Moyer et al v. United States of America

Filing 16

ORDER Denying 5 Motion to Change Venue. IT IS FURTHER ORDERED that 13 Government's Motion to Stay is DENIED as moot. Signed by Judge James C. Mahan on 6/6/13. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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2:13-CV-341 JCM (VCF)

SHIRLEY J. MOYER, et al.,

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Plaintiff(s),

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v.

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UNITED STATES OF AMERICA,

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Defendant(s).

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ORDER

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Presently before the court is defendant United States of America’s (the “government”)

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motion to transfer venue. (Doc. # 5). Plaintiffs, Shirley J. Moyer and estate of Robert H. Moyer,

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filed a response in opposition (doc. # 6), and the government filed a reply (doc. # 8).

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Also before the court is the government’s motion to stay merits discovery pending resolution

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of the motion to transfer venue. (Doc. # 13). Plaintiffs filed a response in opposition (doc. # 14),

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and the government filed a reply (doc. # 15).

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I.

Background

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Robert H. Moyer (“Moyer”) was a World War II veteran and eligible for veteran benefits,

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including medical care at a Veterans Administration (“VA”) health care facility. (Doc. # 1, compl.

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at ¶ 6). Moyer received some treatment at a Las Vegas Veterans Administration facility. (See id.

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at ¶ 15). Based on this treatment, Moyer was referred or sent to the Veterans Administration Long

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Beach Healthcare System (“VALB”), located in Long Beach, California. (See id. at ¶ 15). Moyer

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James C. Mahan
U.S. District Judge

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died in Nevada shortly after treatment at, and release from, VALB. (Id. at ¶ 19).

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Moyer’s widow, Shirley Moyer, filed the instant lawsuit on behalf of herself and her deceased

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husband’s estate. The complaint alleges that Moyer died from negligence and medical malpractice,

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pursuant to the Federal Tort Claims Act (FTCA), based on Moyer’s treatment at VALB.

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The government filed a motion to transfer venue to the Central District of California. The

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issue to be resolved by this order is whether this court should transfer venue pursuant to 28 U.S.C.

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§ 1404(a).

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II.

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Legal Standard
The statute governing transfer of venue, 28 U.S.C. § 1404(a), provides:

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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 .
...

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A district court’s decision on whether to transfer a case requires the court to conduct a case

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specific “consideration of convenience and fairness.” Jones v. GNC Franchising, Inc., 211 F.3d 495,

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498 (9th Cir. 2000). “The defendant must make a strong showing of inconvenience to warrant

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upsetting the plaintiff’s choice of forum.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d

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834, 843 (9th Cir. 1986).

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A motion to transfer venue under § 1404(a) requires the court to weigh and consider the

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following eight factors: “(1) the location where the relevant agreements were negotiated and

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executed; (2) the state that is most familiar with the governing law; (3) the plaintiff’s choice of

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forum; (4) the respective parties’ contacts with the forum; (5) the contacts relating to the plaintiff’s

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cause of action in the chosen forum; (6) the differences in the costs of litigation in the two forums;

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(7) the availability of compulsory process to compel attendance of unwilling non-party witnesses;

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and, (8) the ease of access to sources of proof.” Jones, 211 F.3d at 498-99.

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III.

Discussion

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The court will address each factors in turn.

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A.

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The parties agree that since this action lies in tort, rather than contract, there are no relevant

Location of Agreements

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James C. Mahan
U.S. District Judge

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agreements involved. The court agrees and this factor is neutral.

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B.

Familiarity with Governing Law

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Both parties agree that FTCA actions are governed by the substantive law of the state in

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which the alleged tort occurred. 28 U.S.C. § 1346(b)(1). In this case, both parties further agree that

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California law would apply. This factors weighs slightly in favor of the government. California

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federal courts undoubtedly apply California state law more frequently than Nevada federal courts.

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However, this court would just as undoubtedly apply and analyze the same law correctly.

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C.

Choice of Forum

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Any civil action for tort against the United States may be prosecuted only in the judicial

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district where the plaintiff resides or where the act or omission occurred. 28 U.S.C. § 1402(b).

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Normally, “great weight is generally accorded plaintiff’s choice of forum.” Lou v. Belzberg, 834

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F.2d 730, 739 (9th Cir. 1987).

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The government argues that the operative facts occurred in the Central District of California.

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Plaintiffs respond by conceding that some of the operative facts occurred in California. However,

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plaintiffs argue that the government omits as operative facts all the recommendations and decisions

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made by the local VA chapter when referring Mr. Moyer to the VALB in California. Plaintiff argues

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that a key issue will be certain recommendations made by local, Las Vegas, physicians that were

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subsequently ignored by VALB physicians.

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All these arguments are in addition to plaintiffs’ selection of this forum. The court finds that

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this factor weighs heavily in favor of Mrs. Moyer. The government’s vast resources far outweigh

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those of a 76-year-old widow. The government would be far less burdened by litigating the instant

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action in California than plaintiffs litigating the action in California.

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D.

Parties’ Contacts with the Forum

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This factor weighs slightly in favor of plaintiffs. Plaintiffs have extensive contacts with the

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forum and none with the proposed transferee venue. The government’s likely key witnesses have

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little or no contacts with the current forum. The plaintiffs’ contacts slightly outweigh those of the

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government’s witnesses and militate towards maintaining the action with this court.

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U.S. District Judge

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E.

Contacts Relating to the Plaintiff’s Cause of Action in the Chosen Forum

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The majority of the facts relating to the plaintiffs’ cause of action originate from actions in

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California.

Mr. Moyer was operated on in California.

However, still relevant are the

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recommendations and treatment of Mr. Moyer by Las Vegas VA physicians prior to the alleged

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incident in California. This factor weighs slightly in favor of the government’s position.

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F.

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There are key witnesses in both forums. The key witnesses in Nevada include Mrs. Moyer

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and the local VA physicians and doctors. The key witnesses in California include the physicians that

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operated on Mr. Moyer before he died and any expert witnesses needed by the parties. This factor

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is neutral.

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G.

Differences in the Cost of Litigation in the Two Forums

Availability of Compulsory Process to Compel Attendance of Unwilling Non-Party
Witnesses

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The VA physicians that reside in California would be beyond this court’s subpoena power

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if the action remained in this forum. The VA physicians that reside in Nevada would be beyond the

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California federal court’s subpoena power. This factor is neutral.

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H.

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The court finds that both parties will be able to access any relevant and necessary sources of

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Ease of Access to Sources of Proof

proof. This factor is neutral.

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I.

Public Policy Considerations

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The government argues that California has an interest ensuring that its resident doctors

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receive fair treatment in a determination of whether they committed malpractice. Plaintiffs respond,

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persuasively, that Nevada has just a strong an interest in the treatment of its veterans, and that one

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of its citizens (Mrs. Moyer) be compensated for any wrongs. The court finds this factor slightly

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weighs against transfer.

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IV.

Conclusion

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In sum, the court finds that the government would be inconvenienced less by litigating this

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action in this forum (which was the plaintiffs’ choice) than plaintiffs would be by litigating this

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James C. Mahan
U.S. District Judge

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action in California. Further, the government failed to “make a strong showing of inconvenience to

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warrant upsetting the plaintiff’s choice of forum.” See Decker Coal, 805 F.2d at 843 (9th Cir. 1986).

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This court’s resolution of the motion to transfer moots the motion to stay discovery pending

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the resolution of the motion to transfer.

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Accordingly,

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IT IS HEREBY, ORDERED, ADJUDGED, DECREED that the government’s motion to

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transfer (doc. # 5) be, and the same hereby, is DENIED.
IT IS FURTHER ORDERED that the government’s motion to stay discovery pending
resolution of the motion to transfer (doc. # 13) be, and the same hereby, is DENIED as moot.
DATED June 6, 2013.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
U.S. District Judge

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