ORDER TRANSFERRING CASE

CHARLES R. BREYER, United States District Judge.

On December 21, 2001 defendants brought a motion to dismiss, based on improper venue, or alternatively to transfer this action to the district of Massachusetts. The Court concluded that venue in the Northern District of California was proper pursuant to 28 U.S.C. § 1391(b)(2). However, the Court was unable to conclude whether a transfer based on the convenience of the witnesses would be appropriate. Accordingly, the Court denied the motion without prejudice. The Court directed the parties to submit declarations detailing witnesses that might be called to testify and the subject of their testimony. Now before the Court is defendants' renewed motion to transfer based on the convenience of parties and witnesses, and in the interest of justice, pursuant to 28 U.S.C. § 1404(a).

BACKGROUND

This dispute arises out of a failed venture to manufacture fiberboard. In 1997 defendant Randal Wise ("Wise") approached his long-time friend, client, and fellow Harvard Business School alumnus defendant Ronald Agel ("Agel") about the possibility of investing in a venture to manufacture fiberboard in Indiana. Agel was a Registered Representative of defendant Jefferson Pilot Securities Corporation ("Jefferson"). Wise, an Ohio resident, had worked for a California fiberboard company, Fibertech USA ("Fibertech") in which Agel had invested. Wise also knew plaintiff Mark Maxon ("Maxon"), who had significant experience in the industry. The three men eventually agreed to become partners. Under their agreement, Agel was to provide start-up capital, Maxon would use his expertise to purchase used equipment, develop a product line, and sign up customers, and Wise was to manage the plant.

The three men formed the California Pacific Corporation ("CPC") as a Massachusetts corporation, with Wise as president. The other directors were also located in Massachusetts.

CPC established a bank account in Indiana. CPC had Massachusetts based counsel and accountants. All shareholder meetings have occurred in Massachusetts.

In July 1997, CPC purchased a fiberboard plant in Indiana. Wise and Maxon worked at the plant. Each commuted weekly from his home to Indiana: Wise from Ohio and Maxon from California. Maxon stopped working in early 1998.

The venture was less than successful. On May 30, 2001 Maxon sued in state court for: 1) fraud, 2) negligent misrepresentation, 3) breach of fiduciary duty, 4) negligent supervision, 5) unlawful business practices, and 6) federal racketeering. Defendants removed to this Court.

DISCUSSION

Plaintiff argues that the renewed motion to transfer is brought in bad faith given the fact that on January 11, 2002, at a case management conference, the parties agreed to mediate their dispute in San Francisco this May. As a result of the agreement to mediate, the Court stayed all discovery except for a one-day deposition of plaintiff. Plaintiff states that the renewed motion is a "nasty surprise . . . after having stipulated to a stay of the very discovery needed to respond to it." Opposition at 2.

This argument is without merit. Whether or not the renewed motion is a surprise to plaintiff (and it should not be), the Court had already ruled that plaintiff would not be permitted additional discovery to respond to the transfer motion. The Court ordered initial disclosures to proceed, but in an attempt to efficiently and expeditiously place this action in the proper forum, denied plaintiff's request to take depositions to respond to the transfer motion. Therefore the stay imposed under the impending mediation is of no consequence.

The parties have submitted the requested declarations, regarding potential witnesses and testimony, and it is now proper to address the motion on its merits.

I. Motion to Transfer

Under 28 U.S.C. § 1404(a), the district court has discretion "to adjudicate motions for transfer according to an `individualized, case-by-case consideration of convenience and fairness.'" Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000). "A motion to transfer venue under § 1404(a) requires the court to weigh multiple factors in its determination whether transfer is appropriate in a particular case." Id. A recent Northern District case suggested that the following were relevant factors:

(1) plaintiff's choice of forum, (2) convenience of the parties, (3) convenience of the witnesses, (4) ease of access to the evidence, (5) familiarity of each forum with the applicable law, (6) feasibility of consolidation of other claims, (7) any local interest in the controversy, and (8) the relative court congestion and time of trial in each forum.

Williams v. Bowman, 157 F. Supp.2d 1103, 1106 (N.D. Cal 2001).

While the Court has considered all of these factors, the convenience of the witnesses is the determinative factor in this case.

A. Plaintiff's Choice of Forum.

Because the dispute is centered elsewhere, and the underlying agreement was executed elsewhere, plaintiff's choice of forum is not entitled to significant weight. See Jones v. GNC Franchising, Inc., 211 F.3d 495, 498 (9th Cir. 2000).

B. Convenience of the Parties

It would clearly be inconvenient for the defendants to try this case in the Northern District of California. However, Massachusetts is the most convenient forum only for Agel who resides in Massachusetts. Wise is a resident of Ohio. Jefferson is a New Hampshire Corporation with its principal place of business in Concord, New Hampshire. Still, the convenience of the defendants' tips in favor of Massachusetts. Of course this district is more convenient for plaintiff. But plaintiff regularly traveled across the country to work for CPC and presumably could do so to litigate this action.

C. Convenience of Witnesses

Plaintiff's argument that venue should remain in the Northern District of California seems to center around Fibertech USA, a fiberboard manufacturer in Colusa, California where Wise had worked and Agel was an investor. According to Maxon, the "key event that led to the proposed formation among Maxon, Wise and Agel" of CPC was a June 1997 Fibertech shareholders meetings. Maxon claims that California based witnesses will be required to testify as to the substance of this meeting.

It is not clear why plaintiff considers this meeting so important. It appears that plaintiff claims that the conspiracy to defraud him was hatched by Agel and Wise at this meeting or in other Fibertech related meetings. Even if this is so (and Maxon has not provided any declarations suggesting that such testimony would be forthcoming), the allegedly illegal actions are the implementation of this scheme, not its invention. As discussed elsewhere, while Maxon may have been ensnared into Agel and Wise's fraudulent scheme by faxes and telephone calls to California, the scheme was carried out through a corporation that was chartered in Massachusetts and operated in Indiana. That is where the relevant witnesses are located. It is worth noting that Maxon himself was not even present at the relevant Fibertech meeting. Indeed, it appears that Maxon was never officially associated with Fibertech.

The declaration of Bartholomew Lee, attorney for plaintiff, sets forth plaintiff's list of potential witnesses. The declaration lists a total of twenty six potential witnesses, fourteen of whom reside in California. Lee provides almost no description of the substance of the testimony from these witnesses, but testimony regarding Fibertech appears to be central.

For example, with regard to the first California witness listed, Chris Churchill, Lee states as the subject of testimony only: "Fibertech's injury by Agel and Wise." Of course, Fibertech is not even a defendant in this case, and as stated above the relevance of testimony concerning the operation of Fibertech is nowhere set forth. Furthermore, defendants submitted the declaration of Agel which states that:

I am informed and believe that Chris Churchill, the President of Fibertech, would, if called as a witness in this matter, testify that I have done nothing to injure Fibertech. Further, Fibertech board meetings (which were not attended by Maxon or me) had nothing to do with the formation of California Pacific Corporation.

Agel Supplemental Decl. ¶ 3. Chris Marks is also listed as a potential witness to testify "re Fibertech," and nothing more. The list also includes Fibertech investors.

The description of the other witness testimony is similarly deficient. Two witnesses, for example, are listed that will testify regarding fiberboard. Plaintiff also lists his sister-in-law Bernice Rosa and his wife Terri Maxon as witnesses regarding "Mark Maxon's claims for relief." The need for this testimony is not at all clear.

In short, plaintiff's opposition appears to rest almost exclusively on the relevance of Fibertech to the underlying dispute. But the only apparent connections between Fibertech and this dispute regarding the formation and operation of CPC is that Fibertech and CPC both manufacture fiberboard and that defendants Wise and Agel were both associated with Fibertech. It appears that plaintiff Maxon was never an employee, board member, or investor in Fibertech. Indeed, it does not appear that he had any relationship with Fibertech whatsoever. Plaintiff makes claims against CPC, not Fibertech. Plaintiff has not shown how Fibertech is relevant to this dispute. Plaintiff fails to show how the Northern District of California is a convenient forum for this litigation.

By contrast, defendants have submitted the declaration of Agel detailing potential witnesses and subjects of testimony. That list includes over a dozen witnesses whose testimony is obviously relevant to the case as alleged in the complaint. In short, this is a case regarding a business deal gone bad. That business was incorporated in Massachusetts and operated in Indiana. As is clear from defendants' submission, most of the witnesses that will be called to testify are located in Massachusetts or Indiana.

Because the convenience of the witnesses tips heavily in favor of venue in Massachusetts, this case should be transferred.

D. Access to Evidence

CPC's books and records are in Massachusetts, as are the documents of Agel. While the location of records "is not itself sufficient to support a motion for transfer," See Royal Queentex Enterprises v. Sara-Lee Corp., 2000 WL 246599, 7 (N.D.Cal. 2000), it does weigh somewhat in favor of transfer.

E. Other Factors

The other factors do not tip in favor of, or against, transfer.

CONCLUSION

For the convenience of the parties and witnesses, and in the interest of justice, this case is hereby TRANSFERRED to the district of Massachusetts pursuant to 28 U.S.C. § 1404(a).

At oral argument, the parties affirmed their commitment to mediate this dispute in San Francisco regardless of the outcome of the transfer motion. That mediation is scheduled for May of this year. The Court finds it appropriate to stay this order pending the scheduled mediation. Accordingly, this Order shall be effective June 1, 2002.

IT IS SO ORDERED.