Roedocker v. Farstad Oil, Inc.
Filing
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FINDINGS AND RECOMMENDATIONS. IT IS RECOMMENDED that Farstad's motion (ECF No. 3 ) be GRANTED to the extent it seeks dismissal of Roedockers claim under MCA § 392904(1)(c), but DENIED in all other respects. Signed by Magistrate Judge Carolyn S Ostby on 6/21/2016. (JDR, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
RICHARD ROEDOCKER,
CV 16-29-BLG-SPW-CSO
Plaintiff,
FINDINGS AND
RECOMMENDATION OF
U.S. MAGISTRATE JUDGE
vs.
FARSTAD OIL, INC.,
Defendant.
Plaintiff Richard Roedocker (“Roedocker”) brings this wrongful
discharge action against Defendant Farstad Oil, Inc. (“Farstad”).
Now pending is Farstad’s motion (ECF No. 3)1 to dismiss or
transfer venue. This Court recommends that the motion be granted in
part and denied in part, as set forth below.
I.
ALLEGATIONS OF COMPLAINT
The following facts are taken from the Complaint and, for the
purpose of ruling on the motion to dismiss, are assumed to be true.
Farstad provides multi-state supply and distribution of refined
petroleum products, including gasoline, distillates, propane and
“ECF No.” refers to the document as numbered in the Court’s
Electronic Case Files. See The Bluebook, A Uniform System of Citation,
§ 10.8.3. References to page numbers are to those assigned by ECF.
1
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lubricating oils. ECF No. 7 at 2. Roedocker began working for Farstad
in 1991. His employment as Farstad’s Billings branch manager was
terminated on May 21, 2015. The termination was based on a crude
text message sent by Roedocker to another employee on January 12,
2015, during a work teleconference.
Roedocker alleges that crude language was common in the
workplace and that he is unaware of anyone being reprimanded or
counseled for using crude language. Id. at 4, ¶ 19. The January 12,
2015 text message was sent in response to a crude text message from
another employee, Roger Pelzer (“Pelzer”), and Pelzer responded to the
message with another crude text message. Pelzer was not terminated
for using crude language. Id. at 5, ¶ 38.
On May 11, 2015, Roedocker was called into a meeting with
Natalie Mussell (“Mussell”), and his supervisor, Merv Carter (“Carter”).
Id. They asked Roedocker whether he had sent a derogatory text
message during the January 15, 2015 meeting about a female branch
manager. Roedocker initially responded that he would need to review
the text message exchange. Id. He later sent an email to Mussell and
Carter admitting that he sent a derogatory message to Pelzer regarding
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the female branch manager.
Carter called Roedocker into the Billings office on May 21, 2015.
Id. at 5. Mussell and Carter informed Roedocker that he was
terminated immediately. Roedocker alleges that Farstad claimed he
was terminated for poor communications.
Roedocker alleges that his termination was pretextual because he
reported to Carter “concerns relating, but not limited to, the comingling
of gasoline to branded locations and the sale of diesel used during the
winter months (i.e. #1 diesel and P40 diesel) to customers when these
customers thought they were getting #2 diesel fuel which is typically
used during the warmer months.” Id. He alleges that he raised this
issue during a managers meeting on March 28, 2015. Id. at 6. He
alleges that these comments angered Carter.
II.
PARTIES’ ARGUMENTS
Farstad argues that the Court should dismiss Roedocker’s
Complaint for failure to properly allege any causes of action for which
relief can be granted. ECF No. 4 at 5. Farstad argues that Roedocker
failed to state a claim because: (1) he only vaguely alleges he expressed
concerns about comingling of gasoline, but not what he said, how it was
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connected to his discharge, or that it was actually public policy
violation; (2) he was terminated for good cause, because as a
management-level employee, not calling co-workers derogatory names
has a logical relationship to the needs of the business; (3) he has not
specified a single personnel policy that was violated.
Farstad argues that if the Complaint is not dismissed, the case
should be transferred to North Dakota. It argues that transfer would
be appropriate based on the following factors: (1) Roedocker’s offer of
employment and other documents were negotiated and executed in
North Dakota; (2) all relevant witnesses are in North Dakota, with the
exception of Roedocker; (3) Roedocker had regular contacts with North
Dakota; (4) the action has only been pending for a short time in
Montana; (5) North Dakota courts regularly apply Montana law; (6)
North Dakota courts are less congested than Montana courts; (7) North
Dakota has a local interest in protecting North Dakota employers and
employees from inappropriate and derogatory text messages; and (8)
Roedocker’s choice of forum should be accorded little weight.
In response, Roedocker argues that: (1) there are sufficient facts to
infer that his termination was for reporting a violation of public policy,
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pursuant to MCA § 82–15–110, because he reported unlawful practices
to management, his boss was angered, and he was terminated shortly
after the report; (2) he was not terminated for good cause because other
employees used derogatory and crude language as well, but were not
terminated, and this discrepancy demonstrates he was discharged on a
pretext; (3) he was terminated in violation of Farstad’s personnel
policies because two other managers engaged in conduct that violated
the code of conduct but were not terminated, and that without
discovery, Roedocker could not cite a specific provision of Farstad’s
written policies.
Next, Roedocker argues that Farstad’s motion presented evidence
outside of the pleadings, and the motion should be converted to a
summary judgment motion if the Court considers the extra information
in ruling on the motion to dismiss. Id. at 11.
Finally, Roedocker argues that Farstad has not met its burden to
demonstrate that the forum should be changed. Id. at 12. He argues
that: (1) his choice of forum warrants great deference, especially
because he lives and works in Billings, and Farstad’s actions damaged
him in Billings; (2) electronic discovery renders document location
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irrelevant to transfer considerations, and is at best a neutral
consideration; (3) the location of witnesses in North Dakota does not
support transfer because Farstad has not made the necessary showing
that witnesses will not attend proceedings in Montana, or that there is
a severe inconvenience, but only provides vague references to high
travel costs; (4) Farstad has significant contacts with Montana, and
gladly accepts the benefits of conducting business in Montana, and his
contacts with North Dakota are not significant enough to justify a
transfer; (5) the length of time the action has been pending is a neutral
consideration; (6) Montana’s courts are less congested than North
Dakota’s courts; (7) Montana is the most familiar with Montana law,
and has a local interest in protecting Montana employees from conduct
that violates Montana law, especially based on the unique statutory
construction of the Montana’s Wrongful Discharge from Employment
Ace (“WDEA”), MCA §§ 39-2-901, et seq.
III. LEGAL STANDARD
Dismissal under Rule 12(b)(6) is proper only when the complaint
either (1) lacks a cognizable legal theory or (2) fails to allege sufficient
facts to support a cognizable legal theory. Zixiang Li v. Kerry, 710 F.3d
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995, 999 (9th Cir. 2013). The Court’s standard of review under Rule
12(b)(6) is informed by Rule 8(a)(2), which requires that a pleading
contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677–678
(2009) (quoting Fed. R. Civ. P 8(a)).
To survive a motion to dismiss under Rule 12(b)(6), a complaint
must contain sufficient factual matter, accepted as true, to state a claim
for relief that is plausible on its face. A claim has facial plausibility
when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct
alleged. A plausibility determination is context specific, and courts
must draw on judicial experience and common sense in evaluating a
complaint. Levitt v. Yelp! Inc., 765 F.3d 1123, 1135 (9th Cir. 2014). In
Levitt, the Ninth Circuit summarized the test:
First, to be entitled to the presumption of truth, allegations
in a complaint or counterclaim may not simply recite the
elements of a cause of action, but must contain sufficient
allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself effectively.
Second, the factual allegations that are taken as true must
plausibly suggest an entitlement to relief, such that it is not
unfair to require the opposing party to be subjected to the
expense of discovery and continued litigation.
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Id. (citations omitted).
IV.
DISCUSSION
A.
WDEA
The WDEA provides:
(1) A discharge is wrongful only if:
(a) it was in retaliation for the employee's refusal to violate
public policy or for reporting a violation of public policy;
(b) the discharge was not for good cause and the employee
had completed the employer's probationary period of
employment; or
(c) the employer violated the express provisions of its own
written personnel policy.
(2)(a) During a probationary period of employment, the
employment may be terminated at the will of either the employer
or the employee on notice to the other for any reason or for no
reason.
MCA § 39–2–904. Unless otherwise provided, the probationary period
is 6 months from the date of hire. Id.
Roedocker alleges Farstad violated three provisions of the WDEA.
He alleges that his discharge was: (1) not for good cause, and Farstad
lacked reasonable job-related grounds, under MCA § 39–2–904(1)(b); (2)
in violation of the express provisions of Farstad’s policies and
procedures, under MCA § 39–2–904(1)(c); and (3) done based on his
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reporting violations of public policy, under MCA § 39–2–904(1)(a). ECF
No. 7 at 6. The Court will discuss the motion to dismiss based on each
alleged violation.
1.
GOOD CAUSE
The WDEA defines good cause as “reasonable job-related grounds
for dismissal based on a failure to satisfactorily perform job duties,
disruption of the employer’s operation, or other legitimate business
reasons.” MCA § 39–2–903(5). A legitimate business reason is one that
is “neither false, whimsical, arbitrary or capricious, and . . . must have
some logical relationship to the needs of the business.” Baumgart v.
State of Montana, 332 P.3d 225, 231 (Mont. 2014) (quoting Sullivan v.
Continental Const. of Montana, LLC, 299 P.3d 832, 835 (Mont. 2013)).
This showing may be met by demonstrating that the given reason for an
employee’s discharge “is not the honest reason for the discharge, but
rather a pretext for some other illegitimate reason.” Marcy v. Delta
Airlines, 166 F.3d 1279, 1284 (9th Cir. 1999); see also Mysse v. Martens,
926 P.2d 765, 770 (Mont. 1996). Additionally, the Montana Supreme
Court has clarified that:
An employer's legitimate right to exercise discretion over
whom it will employ must be balanced, however, against the
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employee's equally legitimate right to secure employment.
The balance should favor an employee who presents
evidence, and not mere speculation or denial, upon which a
jury could determine that the reasons given for his
termination were false, arbitrary or capricious, and
unrelated to the needs of the business.
Johnson v. Costco Wholesale, 152 P.3d 727, 733 (Mont. 2007) (quoting
Kestell v. Heritage Health Care Corp., 858 P.2d 3, 8 (Mont. 1993)).
Here, Roedocker has alleged that he and another employee,
Pelzer, exchanged derogatory text messages about a branch manager
during a meeting. ECF No. 7 at 3. He alleges that: (1) crude language
was common in the workplace; (2) Pelzer and others also made
derogatory comments and were not terminated; and (3) the text
message was private and not shared with anyone other than Pelzer.
ECF No. 7 at 3–7. The Court must construe the facts alleged by
Roedocker as true in determining a motion to dismiss. Roedocker does
admit he sent a derogatory message about a branch manager during a
work meeting, on the cell phone provided to him by Farstad. But the
Court finds that Roedocker has pled enough facts to suggest that
Farstad may have dealt with Roedocker’s conduct in an arbitrary
manner because others were not punished in the same manner for
similar conduct. He specifically alleges that other employees, including
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Pelzer, also used crude language but were not punished or terminated.
He additionally alleges that he was terminated for reporting public
policy violations, and that the crude email was only used as a pretext.
These facts sufficiently allege that Roedocker may have been
terminated without good cause because his termination was arbitrary
and the given reason may have been a pretext for reporting public
policy violations.
Accordingly, the Court finds that Roedocker has adequately
alleged a claim under MCA § 39–2–904(1)(b).
2.
FARSTAD’S PERSONNEL POLICIES
The WDEA provides that a discharge is wrongful if the employer
violated the express provisions of its own written personnel policy. MCA
§ 39–2–904(1)(c).
Here, Roedocker alleges that Farstad terminated him in violation
of “the express provisions of its policies and procedures,” but does not
allege a single fact regarding which policy or how it was violated. An
allegation in a complaint is not entitled to the presumption of truth it if
simply recites the elements of a cause of action. Levitt, 765 F.3d at
1135. Roedocker fails to allege any underlying facts regarding which
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personnel policy Farstad violated, or how it was violated. Instead, he
recites the language of the statute to support his claim. Accordingly,
the Court finds that Roedocker has failed to allege a claim under MCA §
39–2–904(1)(c), for a violation of the Farstad’s written personnel policy.
3.
REPORTING VIOLATIONS OF PUBLIC POLICY
“The WDEA’s retaliatory discharge provision, § 39–2–904(1)(a),
MCA, . . . exists to protect the State’s interest in enforcing State policies
‘concerning the public health, safety, or welfare established by
constitutional provision, statute, or administrative rule.’ ” Fenno v.
Mountain West Bank, 192 P.3d 224, 230 (Mont. 2008) (quoting MCA
§39–2–903(7)). “[T]he WDEA protect[s] employees who take steps in
their employment to promote the enforcement of laws and regulations.”
Id. The WDEA defines public policy as “a policy in effect at the time of
the discharge concerning the public health, safety, or welfare
established by constitutional provision, statute, or administrative rule.
MCA § 39–2–903(7).
Roedocker alleges that the reason provided for his termination
was a pretext, and that he was actually terminated because he reported
a violation of public policy to his supervisor. ECF No. 7 at 5–6. He
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alleges that he reported concerns relating to the comingling of gasoline
to branded locations and the sale of diesel in violation of MCA § 82–15–
110(7). He further alleges that this report occurred during a managers
meeting on March 28, 2015. Id. at 6.
Farstad argues that saying “something about a violation of public
policy to someone at Farstad” is not sufficient to state a claim under
MCA § 39–2–904(1)(a). ECF No. 10 at 3 (emphasis omitted). But
nothing in the statute, nor in any binding decision, requires an
employee to make a report to anyone other than the employee’s
employer. Fenno, 192 P.3d at 228 (citing MCA § 39–2–904(1)(a)) (in
determining whether a federal whistleblower statute preempted the
WDEA, the Court highlighted that “the WDEA does not identify to
whom the employee must report violations in order to qualify for
protection.”); see also Russell v. Daiichi-Sankyo, Inc., 2012 WL 1793226,
at *13 (D. Mont. May 15, 2012). Roedocker describes: (1) the nature of
the public policy violation; (2) the date he voiced his concerns; (3) the
venue in which he voiced his concerns; and (4) the statute he alleges the
Farstad violated. ECF No. 7 at 5–6. From this, the Court finds that
Roedocker has adequately alleged a claim under MCA § 39–2–904(1)(a).
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B.
VENUE
The Court has the discretion, under 28 U.S.C. § 1404(a), to
transfer a civil action to a different venue. The governing statute
provides that:
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
or to any district or division to which all parties have
consented.
28 U.S.C. § 1404(a). A decision to grant a motion to transfer venue
must be based on an “individualized, case-by-case consideration of
convenience and fairness.” Jones v. GNC Fran., Inc., 211 F.3d 495, 498
(9th Cir. 2000) (quoting Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22,
29 (1988)). The Court must weigh multiple factors to determine
whether transfer is appropriate in a particular case. Id. Factors
frequently considered include:
1. the plaintiff's choice of forum,
2. the location where the relevant agreements were
negotiated and executed,
3. the convenience of witnesses,
4. the ability of the two forums to compel non-party
witnesses to testify,
5. the respective parties' relative contacts with the forums,
6. the state that is most familiar with the governing law,
7. the relative congestion in the two forums,
8. the length of time action has already been pending in the
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transferor forum,
9. ease of access to sources of proof, and
10. whether there is a “local interest” in either of the forums.
RD Rod, LLC v. Montana Classic Cars, LLC, 2012 WL 6632185, at *3
(D. Mont. Dec. 19, 2012); see also Jones, 211 F.3d at 498–499. The
relevant public policy of the forum state is also a significant factor in
this analysis. Id.
The moving party bears the burden of establishing that venue
should be changed. Jones, 211 F.3d at 499. “The defendant must make
a strong showing of inconvenience to warrant upsetting the plaintiff’s
choice of forum.” Decker Coal Co. v. Commonwealth Edison Co., 805
F.2d 834, 843 (9th Cir. 1986). When a discretionary venue transfer
would only shift the inconvenience from defendant to plaintiff, the
motion to transfer should be denied.” Anderson v. Thompson, 634
F.Supp. 1201, 1204 (D. Mont. 1986) (citation omitted).
As a threshold to considering a motion under 28 U.S.C. § 1404(a),
the Court must first determine whether the action could have been
brought in the District of North Dakota. If so, then it must consider the
relevant factors.
Here, the action could have been brought in the District of North
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Dakota. A civil action may be brought in “a judicial district in which
any defendant resides, if all defendants are residents of the State in
which the district is located[.]” 28 U.S.C. § 1391. Farstad is the sole
defendant, and alleges it is a resident of North Dakota. Farstad is
incorporated in, and has its principle place of business in, North
Dakota. ECF No. 5 at 1. Accordingly, because the action could have
been filed in North Dakota, the Court will consider each relevant factor
in turn.
1.
Plaintiff’s Choice of Forum
There exists a strong presumption in favor of a plaintiff’s choice of
forum. Gulf Oil v. Gilbert, 330 U.S. 501, 508 (1974); Anderson, 634
F.Supp. at 1204 (citing Pacific Car & Foundry Co. v. Pence, 403 F.2d
949 (9th Cir. 1968)).
Roedocker chose Montana as his choice of forum. This factor
weighs against transferring the action. Farstad argues this factor
should be accorded little weight because the operative facts that give
rise to Roedocker’s claims occurred in North Dakota. But the Court
disagrees. Roedocker was terminated in Montana, from his
employment in Montana, and he sent the text message at issue from
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Montana. See ECF No. 7. Accordingly, this factor weighs heavily
against transferring the action.
2.
Location Where Relevant Agreements were
Negotiated and Executed
Farstad argues that this factor favors transfer because
Roedocker’s employment offer and other documents were negotiated
and executed in North Dakota. ECF No. 4 at 14. But the Court is
persuaded by Roedocker’s argument that advances in technology, and
electronic discovery, render this factor much less important than other
factors. Transporting documents no longer creates the large burden it
once did. David v. Alphin, 2007 WL 39400, at *3 (N.D. Cal. Jan. 4,
2007). This is especially true here, where the parties argue that most of
the relevant documents were sent back and forth between Montana and
North Dakota. See ECF No. 4 at 14; ECF No. 9 at 12. Accordingly, the
Court finds that this factor neither favors nor disfavors transfer.
3.
Convenience of Witnesses
The “mere fact a party wishes to call witnesses who reside in a
transferee district is not sufficient to warrant transfer, unless the party
makes a sufficient showing that the witnesses will not attend, or will be
severely inconvenienced if litigation proceeds in the transferor forum.”
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Anderson, 632 F.Supp. at 1207.
Here, Farstad does not make a sufficient showing to demonstrate
that any witnesses will not be available for trial in Montana. Farstad
also fails to make a sufficient showing that the witnesses would be
severely inconvenienced. Instead, Farstad generally argues that
individuals named in the Complaint would likely need to be called as
witnesses and would have to “travel significant distances” and bear
“high travel costs.” Id. at 15. But it’s not entirely clear from this
exactly which individuals Farstad is referring to, or where those
individuals are located. Based on the lack of detail it is impossible to
determine if witnesses would have to travel significant distances, or
what those costs would be.
Farstad’s motion does not specify the location of the witnesses, but
only indicates it has offices in Minot, North Dakota, Fargo, North
Dakota, and Billings, Montana. ECF No. 4 at 6. Depending on the
division within North Dakota the case is transferred to, witnesses may
still have to travel a significant distance even if the case were
transferred to North Dakota. Accordingly, this factor does not favor
transfer.
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4.
Ability of the Two Forums to Compel Non-Party
Witnesses to Testify
After considering the parties’ arguments with respect to burdens
on witnesses, the Court concludes that the availability of compulsory
process to compel unwilling witnesses is not a significant issue here.
Farstad has not identified any specific witness who would be
unavailable and could not be compelled to attend trial. Accordingly, the
Court finds that the factor weighs neither in favor of, nor against, the
motion to transfer venue.
5.
Parties’ Relative Contacts with the Forums
The parties all have contacts with both forums based on the
nature of the underlying action. Roedocker lives in Montana, and was
employed in Montana. Farstad has its principle place of business in
North Dakota, but has an office in Billings, Montana, and conducts
work in this state. Both parties argue that Roedocker frequently sent
documents to North Dakota, and was involved in teleconferences. ECF
No. 4 at 16–17; ECF No. 9 at 15. It appears that transferring the action
would merely shift the inconvenience from the Defendant to the
Plaintiff, which is an impermissible basis for transferring the action.
Anderson, 634 F.Supp. at 1204. This factor weighs against transferring
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the action to North Dakota.
6.
State Most Familiar with Governing Law
The action is based on Montana law and Montana is thus the most
familiar with the governing law. Accordingly, this factor weighs
strongly against transferring venue.
7.
Relative Congestion in the Two Forums
The Court may consider the relevant congestion of the courts in
North Dakota and Montana. Statistics compiled by the Administrative
Office of the United States Courts reflect that for the 12-month period
ending March 31, 2016, the weighted filings per judge in the District of
North Dakota was 441, and the average time from filing to disposition
was 11.3 months in civil cases. For that same 12-month period, in the
District of Montana, weighted filings per judge totaled 414, and the
average disposition time was 8.6 months. See Admin. Office of the
United States Courts, Federal Court Management Statistics (March 31,
2016); http://www.uscourts.gov/statistics/table/na/federal-courtmanagement-statistics/2016/03/31-1. Accordingly, this factor weighs
against transferring the action.
8.
Length of Time an Action has Been Pending
This action has only been pending for a short time, but the Court
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concludes that this factor weighs neither in favor nor against the
motion to transfer.
9.
Ease of Access to Sources of Proof
Farstad does not make an argument specific to this factor. But, as
discussed above regarding the location of documents, this factor is a
neutral consideration based on the nature of this case.
10.
Whether There is a Local Interest in Either
Forum
Farstad argues that North Dakota has an interest in protecting
North Dakota employers and employees from inappropriate and
derogatory text messages. ECF No. 4 at 18–19. Roedocker argues that
Montana has an interest in protecting its employees from violations of
Montana law and in prohibiting violations of its laws. ECF No. 9 at 18.
The Court finds that because both states may have an interest in
enforcing the law, this factor weighs neither in favor nor against the
motion to transfer.
11.
Balancing the Factors
Based on the totality of the factors discussed above, the Court
finds that they weigh against transferring the action to the District of
North Dakota. As a result, the Court concludes that Farstad has not
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met its burden of establishing that transfer of venue is appropriate and
the Court recommends that Farstad’s motion, to the extent it requests a
transfer of venue, be denied.
V.
CONCLUSION
IT IS RECOMMENDED that Farstad’s motion (ECF No. 3) be
GRANTED to the extent it seeks dismissal of Roedocker’s claim under
MCA § 39–2–904(1)(c), but DENIED in all other respects.
NOW, THEREFORE, IT IS ORDERED that the Clerk shall serve
a copy of the Findings and Recommendation of United States
Magistrate Judge upon the parties. The parties are advised that
pursuant to 28 U.S.C. § 636, any objections to the findings and
recommendation must be filed with the Clerk of Court and copies
served on opposing counsel within fourteen (14) days after entry hereof,
or objection is waived. See Local Rule 72.3.
DATED this 21st day of June, 2016.
/s/ Carolyn S. Ostby
United States Magistrate Judge
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