ORDER TO TRANSFER TO THE CENTRAL DISTRICT OF CALIFORNIA

THELTON E. HENDERSON, Judge.

The matter of proper venue was raised by this Court, sua sponte, in an Order to Show Cause issued on October 25, 2001. Da Cruz v. Princess Cruise Lines, Inc., 2000 WL 1585695 (N.D. Cal. 2000) (Court has the authority to raise the question of venue sua sponte). After carefully considering Plaintiffs response and the applicable law, the Court finds that the requirements for venue pursuant to 28 U.S.C. § 1391 (a) have not been met and orders that this case be TRANSFERRED to the Central District of California.

BACKGROUND

On July 19, 2000 in Southern California, Defendant Michael Ciano performed breast augmentation and nasal surgery on Plaintiff, a New Jersey resident. She alleges both surgical procedures were negligent, and that part of the latter surgery was performed without her consent. She further alleges that the defendants Ciano and Remely, the anesthetist, engaged in misrepresentations, concealment and nondisclosure when overbilling Plaintiffs insurer.

Beginning in October 2000, Plaintiff had expressed concerns with the results of the breast surgery, and in December 2000, noticed problems with her nose. In seeking post-operative care, she was examined by, among others, Dr. Stephen Daane of San Francisco who performed "revisional" surgery on August 3, 2001.

Plaintiff filed this action on October 22, 2001. In her response to the Order to Show Cause why venue in this district is proper, Plaintiff states that she suffered post-surgery damages in this district; that Dr. Daane is in San Francisco and will be an important witness; and that Defendants hold themselves out as working throughout the state, not just in Southern California.

LEGAL STANDARD

As this Court has noted, the plaintiff bears the burden of establishing that venue is proper in the forum in which the case is filed. Da Cruz, 2000 WL 1585695. Because diversity exists between the parties and Plaintiff does not allege any violations of federal law, Section 1391(a) governs venue questions. 28 U.S.C. § 1391. Under Section 1391(a), venue is proper only in:

1. A district where any defendant resides, if all defendants reside in the same state, or

2. A district where a substantial part of the events on which the claim is based occurred, or

3. If there is no district in which the action may otherwise be brought, a district in which any defendant is subject to personal jurisdiction at the time the action is commenced. Id

A district court may transfer any civil action to any other district or division where it might have been brought, for the convenience of parties and witnesses or in the interest of justice. 28 U.S.C. § 1404 (a). Even if an action is filed in a federal district with improper venue, it can be transferred to any district in which it could have been properly brought. 28 U.S.C. § 1406 (a); District No. 1, Pacific Coast District v. Alaska, 682 F.2d 797, 799 n. 3 (9th Cir. 1982). In considering whether to transfer venue, the district court must consider each of the factors enumerated in § 1404(a): convenience of the parties, convenience of the witnesses, and the interests of justice. Los Angeles, Etc. v. National Football League, 89 F.R.D. 497, 499 (C.D. Cal. 1981), affd, 726 F.2d 1381 (9th Cir. 1984). The Ninth Circuit has also enumerated additional factors to consider, including: 1) the relative ease of access to sources of proof, 2) the availability of compulsory process for unwilling witnesses and the cost involved in securing willing witnesses; 4) the practical problems that make a case easier or more difficult to try in a given forum; 5) the administrative difficulties flowing from court congestion; and 5) the local interest in the issue. Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986).

DISCUSSION

A. Venue Based on Residence is Inappropriate

For purposes of venue, a defendant corporation shall be deemed to reside in any district in which it is subject to personal jurisdiction at the time the action is commenced. 28 U.S.C. § 1391 (c). In states such as California with several federal districts, the test for venue is whether a corporation has sufficient contacts with the district. Bicicletas Windwr, S.A. v. Bicycle Corp. of America, 783 F. Supp. 781, 785 (S.D. N Y 1992).

Here, the Northern District does not appear to be an appropriate venue for Defendants. All Defendants reside and have their principle places of business in the Central Distiict. While Plaintiff claims that Defendants "hold themselves out as much more than local practitioners and treat patients from all over California," this suggests, at most, that Defendants treat people from outside the Los Angeles area. Plaintiff fails to make any showing that Defendants have sufficient contacts within the Northern District for purposes of venue.

B. No Substantial Part of the Injury Occurred in the Northern District

Where residence venue cannot be established, venue may be proper where a substantial part of the events giving rise to the claim occurred. 28 U.S.C. § 1391(b). A "substantial part" is likely to be determined in light of the purpose of the venue statute which is to protect the defendant from having to defend in an unreasonably burdensome format. Lamont v. Haig, 590 F.2d 1124 (D.C. Cir. 1978). In tort actions, the relevant factors are where the parties acted or where the injuries occurred. William W. Schwarzer, et al., Federal Civil Practice Before Trial, 4:124. Usually, a court sitting in the district where an injury occurred and where the evidence is located will be the most efficient forum. Olsen by Sheldon v. Government of Mexico, 729 F.2d 641, 649 (9th Cir. 1984). Courts have found that the "substantial part of the events on which the claim is based" in injury cases to be the events surrounding the accident itself. Thus, the "substantial part" in a car accident case was the actual car accident, not the hospital where the injured party was treated. Smith v. Fortenberry, 903 F. Supp. 1018, 1020-21 (E.D. LA 1995) (explicitly rejecting the claim that treatment in a hospital should be considered a substantial part of the injury for purposes of deciding venue).

Plaintiff cites a Northern District decision for the proposition that venue in a breast implant case was proper where post-surgery leakage allegedly occurred. Watson v. Dow Corning Corp., 1993 WL 165337 (N.D. Cal. 1993). However, Plaintiff fails to note that the leakage occurred at Watson's residence over a sustained period of time. Here, Meyers lives in New Jersey. Any injury in the form of leakage that occurred in the Northern District is incidental and apparently occurred only when Plaintiff was in San Francisco for examination or treatment. The Complaint fails to state how much time this has been, but it could be as little as one trip. Nothing indicates repeated or extended trips. Even were there repeated trips, given that the consultations, surgery and alleged misrepresentations occurred in Southern California, it can not be said that a "substantial part" of the events occurred here.

C. Action can be brought in another venue

If there is no district in which the action could otherwise be brought, any district where a defendant is subject to personal jurisdiction would be proper. 28 U.S.C. § 1391(a). However, the action clearly could be brought in the Central District of California, because the defendants reside there (satisfying Section 1391(a)(1)), and a substantial part of the events occurred there (satisfying Section 1391(a)(2)), so this subdivision does not apply.

D. Transfer

"For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." 28 U.S.C. § 1404(a); Royal Queentex Enterprises, Inc. v. Sarah Lee Corp., 2000 U.S. Dist. LEXIS 101039, *6 (N.D. Cal. 2000).

Plaintiffs choice of forum is afforded substantial weight. Decker Coal Co., 805 F.2d at 842 (9th Cir. 1986). In addition, each of the factors in Section 1404(a) must be considered. Los Angeles Etc., 89 F.R.D. at 499. Ultimately, the court "must balance the preference accorded plaintiffs choice of forum with the burden of litigating in an inconvement forum." Decker Coal Co., 805 F.2d at 843. Only one factor identified by the Ninth Circuit is relevant here: the relative ease of access to sources of proof. Id.

1. Choice of forum

While a plaintiffs choice of forum is usually afforded substantial weight, her choice commands only minimal consideration where she is not a resident of the district where she instituted suit, the operative facts have not occurred within the forum, and the forum has no particular interest in the parties or subject matter. Allegiance Healtheare Corp. v. London Int'l Group, 1998 U.S. Dist. LEXIS 8953, *5 (N.D. Cal 1998) citing Pacfic Car And Foundry Company v. Pence, 403 F.2d 949, 954 (9th Cir. 1968).

Because, as noted above, Plaintiff does not reside in this district, the operative facts have not occurred here and Plaintiff fails to explain why this district would have a particular interest in the case, Plaintiffs choice of forum should be given little weight.

2. Convenience to Parties

Plaintiff concedes that the Central District would not be unduly inconvement, by asking this Court to transfer to that district rather than dismiss the case. Defendants, all of whom reside in the Central District, would clearly find a transfer there more convement.

3. Convenience to Witnesses

This Court has noted that the convenience of a key witness can be an important factor in choice of venue analysis. Hyundia Space Aircraft Co. Ltd, v. Boeing Company, 1999 WL 910131, *5 (N.D. Cal. 1999). Plaintiff argues that venue is proper in this district because her doctor in San Francisco will be an important witness and the convenience of witnesses can be an important factor in the choice of venue analysis. This Court has previously held that an anticipated initial consultation with a doctor who is a potential expert witness is too speculative to factor in a venue decision. Da Cruz., 2000 WL 1585695 at *3 While Plaintiffs doctor in San Francisco will likely be a witness, that must be balanced against the many other likely witnesses who are located in Los Angeles.

4. Interests of Justice

The interests of justice relate to the use of judicial resources, delay to the parties and the interests of the local court. See Pratt v. Rowland, 769 F. Supp. 1128, 1133 (N.D. Cal. 1991) (transfer denied because litigation was already under way and delay would severely prejudice plaintiff); United States ex rel. Swan v. Covenant Care, Inc., 1999 WL 760610 (N.D. Cal. 1999) (transfer was appropriate because litigation had not progressed far). Here, the litigation has scarcely begun.

Because, as noted above, Plaintiff does not reside in this district, the operative facts have not occurred here and Plaintiff fails to explain why this district would have a particular interest in the case, Plaintiffs choice of forum should be given little weight.

2. Convenience to Parties

Plaintiff concedes that the Central District would not be unduly inconvement, by asking this Court to transfer to that district rather than dismiss the case. Defendants, all of whom reside in the Central District, would clearly find a transfer there more convement.

3. Convenience to Witnesses

This Court has noted that the convenience of a key witness can be an important factor in choice of venue analysis. Hyundia Space Aircraft Co. Ltd, v. Boeing Company, 1999 WL 910131, *5 (N.D. Cal. 1999). Plaintiff argues that venue is proper in this district because her doctor in San Francisco will be an important witness and the convenience of witnesses can be an important factor in the choice of venue analysis. This Court has previously held that an anticipated initial consultation with a doctor who is a potential expert witness is too speculative to factor in a venue decision. Da Cruz., 2000 WL 1585695 at *3 While Plaintiffs doctor in San Francisco will likely be a witness, that must be balanced against the many other likely witnesses who are located in Los Angeles.

4. Interests of Justice

The interests of justice relate to the use of judicial resources, delay to the parties and the interests of the local court. See Pratt v. Rowland, 769 F. Supp. 1128, 1133 (N.D. Cal. 1991) (transfer denied because litigation was already under way and delay would severely prejudice plaintiff); United States ex rel. Swan v. Covenant Care, Inc., 1999 WL 760610 (N.D. Cal. 1999) (transfer was appropriate because litigation had not progressed far). Here, the litigation has scarcely begun.

5. Relative Ease of Access to Proof

Of Decker's additional factors to consider, access to sources of proof is most relevant. Most of the records pertaining to actual events giving rise to this litigation are located in the Central District. At this point, Plaintiff claims only one source of information outside of that district, her San Francisco doctor. Access to evidence thus also supports transfer.

CONCLUSION

In light of the above, and good cause appearing, it is hereby ORDERED that this case is transferred forthwith to the Central District of California.