Davis et al v. Abercrombie et al
Filing
28
ORDER DENYING DEFENDANTS' MOTION TO TRANSFER VENUE 7 - Signed by Judge BARRY M. KURREN on 5/27/11. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
RICHARD KAPELA DAVIS; et al., )
)
Plaintiffs,
)
)
vs.
)
)
NEIL ABERCROMBIE, in his
)
official capacity as the Governor of )
the State of Hawaii; et al.,
)
)
Defendants.
)
______________________________ )
CV. NO. 11-00144 LEK-BMK
ORDER DENYING
DEFENDANTS’ MOTION TO
TRANSFER VENUE
ORDER DENYING DEFENDANTS’ MOTION TO TRANSFER VENUE
Before the Court is Defendants the Governor of Hawaii Neil
Abercrombie (“Governor”), Interim Director of the Hawaii Department of Public
Safety Jodie Maesaka-Hirata (“DPS Director”), and Corrections Corporation of
America’s (“CCA”) (collectively “Defendants”) Motion to Transfer Venue.
(Doc. # 7.) The Court heard the motion on May 10, 2011. After careful
consideration of the motion, the supporting and opposing memoranda, and the
arguments of counsel, the Court DENIES Defendants’ Motion to Transfer Venue.
BACKGROUND
A.
Factual and Procedural Background
Plaintiffs Richard Kapela Davis, Michael Hughes, Damien Kaahu,
Robert A. Holbron, James Kane, III, and Ellington Keawe (collectively
“Plaintiffs”) are Hawaii prisoners who were convicted and sentenced under Hawaii
law. (Compl. ¶¶ 17, 25-30; Opp’n at 3.) Pursuant to a contract entered into
between the Hawaii Department of Public Safety (“DPS”) and the CCA (“DPSCCA contract”), Plaintiffs were transferred to one of two correctional facilities
located in Arizona, which are owned and operated by the CCA (“CCA correctional
facilities”). (Compl. ¶¶ 11, 16-17, 25-30; Answer ¶¶ 9, 17; Mem. in Supp. of Mot.
at 1; Opp’n at 3-4.) The CCA correctional facilities are Saguaro Correctional
Facility (“Saguaro”) and Red Rock Correctional Center (“Red Rock”). (Compl. ¶¶
25-30.) The DPS-CCA contract governs the confinement, custody, and care of
Hawaii prisoners at Saguaro and Red Rock. (See Opp’n Ex. 1.)
On February 7, 2011, Plaintiffs filed a complaint in the Circuit Court
of the First Circuit, State of Hawaii (“state court”). (Doc. # 1 Ex. A.) Plaintiffs,
who maintain they are indigent, are represented by attorneys from the Native
Hawaiian Legal Corporation (“NHLC”) on a pro bono basis. (Sprenger Decl. ¶ 5.)
The NHLC is located in Hawaii, and is the only private, non-profit law firm in the
nation that specializes in native Hawaiian rights. (Id. ¶¶ 2-3.) None of its
attorneys are licensed to practice law in the District of Arizona. (Id. ¶ 2.)
2
The complaint names the Governor and DPS Director in their official
capacities as Defendants. (Compl. ¶¶ 12-13.) The complaint also names the CCA
as a Defendant. (Id. ¶ 16.) The Governor and DPS Director are Hawaii residents.
(Opp’n at 3-4.) The CCA is a Maryland corporation with its principal place of
business in Tennessee. (Answer ¶ 17; Mem. in Supp. of Mot. at 1.)
The complaint alleges that Plaintiffs are native Hawaiian and that they
practice the native Hawaiian religion. (Compl. ¶¶ 9, 31.) The complaint alleges
that Defendants are enforcing a policy, or engaging in a practice, that prevents
Plaintiffs from practicing the native Hawaiian religion, and that gives preference to
inmates who practice other religions. (See, e.g., id. ¶¶ 144-48, 156-60, 162-65,
168-72, 174-77, 180-84, 187-91, 199-203, 206-10, 212-15, 218-22, 224-27, 23034, 237-41.) For example, the complaint alleges that Plaintiffs are prevented from:
meeting with other native Hawaiian practitioners on a daily basis for group
worship (see, e.g., id. ¶¶ 144-48); observing the opening and closing of the
Makahiki season with certain religious protocol (see, e.g., id. ¶¶ 156-60); meeting
with a spiritual advisor to observe the opening and closing of the Makahiki season
with certain religious protocol (see, e.g., id. ¶¶ 162-65); accessing certain sacred
items that are critical to the practice of their religion (see, e.g., id. ¶¶ 168-72);
meeting with a spiritual advisor to assist in the use of certain sacred items critical
3
to the practice of their religion (see, e.g., id. ¶¶ 174-77); establishing a sacred
outdoor space with at least two spiritually significant stones for group worship
(see, e.g., id. ¶¶ 180-84); and meeting with a spiritual advisor on a regular basis
(see, e.g., id. ¶¶ 187-91). The complaint alleges that inmates who practice other
religions are permitted to do the foregoing. (See, e.g., id. ¶¶ 199-203, 206-10, 21215, 218-22, 224-27, 230-34, 237-41.) Plaintiffs, thus, allege that Defendants
violated their rights to the free exercise of religion and equal protection of the law
under the First and Fourteenth Amendments and article I, sections 4 and 5 of the
Hawaii Constitution. (Id. ¶¶ 139-346.)
Plaintiffs also allege that Defendants violated their rights guaranteed
by article XII, section 7 of the Hawaii Constitution. (Id. ¶¶ 347-59.) This section
provides, “The State reaffirms and shall protect all rights, customarily and
traditionally exercised for subsistence, cultural and religious purposes and
possessed by ahupua‘a tenants who are descendants of native Hawaiians who
inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to
regulate such rights.” Haw. Const. art. XII, § 7. Plaintiffs allege that Defendants
violated this section by preventing them from participating in the opening and
closing of the Makahiki season with certain religious protocol, and using certain
sacred items. (Compl. ¶¶ 356-57.)
4
Defendants removed the case from state court to this Court on
March 8, 2011. (Doc. # 1.)
B.
Defendants’ Motion to Transfer Venue
On March 23, 2011, Defendants moved to transfer this case to the
District of Arizona pursuant to 28 U.S.C. §§ 1391(b) and 1406(a), and 28 U.S.C.
§ 1404(a). (Doc. # 7.) Defendants argue that this case should be treated in the
same manner that two prior cases, to which Plaintiff Richard Kapela Davis
(“Davis”) was a party, were treated. (Mot. at 2; Reply at 5-6.) In the first case,
Bush v. Hawaii, Civ. No. 04-00096 DAE-KSC, Davis and other Hawaii prisoners
filed a lawsuit in this Court, alleging that the defendants violated their rights under
the federal Constitution and the Religious Land Use and Institutionalized Persons
Act of 2000 (“RLUIPA”), by preventing them from practicing the native Hawaiian
religion during a Makahiki festival at a CCA correctional facility located in
Oklahoma. 2011 WL 563564, at *1 (D. Haw. Jan. 20, 2011). A settlement was
reached and final judgment was entered. Id. However, one of the plaintiffs later
sought to reopen the case so that he could supplement the amended complaint with
allegations relating to his inability to participate in a Makahiki festival at a CCA
correctional facility located in Arizona. Id. at *2-3. The magistrate judge
recommended denying the request because this Court lacked jurisdiction to
5
entertain the motion or grant the relief sought. Id. The magistrate judge further
recommended that even if the Court had jurisdiction, supplementation was
inappropriate. Id. at *3. The magistrate judge concluded that, among other things,
venue in Hawaii was improper under § 1391(b) because the events and omissions
alleged occurred substantially, if not entirely, in Arizona. Id. at *5. The district
judge adopted the magistrate judge’s recommendations. See Bush v. Hawaii,
Civ. No. 04-00096 DAE-KSC, 2011 WL 563093 (D. Haw. Feb. 8, 2011).
In the second case, Davis v. Hawaii, Civ. No. 08-00434 JMS-BMK,
Davis, proceeding pro se, filed a lawsuit in this Court against individuals and
agencies located in Hawaii and Arizona. 2009 WL 1227841, at *1 (D. Haw.
May 4, 2009). The defendants included the governors of Hawaii and Arizona, the
CCA, the DPS and its Director, the Arizona Department of Corrections (“ADC”)
and its Director, and DPS and Saguaro employees. Id. In his complaint, Davis
alleged that the defendants violated his rights under the federal Constitution and
the RLUIPA. Id. Specifically, he alleged that CCA and Saguaro employees
prevented him from practicing his native Hawaiian religion when they failed to
hold a Makahiki closing ceremony feast, failed to distribute food for that
ceremony, and later distributed the food to other inmates who were not associated
with the Makahiki festival or the native Hawaiian religion. Id. at *2. The
6
defendants moved to transfer the case to the District of Arizona, and this Court
granted their motion. Id. at *1. First, the Court concluded that venue in Hawaii
was improper pursuant to § 1391(b) because the events and omissions complained
of occurred substantially in Arizona. Id. at *4. The Court concluded that the
interest of justice, however, favored transferring the case pursuant to § 1406(a),
rather than a dismissal. Id. Second, the Court concluded that even if venue in
Hawaii were proper, the case should be transferred to the District of Arizona
pursuant to § 1404(a) for the convenience of the parties and witnesses, and in the
interest of justice. Id. at *5.
Here, Defendants move to transfer this case to the District of Arizona
pursuant to §§ 1391(b) and 1406(a), and § 1404(a). Specifically, Defendants argue
that because a substantial part of the events or omissions giving rise to Plaintiffs’
claims occurred in Arizona, venue in Hawaii is improper under § 1391(b). (Mem.
in Supp. of Mot. at 2-7.) Defendants thus argue that the case should be transferred
to the District of Arizona pursuant to § 1406(a) as it could have been brought there.
(See id. at 6-7.) Defendants argue that even if venue in Hawaii is proper, the Court
should nevertheless transfer the case as a matter of convenience and in the interest
of justice pursuant to § 1404(a). (Id. at 7-10.)
7
Plaintiffs filed their opposition to Defendants’ motion on
April 19, 2011, and on April 26, 2011, Defendants replied. (Docs. ## 21, 22.)
DISCUSSION
A.
Improper Venue
Defendants argue that venue in Hawaii is improper under § 1391(b).
(Mem. in Supp. of Mot. at 2-7.) This section provides:
A civil action wherein jurisdiction is not founded solely
on diversity of citizenship may, except as otherwise provided
by law, be brought only in (1) a judicial district where any
defendant resides, if all defendants reside in the same State,
(2) a judicial district in which a substantial part of the events or
omissions giving rise to the claim occurred, or a substantial part
of property that is the subject of the action is situated, or (3) a
judicial district in which any defendant may be found, if there is
no district in which the action may otherwise be brought.
28 U.S.C. § 1391(b). Defendants appear to argue that because they do not reside in
the same state, venue must be determined by reference to § 1391(b)(2), where a
substantial part of the events or omissions giving rise to Plaintiffs’ claims occurred,
or § 1391(b)(3), if the former subsection does not apply. (See Mem. in Supp. of
Mot. at 2-4.) Defendants argue that as to § 1391(b)(2), a substantial part of the
events or omissions giving rise to Plaintiffs’ claims occurred at the CCA
correctional facilities, which are located in Arizona. (Id. at 6-7.) Defendants argue
that, as such, venue in Hawaii is improper, and the case should be transferred to the
8
District of Arizona pursuant to § 1406(a). (Id.) This section provides, “The
district court of a district in which is filed a case laying venue in the wrong
division or district shall dismiss, or if it be in the interest of justice, transfer such
case to any district or division in which it could have been brought.” 28 U.S.C.
§ 1406(a).
Plaintiffs argue in opposition that § 1391(b) does not apply because
this is a removed case and therefore, venue is governed by 28 U.S.C. § 1441(a).
(Opp’n at 14-16.) The Court agrees with Plaintiffs. “The general removal statute,
Section 1441 of Title 28, provides that the venue of a removed case is ‘the district
and division embracing the place where such action is pending.’” 14C Charles
Alan Wright et al., Federal Practice and Procedure § 3732 (quoting 28 U.S.C.
§ 1441(a)). “Accordingly, the general venue statutes, Section 1391 through
Section 1393, do not apply to cases that have been initiated in a state court and
removed to a federal court.” Id.
These principles were articulated by the Supreme Court in Polizzi v.
Cowles Magazines, Inc., 345 U.S. 663 (1953). In Polizzi, a Florida resident filed a
libel action against the defendant publisher, an Iowa corporation, in the Circuit
Court of Dade County, Florida. Id. at 664. The defendant removed the case to the
United States District Court for the Southern District of Florida. Id. The district
9
court dismissed the action on the ground that the defendant was not, at the time of
service of the summons, “doing business” in the Southern District of Florida, and
therefore, the venue requirements of 28 U.S.C. § 1391(c) were not met. Polizzi, Id.
at 664-65. The Fifth Circuit affirmed, and the Supreme Court granted certiorari.
Id. at 665 (citations omitted). The Supreme Court noted that the question before it
was whether the district court correctly dismissed the action for lack of
jurisdiction. Id. The Supreme Court noted:
Both courts below held that the District Court lacked
jurisdiction, but they reached that conclusion by deciding that
Respondent was not ‘doing business’ in Florida within the
meaning of [28 U.S.C. § 1391(c)]. Section 1391 is a general
venue statute. In a case where it applies, if its requirements are
not satisfied, the District Court is not deprived of jurisdiction,
although dismissal of the case might be justified if a timely
objection to the venue were interposed. But even on the
question of venue, § 1391 has no application to this case
because this is a removed action. The venue of removed
actions is governed by [28 U.S.C. § 1441(a)], and under that
section venue was properly laid in the Southern District of
Florida. . . . Section 1391(a) limits the district in which an
action may be ‘brought.’ Section 1391(c) similarly limits the
district in which a corporation may be ‘sued.’ This action was
not ‘brought’ in the District Court, nor was Respondent ‘sued’
there; the action was brought in a state court and removed to
the District Court. Section 1441(a) expressly provides that the
proper venue of a removed action is ‘the district court of the
United States for the district and division embracing the place
where such action is pending.’ The Southern District of
Florida is the district embracing Dade County, the place where
this action was pending.
10
Id. at 665-66 (emphases added, footnotes and citations omitted). Because the
district court based its holding on a statute that had no application to the case, and
the Fifth Circuit affirmed on the same reasoning, the Supreme Court reversed and
remanded the case to the district court. Id. at 666-67.
Here, Defendants argue that venue in Hawaii is improper under
§ 1391(b). (Mem. in Supp. of Mot. at 2-7.) However, § 1391(b), like § 1391(a),
limits the district in which an action may be “brought.” See 28 U.S.C. § 1391(b).
This action was not “brought” in this district court. Rather, the action was brought
in Hawaii state court and removed to the district court for the District of Hawaii.
(See Doc. # 1.) Because the District of Hawaii is the district embracing the place
where the action was pending, venue is proper pursuant to § 1441(a) and § 1391
does not apply. See, e.g., Global Satellite Commc’n Co. v. Starmill U.K. Ltd.,
378 F.3d 1269, 1271 (11th Cir. 2004) (noting that “[§] 1441(a), and not the
ordinary federal venue statute, 28 U.S.C. § 1391, governs venue in removed
cases”); Kubin-Nicholson Corp. v. Gillon, 525 F. Supp. 2d 1071, 1075
(E.D. Wis. 2007) (noting that “§ 1441(a) governs the venue of a removed action”
and § 1391 does not apply) (citation omitted); Keston v. FirstCollect, Inc.,
523 F. Supp. 2d 1348, 1355 (S.D. Fla. 2007) (noting that the “proper venue statute
in a removal action is 28 U.S.C. § 1441(a)”) (citation omitted); Kotan v. Pizza
11
Outlet, Inc., 400 F. Supp. 2d 44, 46 (D.D.C. 2005) (noting that “[w]hile questions
of venue are generally resolved in accordance with § 1391, when a case is removed
from state court to federal court, the removal statute, 28 U.S.C. § 1441, dictates
venue”) (citation omitted); see also Kerobo v. Sw. Clean Fuels, Corp.,
285 F.3d 531, 534 (6th Cir. 2002) (noting that “[v]enue in removed cases is
governed solely by § 1441(a)”) (citation omitted). This case is distinguishable
from Bush, 2011 WL 563564, at *1, and Davis, 2009 WL 1227841, at *1, because
those cases were brought in federal district court and therefore § 1391 applied.
Based on the foregoing, the Court denies Defendants’ request to
transfer the case to the District of Arizona pursuant to § 1406(a). Section 1406(a)
applies only when a case is filed in the wrong division or district. See 28 U.S.C.
§ 1406(a) (“The district court of a district in which is filed a case lying venue in
the wrong division or district shall dismiss, or if it be in the interest of justice,
transfer such case to any district or division in which it could have been brought.”)
(emphasis added).
B.
Convenience
Although venue in Hawaii is proper, the action may still be transferred
to the District of Arizona pursuant to § 1404(a). See 14C Wright et al., supra,
§ 3732 (“Even when venue is proper in the federal court, a removed action may be
12
transferred to another federal district court in accordance with various federal
transfer provisions, most notably Section 1404(a) . . . .”). This section provides,
“For the convenience of parties and witnesses, in the interest of justice, a district
court may transfer any civil action to any other district or division where it might
have been brought.” 28 U.S.C. § 1404(a). Plaintiffs do not dispute that this action
could have been brought in the District of Arizona. Rather, Plaintiffs argue that
transferring the action to the District of Arizona will not serve the convenience of
the parties and witnesses nor promote the interest of justice. (See Opp’n at 17-37.)
“Under § 1404(a), the district court has discretion to adjudicate
motions for transfer according to an individualized, case-by-case consideration of
convenience and fairness.” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498
(9th Cir. 2000) (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988))
(quotation marks omitted). In determining whether to transfer a case pursuant to
§ 1404(a), the court must weigh multiple factors, including, the following: (1) the
plaintiff’s choice of forum; (2) the location where the relevant agreements were
negotiated and executed; (3) the respective parties’ contacts with the forum; (4) the
contacts relating to the plaintiff’s cause of action in the chosen forum; (5) the
differences in the costs of litigation in the two forums; (6) the availability of
compulsory process to compel attendance of unwilling non-party witnesses; (7) the
13
ease of access to sources of proof; and (8) the state that is most familiar with the
governing law. Id. at 498-99. “Ultimately, the moving party has the burden of
showing that an alternative forum is the more appropriate forum for the action.”
Tamashiro v. Harvey, 487 F. Supp. 2d 1162, 1168 (D. Haw. 2006) (citation
omitted). The Court addresses the foregoing factors in turn.
As to the first factor, the plaintiff’s choice of forum, Plaintiffs filed
this lawsuit in Hawaii. (Doc. # 1 Ex. A.) “[T]here is normally a strong
presumption in favor of honoring the plaintiff’s choice of forum.” Tamashiro,
487 F. Supp. 2d at 1169 (quoting Hi-Pac, Ltd. v. Avoset Corp., 980 F. Supp. 1134,
1140 (D. Haw. 1997)) (alteration in original, quotation marks omitted). “The
defendant must make a strong showing of inconvenience to warrant upsetting the
plaintiff’s choice . . . .” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d
834, 843 (9th Cir. 1986) (citation omitted). The Court recognizes that courts have
accorded less weight to the plaintiff’s choice of forum when it is not the plaintiff’s
state of residence. See, e.g., Healey v. Spencer, No. CV 09-7596 AHM(DTBX),
2010 WL 669220, at *1 (C.D. Cal. Feb. 22, 2010); Owner-Operator Indep. Drivers
Ass’n, Inc. v. C.R. England, Inc., No. CV F 02-5664 AWI SMS, 2002 WL
32831640, at *6-7 (E.D. Cal. Aug. 19, 2002). The Court, however, finds that this
case is distinguishable because while Plaintiffs do not reside in Hawaii, they are
14
Hawaii prisoners who were convicted and sentenced under Hawaii law. Thus,
although the Court does not accord great weight to Plaintiffs’ choice of forum, the
Court concludes that this factor still weighs in Plaintiffs’ favor.
As to the second factor, the location where the relevant agreements
were negotiated and executed, Plaintiffs allege, and Defendants do not dispute, that
the DPS-CCA contract, which governs the confinement, custody, and care of
Hawaii prisoners at Saguaro and Red Rock, was negotiated and executed in
Hawaii. (See Opp’n at 4, 31-32; Opp’n Ex. 1.) Defendants, however, argue that
this factor is irrelevant because Plaintiffs do not assert a breach of contract claim.
(Reply at 6-7.) Nevertheless, the Court finds that the DPS-CCA contract serves as
a basis for Plaintiffs’ claims. For example, the complaint alleges:
17. Since at least 2002, [Defendants] have been parties
to various contracts executed in the State of Hawaii in which
[the CCA] accepted responsibility of supervising and
controlling those individuals who have been convicted and
sentenced under the criminal statutes of the State of Hawaii and
have been involuntarily transferred by [the Governor and DPS
Director] to CCA prison facilities in exchange for substantial
payments made by the State of Hawaii.
....
19. . . . Plaintiffs’ claims arise out of said contracts
between [Defendants] which also allows this Court to properly
exercise its long arm jurisdiction.
15
20. As the contractually authorized legal custodian of
those individuals incarcerated under the laws of the State of
Hawaii, [the CCA] is charged with a task and function that is
traditionally and fundamentally performed by the government
and/or are sufficiently intertwined with the government to the
extent that [the CCA] and its employees at [Saguaro] and [Red
Rock] are state actors. Consequently, [the CCA] and its
employees of [Saguaro] and [Red Rock] must guarantee to
those individuals under its supervision and control the rights,
privileges, or immunities secured by the Hawaii State
Constitution, the United States Constitution and federal and
state laws in a manner that is not inconsistent with their status
as institutionalized persons, or with the legitimate penological
objectives of the corrections system.
(Compl. ¶¶ 17, 19-20.) Based on the foregoing, the complaint asserts that the
Governor and DPS Director “are enforcing an official policy, or in the alternative,
engaging in a persistent widespread practice of illegally delegating all of their
Constitutional and statutory responsibilities owed to Plaintiffs . . . .” (See, e.g., id.
¶¶ 144, 156, 162, 168, 174, 180, 187.) The complaint thus requests that
Defendants be ordered “to develop a comprehensive plan and promulgate official
policy guidelines on how Native Hawaiians who have been convicted and
sentenced under the laws of the State of Hawai‘i can practice their religion on a
regular and equal basis with all other religions represented at [the CCA]
correctional facilities . . . .” (Prayer for Relief ¶ 11.) After reviewing the
complaint, the Court concludes that where the relevant agreements were negotiated
16
and executed is a factor that may be considered, and such factor weighs in favor of
maintaining the case in Hawaii.
Defendants argue that the third factor, the parties’ contacts with the
forum, weighs in favor of transferring the case to the District of Arizona because
Plaintiffs are incarcerated in Arizona, and the CCA correctional facilities are
located in Arizona. (Mem. in Supp. of Mot. at 8-9; Reply at 8.) As stated above,
although the Court recognizes that Plaintiffs are incarcerated in Arizona, the Court
also recognizes that Plaintiffs are Hawaii prisoners who were convicted and
sentenced under Hawaii law. (Compl. ¶¶ 17, 25-30; Opp’n at 3.) Furthermore,
Plaintiffs are represented by attorneys from the NHLC, which is located in Hawaii.
(Sprenger Decl. ¶¶ 3-5.) The NHLC is the only private, non-profit law firm in the
nation that specializes in native Hawaiian rights, and its attorneys have agreed to
represent Plaintiffs pro bono because they are indigent. (Id. ¶¶ 2, 5.) Lastly, none
of Defendants are Arizona residents. The Governor and DPS Director are Hawaii
residents, and the CCA is a Maryland corporation with its principal place of
business in Tennessee. (Answer ¶ 17; Mem. in Supp. of Mot. at 1; Opp’n at 3-4.)
Based on the foregoing, the Court concludes that this factor weighs slightly in
favor of Plaintiffs.
17
Defendants argue that the fourth factor, contacts relating to the
plaintiff’s cause of action in the chosen forum, weighs in favor of transfer because
the complaint focuses on Plaintiffs’ inability to practice the native Hawaiian
religion while incarcerated in Arizona. (Reply at 5-7.) Plaintiffs argue in
opposition that their complaint, instead, focuses on a policy that was promulgated
by the Governor and DPS Director, which governs native Hawaiian religious
practices of Hawaii prisoners. (See Opp’n at 5-6, 18-19, 31-32.) The Court notes
that the complaint alleges that the Governor and DPS Director are enforcing a
policy that prevents Plaintiffs from practicing the native Hawaiian religion, and
that gives preference to inmates who practice other religions. (See, e.g., Compl.
¶¶ 144, 156, 162, 168, 174, 180, 187, 199, 206, 212, 218, 224, 230, 237.) The
Court, however, notes that the complaint also challenges the way in which the
policy was implemented at Saguaro and Red Rock. For example, the complaint
asserts that Saguaro and Red Rock employees prevented Plaintiffs from: meeting
with other native Hawaiian practitioners on a daily basis for group worship
(id. ¶¶ 144-48); observing the opening and closing of the Makahiki season with
certain religious protocol (id. ¶¶ 156-60); meeting with a spiritual advisor to
observe the opening and closing of the Makahiki season with certain religious
protocol (id. ¶¶ 162-65); accessing certain sacred items that are critical to the
18
practice of their religion (id. ¶¶ 168-72); meeting with a spiritual advisor to assist
in the use of certain sacred items critical to the practice of their religion (id. ¶¶ 17477); establishing a sacred outdoor space with at least two spiritually significant
stones for group worship (id. ¶¶ 180-84); and meeting with a spiritual advisor on a
regular basis (id. ¶¶ 187-91). Based on the foregoing, the Court concludes that this
factor weighs slightly in favor of transferring the case to the District of Arizona.
Turning to the fifth factor, the costs of litigation in the two forums,
Defendants argue that because the complaint focuses on Plaintiffs’ inability to
practice their religion while incarcerated in Arizona, most of the witnesses are
located in Arizona and therefore, this factor weighs in favor of transfer. (Mem. in
Supp. of Mot. at 8-9; Reply at 8-11.) Defendants note that the Arizona witnesses
include Plaintiffs and CCA employees and inmates. (Mem. in Supp. of Mot. at 8;
Reply at 8-11.) Defendants argue that the Governor’s and DPS Director’s Hawaii
residency should be discounted because they have agreed to try the case in
Arizona. (Reply at 10.) The Court, however, notes that the same could be said of
Plaintiffs who, although are incarcerated in Arizona, choose to try the case in
Hawaii. As to the CCA employees, the Court “accords less weight to the
inconvenience of party witnesses . . . as they can be compelled to testify regardless
of the forum in which the lawsuit is ultimately litigated.” Amini Innovation Corp.
19
v. JS Imps. Inc., 497 F. Supp. 2d 1093, 1111 (C.D. Cal. 2007) (emphasis omitted);
see also Applied Elastomerics, Inc. v. Z-Man Fishing Prods., Inc., No. C 06-2469
CW, 2006 WL 2868971, at *4 (N.D. Cal. Oct. 6, 2006) (citation omitted).
Moreover, there is no reason that at least some of their testimony, as well as the
testimony of any CCA inmates, cannot be presented by way of videotaped
depositions. It is also likely that the case will be resolved through summary
judgment, and there will be no need for a trial. Lastly, the Court finds that
transferring the case to the District of Arizona will merely shift the cost of
litigation to Plaintiffs. This is of particular concern here because Plaintiffs are
indigent and they are represented pro bono by attorneys from a non-profit law firm
located in Hawaii. Accordingly, the Court concludes that this factor weighs in
favor of maintaining the case in Hawaii. See DIRECTV, Inc. v. EQ Stuff, Inc.,
207 F. Supp. 2d 1077, 1083-84 (C.D. Cal. 2002) (deciding against a transfer of
venue because, among other things, it would “merely shift the costs of litigation”);
K-Tel Int’l, Inc. v. Tristar Prods., Inc., 169 F. Supp. 2d 1033, 1045
(D. Minn. 2001) (noting that “a transfer should not be granted if the effect is
simply to shift the inconvenience to the party resisting the transfer”) (citation and
quotation marks omitted); RMS Titanic, Inc. v. Geller, No. 3:99CV2401(JCH),
2000 WL 306997, at *6 (D. Conn. Jan. 10, 2000) (noting that “where an increase
20
in convenience to the moving parties would result only in an equivalent decrease in
convenience to the plaintiffs, a transfer motion will not be granted”).
As to the sixth factor, the availability of compulsory process to
compel attendance of unwilling non-party witnesses, Defendants argue that this
factor weighs in favor of transfer because the Arizona witnesses are beyond this
Court’s subpoena power. (Mem. in Supp. of Mot. at 9; Reply at 11.) Again,
Defendants list the Arizona witnesses to include Plaintiffs and CCA employees and
inmates. (Mem. in Supp. of Mot. at 8-9; Reply at 8-11). The Court, however,
notes that this factor applies only to non-party witnesses. As mentioned above,
party witnesses can be compelled to testify. See Tamashiro, 487 F. Supp. 2d at
1171. Thus, the Arizona non-party witnesses are limited to any CCA inmates.
Because Defendants do not specify who such witnesses are, and there is no reason
to assume that such witnesses would be unwilling to testify, the Court concludes
that this factor bears little consideration. See id.; see also 15 Wright et al., supra,
§ 3851 (noting that “[t]he party seeking the transfer must specify clearly, typically
by affidavit, the key witnesses to be called and their location and must make a
general statement of what their testimony will cover”).
Defendants argue that the seventh factor, ease of access to sources of
proof, weighs in favor of transfer because most of the relevant documents are in
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Arizona, including Plaintiffs’ and the CCA correctional facilities’ records. (Mem.
in Supp. of Mot. at 9; Reply at 11.) Defendants also argue that should the trial
judge find that a view of Saguaro and Red Rock would aid the jury in deciding the
case, such a view can be conducted only in Arizona. (Mem. in Supp. of Mot. at 9.)
As to the relevant documents, the Court finds that most, if not all, documents can
be easily produced and at a reasonable cost. As to Defendants’ argument that a
view of Saguaro and Red Rock may be required, such argument is speculative, and
there is no reason why the jury cannot view the CCA correctional facilities through
various forms of media. Based on the foregoing, the Court concludes that this
factor also bears little consideration.
Turning to the final factor, the state that is most familiar with the
governing law, the Court concludes that this factor weighs in favor of maintaining
the case in Hawaii. Plaintiffs’ complaint alleges violations of not only the federal
Constitution, but also the Hawaii Constitution. (Compl. ¶¶ 3, 4, 244-359; Prayer
for Relief ¶¶ 3-5.) Specifically, the complaint alleges that Defendants violated
Plaintiffs’ rights under article I, sections 4 and 5, and article XII, section 7 of the
Hawaii Constitution. (Compl. ¶¶ 244-359.) Although Defendants contend that the
District of Arizona is competent to apply Hawaii law, this Court is more familiar
with the relevant provisions of the Hawaii Constitution and the rights afforded to
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native Hawaiians. See Television Events & Mktg., Inc. v. Amcon Distrib. Co.,
416 F. Supp. 2d 948, 971 (D. Haw. 2006) (noting that another district court does
not have the same level of experience with Hawaii law as this Court); Hi-Pac, Ltd.,
980 F. Supp. at 1142 (same). This is particularly the case with respect to
article XII, section 7, which discusses native Hawaiian customary and traditional
rights. This section provides, “The State reaffirms and shall protect all rights,
customarily and traditionally exercised for subsistence, cultural and religious
purposes and possessed by ahupua‘a tenants who are descendants of native
Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of
the State to regulate such rights.” Haw. Const. art. XII, § 7. Accordingly, this
factor favors Plaintiffs.
In addition to the factors set forth above, courts also consider the
private and public interest factors derived from the common law doctrine of forum
non conveniens. See Decker Coal Co., 805 F.2d at 843 (noting that “forum non
conveniens considerations are helpful in deciding a § 1404 transfer motion”).
“Section 1404(a) essentially is a codification of the common law doctrine of forum
non conveniens that allows transfer, rather than requiring dismissal, where the
alternative forum is another federal district.” Lung v. Yachts Int’l, Ltd.,
980 F. Supp. 1362, 1370 (D. Haw. 1997). The private interest factors include:
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(1) relative ease of access to sources of proof; (2) the
availability of compulsory process for attendance of unwilling
witnesses, and cost of obtaining attendance of willing
witnesses; (3) possibility of viewing subject premises; (4) all
other factors that render trial of the case expeditious and
inexpensive.
Creative Tech., Ltd. v. Aztech Sys. Pte., Ltd., 61 F.3d 696, 703 (9th Cir. 1995)
(citation omitted). The public interest factors include:
(1) administrative difficulties flowing from court congestion;
(2) imposition of jury duty on the people of a community that
has no relation to the litigation; (3) local interest in having
localized controversies decided at home; (4) the interest in
having a diversity case tried in a forum familiar with the law
that governs the action; (5) the avoidance of unnecessary
problems in conflicts of law.
Id. at 703-04 (citation omitted).
The Court notes that many of the private interest factors are subsumed
in the factors that were previously discussed. As to the public interest factors, the
Court concludes that such factors weigh in favor of maintaining the case in Hawaii.
For example, Plaintiffs present statistics showing that there is less congestion in
this District than in the District of Arizona, and therefore, it take less time for a
case to go to trial here. See Gates Learjet Corp. v. Jensen, 743 F.2d 1325, 1337
(9th Cir. 1984) (noting that a court should consider “whether a trial may be
speedier in another court because of its less crowded docket”). In addition,
transferring the case would impose jury duty on the people of a community that has
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little relation to the case. While this case concerns the operation of CCA
correctional facilities located in Arizona, this case also concerns rights afforded to
native Hawaiians under Hawaii law, and a policy enforced by Hawaii officials,
which allegedly infringes upon such rights. Lastly, there is a local interest in
having this controversy decided at home. As the Hawaii Supreme Court declared,
“It is undisputed that the rights of native Hawaiians are a matter of great public
concern in Hawaii.” Pele Def. Fund v. Paty, 73 Haw. 578, 614, 837 P.2d 1247,
1268 (1992).
The Court notes that this case is distinguishable from Davis,
2009 WL 1227841, at *5, in which the Court concluded that the § 1404(a) factors
weighed in favor of transferring the case to the District of Arizona. First, in that
case, Davis named as defendants, several individuals and agencies located in
Arizona, including Arizona’s governor, the ADC and its Director, and Saguaro
employees. Id. at *1. Thus, as the Court noted, most of the defendants were
located in Arizona. Id. at *5. Here, none of Defendants are Arizona residents.
Second, Davis was proceeding pro se in Arizona, whereas here, Plaintiffs are
represented pro bono by attorneys from the NHLC. See id. at *1. The NHLC is
located in Hawaii, and is the only private, non-profit law firm in the nation that
specializes in native Hawaiian rights. (Sprenger ¶¶ 2-3.) Because none of its
25
attorneys are licensed to practice law in the District of Arizona, should the case be
transferred to that District, Plaintiffs’ counsel might be forced to withdraw. (Id.
¶¶ 2, 10.) Given Plaintiffs’ indigency and the limitations they face due to their
incarceration, transferring the case would not appear to be in the interest of justice.
Third, Davis’s claims were limited to violations of the federal Constitution and the
RLUIPA. 2009 WL 1227841, at *1. As such, Arizona’s interest in resolving the
case was at least equal to that of Hawaii. Id. at *5. In this case, Plaintiffs allege
violations of not only federal law, but also Hawaii law. (See Compl. ¶¶ 244-359.)
For example, Plaintiffs allege that Defendants violated their native Hawaiian rights
guaranteed by article XII, section 7 of the Hawaii Constitution. (Compl. ¶¶ 34759.) Not only are native Hawaiian rights “a matter of great public concern in
Hawaii,” Pele Def. Fund, 73 Haw. at 614, 837 P.2d at 1268, but also this Court has
more experience with the relevant provisions of the Hawaii Constitution. See Pai
‘Ohana v. United States, 875 F. Supp. 680 (D. Haw. 1995).
For the reasons set forth above, the Court concludes that, on balance,
the relevant factors weigh in favor of maintaining the case in Hawaii.
Accordingly, Defendants’ Motion to Transfer Venue is DENIED.
DATED: Honolulu, Hawaii, May 27, 2011.
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IT IS SO ORDERED.
/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge
Richard Kapela Davis, et al. v. Neil Abercrombie, et al, CV. NO. 11-00144 LEK-BMK; ORDER
DENYING DEFENDANTS’ MOTION TO TRANSFER VENUE.
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