Catawba Riverkeeper Foundation et al v. North Carolina Department of Transportation et al
Filing
57
ORDERED, this case will be TRANSFERRED from the Western District of North Carolina to the Eastern District of North Carolina pursuant to 28 U.S.C. § 1404 for such further proceedings as that court may deem appropriate. Signed by District Judge Robert J. Conrad, Jr on 12/30/2014. (jlk)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:12-cv-559-RJC-DCK
CATAWBA RIVERKEEPER
FOUNDATION and CLEAN AIR
CAROLINA,
)
)
)
)
Plaintiffs,
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)
v.
)
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NORTH CAROLINA DEPARTMENT OF )
TRANSPORTATION, ANTHONY J.
)
TATA, SECRETARY, NCDOT,
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FEDERAL HIGHWAY
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ADMINISTRATION, and
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JOHN F. SULLIVAN, DIVISION
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ADMINISTRATOR, FHWA,
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Defendants.
)
___________________________________ )
ORDER
THIS MATTER is before the Court, sua sponte, to transfer venue of this case to the
Eastern District of North Carolina so that it may proceed before the Honorable James C. Dever,
III.
I. BACKGROUND
This is an environmental challenge to the construction of the Gaston East-West
Connector, a proposed 22 mile toll road that would “run from I-85 west of Gastonia to I-485 near
the Charlotte-Douglas Airport.” (Doc. No. 33 at 1). Plaintiffs contend that Defendants violated
the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. (“NEPA”), in preparing the
Environmental Impact Statement (“EIS”) and issuing the Record of Decision (“ROD”).
Specifically, the Complaint alleges that Defendants erroneously “compared ‘building the road’ to
‘building the road’” in their environmental analysis. (Id. at 3).
Plaintiffs’ Complaint (“Garden Parkway”), filed on August 28, 2012 contains four
separate claims for relief. (Doc. No. 1 at 21-28). Viewed from the perspective of the Plaintiffs’
attorneys, the complaint is remarkably similar in content, claims for relief, legal theory, and case
history as the complaint they filed in N.C. Wildlife Fed’n v. N.C. DOT, 3:14-cv-338-GCM
(W.D.N.C.) (“Wildlife II”), (Doc. No. 1). That complaint was filed in the Western District of
North Carolina on June 23, 2014 and recently transferred to the Eastern District of North
Carolina by Order dated November 14, 2014. (Id., Doc. No. 27).
That lawsuit in turn followed an earlier challenge filed on November 2, 2010 in the
Eastern District of North Carolina. See N.C. Wildlife Fed’n v. N.C. DOT, No. 5:10-cv-476-D
(E.D.N.C.) (“Wildlife I”). The district court in Wildlife I found in favor of Defendants, ruling that
the Monroe Connector complied with NEPA. Wildlife I, No. 5:10-cv-476-D, 2011 WL 5042075
*1, *17 (E.D.N.C. Oct. 24, 2011). Following Plaintiffs’ appeal, the United States Court of
Appeals for the Fourth Circuit vacated the district court’s judgment and remanded the matter “so
that the Agencies and the public can fully (and publicly) evaluate the ‘no build’ data.” N.C.
Wildlife Fed’n v. N.C. DOT, 677 F.3d 596, 605 (4th Cir. 2012) (“Wildlife IA”).
Instead of litigating the remand before Judge Dever, Plaintiffs brought Wildlife II in the
W.D.N.C. Counsel in Wildlife I & II and Garden Parkway are the same. In filing Wildlife II,
counsel did not file a related case notice.1 Nor did they indicate to this Court that a case had
been filed in Judge Mullen’s court, even when specifically asked about the remand status of
1
In their initial filings of Wildlife II, Plaintiffs had the opportunity to notify the court of any related cases filed in the
W.D.N.C. The W.D.N.C. provides a Civil Case Opening Guide that instructs parties on filing a civil complaint and
other initiating documents. In the Guide parties are instructed to provide information regarding related cases. See
Civil Case Opening Guide at 2-3. The related case check box was not checked when Wildlife II was opened.
2
Wildlife I and its litigation history during the hearing on November 21, 2014. 2 As a result Judge
Mullen issued a transfer Order on November 14, 2014 without full knowledge of Garden
Parkway before this Court. Likewise this Court conducted a hearing on November 21, 2014
without knowledge of the recently transferred action in Judge Mullen’s court.
This complex course of litigation is best simplified in a graph. If the litigation were
graphed as originally filed it would appear as such:
Wildlife I
5:10-cv-476-D
Filed: November 2, 2010
EDNC
Judge Dever
Garden Parkway
3:12-cv-559-RJC
Filed: August 28, 2012
WDNC
Judge Conrad
Wildlife II
3:14-cv-338-GCM
Filed: June 23, 2014
WDNC
Judge Mullen
As a result of Judge Mullen’s Order to transfer, the litigation grouped accordingly:
Garden Parkway
Wildlife I
Wildlife II
EDNC
Judge Dever
WDNC
Judge Conrad
t the post-rema
The Court tried without much success to learn more about the post-remand litigation activity in the case. After a
series of opaque answers to the Court’s questions, the fact that Wildlife II had been filed in this district, assigned to
Judge Mullen and subject to a transfer Order was not revealed:
The Court:
And so what – on remand what is the status?
Ms. Hunter:
So the agencies went back and revisited their analysis that was – that case was in May of 2012
when it came down and they spent maybe a year and a half revisiting their analysis and published
a new
EDNC record of decision earlier this year.
The Court:
And so in terms of the litigation histories since remand?
Ms. Hunter: Judge Dever plaintiffs in that case challenged that new record of decision.
And so the
The Court:
In the same case?
Ms. Hunter:
Well, it’s a new case. But, yes, Your Honor.
2
Oral Argument Transcript, November 21, 2014, 3:12-cv-559-RJC, at 10-11.
3
As a result of the instant Order, the litigation graph will look like this:
Wildlife I
Wildlife II
Garden Parkway
EDNC
Judge Dever
Taking Plaintiffs at their word, Wildlife I & II and Garden Parkway are “duplicate” cases.
(Doc. No. 33 at 39). Plaintiffs repeatedly equated this Garden Parkway action to the Wildlife
actions in their complaint, summary judgment briefing, and again in oral arguments:
The United States Court of Appeals for the Fourth Circuit recently invalidated
defendants’ NEPA review for a similar toll highway proposal, the Monroe
EDNC
Connector/Bypass. N.C. Wildlife Fed’n v. N.C. DOT, 677 F.3d 596 (4th Cir. 2012)
Judge Dever
(Wildlife IA).3
In its decision, the Fourth Circuit condemned the NEPA analysis for the Monroe
Connector/Bypass in which defendants – the same defendants as in the present action –
compared “building the road” with “building the road” in their impacts and alternatives
analysis, and were not candid with the public and state and federal resource agencies.
Defendants’ analysis for the Gaston East-West Connector is infected with the same
arbitrary and capricious analysis.4
Fourth, defendants failed to supplement the Environmental Impact Statement to address
significant developments since the EIS was originally issued including the recent ruling
by the United States Court of Appeals for the Fourth Circuit that invalidated their
similarly flawed analysis for the proposed Monroe toll highway;… 5
On May 3, 2012, The United States Court of Appeals for the Fourth Circuit issued a
unanimous opinion invaliding FHWA’s and NCDOT’s environmental analysis for a
similar Charlotte area toll highway. The flawed methodologies struck down by the Court
3
Doc. No. 1 at 2 (emphasis added).
Id. (emphasis added).
5
Id. at 4 (emphasis added).
4
4
were in substance the same, and in some places identical, to the methodologies used to
analyze the impacts and alternatives for the Gaston East-West Connector.6
The MRM assumed the existence of the Gaston East-West Connector. Thus, just as with
the Monroe Connector/Bypass, both “Build” and “No Build” forecasts were premised on
the same set of underlying socio-economic data, which assumed construction of the Toll
Road.7
Subsequent to the Fourth Circuit ruling, on June 1, 2012, the Conservation Groups wrote
a letter to FHWA asking it to withdraw the ROD for the Gaston East-West Connector and
prepare a Supplemental Environmental Impact Statement for the Toll Road to take
account of the recent ruling of the United States Court of Appeals (Wildlife IA).8
Significant new circumstances that require supplementation of the Final EIS include at
least the following: a. The recent ruling by the United States Court of Appeals for the
Fourth Circuit invalidating Defendants’ use of the same methodology to analyze traffic
forecasts and induced growth for a similar toll highway project in the Charlotte region.9
Supplementing the Complaint’s linkage of Garden Parkway and Wildlife I & IA, the summary
judgment briefing continually argue the same point:
Just last year, in N.C. Wildlife Federation v. N.C. DOT, the Fourth Circuit found that the
same Defendants had once more violated NEPA in their review of the Monroe Bypass,
another proposed Charlotte-area toll highway. 677 F.3d 596 (4th Cir. 2012)… Among
other errors, these Defendants again compared “building the road” to “building the road.”
The Court strongly rebuked these same Defendants and remanded the EIS back for
reevaluation. 10
The EIS for the Connector and for the Monroe Bypass were drafted by the same people
and at the same time, both under the purview of NCTA. Meetings were held to jointly
discuss the two projects with the same consultants, engineers and agency
representatives. Not surprisingly, the analysis of the two projects contain the same
flaws. Both projects are the results of the same schizophrenic transportation planning
process.11
The Conservation Groups, as in N.C. Wildlife Federation, seek transparency and
truthfulness…The current EIS does none of these, but instead compares “building the
6
Id. at 11 (emphasis added).
Id. at 15 (emphasis added).
8
Id. at 45.
9
Id. at 27 (emphasis added).
10
Doc. No. 33 at 2 (emphasis added).
11
Id. (emphasis added).
7
5
road” with “building the road.” Defendants’ ROD is based on the arbitrary and
inconsistent analysis – just as it was for the Monroe Bypass. 12
Again, just as they had done with the Monroe Bypass, by comparing “building the road”
to “building the road,” Defendants were able to show that a new highway connecting
through the Charlotte outskirts would produce minimal growth or development…
And, indeed, the basic assumption underlying the model – that the project will not bring
new growth to the region, but rather will just redistribute where the expected growth goes
– was the same assumption, condemned by the Fourth Circuit, used to calculate the
impacts of the Monroe Bypass. 13
Defendants’ error was the result of the exact same methodology used to calculate traffic
forecasts for the Monroe Bypass. “The toll modeling methodology developed for the US74 Monroe Connector (R-3329) DSA is also used for this study.” AR 53476.14
As a result, just as they did in their analysis of the Monroe Bypass, Defendants
presented an analysis in their EIS which showed that construction of a 22-mile newlocation toll highway, which includes a major new crossing of the Catawba River and an
important segment adjacent to an expanding international airport, would have so little
impact on growth that it would actually lead to job losses in the study area. 15
In both cases, Defendants engaged in a fundamentally flawed analysis, knew they were
doing it, and kept that defect from the public.16
Just as Defendants obscured key information from the public in their analysis of the
Monroe Bypass, Defendants again obliterated NEPA’s “informational role” in their
analysis of the Connector.17
Just as they did for the Monroe Bypass, here Defendants created bogus baseline data to
study alternatives to the Connector and to study the Connector’s impacts.18
12
Id. at 3 (emphasis added). The “transparency and truthfulness” statement is glaring in light of a litigation record
lacking the same. Plaintiffs filed three causes of action in different district courts and did not adequately apprise any
judge of that fact. Plaintiffs further alleged, “This is the third time these same Defendants have come into federal
court violating NEPA with a process tailor-made to support their preferred outcome,” (Doc. No. 33 at 11), citing, in
addition to Wildlife I, the M.D.N.C. case of N.C. Alliance for Transportation Reform v U.S. Dep’t of Transp., 151 F.
Supp. 2d 661 (M.D.N.C. 2001). In brief and at argument, counsel argued that “the Middle District of North
Carolina found that Defendants violated NEPA in examining the alternatives and impacts for the Winston Salem
Bypass when they compared ‘building the road’ to ‘building the road.’ 151 F. Supp. 2d 661 (M.D.N.C. 2001).”
(Doc. No. 33 at 1). Inexplicably, in light of that argument, counsel failed to mention the subsequent district court
holding, to which no appeal was taken, that the defendants complied with NEPA. See N.C. Alliance for
Transportation Reform v. U.S. Dep’t of Transp., 713 F. Supp. 2d 491, (M.D.N.C. May 2010).
13
Id. at 11-12 (emphasis added).
14
Id. at 20 (emphasis added).
15
Id. at 30 (emphasis added)
16
Id. at 39 (emphasis added).
17
Doc. No. 41 at 3 (emphasis added).
18
Id. at 13 (emphasis added).
6
Here, Defendants have attempted to avoid the clear application of the Fourth Circuit’s
two recent rulings by emphasizing that while their alternative analysis was identical to
that performed for the Monroe Bypass, their impacts analysis was distinct…In both
analyses, the fundamental assumption was the same: The highway would not bring
new growth to the region.19
But the no-growth assumption upon which Defendants based their methodology has no
“rational basis,” and is exactly the baseless assumption rejected by the Fourth Circuit
for a neighboring geographic area. 20
Lastly, Plaintiffs once again advanced the assertion that Garden Parkway and Wildlife are
duplicate matters at oral argument on November 21, 2014:
The Monroe bypass was being analyzed by the same consultants and the same staff… [as
the case] currently before Your Honor, the Gaston East-West Connector. So in that way
many of the same methodologies were used, and those methodologies were at least
partially overturned by the Fourth Circuit and the North Carolina Wildlife Federation. 21
We believe that ultimately all of our claims in this case come down to a failure to
disclose. And there are very similar failures of disclosures in this case as there were in
that case [the Wildlife case].22
For the alternatives analysis, we believe that the error [of the baseline data] was identical
[between this case and the Wildlife case]. For the impacts analysis, we believe
that…while the methodology was slightly different, the underlying error was the same.
More importantly what we have in this case that makes it identical to the North Carolina
Wildlife Federation case, is again, a failure to disclose the flaw in the no build data to the
public.23
Plaintiffs’ Complaint in Garden Parkway is also similar in content, claims for relief, and
legal theory as the Complaint they filed in Wildlife I & II. Similar parties are involved in Garden
Parkway and Wildlife I & II and the attorneys are the same. Although Garden Parkway is a
separate toll road, the facts surrounding this case, the methodologies utilized, and the substantial
administrative record are similar to Wildlife I & II. Plaintiffs assert nearly identical claims for
relief in Garden Parkway and Wildlife I & II, which focus on similar criticisms of non-
19
Id. at 20-2 (emphasis added).
Id. at 22 (emphasis added).
21
Oral Argument Transcript, November 21, 2014, 3:12-cv-559-RJC, at 6 (emphasis added).
22
Id. at 7 (emphasis added).
23
Id. at 13 (emphasis added).
20
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compliance of the NEPA process, most importantly the “build to build” criticism. Plaintiffs in
Garden Parkway and Wildlife II both repeatedly rely on Wildlife IA in their respective motions
and briefs to support their legal claims. Based upon the similarities between Plaintiffs’
Complaints filed in both actions and Plaintiffs’ repeated assertions equating Garden Parkway
and Wildlife in their Complaint, summary judgment briefing, and oral argument, this Court takes
Plaintiffs at their word which establishes that Garden Parkway and Wildlife I & II are parallel
cases.
II. LEGAL STANDARD
Title 28, United States Code, Section 1404(a) provides, in part: “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 . . . .” See also Atl. Marine
Constr. Co., Inc. v. U.S. Dist. Court, 134 S. Ct. 568, 581 (2013). Congress designed Section
1404(a) as a “federal judicial housekeeping measure” 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, 636 (1964).
A district court judge may sua sponte consider transfer. Feller v. Brock, 802 F.2d 722,
731, n.7 (4th Cir. 1986) (suggesting that on remand district court consider transfer to avoid
conflict between coordinate courts). Robinson v. Town of Madison, 752 F. Supp. 842, 846 (N. D.
Ill. 1990) (court's authority to transfer cases under 28 U.S.C. § 1404(a) does not depend on a
motion, stipulation or consent of the parties). 24
24
Normally, a court considering sua sponte transfer of venue might request briefing. Moore v. Rohm & Haas Co.,
446 F.3d 643, 647 (6th Cir. 2006). Here, Plaintiffs were given ample opportunity to brief transfer after Wildlife II
was filed in the W.D.N.C. (3:14-cv-338-GCM, Doc. No. 17: Response to Motion to Change Venue; Doc. No. 27:
Order granting Motion to Change Venue). Judge Mullen’s Order in that case comprehensively assesses the transfer
factors in a parallel situation. The reasoning there is as compelling in this case as it was in Wildlife II. Finally,
Plaintiffs forfeited consideration they might otherwise have been granted by failing to adequately disclose the
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III. DISCUSSION
Judge Mullen issued a comprehensive analysis, after briefing, of the Section 1404(a)
transfer factors in Wildlife II. There, he found that the lawsuit could have been brought in the
Eastern District of North Carolina because it was the residence of individual defendants
including one person, John Sullivan, who is also a defendant in the instant action. Judge Mullen
weighed other factors in favor of transfer concerning matters that are equally present here,
including the place of business for Defendant N.C. DOT and the N.C. Division of FHWA, and
where a substantial part of the work and analysis done on the ROD occurred. (Wildlife II, 3:14cv-338-GCM, Doc. No. 27 at 3). He then went on to apply the eleven factor transfer test and
found that test weighed in favor of transfer. See Am. Motorists Ins. Co. v. CTS Corp., 356 F.
Supp. 2d 583, 585 (2005). This court will rely on, without reiterating in exact detail, Judge
Mullen’s cogent assessment.
For the reasons stated in that opinion, incorporated herein, and for the further reasons that
follow, transfer is warranted.
Judicial Economy
Judge Mullen found that the Eastern District court’s intimate familiarity with the subject
matter and its positional advantage in evaluating whether Defendants complied with the Fourth
Circuit’s directives in Wildlife IA strongly supported transfer. (Wildlife II, 3:14-cv-338-GCM,
Doc. No. 27 at 5). Judge Mullen reached this decision even though Defendants argued that,
since Wildlife I, approximately four years of new facts, including 367 new exhibits, two new
environmental documents and entirely new expert analysis and legal claims existed. (Id. at 5).
Judge Mullen found that “substantial efficiencies” would result from transfer:
existence of parallel cases in this district to both the undersigned and Judge Mullen. Given the unique circumstances
of this case, and the delay that further briefing would entail, notice and briefing is not warranted prior to ruling.
9
Certainly, this new challenge addresses many new facts and analyses that will prove
central to resolving this dispute. But the Court agrees with Defendants that “a material
portion of [the] current record derives from the information already reviewed by the
Eastern District.” (Doc. No. 19 at 3). For example, Defendants note that much of the
Supplemental Final EIS challenged in this suit contains charts and analyses describing
how conditions have changed since 2010, and indicate whether those changes altered the
conclusions in the original EIS. (Id.). Moreover, after reviewing new data, NCDOT
ultimately concluded that “in almost all cases . . . the underlying conclusions and
methodologies based on the original 30,683-page record remain valid.” (Id. at 4). Thus,
an understanding of the prior studies is essential to evaluating the claims here. The mere
fact that these are supplemental analyses highlights the necessity of understanding the
original analyses. For these reasons, the Court finds that the eighth factor [judicial
economy] weighs heavily in favor of transfer.
(Id. at 6-7).
Although this is a separate toll road project with its own extensive administrative record,
the process criticisms are the same. Indeed, rarely does parallel litigation involve such an overlap
of facts, parties, attorneys, legal theory and asserted controlling circuit precedent. Plaintiffs’
“build to build” criticism, and their repeated reliance on Wildlife IA in both Wildlife II and
Garden Parkway warrant assessment of that critique in the same forum. Plaintiffs weave and reweave their arguments about NEPA non-compliance around and through Wildlife IA to such an
extent that pulling the threads apart is attempting to untie the ancient Gordian knot.
Plaintiffs’ core objection that Defendants failed in their NEPA compliance by comparing
“building the road” to “building the road” is central to its claims here as it is in Wildlife II.
Defendants dispute this challenge in strong terms and attempt to distinguish their conduct in
Garden Parkway from what was found flawed by the Fourth Circuit in Wildlife IA. But the
dispute runs parallel to the Wildlife litigation. It makes little sense to plow the same earth in this
district.
In addition to common legal theories, Defendants argue that the Fourth Circuit’s Wildlife
IA decision “invalidated,” “condemned,” “struck down,” “roundly criticized,” and “rejected”
Defendants’ handling of a “companion” toll road, including its methodology and analysis. It is
10
this unique circumstance – not only a common theory but that theory’s support (or not) in
Wildlife IA that strongly weighs in favor of transfer. Who better to address the reach of Wildlife
IA than Judge Dever, whose initial Order was under review? Judge Mullen’s “substantial
efficiencies” finding is only enhanced here.
Finally, transfer would avoid the potential for conflicting decisions from “coordinate
courts.” See Feller, 802 F.2d at 731 n.7 (4th Cir. 1986). Throughout this litigation no judge was
ever informed of the potential for conflicting decisions. When this case was scheduled for oral
argument,25 this Court was unaware of a pending and parallel case in this district presided over
by Judge Mullen. It does not appear from the filing of the Complaint that Judge Mullen was
informed of the existence of this action.26 Had he been adequately informed, he may well have
consolidated both cases before him, reassigned his case to the undersigned, or consolidated and
transferred both matters to the Eastern District in light of Judge Dever’s prior involvement. In
any event, this Court has the first opportunity to assess Plaintiffs’ “file in three courts” strategy
and to make adjustments so as to accomplish the most efficiency with the least potential for
conflict.
Plaintiffs’ Choice of Forum
As noted by Judge Mullen in Wildlife II, typically this Court gives great weight to a
plaintiff’s choice of forum. Yet for reasons already discussed, this presumption gives way to the
unique factors of this case: the original choice of Plaintiffs in the “duplicate” case; the
extraordinary overlap in both cases; the experience of the transferee judge with this complicated
25
And rescheduled from the summer to late fall at the request of the parties. (See Doc. No. 35, 37, 43).
At the end of Plaintiffs’ brief in opposition to transfer in Wildlife II, concerning factors they indicated “do not
appear relevant,” they provided a single citation to the instant case in concluding that the conflict of laws factor “if
it is to be considered at all,” weighs against transfer. (Wildlife II, 3:14-cv-338-GCM, Doc. No. 17 at 25.) This scant
reference appears to be the extent of disclosure to Judge Mullen of this parallel matter.
26
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field of facts and law; Plaintiffs’ forfeiture by lack of candor; and the efficiencies gained by
transfer. Judge Mullen’s first word is the appropriate last word on this issue:
Rather than conclude that Plaintiffs have engaged in outright forum shopping, as
Defendants assert, the Court will simply note that Plaintiffs did choose where to file the
original challenge to this project. As a result of that choice, the Eastern District of North
Carolina gained substantial experience and familiarity with the facts of this project and
the nature of the challenge against it, making it the obvious forum to hear this second
challenge. See supra Part III.A. (noting the substantial similarities between this challenge
and the previous one despite the existence of new facts and claims). Plaintiffs’
contentions that they are at home in this district and that the public here will be most
affected were just as true in 2010 when Plaintiffs chose to challenge this project in the
Eastern District. Those contentions do not explain why Plaintiffs wish to have a different
court hear this second challenge. Thus, while this Court does not lightly disturb
Plaintiffs’ choice of forum, the Court finds that it is outweighed here by the substantial
efficiencies in having this case heard in the Eastern District. See Commercial Equip., 738
F. Supp. at 976.
(Wildlife II, 3:14-cv-338-GCM, Doc. No. 27 at 8). By Plaintiffs’ myriad assertions, this is a
challenge to a duplicate project asserting common deficiencies previously and presently being
addressed in the Eastern District of North Carolina. It is the appropriate forum.
IV. CONCLUSION
For the foregoing reasons, this case will be TRANSFERRED from the Western District
of North Carolina to the Eastern District of North Carolina pursuant to 28 U.S.C. § 1404 for such
further proceedings as that court may deem appropriate.
SO ORDERED.
Signed: December 30, 2014
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