Rodriguez-Cayro v. Rodriquez-Cayro

Filing 97

MEMORANDUM DECISION AND ORDER granting 81 Motion to Change Venue. The Clerk of Court shall transfer this case to the Middle District of Pennsylvania for further proceedings in that forum if Plaintiff fails to file an objection pursuant to Fed. R. Civ. P. 72(a) within fourteen (14) days of being served with a copy of this Order or unless otherwise directed by the district judge. Signed by Magistrate Judge Paul M. Warner on 10/03/2019. (nl)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION

KYLI RODRIGUEZ-CAYRO,
Plaintiff,

MEMORANDUM DECISION
AND ORDER GRANTING MOTION TO
TRANSFER VENUE

v.
Case No. 2:17-cv-01197-HCN-PMW
NARCISO ALEJANDRO RODRIGUEZCAYRO,

District Judge Howard C. Nielson, Jr.

Defendant.

Chief Magistrate Judge Paul M. Warner

District Judge Howard C. Nielson, Jr., referred this matter to Chief Magistrate Judge Paul
M. Warner pursuant to 28 U.S.C. § 636(b)(1)(A). 1 Before the court is Defendant Narciso
Alejandro Rodriguez-Cayro’s (“Defendant”) Motion to Transfer Venue. 2 Pursuant to DUCivR 71(f), the court elects to determine the present motion on the basis of the written memoranda and
finds that oral argument would not be helpful or necessary. Having reviewed the parties’ briefs
and the relevant law, the court renders the following Memorandum Decision and Order. 3

1

See docket no. 93.

2

See docket no. 81.

3

As a threshold matter, the court addresses its authority under 28 U.S.C. § 636(b)(1)(A) and (B) and Fed.
R. Civ. P. 72(a) and (b). The Tenth Circuit has held that “[m]otions not designated on their face as one of
those excepted in [§ 636(b)(1)(A)] are nevertheless to be treated as such when they have an identical
effect.” First Union Mortg. Corp. v. Smith, 229 F.3d 992, 995 (10th Cir. 2000) (citing Ocelot Oil Corp. v.
Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir. 1988)). A number of courts have held that a motion to
transfer venue does not have a dispositive effect, even if granted. See, e.g., Berentsen v. Titan Tech.
Partners, Ltd., No. 08-cv-02415-MSK-KMT, 2009 WL 122564, at *1 (D. Colo. Jan. 15, 2009) (holding
that a motion to transfer venue was not dispositive in nature because “if granted, it simply would move
this litigation from one court to another”); Vanmeveren v. Int'l Bus. Machs. Corp., No. 03-1145-JTM,
2005 WL 3543179, at *2 (D. Kan. Dec. 27, 2005) (holding that defendants' motion seeking an intradistrict transfer from Wichita to Kansas City was not dispositive because such a transfer would not

BACKGROUND
Plaintiff Kyli Rodriguez-Cayro (“Plaintiff”) is a resident of Utah. Defendant is Plaintiff’s
father and resides in Pennsylvania. On June 23, 2017, Plaintiff filed a lawsuit against Defendant
in the Third Judicial District Court of Utah alleging Defendant committed multiple acts of sexual
abuse against her throughout her childhood and adolescent years in Pennsylvania, New
Hampshire, Florida, and Utah. 4 In April 2011, Plaintiff’s parents entered her into a residential
treatment facility in Utah where she resided until July 2012. 5 Plaintiff alleges Defendant
committed two acts of child sexual molestation against her in Utah during this time period. 6
On August 14, 2017, Defendant moved to dismiss the claims for lack of personal
jurisdiction. 7 On November 9, 2017, the Third District Court denied Defendant’s motion to
dismiss in its entirety and held that “the tortious acts plaintiff alleges occurred in states other than
Utah are related to the tortious acts [Pl]aintiff alleges happened in Utah,” and therefore, Utah’s
exercise of personal jurisdiction over Defendant is proper. 8
On November 14, 2017, Defendant removed the case to this court. 9

prevent any party from pursuing its claims or banish either party from federal court). In light of the
foregoing case law, the court treats the instant motion to transfer venue as seeking non-dispositive relief.
4

See docket nos. at 16-1, 16-5 at 2–9.

5

See docket nos. 16-5 at 2–3, 81-1 at 3, 15–18.

6

See id.

7

See docket no. 16-2.

8

Docket no. 16-3 at 2.

9

See docket nos. 1, 16.

2

Subsequently, Defendant motioned for the court to transfer this case to the Middle
District of Pennsylvania. 10 Defendant alleges that the Middle District of Pennsylvania is the
more convenient forum because: (1) the majority of purported abuse occurred in Pennsylvania;
(2) the primary witnesses are located in Pennsylvania or within the compulsory power of the
Middle District of Pennsylvania; (3) costs of making the necessary proof are lower in
Pennsylvania; (4) obstacles to receiving a fair trial in Utah; and (5) advantage of having a local
court determine questions of local law. 11
Plaintiff counters that her choice of forum should remain undisturbed because Defendant
has failed to meet his burden to demonstrate the balance of relevant factors tips strongly in favor
of transfer. 12 Plaintiff argues that the incidents of abuse that occurred in Utah are part of an
ongoing series of abuse which occurred in other states. 13 Additionally, Plaintiff contends
Defendant has not demonstrated the quality and materiality of the testimony his witnesses will
provide. 14

10

See docket no. 81 at 7–15.

11

There are several factors that are not at issue. In particular, Defendant has not raised any issues
concerning the enforceability of judgment if one is obtained or any conflict of law concerns. In addition,
both parties contend their respective choice of venue offers a less congested docket to resolve the case.
However, the court concludes that these arguments do not weigh in favor of either party.
12

See docket no. 88 at 2–3.

13

See id.

14

Additionally, Plaintiff argues that Defendant’s venue motion is untimely. However, § 1404(a) allows
transfer to occur “at any time during the pendency of the case, even after judgment has been entered.”
Chrysler Credit Corp. v. Country Chrysler, Inc., 928 F.2d 1509, 1516 (10th Cir. 1991).

3

DISCUSSION
Pursuant to 28 U.S.C. § 1404(a), “[f]or 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 . . . .” To satisfy section 1404(a), the moving party must
establish two prerequisites. See RES-NV, LLC v. Rosenberg, No. 2:13CV00115DAK, 2013 WL
3548697, at *2 (D. Utah July 11, 2013). First, the moving party must establish that the transferee
court is a forum in which the action could have been originally brought. See Chrysler Credit
Corp., 928 F.2d at 1515. (“[Section] 1404(a) does not allow a court to transfer a suit to a district
which lacks personal jurisdiction over the defendants, even if they consent to suit there.”).
Second, the moving party “bears the burden of establishing that the existing forum is
inconvenient.” Id. It is undisputed that this action might have been brought in the District of
Pennsylvania. Therefore, the court is left to determine whether Defendant has met its burden to
demonstrate that the District of Utah is inconvenient.
“Section 1404(a) is intended to place discretion in the district court to adjudicate motions
for transfer according to an ‘individualized, case-by-case consideration of convenience and
fairness.’” Id. at 1515–16 (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988)). To
determine whether a forum is inconvenient and transfer proper, the court weighs a number of
factors, including:
the plaintiff's choice of forum; the accessibility of witnesses and other sources of
proof, including the availability of compulsory process to insure attendance of
witnesses; the cost of making the necessary proof; questions as to the enforceability
of a judgment if one is obtained; relative advantages and obstacles to a fair trial;
difficulties that may arise from congested dockets; the possibility of the existence
of questions arising in the area of conflict of laws; the advantage of having a local
court determine questions of local law; and, all other considerations of a practical
nature that make a trial easy, expeditious and economical.
4

Texas Gulf Sulphur Co. v. Ritter, 371 F.2d 145, 147 (10th Cir. 1967). “[U]nless the balance is
strongly in favor of the movant[,] the plaintiff's choice of forum should rarely be disturbed.”
Employers Mut. Cas. Co. v. Bartile Roofs, Inc., 618 F.3d 1153, 1167–68 (10th Cir. 2010)
(citation omitted). The party moving to transfer a case pursuant to section 1404(a) bears the
burden of establishing that the existing forum is inconvenient. See Chrysler Credit Corp., 928
F.2d at 1515.
A.

Plaintiff’s Chosen Forum

Plaintiff's brief places much emphasis on the deference afforded to the plaintiff's choice
of forum. Generally, a plaintiff’s choice of forum is entitled substantial weight in determining
whether transfer is appropriate. See Scheidt v. Klein, 956 F.2d 963, 965 (10th Cir. 1992).
“However, a plaintiff's choice of forum is afforded less deference when their choice of forum has
little connection with the operative facts of the lawsuit.” Rosenberg, 2013 WL 3548697, at *3
(citation and quotations omitted).
Plaintiff’s choice of forum would ordinarily weigh against transferring; however, a
significant and substantial portion of the facts giving rise to this case occurred in Pennsylvania.
Plaintiff alleges her father sexually abused her from the time she was 3 years old until she was 16
years old, approximately. 15 Plaintiff primarily resided in Pennsylvania throughout her child and
adolescent years. 16 Plaintiff temporarily resided at a residential treatment facility in Utah when

15

See docket nos. 16-5 at 2–3, 81-1 at 5–18.

16

See docket no. 81-1 at 3–6.

5

she was 15 years old before transferring to a different treatment facility in New Hampshire. 17
Plaintiff contends she was sexually abused by her father “hundreds of times” throughout her
“childhood and teenage years;” 18 and alleges two incidents of child sexual molestation took
place in Utah when Defendant came to visit her. 19 While these two alleged offenses connect the
subject matter of this case to Utah, the court cannot ignore the fact that a profuse amount—and
indeed some of the most egregious—of the sexual abuse allegations occurred in Pennsylvania.
Accordingly, the court finds the facts giving rise to this case have minimal connection with Utah,
and thus, awards less deferential weight to Plaintiff’s choice of forum.
B.

Accessibility of Witnesses

The second, and most important factor to be weighed is the accessibility and convenience
of witnesses. See Employers Mut. Cas. Co., 618 F.3d at 1169 (“The convenience of witnesses is
the most important factor in deciding a motion under § 1404(a).”) (citation omitted); see also
Palace Expl. Co. v. Petroleum Dev. Co., 316 F.3d 1110, 1121–22 (10th Cir. 2003) (limiting its
consideration of the section 1404(a) factors to the location of the witnesses).
To demonstrate a venue is inconvenient to witnesses, “the movant must (1) identify the
witnesses and their locations; (2) indicate the quality or materiality of their testimony; and (3)
show that any such witnesses were unwilling to come to trial and that deposition testimony
would be unsatisfactory, or that the use of compulsory process would be necessary.” Employers
Mut. Cas. Co., 618 F.3d at 1169 (citation and quotations omitted).

17

See docket nos. 16-5 at 2–3, 81-1 at 3.

18

Docket no. 81-1 at 6–7.

19

See docket nos. 16-5 at 2–3, 81-1 at 3.

6

Defendant argues this factor weighs in favor of transfer, as nearly all of the non-party
witnesses for Defendant and Plaintiff reside in Pennsylvania, not Utah. Also, the court can not
compel non-party witnesses to participate in hearings, depositions, or trials if this action remains
in the District of Utah. The court agrees.
Defendant identifies seven non-party witnesses who reside in Pennsylvania, one who
resides in Maryland, one who resides in Delaware, and one who resides in Ohio. In her initial
disclosures, Plaintiff identifies five non-party witnesses who reside in Pennsylvania, one who
resides in Delaware, and one who resides in South Carolina. The only individual residing within
this District of Utah is Plaintiff herself. Moreover, all the non-party witnesses are beyond the
reach of the subpoena power of this court and the unavailability of compulsory process could
significantly prejudice Defendant. See Fed. R. Civ. P. 45(c)(1) (providing that a subpoena may
command a person to attend a trial, hearing or deposition within 100 miles of where the person
resides or within the state of where the person resides and would not incur substantial expense);
see also Millennium Cryogenic Techs., Ltd. v. Weatherford Artificial Lift Sys., Inc., No. 11-CV01971-WJM-CBS, 2012 WL 1015786, at *3 (D. Colo. Mar. 23, 2012) (noting that availability of
compulsory process weighs in favor of transfer).
Defendant has sufficiently detailed the significance of his witnesses’ anticipated
testimony and provided declarations from eight of his ten witnesses stating they would be
unwilling to travel to Utah. While deposition testimony may be presented at trial, it would be
unfair to force Defendant to present a significant portion of his case by deposition, especially
given the nature of the claims. Accordingly, the accessibility and convenience of witnesses
weighs strongly in favor of transfer.
7

C.

Cost of Making the Necessary Proof

This factor also weighs in favor of transfer. If the case remains in Utah, all non-party
witnesses and Defendant would have to travel a significant distance to testify and would likely
have to stay overnight. In contrast, nearly all the witnesses live in Pennsylvania, and therefore
travel and cost would not be an issue. Moreover, for those witnesses that reside outside of
Pennsylvania, they would have to travel a much shorter distance and are geographically close
enough to the Middle District of Pennsylvania that an overnight stay may not be necessary.
D.

Other Factors

The likely application of Pennsylvania law weighs in favor transfer. Utah's conflict of
law rules dictate that Utah will apply the law of the state with the most significant relationship to
the underlying action. See Records v. Briggs, 887 P.2d 864, 867 (Utah Ct. App. 1994). As has
been discussed above, the majority of operative facts took place in Pennsylvania. Accordingly,
Pennsylvania likely has the most significant relationship to the underlying action, and a
Pennsylvania court is better suited than a Utah court to handle issues dealing with the application
of Pennsylvania law.
Additionally, given the clear connection between Pennsylvania and the facts of this
lawsuit, the court concludes that the residents of Pennsylvania have the greatest interest in the
resolution of this case. See Bailey v. Union Pac. R.R. Co., 364 F. Supp. 2d 1227, 1233 (D. Colo.
2005) (“Jury duty is a burden that ought not to be imposed upon the people of a community
which has no relation to the litigation. . . . There is a local interest in having localized
controversies decided at home.”).

8

CONCLUSION AND ORDER
After reviewing all the relevant factors, the court concludes that Defendant has
demonstrated that the present forum is inconvenient and that transfer to the Middle District of
Pennsylvania is warranted and will promote the interests of justice. Therefore, Defendant’s
Motion to Transfer Venue 20 is GRANTED.
The Clerk of Court shall transfer this case to the Middle District of Pennsylvania for
further proceedings in that forum if Plaintiff fails to file an objection pursuant to Fed. R. Civ. P.
72(a) within fourteen (14) days of being served with a copy of this Order or unless otherwise
directed by the district judge.
DATED this 3rd day of October, 2019.
BY THE COURT:

_______________________________
PAUL M. WARNER
Chief United States Magistrate Judge

20

See docket no. 81.

9