Unpublished Disposition, 940 F.2d 1533 (9th Cir. 1991)

No. 90-55147.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER and REINHARDT, Circuit Judges, and KING,^*  District Judge.

MEMORANDUM^** 

At the time of the district court's order dismissing Brophy's California complaint, there was a pending action in Washington brought by Sterling. Brophy sought to have his California complaint transferred to Washington rather than dismissed. Sterling had moved for a transfer as an alternative to its motion to dismiss Brophy's California complaint. The district court denied Brophy's request on the grounds that Brophy still had four days to file his California complaint as a counterclaim in the Washington action and stayed the dismissal order for two weeks to give him time to do so. Instead of filing the California claim in the Washington action, Brophy appeals the district court's refusal to transfer and the district court's conclusion that Brophy's California complaint stated a claim that was a compulsory counterclaim in the Washington action.

We agree with the district court that Brophy's California complaint was a compulsory counterclaim in the Washington action. See Pochiro v. Prudential Ins. Co. of America, 827 F.2d 1246, 1251 & n. 9 (9th Cir. 1987). However, we conclude that, under these circumstances, the district court's refusal to transfer the case was an abuse of discretion.

We therefore REMAND in order to permit the district court to transfer the case to the Western District of Washington.