Abordo v. Corrections Corporation of America Inc et al

Filing 21

TRANSFER ORDER. Signed by JUDGE J. MICHAEL SEABRIGHT on 6/30/11. (gls, )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
EDMUND M. ABORDO,

)
)
Plaintiff,
)
)
vs.
)
)
CORRECTIONS CORP. OF
)
AMERICA, INC., and WARDEN
)
TODD THOMAS,
)
)
Defendants.
)
_____________________________ )

CIV. NO. 11-00327 JMS/BMK

TRANSFER ORDER

TRANSFER ORDER
Plaintiff is a Hawaii state prisoner incarcerated at the Saguaro
Correctional Center (“SCC”), in Eloy, Arizona.1 On May 23, 2011, Defendants
Corrections Corporation of America (“CCA”) and SCC Warden Todd Thomas
timely removed this action from the Circuit Court of the First Circuit, State of
Hawaii, pursuant to 28 U.S.C. § 1441(b). See Doc. No. 1. Before the court is
Defendants’ Motion to Change Venue, Doc. No. 7, and this court’s Order to Show
Cause Why Case Should Not Be Transferred.2 Doc. No. 8 (“Order to Show

1

The Hawaii Department of Public Safety (“DPS”) contracts for correctional services
with Corrections Corporation of America, which operates SCC.
2

The court issued its OSC on May 27, 2011, before Defendants filed their Motion to
Change Venue on the same date. The Defendants elected to have their Motion to Change Venue
also serve as their response to the OSC. Doc. Nos. 10, 11.

Cause”). In the interests of justice and for the convenience of the parties and
witnesses this action is TRANSFERRED to the U.S. District Court for the District
of Arizona pursuant to 28 U.S.C. § 1404(a).
I. BACKGROUND
Plaintiff commenced this action in the state court on May 15, 2011.3
See Doc. No. 1, Ex. 1, Compl. Plaintiff alleges that Defendants (1) are involved in
racketeering activities in violation of Hawaii Revised Statutes § 842 et seq.
(organized crime), and 18 U.S.C. § 1961 et seq. (“RICO”); (2) discriminated
against him in violation of the Fourteenth Amendment; and (3) committed theft,
robbery, extortion, and conspiracy in violation of various state and federal laws.
II. LEGAL STANDARDS
The removal statute, rather than the general venue statute, governs
venue in cases removed from state court. Polizzi v. Cowles Magazines, Inc., 345
U.S. 663, 665-66 (1953). Venue of a properly removed action is in the “district of
the United States for the district and division embracing the place where such
action is pending.” 28 U.S.C. § 1441(a). Section 1404(a) provides, however, that
3

Plaintiff has accrued three strikes pursuant to 28 U.S.C. § 1915(g). See Abordo v. Dep’t
of Public Safety, Civ. No. 06-00423 SOM (D. Haw. 2006) (dismissed for failure to state a claim);
Abordo v. Garcia, Civ. No. 00-00002 DAE (D. Haw. 2000) (same); Abordo v. Beaver, Civ. No.
97-01099 DAE (D. Haw. 1997) (same). He is therefore barred from commencing an action in
the federal courts without prepayment of the filing fee unless he is in imminent danger of serious
physical injury. See 28 U.S.C. § 1915(g).
2

“[f]or 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.” Thus, although removal constitutes a waiver of any venue
objection, after removal the parties are free to move to transfer the action to a
different division “[f]or the convenience of the parties and the witnesses.” 28
U.S.C. § 1404(a).
“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). To transfer a case, a defendant must first show that the
transferee court is one in which the action could have been commenced originally.
Second, defendant must show that transfer would result in greater convenience to
the parties and witnesses, as well as advance the interest of justice. 28 U.S.C.
§ 1404(a).
III. DISCUSSION
Plaintiff alleges violations of state and federal law, as well as a
violation of the Fourteenth Amendment to the United States Constitution. Venue
was therefore proper in this court when it was removed from the Hawaii state
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court. See 28 U.S.C. § 1441.
A.

28 U.S.C. § 1404(a) Factors
In determining whether to transfer a case pursuant to § 1404(a), the

court must weigh several public and private factors, including: (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 ease of access to
sources of proof; and (8) the state that is most familiar with the governing law.
Jones, 211 F.3d at 498-99; Williams v. Bowman, 157 F. Supp. 2d 1103, 1106 (N.D.
Cal. 2001). “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).
B.

Analysis
Section 1404(a)’s factors favor transfer here. First, although there is a

strong presumption in favor of a plaintiff’s choice of forum, see Creative Tech.,
Ltd. v. Aztech Sys., 61 F.3d 696, 703 (9th Cir. 1995), when a plaintiff does not
reside in the forum, that preference is given considerably less weight. See
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Schwarzer et al., Fed. Civ. P. Before Trial § 4:761 (2008) (citing New Image, Inc.
v. Travelers Indem. Co., 536 F. Supp. 58, 59 (E.D. Pa. 1981); Bryant v. ITT Corp.,
48 F. Supp. 2d 829, 832 (N.D. Ill. 1999)); see also Sweet-Reddy v. Vons Cos.,
2007 WL 841792, at *2 (N.D. Cal. Mar. 20, 2007) (finding that deference to
plaintiff’s choice of forum is diminished where plaintiff does not reside in chosen
forum and none of the events alleged in the complaint occurred there). Plaintiff is
incarcerated in Arizona and, based on a review of Plaintiff’s past actions filed in
this court, he has not resided in Hawaii since at least 1997. The other unnamed
Hawaii inmates who Plaintiff alleges were harmed by Defendants’ actions are also
incarcerated in Arizona. Defendants do not live in or have significant contacts
with Hawaii: Thomas resides and is employed in Arizona and CCA is incorporated
in Tennessee and operates SCC in Arizona. This factor favors transfer to Arizona.
Second, Plaintiff does not allege a breach of contract claim or name
the State of Hawaii as a defendant. Therefore the location of the contractual
agreement between CCA and the State of Hawaii does not affect this
determination. If Plaintiff had alleged a breach of contract claim and had standing
to enforce it, however, venue inquiries in contract claims are determined by the
“place of intended performance rather than the place of repudiation.” Decker Coal
Co. v. Commonwealth Edison Co., 805 F.2d 834, 842 (9th Cir. 1986) (citations
5

omitted). The place of intended performance of the contract between CCA and the
State of Hawaii is Arizona, not Hawaii. This factor is neutral.
Third, the sources of evidence supporting Plaintiff’s claims, such as
SCC and CCA institutional and employee records, and Plaintiff’s institutional
records, are located in Arizona. Moreover, this court lacks subpoena power over
any SCC employees and inmates who live in Arizona and may be unwilling to be
called as witnesses. This factor favors transfer to Arizona.
Fourth, the events giving rise to Plaintiff’s claims indisputably
occurred in Arizona, not Hawaii. Plaintiff complains that SCC employees in
Arizona, under the direction or supervision of Defendants, engaged in illegal
conduct resulting in the violation of his constitutional rights and loss of property.
There are no significant contacts between Plaintiff’s cause of action and Hawaii,
other than Plaintiff’s status as a Hawaii inmate and his attempt to transform his loss
of property tort claims into violations of Hawaii state law rather than Arizona state
law.
Moreover, Plaintiff’s argument that he will lose his state law claims
and be forced to amend his Complaint to conform to Arizona state law if this
action is transferred to Arizona is misplaced. When a district court exercises
supplemental jurisdiction over state law claims, it applies the choice-of-law rules
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of the forum state. Paulsen v. CNF Inc., 559 F.3d 1061, 1080 (9th Cir. 2009).
After a transfer pursuant to § 1404(a), however, “the transferee district court
generally must apply the state law that the transferor district court would have
applied had the case not been transferred.” Shannon-Vail Five Inc. v. Bunch, 270
F.3d 1207, 1210 (9th Cir. 2001); see also Van Dusen v. Barrack, 376 U.S. 612, 639
(1964) (“[A] change of venue under § 1404(a) generally should be, with respect to
state law, but a change of courtrooms.”). Because this case will be transferred
from the District of Hawaii pursuant to § 1404(a), Hawaii law should guide the
Arizona court’s choice-of-law analysis.4 Plaintiff will neither lose his state law
causes of action nor be forced to amend his Complaint as a consequence of the
transfer of this action. This factor is neutral.
Fifth, the costs of litigation strongly favor transfer of this action to the
District of Arizona. If this case proceeds to trial, the State of Hawaii would be
forced to bear the expense of transporting Plaintiff to Hawaii, with the attendant
4

While this court makes no determination over the choice of law to be applied once this
action is transferred, under Hawaii’s choice-of-law rules, the court looks “to the state with the
most significant relationship to the parties and subject matter.” Roxas v. Marcos, 89 Haw. 91,
117 n.16, 969 P.2d 1209, 1235 (1998). The court should consider: (1) where relevant events
occurred, (2) the residence of the parties, and (3) whether any of the parties had any particular
ties to one jurisdiction or the other. See id. The court also looks to the Restatement (Second) of
Conflicts of Laws, which provides that tort liability is determined by “the local law of the state
where the injury occurred,” unless another state has a more significant relationship. Restatement
(Second) of Conflict of Laws § 146 (1971); see UARCO Inc. v. Lam, 18 F. Supp. 2d 1116, 1123
(D. Haw. 1998).
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correctional costs for his supervision during the transfer and while he is in Hawaii.
At the conclusion of trial, the State will be required to bear the expense of
transferring Plaintiff back to Arizona. Defendants’ costs to defend this suit in
Hawaii will also be significant, including transportation to and lodging in Hawaii
for Defendant CCA officials, Warden Thomas, and other SCC employees, as well
as the lost wages for SCC and CCA employees incurred traveling to, from, and
during trial. Plaintiff’s argument that it will be more costly for him to prosecute
this action in Arizona is simply not credible. Defendants paid the federal filing fee
when this action was removed and any other trial costs incurred by Plaintiff will be
the same in either district court. This factor strongly favors transfer of this action
to Arizona.
The remaining factors are either neutral or favor transfer. With respect
to the familiarity with Plaintiff’s claims and relative court congestion, there is no
evidence before the court that this district is more favorable than the District of
Arizona for resolution of these claims. To the contrary, if either court has a
stronger interest in the controversy, it is the District of Arizona, which is the site of
several prisons owned and operated by CCA. Moreover, while the law applied
may be the same in either district, including the claims brought under Hawaii state
law, the events giving rise to Plaintiff’s claims took place in Arizona. Thus,
8

Arizona’s local interest in the controversy is stronger than this district’s, because
the events at issue took place there.
Because deference to Plaintiff’s choice of forum is limited by the fact
that he resides in Arizona, and because it would be substantially more convenient
for the witnesses and both parties, transfer of venue to the District of Arizona
would serve the convenience of the parties and witnesses and would promote the
interests of justice.
IV. CONCLUSION
This action is TRANSFERRED to the United States District Court for
the District of Arizona. The Clerk of Court is DIRECTED to close the file and
send any pending motions or further documents received from Plaintiff to the
United States District Court for the District of Arizona.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 30, 2011.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge
Abordo v. Corr. Corp. of Am. et al., Civ. No. 11-00327 JMS/BMK; Transfer Order; psas/trsfr or
venue/dmp/2011/ Abordo 11-327 jms

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