Opinion
No. CV-00-1183-HU
March 8, 2001
John T. Carr Jerry R. Woods WOODS AND CARR, LLP Lake Oswego, Oregon Attorneys for Plaintiff.
Keith S. Dubanevich Alec J. Shebiel GARVEY, SCHUBERT BARER Portland, Oregon Attorneys for Defendant.
OPINION ORDER
Plaintiff L.L. Smith Trucking Co., a Newport, Oregon company, alleges that, contrary to an agreement with defendant Hughes Bros. Aircrafters, Inc., defendant failed to pay freight charges of $18,262.40 associated with plaintiff's delivery of equipment to defendant. As a result, plaintiff brings this action to collect those charges under 49 U.S.C. § 13706. Additionally, plaintiff alleges a fraud claim based on defendant's initial payment to plaintiff's representative for the delivery, followed by defendant's subsequent stopping payment on the check. Plaintiff contends that with that initial payment, defendant fraudulently induced plaintiff to unload the first two truckloads of goods and thus release plaintiff's rightful possessory lien on the equipment.
Defendant moves to dismiss for lack of personal jurisdiction. Alternatively, defendant moves to transfer the case to the Northern District of Texas. I deny the motions.
BACKGROUND
In April 2000, defendant, based in California, agreed to purchase machinery and equipment, located in Texas, from Century Machine, Inc. James Hughes Declr. at ¶ 2. Defendant then contracted with a Texas company, Able Machinery Movers, Inc., to do the rigging, that is to dismantle and load the equipment onto trucks for transfer to defendant's facility in California. Id.
Hughes, defendant's president, states that Century Machine contacted a few trucking companies to obtain a bid for trucking the equipment from Texas to California. Id. at ¶ 4. Plaintiff was one of the trucking companies contacted. Id. Century Machine obtained the bid from plaintiff in Oregon and submitted it to Hughes. Id. He admits that he then negotiated the agreement directly with plaintiff. Supp'l Hughes Declr. at ¶ 4.
Although not explicitly stated by Hughes, it seems clear that Century Machine was acting on defendant's behalf when soliciting the bids.
Plaintiff's operations manager, James Robertson, states that on or about April 18, 2000, Hughes contacted him by telephone at his office in Newport, Oregon. Robertson Affid. at ¶ 3. During the conversation, Hughes requested freight rate quotes for four loads of heavy machinery from Texas to California. Id. In response to defendant's request, plaintiff's office faxed the freight rate quotes to Hughes's office in California. Id. According to Robertson, during the April 18, 2000 teleconference with Hughes, Hughes accepted the freight rate quotes and requested that Robertson coordinate the loading of the heavy machinery in Texas with Able Machinery, which was acting on behalf of defendant. Id. at ¶ 4.
Hughes states that the oral agreement was for plaintiff to provide four separate trucks to travel to the pick up site in Texas on April 28, 2000. Hughes Declr. at ¶ 5. Specifically, according to Hughes, the agreement was that two trucks would arrive at 7 a.m., the third at 9 a.m., and the last one at 2:30 p.m. Id.
Hughes further states that Able Machinery informed defendant, and he believes also informed plaintiff, that the trucks had to be timely or additional charges for equipment and labor would accrue. Id. An April 19, 2000 letter from Able Machinery to Hughes states that "[c]oordination of the carrier trucks will be critical to this quoted price and any delays, changes or additional unscheduled work will result in added charges based on prevailing time-and-material rates." Exh. A to Hughes Declr.
Robertson states that acting pursuant to Hughes's direction, he contacted Able Machinery to coordinate the loading of the equipment. Robertson Affid. at ¶ 5. He states that over the course of the next eight days, he had numerous telephone conversations with Able Machinery's representative Mike Alinell. Id. Robertson states that Alinell changed the pick up and loading dates numerous times, with April 24, 2000 the first date, then April 28, 2000, and then May 1, 2000. Id.
During these conversations, Robertson told Alinell that the floating pick-up and loading date was causing plaintiff to reschedule the trucks to be used for the moves. Id. Finally, Robertson says, Alinell informed him by telephone that a pick-up truck and load date of Monday, May 1, 2000, would work. Id. During this call, Robertson made clear that due to the previously unconfirmed pick-up and load date, any date earlier than May 1, 2000, would not work. Id. He informed Alinell that one of the trucks to be used would be in Oklahoma City, 202 miles away, and would not be available until Monday May 1, 2000. Id. A follow-up call from Alinell confirmed the exact pick-up and load times as May 1, 2000. Id.
Robertson states that on April 26, 2000, after scheduling and confirming the Monday, May 1, 2000 pick-up and load date, he received phone calls from Alinell and Hughes. Id. at ¶ 6. During the calls, both Hughes and Alinell demanded that the pick-up and load date be changed again, this time to Friday, April 28, 2000. Id. Robertson reiterated that he had scheduled the trucks based on a Monday, May 1, 2000 pick-up and load date, and that some of his equipment was unloading in Oklahoma City on April 28, 2000, and would not be available until the following Monday, May 1, 2000. Id. He stated that plaintiff would do everything possible to comply with the last minute change to the pick-up and load time, but could not make a guarantee. Id. Robertson states that during the call with Hughes, Hughes acknowledged that the last minute change placed plaintiff in a difficult situation and Hughes asked plaintiff to do the best it could under the circumstances. Id.
Hughes states that on Friday, April 28, 2000, Able Machinery had its crew on the premises with the equipment ready for loading. Hughes Declr. at ¶ 7. Plaintiff's trucks were not there. Id. Able Machinery then contacted plaintiff by phone to inquire where the trucks were. Id. When the trucks did not arrive, Able Machinery then contacted Hughes directly. Id. Hughes states that he called plaintiff from his offices in California and spoke to Robertson who assured Hughes and the movers in Texas that the trucks would be there momentarily and to wait. Id. Hughes states that the trucks did not arrive as promised. Id. Two trucks arrived in the evening of April 28, 2000, and one on Monday May 1, 2000. Id. As a result, the movers had to move the remaining equipment to storage which in turn resulted in extra moving and storage costs for defendant. Id. When the fourth truck did not arrive, Hughes contacted another trucking company to pick up the remaining load to save additional storage fees. Id.
Robertson states that after "considerable juggling" of truck schedules, two trucks arrived on Friday, April 28, 2000, and were loaded with equipment. Robertson Affid. at ¶ 7. A third truck was in Oklahoma City and arrived on Monday, May 1, 2000. Id. The heavy equipment that was to be loaded on the third and fourth trucks was stored by Able Machinery over the weekend of April 29-30, 2000. Id.
The two trucks which loaded on April 28, 2000, and the one loaded on May 1, 2000, transported and delivered the equipment on time and without damage, to defendant in California on Wednesday, May 3, 2000. Id. at ¶ 8. After the three trucks had unloaded in California, the driver of the fourth truck called Robertson from Texas and said that Able Machinery had refused to load that truck under instructions from defendant. Id. Robertson called Able Machinery which confirmed that defendant had instructed Able Machinery to not load the fourth truck. Id.
STANDARDS
Plaintiff has the burden of showing personal jurisdiction. In re Pintlar Corp., 133 F.3d 1141, 1144 (9th Cir. 1998). When the court determines personal jurisdiction based on affidavits and discovery materials, it may dismiss only if the plaintiff has not made a prima facie showing. American Tel. Tel. Co. v. Compagnie Bruxelles Lambert, 94 F.3d 586, 588 (9th Cir. 1996).
If the pleadings and other submitted materials raise issues of credibility or disputed questions of fact with regard to jurisdiction, the district court has the discretion to take evidence at a preliminary hearing in order to resolve the contested issues. Data Disc, Inc. v. Systems Tech. Assoc., Inc., 557 F.2d 1280, 1285 (9th Cir. 1977). In this situation, where the plaintiff is put to his full proof, the plaintiff must establish the jurisdictional facts by a preponderance of the evidence, just as he would have to do at trial. Id. If no evidentiary hearing is held, "conflicts between the facts contained in the parties' affidavits must be resolved in [the plaintiff's] favor for purposes of deciding whether a prima facie case for personal jurisdiction exists." American Tel. Tel. Co., 94 F.3d at 588 (internal quotation omitted).
"To exercise personal jurisdiction over a non-resident defendant in a federal question case, the district court ha[s] to determine that a rule or statute potentially confers jurisdiction over the defendant and then conclude that asserting jurisdiction does not offend the principles of Fifth Amendment due process." Go-Video, Inc. v. Akai Elec. Co., 885 F.2d 1406, 1413 (9th Cir. 1989).
DISCUSSION
I. Motion to Dismiss
Under Federal Rule of Civil Procedure 4(k), service of a summons is effective to establish jurisdiction over a defendant "who could be subjected to the jurisdiction of a court of general jurisdiction in the state in which the district court is located," or, "when authorized by a statute of the United States." Fed.R.Civ.P. 4(k)(1)(A), (D). Under Rule 4(k)(1)(D), a nationwide "minimum contacts" analysis is used when Congress has authorized nationwide service of process. See American Tel. Tel. Co., 94 F.3d at 589. Here, although plaintiff brings this as a federal question case arising under 49 U.S.C. § 13706, plaintiff does not argue that the statute authorizes nationwide service of process. Thus, Rule 4(k)(1)(A), not Rule 4(k)(1)(D), applies.
Rule 4(k)(1)(A) authorizes jurisdiction over a non-resident defendant who is subject to jurisdiction in the state where the district court is located. Id. at 590. Oregon Rule of Civil Procedure (ORCP) 4 governs personal jurisdiction issues in Oregon. Because Oregon's long-arm statute confers jurisdiction to the extent permitted by due process, Gray Co. v. Firstenberg Machinery Co., 913 F.2d 758, 760 (9th Cir. 1990) (citing ORCP 4L; Oregon ex rel. Hydraulic Servocontrols Corp. v. Dale, 294 Or. 381, 657 P.2d 211 (1982)), the court proceeds directly to the federal due process analysis. See Omeluck v. Langsten Slip Batbyggeri A/S, 52 F.3d 267, 269 (9th Cir. 1995) (when state long arm statute reaches as far as the Due Process Clause, court need only analyze whether the exercise of jurisdiction complies with due process); see also Millennium Enterprises, Inc. v. Millennium Music, LP, 33 F. Supp.2d 907, 909 (D.Or. 1999) (because Oregon's catch-all jurisdictional rule confers personal jurisdiction coextensive with due process, the analysis collapses into a single framework and the court proceeds under federal due process standards).
"Personal jurisdiction may be founded on either general jurisdiction or specific jurisdiction." Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998). Ordinarily, the court first engages in the general jurisdiction analysis. If the contacts are insufficient for a court to invoke general jurisdiction, the court then applies the relevant test to determine whether specific jurisdiction exists. In re Tuli, 172 F.3d 707, 713 n. 5 (9th Cir. 1999). In this case, plaintiff conceded at oral argument that there is no general jurisdiction over defendant. Thus, I proceed directly to the specific jurisdiction analysis.
The Ninth Circuit uses a three-part test to determine whether specific personal jurisdiction comports with due process:
(1) Did the nonresident defendant do some act or consummate some transaction with the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities within the forum, thereby invoking the benefits and protections of its laws;
(2) Does the claim arise out of or result from the defendant's forum-related activities; and
(3) Is the exercise of jurisdiction reasonable. Caruth v. International Psychoanalytical Ass'n, 59 F.3d 126, 127 (9th Cir. 1995); see also Decker Coal Co. v. Commonwealth Edison Co., 805 F.2d 834, 839 (9th Cir. 1986). Each of the three elements must be satisfied before the exercise of jurisdiction is proper. Pacific Atl. Trading Co. v. M/V Main Express, 758 F.2d 1325, 1329 (9th Cir. 1985); see also Naumes, Inc. v. Alimentos Del Caribe, 77 F. Supp.2d 1158, 1161 (D.Or. 1999) (same).
A. Purposeful Availment
Purposeful availment requires that a defendant engage in some type of affirmative conduct allowing or promoting the transaction of business with the forum state. Gray Co., 913 F.2d at 760. "The purposeful availment requirement ensures that a nonresident defendant will not be haled into court based upon 'random, fortuitous or attenuated' contacts with the forum state. Panavision, 141 F.3d at 1320 (quoting Burger King Corp. v. Rudzewicz, 471 U.S. 462, 475 (1985)). "This requirement is satisfied if the defendant 'has taken deliberate action' toward the forum state." Id. (internal quotation omitted). "It is not required that a defendant be physically present or have physical contacts with the forum, so long as his efforts are 'purposefully directed' toward forum residents." Id. (internal quotation omitted).
Additionally, in contract action cases, a "contract alone does not automatically establish the requisite minimum contacts necessary for the exercise of personal jurisdiction." Gray Co., 913 F.2d at 760. Rather, "'prior negotiations and contemplated future consequences, along with the terms of the contract and the parties' actual course of dealing' are the factors to be considered." Id. (quoting Burger King Corp., 471 U.S. at 479). "[F]oreseeability of causing injury in another state is not a sufficient basis on which to exercise jurisdiction." Id.
Although this is not a breach of contract case, the claim for unpaid freight charges under 49 U.S.C. § 13706 is analogous to such a claim.
Defendant argues that "plaintiff does not allege anything but a one-time, limited transaction involving the transport of machinery from Texas to California." Deft's Memo. at p. 7. Additionally, defendant notes, defendant did not seek out plaintiff, but Century Machine did. While true, Century Machine appears to have been acting as an agent of defendant in this regard. Defendant contends that its only contact with the forum other than the one-time agreement, consists of limited phone calls, with the majority of them taking place after the trucks failed to appear on April 28, 2000. Defendant argues that plaintiff "should not be allowed to affirmatively argue that defendant's calls to find out why plaintiff failed to provide trucks are a basis for personal jurisdiction." Id.
In response, plaintiff argues that defendant's act of seeking out Oregon-based plaintiff, and negotiating and consummating an agreement with Oregon-based plaintiff for the transportation of four shipments of heavy machinery, and numerous additional telephonic contacts by defendant's agent, Able Machinery, constitutes a purposeful availment of the benefits and privileges of Oregon law.
The facts regarding who first contacted plaintiff are unclear. While defendant suggests Century Machine did, plaintiff indicates its first contact was from defendant. There is, however, no disagreement as to the critical fact — plaintiff did not reach out to defendant. It was either defendant, or Century Machine acting on defendant's behalf, that solicited business from plaintiff in Oregon.
The remaining facts essential to a determination of the purposeful availment issue are undisputed. Defendant admits that it negotiated the oral contract with plaintiff in Oregon pursuant to contact made by defendant or its agent. Defendant does not dispute that plaintiff received several phone calls from defendant's agent Able Machinery, to establish and change pick-up dates. There is no dispute that when the trucks did not appear the morning of April 28, 2000, defendant, or Able Machinery, or both, made several phone calls to Oregon to ascertain the status of the trucks and their anticipated arrival.
Other relevant facts include that defendant had no prior contact with Oregon before negotiating this agreement with plaintiff, defendant has no officers or agents in Oregon, the actual trucking service was not performed in Oregon, but between Texas and California, and the parties apparently did not anticipate a relationship beyond the performance of the services negotiated in this agreement.
Defendant relies heavily on Gray Co. There, the plaintiff, a purchaser of food processing equipment, sued the broker and seller of a piece of equipment, seeking rescission of contract. The district court concluded that it had personal jurisdiction over the defendants. The Ninth Circuit reversed the district court, agreeing with the defendants that there was no jurisdiction. 913 F.2d at 761.
As in the instant case, the plaintiff in Gray Co. relied on a specific jurisdiction argument in opposing the motion to dismiss. Many of the relevant facts in Gray Co. are identical or similar to those found here: (1) the defendants had no contact with Oregon before the sale of equipment; (2) neither of the defendants had any officers or agents here; (3) the course of negotiations consisted of a few phone calls; (4) there was no formal written contract, only a routine exchange of an invoice and a purchase order; and (5) there was no evidence that the sale contemplated a continuing relationship between the plaintiff and the defendants. Id. Based on these facts, the Ninth Circuit concluded that "[d]efendants' contacts with Oregon fall in the category of 'attenuated contacts' insufficient in themselves to establish defendants have purposefully availed themselves of the benefits and protections of the forum's law." Id.
Because so many of the facts present here parallel the facts found in Gray Co., defendant argues that I am compelled to reach the same result and conclude that the contacts between defendant and Oregon are "attenuated" ones which do not support a finding of purposeful availment. Defendant's analysis, however, overlooks one critical distinction between Gray Co. and the instant case, and it is one which, when combined with the communications from defendant or defendant's agent to the forum, sufficiently establishes purposeful availment.
In Gray Co., the Oregon plaintiff reached out to defendants and solicited their business. Id. at 760, 761. Here, in contrast, defendant reached into the forum to solicit plaintiff's business. Ninth Circuit cases establish that "a non-resident defendant's act of soliciting business in the forum state will generally be considered purposeful availment if that solicitation results in contract negotiations or the transaction of business." Shute v. Carnival Cruise Lines, 897 F.2d 377, 381 (9th Cir. 1990), rev'd on other grounds, 499 U.S. 585 (1991); see also Albany Ins. Co. v. Rose-Tillmann, Inc., 883 F. Supp. 1459, 1464 (D.Or. 1995) (purposeful availment turns on whether the defendant's contacts are attributable to the defendant's own actions and not to the unilateral actions of some other party) (citing Hirsch v. Blue Cross, Blue Shield of Kansas City, 800 F.2d 1474, 1478 (9th Cir. 1986)). I recognize that defendant's solicitation in this case was not extensive and did not result in protracted contract negotiations or an agreement under which trucking services in Oregon were to be performed. Nonetheless, defendant did initiate contact with plaintiff in Oregon, and defendant's solicitation resulted in the transaction of business with an Oregon-based company.
While I find this an exceptionally close question, I conclude that defendant's solicitation of business from plaintiff in Oregon, combined with the several phone calls, even before the trucks failed to appear on the morning of April 28, 2000, between defendant's agent and plaintiff, is sufficient to establish purposeful availment.
B. Arising Out Of/Resulting From
Under the second prong of the test, the court determines whether plaintiff would not have been injured "but for" defendant's conduct directed toward plaintiff in Oregon. Id. Here, but for defendant engaging plaintiff's trucking services, plaintiff would not have been injured. Plaintiff's injury arises out of or results from defendant's forum-related activities.
C. Reasonableness
Under the third prong of the test, "where a defendant who purposefully has directed his activities at forum residents seeks to defeat jurisdiction, he must present a compelling case that the presence of some other considerations would render jurisdiction unreasonable." Panavision, 141 F.3d at 1322 (internal quotation omitted). In addressing the question of reasonableness, the court considers seven factors: (1) the extent of a defendant's purposeful interjection; (2) the burden on the defendant in defending in the forum; (3) the extent of conflict with the sovereignty of the defendant's state; (4) the forum state's interest in adjudicating the dispute; (5) the most efficient judicial resolution of the controversy; (6) the importance of the forum to the plaintiff's interest in convenient and effective relief; and (7) the existence of an alternative forum. Id. at 1323. No one factor is dispositive; a court must balance all seven. Id.
1. Extent of Purposeful Interjection
Although either defendant or Century Machine, acting on defendant's behalf, initiated contact with Oregon and as a result, purposefully interjected defendant into the forum, the extent of the interjection is not great given that the contacts were largely limited to several phone calls, the trucking services were not performed in Oregon, and there is no evidence that either party anticipated an ongoing relationship.
2. Burden on Defendant of Litigating in the Forum
Defendant argues that the burden is high because many of the key fact witnesses are Able Machinery employees who are located in Texas and cannot be compelled to testify in Oregon. Defendant notes that plaintiff itself states that it had multiple conversations with Able Machinery representatives regarding the pick up date and time, including plaintiff telling Able Machinery that the floating date was causing problems. Thus, defendant argues, the employees at Able Machinery are critical fact witnesses as they directly communicated with plaintiff in relation to the events that resulted in this dispute.
Plaintiff suggests that the key fact witnesses are located in Oregon with plaintiff based here, and in California where defendant is located. Plaintiff states that the Texas based fact witnesses cannot testify to the contract for the shipment of freight or whether defendant breached the contract or defrauded plaintiff.
On the record before me at this point, it appears that fact witnesses are located in Oregon (Robertson), California (Hughes) and Texas (Able Machinery employees). I agree with defendant that there is some burden to it created by litigating in Oregon. However, given the ability to conduct telephone and videotaped depositions, and to procure trial testimony by videoconference, I conclude that the burden is minimal, and not significantly different than the burden of litigating in Texas.
3. Extent of Conflict with Sovereignty of Defendant's State
Both parties agree that this factor is neutral.
4. Forum State's Interest in Adjudicating Dispute
Defendant argues that Oregon has little interest in resolving a dispute regarding services rendered in Texas to a California business. Plaintiff contends that Oregon has a great interest in resolving disputes regarding agreements negotiated and entered into in Oregon with Oregon based companies. The evidence does not support plaintiff's assertion that the agreement was negotiated and entered into in Oregon. As noted above, the agreement was negotiated by plaintiff in Oregon and defendant in California. However, because plaintiff is an Oregon business, Oregon has some interest in adjudicating the dispute.
5. Most Efficient Judicial Resolution
This factor focuses on the location of the evidence and witnesses. Caruth, 59 F.3d at 129. It is no longer weighed heavily given the modern advances in communication and transportation. Id. Defendant contends that Texas is the most efficient forum for resolving the dispute because both parties could equally compel important fact witnesses to testify. Plaintiff contends that this factor favors Oregon, as it would be more efficient than Texas given that all of plaintiff's fact witnesses reside in Oregon. Plaintiff contends that Texas would not be as efficient because it would cause plaintiff and defendant to travel to Texas to resolve a controversy arising out of an Oregon — California contract.
This factor favors no particular forum over another. As noted earlier, there are witnesses in three states: California, Oregon, and Texas. Because the Texas witnesses can likely testify by videoconference from Texas, the inability to compel them to testify in Oregon carries minimal weight.
6. Importance of the Forum to Plaintiff's Interest in Convenient and Effective Relief
Defendant argues that both plaintiff and defendant can receive "convenient and effective" relief in Texas as both parties will need to otherwise depose witnesses in Texas, and if plaintiff were to obtain judgment in Oregon, enforcement would go through states other than Oregon anyway. Plaintiff argues that Oregon as a forum would provide the most convenient and effective relief and that defendant's allusions regarding enforcement of a judgment are immaterial to this factor. Clearly, it is a burden to plaintiff to litigate elsewhere given that plaintiff is located here and its principal witness is here. However, the burden of litigating in Texas, while present, is not overwhelming. As a result, this factor weighs slightly in favor of plaintiff.
7. Existence of Alternate Forum
Alternate forums exist in both Texas and California. Thus, this factor is neutral.
Examining all of the reasonableness factors, I conclude that the assertion of jurisdiction over defendant would not be unreasonable. Although defendant's interjection into the forum is not great, it did seek out plaintiff's services. While there is some burden to defendant of litigating here, the burden is not great given telephone and videotape depositions and videoconference testimony. There is some interest by Oregon in adjudicating the dispute because plaintiff is an Oregon company. The most efficient judicial resolution is a neutral factor given that witnesses reside in California, Oregon, and Texas. It is more convenient for plaintiff to litigate in Oregon. There are alternate forums. On balance, defendant fails to present a compelling case that jurisdiction in Oregon is unreasonable.
Because defendant purposefully availed itself of the benefits and protections of the law of the forum, because plaintiff would not have been injured "but for" defendant's conduct directed toward plaintiff in Oregon, and because jurisdiction over defendant in Oregon is not unreasonable, I conclude that the assertion of specific jurisdiction over defendant comports with due process.
II. Motion to Transfer
Alternatively, defendant moves to transfer the case to Texas.
28 U.S.C. § 1404 governs motions to 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).
In determining proper venue, the court considers both public and private factors. Creative Tech., Ltd., v. Aztech Sys. Pte., Ltd., 61 F.3d 696, 699 (9th Cir. 1995). Private factors
include ease of access to sources of proof; compulsory process to obtain the attendance of hostile witnesses, and the cost of transporting friendly witnesses; the possibility of viewing subject premises; and other factors contributing to an expeditious and inexpensive trial.
[Public] factors include administrative difficulties flowing from court congestion; imposition of jury duty on the people of a community unrelated to the litigation; the local interest in resolving the controversy at home; the interest in having a diversity case tried in a forum familiar with the law that governs the action; and the avoidance of unnecessary conflicts of law problems.
Gemini Capital Group, Inc. v. Yap Fishing Corp., 150 F.3d 1088, 1093, 1094 (9th Cir. 1998).
The decision whether to transfer venue lies in the discretion of the district court. 28 U.S.C. § 1404; Creative Tech., 61 F.3d at 699 (forum non conveniens determination committed to sound discretion of the trial court). Generally, "[t]he defendant must make a strong showing of inconvenience to warrant upsetting the plaintiff's choice of forum." Decker Coal, 805 F.2d at 843.
Regarding the relevant private factors, defendant argues that the case should be transferred to Texas because all of its key witnesses to defendant's knowledge reside in Texas and it may not be possible to compel the Texas witnesses to testify in Oregon. However, there is no specific evidence in the record of any witness in Texas who will not make him- or herself available. Defendant concedes that the factor involving viewing the premises is not applicable in this case. Defendant contends that the facts, location, witnesses, and virtually all of the occurrences and omissions involved in this action relate to Texas or places other than Oregon.
As to the public factors, defendant concedes that administrative difficulties flowing from court congestion likely have no bearing on transfer and that there is no conflict of laws issue. Defendant argues, however, that the trial would subject Oregon citizens to jury duty service for a dispute involving matters substantially occurring in Texas, that because this is a federal question case the local interest is tangential, and that there is no need to have a forum familiar with the local law try the action.
Plaintiff contends that its key witnesses are located in Oregon and that any Texas based witnesses are tangential at best to the terms and conditions of the shipping contract, that the need to compel Texas based witnesses to travel to Oregon is also tangential, and that Texas has little or no interest in the terms and conditions of a dispute arising out of a shipping contract "written and issued" by an Oregon plaintiff for a shipment to a defendant in California.
As indicated above, the record does not support a finding that this contract was "written and issued" by plaintiff. There is no written document at all and whatever agreement was reached was jointly negotiated over the phone between plaintiff in Oregon and defendant in California. I also disagree with plaintiff that the Texas witnesses are tangential. While plaintiff may not need them to prove its case in chief, their testimony does appear to be relevant to the issues in the case.
Additionally, I reject defendant's argument that the local interest is tangential because this is a federal question case and that a trial would subject Oregon citizens to jury duty for a dispute largely unrelated to Oregon. In addition to the federal question claim, plaintiff brings a supplemental fraud claim under Oregon law. Also, as I noted previously, the nature of the particular federal claim asserted here is analogous to a breach of contract claim. Thus, plaintiff's claims are not far removed from issues of concern to Oregon citizens. Furthermore, while some of the actions transpired in Texas and conversations may have been held between persons in Texas, California, and Oregon, Oregon citizens retain some interest in matters involving Oregon businesses.
Aside from the fact that there are some relevant witnesses in Texas, the other factors are largely neutral. As stated earlier, given the availability of telephone or videotaped depositions, and trial testimony by videoconference, the fact that relevant witnesses reside in Texas is not of great import. Accordingly, I conclude that defendant fails to make a strong showing of inconvenience which warrants upsetting plaintiff's choice of forum. See Harrison v. International Ass'n of Machinists Aerospace Workers, 807 F. Supp. 1513, 1516 (D.Or. 1992) (plaintiff's choice of forum controls when transfer only serves to shift the burden of inconvenience).
CONCLUSION
Defendant's motion to dismiss or transfer (#5) is denied.
IT IS SO ORDERED.