Morris v. State Bar of California et al, No. 4:2007cv02890 - Document 56 (N.D. Cal. 2008)

Court Description: ORDER GRANTING MOTION TO TRANSFER; AND DENYING MOTION TO COORDINATE by Judge Phyllis J. Hamilton granting 47 Motion to Change Venue; denying 53 Motion (nah, COURT STAFF) (Filed on 12/19/2008) (Additional attachment(s) added on 12/30/2008: # 1 Certificate of Service) (nah, COURT STAFF).

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Morris v. State Bar of California et al Doc. 56 1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 7 GREGORY MORRIS, 8 Plaintiff, For the Northern District of California United States District Court 9 No. C 07-2890 PJH v. ORDER GRANTING MOTION TO TRANSFER; AND DENYING MOTION TO COORDINATE 10 SAFECO INSURANCE CO., et al., 11 Defendants. _______________________________/ 12 Before the court is defendants City of Fresno, Fresno Fire Department, Fresno 13 County District Attorney’s Office, and Don MacAlpine’s (“Fresno Defendants”) motion to 14 transfer venue to the United States District Court for the Eastern District of California 15 (“Eastern District”) pursuant to 28 U.S.C. § 1404(a). Pro se plaintiff Gregory Morris 16 (“plaintiff”) opposes the motion. Also before the court is plaintiff’s administrative motion to 17 coordinate this action with a related state court action pursuant to Civil Local Rule 3-13, 18 which Fresno Defendants oppose. The court finds these motions suitable for decision 19 without oral argument pursuant to Civil Local Rule 7-1(b). Having carefully read the parties’ 20 papers and considered the relevant legal authority, the court hereby GRANTS Fresno 21 Defendants’ motion to transfer venue, and DENIES plaintiff’s motion to coordinate, for the 22 reasons stated below. 23 BACKGROUND 24 Plaintiff brought this action against multiple persons and entities, generally alleging 25 numerous violations of his civil rights and other rights protected by federal disability laws 26 arising out of a fire at his home and the subsequent investigation and prosecution. Fresno 27 Defendants are merely four of the seventeen defendants originally named in the complaint. 28 Dockets.Justia.com 1 2 For the Northern District of California Background Allegations Plaintiff was once an attorney admitted to the practice of law in the State of 3 California. See Compl. ¶ 53. In 2002, plaintiff also owned a home located in Fresno, 4 California. See id. ¶¶ 19, 90. Plaintiff’s home was insured for fire damage and limited 5 property damage/loss. Id. ¶ 216. 6 United States District Court A. On August 15, 2002, there was a fire at plaintiff’s home. The fire was investigated 7 by the insurer and the Fresno Fire Department, among other persons and entities. See id. 8 ¶¶ 14, 20, 22. Subsequent to the investigations, on August 25, 2002, plaintiff was arrested 9 and charged with arson and insurance fraud. Id. ¶¶ 91, 96. Ultimately, after spending 10 nearly two and one half years defending himself against these charges, the charges were 11 dismissed in December 2004. Id. ¶ 99. Plaintiff alleges, however, that exculpatory 12 evidence was actually discovered during the investigations into the fire at plaintiff’s home, 13 but that the various investigating persons and agencies intentionally or recklessly ignored 14 and disregarded this evidence, with the aim of prosecuting plaintiff for insurance fraud and 15 arson. Id. ¶ 91. 16 In March 2006, plaintiff commenced a state court action in San Francisco Superior 17 Court against multiple persons and entities, generally alleging numerous violations of his 18 civil rights and other rights protected by federal disability laws. He subsequently filed a 19 nearly identical action in this court on June 4, 2007. On August 22, 2008, this court issued 20 an order dismissing defendant State Bar of California (“State Bar”) and several other 21 related defendants. As a result, the only remaining defendants in this action are the Fresno 22 Defendants as plaintiff did not serve any of the other named defendants. 23 On October 15, 2008, City of Fresno, Fresno Fire Department and Don MacAlpine 24 filed a motion to transfer pursuant to § 1404(a). The Fresno County District Attorney’s 25 Office filed a joinder on October 16, 2008. Plaintiff filed an opposition on November 4, 26 2008. On November 12, 2008, plaintiff filed an administrative motion to coordinate this 27 action with the related state court action pending before the San Francisco Superior Court. 28 2 1 City of Fresno, Fresno Fire Department, and Don MacAlpine filed an opposition on 2 November 17, 2008. DISCUSSION 3 4 A. Plaintiff submits two declarations in opposition to Fresno Defendants’ motion to For the Northern District of California 5 United States District Court Evidentiary Issues 6 transfer venue, the declaration of plaintiff and the declaration of Michael McGinnis’ 7 (“McGinnis”), plaintiff’s attorney in the related state court action. Fresno Defendants raise 8 evidentiary objections to both of these declarations, which are offered for the purpose of 9 demonstrating that transfer of venue is inappropriate. Fresno Defendants object to the 10 admissibility of these declarations for several reasons. First, with respect to plaintiff’s 11 declaration, Fresno Defendants object to parts of the declaration on the basis that the 12 statements either lack foundation, are not relevant, contain inadmissible lay opinion 13 testimony, or are hearsay. Second, with respect to McGinnis’ declaration, Fresno 14 Defendants object to parts of the declaration on the basis that the statements contain 15 inadmissible lay opinion testimony, lack foundation, are not relevant, are speculative, or are 16 hearsay. Fresno Defendants also argue that the court should disregard McGinnis’ 17 declaration on the basis that it was untimely served upon the City of Fresno, four days after 18 plaintiff’s opposition was due. However, given that Fresno Defendants received the 19 McGinnis’ declaration on November 4, 2008, three days before they filed their reply brief, 20 the court perceives no prejudice from the court’s consideration of the McGinnis declaration 21 in resolving this matter. Below, in the discussion on the merits, if the outcome relies on 22 evidence that is specifically challenged, it shall be so noted and the objection resolved. 23 B. Plaintiff’s Administrative Motion to Coordinate 24 Plaintiff’s administrative motion seeks an order from this court “coordinating” this 25 action with the related state court action pursuant to Civil Local Rule 3-13. In essence, 26 plaintiff’s motion amounts to a request to stay the present action so he can prosecute his 27 related state court action. However, because plaintiff did not offer controlling authority 28 3 For the Northern District of California United States District Court 1 supporting the relief he requests, the court will deny his motion. Plaintiff’s citation to Civil 2 Local Rule 3-13 is unavailing. That rule does not authorize this court to stay the present 3 action pending the resolution of the related state court action. Moreover, to the extent that 4 plaintiff’s motion can be construed as a request to stay this action during the pendency of 5 the related state court action (i.e., a request for this court to abstain from its jurisdiction 6 over the present action) pursuant to Colorado River Water Conservation Dist. v. United 7 States, 424 U.S. 800 (1976), the court denies this request. A motion to abstain is typically 8 brought by a defendant, not the party who sought to avail himself of federal jurisdiction in 9 the first place. But more significantly, plaintiff has not properly raised this issue, nor has 10 this issue been briefed by the parties. 11 C. Fresno Defendants’ Motion for A Discretionary Transfer Under § 1404(a) 12 1. 13 “For the convenience of parties and witnesses, in the interest of justice, a district Standard to Transfer 14 court may transfer any civil action to any other district or division where it might have been 15 brought.” 28 U.S.C. § 1404( a). “Section 1404(a) is intended to place discretion in the 16 district court to adjudicate motions for transfer according to an ‘individualized, case-by-case 17 consideration of convenience and fairness.’ ” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 18 22, 29 (1988) (citation omitted); Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th 19 Cir. 2000). Thus, in considering whether to grant a motion to transfer, the district court may 20 consider any of a number of “case-specific factors.” See Stewart Org, 487 U.S. at 29; 21 Jones, 211 F.3d at 498. 22 Although § 1404(a) lists three factors - convenience of parties, convenience of 23 witnesses, and the interest of justice - rulings on motions brought under § 1404(a) can 24 involve a number of other considerations. For example, the court can consider: (1) the 25 plaintiff’s choice of forum; (2) the parties’ contacts with the forum, and the extent to which 26 the contacts are related to the pending action; (3) access to proof; (4) the cost of litigating 27 in the two forums; (5) the availability of compulsory process, (6) judicial economy; (7) the 28 4 1 court’s familiarity with the governing law; and (8) the public policy of the forum state. See 2 Jones, 211 F.3d at 498-99; Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 3 843 (9th Cir. 1986). The party requesting the transfer has the burden of showing that 4 transfer is proper. Futures Trading Comm’n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). 5 2. 6 Fresno Defendants maintain that transfer to the Eastern District is appropriate 7 because: (1) Fresno would be a more convenient forum for the parties and witnesses; (2) 8 Fresno is the forum where the events giving rise to plaintiff’s claims occurred; and (3) the 9 interest of judicial economy will be served by transferring this case to Fresno. For the Northern District of California 10 United States District Court Transfer of Venue to the Eastern District is Proper There are two separate requirements of § 1404(a). First, the district to which the 11 defendant is seeking a transfer must be a place where the action originally “might have 12 been brought,” and second, the “convenience of parties and witnesses, in the interest of 13 justice” must favor transfer. Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir. 1985). 14 Because it is undisputed that Fresno Defendants reside in the Eastern District, and 15 the events giving rise to plaintiff’s claims against Fresno Defendants occurred in the 16 Eastern District, the court finds that the first requirement is satisfied as venue is proper in 17 the Eastern District. 28 U.S.C. § 1391(b).1 Thus, the question, then, is whether transfer to 18 the Eastern District will enhance the convenience of parties and witnesses and will promote 19 the interests of justice. 28 U.S.C. § 1404(a). 20 21 a. Convenience of the Parties While courts generally defer to plaintiff’s choice of forum, Decker Coal, 805 F.2d at 22 1 23 24 25 26 27 28 U.S.C. § 1391(b) provides: A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought. 28 5 1 843, the deference given to plaintiff’s choice of forum is slight, if any, when, as here, the 2 plaintiff’s chosen forum lacks a significant connection to the events that gave rise to the 3 complaint. See Inherent.com v. Martindale-Hubbell, 420 F.Supp.2d 1093, 1100 (N.D. Cal. 4 2006); see also Lou v. Belzberg, 834 F.2d 730, 739 (9th Cir. 1987) (plaintiff’s chosen venue 5 is accorded substantially less deference if the operative facts have not occurred within the 6 forum and the forum has no interest in the parties or subject matter of the litigation). In 7 determining the weight to be given to plaintiff’s choice of venue, “consideration must be 8 given to the extent both of the defendants’ business contacts with the chosen forum and of 9 the plaintiff’s contacts, including those relating to his cause of action.” Pac. Car and 11 For the Northern District of California United States District Court 10 Foundry Co. v. Pence, 403 F.2d 949, 954 (9th Cir. 1968). As previously noted, the events giving rise to the claims against Fresno Defendants 12 did not occur in the Northern District; rather, the events occurred in the Eastern District. 13 Nor has plaintiff asserted that Fresno Defendants have significant contacts with the 14 Northern District, or that the Northern District has any connection to the events giving rise 15 to the claims alleged against Fresno Defendants. Consequently, the court finds that little 16 deference or consideration must be paid to plaintiff’s choice of forum. While the Northern 17 District does have an interest in protecting its residents, it has little interest in the subject 18 matter of the litigation given that all of the specific events giving rise to the claims alleged 19 against Fresno Defendants occurred outside the Northern District. Indeed, the only 20 connection the Northern District has with this action is plaintiff’s residency. To the extent 21 plaintiff argues that it would be economically burdensome and inconvenient for him to 22 litigate this matter in the Eastern District as he resides in the Northern District, lacks the 23 resources to litigate in the Eastern District and is disabled, it would also be burdensome 24 and inconvenient for the Fresno Defendants to litigate this matter in the Northern District as 25 they all reside in the Eastern District. Accordingly, having considered where the operative 26 facts giving rise to this action occurred, the parties’ contacts with the respective forums, the 27 interests of the respective forums in the subject matter of this litigation, and the parties’ 28 6 1 inconvenience in litigating outside the forum they reside in, the court finds that this factor 2 weighs in favor of transfer. b. For the Northern District of California United States District Court 3 Convenience of the Witnesses 4 “‘The relative convenience to the witnesses is often recognized as the most 5 important factor to be considered in ruling on a motion under § 1404(a).’” Saleh v. Titan 6 Corp., 361 F.Supp.2d 1152, 1160 (S.D. Cal. 2005). “Importantly, ‘[w]hile the convenience 7 of party witnesses is a factor to be considered, the convenience of non-party witnesses is 8 the more important factor.’ ” Id. “In determining whether this factor weighs in favor of 9 transfer, the court must consider not simply how many witnesses each side has and the 10 location of each, but, rather, the court must consider the importance of the witnesses.” Id. 11 at 1160-61. In establishing inconvenience to witnesses, the moving party must name the 12 witnesses, state their location, and explain their testimony and its relevance. Carolina 13 Cas. Co. v. Data Broad. Corp., 158 F.Supp.2d 1044, 1049 (N.D. Cal. 2001). “In assessing 14 the effect of a transfer on the convenience of witnesses, courts consider the effect of a 15 transfer on the availability of certain witnesses, and their live testimony, at trial.” Id. 16 Fresno Defendants contend that the relevant witnesses in this action reside in the 17 Eastern District; namely, the individuals employed by the County and City of Fresno that 18 were involved in the investigation and prosecution of plaintiff following the fire at his 19 residence. Plaintiff, for his part, contends that the majority of non-party witnesses reside in 20 the Northern District, including several medical witnesses that will purportedly testify as to 21 his emotional distress, activities and affairs while homeless, and his disability.2 Although 22 neither party has specifically identified any witnesses by name and presented a detailed 23 description of the testimony it is anticipated that they will provide (i.e, nature and materiality 24 2 25 26 27 28 Plaintiff asserts that non-party witnesses also reside in Orange County, Los Angeles, Sacramento, San Diego and Fresno. However, he maintains that because most of the nonparty witnesses reside in San Francisco, or at least within the subpoena power of the Northern District, there is no reason to disturb his choice of forum. He further asserts that because the non-party witnesses in this action are scattered across the state, it would be more convenient to litigate this action in San Francisco given that San Francisco has more services for travelers than Fresno. 7 For the Northern District of California United States District Court 1 of their testimony), it is clear from the events giving rise to the claims against Fresno 2 Defendants that the witnesses having material, first-hand knowledge regarding the seminal 3 issues in this case reside in the Eastern District. Further, while plaintiff has generally 4 identified various medical and non-medical witnesses that might testify as to the severity of 5 his emotional distress (i.e., plaintiff’s damages), he does not identify a single important non- 6 party witness residing in the Northern District that would provide material testimony tending 7 to establish a basis to impose civil liability on Fresno Defendants for the claims alleged 8 against them in the complaint. Nor has plaintiff sufficiently established that all (or even 9 some) of these potential witnesses would be necessary or could provide important 10 testimony at trial. In fact, most of the non-party witnesses identified by plaintiff residing in 11 the Northern District do not appear necessary insofar as their anticipated testimony 12 appears cumulative. Moreover, to the extent that these witnesses will provide expert 13 testimony, the convenience of these witnesses is given little weight. See Williams v. 14 Bowman, 157 F.Supp.2d 1103, 1108 (N.D. Cal. 2001) (the convenience of expert 15 witnesses is given little weight). Finally, the court notes that plaintiff has not asserted that 16 any of the non-party witnesses he identified would not testify in Fresno or would need to be 17 compelled to do so. To the extent plaintiff argues that the non-party witnesses residing in 18 the Northern District would be beyond the subpoena power of the Eastern District, the court 19 disagrees. Plaintiff erroneously assumes that the Eastern District’s subpoena power could 20 reach only those non-party witnesses who reside within 100 miles. The Eastern District’s 21 subpoena power extends throughout the state of California pursuant to Rule 45 of the 22 Federal Rules of Civil Procedure, which provides that a subpoena may be served anywhere 23 within the state of the issuing court if a state statute allows state-wide service of a 24 subpoena issued by a state court of general jurisdiction. See Fed.R.Civ.P. 45(b)(2)(C). 25 Section 1989 of the California Code of Civil Procedure authorizes such state-wide service. 26 Thus, contrary to plaintiff’s contention, the Eastern District would have the power to 27 subpoena witnesses located in the Northern District. Because the parties have listed no 28 8 1 witnesses who reside outside of California, the ability to compel the testimony of non-party 2 witnesses is thus a neutral factor in the transfer analysis. For the Northern District of California United States District Court 3 In short, while plaintiff emphasizes the importance of various prospective witnesses 4 located in the Northern District, whom he contends are important to his case, the scant 5 information he has provided about these witnesses does not demonstrate any significant 6 value in retaining venue in the Northern District. In contrast, the individuals identified by 7 Fresno Defendants can testify to the merits of plaintiff’s claims. See Williams, 157 8 F.Supp.2d at 1108-09 (finding that although both parties identified witnesses in both 9 districts, defendants identified individuals that would likely testify to the merits of the 10 lawsuit, indicating this factor weighed in defendants’ favor). Accordingly, having not only 11 considered the respective witnesses each side has identified and the location of each, but 12 also the importance of the witnesses, the court finds that the convenience of witnesses 13 factor weighs in favor of transfer. 14 c. Interest of Justice 15 The final factor courts consider is whether transfer will serve the interest of justice. 16 A section 1404(a) transfer serves to “ ‘prevent the waste of time, energy, and money’ and 17 ‘to protect litigants, witnesses and the public against unnecessary inconvenience and 18 expense.’ ” Van Dusen, 376 U.S. at 616. Because the Northern District does not have a 19 meaningful connection to the misconduct alleged against Fresno Defendants, and because 20 the important witnesses relevant to the merits of this action reside in Fresno, the court finds 21 that this factor weighs in favor of transfer. Lou, 834 F.2d at 739.(“If the operative facts 22 have not occurred within the forum and the forum has no interest in the parties or subject 23 matter, [the plaintiff’s] choice is entitled to only minimal consideration.”). 24 25 26 27 d. Remaining Factors The court has considered the remaining factors (e.g., ease of access to the evidence, familiarity of each forum with the applicable law, local interest in the controversy, cost of litigating in the two forums, the availability of compulsory process, judicial economy 28 9 For the Northern District of California United States District Court 1 and the public policy of the forum state) and does not find that these factors militate against 2 transfer. First, while neither party has specifically addressed in their briefs the location of 3 the documents relevant to this action, this factor appears to favor Fresno Defendants 4 insofar as the investigation and prosecution giving rise to this action occurred in Fresno. 5 However, because neither party contends that any of the relevant records are so 6 voluminous that it would difficult to transport them as needed, this factor is neutral. 7 Second, as both the Northern District and the Eastern District are equally familiar with 8 California law, this factor is neutral. Third, Fresno and San Francisco both have local 9 interests in this controversy. Plaintiff is a resident of the Northern District. This gives this 10 judicial district a local interest in the case. However, because the Fresno Defendants all 11 reside in Fresno and their alleged wrongful conduct giving rise to this action occurred in 12 Fresno, the Eastern District has a greater local interest in this case. Thus, this factor favors 13 transfer. Fourth, because neither party has submitted any evidence that the cost of 14 litigation will differ at all, let alone significantly, depending on whether the instant action is 15 litigated in the Northern District or the Eastern District, this factor is neutral. Fifth, as 16 previously noted, because both the Northern and Eastern District would have the power to 17 subpoena witnesses located in California, and because neither party has identified 18 witnesses who reside outside of California, the factor of availability of compulsory process 19 is neutral. Sixth, as to judicial economy, neither party specifically presented evidence on 20 the relative congestion of the respective districts. Nor has plaintiff shown that resolution of 21 this action in the Eastern District would be less efficient or more expensive than in the 22 Northern District. As such, this factor does not weigh against transfer. Seventh, as both 23 the Northern District and the Eastern District are equally familiar with California public 24 policy, this factor is neutral. 25 In sum, after considering all the relevant factors, the court finds that the balance tips 26 sharply in favor of transferring this action to the Eastern District. This action could have 27 been originally brought in the Eastern District, and transfer will enhance the convenience of 28 10 1 the parties and witnesses, and is in the interest of justice. 2 3 4 CONCLUSION For the reasons stated above, the court hereby GRANTS Fresno Defendants’ motion to transfer venue, and DENIES plaintiff’s motion to coordinate. 5 6 7 IT IS SO ORDERED. Dated: December 19, 2008 8 ____________________________ PHYLLIS J. HAMILTON U.S. District Judge 9 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11

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