Frost v. Evergreen Helicopters, Inc. et al

Filing 11

ORDER granting Defendants' 4 Motion to Transfer Venue to the united States District Court for the District of Oregon. Signed by Judge Michael M. Anello on 9/28/2012. (sjt) [Transferred from California Southern on 10/2/2012.]

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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WILLIAM JOHN FROST,

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CASE NO. 12-CV-1798-MMA(BLM)
Plaintiff,

ORDER GRANTING
DEFENDANTS’ MOTION TO
TRANSFER VENUE TO THE
UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF
OREGON

vs.

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EVERGREEN HELICOPTERS, INC., et al.,

[Doc. No. 4]

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Defendants.
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Defendants Evergreen Helicopters, Inc., Evergreen Helicopters of Alaska, Inc., Evergreen

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International Aviation, Inc., and Evergreen Aviation Ground Logistics Enterprises, Inc.

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(collectively “Evergreen” or “Defendants”) move pursuant to 28 U.S.C. section 1404(a) for a

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transfer of venue to the United States District Court for the District of Oregon. Plaintiff opposes

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and Defendants filed a reply. The Court finds the motion suitable for determination on the papers

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submitted and without oral argument. S.D. Cal. Civ. L.R. 7.1.d.1. For the reasons stated below,

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the Court GRANTS Defendants’ motion.

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I.

BACKGROUND

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Plaintiff William John Frost (“Plaintiff”) is a resident of San Diego, California and resided

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here during all of the operative events in this matter. (Decl. of Pl. William John Frost in Supp. of

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Pl.’s Opp’n to Mot. for Change of Venue [“Frost Decl.”] ¶ 2.) Defendants provide global aviation

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services, including cargo transport services for United States military operations in Afghanistan,

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on a contract basis. (Decl. of Dan Klump in Supp. of Defs.’ Mot. to Transfer Venue [“Klump

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Decl.”] ¶ 4.) In September 2000, Plaintiff submitted an employment application to Evergreen at its

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headquarters in McMinnville, Oregon. (Klump Decl. ¶ 3, Ex. 1.) After receiving Plaintiff’s

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application, Defendants directed Plaintiff to execute releases for a background check and for drug

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testing. (Frost Decl. ¶ 3; Klump Decl. ¶ 2.) The background check and drug testing were

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conducted in California. (Frost Decl. ¶ 3.) November 17, 2010, Plaintiff flew to McMinnville to

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interview for a position with Defendants. (Frost Decl. ¶ 3; Klump Decl. ¶ 2.) The two days that

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followed were the only time period during his employment with Defendants that Plaintiff was

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present in Oregon. (Frost Decl. ¶ 6; Klump Decl. ¶ 3, Ex. 1.) On November 22, 2010, Defendants

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offered Plaintiff employment for the position of Cargo Engineer in Afghanistan to support

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Defendants’ Low Cost Low Altitude (“LCLA”) contract with the United States Government.

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(Frost Decl. ¶ 4; Klump Decl. ¶¶ 2, 4, Ex. 2.) On November 23, 2010, Plaintiff signed and

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accepted the offer. (Frost. Decl. ¶ 4.)

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In February 2011, Plaintiff was deployed to Bagram, Afghanistan as a LCLA team

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member. (Klump Decl. ¶ 4.) During his deployment, Plaintiff allegedly reported several safety

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compliance concerns to Defendants. (Notice of Removal [“NOR”], Ex. A, ¶¶ 21-27.) At the end

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of August 2011, Plaintiff’s rotation ended and he returned to his home in San Diego. (Frost Decl.

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¶ 9.) In September 2011, Defendants learned that the United States was not going to renew the

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LCLA contract. (Id. ¶ 12; Klump Decl. ¶ 5.) Subsequently, Defendants sent a letter to LCLA

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team members advising them of their intent to try to find new assignments for those affected by

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the nonrenewal. (Klump Decl ¶ 5.) In October 2011, Defendants terminated Plaintiff’s

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employment contract. (Frost Decl. ¶ 13; Klump Decl. ¶ 6.) On June 20, 2012, Plaintiff filed this

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action against Defendants alleging breach of employment contract, wrongful termination in

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retaliation for reporting compliance issues, and intentional infliction of emotional distress. (NOR

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¶ 1.) On July 20, 2012, Defendants removed the action to this Court.

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II.

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LEGAL STANDARD

“For the convenience of parties and witnesses, in the interest of justice, a district court may

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transfer any civil matter to any other district or division where it might have been brought.”

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28 U.S.C. § 1404(a). The purpose of section 1404(a) is to “prevent the waste of time, energy, and

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money and to protect litigants, witnesses and the public against unnecessary inconvenience and

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expense.” Van Dusen v. Barrack, 376 U.S. 612, 616 (1964) (internal citations and quotation marks

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omitted). A motion for transfer lies within the broad discretion of the district court and must be

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determined on an individualized basis. See Jones v. GNC Franchising, Inc., 211 F.3d 495, 498

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(9th Cir. 2000).

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To support a motion for transfer of venue, the moving party must establish “that venue is

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proper in the transferor district; that the transferee district is one where the action might have

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originally been brought; and that transfer will serve the convenience of the parties and witnesses

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and will promote the interests of justice.” Vu v. Ortho-McNeil Pharm., Inc., 602 F. Supp. 2d 1151,

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1155-56 (N.D. Cal. 2009) (quoting Goodyear Tire & Rubber Co. v. McDonnell Douglas Corp.,

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820 F. Supp. 503, 506 (C.D. Cal. 1992)).

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Once venue is determined to be proper in both districts, courts use the following factors to

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evaluate whether a transfer of venue would be more convenient to the parties and witnesses and

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would promote the interests of justice: (1) plaintiff’s choice of forum; (2) convenience of the

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parties; (3) convenience of the witnesses; (4) ease of access to the evidence; (5) familiarity of each

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forum with an applicable law; (6) feasibility of consolidation with other claims; (7) any local

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interest in the controversy; and (8) the relative court congestion and time of trial in each forum.

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Vu, 602 F. Supp. 2d at 1155-56. In general, “[t]he defendant must make a strong showing of

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inconvenience to warrant upsetting the plaintiff’s choice of forum.” Id.; Decker Coal Co. v.

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Commonw. Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

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III.

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DISCUSSION

Defendants move to transfer this action the District of Oregon on the grounds that it would

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be more convenient for the witnesses and parties and in the interest of justice. (Defs.’ Mot. to

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Transfer Venue 3:2-3.)

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A.

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The “Could Have Been Brought” Requirement
As a threshold matter, Defendants must establish that venue is proper in the Southern

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District of California and that this action could have been brought in the District of Oregon. Vu,

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602 F. Supp. 2d at 1155-56. Defendants readily satisfy these requirements. First, venue is proper

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in the Southern District of California based on Defendants’ removal of this action from state court.

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Id. at 1156. Further, there is no dispute that this case “might have been brought” in the District of

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Oregon. In September 2000, Plaintiff submitted an application to Evergreen at its headquarters in

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McMinnville, Oregon. (Klump Decl. ¶ 3.) On November 17, 2010, Plaintiff flew to McMinnville,

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Oregon to interview for a position with Defendants. (Id.) On November 22, 2010, Defendants

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offered Plaintiff employment, and Plaintiff accepted that offer on November 23, 2010. (Id. ¶ 4,

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Ex. 2.) After Defendants lost the LCLA contract with the United States Government, they sent a

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letter from McMinnville, Oregon–where all of the decisions at issue in Plaintiff’s lawsuit were

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made–to Plaintiff and others who were assigned to the Afghanistan LCLA contract. (Klump Decl.

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¶ 5.) Plaintiff bases his contract claims on that letter. (NOR, Ex. B, ¶¶ 33-36.) The operative

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facts in this case occurred only in Afghanistan or at Defendants’ Oregon headquarters. Thus, there

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can be no reasonable dispute that this case “might have been brought” in the District of Oregon.

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B.

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The Convenience Requirement
Next, the Court must determine whether a transfer of venue would be more convenient to

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the parties and witnesses and would promote the interests of justice. Vu, 602 F. Supp. 2d at 1155-

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56. Specifically, whether Defendants have made “a strong showing of inconvenience to warrant

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upsetting the plaintiff’s choice of forum.” Id.; Decker Coal Co., 805 F.2d at 843.

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1.

Convenience of the Parties and Witnesses

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In this employment action, the majority of fact witnesses who can speak to relevant issues

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here are current or former management-level employees of Evergreen. These issues include

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Evergreen’s employment practices, the nature of the compliance issues raised by Plaintiff and

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Evergreen’s response, and the decision-making with regard to reassignments of personnel

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following the loss of the LCLA contract. A majority of these witnesses–all of whom may likely be

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called at trial–live and work in Oregon or travel frequently to Evergreen’s Oregon headquarters for

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meetings and training. (Klump Decl. ¶ 7.) As Defendants indicate, the following witnesses may

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have relevant information related to Plaintiff’s contract claims, including Evergreen’s employment

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policies, response to the loss of its LCLA contract in Afghanistan, and its plan for the

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reassignment of affected employees to other locations according to business needs:

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Rob Black, Deputy Director of Operations, Evergreen Helicopters, Inc.

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Rich Delushia, Bagram Site Manager, Evergreen Helicopters, Inc.

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Joshua Parkin, President, Evergreen Aviation Ground Logistics Enterprises, Inc.

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William Rowe, General Manager, Evergreen Helicopters of Alaska, Inc.

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Max Wiley, President, Evergreen Helicopters, Inc.

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Alex Woosley, Operations/Site Manager, Evergreen Helicopters, Inc.

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Dan Klump, Vice President of Human Resources, Evergreen International Aviation,

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Inc.

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(Klump Decl. ¶ 7.)

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Further, the following witnesses may have relevant information related to Plaintiff’s

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wrongful termination and intentional infliction of emotional distress claims, including the nature

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and quality of Plaintiff’s alleged reports about compliance issues, the facts surrounding those

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reports, and Evergreen’s response to those reports:

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Ron Black, Deputy Director of Operations, Evergreen Helicopters, Inc.

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Lee Bowden, Director of Safety, Evergreen Helicopters, Inc.

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Jerry Campbell, Country Manager, Evergreen Helicopters, Inc.

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David Fulton, Director of Safety, Evergreen Helicopters of Alaska, Inc.

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Nigel Richardson, Chief Inspector, Evergreen Helicopters of Alaska, Inc.

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William Rowe, General Manager, Evergreen Helicopters of Alaska, Inc.

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Michael Wilson, Vice President and Director of Operations, Evergreen Helicopters,

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Inc.

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Alex Woolsey, Bagram Site Manager, Evergreen Helicopters, Inc.

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Christopher Carney, Assistant Chief Pilot, Evergreen Helicopters, Inc.

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Jeff Heitkamp, LCLA Program Manager, Evergreen Helicopters, Inc.

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(Klump Decl. ¶¶ 8, 9). Nearly all of these witnesses reside in Oregon. Moreover, Defendants

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could choose to offer their testimony to establish that Plaintiff’s employment was at-will, that part

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of his job responsibilities included noting compliance issues and reporting them, and that the

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decision not to reassign him to a new work location after the LCLA contract was not renewed was

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for legitimate business reasons.1 Plaintiff’s assertion that only three Evergreen witnesses live in

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Oregon is misleading. Eight witnesses–Ron Black, Alex Woolsey, Max Wiley, Mike Wilson, Lee

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Bowden, Nigel Richardson, Chris Carney, and Jeff Heitkamp–currently live or work for Evergreen

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in Oregon. (Klump Decl. ¶¶ 7-9.) Moreover, the four active employees who reside and work

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outside Oregon–Rich Delushia, David Fulton, Jerry Campbell, and Nigel Richardson–regularly

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travel there to handle executive, managerial, and supervisory duties at Evergreen’s headquarters.

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(Klump Decl. ¶¶ 7-9.) Given the number of witnesses who reside in, or are based out of, Oregon,

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the Court finds that Oregon would be a significantly more convenient forum to litigate this action.

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The cost and time associated with the transportation and lodging of at least eleven witnesses in

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California for a matter that has little connection to this state would be unduly burdensome and

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would cause “unnecessary inconvenience and expense.” Van Dusen, 376 U.S. at 616 (internal

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quotation marks and citations omitted).

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Official discovery has not yet started in this matter. Accordingly, Defendants’
representations about their potential witnesses are based on ongoing investigation of Plaintiff’s
allegations. (Defs.’ Mot. 7:20, n.2.) Defendants reserve all rights to identify their witnesses for
trial as allowed by the Federal Rules of Civil Procedure and the appropriate court’s pretrial
scheduling orders.
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2.

The Parties’ Contacts Relating to Plaintiff’s Employment-Based Claims

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As part of its analysis, the Court may also consider the location where the relevant

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agreements were negotiated and executed, the respective parties’ contacts with the forum, and the

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contacts relating to the Plaintiff’s claims in the chosen forum. Jones, 211 F.3d at 498-99; Ventress

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v. Japan Airlines, 486 F.3d 1111 (9th Cir. 2007) (affirming transfer from Central District of

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California to District of Hawaii where there was no significant connection between California and

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the facts alleged in the compliant).

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Here, Plaintiff admits he reached out to Evergreen in Oregon seeking employment and that

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he traveled to Oregon to be hired. (Frost Decl. ¶¶ 3, 6; Pl.’s Opp’n 6:16-19.) There is no question

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that Plaintiff was an Evergreen employee, that Evergreen’s operations are based in Oregon, and

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that Plaintiff did not perform work in California. Plaintiff does not and cannot contest that the

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relevant decisions about his employment were made in Oregon and that, while he was on rotation

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in Afghanistan, he regularly communicated with Evergreen’s headquarters in Oregon about

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operational matters, compliance issues, and the loss of the LCLA contract–the core events at issue

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in this action. In addition, Defendants’ lack of contact with the Southern District of California

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favors transfer. Although Plaintiff makes conclusory allegations that Defendants regularly

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conduct business in San Diego County ostensibly to establish the Court’s jurisdiction (NOR, Ex.

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B, ¶¶ 2-5), none of those contacts have any relevance to Plaintiff’s employment-related claims.

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The only connection that this case has to California is that Plaintiff resides here. Thus, the Court

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finds that these factors also favor transferring this action to the District of Oregon.

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3.

Plaintiff’s Original Choice of Forum

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Plaintiff is correct that his choice of forum is a relevant factor in a transfer of venue

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determination. (Pl.’s Opp’n 5:21-6:2.) However, Plaintiff’s choice of forum alone is not

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controlling in this matter. Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955) (finding that section

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1404(a) accords broad discretion to district courts, and plaintiff’s choice of forum is only one

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relevant factor for their consideration). A plaintiff’s choice of forum may be disturbed when a

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moving defendant can show that the transferee venue is clearly more convenient than the

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plaintiff’s chosen venue. In re Volkswagen of Am., Inc., 545 F.3d 304, 314-15 (5th Cir. 2008) (en

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banc). Taking the relevant factors into consideration, the Court finds that Defendants have

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satisfied their burden of establishing a substantial inconvenience so as to upset Plaintiff’s choice of

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forum. The convenience of witnesses–especially nonparty witnesses–strongly supports

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transferring this action to the District of Oregon. Further, the parties’ substantial contact with

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Oregon, and lack of much contact with California, also weigh in favor of transfer. Although the

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parties make several additional arguments as to the convenience of this action in either forum (see

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Defs.’ Mot. 8:22-26; Pl.’s Opp’n 8:1-15), these arguments do not weigh heavily in favor of or

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against transfer.

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IV.

CONCLUSION

For the reasons set forth above, the Court GRANTS Defendants’ motion to transfer venue.

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Accordingly, the Court transfers this case to the United States District Court for the District of

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Oregon.

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IT IS SO ORDERED.

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DATED: September 28, 2012

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Hon. Michael M. Anello
United States District Judge

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