Wiggins v. Seeley et al

Filing 18

ORDER denying ECF Nos. 6 Defendants' Motion to Dismiss or Transfer and 13 Plaintiff's Motion to Remand to State Court. Signed by Judge Howard D. McKibben on 03/13/2017. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 DISTRICT OF NEVADA 10 11 12 13 14 15 16 17 MATTHEW WIGGINS, ) ) Plaintiff, ) ) ) ) vs. ) ) ANDREW SEELEY, RICHARD OOMS, and ) TIFFANY OOMS SEELEY, ) ) Defendants. ) _________________________________ ) 3:16-cv-00642-HDM-WGC ORDER 18 Before the court is defendants Andrew Seeley, Richard Ooms and 19 Tiffany Seeley’s motion to dismiss for improper venue or transfer. 20 (ECF No. 6). 21 (ECF No. 14). 22 Plaintiff responded (ECF No. 12) and defendants replied Also before the court is plaintiff’s motion to remand. (ECF No. 23 13). Defendants responded (ECF No. 16) and plaintiff replied (ECF No. 24 17). 25 I. 26 Background This dispute arises out of a contract entered into on May 26, 27 2016. 28 failed to make the full payments as agreed upon under the contract. (ECF No. 2 at 6). According to the complaint, defendants 1 1 (Id. at 7). As a result, plaintiff alleges that defendants owe him 2 $79,316.39. (Id. at 8). 3 On September 22, 2016, plaintiff filed a complaint for breach of 4 contract in Ninth Judicial District in and for the State of Nevada. 5 (ECF No. 2 at 6-9). 6 action to this court pursuant to 28 U.S.C. § 1332(a). On November 7, 2016, defendants removed the (ECF No. 2). 7 Defendants move to dismiss for improper venue pursuant to Federal 8 Rule of Civil Procedure 12(b)(3) or to transfer the case to the 9 Southern District of California pursuant to 28 U.S.C. § 1404. (ECF 10 No. 6). 11 Nevada in accordance with the forum selection clause set forth in the 12 Private Investment Agreement. (ECF No. 13). The court addresses each 13 motion in turn. 14 II. 15 Plaintiff moves to remand the action to Douglas County, Motion to Dismiss for Improper Venue Defendants move the court to dismiss the action pursuant to 16 Federal Rule of Civil Procedure 12(b)(3) for improper venue. 17 of removed actions is governed by 28 U.S.C. § 1441(a). 18 v. Cowles Magazines, Inc., 345 U.S. 663, 665-66 (1953) (holding that 19 28 U.S.C. § 1391 has no application in removed actions). 20 1441(a) provides that, when an action is removed from state court, 21 venue is automatically proper in the federal district court where the 22 state action was pending. 23 official federal judicial district in the state of Nevada. Therefore, 24 venue is proper in this court. 25 improper venue is denied. 26 III. Motion to Transfer 28 U.S.C. § 1441(a). Venue See Polizzi Section There is only one Defendants’ motion to dismiss for 27 Defendants also request the court transfer the action to the 28 Southern District of California for the convenience of the parties and 2 1 witnesses. 2 parties and witnesses, in the interest of justice, a district court 3 may transfer any civil action to any other district or division where 4 it might have been brought.” 5 Section 1404 establishes that “[f]or the convenience of 28 U.S.C. § 1404(a). In determining whether transfer is appropriate in a particular 6 case, the court is required to weigh multiple factors. Jones v. GNC 7 Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). The court may 8 consider the following factors: 9 10 11 12 13 (1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff’s choice of forum, (4) the respective parties’ contacts with the forum, (5) the contacts relating to the plaintiff’s cause of action in the chosen forum, (6) the differences in the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof. 14 15 Id. at 498–99. 16 “significant factor” in the court’s § 1404(a) analysis. 17 “defendant must make a strong showing of inconvenience to warrant 18 upsetting the plaintiff’s choice of forum.” 19 Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986) (citation 20 omitted). The presence of a forum selection clause is also a Id. A Decker Coal Co. v. 21 Defendants request the court to transfer venue of this case to 22 the Southern District of California. As an initial matter, defendants 23 assert that the matter may be properly brought in the Southern 24 District of California as all defendants are California residents and 25 live in San Diego. See 28 U.S.C. 1391(b)(1). In support of transfer, 26 defendants state that, other than plaintiff, all parties encumbered 27 by the Private Investment Agreement reside in California, travel to 28 Nevada would be a hardship on defendants, defendants may call some 3 1 witnesses who are residents in California, any documents that relate 2 to the operations of Getaway San Diego will be located in California, 3 and 4 Defendants further assert that “[t]here are financial institutions and 5 witnesses in California that may need to be subpoenaed and may not be 6 willing to testify.” that nearly all operative facts occurred in California. (ECF No. 6 at 9). 7 Defendants provide no evidence or affidavit to support the 8 contention regarding financial institutions or witnesses in California 9 that may not be willing to testify. Defendants also fail to explain 10 why travel to Nevada would be more expensive for them than it would 11 be for plaintiff to travel to California. 12 fail to address the significance of the forum selection clause in the 13 Private Investment Agreement. 14 provides that “[t]his agreement will be governed and construed in 15 accordance with the laws of Douglas County, Nevada. 16 Douglas County, Nevada.” Additionally, defendants The Private Investment Agreement Jurisdiction is (ECF No. 6 at 12). 17 A valid forum selection clause “represents the parties’ agreement 18 as to the most proper forum.” Atl. Marine Const. Co., Inc. v. U.S. 19 Dist. Court for W. Dist. of Texas, 134 S.Ct. 568, 581 (2013) (quoting 20 Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 31 (1988)). 21 plaintiff followed the terms of the forum selection clause under the 22 Private Investment Agreement by filing suit in Douglas County, Nevada. 23 As discussed below, defendants do not dispute the validity of the 24 forum selection clause. 25 governing law and plaintiff is a Nevada resident. 26 weighing the factors for and against transfer, the court finds that 27 transfer would not promote “the interest of justice.” 28 motion to transfer is therefore denied. Here, Moreover, Nevada is most familiar with the 4 Accordingly, Defendant’s 1 IV. 2 Motion to Remand Plaintiff seeks to remand this action based upon a forum 3 selection clause in the contract which states, “Jurisdiction is 4 Douglas County, Nevada.” (ECF No. 12-1 at 3). Defendants do not 5 dispute the clause. 6 defendants argue that the forum selection clause is permissive, not 7 mandatory, and that removal is not barred. the validity of forum selection Rather, 8 A forum selection clause will be enforced only where venue is 9 specified with mandatory language. Docksider, Ltd. v. Sea Technology, 10 Ltd., 875 F.2d 762, 764 (9th Cir. 1989). 11 forum selection clause is permissive or mandatory is a question of 12 contract interpretation. 13 Pittsburgh-Des Moines, Inc., 69 F.3d 1034, 1036 (9th Cir. 1995). 14 The question of whether a N. California Dist. Council of Laborers v. “To be mandatory, a clause must contain language that clearly 15 designates a forum as the exclusive one.” 16 the Ninth Circuit held that the clause containing the language that 17 “venue of any action brought hereunder shall be deemed to be in 18 Glouscester County, Virginia” is mandatory. 19 764. 20 Theatres, Inc., 741 F.2d 273, 275 (9th Cir. 1984) the Ninth Circuit 21 held the clause “this Agreement shall be litigated only in the 22 Superior Court for Los Angeles, California (and in not other) . . .” 23 is mandatory. 24 a particular court or state has jurisdiction, but says nothing about 25 it being exclusive jurisdiction, is permissive and generally will not 26 be enforced. 27 1037 (holding that the language ‘shall be enforceable’ is permissive); 28 Hunt Wesson Foods, Inc. v. Supreme Oil Co., 817 F.2d 75, 77 (9th Cir. Similarly, in Pellport Id. at 1037. Investors, For example, Docksider, 875 F.2d at Inc. v. Budco Quality On the other hand, a forum selection clause providing See N. California Dist. Council of Laborers, 69 F.3d at 5 1 1987)(holding the language “shall have jurisdiction over the parties 2 in any action” is permissive). 3 The forum selection clause in the parties’ Private Investment 4 Agreement provides that “Jurisdiction is Douglas County, Nevada.” The 5 clause specifies that jurisdiction will be in Douglas County, but it 6 fails to contain any language about Douglas County having exclusive 7 jurisdiction. Hence, the forum selection clause is permissive and the 8 action was properly removed to this court. 9 motion to remand is denied. 10 11 12 13 14 V. Accordingly, plaintiff’s Conclusion IT IS ORDERED that defendants’ motion to dismiss or transfer (ECF No. 6) is DENIED. IT IS FURTHER ORDERED that plaintiff’s motion to remand (ECF No. 13) is DENIED. 15 IT IS SO ORDERED. 16 DATED: This 13th day of March, 2017. 17 18 ____________________________ UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 6

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