Carranza-Contreras v. Ally Financial Incorporated

1 WO [5] 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA [8] 9 Oscar A Carranza-Contreras, et al., No. CV-18-00441-TUC-CKJ 10 Plaintiffs, ORDER 11 v. 12 Ally Financial Incorporated, et al., 13 Defendants. [14] 15 Pending before the Court is Defendant Blancey Siganoff’s Motion to Change 16 Venue/Transfer Case to Phoenix Division. (Doc. 37). Siganoff’s Motion was joined by 17 Defendants Repo Specialists, LLC, Mario I. Cazares Burciaga, Express Auto Group LLC, 18 Javier Cazares Burciaga, and Socorro Arzate (“Repo Defendants”). (Doc. 39). Defendant 19 Ally Financial filed a response in opposition. (Doc. 38). Plaintiffs filed no response. 20 The facts pertaining to the choice of venue in this case are unusual. Plaintiffs filed 21 their complaint in August 2018. (Doc. 1). In the section of Plaintiffs’ Complaint entitled 22 “Jurisdiction,” Plaintiffs state: “Venue lies in the Phoenix Division of the District of 23 Arizona as Plaintiffs’ claims arose from acts of the Defendants perpetrated therein.” (Doc. 24 1, pg. 2) (emphasis added). Although the jurisdictional statement claimed that venue lies 25 in the Phoenix Division, Plaintiffs filed their lawsuit in the Tucson Division of the District 26 of Arizona. Despite this seeming contradiction, Defendants Siganoff and Ally Financial, 27 Inc. admitted the propriety of Plaintiffs’ jurisdictional statement pertaining to venue, 28 whereas the Repo Defendants, all represented by the same counsel, denied the statements 1 contained in the “Jurisdiction” section of Plaintiffs’ Complaint. 2 On June 24, 2019, a scheduling conference was held and, for the first time, the issue 3 of improper venue was raised. (Doc. 35). Following that scheduling conference, Siganoff 4 filed a motion for an intra-district transfer of this case from the Tucson Division of the 5 District of Arizona to the Phoenix Division. (Doc. 37).1 Specifically, Siganoff’s Motion 6 invokes 28 U.S.C. § 1404 , which permits a venue transfer “[f]or the convenience of parties 7 and witnesses, [and] in the interest of justice . . . to any other district or division where it 8 might have been brought or to any district or division to which all parties have consented.” 9 A “district court has broad discretion in deciding whether to order a transfer.” 10 Caldwell v. Palmetto State Sav. Bank of S.C., 811 F.2d 916, 919 (5th Cir. 1987); see, e.g., 11 Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 23 (1988) ( 28 U.S.C. § 1404 “is intended 12 to place discretion in the district courts to adjudicate motions for transfer according to an 13 individualized, case-by-case consideration of convenience and fairness”). Ordinarily, 14 “[t]he moving party has the burden to show that the existing forum is inconvenient.” Texas 15 E. Transmission Corp. v. Marine Office-Appleton & Cox Corp., 579 F.2d 561 , 567 (10th 16 Cir. 1978). “In ruling on a motion to transfer pursuant to § 1404(a), the Court must evaluate 17 three elements: (1) convenience of the parties; (2) convenience of the witnesses; and (3) 18 interests of justice.” Safarian v. Maserati N. Am., Inc., 559 F. Supp. 2d 1068, 1071 (C.D. 19 Cal. 2008 ). The Court will address each element individually. 20 1. Convenience of the Parties 21 Defendants argue that venue in Phoenix is proper because “[a]ll defendants are 22 located in the Phoenix area (or outlying cities). The only party located in Tucson are the 23 Plaintiffs.” (Doc. 37, pg. 3). Although it would undoubtedly be more convenient for 24 Defendants if the case were transferred to the Phoenix Division, Defendants’ argument that 25 a transfer would be more convenient for Defendants is not persuasive since such a transfer 26 would simply shift the inconvenience onto the Plaintiffs, who reside in Tucson, and for [27] 1 Although Plaintiffs did not file a response to Siganoff’s motion, at the scheduling 28 conference, Plaintiffs’ counsel stated that the jurisdictional statement in the Complaint describing venue being in the Phoenix Division was an error. 1 whom the Tucson Division is more convenient. “Shifting inconvenience from one party to 2 another does not generally justify the intradistrict transfer of a case.” Highland v. Anderson, 3 No. 17-CV-362 (RHK/LIB), 2017 WL 7370061 , at *3 (D. Minn. Oct. 2, 2017), report and 4 recommendation adopted, No. CV 17-362 (RHK/LIB), 2017 WL 7370054 (D. Minn. Oct. 5 24, 2017). 6 Similarly, Defendants argue in favor of an intra-district transfer because “all counsel 7 involved are also located in the Phoenix area,” (Doc. 37, pg. 3) and that “[a]ll the parties’ 8 law firms have Phoenix locations.” (Doc. 39, pg. 2). That counsel is located in the Phoenix 9 area is immaterial as the “[l]ocation of counsel is entitled to little consideration.” Cheval 10 Farm LLC v. Chalon, No. CV-10-01327-PHX-ROS, 2011 WL 13047301 , at *2 (D. Ariz. 11 Jan. 19, 2011); see also In re Horseshoe Entm’t, 337 F.3d 429, 434 (5th Cir. 2003) (“The 12 factor of location of counsel is irrelevant and improper for consideration in determining the 13 question of transfer of venue”) (internal quotation omitted). 14 It is well established that a plaintiff’s choice of forum is given substantial 15 consideration. See Texas E. Transmission Corp., 579 F.2d at 567 (“Plaintiff’s choice is also 16 given considerable weight”); Safarian, 559 F. Supp. 2d at 1071 (“A plaintiff’s choice of 17 forum is accorded substantial weight in proceedings under 28 U.S.C. section 1404 (a)”). 18 Plaintiffs chose the Tucson Division to bring their claim and the burden is on Defendants 19 to “make a strong showing of inconvenience to upset the plaintiff’s choice of forum.” 20 Welenco, Inc. v. Corbell, No. CIV. S-13-0287 KJM, 2014 WL 130526 , at *5 (E.D. Cal. 21 Jan. 14, 2014). The only argument advanced by Defendants with respect to the convenience 22 of the parties is that a transfer of venue to the Phoenix Division will be beneficial to the 23 Defendants at the expense of the Plaintiffs. This is not a sufficient justification. Plaintiffs 24 initial choice of forum is given substantial deference and an argument that a transfer will 25 solely benefit the Defendants is not an appropriate basis for a transfer. 26 2. Convenience of Witnesses 27 Rather than fully articulating how a transfer will facilitate the convenience of 28 possible witnesses, the Repo Defendants’ Motion merely states “[m]ost, if not all, of the 1 Defendants reside in Phoenix. Most of the witnesses in this case also reside in Phoenix.” 2 (Doc. 39, pg. 2). Siganoff’s motion fails to mention any possible impact an intra-district 3 transfer will have on witnesses. Courts have routinely held that “[t]he convenience of 4 witnesses is often the most important factor in determining whether a section 1404 transfer 5 is appropriate.” Stribling v. Picazo, No. 15-CV-03337-YGR, 2018 WL 620146 , at *3 (N.D. 6 Cal. Jan. 30, 2018). See also, e.g., State St. Capital Corp. v. Dente, 855 F. Supp. 192 , 197 7 (S.D. Tex. 1994) (“The relative convenience to the witnesses is often recognized as the 8 most important factor to be considered in ruling on a motion under § 1404(a)”). While the 9 convenience to witnesses is the most important factor, “the convenience of non-party 10 witnesses is more important than the convenience of the parties.” Martin v. Glob. Tel*Link 11 Corp., No. 15-CV-00449-YGR, 2015 WL 2124379 , at *4 (N.D. Cal. May 6, 2015). 12 The Court finds this factor to weigh against transfer. Ordinarily, “if the transfer is 13 for the convenience of witnesses, defendant must name the witnesses it wishes to call, the 14 anticipated areas of their testimony and its relevance, and the reasons why the present 15 forum would present a hardship to them.” Bohara v. Backus Hosp. Med. Benefit Plan, 390 16 F. Supp. 2d 957, 963 (C.D. Cal. 2005). Defendants have provided no detailed information, 17 or even any information, pertaining to witnesses and why the Tucson Division would 18 present a hardship to them outside of an inference that the distance between Phoenix and 19 Tucson would be burdensome. 20 3. Interests of Justice 21 Although the convenience of witnesses is often the most important factor in 22 determining whether a section 1404 transfer is proper, “[f]airness considerations may be 23 decisive in ruling on a transfer motion, even when convenience of witnesses and parties 24 points the other way.” Pratt v. Rowland, 769 F. Supp. 1128, 1133 (N.D. Cal. 1991). Here, 25 a few significant considerations may weigh in favor of transfer. As Siganoff’s Motion 26 emphasizes, the contract between the parties was entered into in Phoenix and the alleged 27 violation of 49 U.S.C. § 32701 , the Federal Odometer Act, occurred in Phoenix. 28 Furthermore, Siganoff’s cross-claims also allege acts that occurred in the Phoenix area. 1 || However, despite those considerations, ultimately, “a court must balance the preference 2|| accorded plaintiff's choice of forum with the burden of litigating in an inconvenient 3|| forum.” Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). 4|| It is incumbent upon the Defendants to “make a strong showing of inconvenience to || warrant upsetting the plaintiff's choice of forum.” Id. 6 The Court notes that this case was filed in August 2018. Defendants neglected to raise an issue regarding proper venue until June 2019 and failed to file a motion requesting || a change of venue until July 2019. Although there is no indication that the parties have || engaged in any substantive discovery, “[t]he Ninth Circuit has frequently held that a motion 10}| for transfer may properly be denied where, as here, a case has been pending for some time in the original court or where a transfer would lead to delay.” Pratt, 769 F. Supp. at 1133 . 12|| Defendants were, or should have been, aware that the case was filed in the Tucson Division 13 || and neglected to raise an issue regarding venue for over ten months. 14 Therefore, despite the fact that the Defendants will be inconvenienced by having to 15 || litigate the case in the Tucson Division and that the underlying transactions and actions leading to an alleged violation of the Federal Odometer Act occurred in the Phoenix Division, since there is a strong presumption that the Plaintiffs’ choice of forum should be given great deference and that Defendants failed to properly advanced substantial justifications in favor of transfer, Defendants’ request to transfer this case to the Phoenix 20}| Division will be denied. 21 Accordingly, IT IS ORDERED: 22 1. Defendant Siganoff’s Motion to Transfer Case to Phoenix Division (Doc. 37) is 23 denied. 24 Dated this 8th day of August, 2019. Lowy Ue ean 26 Honorable CindfK. Jéfgenson United States District Judge [28] -5-