Opinion
A05-191 CV (JWS), Re: Motion at Docket 10.
October 17, 2005
ORDER FROM CHAMBERS
I. MOTION PRESENTED
At docket 10, defendants Corrections Corporation of America Inc. ("CCA") and CCA employee D. Goss move to transfer this matter from the District of Alaska to the District of Arizona pursuant to 28 U.S.C. §§ 1406(a) and 1404(a). At docket 11, plaintiff Petro N. Basargin opposes the motion. Defendants' reply is filed at docket 13. Oral argument was not requested, and it would not assist the court.
II. BACKGROUND
Plaintiff Petro Basargin is a resident of the State of Alaska and is an inmate in the custody of the Alaska Department of Corrections. Basargin is currently incarcerated at the Florence Correctional Center ("FCC") in Florence, Arizona, a facility which is overseen by defendant CCA. Defendant CCA is a contractor to the State of Alaska. Defendant Goss is a CCA employee who resides in Arizona and works at the FCC.
On March 6, 2005, while incarcerated at FCC, Basargin filed a complaint in the District Court for the State of Alaska at Anchorage. Plaintiff's complaint alleges that defendants intentionally used "coercive tactics and retaliation, harassment and mental duress against the plaintiff to hinder and/or dissuade plaintiff's right to petition for grievance to institution for redress, in violation of the First and Fourteenth Amendments." The alleged violations of plaintiff's constitutional rights occurred at FCC. Defendants timely removed plaintiff's complaint to the United States District Court for the District of Alaska pursuant to 28 U.S.C. § 1441(b). This court has federal question jurisdiction pursuant to 28 U.S.C. § 1331.
Complaint at 1, attached to doc. 2.
Opposition to Defendants' Motion to Transfer at 1, doc. 11.
Doc. 1.
On August 18, 2005, defendants filed their answer to plaintiff's complaint. On August 26, 2005, defendants filed the underlying motion to transfer.
Doc. 7.
III. DISCUSSION
Defendants move the court to transfer this matter to the District of Arizona pursuant to 28 U.S.C. §§ 1406(a) and 1404(a). Defendants argue that transfer of this action to the District of Arizona is appropriate because "a substantial part of the events or omissions giving rise to the claim occurred" in Arizona, and "the District of Arizona is more convenient for the parties and witnesses in this matter."
Motion at 3, doc. 10.
The court first considers defendants' motion to transfer venue under 28 U.S.C. § 1406(a). Section 1406(a) reads as follows: "The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought." Venue in this matter is governed by 28 U.S.C. § 1391(b). Pursuant to 28 U.S.C. § 1391(b), a civil action based on federal question jurisdiction may 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 (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought." Given that none of the named defendants reside in Alaska and most of the events giving rise to the claim occurred in Arizona, venue is arguably improper in Alaska. However, "section 1391's venue requirements are `not a qualification upon the power of the court to adjudicate, but a limitation designed for convenience of litigants, and, as such, may be waived by them."
Costlow v. Weeks, 790 F.2d 1486, 1487-1488 (9th Cir. 1986) (quoting Olberding v. Illinois Central Railroad, Co., 346 U.S. 338, 340 (1953)).
Pursuant to Federal Rule of Civil Procedure 12(h)(1)(b), a defendant must object to improper venue by a Rule 12(b) motion prior to a responsive pleading or in the answer to the complaint or the objection is waived. Here, defendants did not timely file a Rule 12(b) motion raising the defense of improper venue, nor did defendants object to venue in their answer. Because defendants waived their objection to improper venue under Rule 12(h), the court denies defendants' motion to transfer for improper venue pursuant to 28 U.S.C. § 1406(a).
Id. at 1488.
Alternatively, defendants move to transfer venue under 28 U.S.C. § 1404(a). Section 1404(a) states, "For the convenience of the 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." Under Section 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) (quoting Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (citation omitted)).
Here, the gravaman of the complaint is in Arizona. Plaintiff acknowledges that the constitutional violations alleged in the complaint occurred in Arizona. It is also undisputed that plaintiff was incarcerated at FCC in Arizona at the time of his alleged injuries. Plaintiff remains incarcerated at FCC and is not scheduled to be released until 2007. Defendant CCA employee Goss works and resides in Arizona. While the principal place of business of defendant CCA is Tennessee, the CCA employees defendants intend to call are located in Arizona. Defendants state that their witnesses include CCA administrators, who will testify about the policies and procedures of FCC regarding disciplinary charges, requests for services and grievances, and FCC staff who have knowledge of plaintiff's claims.
Motion to Transfer at 3, doc. 10.
In his opposition to transferring venue, plaintiff alleges that some of his potential witnesses who had roles in the "administrative exhaustion processes required of an Alaska prisoner before he or she can bring suit" are located in Alaska. Plaintiff also points out that defendants' counsel is located in Alaska. While neither Alaska nor Arizona may be convenient for all parties, witnesses, and counsel, it appears that the District of Arizona is the most convenient venue for the parties and witnesses in this matter.
Plaintiff's Memorandum at 3, doc. 11.
Plaintiff also argues that a court in Alaska is better equipped to handle this matter because Alaska law applies. Plaintiff's argument is unavailing because plaintiff's complaint alleges violations of the United States Constitution and, thus, federal law applies. Moreover, "[a] transfer under § 1404(a) results in a change of courtrooms, not a change of law."
Ravelo Monegro v. Rosa, 211 F.3d 509, 513 (9th Cir. 2000).
Inasmuch as the alleged constitutional injuries occurred in Arizona, plaintiff and defendant Goss are located in Arizona, and most of the witnesses are located in Arizona, the court finds that the convenience of the parties and witnesses and the interests of justice would be advanced by transferring this matter to the District of Arizona.