Abordo vs. (DPS) Mainland Branch Admin, Shari Kimoto, et al.
Filing
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TRANSFER ORDER - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 12/26/12. " 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 in this Di strict and send any pending motions or further documents received from Abordo to the United States District Court for the District of Arizona." (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). Edmund M. Abordo shall be served by first class mail at the address of record on December 28, 2012.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
EDMUND M. ABORDO, #A0080735, )
)
Plaintiff,
)
)
vs.
)
)
SHARI KIMOTO, HEATHER KIMURA, )
CORRECTIONS CORPORATION OF
)
AMERICA, BEN GRIEGO, C.
)
ALLEN, C. TRENT.
)
)
Defendants.
)
_____________________________ )
CIV. NO. 12-00686 SOM/BMK
TRANSFER ORDER
TRANSFER ORDER
Plaintiff Edmund M. Abordo is a Hawaii prisoner
incarcerated at the Saguaro Correctional Center (“SCC”), located
in Eloy, Arizona.
On December 18, 2012, Defendants removed
Abordo’s state court action to this court pursuant to 28 U.S.C.
§ 1441(c).1
ECF No. 1.
For the following reasons, the court
TRANSFERS this action to the United States District Court for the
District of Arizona pursuant to 28 U.S.C. § 1404(a).
I.
BACKGROUND
Abordo commenced this action on or about May 14, 2012,
in the First Circuit Court, State of Hawaii, by filing an “HRPP
Rule 40(c)(2)(3) Nonconforming [Petition] and Separate Cause of
Action.”
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Compl., ECF No. 1-1.
On November 27, 2012, the state
Abordo names the Hawaii Department of Public Safety’s
(“DPS”) Mainland Branch Administrator Shari Kimoto, DPS Contract
Monitor Heather Kimura, the Corrections Corporation of America
(“CCA”), SCC Assistant Warden Ben Griego, and SCC Librarians C.
Allen, and C. Trent as Defendants.
circuit court served the Nonconforming Petition on Defendants’
representative, the Attorney General of the State of Hawaii.
#1-2 PageID #20.
ECF
On December 18, 2012, Defendants timely removed
the matter from state court pursuant to 28 U.S.C. § 1446(b).
See
ECF No. 1.
Abordo says that, on or about March 29, 2012, he
requested copies of some materials from SCC Librarians Allen and
Trent.
They referred his request to Assistant Warden Griego.
Griego denied the request, confiscated the documents, charged
Abordo with a rule infraction, and sanctioned him.
Abordo claims
Allen, Trent, and Griego did this at the direction of DPS
Defendants Kimoto and Kimura, who were allegedly retaliating
against him for having filed civil suits against DPS and SCC
officials.
Abordo alleges that Defendants’ actions violated the
First and Eighth Amendments; he seeks injunctive relief and
damages.
II.
REMOVAL WAS PROPER
A defendant may remove any civil action brought in
state court over which the federal court would have original
jurisdiction.
28 U.S.C. § 1441(a).
That is, a civil action that
could have originally been brought in federal court may be
removed from state to federal court.
Williams, 482 U.S. 386, 392 (1987).
Caterpillar Inc. v.
A federal court has original
jurisdiction “of all civil actions arising under the
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Constitution, laws, or treaties of the United States.”
§ 1331.
28 U.S.C.
Further, a federal court may exercise supplemental
jurisdiction over closely related state law claims.
See 28
U.S.C. § 1367(c).
Because Abordo alleges Defendants violated the United
States Constitution, subject matter jurisdiction is proper in
federal court.
See 28 U.S.C. §§ 1441, 1442.
Defendants timely
removed the action from state court within thirty days of
service.
28 U.S.C. § 1446(b).
III.
Removal was therefore proper.
TRANSFER UNDER 28 U.S.C. § 1404(a)
“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).
The purpose of § 1404(a) is to
“prevent the waste of time, energy, and money and to protect
litigants, witnesses and the public against unnecessary
inconvenience and expense.”
Van Dusen v. Barrack, 376 U.S. 612,
616 (1964) (internal citations and quotation omitted); Kawamoto
v. CB Richard Ellis, Inc., 225 F. Supp. 2d 1209, 1213 (D. Haw.
2002).
A decision to transfer lies within the broad discretion
of the district court and is determined on an individualized
basis.
See Jones v. GNC Franchising, Inc., 211 F.3d 495, 498
(9th Cir. 2000).
A court therefore has the power to order a
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transfer under § 1404(a) sua sponte.
Tazoe v. Airbus S.A.S., 631
F.3d 1321, 1336 (11th Cir. 2011) (holding that a district court
may sua sponte transfer a civil action to any other district
where it might have been brought if doing so will be convenient
for the parties and witnesses and serve the interest of justice);
see also Panchias v. Bullock, 2012 WL 5425393, at *3 (E.D. Cal.
Nov. 5, 2012) (sua sponte transfer of removed action); Hurt v.
Unit 32, 2012 WL 5269910, at *1 (N.D. Cal. Oct. 24, 2012)
(transferring sua sponte pursuant to § 1404(a)).
The removal of
a case to the federal district court has no bearing on the change
of venue provisions of § 1404, and removed actions may be
transferred pursuant to that statute as though they had been
brought in the federal court originally.
Heft v. AAI Corp., 355
F. Supp. 2d 757, 772-73 (M.D. Pa. 2005).
A.
28 U.S.C. § 1404(a) Factors
The court should weigh relevant public and private
factors to determine whether to transfer a case pursuant to
§ 1404(a), including: (1) the plaintiff’s choice of forum; (2)
the contacts between the chosen forum and the plaintiff’s cause
of action, and the feasibility of consolidation with other
claims;
(3) the convenience of the parties and witnesses; (4)
the ease of access to the evidence; (5) any differences in the
costs of litigation in the two forums; (6) the local interest in
the controversy; (7) the familiarity of each forum with the
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applicable law; and (8) relative court congestion and the time to
trial in each forum.
See Williams v. Bowman, 157 F. Supp. 2d
1103, 1106 (N.D. Cal. 2001); see also Jones, 211 F.3d at 498-99
(adding other considerations specific to its facts, including
where relevant agreements were negotiated and executed).
B.
Analysis
The court first looks at Abordo’s choice of forum.
There is usually 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).
However, when a plaintiff does
not reside in the forum, that choice is given considerably less
weight.
See 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 when
plaintiff does not reside in chosen forum and none of events
alleged in complaint occurred there).
Abordo is incarcerated in
Arizona, and his choice of forum should accordingly be given less
weight.
Second, the majority of events giving rise to Abordo’s
claims occurred in Arizona.
That is, the actions that allegedly
violated the First and Eighth Amendments, including SCC
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officials’ alleged refusal to copy documents for Abordo,
rescission of his law library privileges, and issuance of
sanctions against him, all occurred in Arizona.
Other than
Abordo’s status as a Hawaii inmate incarcerated in Arizona and
his conclusory allegations that Hawaii DPS and Arizona SCC
officials conspired to retaliate against him, there are no
significant connections between his claims and Hawaii.
These
factors strongly support transfer to Arizona.
Third, the convenience of the parties and witnesses
favors transfer to Arizona.
Abordo is in Arizona, as are
Defendants Trent, Allen, and Griego, who have no apparent
contacts with Hawaii beyond their employer SCC’s subsidiary
status with CCA.2
Litigating in Arizona is obviously more
convenient for them.
This court also lacks subpoena power over
nonparty SCC employees and inmates in Arizona who may be
unwilling to be called as witnesses.
Fourth, the costs of litigating this case in Hawaii
favor transfer.
If this case proceeds to trial, the State of
Hawaii will be forced to bear the expense of transporting Abordo
to and from Hawaii, with the attendant costs for his supervision
during the transfer and while he remains in Hawaii.
The costs to
Defendants of defending this suit in Hawaii will also be
2
CCA is a Maryland Corporation that contracts with the
State of Hawaii to house Hawaii inmates at SCC.
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significant, including transportation, lodging, and lost wages
for Griego, Trent, and Allen.
Although Kimoto and Kimura are in
Hawaii, Abordo provides no facts to support his conclusion that
they directed Griego to retaliate against him for having filed
previous lawsuits.
Abordo appears to have named them simply to
lay venue in the Hawaii state court.3
Even if Kimoto and Kimura
remain Defendants after screening under 28 U.S.C. § 1915(e),4
which appears unlikely, the cost of their travel to and from
Arizona may well be less than the cost of transporting Plaintiff
under guard to and from Hawaii.
Defendants paid the federal
filing fee when they removed this action, and any other trial
costs incurred by Abordo will be the same in either federal
district court.
Fifth, the evidence supporting Abordo’s claims, such as
SCC’s law library records, Abordo’s SCC institutional records,
and Griego’s, Trent’s, and Allen’s employment records, as well as
possible nonparty witnesses, are located in Arizona.
Thus, most
of the information in support of and against Abordo’s allegations
is in Arizona.
This suggests that the expense of conducting
3
Abordo has accrued three strikes pursuant to 28 U.S.C.
§ 1915(g). See Abordo v. Corr. Corp. of America, 2:11-cv-01367
(D. Ariz.) (detailing Abordo’s previous three strikes). Because
he does not allege imminent danger of serious physical injury, he
may not commence this suit in forma pauperis in the Arizona or
Hawaii federal court.
4
The court leaves screening of the Complaint pursuant to
28 U.S.C. § 1915(e) to the transferee court.
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discovery will be less in Arizona if the case is transferred.
These factors strongly favor transfer to Arizona.
Finally, the last three factors, (the local interest in
the controversy, familiarity of each forum with the governing
law, and court congestion) are either neutral or, at best, weigh
only slightly against transfer.
There is no evidence that the
District of Hawaii is more favorable than the District of Arizona
for resolution of Abordo’s claims.
To the contrary, if one court
has a stronger interest in the controversy, it is the District of
Arizona, which is the site of SCC and several other prisons owned
and operated by CCA.
The events giving rise to Abordo’s claims
took place in Arizona, and Arizona’s local interest in the
controversy is therefore stronger.
Abordo’s federal
constitutional claims are familiar to the federal courts in both
Arizona and Hawaii, and he raises no state-law claims.
While
Arizona’s considerable prisoner and immigration caseload may
admittedly weigh against transfer, there is no evidence before
this court that court congestion in Arizona will so delay
consideration of Abordo’s claims as to prejudice him.
Deference to Abordo’s choice of forum is limited by the
fact that he is incarcerated in Arizona.
Litigating this suit in
Arizona would be substantially more convenient for the witnesses
and both parties.
Transfer of venue to the District of Arizona
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therefore serves the convenience of the parties and witnesses and
promotes the interests of justice.
III.
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 in this District and send any
pending motions or further documents received from Abordo to the
United States District Court for the District of Arizona.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, December 26, 2012.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Abordo v. Kimoto, et al, 1:12-cv-00686 SOM-BMK, Transfer Order; G:\docs\prose
attys\Trsfr, Venue, Remand\2012\Abordo, 12-686 som (sua sponte chg ven. removl
act).wpd
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