Opinion
No. Civ. S-05-1639 FCD GGH.
December 12, 2005
MEMORANDUM AND ORDER
This matter is before the court on defendants Coastal Island Charters, Michael Bauer and Lori Bauer's (collectively, "defendants") motion for transfer of venue pursuant to 28 U.S.C. § 1404(a). Defendants do not challenge the propriety of venue in the Eastern District of California, but argue that the United States District Court of Alaska is the more convenient forum. Plaintiffs Janet Young and Edward Young ("plaintiffs") oppose the motion arguing that the balance of factors weigh heavily in their favor, meriting retention of the case in this district.
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. See E.D. Cal. Local Rule 78-230(h).
For the reasons set forth below, the court DENIES defendants' motion. While the operative facts of the incident occurred in Alaska, plaintiffs' choice of forum should be afforded substantial deference since defendants personally solicited plaintiffs' business in this district on numerous occasions and the contract forming the basis of the parties' relationship was entered into here.
BACKGROUND
This is an action for negligence by common carrier, negligence and loss of consortium filed by plaintiffs against defendant Coastal Island Charters ("Coastal") and its owners defendants Michael and Lori Bauer (the "Bauers"). (Compl., filed Aug. 16, 2005.) The premise of Coastal's business is to share the Bauers' love of fishing and exploring the beautiful Southeast Alaska. (L. Bauer Decl., filed Oct. 25, 2005, ¶ 3.)
In January 1998, plaintiffs first met the Bauers at the Sportsman's Expo in San Mateo, California. The Bauers were soliciting for fishing trips they ran in Alaska. Plaintiffs agreed to purchase a trip and went on the trip with the Bauers in the summer of 1998. (J. Young Decl., filed Nov. 15, 2005, ¶ 2.)
Thereafter, on a number of occasions between 1998 and 2004, plaintiffs personally met with the Bauers at the Sportsman's Expo in either San Mateo or Sacramento, California. Again, on these occasions, the Bauers were soliciting business for their fishing trips. Plaintiffs attest that at least once every year between 1998 and 2004, and probably more, the Bauers solicited business at a Sportsman's Expo in Northern California. (Id. at ¶ 3.)
On January 18, 2004, plaintiffs again met the Bauers at the Sportsman's Expo in Sacramento and contracted for a five-day fishing trip for the summer. That day, plaintiffs wrote a $2,000.00 check to the Bauers as a deposit for the trip. (Id. at ¶ 4.)
While on the trip, on June 18, 2004, plaintiff Janet Young was in the dining/main room of the Bauers' boat. At that time, the only other person in the room was the Bauers' employee, Ms. Kelly. Ms. Kelly opened a hatch in the floor while plaintiff's back was turned. Plaintiff alleges Ms. Kelley did not say or do anything to warn her of the hazard. When plaintiff turned back around, she fell through the open hatch and shattered her ankle. (Id. at ¶ 5.)
The other passengers onboard included Eddie Young, plaintiffs' son, and Dennis Meeno, a business associate of plaintiffs.
According to defendants, Ms. Kelly was preparing to store the morning catch in a freezer below the main salon deck. (L. Bauer Decl., ¶ 18.) As is the crew's custom and practice, alleges defendants, Ms. Kelly announced aloud, "I'm opening the hatch," then opened the hatch while plaintiff was standing a short distance away. (Id. at ¶ 19.) Plaintiff walked into the open hatch and injured her right ankle. (Id. at ¶ 20.)
The boat returned to Sitka, Alaska, approximately 5 hours away, in order to seek medical treatment for plaintiff's ankle. (Id. at ¶ 21.) Once at the dock, while the paramedics and EMTs from Sitka were seeing to plaintiff, defendants allege plaintiff stated to the medical personnel that the incident was "nobody's fault" and it was clearly an accident. (Defs.' Counsel's Decl., filed Oct. 25, 2005, ¶ 3.)
Plaintiff was then transported to the Sitka Medical Center by ambulance where she was seen by Dr. John Totten, the on-call surgeon. (L. Bauer Decl., ¶ 24.) Dr. Totten informed plaintiff that he was capable of performing the surgery on plaintiff's foot. (Id. at ¶ 25.) He also discussed with plaintiff whether he believed it was advisable and necessary to have plaintiff transported by Medivac to a hospital in California. (Id.) At plaintiff Edward Young's request, a Medivac plane was summoned, and Janet Young was air-lifted to a medical facility in Sacramento. (Id. at ¶ 27.)
The Bauers have lived full-time in Alaska since 1976. Besides the Bauers, Coastal's only other crew member at the time of the incident was Ms. Kelly, a twenty-eight year old deckhand. (Id. at ¶ 5.) Ms. Kelly lives in Alaska from June through September and in Eatonville, Washington from October through May where she serves as a care provider for disabled individuals. (Id. at ¶ 6.)
Coastal is a business organized under the laws of the State of Alaska with its principal executive office, located for the last eleven years, in Wrangell, Alaska. (Id. at ¶¶ 7-8.) Coastal has never had any operations, office or telephone number in California. (Id. at ¶ 9.) The boat at issue, the MV Huntress, is a 60-foot vessel owned by the Bauers and regularly used during the months of May through September to charter fishing trips in the waters off of the coast of Alaska. (Id. at ¶ 10.) Since the Bauers purchase of the MV Huntress, it has only been registered and documented in the State of Alaska. (Id. at ¶ 11.) The money earned from fishing charters during the months of May to September is the Bauers' only source of income. (Id. at ¶ 13.)
STANDARD
Under 28 U.S.C. § 1404(a), a district court may "for the convenience of parties and witnesses, in the interest of justice . . . transfer any civil action to any other district where it might have been brought." 28 U.S.C. § 1404(a). A defendant moving to transfer venue under section 1404(a) must therefore satisfy both of the following requirements: (1) the transferee district is one in which the action might have been brought originally; and (2) transfer will enhance the convenience of the parties and witnesses, and is in the interests of justice. See Van Dusen v. Barrack, 376 U.S. 612, 616 (1964).
In considering the second requirement, the court evaluates the following:
(1) the location where the relevant agreements were negotiated and executed, (2) the state that is most familiar with the governing law, (3) the plaintiff's choice of forum, (4) the respective parties' contacts with the forum, (5) the contacts relating to the plaintiff's cause of action in the chosen forum, (6) the differences in costs of litigation in the two forums, (7) the availability of complusory process to compel attendance of unwilling non-party witnesses, and (8) ease of access to sources of proof.Jones v. GNC Franchising, Inc., 211 F.3d 495, 498-99 (9th Cir. 2000).
ANALYSIS
Plaintiffs do not dispute that this action properly could have been brought in the United States District Court of Alaska since defendants reside there. 28 U.S.C. § 1391(a). Thus, the only question before the court is whether transfer to Alaska will serve "the convenience of [the] parties and witnesses" and will promote the interest[s] of justice." 28 U.S.C. § 1404(a).Considering the above facts in light of the factors described in Jones, the court finds defendants have failed to demonstrate that transfer is warranted:
First, the location of the relevant agreement favors litigation in this court. Plaintiffs entered a contact with the Bauers for the June 2004 fishing trip in Sacramento, California. The contract was made as a result of the Bauers' solicitation of business in this district, through their personal appearance at the Sportsman's Expo in Sacramento. Moreover, the Bauers do not dispute plaintiffs' testimony that they met the Bauers on numerous occasions between 1998 and 2004 in Northern California, when the Bauers were soliciting business through various Sportsman's Expos. Indeed, despite plaintiffs' testimony, the Bauers have not provided the court with any specific information regarding their solicitation of business in California, including locations and frequency.
Second, this court is the most familiar with the governing law — California negligence law. (Compl. at ¶ 12 [regrading negligence by a common carrier as defined by Cal. Civ. Code § 2186 et seq.].) Moreover, were the case to be transferred to Alaska, the Alaska court would be bound to apply California law. Van Dusen, 376 U.S. at 637-39 (when transfer is granted under § 1404(a), the transferee court in a diversity action must apply the law of the state in which the action was originally filed).
Third, where a plaintiff's choice of forum is his place of residence, as in this case, a defendant must make a "strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum." Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 843 (9th Cir. 1986). Here, defendants have not done so. While they maintain that participating in litigation in this district would be detrimental to their "small" business, plaintiffs' unrebutted testimony of the Bauers' personal presence in this district, and within Northern California generally, to solicit business belies defendants' contentions. Because it appears that defendants regularly conduct business in this district to recruit clients, they cannot persuasively argue that it would be a detriment to their business to be a party to litigation in this district. Indeed, a Northern California venue would seem expected given the extent and frequency of defendants' contacts with Northern California.
Additionally, defendants have not shown that the convenience of the relevant non-party witnesses favors Alaska. Defendants concede that plaintiffs' son and business associate (both present on the trip) and plaintiff's surgeon, treating physician and other healthcare providers reside in California. Yet, defendants argue that, more importantly, Ms. Kelly, the central person involved in the incident, the two Sitka EMTs, whom defendants allege overheard plaintiff state the incident was "nobody's fault," Dr. Trotten, and the "Medivac pilot" live in Alaska. Defendants' argument, however, is unavailing because it misstates the facts and/or emphasizes witnesses who are not central to this case. Regarding Ms. Kelly, by defendants' own admission, she lives only part-time in Alaska; outside of the fishing season (May to September), she lives in the State of Washington. Thus, her residence is of limited importance in resolving the dispute over convenience between California and Alaska. As to plaintiff Janet Young's alleged statement to the Sitka EMTs, defendants have not provided admissible testimony on this issue, and therefore the court does not consider it in ruling on the motion.Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1119 (C.D. Cal. 1998) ("the moving party must demonstrate, through affidavits or declarations containing admissible evidence, who the key witnesses will be and what their testimony will generally include") (emphasis added.) Finally, regarding Dr. Totten and the unnamed "Medivac pilot," their involvement in this case is minimal, and as such, the convenience of these witnesses does not weigh heavily in the analysis.
The court considers herein plaintiffs' objections only as they pertain to facts relevant to the court's decision.
In sum, on balance, the majority of the critical non-party witnesses reside in California, rendering this factor in favor of plaintiffs. Taken in combination with plaintiffs' choice of this forum and defendants' contacts with the forum, particularly in this district, the court finds that this factor weighs considerably in favor of retention of this case in this district.
Fourth, regarding the relevant costs, because of the location of the majority of witnesses, and considering the Bauers' frequent business travels to California, it would likely be more costly to litigate this case in Alaska. The court is mindful of the fact that the subject boat is located in Alaska and that part of the discovery in this matter may require travel to Alaska to view and inspect the boat. However, that fact alone, when considered on balance with the other issues discussed herein, does not merit transfer of venue.
Finally, for similar reasons, defendants' showing with regard to access to sources of proof is also unavailing. Initially, the court notes that defendants concede that the location of the documentary evidence in this case does not significantly favor either forum; some of the relevant documentary evidence is in Alaska, including documents regarding the MV Huntress itself and Coastal's business, while other documentary evidence is in California, including plaintiff's medical records. Thus, there is no basis to assume that it would be any more convenient or less burdensome to transport the relevant documents to Alaska rather than to California.
Setting aside the documentary evidence, defendants solely base their argument on the need for access to the MV Huntress itself, both during the course of discovery and at trial (for review by the jury). As stated above, while inspection of the boat may be necessary by the parties, their attorneys, and experts during discovery, this fact alone does not warrant a transfer of venue. As to any inspection by the jury at trial, defendants have not demonstrated why diagrams, pictures, models, reports, and records could not provide ample evidence for the trier of fact; moreover, absent extraordinary circumstances, such a request for an actual inspection of the boat by the jury would likely be denied by a court, be it in Alaska or California.
Therefore, for all of the above reasons, the court DENIES defendants' motion to transfer venue because defendants have not met their burden to show that the convenience of witnesses and interests of justice warrant transfer of this case.
IT IS SO ORDERED.