of the parties and

Hatch v. Reliance Ins. Co., 758 F.2d 409,

If so, the Court moves to the second step,

See GNC Franchising, 211 F.3d at 498-99.

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In deciding

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witnesses, (3) ease of access to evidence, (4) local interest in

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the controversy, (5) familiarity of each forum with the applicable

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law, and (6) relative congestion in each forum.

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Safety v. Vilsack, No. C 11-00831 JSW, 2011 WL 996343, at *6 (N.D.

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Cal. Mar. 17, 2011).
1.

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See Ctr. For Food

The Court will discuss the factors below.

Where the Action Might Have Been Brought

The Court must first determine whether the venues proposed by

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Defendants are venues in which the present action might have been

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brought.

In their motion to transfer, Defendants do not specify any one

United States District Court

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For the Northern District of California

Hatch, 758 F.2d at 414.

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district as the transferee forum.

They propose three

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possibilities: the District of Columbia, where the USDA's main

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office is located; the Eastern District of North Carolina, where

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the USDA's regional office is located (and where the decision to

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grant the license was made); or the Southern District of Florida,

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where the Seaquarium and Lolita are located.

Mot. at 4.

All of these venues are potentially proper venues under 28

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U.S.C. § 1391.

The District of Columbia is proper because Vilsack

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resides there.

28 U.S.C. § 1391(e)(1)(A).

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District of North Carolina is proper because Elizabeth Goldentyer

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resides there.

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appropriate as venue because the Seaquarium and Lolita are located

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there, and the Seaquarium's alleged treatment of Lolita gave rise

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to this case's underlying claim.

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Plaintiffs do not dispute this, though they argue that convenience,

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fairness, and the interests of justice weigh against transfer.

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Opp'n at 3-7.

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Id.

Likewise, the Eastern

The Southern District of Florida is

28 U.S.C. § 1391(e)(1)(B).

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2.

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Factors Concerning Convenience, Fairness, and the

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Interests of Justice

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a.

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Plaintiffs' Choice of Forum

A plaintiff's choice of forum is generally accorded

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substantial weight, and the defendant therefore bears a

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considerable burden in justifying transfer.

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v. Pence, 403 F.2d 949, 953-54 (9th Cir. 1968); STX, Inc. v. Trik

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Stik, Inc., 708 F. Supp. 1551, 1555-56 (N.D. Cal. 1988).

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the plaintiff's choice of forum is not dispositive.

Pac. Car & Foundry Co.

However,

Knapp v.

United States District Court

For the Northern District of California

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Wachovia Corp., No. C 07-4551 SI, 2008 WL 2037611, at *2 (N.D. Cal.

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May 12, 2008).

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occurred within the forum of original selection and that forum has

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no special interest in the parties or subject matter, the

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plaintiff's choice of venue merits less deference.

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Foundry, 403 F.2d at 954.

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Moreover, where the operative facts have not

Pac. Car &

Defendants argue that because, out of the seven Plaintiffs,

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only ALDF resides in the Northern District of California, and since

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its harms are not concentrated in this district but are dispersed

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throughout its nationwide membership, Plaintiffs' choice of forum

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does not warrant deference.

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without directly addressing Defendants' arguments -- that the

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presumption is so powerful that it should not be easily overturned.

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Opp'n at 3-4.

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Mot. at 5-6.

Plaintiffs respond --

Plaintiffs discount the fact that there are times when this

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presumption's import is lessened, as when the original forum's

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connection to the matter is minimal and the operative facts arose

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elsewhere.

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recognizes that ALDF has an office in the Northern District of

See Pac. Car & Foundry, 403 F.2d at 954.

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The Court

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California, has spent time and money on this matter, and has

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members within this district who care about the issues in this case

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(though Plaintiffs never specify how many).

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other Plaintiffs reside outside this district, and all of the

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operative facts arose elsewhere.

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impact the environment or groups of animals have more compelling

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reasons for being heard in the forum having the closest local

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interest or connection to the activities alleged in the complaint,

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since those communities will be most affected by those cases'

See id.

However, most of the

Moreover, cases that

See Ctr. for Biological Diversity v. Lubchenco, No. C

United States District Court

For the Northern District of California

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resolutions.

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09-4087 EDL, 2009 WL 4545169, at *3 (N.D. Cal. Nov. 30, 2009); Ctr.

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for Biological Diversity v. Kempthorne, No. C 07-0894 EDL, 2007 WL

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2023515, at *5 (N.D. Cal. July 12, 2007).

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Here, Plaintiffs' claims ultimately concern the well being of

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Lolita, who is located far outside this district, and whose

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exhibition is partly governed by a license granted by government

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officials in the District of Columbia and Raleigh, North Carolina.

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This point, plus the fact that the operative facts arose elsewhere,

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counts against plaintiff's original choice of forum despite the

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presumption in its favor.

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The Court finds that Plaintiffs' choice of forum is entitled
to minimal deference.
b.

Convenience of the Parties and Access to
Evidence

The Court next combines two factors: convenience of the

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parties and access to evidence.

Under these factors, the Court

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must determine how transferring the case could affect the parties'

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ability to litigate the matter fairly and conveniently, which

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includes evaluating how transfer could affect both sides' ability

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to bring forth evidence and witnesses.

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Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (citing

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Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).

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See Decker Coal Co. v.

Defendants argue that convenience of the parties and witnesses

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favors transfer in this case, because Defendants and one Plaintiff

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are on the East Coast (with all but one Plaintiff located outside

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the present jurisdiction anyway) and likely witnesses and evidence

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are probably located elsewhere as well.

Mot. at 6.

Plaintiffs

United States District Court

For the Northern District of California

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respond that transferring this case for convenience or fairness is

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unnecessary, because the relevant administrative record could

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easily be sent anywhere using modern communications technology.

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Opp'n at 5-6.

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decision in this case will turn on witnesses or evidence.

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Defendants point out that in the event of a hearing on remedies,

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witnesses and other evidence might be required because Plaintiffs

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allege ongoing harm and seek injunctive relief.

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Plaintiffs also argue that it is unlikely that a
Id.

Reply at 3-4.

The Court agrees with Defendants that, regardless of the

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administrative record's ease of production and importance to the

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case's resolution, the locations of the parties, witnesses, and

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evidence could be important in the event of a hearing on an

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injunction.

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Support Ctr., No. C 10-02673 JSW, 2011 WL 89644, *2 (N.D. Cal. Jan.

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11, 2011) (citing

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(1987)).

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matter exclusively on the administrative record.

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2009 WL 4545169, at *3; Kempthorne, 2007 WL 2023515, at *5.

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event of a hearing, it is likely that any witnesses or evidence in

Reply at 4 (citing Sierra Club v. U.S. Def. Energy

Amoco Prod. Co. v. Gambell, 480 U.S. 531, 542

Further, the parties have not agreed to resolve this

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See Lubchenco,
In the

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addition to the administrative record will be located outside the

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Northern District of California, since the licensing decision-

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makers are in the District of Columbia and North Carolina and the

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underlying facts of the licensing decision arose at the Seaquarium

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in Florida.

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already located outside the Northern District of California and

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would need to travel in the event of a hearing, somewhat mitigating

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the convenience of the Northern District of California being the

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forum for this case.

Moreover, most Plaintiffs (and their attorneys) are

Any of the venues Defendants suggest in their

United States District Court

For the Northern District of California

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motion would be more convenient for the parties and witnesses, on

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balance, than the Northern District of California would, due to the

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locations of the parties and potential evidence and witnesses.

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The Court finds that this factor weighs in favor of transfer.
c.

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Local Interest in the Controversy

This factor requires the Court to consider the "local interest

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in having localized controversies decided at home."

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805 F.2d at 843 (quoting Piper Aircraft Co. v. Reyno, 454 U.S. 235,

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241 (1981)).

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Decker Coal,

Defendants do not specify which of their proposed venues has

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the strongest interest in hearing this case, but they do argue that

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the Northern District of California has little interest because the

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core facts of this case arose elsewhere, and only part of the

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alleged harm, the cost to ALDF and harms to its members, occurred

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in this district.

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expenditure of "substantial resources," its institutional interest

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in the matter, and its members' concerns for Lolita are enough to

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give the Northern District of California a strong interest in the

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matter.

Mot. at 7.

Plaintiffs argue that ALDF's

Opp'n at 6-7.

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The Court agrees with Defendants.

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In this matter, the

in seeing this case decided here because of the ALDF's presence

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within the district.

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venues' "local interest in having localized controversies decided

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at home."

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of certain cases concerning specific environmental locales or

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individual animals -- as opposed to cases based on more all-

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encompassing phenomena like global warming -- can give certain

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United States District Court

Northern District of California admittedly has some local interest

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For the Northern District of California

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districts an especially acute interest in having cases decide

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there, where they would have the most localized impact.

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Lubchenco, 2009 WL 4545169, at *3; Kempthorne, 2007 WL 2023515, at

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*5.

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Northern District of California, since the USDA's decisions in its

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offices would be affected by the outcome, as would the local

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community in the Seaquarium's Miami home.

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places have a localized interest in seeing this conflict resolved

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there.

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that the outcome of this case could significantly impact its local

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community, including Seaquarium employees like Lolita's

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veterinarians, schools, citizens interested in marine life, and a

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tourism industry based partly on the Seaquarium.

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at 4-5.

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Court recognizes Plaintiffs' reasons for showing local interest in

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the Northern District of California, but finds them outweighed by

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the interests of other forums, namely the Southern District of

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Florida.

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However, the Court must also consider other

Piper Aircraft, 454 U.S. at 241.

The localized nature

See

The primary impact of this case would likely be outside the

Reply at 6-8.

Both

Defendant-Intervenor the Seaquarium argues specifically

Seaquarium Reply

The Court finds these reasons especially compelling.

The

The Court finds that this factor weighs in favor of transfer.

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d.

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Familiarity of Each Forum with the Applicable
Law

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This factor is neutral since the Northern District of

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California, the District of Columbia, the Eastern District of North

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Carolina, and the Southern District of Florida would all be equally

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familiar with the applicable law in this matter.
e.

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The relative congestion of each proposed forum is relevant –

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Relative Congestion in Each Forum

though not as weighty as the other factors – to the Court's

United States District Court

For the Northern District of California

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decision on whether to transfer, because a congested court would

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probably be slower to adjudicate the matter than a less busy court.

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See Decker Coal, 805 F.2d at 843.

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time from filing to disposition was 7.6 months in the Northern

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District of California, 7.6 months in the District of Columbia, 5

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months in the Southern District of Florida, and 8.9 months in the

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Eastern District of North Carolina.4
Though this factor is not dispositive, it does favor transfer

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As of December 2011, the median

to the Southern District of Florida.
f.

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Balancing the Factors

The balance of these factors favors transfer to the Southern

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District of Florida.

It would not be unreasonably inconvenient for

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any party or witness to travel there in the event of a hearing.

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The administrative record is easy to send anywhere. The local

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district court would be versed in the relevant law.

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operative facts is there.

The locus of

The impact of a court's decision on this

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28

See Federal Court Management Statistics,
http://www.uscourts.gov/Statistics/FederalCourtManagementStatistics
/DistrictCourtsDec2011.aspx (last visited Jan. 6, 2012).

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case would be greatest there.

Finally, the Southern District of

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Florida is less congested than any of the alternative venues.

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V.

CONCLUSION
For the foregoing reasons, the Court DENIES Defendants United

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States Department of Agriculture, Tom Vilsack, and Elizabeth

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Goldentyer's motion to dismiss and GRANTS Defendants' motion to

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transfer this case to the Southern District of Florida.

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United States District Court

For the Northern District of California

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IT IS SO ORDERED.

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Dated:

January 8, 2013
UNITED STATES DISTRICT JUDGE

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