Kinney v. Chomsky et al, No. 3:2014cv02187 - Document 27 (N.D. Cal. 2014)
Court Description: ORDER GRANTING DEFENDANTS' MOTION TO TRANSFER. Signed by Magistrate Judge Laurel Beeler on 7/25/2014. (ls, COURT STAFF) (Filed on 7/25/2014)
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Kinney v. Chomsky et al Doc. 27 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 Northern District of California 10 San Francisco Division CHARLES KINNEY, 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 No. C 14-02187 LB Plaintiff, ORDER GRANTING DEFENDANTS’ MOTION TO TRANSFER v. 13 ERIC CHOMSKY, et al., [Re: ECF No. 8] 14 15 Defendants. _____________________________________/ 16 INTRODUCTION 17 On May 12, 2014, Plaintiff Charles Kinney filed a complaint against three Defendants: Eric 18 Chomsky, David Marcus, and Peter Langsfeld. Complaint, ECF No. 1.1 One week later, he filed a 19 First Amended Complaint naming those same three Defendants. First Amended Complaint 20 (“FAC”), ECF No. 6. Mr. Langsfeld has moved, pursuant to 28 U.S.C. § 1404(a), to transfer this 21 action to the United States District Court for the Central District of California, and Mr. Chomsky 22 and Mr. Marcus have joined his motion. Motion to Transfer, ECF No. 8; Joinder, ECF No. 25. 23 Defendants also have moved to dismiss Mr. Kinney’s claims against them. Langsfeld Motion to 24 Dismiss, ECF No. 14; Chomsky and Marcus Motion to Dismiss, ECF No. 21. All parties have 25 consented to the undersigned’s jurisdiction. Langsfeld Consent, ECF No. 9; Kinney Consent, ECF 26 No. 12; Chomsky and Marcus Consent, ECF No. 23. Pursuant to Civil Local Rule 7-1(b), the court 27 28 1 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronicallygenerated page numbers at the top of the document. C 14-02187 LB ORDER Dockets.Justia.com 1 finds this matter suitable for determination without oral argument and vacates the August 7, 2014 2 hearing. Upon consideration of the moving papers and the applicable authority, the court GRANTS 3 Defendants’ motion, TRANSFERS this action to the United States District Court for the Central 4 District of California, and declines to rule on Defendants’ motions to dismiss. 5 STATEMENT 6 Mr. Kinney, who is an attorney, owns real property in four California counties: Los Angeles Contra Costa County and Alameda County (which are located in the Northern District of California). 9 FAC, ECF No. 6, ¶ 7. He resides in both Alameda County and Orange County, and the mailing 10 address for his law office is in Alameda County. Id. ¶¶ 5, 7. In October 2005, Mr. Kinney and a 11 now-deceased woman named Kimberly Kempton purchased real property at 3525 Fernwood Avenue 12 For the Northern District of California County and Orange County (which are located in the Central District of California), as well as 8 UNITED STATES DISTRICT COURT 7 in Los Angeles, California (the “Property”). Id. ¶¶ 7, 15. The seller of the Property was a woman 13 named Michele Clark. Id. Carolyn Cooper lives at the adjacent real property to the west, and Jeff 14 and Judy Harris live at the adjacent real property to the north, of the Property. Id. ¶ 16. 15 Since 2006, all of these individuals, and others, have been embroiled in numerous civil actions 16 (mostly in state court) relating to those individuals’ rights with respect to their properties and public 17 rights of way. See id. ¶¶ 18-20; see also In re Kinney, 201 Cal. App. 4th 951 (Cal. Ct. App. 2011) 18 (summarizing some of the litigation history among these individuals). Mr. Langsfeld is the Deputy 19 City Attorney for the City of Los Angeles who has represented the City of Los Angeles, and Mr. 20 Chomsky and Mr. Marcus are the attorneys who have represented Ms. Clark, in those actions. See 21 id. ¶¶ 8-10. Mr. Langsfeld, Mr. Chomsky, and Mr. Marcus all reside in Los Angeles County. See 22 id.; see also Langsfeld Decl., ECF No. 8 at 13. 23 In the instant federal action, Mr. Kinney brings three claims against Mr. Langsfeld, Mr. 24 Chomsky, and Mr. Marcus: one under 42 U.S.C. § 1983 for violating of his First, Fifth, and 25 Fourteenth Amendment rights; a second under 42 U.S.C. § 1985 for conspiring to violate his First, 26 Fifth, and Fourteenth Amendment rights; and a third under the civil provisions of the Racketeer 27 Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968. See id. ¶¶ 35-58. Mr. Kinney 28 alleges that Defendants each “participated in the denial of [his] rights . . . for [their] own personal C 14-02187 LB ORDER 2 1 gain and benefit.” Id. ¶¶ 8-10. The gist of his allegations is that Mr. Langsfeld, Mr. Chomsky, and 2 Mr. Marcus have retaliated against him for trying to vindicate his rights through the California court 3 system. See generally id. As for Mr. Langsfeld, Mr. Kinney alleges that Mr. Langsfeld filed a 4 misleading and deceptive declaration in one of the state court actions, intimidated and threatened 5 him, and acted contrary to California law. See id. ¶¶ 11(f)-11(h). As for Mr. Chomsky and Mr. 6 Marcus, Mr. Kinney alleges that they improperly filed more than two motions in an effort to add him 7 as a party to a fraud action in state court and to subject him to attorney’s fees and costs, improperly 8 filed and recorded liens or abstracts of judgments or both against his real and personal property 9 located in Alameda County in an attempt to collect on those attorney’s fees and costs, and all three Defendants acted both in concert and alone to “adversely impact” his real and personal 12 For the Northern District of California improperly prevented further proceedings against Ms. Clark. See id. ¶¶ 11(a)-11(e). He alleges that 11 UNITED STATES DISTRICT COURT 10 property located in Alameda County, his real property located in Los Angeles County, and his law 13 practice. See id. ¶ 11(j). 14 All three Defendants have moved to dismiss Mr. Kinney’s First Amended Complaint, and Mr. 15 Chomsky and Mr. Marcus have joined Mr. Langsfeld’s motion to transfer the action to the United 16 States District Court for the Central District of California. Motion to Transfer, ECF No. 8; 17 Langsfeld Motion to Dismiss, ECF No. 14; Chomsky and Marcus Motion to Dismiss, ECF No. 21; 18 Joinder, ECF No. 25. Mr. Kinney has opposed Defendants’ motion to transfer and Mr. Langsfeld’s 19 motion to dismiss, Opposition to Motion to Transfer, ECF No. 13; Opposition to Langsfeld Motion 20 to Dismiss, ECF No. 19, and the time for him to oppose Mr. Chomsky and Mr. Marcus’s motion to 21 dismiss has not yet passed. Mr. Langsfeld filed a reply in support of the motion to transfer, Reply in 22 Support of Motion to Transfer, ECF No. 16, and in support of his motion to dismiss, Reply in 23 Support of Langsfeld Motion to Dismiss, ECF No. 20. 24 25 ANALYSIS I. LEGAL STANDARD 26 A party may challenge venue in district court under two statutes: 28 U.S.C. § 1406(a) for 27 improper venue, and 28 U.S.C. § 1404(a) for the convenience of parties and witnesses and in the 28 interest of justice. C 14-02187 LB ORDER 3 1 A. 28 U.S.C. § 1406(a) 2 Under Federal Rule of Civil Procedure 12(b)(3), a defendant may move to dismiss a case for 3 improper venue. If venue is improper, the court may either dismiss the case without prejudice, or, if 4 it is in the “interest of justice,” may transfer the case “to any district or division in which it could 5 have been brought.” 28 U.S.C. § 1406(a); In re Hall, Bayoutree Assoc., Ltd., 939 F.2d 802, 804 (9th 6 Cir. 1991) (if a court decides to dismiss a case for improper venue, dismissal must be without 7 prejudice). Ordinarily, the interest of justice requires transferring the case to the proper venue rather 8 than dismissing the case. See Baeta v. Sonchik, 273 F.3d 1261, 1264-65 (9th Cir. 2001) (quotations 9 and citations omitted). 10 After a defendant challenges the venue, it is the plaintiff’s burden to show that venue is proper. See Piedmont Label Co. v. Sun Garden Packing Co., 598 F.2d 491, 496 (9th Cir. 1979). In the 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 context of a motion under Rule 12(b)(3), the court need not accept as true all allegations in the 13 complaint, but may consider facts outside the pleadings. See Murphy v. Schneider Nat’l, Inc., 362 14 F.3d 1133, 1137 (9th Cir. 2004) (citations omitted). However, the court “is obligated to draw all 15 reasonable inferences in favor of the non-moving party and resolve all factual conflicts in favor of 16 the non-moving party.” Id. at 1138. 17 B. 28 U.S.C. § 1404(a) 18 28 U.S.C. § 1404(a) states: “For the convenience of parties and witnesses, in the interest of 19 justice, a district court may transfer any civil action to any other district or division where it might 20 have been brought.” Although Congress drafted § 1404(a) in accordance with the doctrine of forum 21 non conveniens, it was intended to be a revision rather than a codification of the common law. Piper 22 Aircraft v. Reyno, 454 U.S. 235, 253 (1981); Norwood v. Kirkpatrick, 349 U.S. 29, 32 (1955). Thus, 23 a § 1404(a) transfer is available “upon a lesser showing of inconvenience” than that required for a 24 forum non conveniens dismissal. Norwood, 349 U.S. at 32. 25 The burden is upon the moving party to show that transfer is appropriate. Commodity Futures 26 Trading Commission v. Savage, 611 F.2d 270, 279 (9th Cir. 1979); see also Los Angeles Memorial 27 Coliseum Comm. v. National Football League, 89 F.R.D. 497, 499 (C.D. Cal. 1981) aff’d, 726 F.2d 28 1381, 1399 (9th Cir. 1984). Nonetheless, the district court has broad discretion “to adjudicate C 14-02187 LB ORDER 4 1 motions for transfer according to an ‘individualized, case-by-case consideration of convenience and 2 fairness.’” Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000) (quoting Stewart Org. 3 v. Ricoh Corp., 487 U.S. 22, 30 (1988)); see Westinghouse Elec. Corp. v. Weigel, 426 F.2d 1356, 4 1358 (9th Cir. 1970). 5 An action may be transferred to another court if: (1) that court is one where the action might 6 have been brought; (2) the transfer serves the convenience of the parties; and (3) the transfer will 7 promote the interests of justice. E & J Gallo Winery v. F. & P. S.p.A., 899 F. Supp. 465, 466 (E.D. 8 Cal. 1994) (citing 28 U.S.C. § 1404(a)). The Ninth Circuit has identified numerous additional 9 factors a court may consider in determining whether a change of venue should be granted under § 10 14 (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. 15 Jones, 211 F.3d at 498–99. Courts may also consider, “the administrative difficulties flowing from 16 court congestion and [the] local interest in having localized controversies decided at home.” Decker 17 Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). 12 For the Northern District of California UNITED STATES DISTRICT COURT 11 1404(a): 13 18 Generally, the court affords the plaintiff’s choice of forum great weight. Lou v. Belzberg, 834 19 F.2d 730, 739 (9th Cir. 1987) cert. denied, 485 U.S. 993 (1988). But when judging the weight to be 20 given to plaintiff’s choice of forum, consideration must be given to the respective parties’ contact 21 with the chosen forum. Id. “If the operative facts have not occurred within the forum and the forum 22 has no interest in the parties or subject matter,” the plaintiff’s choice “is entitled only minimal 23 consideration.” Id. Moreover, when a plaintiff brings a derivative suit or represents a class, the 24 named plaintiff’s choice of forum is given less weight. Id. 25 II. DISCUSSION 26 Because Defendants move to transfer this action under 28 U.S.C. § 1404(a), it is their burden to 27 show that transfer to the Central District is appropriate. Commodity Futures Trading Commission, 28 611 F.2d at 279. The court finds that they have. C 14-02187 LB ORDER 5 1 Defendants first must show that Mr. Kinney could have brought his action in the Central District. 2 They have: the general venue requirements of 28 U.S.C. § 1391(b) are met because all three 3 Defendants reside in the Central District, a substantial part of the events occurred there, and all three 4 Defendants may be found there. See Motion to Transfer, ECF No. 8 at 8-9. Mr. Kinney concedes 5 this point. See Opposition to Motion to Transfer, ECF No. 13 at 6 (“This civil rights and RICO case 6 could have been filed in Los Angeles . . . .”). 7 Defendants next must show that the transfer serves the convenience of the parties and will 8 promote the interests of justice. As for the parties, all three Defendants reside and work in Los 9 Angeles, and while the mailing address for Mr. Kinney’s law office is in Alameda County, Mr. Kinney resides in both Alameda County and Orange County. So, all four parties to this action reside 11 in the Central District of California. 12 For the Northern District of California UNITED STATES DISTRICT COURT 10 As for the interests of justice, the majority of the relevant factors support transferring the action. 13 Two factors are neutral: there do not appear to any relevant agreements that were negotiated and 14 executed in either District, and the courts in both Districts are equally familiar with the governing 15 California law. One factor—Mr. Kinney’s choice of forum—favors keeping the action in the 16 Northern District. But the remaining five factors favor transferring the action to the Central District. 17 The parties have many more contacts with the Central District than they do the Northern District. 18 While Mr. Kinney’s alleges that Mr. Chomsky and Mr. Marcus improperly filed and recorded liens 19 or abstracts of judgments or both against his real and personal property located in Alameda County 20 (and so there are some contacts relating to Mr. Kinney’s claims in the Northern District), most of his 21 allegations involve Defendants’ actions in the legal proceedings that took place in the Central 22 District. The costs of litigation will be lower if the action is heard in the Central District because all 23 four parties, and all of the identified witnesses, are located there. Although Mr. Kinney argues that 24 there are no non-party witnesses, see Opposition to Motion to Transfer, ECF No. 13 at 7, Defendants 25 contend otherwise. They say that Ms. Clark, Ms. Cooper, and the Harrises may have illuminating 26 testimony regarding Mr. Kinney’s allegations, see Reply, ECF No. 16 at 3, and they are all located 27 in the Central District. While Ms. Clark, Ms. Cooper, and the Harrises, as California residents, are 28 subject to compulsory process to compel their testimony at a trial in the Northern District, see Fed. C 14-02187 LB ORDER 6 1 R. Civ. P. 45(c)(1)(B)(ii), they are not subject to compulsory process to compel their testimony at a 2 deposition or hearing in the Northern District because Los Angeles is more than 100 miles away, see 3 Fed. R. Civ. P. 45(c)(1)(A). And the parties are the primary sources of proof bearing upon Mr. 4 Kinney’s allegations, and as stated above, they all are located in the Central District. 5 Thus, the court finds that transfer of this action to the Central District of California is appropriate 6 under 28 U.S.C. § 1404(a). As this action, after transfer, will be assigned to a court in the Central 7 District, and will not longer be assigned to this court, this court declines to rule on Defendants’ 8 pending motions to dismiss. For the foregoing reasons, the court GRANTS Defendants’ motion to transfer, TRANSFERS 11 this action to the United States District Court for the Central District of California, and declines to 12 For the Northern District of California CONCLUSION 10 UNITED STATES DISTRICT COURT 9 rule on Defendants’ motions to dismiss. 13 This disposes of ECF No. 8. 14 IT IS SO ORDERED. 15 Dated: July 25, 2014 _______________________________ LAUREL BEELER United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 C 14-02187 LB ORDER 7
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