Opinion
No. C-03-2614 SC
October 17, 2003
JUDGMENT
In accordance with this Court's ORDER GRANTING DEFENDANTS' MOTION to TRANSFER VENUE, it is HEREBY ORDERED, ADJUDGED, and-DECREED that:
Judgement shall be entered in favor of DEFENDANTS and against PLAINTIFFS.
IT IS SO ORDERED.
ORDER RE: DEFENDANTS' MOTION TO TRANSFER VENUE
I. INTRODUCTION
Plaintiffs Frank Lupiani, Mary Lou Wagner, Jean Wright, Sandra Williams, Larry Allen, and Paul Brian Humphries ("Plaintiffs") have filed a 14-count First Amended Complaint ("FAC"), on behalf of themselves and hundreds of thousands of allegedly similarly situated individuals located throughout the United States. FAC ¶ 21. The Plaintiffs are employees of Wal-Mart who claim that Wal-Mart violated their rights under the Employee Retirement Income Security Act (ERISA), 29 U.S.C. § 1001 et seq., by amending the Wal-Mart Profit Sharing, 401(k), and Health and Welfare Plans in 2001 to include what Plaintiffs have, termed a "Union Exclusion" clause in the plans. FAC ¶ 23. Plaintiffs allege that the Union Exclusion clause undermines their right to form a union. FAC ¶ 45. Wal-Mart Stores, Inc., Administrative Committee, Associates' Health and Welfare Plan; Trustee, Associates' Health and Welfare Plan, David Glass, Tom Schoewe, John-Menzer, Wal-Mart Stores, Inc. 401(k) Plan Administrative Committee, and Wal-Mart Stores Inc. Retirement Plans Committee, ("Defendants") now move, pursuant to 28 U.S.C. § 1404 (a) and Fed.R.Civ.P. 12(b) (3), to transfer the venue of this action to the United States District Court for the Western District of Arkansas. The Court has reviewed the record and the arguments of the parties and, for the reasons set out below, concludes that Defendants' motion should be granted.
II. BACKGROUND
The FAC alleges harm to the Plaintiffs resulting from an alleged amendment to Wal-Mart's 2001 Benefit Book, which served as the Summary Plan Description for Wal-Mart's Profit Sharing Plan, 401(k) Retirement Plan, and Health and Welfare Plan. Plaintiffs' allegation surround a certain provision in the Wal-Mart Benefit Books which allegedly began to appear in 2001. Plaintiffs quote this provision in their FAC as allegedly stating that "Contractually excluded and certain other union represented associates are not eligible for coverage." FAC ¶ 23. Plaintiffs allege that this amendment has led them to believe that they would lose their benefits if they joined a union. FAC ¶ 45. Plaintiffs filed a 14-count FAC before this Court on July 8, 2003, alleging various ERISA violations. Defendants have requested that this action be transferred to the United States District Court for the Western District of Arkansas. Having considered the arguments for and against this motion, the Court concludes that a transfer is warranted under these circumstances.
III. LEGAL STANDARD
Section 1404(a) of Title 28 of the United States Code provides: "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." The moving party must show that the new forum is one in which the action could originally be brought. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 279 (9th Cir. 1979). In deciding a motion to transfer venue, the district court must consider each of the factors enumerated in section 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), aff'd, 726 F.2d 1381 (9th Cir. 1984). Beyond this, a 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) (citing Stewart Org. v. Ricoh Corp., 487 U.S. 22, 29 (1988). As the Ninth Circuit has stated:
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. For example, the court may consider: (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 the costs of litigation in the two forums, (7) the availability of compulsory process to compel attendance of unwilling non-party witnesses, and (8) the ease of access to sources of proof.Jones, 211 F.3d at 498-99 (citations omitted). The burden is on the moving party to establish that a transfer would allow a case to proceed more conveniently and better serve the interests of justice. Savage. 611 F.2d at 279.
IV. DISCUSSION A. This Action Could Have Been Brought in the Western District of Arkansas
ERISA's venue provision provides:
Where an action under this title is brought in a district court of the United States, it may be brought in the district where the plan is administered, where the breach took place, or where a defendant resides or may be found.29 U.S.C. § 1132 (e)(2).
There is no dispute that this action could have been brought in the United States District Court for the Western District of Arkansas. Each of the three plans at issue is administered in the Western District of Arkansas, and many if not all of the Defendants may be found there. Thus, the first element of the section 1404(a) analysis would allow a transfer in this case.
B. The Convenience of the Parties and Witnesses Favor a Transfer of this Action
It is interesting to note that not one of the named Plaintiffs in this action resides in California. The named Plaintiffs reside in the following locations: Frank Lupiani, Las Vegas, NV; May Lou Wagoner, Las Vegas, NV; Jean Wright, Louisville, KY; Sandra Williams, Las Vegas, NV; Larry Allen, Henderson, NV; Paul Brian Humphries, Los Lunas, NM. See Ex. E to Bohl Decl. There are also hundreds of thousands of putative plaintiffs who reside throughout the country. Here is where each defendant resides:
1. Wal-Mart Stores, Inc. — Bentonville, Arkansas.
2. The 10 members of the Administrative Committee Associates' Health and Welfare Plan — Rogers and Bentonville, Arkansas.
3. Trustees, Associates Health and Welfare Plan, David Glass, Tom Schoewe, John Menzer — Rogers and Bentonville, Arkansas.
4. The members of the Wal-Mart Stores, Inc., 401(k) Plan Administrative Committee — Bentonville, Arkansas.
5. The nine members of Wal-Mart Stores, Inc. Retirement Plans Committee (with jurisdiction over both the 401(k) Plan and the Profit Sharing Plan) — Bentonville, Arkansas.
Def's. Mem. in Support of Transfer at 5. Rogers and Bentonville are in the Western District of Arkansas.
According to the papers submitted by the parties, the primary witnesses in this action will be the twenty-two individuals who constitute the defendant parties, as well as an additional twenty individuals who reviewed the Union Exclusion clause before it was included in the Profit Sharing, 401(k) and Health and Welfare Plans. Defs' Mem. in Support of Transfer at 6-7. Every one of these forty-two individuals resides in or near Rogers or Bentonville, Arkansas, in the Western District of Arkansas. Id. at 7.
It seems clear to the Court that the parties and witnesses in this action would be least inconvenienced if the trial occurs in the Western District of Arkansas. Each of the twenty-two individual defendants resides in the Western District of Arkansas. While none of the named Plaintiffs reside there, neither do they reside in California and thus they will have to travel regardless. Further, the thousands of putative plaintiffs in this case reside throughout the country, including Arkansas. Every one of the forty-two witnesses identified by the parties as having information relevant to this action resides in the Western District of Arkansas. Plaintiffs argue that because these witnesses are all employees of defendant Wal-Mart Inc., any inconvenience they may suffer should be disregarded in this analysis. See Pl's. Opp. to Defs' Motion to Transfer at 7 (citing to 15 Charles A. Wright Arthur Miller, Federal Practice and Procedure, § 3851, at 423-24, which states that "The convenience of witnesses refers to third-party witnesses, not necessarily witnesses employed by the parties.") While Plaintiffs are correct that our inquiry should focus on the inconvenience to third-part' witnesses, the Court is not precluded from examining the effect venue has on witnesses employed by the parties. Courts have considered the inconvenience to defendant-employee witnesses where, as here, the opposing party has not identified any witnesses who will be inconvenienced by a transfer. See Maurey v. The University of Southern California, 1998 U.S. Dist. LEXIS 4276, at *6-9 (N.D.Cal. Mar. 26, 1998) (motion to transfer granted because, inter alia, the defendant's employees resided in the transferee district and plaintiff's third-party witnesses were speculative at best.) As Plaintiff has not identified any third-parties who might have relevant knowledge in this matter, we think it appropriate to look at the inconvenience to prospective witnesses — even if they are employed by Wal-Mart.
On the whole, the Court finds that the convenience of the parties* and the witnesses weighs in favor of transferring this action to the Western District of Arkansas.
C. Interests of Justice Favor Transfer of this Case
Before addressing Plaintiffs' arguments against transfer, it should be noted that nearly all of the equitable factors listed by the Ninth Circuit above in Jones v. GNC Franchising, Inc. favor transfer of this case. The relevant agreements were negotiated and executed in the Western District of Arkansas, which is also the forum where the parties have the most contacts, where the events leading up to Plaintiffs' cause of action arose, where nearly all of the sources of proof are located, and presumably where the costs of litigation will be least expensive. In contrast, the Northern District of California has virtually no connection or ties to this action. None of the named Plaintiffs reside in California, none of the agreements or events leading" Up to this case occurred in California, and none of the sources of proof or key witnesses reside in California. Indeed, the only connection this Court seems to have with this case is the location of Plaintiffs' counsel, who reside in Oakland, CA. However, courts have consistently held that the convenience of plaintiff's counsel is not a factor to be considered in determining whether a particular locale is a convenient forum. See e.g., Fabus Corp. v. Asiana Express Corp., 2001 U.S. Dist. LEXIS 2568 at *6 (N.D. Cal. March 5, 2001). Simply put, Plaintiffs offer no reason why they chose to sue in the Northern District of California. When counter-balanced with the many equitable arguments Defendants have raised, it is clear to the Court that the "interests of justice" favor moving this case to the Western District of Arkansas.
Plaintiffs advance three primary arguments against transfer of this case. First, Plaintiff reminds us that "a plaintiff's-choice of forum is accorded substantial weight in proceedings under [ 28 U.S.C. § 1404(a)], and courts generally will not transfer an action unless the `convenience' and `justice' factors strongly favor venue elsewhere." PL's. Opp. to Def's. Motion to Transfer Venue at 5 (quoting Florens Container v. Cho Yang Shipping, 245 F. Supp.2d 1086, 1092 (N.D. Cal. 2002). Usually, a plaintiff's choice of forum is entitled to deference and will only be disturbed on a clear showing that convenience and justice warrants laying venue elsewhere. However, if the "operative facts have not occurred within the forum and the forum has no interest in the parties or subject matter, [plaintiff's] choice is entitled to only minimal consideration."Lou v. Belzberg, 834 F.2d 730",'-739 (9th Cir. 1987). Also, "this is particularly true where the plaintiff is not a resident of the judicial district where he ha' instituted suit." Maurey, 1998 U.S. Dist. LEXIS at *5. In this case none of the named Plaintiffs' reside in California, and their claims could hardly be less related to the Northern District of California. Accordingly, Plaintiffs' choice of forum in this matter is entitled to minimal deference.
Second, Plaintiffs argue that transferring the case at this point would delay their ability to obtain injunctive relief and "effectively doom the effort to remove misleading statements from summary plan descriptions for the 2004 calendar year." Pl's. Opp. to Def's. Motion to Transfer Venue at 3. While this prediction is far too speculative to be given much credence at this point, it is also worth noting that "section 1404(a) contains no exception for plaintiffs seeking injunctive relief." Lewis v. C.R.I. Inc., 2003 WL 1900859 at *5 (S.D.N.Y.). If Plaintiffs wanted to avoid a transfer motion that might delay the proceedings, they could have filed this action in the Western District of Arkansas. Further, Plaintiffs' contention is belied by the fact that they have not sought preliminary injunctive relief in this case. If the issues in this action require immediate resolution, it seems that Plaintiffs would have filed a motion for a preliminary injunction by now.
Finally, Plaintiffs argue that the venue choice of ERISA participants and beneficiaries commands a special deference. This argument was best summarized by the court in Board of Trustees, Sheet Metal Workers National Fund v. Baylor Heating and Air Conditioning, 702 F. Supp. 1253 (E.D. Va. 1988):
"In ERISA cases, there is a further policy rationale in favor of according plaintiff's choice of forum somewhat greater weight than. would typically be the case. Congress recognized as a special goal of ERISA that: `the enforcement provisions have been designed specifically to provide both the Secretary and participants and beneficiaries with broad remedies for redressing and preventing violations of the Act. The intention of the Committee is to provide the full range of legal and equitable remedies available in both state and federal courts and to remove jurisdictional and procedural obstacles which in the past appear to have hampered effective enforcement of fiduciary responsibilities under state law for recovery of benefits due to participants. Given this, plaintiffs' venue selection under ERISA is arguably entitled to somewhat greater deference than that typically accorded plaintiffs' choice of forum.'"Id. at 1256-57 (quoting H.R. Rep. No. 533, 93d Cong., 1st Sess., reprinted in 1974 U.S. Code Cong. Admin.News 4639, 4655).
Plaintiffs correctly note that a plaintiff's choice of forum is accorded great deference in ERISA cases. However, the Ninth Circuit has stated that forum is "one of several factors a court must consider when ruling on a motion to transfer venue." Jacobson v. Hughes Aircraft Co., 105 F.3d 1288, 1302 (9th Cir. 1997). As detailed above, there is little evidence before the Court that counsels against transferring this action, other than Plaintiffs' decision to file in this Court. Plaintiffs' choice alone simply does not outwiegh the factors that strongly weigh in favor of transferring their cases. Accordingly, the Court concludes that Defendants' motion for change of venue should be granted. V. CONCLUSION
For these reasons, Defendants' motion to transfer this case to the Western District of Arkansas is HEREBY GRANTED.
IT IS SO ORDERED.