Clean Air Carolina et al v. NC Department of Transportation et al

Filing 27

ORDER granting 13 Motion to Change Venue; granting 14 Motion to Change Venue. Signed by Senior Judge Graham Mullen on 11/14/2014. (eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CLEAN AIR CAROLINA; NORTH
CAROLINA WILDLIFE FEDERATION;
and
YADKIN RIVERKEEPER,

)
)
)
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Plaintiffs,
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vs.
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NORTH CAROLINA DEPARTMENT OF )
TRANSPORTATION;
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ANTHONY J. TATA, Secretary,
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NCDOT; FEDERAL HIGHWAY
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ADMINISTRATION;
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JOHN F. SULLIVAN, Division
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Administrator, FHWA,
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Defendants.
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___________________________________ )

No. 3:14-CV-338-GCM

ORDER

THIS MATTER is before the Court on Defendants’ motions to change venue (Doc. Nos.
13 & 14), Plaintiffs’ Response in Opposition (Doc. No. 17), and Defendants’ replies (Doc. Nos.
18 & 19). Defendants request that this case be transferred to the Eastern District of North
Carolina so that it may proceed before the Honorable James C. Dever, III. For the reasons set
forth below, those motions are GRANTED.
I. BACKGROUND
This is an environmental case arising from the construction of the Monroe
Connector/Bypass (“Bypass”) in Mecklenburg and Union counties. Defendants North Carolina
Department of Transportation (“NCDOT”) and Federal Highway Administration (“FHWA”) are
attempting to build a new controlled-access toll road across approximately twenty miles of new
terrain, “from US 74 near I-485 in Mecklenburg County to US 74 between the towns of Wingate

and Marshville in Union County.” Record of Decision (“ROD”) 1 (Doc. No. 13, Ex. 1). Plaintiffs
contend that Defendants violated the National Environmental Policy Act, 42 U.S.C. § 4321 et
seq. (“NEPA”), while reviewing matter related to the transportation project. The Complaint, filed
on June 23, 2014, contains eight separate claims for relief in 282 paragraphs and broadly alleges
that “the Transportation Agencies have acted arbitrarily and capriciously in issuing the
Environmental Impact Statements and the Record of Decision for the proposed Toll Road.”
(Doc. No. 1 at 1).
This lawsuit follows an earlier challenge to this project filed on November 2, 2010 in the
Eastern District of North Carolina by the same plaintiffs. See N.C. Wildlife Fed’n v. N.C. DOT,
No. 5:10-cv-476-D (E.D.N.C.) (“Monroe I”). The district court in that case, Honorable James. C.
Dever, III, considered cross motions for summary judgment and eventually found in favor of
Defendants. Monroe I, No. 5:10-cv-476-D, 2011 WL 5042075 (E.D.N.C. Oct. 24, 2011).
Plaintiffs appealed, and the Court of Appeals for the Fourth Circuit ruled in Plaintiffs’ favor,
finding that Defendants did not properly disclose assumptions underlying certain data and did
not properly respond to public concerns about those assumptions and data. 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,
607 F.3d 596, 605 (4th Cir. 2012).
After the Fourth Circuit’s ruling, FHWA and NCDOT initiated new studies and analyses
that resulted in a Supplemental Final Environmental Impact Statement (“SFEIS”) and
accompanying Record of Decision. Plaintiffs thereafter filed this second suit, this time in the
Western District of North Carolina. The Complaint asserts that “[v]enue is proper in the Court
pursuant to 28 U.S.C. § 1391(e).” (Doc. No. 1 at 4).
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II. LEGAL STANDARD
United States Code Title 28 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 . . . .” 28 U.S.C. § 1404(a); 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, 616, 636 (1964). In a motion
brought pursuant to Section 1404(a), the moving party must establish (1) that the plaintiff could
have brought the case in the transferee district and (2) that transfer would make the litigation
more convenient for the parties and for the witnesses, and would advance justice. See Ward v.
INVISTA S.a.r.L., LLC, 5:06-cv-40, 385 B.R. 817, 821 (W.D.N.C. 2008).
III. DISCUSSION
As an initial matter, the Court notes that this lawsuit could have been brought in the
Eastern District originally. United States Code Title 28 Section 1391(e)(1) governs venue in civil
actions where the United States or any of its officers or agencies is a defendant. Under that
Section, venue lies in any district where “(A) a defendant in the action resides, (B) a substantial
part of the events or omissions giving rise to the claim occurred . . . or (C) the plaintiff resides . .
. .” 28 U.S.C. § 1391(e)(1). Defendants John Sullivan and Anthony Tata both live and work in
Raleigh, which is also where the offices of the NCDOT and the North Carolina division of the
FHWA are located. Additionally, a substantial part of the work and analysis done on the ROD
being challenged in this case occurred in Raleigh. For these reasons, the Court finds that this case
could have been brought in the Eastern District of North Carolina.
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As to the parties’ convenience and the interests of justice, the Western District has
consistently applied an eleven-factor test. Those factors are:
(1) the Plaintiff’s choice of forum; (2) the residence of the parties; (3) the relative
ease of access of proof; (4) the availability of compulsory process for the
attendance of witnesses and the costs of obtaining attendance of willing
witnesses; (5) the possibility of a view; (6) the enforceability of any judgment
obtained; (7) the relative advantages and obstacles to a fair trial; (8) other
problems which might make the litigation more expeditious and economical; (9)
the administrative difficulties of court congestion; (10) the interest in having
localized controversies resolved at home and the appropriateness in having
litigation of a diversity case in a forum that is at home with the state law that must
govern the action; and (11) the avoidance of issues involving conflict of laws.
Am. Motorists Ins. Co. v. CTS Corp., 356 F. Supp. 2d 583, 585 (2005). Defendants note, and the
Court agrees, that most of these factors are obviated by the fact that this is a challenge under the
Administrative Procedure Act, 5 U.S.C. §§ 701-706, which will likely be decided on summary
judgment. Factors 3, 4, and 5 weigh the ease of access to sources of proof, witnesses, and
locations; these factors weigh neutrally because under the APA, “[t]he factfinding capacity of the
district court is . . . typically unnecessary to judicial review of agency decisionmaking.” Fla.
Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985).1 Factor 7 relates to trials, and actions
under the APA typically do not proceed to trial. See, e.g., Guthrie v. Schweiker, 718 F.2d 104,
108 (4th Cir. 1983). Factor 5 relates to the enforceability of judgments; this factor weighs
neutrally because the defendants here are agencies of the United States and the State of North
Carolina, and both this Court and the Eastern District will have equal ease with enforcing any
judgment. Factor 11 contemplates conflict-of-laws issues, and either court will apply federal law.

A. Judicial Economy
1

The Court notes that, to the extent factfinding would be necessary, the bulk of documents and witnesses relevant to
this dispute are in Raleigh.

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Defendants’ primary argument in favor of transfer is that the Eastern District has already
familiarized itself with the “highly technical data and analyses that form the foundation of
Plaintiffs’ allegations,” (Doc. No. 14-1 at 7) and that that court is in the best position to evaluate
the merits of this second challenge to the Bypass. They note that this case challenges the same
NEPA process as before, involves the same parties, and is founded on largely the same legal and
factual bases. To the extent this suit is different from the first, Defendants argue that those
differences largely flow from the outcome of the original suit, as the supplemental review
challenged in this case was performed to address the deficiencies identified by the Fourth
Circuit. This new analysis, then, must be read in light of Defendants’ prior work, making the
30,683-page administrative record from the first case a substantial part of the record in this case.
The Eastern District is already intimately familiar with that record, and is also in the best
position to evaluate whether Defendants have complied with the Fourth Circuit’s directives.
Thus, they argue, there are substantial judicial efficiencies to be had in transferring this case to
the Eastern District, referencing the eighth factor in the analysis.
In response, Plaintiffs argue that this case involves “almost four years’ worth of new
facts, including . . . 367 new exhibits . . .; two new environmental documents; an entirely new
expert analysis and suite of new legal claims.” (Doc. No. 17 at 12). Thus, this case presents
questions of fact and law distinct from the earlier action. Moreover, they argue that there are few
efficiencies in having the case decided in the Eastern District because that court’s decision was
subsequently vacated in full by a unanimous panel of the Fourth Circuit.
After a thorough review, the Court agrees that there are substantial efficiencies in having
this case heard by the Eastern District of North Carolina because of the unique nature of the facts
surrounding this case and the substantial record with which that court is already familiar.
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Defendants note, and this Court agrees, that “where a party has previously litigated a case
involving certain issues in one forum . . . ‘a court in that district will likely be familiar with the
facts of the case. As a matter of judicial economy, such familiarity is highly desirable.’” LG
Electronics, Inc. v. Advance Creative Computer Corp., 131 F. Supp. 2d 804, 815 (E.D. Va. 2001)
(quoting Wheeling-Pittsburg Steel Corp. v. U.S. Envtl. Protection Agency, 1999 WL 111459, at
*4 (E.D. Pa. 1999). This is especially true where that court has invested substantial time and
energy in a case. See id.; see also U.S. Ship Mgmt. v. Maersk Line, Ltd., 357 F. Supp. 2d 924,
938 (E.D. Va. 2005). The administrative record in this case is burdensome, and the pertinent
facts are unique and highly technical. Becoming familiar with those facts would require
substantial time and effort—time and effort that has already been expended by the Eastern
District of North Carolina. It makes little sense to have this Court reexamine those facts now.
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

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understanding the original analyses.2 For these reasons, the Court finds that the eighth factor
weighs heavily in favor of transfer.
B. Plaintiff’s Choice of Forum
This Court gives great weight to the Plaintiff’s choice of forum. See, e.g., Datasouth
Computer Corp. v. Three Dimensional Technologies, Inc., 719 F. Supp. 446, 451 (W.D.N.C.
1989); Commercial Equip. Co., Inc. v. Barclay Furniture Co., 738 F. Supp. 974, 976 (W.D.N.C.
1990); BellSouth Telecommunications, Inc. v. N.C. Utilities Comm’n, 3:05-cv-345, 2005 WL
2416204 (W.D.N.C. 2005). In fact, this Court regards that choice as “a paramount consideration
in any determination of a transfer request . . . [that] should not be lightly disturbed.” Commercial
Equip., 738 F. Supp. at 976 (quoting Datasouth, 719 F. Supp. at 451). In order to overcome this
strong preference, “the moving party [must] demonstrate[] that the balance of convenience to the
parties and witnesses and the interests of justice weigh heavily in favor of transfer.” Id.
Defendants argue that the weight normally accorded to that choice should be diminished
here because Plaintiffs previously chose to litigate this case in another forum. They cite several
cases in which courts have so found. See Wireless Consumers Alliance, Inc. v. T-Mobile USA,
Inc., 03-3711 MHP, 2003 WL 22387598 (N.D. Cal. Oct. 14, 2003); Wheeling, 1999 WL 111459;
Gen. Elec. Co. v. Merhige, No. 72-2237, 1972 WL 2601 (4th Cir. Nov. 20, 1972) (per curiam)
(upholding district court’s decision to transfer where it “seems clear that the plaintiffs have
engaged in ‘judge-shopping’”). Plaintiffs distinguish these cases by noting that they relate to
situations where a plaintiff was first unsuccessful in its home forum and then later attempted to
bring an almost identical suit in another court. Here, Plaintiffs assert that they were ultimately
2

Plaintiffs’ assertion that there are few efficiencies in transferring this case because Judge Dever’s decision was
vacated by the Fourth Circuit is inapposite. As Defendants correctly note, it is Judge Dever’s familiarity with the
facts of this case that counsel in favor of transfer.

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successful in their first challenge, and that the Western District is actually their home forum. (See
Doc. No. 17 at 12).3 They also reassert their position that this suit is “grounded in a host of
entirely new claims and facts,” and that they are not simply seeking to have “two bites at the
apple.” (See id. at 13).
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.
C. Residence of Parties, Local Interests, & Court Congestion
The remaining pertinent factors weigh neutrally or are similarly outweighed by the
judicial economy gained by transfer. Two of the three plaintiff-conservation groups in this action
are headquartered in this district, but these groups appear to have members throughout North

3

Plaintiffs note that two of the three plaintiff groups in this action are headquartered in the Western District of North
Carolina. (Doc. No. 17 at 11).

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Carolina. (See Complaint, Doc. No. 1 at ¶¶ 18, 24, & 28). Defendants either reside or are
headquartered in Raleigh. While Plaintiffs note that the project will take place in this district and
that it is of great interest to the public here, both courts are in North Carolina, and this Court has
previously noted the short distance between Charlotte and Raleigh, see BellSouth, 2005 WL
2416204, at *2. The Court also notes that much of the decisionmaking process for this project
took place in Raleigh. Finally, considerations of court congestion weigh neutrally—the Western
and Eastern Districts share similar amounts of time from filing to disposition, (see Doc. No. 14-1
at 10). If anything, the Eastern District’s familiarity with this case will speed disposition.
IV. CONCLUSION
For the foregoing reasons, Defendants’ motions to change venue (Doc. Nos. 13 & 14) are
GRANTED. This case is to 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: November 14, 2014

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